IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.16165 of 1999 1. RAM AUTAR PATHAK , son of late Nokhe Lal Pathak 2. Lallan Pathak, son of Chhedi Kant Pathak 3. Manoj Pathak, son of Sri Deo Narayan Pathak 4. Subhash Chandra Pathak, son of Sri Deo Narayan Pathak, 1to 4 resident of village- Rataitha, PS Haveli Kharagpur, District- Munger 5. Hari Bhushan Jha, son of Sri Ramesh Chandra Jha 6. Ajoy Kumar Jha, son of late Nishi Kant Jha 7. Ramesh Chandra Jha, son of late Tek Narain Jha 8. Navin Kumar Jha, son of Sri Ramesh Chandra Jha All 5 to 8 resident of village- Chakrani, P.O. Narayanpur, P.S. Bihpur (Bhawanipur) District Bhagalpur .. .. petitioners Versus 1. STATE OF BIHAR 2. Trisul Jha, son of late Ugra Mohan Jha, resident of village – Chakrani, P.S. Bihpur (Bhawanipur) District Bhagalpur ... .. opposite parties ----------- For the petitioners: Mr. Ranjan Kumar Jha, Advocate For the State: Mr. Damodar Prasad Singh, APP ------------ 8 21-04-2010 Heard learned counsel for the petitioners and learned counsel for the State. Petitioners are facing criminal trial in relation to Bihpur (Bhawanipur) P.S. case No. 0013/95 dated 22-1-1995 leading to Sessions Trial no. 319/97before the Ist Additional Sessions Judge, Naugachhia. Learned counsel for the petitioners has submitted that by the impugned order dated 15-5-99 the trial court wrongly rejected the contention on behalf of the petitioners that only Section 364 of the IPC is exclusively triable by the Court of Sessions and the materials on record do not make out any offence u/s 364 of the IPC hence, the case should be transferred to the concerned Magisterial court for holding trial in respect of other offences u/s 365, 368/34 of the IPC. It has further been submitted that initially the informant who is father of the victim boy had an 2 apprehension that his son might have been killed after kidnapping by the accused persons but subsequently it has transpired that the boy was allegedly forcibly married to a girl and hence, it has been submitted that the intention for kidnapping or abduction could not be said to be for murder of the victim boy and, therefore, the prayer made on behalf of the petitioners should have been allowed by the trial court. Learned counsel for the State on the other hand submitted that without recording evidence, the allegations and materials can only be examined for the purpose of finding out a prima facie case and in the present case, at the pre trial stage it is not safe or proper to hold that the kidnapping or abduction was not in order that the kidnapped person may be murdered or may be so disposed of as to be put in danger of being murdered. It would not be proper for this court to give any finding in respect of aforesaid contentions because the trial is yet to take place. It can only be pointed out in the interest of justice that it is always open for a trial court to come to a conclusion that the charges may require alteration. This well settled law shall be kept in mind by the Sessions Court which shall proceed with the trial on the basis of materials available on record. If at any stage of the trial the court below feels the necessity of altering the charge, it will be at liberty to do so. With this observation, this application is disposed of. BKS/- (Shiva Kirti Singh, J.)