IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3361 of 2008 MANOJ PASWAN Versus THE STATE OF BIHAR 4 21.5.2010 Heard counsel for the petitioner and the State. The petitioner seeks quashing of the order dated 8.11.2007 passed by the Additional Sessions Judge, F.T.C.II, Bettiah, West Champaran in S.Tr.No.747/2006 arising out of Bettiah Town P.S. Case No.417 of 2004 under sections 323, 427, 307, 504/34 of the Penal Code whereby the petition dated 7.8.2007, filed by the accused persons including the petitioner under section 228 Cr.P.C. has been rejected. Learned counsel for the petitioner submits that even assuming the entire prosecution case to be true, no case under section 307 of the Penal Code is made out against the petitioner. At most, a case under sections 324 and 326 of the Penal Code is made out against the petitioner. The injured Gudia Kumari sustained incised wound ¾” x ¾” x bone-deep over right occipital region of head, which is grievous in nature. He submits that even if the injury is grievous, no case under section 307 of the Penal Code is made out, if the act is done without intention or knowledge that the act will cause death to the other person. In the instant case there was no repetition of pelting of brick. The brick was thrown on the father of the informant, but incidentally the same hit the head of the informant. It appears that both sides are agnates. A dispute arose over cutting of shutter of a shop, which was objected to by the informant’s mother. On protest, the accused threw brick on the informant’s father which incidentally hit the head of the informant. From the aforesaid 2 KHAN facts, it appears that the accused did not have intention to cause death of either the informant or her father. The accused were not armed with any weapon from before nor there is any allegation of prior preparation of assault, much less for causing death. As such, the offence would be one at best under section 326 of the Penal Code, as injuries are grievous also. In the circumstances, the impugned order rejecting the application of the petitioner to discharge him for an offence under section 307 of the Penal Code is set aside and the records be remitted to the court of Chief Judicial Magistrate, West Champaran. As this court has held that no case under section 307 of the Penal Code is made out, the learned Chief Judicial Magistrate, West Champaran at Bettiah would either hear the case itself or assign the same to a Magistrate for framing of charge. The petitioner and other accused persons would appear in the court below on the next date fixed in this case after receipt of a copy of this order. The accused persons would remain present save and except for very valid reasons in persons on each date till charges are framed. In case they do not appear but for valid reasons, the bail bond would be liable to be cancelled. In the result, this application is allowed. Let this order be communicated to the court of Addl. District Judge, F.T.C.II, West Champaran at Bettiah as well as the Chief Judicial Magistrate, Bettiah through fax at the cost of the petitioner. (S.P.Singh,J)