IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16631 of 2007 RAMJI MANDAL S/0 Late Rajaram Mandal resident of village Rewasi, P.S.Riga, dist. Sitamarhi ………………. Petitioner Versus 1. STATE OF BIHAR 2. Ramakant Prasad Singh S/0 –Late Laxaman Prasad Singh resident of village-Rewasi, P.S.-Riga, Dist. Sitamarhi. …………………. Opposite Parties ----------- 5 05.05.2009 The order dated 21st January, 2003 passed in Cr. Revision No. 227 of 2002/98 of 2002 by the Court of Ist Additional Sessions Judge, Sitamarhi is subject matter of challenge in the present quashing application whereby the learned Ist Additional Sessions Judge disagreeing with the order of the S.D.J.M., Sadar, Sitamarhi as held that the case under Section 307 of the I.P.C is made out and the case is exclusively triable by the Court of Sessions. The present case seems to have many history because Riga P.S. Case No. 45 of 1996 was instituted on 27.2.1996 under Sections 147, 148, 321, 323, 337,447, 379 of the Indian Penal Code and on due investigation the charge sheet came to be submitted. When the charges were framed they were sought to be challenged and the same became a subject matter of challenge 2 in Cr. Revision No. 393 of 1996. After hearing the parties to the dispute a detailed order dated 19th of April, 1997 came to be passed by the 2nd Additional Sessions Judge, Sitamarhi. The Revisional Court at that time came to the considered opinion that no case as such under Section 307 of the I.P.C. is made out, but left it to the wisdom of the learned Chief Judicial Magistrate to consider this aspect at an appropriate time. The order concerned has been brought on record as Annexure-2. In terms of the direction of the learned Additional Sessions Judge, the Court of S.D.J.M., Sadar, Sitamarhi came to pass an order dated 19.9.2002 and came to a conclusion, based on the materials that no case as such under Section 307 of the I.P.C. is made out. The said order dated 19.9.2002 came to be challenged by the informant in Cri. Revision No. 227 of 2002/98 of 2002 which is the impugned order in the present application. The contention of learned counsel for the petitioner is that the order passed by the revisional Court is in effect revises the earlier order passed in Revision No. 393 of 1996 when prima-facie the earlier revisional 3 court as well as subsequently the S.D.J.M came to a considered opinion that there was not enough material for framing of charge under Section 307 of I.P.C. If that is so there was no occasion for the revisional Court pass an order a second time to over come an earlier decision. It is further submitted that the procedure laid down is that if during the course of the trial of the offences other than substantive offences by the learned Magistrate, if he comes to a considered opinion that there is sufficiency of material now against the accused persons, the charge could be altered under Section 216 of the Cr.P.C. and the matter could be sent up for trial before the Court of Sessions Judge but the same cannot be allowed at this stage on the basis of impugned order. In support of the same learned counsel for the petitioner relies on a decision in the case of Subhojit Datta Vs State of Bihar reported in 2007(2)PLJR 856. There is no representation on behalf of the O.P.No.2 because he is reported to be dead and there is no other person who can be substituted in his place. Taking into account the entirety of the dispute and the order which has come to be 4 passed in the matter at various stages as well as keeping in mind the law in this regard the petitioner seems to be correct in submitting that the Court of Additional Sessions Judge has committed an error and to that extent the order dated 21st of January, 2003 stands quashed. The order of leaned S.D.J.M. Sadar, Sitamarhi is confirmed but it is also recorded that if the learned Judicial Magistrate in course of trial finds that there is an occasion for the same he will take recourse to Section 216 of the Cr.P.C. if there is sufficiency of the evidence or the materials on record. This application stands allowed. Bibhash (Ajay Kumar Tripathi, J.)