IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2591 of 2009 RAKESH SINGH @ GABARU & ANR Versus STATE OF BIHAR ----------- 2/ 16.4.2010 Heard learned counsel for the parties. The petitioners were not named in the FIR of a case under sections 302/34 of IPC and section 27 of the Arms Act. The police submitted final form pointing out that the petitioners had their hands in commission of the offence and accordingly, C.J.M., Kaimur summoned the petitioners in Durgawati P.S. Case No. 1 of 2005 (G.R. No. 2 of 2005) by order dated 17.11.2008. Contention is that except the note of the Deputy Superintendent of Police suspecting the petitioners to have their hands in the commission of the offence, there was absolutely no material in the case diary. The order of the learned magistrate indicates as if he had perused the case diary and he was satisfied about the sufficiency of the materials in taking cognizance of the offence justifying the summoning of the petitioners. It appears very difficult for this court at this stage to record any finding without applying itself to the facts of this case. I direct the learned Sessions judge who shall be holding a hearing under sections 227 and 228 of the Code of Criminal Procedure to scan the materials from the angle of constitution of an offence which could be triable by the court of Sessions as 2 appears necessary to be done in the light of the provisions of section 228(1) (b) of the Code of Criminal Procedure. If it is true that the only material is the supervision note of the Deputy Superintendent of Police and that too only suspects the petitioners to have their hands in commission of the offence, then that could not be the material justifying framing of the charges against the two accused persons. The petition is dismissed with the above direction for recoding a clear finding on the materials available to the court below. Anil/ ( Dharnidhar Jha, J.)