IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.34986 of 2011 Rajendra Thakur son of late Khobari Thakur, R/o village Raypur, P.s. Nanpur, Dist. Samastipur …….Petitioiner Versus The State of Bihar …………..Opposite Party. ------------- 2 24.10.2011 Heard learned counsel for the petitioner as well as learned A.P.P. Petitioner has challenged the order dated 26.09.2011 passed by Shri Sudhakar Singh, Additional District & Sessions Judge Fast Track Court No.2, Sitamarhi in Sessions Trial No. 98 of 2011 ( State Vs. Rajendra Thakur) whereby and where-under petition dated 18.03.2011 filed on behalf of petitioner under section 227 Cr.P.C. has been rejected. Contention on behalf of the petitioner is that learned lower court had illegally rejected the prayer of the petitioner in the back ground of having presence of Nanpur P.S. Case No. 9 of 2010. To explain the same, it has been submitted that a thief was apprehended who was assaulted by the villagers side by side police was also informed who, after arriving at the place of occurrence took control over the injured thief, got him admitted at the hospital where during the course of treatment after so many days of alleged occurrence died. Then thereafter, the brother of deceased has instituted instant case. In a decision reported in 2008(14) SCC page 1 paragraph 22 it has been held; “Thus in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in 2 view of D.N. Padhi Case, there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.” From the order impugned it is evident that the learned lower court had not considered the aspect of Presence of Nanpur P.S. Case no. 9 of 2010 wherein charge sheet has been submitted which presence happens to be in the case diary in the present case. Therefore, the order impugned is set aside and the matter is remitted back to the learned lower court to consider afresh in the light of the principle enunciated by the Apex Court as referred to above. M.Rahman (Aditya Kumar Trivedi, J)