Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.18452 of 2010 ====================================================== 1. Upendra Tiwary son of Late Krit Narayan Tiwary. 2. Sachidanand Tiwari, son of Late Krit Narayan Tiwary. 3. Ravindra Tiwari, son of the late Daroga Tiwari. 4. Satendra Tiwari, son of Kamal Tiwari, All Residents of Village-Tiwari Tola, P.S. Sangrampur, Distt- East Champaran. 5. Ram Chandra Mishra, Son of Late Bir Mishra. R/O Village-Chatiya, P.S. Mallahi, Distt-East Champaran. 6. Krishna Murari Shahi, Son of Hardeo Shahi, Resident of Village-Parsa, P.S. Majhauliya, Distt- West Champaran. .... .... Petitioner/s Versus 1. State Of Bihar 2. Lal Babu Tiwary, son of Late Daroga Tiwary, Residents of Village- Tiwari Tola, P.S. Sangrampur, Distt- East Champaran. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Ram Adya Singh, Adv. For the O.P No.2 : Mr. Ansu, Adv. For the State : Mr. Gauri Shankar Gupta, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER 3 25-07-2012 Heard learned counsel for the petitioners, learned Additional P.P. for the State as well as learned counsel for the O.P. No.2. 2. Petitioners have challenged order dated 30.03.2010 passed by learned Chief Judicial Magistrate (East Champaran) in connection with Sangrampur P.S. Case No. 15/10 whereby and whereunder differing from conclusion of the investigating authority took cognizance for an offence punishable under [STATUTE] and summoned the petitioners to face trial thereof. Patna High Court Cr.Misc. No.18452 of 2010 (3) dt.25-07-2012 2 3. It has been submitted on behalf of the petitioners that in the case diary there happens to be sufficient material to undo the allegation whatever been alleged by the informant of this case. It has further been submitted that deceased was aunt of informant who had no male issue and on account thereof she was duped by the informant who succeeded in getting the document in his favour with regard to land belonging to the deceased. After coming to know about the same the deceased as well as her five daughters had filed Title Suit No. 20/95 for cancellation of the document wherein deceased was examined and had supported her pleading. 4. In the aforesaid background, informant of this case did not allow the deceased to remain at her place and so she was residing with one of her daughters at Motihari and at the age of 85 she died of natural death. The villagers including relatives have participated in funeral. To support the same, learned counsel for the petitioners referred paragraphs 17, 18, 19, 20, 21, 22, 30 of the case diary and submitted that in the aforesaid background, there was no occasion for the learned Chief Judicial Magistrate to differ from the conclusion arrived at by the investigating authority whereby final form was submitted. So submitted that the order impugned happens to be bad. Patna High Court Cr.Misc. No.18452 of 2010 (3) dt.25-07-2012 3 5. On the other hand, learned counsel for the O.P. No.2 submitted that apart from narration of the complaint, from paragraphs-6, 8, 9, 10, 48 and 49 of the case diary the case of the prosecution found supported. In the aforesaid background, it has been submitted that there was ample material before the learned lower court to differ from the conclusion arrived at by the investigating authority. 6. Learned APP opposed the prayer and followed the argument raised on behalf of the O.P. No.2. 7. Lal Babu Tiwary, informant of this case had filed complaint petition putting allegation against the petitioners that they had taken away the deceased from his house in his absence and then thereafter after committing murder her dead body was put to fire and by such way they have committed offence. The aforesaid complaint was sent to the police station for registration and investigation in accordance with Section 156 (3) of the Cr.P.C. whereupon Sangrampur P.S. Case No. 15/2010 was registered. After concluding investigation police had submitted final form. The learned Chief Judicial Magistrate differed therefrom, took cognizance of an offence which happens to be the matter of challenge. 8. At the present stage, learned Magistrate has to see a Patna High Court Cr.Misc. No.18452 of 2010 (3) dt.25-07-2012 4 prima facie case for summoning the accused. It is not the stage where the evidence has to be evaluated in a manner leading to conviction of the accused. From the case diary it is evident that there happens to be both type of material available in the case diary. The first part happens to be supporting the prosecution case while other against the prosecution case and so in that circumstance it was upon learned Magistrate to see whether there happens to be ample material for the purpose of differing from the conclusion arrived at. Therefore, the order impugned in the aforesaid background cannot be said to the illegal or bad. Other part whatever happens to be probably a defence version which could be taken into consideration at the stage of trial itself. 9. Consequent thereupon, I do not see any cogent ground to interfere with the order impugned. Hence, petition is dismissed. perwez./- (Aditya Kumar Trivedi, J)

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.