IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.8075 of 2009 1. Ashok Sah, son of Late Sogarath Sah, village and PS Runisaidpur, District Sitamarhi. 2. Jai Bacchan Rai, son of Late Asharfi Rai, village Gobarahiya, PS Sursand, District Sitamarhi – petitioners. Vs. 1. The State of Bihar, 2. The Supdt. Of Police, Sitamarhi. 3. The Officer Incharge Dumara Police Station. 4. Digambar Jha, son of Late Raghunth Jha, Incharge Principal Rajkiya Madhyamik Vidyalya, Madhopur, PS Bathnaha, District Sitamarhi – opp. parties. 4 11.5.2010 Heard learned counsel for the petitioners and the counsel appearing on behalf of the State. This application has been filed for quashing the order, dated 5.2.2009 passed by the 1st Addl. Sessions Judge, Sitamarhi in S.T. No. 435/2008 arising out of Dumra PS case No. 155/2008 by which the petition for discharge was rejected. The contention of the petitioners is that the FIR, the order of cognizance and the investigation disclose that the offence is made out under section 304A and not under section 304 of the Penal Code. It is submitted that the entire facts would reveal that there was no intention on the part of the petitioners to cause the accident which resulted in death of so many children. Subsequently charges were framed vide Annexure 4 under section 304 of the Penal Code. The question whether the accident had taken place out of rash and negligent driving is a question that can only be determined during the trial. In case the court comes to the conclusion that the 2 petitioner had no intention to cause such accident, obviously the court will be at liberty to alter the charge and find the petitioner not guilty of the offence. At this stage this court does not think it proper to interfere with the order dismissing the discharge petition. This application is dismissed. haque (Sheema Ali Khan, J.)