Case Facts:
Patna High Court Cr.Misc. No.6122 of 2011 (3) dt.26-06-2012 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.6122 of 2011 ====================================================== 1. Md. Rashid Manjoor Late Manjoor Habib Village-Barahpura,Ps- Ishakchak,District-Bhagalpur. 2. Md.Shahid Manzoor Late Manjoor Habib Village-Barahpura,Ps- Ishakchak,District-Bhagalpur. 3. Md.Javed Manzoor Late Manjoor Habib Village-Barahpura,Ps- Ishakchak,District-Bhagalpur. 4. Md.Diamod Manzoor@Md.Sharik Manzoor Late Manjoor Habib Village-Barahpura,Ps-Ishakchak,District-Bhagalpur. .... .... Petitioner/s Versus The State Of Bihar & Anr. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Uma Kant Prasad, Adv. For the Opposite Party No.2: Mr. Deepak Kumar Sinha, Adv. For the State Mr. Binod Kumar No.3, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 3 26-06-2012 Heard learned counsel for the petitioners, for the State and for O.P.No.2. In this case, petitioners are challenging the order dated 13th December 2010 by which court of Sessions in Cr.Revn.No. 365 of 2009 set aside the order dated 22nd October 2009 passed by the Railway Judicial Magistrate, Bhagalpur in Complaint Case No. C/1472 of 2004. From the complaint petition it appears that the allegation has been made by the complainant that on 22nd September 2004, at about 8:00 P.M. ac used persons entered into the courtyard of the complainant, abused and assaulted the complainant, his daughter and wife. There is further allegation that they had snatched Rs.1,000/- from the person of the complainant. Patna High Court Cr.Misc. No.6122 of 2011 (3) dt.26-06-2012 Cognizance was taken which was challenged by the petitioners unsuccessfully and later on petition filed for discharge. The learned Magistrate examined the matter and allowed the petition. The said order was challenged before the court of Sessions, as stated above. The Sessions court found fault in the order and set aside the same giving a direction which is under challenge before this Court. Counsel for the petitioner submits that the Sessions court exercising the power [STATUTE] urt below is illegal, quash it and remand the same for passing a fresh order, but he cannot give a positive direction whereas in the order he has given a direction which is foreign to the Code of Criminal Procedure. This Court finds force in the submission. If the Court of Sessions finds that the order passed by the court below is illegal, he can quash the matter and remand the same but he cannot give a particular direction. The direction part of the order portion is set aside and rest part remains in tact. This petition is allowed to the aforesaid extent that the learned Magistrate will pass a fresh order under Section 245(1) Cr.P.C. Jay/- (Shivaji Pandey, J)

Applicable IPC Section: 398

Statute Text:
Section 398 of the Indian Penal Code. Attempt to commit robbery or Dacoity when armed with deadly weapons. If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years.