IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.5010 of 2008 AWADHESH KUMAR Versus THE STATE OF BIHAR ----------- 5/ 7.5.2010 Heard learned counsel for the parties. Shri Farooq Ahmad Khan, learned senior counsel for the petitioner submits that inspite of there being no material in the case diary as also in the statement of the victim, the petitioner has been summoned for the offences under sections 364A and 365 of the IPC. It was, as such, submitted that the order of summoning be quashed. I find from the perusal of the order dated 5.12.2007 passed in Bihar P.S. Case no. 328 of 2002 by the C.J.M., Nalanda at Biharsharif that the same has been passed on consideration of the materials contained in the case diary. As such, it could be very difficult for me to quash the proceeding initiated by the impugned order. However, above observation by mine must not mean that it is the ultimate in the case and the petitioner could not agitate the point of absolute absence of any material as regards his complicity in the court of Sessions, because he has a right of being heard under sections 227/228 of the Code of Criminal Procedure and he could justifiably show to the court of Sessions during the course of hearing contemplated by the two provisions that there could not be sufficient ground to record a finding by the Judge that the petitioner had committed the offence. The learned Judge very 2 well knows that sufficient grounds for proceeding by virtue of recording a finding that an offence exclusively triable by the court of Sessions appears committed by the petitioner could only be sufficient to put the petitioner on trial else not. With the above observations, the petition is dismissed in expectation that the observations are not treated as against the petitioner. Anil/ ( Dharnidhar Jha, J.)