IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50641 of 2007 Shankar Sah, Son of Late Nayak Sah, Resident of Mohalla Bara Telpa, P.S. Chapra Town, District Saran. -------- Petitioner Versus 1. State of Bihar. 2. Harendra Singh, Son of Late Ram Deni Singh, Resident of Village Bankerawa, P.S. Parasa, District Saran. --------- Opposite Parties ----------- 4 30.03.2010 Heard Mr. Kanhaiya Prasad Singh, learned senior counsel along with Mr. Atal Bihari, counsel for the petitioner and counsel for the State. By the impugned order, the court below has rejected the prayer of the petitioner made in the application filed on 4.1.2005 as with regard to exercise of power under Section 228 Cr.P.C. In order to appreciate the grievance of the petitioner, it would be useful to first quote the application filed by him on 4.1.2005 which reads as follows : - “The humble petition U/s 228 (1)(a), on behalf of accused is as follows:- 1. That an F.I.R. has been registered on the basis of written report of Harendra Singh Truck Driver by Dighwara P.S. U/s 363, 365, 379/34 I.P.C. In the course of investigation 2 I.O. prayed for adding the section 302, 201 and 411 of I.P.C. The prayer was allowed by C.J.M., Saran. 2. That in the course of investigation, many articles Truck/Bus concerned, were recovered from the possession of accused Shanker Sah who is a Cabari shop keeper. Petitioner has a Cabari shop at Bada Telpa Sonepur Chapra main road. 3. That the seized articles were identified by Truck Owner in T.I.P. 4. that it is fact that petitioner Shanker Sah has purchased the Truck/Bus articles from different persons and sells it. In the course of investigation petitioner Shanker Sah has explained to police in respect of seized articles and submitted several papers purchase concerned. 5. That after all the accused Shanker Sah has been made an accused of this case on the basis of merely on suspicion. 6. That in the course of investigation that witnesses have stated that the articles Truck/Bus concerned have been recovered from the shop of Shanker Sah. And Shanker Sah has sold the said articles to another accused Munna Singh. 7. That it is clear from the documents on record, the offence is made out U/s 411 of the I.P.C. only against accused persons, which is triable by any Magistrate. It is, therefore, prayed that your 3 honour may be pleased to frame the charge against the accused persons U/s 411 of I.P.C. and by ordered transfer the case for trial to the C.J.M., Saran.” It is this application which has been rejected by the impugned order where the court below after making detailed discussion has ultimately held as follows:- “---- The police registered formal F.I.R. and started to investigate the case. The police recovered many articles of the truck from the possession of accused Shankar Sah and prepared seizure list. From perusal of the case diary the statement of the witnesses recorded u/s 161 Cr.P.C. and also from seizure list prima-facie it appears that the driver, Khalasi of the said truck no. WB-9076 were kidnapped alongwith the truck and the kidnappers have killed them and after cutting the truck they were trying to sell it and they sold it to the accused Shankar shah. After considering all the facts and the circumstances and also after hearing I am of the opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the court of Sessions. 4 Accordingly the petition of the accused filed u/s 228(1)(a) Cr.P.C. dated 4.1.05 is rejected. Fix 26.9.07 for framing of charge.” Mr. Singh, learned senior counsel for the petitioner, however, assailing the aforementioned findings has gone to the main aspect that under the given circumstances, the charge even under Section 411 of the Indian Penal Code was not made out and therefore, there would be no estoppel against the petitioner, an accused, if the lawyer representing him had filed an application seeking the case to be sent back to the Magistrate for its trial under Section 411 of the Indian Penal Code. There are two aspects which need to be looked into for coming to the conclusion as to whether the court was even appraised of the stand that has been taken before this Court. Admittedly, when the First Information Report was filed, the same contained allegations for offence under Section 363, 365, 379/34 of the Indian Penal Code, inasmuch as, at that stage, even the informant did not know that the driver and the kahalasi of the truck were 5 already murdered. The police in course of investigation having found and in fact recovered the dead body of the driver and the kahalasi and getting the postmortem done had found the case to be true for offence under Section 364/302/201/379/411/ 34 of the Indian Penal Code. Since some part of the allegation also involved the petitioner on account of recovery of the stolen articles from his kabari shop he was also brought in the ambit of the criminal case and a charge-sheet was filed against him. The case as a whole being triable by court of sessions was committed and at that stage, the petitioner did not come out to say that he is not at all involved in any offence rather his limited plea was that on the basis of the materials which has been collected in course of investigation, his complicity would remain confined to the offence under Section 411 of the Indian Penal Code only. On that basis, he had sought the case to be transferred to the court of Magistrate as offence under Section 411 I.P.C. is triable by the court of Magistrate. 6 The sessions court at that stage having already found materials for offence under Section 302 and 364 exclusively tried by the court of sessions could not have segregated the trial one for the other accused persons and the other for the petitioner and therefore, the prayer made in the application dated 4.1.2005 could not have been allowed. Coming to the next submission of Mr. Singh that on the basis of the materials on record, the offence under Section 411 I.P.C. could not be made out because the stolen properties were in fact not capable of being identified and the seizure list itself will go to show that even the owner of the truck was not in a position to identify them or that the seizure list contains signature of witnesses who are not local persons are all such matters which require leading of evidence by the parties for its being appreciated and adjudicated. The court at the time of framing charge in terms of section 228 of the Code of Criminal Procedure would be ill-equipped to decide these questions and in fact, also cannot do so by holding a mini trial. 7 That being so, this Court would not find any error in the impugned order. Infact there is no merit in this application and the same must be and is accordingly dismissed. Rsh (Mihir Kumar Jha, J.)