IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.986 of 2010 1. BABLOO MAHTO 2. BHONU MAHTO ----PETITIONERS. Versus THE STATE OF BIHAR --- OPP. PARTY. ----------- 04 27.07.2010 Heard both sides. Prayer in this application is to give necessary guidelines to the Court below in the matter in the following circumstance(s). The two petitioners herein along with 03 others were tried for an offence punishable under Section 302/34 of the Penal Code in Sessions Trial no. 686/1995. Learned trial Court, on a consideration of the evidence brought on record, convicted them under Section 302/34 of the Penal Code and Section 27 of the Arms Act. The matter was directed to be listed on subsequent date for hearing on the point of sentence in terms of Section 235(2) of the Code of Criminal Procedure. It appears that three of the convicts appeared on that day and they were accordingly awarded sentence(s). So far as the present petitioners are concerned, they did not appear. Resultantly, no sentence could be awarded on them in terms of the judgment and order of conviction recorded by learned trial Court. Petitioners herein continued to evade appearance before the Court for all these years. In the meanwhile, the three convicts preferred Criminal Appeal no 284 of 2004 (D.B) ( Dharamjay Prasad @ Dharamjay Mahto vs. State of Bihar) Cr. Appeal no. 286 of 2004 (D.B) ( Karu Mahto vs. 2 State of Bihar) and Cr. Appeal no. 335 of 2004 (D.B.) ( Binda Mahto vs. State of Bihar). The matter was also referred and Death Reference no. 5 of 2004 was accordingly instituted in this Court. All these appeals along with the Death Reference were finally heard and disposed of by judgment and order dated 28.11.2008 (Annexure-1). They were acquitted of all the charge(s) Nearly one and half years thereafter the two petitioners herein appeared before the Court. On a consideration of the submissions advanced on behalf of the parties, learned trial Court observed as under:- “….Having regard to the facts and submissions as advanced on behalf of both the parties and the point of law involved here I feel that no such stalemate has occasioned which may need reference of the matter to the Hon’ble Court, as the matter involved here is not of law but of the procedure and since after section 235(1) comes the provision of section 235(2) of the Code of Criminal Procedure the court….” It appears that on the insistence of the petitioners herein learned trial Court observed as under:- “…..However, if the parties concerned may so wish, they may take up the matter with the Hon’ble Court for necessary guideline in this matter…..” Accordingly the present application has been filed. Learned counsel appearing in support of the application states that Court below is bound to release the petitioners in terms of the judgment and order of acquittal recorded by this Court in Annexure-1. He made elaborate submissions with reference to the findings arrived at by this Court in the appeals preferred by the three other co-convicts. It is his contention that the impugned judgment and order of conviction 3 stands quashed by this Court and as such learned trial Court is not obliged to pass the order in terms of Section 235(2) of the Code of Criminal Procedure. On the contrary, Mr. Prabhakar Tekriwal, learned Government Advocate submits that the present application filed under Sections 397 and 401 of the Code of Criminal Procedure is not maintainable before this Court. He strenuously took the Court through the observations of learned trial Court wherein it has been observed that no question of law is involved which may occasion the Court below to make reference of the matter to the Hon’ble Court. Having considered the submissions advanced at the Bar, this Court is of the view that the present application, in the facts and circumstances of the case, is not maintainable. Accordingly, the application is dismissed. Sym ( Kishore K. Mandal, J.)