IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.50364 of 2007 Irfan Ashraf, Son of Allauddin Ashraf, Resident of Mohalla Golghar, P.S. Gandhi Maidan, District Patna. ----------- Petitioner Versus 1. State of Bihar. 2. Arjun Mahto, Son of Late Gulam Mahto, Resident of Mohalla Lodipur, P.S. Gandhi Maidan, District Patna. ----------- opposite Parties ----------- 3 29.03.2010 Heard Mr. Alamdar Hussain, learned counsel for the petitioner and counsel for the State. Despite service of notice on the opposite party no.2, no one has appeared on his behalf. The only issue raised by Mr. Hussain as against the impugned order rejecting prayer of the petitioner for discharge in terms of Section 227 of the Code of Criminal Procedure for alleged offences under Section 147, 148, 149, 307, 326, 302 and 452 IPC as well as Section 27 of Arms Act is that there are no material in the entire case diary which could connect the petitioner in any manner. He would, to that extent, go to submit that the real culprit, who had participated in the offence in hand, having been already named in the First Information Report, and also found to have played the role in the police report, 2 there was no occasion for the court to hold that the petitioner was also a person behind the alleged occurrence. He accordingly would submit that the impugned order rejecting prayer of the petitioner for discharge is patently unsustainable. In the opinion of this Court, the scope of Section 227 of the Code of Criminal Procedure is well defined, inasmuch as, at that stage, the court is not expected to look into any other materials except the police report and the document appended thereto. In this regard, it is found that the police had submitted a charge-sheet alleging conspiracy at the instance of the petitioner. The presence of the petitioner at the scene just before the occurrence by way of his having lit a cigarette according to the petitioner may not have any direct bearing on the occurrence but then it is the findings of the police and accepted by the court below that the whole incident has taken place at the instance of the petitioner, Bablu and Md. Afroz Ansari on account of demand of cigarette by the deceased. The court below in this regard has 3 recorded the following findings while rejecting the prayer of discharge of the petitioner :- ".......It appears that due to the fact that the altercation had taken place only at the instance of the petitioner and Bablu and as such the accused persons named and specified in the chargesheet had constituted and unlawful assembly with an intention to assault the two injured persons which is mentioned in the F.I.R. and Jeet Narain had also been injured by fire arms injury and incourse of treatment at P.M.C.H. he had died. And under such circumstances cognizance of the offence had also been taken by the learned A.C.J.M. on 21.3.02 and a detailed order is specified by the learned A.C.J.M. which is obvious from the L.C.R. that on the alleged date or occurrence on 31.3.01 at about 10 p.m. the accused Bablu, Md. Afroz Ansari and Irfan who is the petitioner had demanded cigarette and then they had demanded change to which he had also denied due to which there was hot talk and the accused persons armed with deadly weapons had come. There was brickbatting and Tannu Mian had fired which hit on the right leg of 4 Ganesh Mahto. The accused Jahangir had fired with his double barrel gun which hit Jeet Narain Mahto and he was badly injured. It goes to show that the arms was used unlawfully causing the death of Jeet Narain Mahto and as such primafacie case has also been made out U/s. 27 Arms Act." Learned Counsel for the petitioner did not deny the existence of such materials in the case diary but his submission is that they were not sufficient to hold the petitioner guilty. In the opinion of this court the sufficiency of such materials cannot be gone into for the purpose of framing of charge or considering the prayer of discharge, inasmuch as, the legislature has circumscribed the powers of the court by restricting the order of discharge to be passed only if the court would find that there are no sufficient ground for proceeding against the accused. Apparently, if the court below after looking into the case diary has found even some role of conspiracy against the petitioner, that by itself would be a good ground to refuse the prayer of discharge. 5 That being so, this Court would find no merit in this application and the same is, accordingly dismissed. Rsh (Mihir Kumar Jha, J.)