IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.771 of 2008 DAROGA RAI, SON OF LATE PUNKAL RAI, RESIDENT OF VILLAGE- POJHIKAPOOR (BHUALPUR), P.S.- MARHOWRAH, DISTRICT- SARAN ----- PETITIONER Versus STATE OF BIHAR ----- OPPOSITE PARTY ----------- For the Petitioner :- Mr. Mithilesh Kumar Rai, Advocate For the State :- Mr. Mayanand Jha, A.P.P. 5 6.8.2009 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. Petitioner is an accused in a case under Sections 302, 120(B)/34 of the Indian Penal Code. Petitioner challenges the order of cognizance on the ground that the Court below has not referred to material which would disclose why the Court had come to the conclusion that a prima facie case was made out in favour of the petitioner. Learned counsel for the petitioner submits that after investigation, charge sheet was submitted against others but the petitioner was exonerated by the Investigating Officer. According to the leaned counsel for the petitioner there is nothing but suspicion against the petitioner and as such it cannot be 2 said that the order of cognizance is based on any cogent reason. The main grievance in this application is that the Chief Judicial Magistrate ought to have referred to some of the material which would indicate that the petitioner is prima facie guilty and he is involved in the occurrence. It is submitted that the order taking cognizance should at least disclose the fact that the Court taking cognizance had applied its mind specially in a case of this nature. The case diary is before the Court and it appears that there is conflicting evidence with respect to the involvement of the petitioner in this case. On one hand it has been disclosed that one of the witnesses has said that they saw the deceased going with Daroga Rai on the other hand witnesses stated that it was the petitioner who had taken the deceased for treatment along with others on his motorcycle and, therefore, the submission is that there was insufficient material before the Court and the order taking cognizance under Sections 302, 120(B)/34 is not warranted. This Court finds that these issues 3 ought to be raised by the petitioner at the time of framing of charge. At that stage the Court would be bound to consider the material against the petitioner and the petitioner would be entitled to show in the Court that there is insufficient evidence for framing charges against this petitioner. This application is therefore, disposed off with the aforesaid observations. Sanjay (Sheema Ali Khan, J.)