IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42694 of 2008 SANTOSH KUMAR @ SANTOSH KUMAR SINGH, son of Ramayan Singh, village Balua, PS Brahmpur, Dist. Buxar, at present Gandhi Nagar, PS Digha, Patna – Petitioner. Versus STATE OF BIHAR ----------- 2 28.8.2009 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. The petitioner is aggrieved by order, dated 22.8.2008 passed by the Additional Sessions Judge III, Patna in S. T. No. 768/2007 by which the petition filed for his discharge under section 227 of the Code of Criminal Procedure has been rejected. The allegations in the F.I.R. are that the police party on seeing certain persons in suspicious condition at Rajbanshi Nagar Chowk questioned them and learnt that one of their associate had gone to the bank in order to ascertain whether there was any one moving out of the bank carrying large sum of money for the purpose of committing robbery. The petitioner was arrested in the bank and it is said that a mobile phone and a motor cycle was recovered from him. Subsequently the mobile phone belonging to his brother and the motor cycle belonging to his father were released in favour of the owners. Learned counsel refers to Annexure 2 which is a document showing that the petitioner’s father had taken loan from the State Bank of India, Rajbansi Nagar branch and the petitioner had gone to the bank to make payment of the loan in question. Receipts have also been annexed as Annexure 2. 2 The main question argued on behalf of the petitioner is that the charges have wrongly been framed under sections 400 and 414 of the Penal Code. Section 400 of the Penal Code prescribes punishment for belonging to gang of dacoits. It envisages that any person or persons associated for the purpose of habitually committing dacoity can be imprisoned under this section for a period up to three years. It is submitted that there is no material against the petitioner in the case diary to indicate that he has criminal antecedent or for that he belongs to a particular gang and as such the offence under section 400 of the Penal Code is not made out against the petitioner. Learned counsel further submits that as far as section 414 of the Penal Code is concerned, it indicates that the person who is found with stolen property would be liable to be punished for a term which may extend to three years. On the basis of the release order of the motor cycle in favour of father of the petitioner, it is submitted that there is no material to show that the motor cycle seized was stolen property and as such the charges framed under section 414 of the Penal Code are not made out against the petitioner. As far as section 27 of the Arms Act is concerned, charges have not been framed against this petitioner. The impugned order indicates that the court below has found “ample material which are sufficient grounds for proceeding”. Framing of charge is not an empty formality and the 3 court ought to apply itself to the facts and consider the materials in the case diary and indicate its mind and the materials on the basis of which the court has come to the conclusion that there is material against the petitioner. I find that the order impugned in fact does not disclose such specific reason for coming to the conclusion that the petitioner is prima facie guilty of an offence under section 414 of the Penal Code. I, therefore, direct that the 3rd Additional Sessions Judge, Patna should apply his mind on the materials in the case diary and also consider the provisions of sections 400 and 414 of the Penal Code before passing an order rejecting the application filed on behalf of the petitioner under section 227 of the Code of Criminal Procedure within a period of three months from the date of receipt / production of a copy of this order before him. Accordingly, the order dated 22.8.2008 is hereby quashed. This application is disposed of with the aforesaid observation and direction. haque (Sheema Ali Khan, J.)