IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.40465 of 2008 Gajendra Kumar Mishra, son of Sri Shyam Lal Mishra, of 118 Bn. C.R.P.F., at present posted at Group Centre, C.R.P.C. Muzaffarpur, Bihar – Petitioner. Versus State Of Bihar ----------- 2 27.7.2011 HeardMr. Sarvadeo Singh, counsel for the petitioner and Mr.Ansarul Haque, learned A.P.P. representing the State. Naugachai PS Case No.3/2004 was instituted under sections 302 of the Penal Code and 27, Arms Act in which it is alleged that the petitioner along with other C.R.P.C. Jawans fired on the passengers travelling in a train which resulted in the death of one person. Learned counsel for the petitioner submits that with respect to the same occurrence the Havildar has filed Naugachai PS Case No.5/2004 under sections 144, 337, 504, 379 of the Penal Code. Learned counsel for the petitioner submits that as far as Naugachia PS Case no.5/2004 is concerned, the accused persons are not appearing in that case. It is said that cognizance has been taken but the matter has not proceeded any further than that. The other co-accused persons have filed an application that that case may be heard along with the case in which the petitioner is accused under section 302 of the Penal Code. This application has been filed against the order, dated 28.6.2008 praying therein to discharge the petitioner from the offence under section 302 of the Penal Code and 27, Arms Act. 2 Learned counsel for the petitioner submits that the petitioner had fired on the orders of the Havildar and, therefore, it cannot be said that he had any intention to kill the deceased. It is further submitted that it is part of his duty to obey the orders of his immediate superior and as such he acted upon instructions. It is submitted that no sanction was taken for prosecuting him as according to the petitioner he had acted in pursuance of his duty. This court strongly feels that both the cases should be heard together side by side. The court is also aware of the fact that a case under section 302 of the Penal Code is triable by the Sessions Judge and the case under sections 144, 337 and 504 of the Penal Code is triable by a Magistrate. It has been held in a number of decisions that the case in which the offence is triable by a Magistrate can be clubbed with a case which is triable by a sessions court if facts are inter related. This court refers to the decision in the case of Alok Kumar Singh vs. State of Bihar and others, 2004 (2) PLJR 479. The petitioner will be at liberty to raise all these aspects of the matter specifically relating to the fact whether the petitioner had fired on the orders of the Havildar who is not an accused in this case or whether the petitioner had acted independently without any orders of the superiors. This application is disposed of with the aforesaid observations. haque ( Sheema Ali Khan, J.)