IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43511 of 2007 ADITYA PRAKASH SAHAY, Son of Late Lakshmi Prasad, resident of Mohalla-Kashipur, P.S.-Samastipur (Town), District-Samastipur at present residing of 102, Rajan residing G.D. Mishra Path, New Patliputra, Patna-13. ………….Petitioner. Versus 1. The State of Bihar. 2. Smt. Sakuntala Devi, W/o Late Chandeshwar Rai, Village-Imadpur, P.S.- Patepur, District-Vaishali. ……….Opp. Parties. ----------- 4/ 22.12.2009 Heard counsel for the petitioner and the counsel appearing for the State. The petitioner has prayed for quashing of the order dated 06.12.2003 passed by In-charge Chief Judicial Magistrate, Samastipur in G.R. No. 142 of 2003 arising out of Tajpur (Bangra) P.S. Case No. 27 of 2003, whereby cognizance has been taken under Sections 279, 304 and 427 of the Indian Penal Code and the petitioner has also prayed for quashing of the order dated 21.02.2007 passed by Sri R.K. Chaudhary, learned J.M. Ist Class, Samastipur whereby he was pleased to reject the discharge petition filed by the petitioner. Learned counsel at the very first instance, submitted that the petition of discharge filed before trial court was misconceived and not maintainable. The prosecution case in short is that one Shakuntala Devi opposite party No. 2 made her fardbeyan before the Police stating therein that on 08.02.2003 at about 1.30 P.M., she along with her husband were returning to their house by a motorcycle from Tajpur. As they reached near Chura Mill at village-Sirsia, a 2 Passion motor-cycle bearing Registration No. BR-1S/0024 coming from the opposite side dashed against her husband’s motor-cycle, consequent to which both the informant and her husband fell on the road and sustained injuries. It has been further alleged that several villagers who were watching the incident came to the place of occurrence and took them to the hospital, where her husband died during treatment. Thus, Tajpur (Bangra) P.S. Case No. 27 of 2003 under Sections 279, 304(A), 337 and 427 of the Indian Penal Code was registered against the driver of Hero Honda Passion. Mr. Chitranjan Sinha, learned Senior Counsel submit that investigation unfolded that the tyre of the deceased’s motor-cycle burst, on account of which he lost his balance and a Hero Honda Passion Motor-cycle coming from the opposite side collided in these circumstances. Unfortunately, in course of treatment Chandeshwar Rai died. He submits that all witnesses examined in course of investigation supported the aforesaid facts of bursting of tyre of motor cycle of deceased and his losing balance. He submits that at the instance of S.P. Samastipur chargesheet was submitted though, there were no materials for the same. Learned counsel further submits that both the petitioner and his sister who were on passion motorcycle sustained fractured injuries. A copy of injury reports have been annexed as A2 series. 3 This Court by order dated 12.01.2009 had called for a report from Motor Vehicle Inspector, Samastipur with regard to bursting of tyre of the deceased’s motorcycle bearing Registration No. BHW 1885 in the background of the statements of the witnesses that the motor cycle of the deceased suffered a tyre burst. A report of the Motor Vehicle Inspector, Samastipur dated 20.01.2009 is on record, which supports the submission of learned counsel for the petitioner that the tyre of the husband of the O.P. No. 2 burst. Having heard the counsel for the parties, it appears that all the witnesses stated that the tyre of the motorcycle of informant’s husband burst due to which he lost his balance. In the meantime, as a consequence, the motorcycle driven by the petitioner coming from the opposite side dashed against it. The statement of the witnesses finds corroboration in report of the Motor Vehicle Inspector, Samastipur, who opined that the motor cycle is an old one and the tyre of the deceased’s motorcycle was burst. The materials on record do not show that the occurrence took place on account of rash and negligence of the petitioner, but it was a sheer accident as tyre of motorcycle of deceased burst. As such the order dated 06.12.2003 taking cognizance under Section 279, 304A & 427 of IPC passed by Incharge, Chief Judicial Magistrate, Samastipur in G.R. No. 142 of 2003 bearing Tajpur (Bangra) P.S. Case No. 27 of 2003, is 4 quashed. This application thus, stands allowed. Sanjeet/ (S. P. Singh, J.)