CRIMINAL MISCELLANEOUS No.6161 OF 2002 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- NAWAL KISHORE SHARMA S/O LATE N.P. SHARMA, RESIDENT OF QUARTER NO.367, P.T.S.(N.T.P.C.) KAHALGAON, P.S. KAHALGAON, DISTRICT BHAGALPUR. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. MD. MURSHID ALAM S/O MD. HABIB, RESIDENT OF QUARTER NO.8/354 P.T.S. (N.T.P.C.) KAHALGAON, P.S. KAHALGAON, DISTRICT BHAGALPUR. ... ... OPPOSITE PARTIES. ---- For the Petitioner : M/S Krishna Pd. Singh,Sr.Adv. Manish Kumar-3, Adv. For O.P. No.2 : Shi Shivesh Chandra Mishra,Adv. For the State : Mrs.Indu Bala Pandey, A.P.P. ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 18.1.2002 passed by the 2nd Assistant Sessions Judge, Bhagalpur in Sessions Trial No.654 of 2001. By the said order, the learned Sessions Judge had allowed the petition filed by opposite party no. under Section 228(1) of the Code of Criminal Procedure and remitted back the case to the court of Chief Judicial Magistrate for trial. 2. Short fact of the case is that an F.I.R. vide Kahalgaon P.S. Case No.121 of 1999 was 2 registered on 10.5.1999 under Sections 279, 338, 304(A) and 427 of the Indian Penal Code. The F.I.R. was lodged on the basis of fardbeyan of the petitioner. It was alleged in the F.I.R. that the opposite party no.2 had intentionally and rashly dashed three children, who were playing in the N.T.P.C. Colony, while opposite party no.2 was rashly driving a Maruti Car. In the said occurrence, two children were killed and one received serious injuries. After registering the F.I.R., police investigated the same and thereafter, police submitted charge sheet under Sections 279, 338 and 304 of the Indian Penal Code. Subsequently, the learned Magistrate took cognizance of the offence as per the charge sheet and since the offence under Section 304 of I.P.C. was triable by the court of Sessions, the case was committed to the court of Sessions. At the stage of charge, a petition was filed on behalf of opposite party no.2 for his discharge under Section 227 as well as under Section 228 of the Code of Criminal Procedure. In the discharge petition, several pleas were taken. However, the learned Assistant Sessions Judge, after examining the materials available in the case diary, came to the conclusion that it was a case for the offence 3 under Sections 279, 338, 304(A) and 427 of the Indian Penal Code and as such no offence was triable by the court of Sessions. The learned Assistant Sessions Judge, under Section 228(1) of the Code of Criminal Procedure, remitted back the case record to the court of Chief Judicial Magistrate for trial. 3. Aggrieved with the order dated 18.1.2002, the petitioner, who was informant before the court below, approached this Court by filing the present petition. On 29.10.2002, the case was admitted and Lower Court Record was called for, which has been received and kept on record of the present case. 4. Shri Krishna Prasad Singh, learned Senior Counsel appearing on behalf of the petitioner, submits that from the impugned order itself, it is clear that the opposite party no.2 was time without number forbidden not to drive Car in the Colony and even then he was using the Car and due to his rash driving, occurrence had taken place in which two life of innocent children were taken away and one received serious injury. Accordingly, it was submitted that on the basis of materials available on record, the learned Assistant Sessions Judge had committed a grave 4 error by not framing charge under Section 304 with other allied Sections of the Penal Code. It was submitted that materials shows that offence under Section 304 of I.P.C. was made out, but the learned Assistant Sessions Judge, contrary to record, has passed the impugned order. Accordingly, it has been prayed to set aside the order. 5. Shri Shivesh Chandra Mishra, learned counsel appearing on behalf of opposite party no.2, has opposed the prayer of the petitioner. It was submitted by him that after the impugned order i.e. order dated 18.1.2002, the case record was remitted back to the court of Chief Judicial Magistrate and thereafter, the learned chief Judicial Magistrate had already framed charge against the opposite party no.2 and case was fixed for evidence. In the meanwhile, Lower Court Record was called for by this Court due to that reason, no progress in the trial has taken place. It was submitted by Shri Mishra that it was simply a case of accident and there was no intention on the part of opposite party no.2 to commit an offence of culpable homicide. It was submitted that keeping in view the fact that trial has already commenced, it would not be advisable to interfere with the 5 impugned order. It was further submitted by Shri Mishra that after the accident, the vehicle was inspected by the Vehicle Inspector and it was found that accident had taken place due to failure of break of the vehicle. It was also argued that a compensation cost of Rs.50,000/- for each family was imposed against the opposite party no.2 and that was paid. Accordingly, it has been submitted that the petition is fit to be rejected. 6. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State, has supported the stand taken by Shri Mishra, learned counsel appearing on behalf of opposite party no.2. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record. After going through the Lower Court Record, it transpires that after the impugned order, the case record was received in the court of Chief Judicial Magistrate and thereafter, charges against opposite party no.2 was already framed and case was fixed for evidence. Keeping in view the fact that charges have already been framed and case is fixed for evidence, this Court is not inclined to interfere with the impugned order and, accordingly, the 6 petition stands rejected. 8. In view of the fact that the matter remained pending before this Court for a long time, it is desirable to direct the learned Magistrate to proceed with the case expeditiously and conclude the trial within a period of nine months from the date of receipt of a copy of this order. The concerned Superintendent of Police is directed to render full assistance to the learned Magistrate so that this order may not be circumvented due to non appearance/non production of prosecution witness. 9. With above observation and direction, the petition stands rejected. 10. Let a copy of this order be sent to the Superintendent of Police, Bhagalpur. 11. Office is directed to remit back the Lower Court Record forthwith. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 26.8.2010 N.A.F.R./N.H.