IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.5 of 2008 1. RAMA SHANKAR CHOUDHARY son of Late Thag Choudhary 2. Saryug Choudhary, son of sri Jiwan Choudhary …Petitioners Versus THE STATE OF BIHAR …Opposite party For the petitioner :Mr.Uday Bh an Singh For the State : Mrs. V. K. Jaiswal,APP ----------- 03. 05.08.2010 Heard counsel for the parties. Petitioners who are facing trial in Sessions Trial No.94 of 2008 of the Court of FTC III, Siwan, is aggrieved by order dated 01.10.2007, passed by learned Judicial Magistrate 1st Class Siwan in Trial No.3064 of 2007, whereby the case was committed to the court of sessions for trial. Background facts necessary for disposal of the case may first be indicated. Petitioners were made accuseds under diverse sections of the Penal Code including sections 363 and 365 vide Nautan P.S. Case No.91 of 2005 lodged by one Bishun Kumar Yadav. The Investigating Officer found the allegations true, as a result of which charge-sheet was submitted leading to trial in the court of learned Judicial Magistrate 1st Class, Siwan, vide Trial No.3064 of 2007. After framing of charge, the informant (P.W.1) was examined. It is the case of the petitioners that in course of his deposition he deposed to the effect that there was strong rumour in the village that his kidnapped brother was killed by the accused persons. In the light of the aforesaid deposition of the informant (P.W.1), an - 2 - application was filed on behalf of the prosecution to add section 364 IPC and commit the case to the court of sessions as the charge under section 364 IPC was triable by the court of sessions. Learned Magistrate by the impugned order acceded to the request of the prosecution and committed the case to the court of sessions for standing trial which gave rise to Sessions Trial No.94/08. Learned counsel for the petitioners submits that on 13.02.2009, the Investigating Officer filed an application in the trial court(FTC III,Siwan) disclosing therein that the kidnapped person(victim) namely, Brahma Yadav has been recovered by the police and is being produced before the court along with Investigating Officer of the case. Learned counsel for the petitioners has produced the certified copy of the said application filed by the I.O. On the strength of the aforesaid fact/document, it is stated that the order impugned is vitiated as the victim has already been recovered and there is no truth in suspicion raised by the informant(P.W.1) in his deposition that the victim might have been done to death by the accused persons. Learned counsel fairly states that provision contained in section 228(1)(a) provides for filing of an application bringing to the notice of the court all these facts and to pray for not framing the charge under section 364 IPC and thereby remit the matter back to the court below for trial. The submission of the counsel for the petitioners seems to be fair and just. Section 228(1) (a) of Cr.P.C. vests the court with such jurisdiction. Let the petitioners file appropriate application under - 3 - section 228(1) (a) of the Code bringing on record all relevant facts supported by documents. If such an application is filed within four weeks from today, the trial court shall consider and dispose of the same in accordance with law within four weeks thereafter. With this observation/direction, the application is disposed of. hr ( Kishore K. Mandal )