IN THE HIGH COURT OF JUDICATURE AT PATNA CR.MISC. NO.38404 OF 2009 ARVIND KUMAR, SON OF LATE CHATURI RAJAK, RESIDENT OF VILLAGE PASRAHA, POLICE STATION PASRAHA, DISTRICT KHAGARIA. AT PRESENT JUNIOR ENGINEER, DAWATH BLOCK, POLICE STATION DAWATH, DISTRICT ROHTAS VERSUS THE STATE OF BIHAR ********* 2 17/11/2009 Heard learned Counsel for the petitioner and the A.P.P. appearing on behalf of the State. The petitioner has filed this application challenging the order dated 28.08.2009 by which the Court below has refused to discharge the petitioner. The First Information Report was instituted on 04.01.2007 by one Birendra Prasad Gupta in which it has been clearly stated that the Mukhiya and the Panchayat Sevak, namely, Krishnandan Prasad and Ram Raja Choubey had withdrawn Rs. 36,000/- meant for construction of two bathrooms in the school. The First Information Report discloses that the work was incomplete and the Panchayat Sevak was responsible for the construction. The petitioner is the Junior Engineer and not involved with the work of construction or the withdrawal of the amount for the purpose of which it was meant. Learned Counsel for the petitioner submits 2 that in the case diary there is no evidence against this petitioner. The Deputy Superintendent of Police, in his supervision note, has directed that the name of the petitioner be included amongst the accused persons. The reasons apparently given by the Deputy Superintendent of Police are not based on the records because the supervision should be based on the evidence collected by the Investigating Officer during investigation of the case, or the investigation made by the Supervising Officer. On the basis of the aforesaid directions of the Deputy Superintendent of Police, the charge sheet was submitted and cognizance was taken against the petitioner. Learned Counsel draws this Court’s attention to the order dated 18.08.2009 wherein the Court has observed that the informant Birendra Prasad Gupta had given a written application to the Officer-in- charge of Akodhi Gola Police Station to make the petitioner an accused in this case. On perusal of the First Information Report, this observation of the Court below appears to be incorrect. The principles for sending a person to face trial is that there should be a prima facie case against the person who is sought to be sent up for trial; there should be some evidence in the case diary to support the 3 allegation and there should be a good or a fair chance of conviction in the case. The Court below shall consider the case diary and keeps in view the aforesaid three principles before passing fresh orders within a period of three weeks from the date of receipt/production of a copy of this order. The order dated 28.08.2009 passed by the Sub Divisional Judicial Magistrate, Sasaram in G.R. Case No. 27 of 2007 (Trial No. 2797 of 2008) is hereby quashed. This application is accordingly remanded for consideration on the basis of the materials in the case diary. Anand ( Sheema Ali Khan, J.)