IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33838 of 2010 JITENDRA PRASAD SINGH @ JITENDRA KUMAR SINGH & ANR Versus STATE OF BIHAR ----------- 2/ 6.10.2010 Heard learned counsel for the parties. The petitioners are aggrieved by order dated 7.8.2010 passed by the Judicial Magistrate Ist Class, Patna in Parsa Bazar (Phulwari) P.S. Case No. 858 of 2004, by which the petition of the petitioners under section 239 of the Code of Criminal Procedure for discharging them from the case, was turned down. The ground on which the above noted order has been sought to be quashed, was that the two petitioners were government servants and on the date of occurrence they were attending to their official duties at far off places. It was contended that petitioner no. 1 Jitendra Prasad Singh alias Jitendra Kumar Singh, who was a Junior Engineer, on the relevant date, was present in the office of S.D.O., Sub-Division-3, Panki, Muzaffarpur and petitioner no. 2 Ambika Singh alias Ambikanand Singh who was a Junior Engineer in the officer of the Assistant Engineer, Design and Planning, Palamu, on the date of the occurrence, was posted there and as such, it was contended that the alibi of the petitioners were verified by the police and, accordingly, the petitioners were not sent up for trial. However, the learned Magistrate summoned the petitioners and refused to discharge them without looking to that aspect of the matter dismissing the petition. It was next contended that the 2 petitioners being government servants, could be put to hardship if they are to stand trial. It is too well known to be pointed out that no prosecution could be quashed or set aside merely on the plea of alibi of an accused. It is a defence which has never to be considered except at its appropriate stage and that too, as per the standard of proof, as set down by the different decisions of the Supreme Court. In that view of the matter, the court does not see any impropriety in the passing of the order by the learned Magistrate. As such, the petition has no merit and the same is dismissed. Anil/ ( Dharnidhar Jha, J.)