IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.55781 of 2007 1. MAHESHWAR PRASAD YADAV @ MAHESHWAR YADAV, SON OF ASHESHWAR YADAV 2. RAMDEO PRASAD YADAV @ RAMDEO YADAV, SON OF LATE RAMAUTAR YADAV 3. HARISHCHANDRA YADAV, SON OF RAMDEO YADAV 4. ARUN KUMAR YADAV, SON OF RAMDEO YADAV 5. PRADEEP KUMAR YADAV, SON OF MAHESHWAR YADAV 6. BODH NARAYAN YADAV, SON OF LATE BHAGWAT YADAV 7. SURYA NARAYAN YADAV, SON OF LATE BHAGWAT YADAV 8. CHANDRA NARAYAN YADAV, SON OF LATE BHAGWAT YADAV 9. RAM ISHWAR YADAV, SON OF RAMAWATAR YADAV 10.MANOJ KUMAR YADAV, SON OF RAMBIR YADAV 11.RAMBIR YADAV, SON OF RAMAWATAR YADAV ALL RESIDENT OF VILLAGE CHHAPRADHI, P.S. KHAJAULI, DISTRICT MADHUBANI. ----- PETITIONERS Versus THE STATE OF BIHAR ----- OPPOSITE PARTY ----------- 2 29.3.2010 Heard the parties. This application has been filed against the order dated 24.9.2007, refusing to discharge the petitioners under Section 228(i) of the Code of Criminal Procedure, passed by the Fast Track Court No. 1st, Madhubani in Sessions Trial No. 528 of 2007. The complainant is the Block Development Officer- cum-Anchaladhikari, Khajauli. The prosecution case is that the Block Development Officer along with police personnel after obtaining the orders from the D.C.L.R., Madhubani had gone to plot no. 1084 which is a tank/pond situated at Mauza Mahua Ekdara Tola Chhaprahi at Khata No. 555 Khesra No. 1084 to catch fish. It is alleged that the driver of the jeep was assaulted by the petitioners. The case of the petitioners on the other hand is based on a judgment and decree of title suit no. 45 of 1988 filed against the State of Bihar and Ors. with respect to the land of S.P. plot nos. 1083, 1084 and 1085 of village Chhapradhi. The decree issuedby Munsif II in Title Suit No. 45 of 1988, the first (State of Bihar), second and third 2 defendants were permanently restrained from dispossessing the plaintiffs from the suit tank and from removing fishes from it and changing its nature. On the basis of the aforesaid decree and judgment learned counsel for the petitioners submits that the Block Development Officer had no authority to go on the piece of land situated on plot no. 1084 and in order to justify his presence this false and fabricated case has been instituted making allegations against the petitioners of assaulting the driver and creating documents such as the medical report in their favour to make out a case under Section 307 of the Indian Penal Code. Learned counsel for the petitioners further submits that the medical report does not indicate that there is a fracture and there is no X-ray to support the allegations that grievous injury was inflicted on the driver of the jeep. It is further submitted that in fact the informant has not been able to make out a case under Section 307 of the Indian Penal Code considering that the driver was assaulted only by fists and slaps and that the mark on his neck does not indicate that the petitioners had the intention to kill the driver, specially in view of the fact that if such was the intention of the petitioners, there was no intervening circumstances to stop them in achieving their goal. It is further submitted that the Block Development Officer and the doctor being Statement Government employees had secured a medical report. To constitute an offence under Section 307 of the Indian Penal Code the Court is bound to see the intention of the parties, the 3 manner in which the occurrence took place and the weapon used for committing the act. On the basis of what has been submitted above the Court below will examine the judgment and decree declaring the three plots to be the property of the petitioners or their predecessors in interest, and, also consider the aforesaid three requirements which would go to show that a case is made out under Section 307 of the Indian Penal Code. As far as Section 333 of the Indian Penal Code is concerned the fact that needs to be examined is whether the informant along with his driver and others were going to plot in question to “discharge of their duties”? If the petitioners have a valid title over the plot of land there can be no justification for the Block Development Officer or any other officer of the State Government to go on the plot of land for the purposes of fishing. This aspect however, needs to be examined thoroughly, during the trial. This application is disposed of with the observations aforesaid. Sanjay (Sheema Ali Khan, J.)