IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.14157 of 2010 JANARDAN SINGH, SON OF BHIKHAN SINGH, RESIDENT OF VILLAGE KHALISHA, P.S. UDWANTNAGAR, DISTT. BHOJPUR. ------- PETITIONER. Versus 1. THE STATE OF BIHAR 2. BIMAL KUMAR, SON OF LATE SEO KUMAR SAO, R/O VILLAGE PAHARPUR BAZAR, P.S. FATEHPUR, DISTT. GAYA. -------- OPPOSITE PARTIES. ----------- 3. 14.12.2010 Heard the parties. The petitioner seeks quashing of the order dated 4.2.2010 passed by Chief Judicial Magistrate, Gaya, in Fatehpur P.S. Case No. 152 of 2006 by which cognizance has been taken under Section 302 of the Indian Penal Code even though charge sheet was submitted under Section 304 of the Indian Penal Code. The background of the case is that on 15.10.2006, a dacoity took place in three houses where allegedly one shopkeeper was shot at due to which he was injured and subsequently died. A case under Section 395 of the Indian Penal Code was instituted in this regard which was converted into Section 396 of the Indian Penal Code after the death of the deceased. On the next day of the occurrence, the brother of the deceased filed a case stating therein that the petitioner who was the Police Officer, had arrived at the time of dacoity, and had in fact shot dead the deceased and, therefore, a case under Section 302 of the Indian Penal code was instituted. After 2 due investigation, charge sheet under Section 304 I.P.C. was submitted since the shooting had no mens rea. Differing with the charge sheet, cognizance has been taken under Section 302 I.P.C. on account of which the petitioner is aggrieved. On hearing both the parties, I am of the view that since at this stage, only cognizance has been taken and both Sections i.e. 304 and 302 are Sessions triable, thereafter, the relevant stage to raise the issue as to whether Sections 304 or 302 I.P.C. is made out would be at the stage of framing of charge. Even at that stage the court can always frame an alternative charge if it finds the same necessary. In view of such, I refuse to interfere in the matter at this stage. The application is disposed of with the aforesaid observations. S.Ali ( Anjana Prakash, J.)