IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.948 of 2011 SHAMSHER ALI & ANR Versus THE STATE OF BIHAR 02/- 12-01-2011 Heard learned counsel for the petitioners. This is an application seeking restoration of Cr. Misc. No. 17108 of 2009 dismissed for non-prosecution vide order dated 22.11.2010. It is submitted that since the list could not be marked on the date learned counsel failed to attain the hearing on admission. The aforesaid application was preferred seeking quashing of order dated 20.06.2007 passed by In-charge Chief Judicial Magistate, Siwan in Trial No. 2203 of 2008 arising out of Siwan Town P.S. Case No. 158 of 2005 taking cognizance for the offence under Sections 302, 120B/34 of the Indian Penal Code. Since the original case is six years old and cognizance was taken roughly three and half years ago. It is submitted that the case must have been committed to the court of sessions where the petitioners have a liberty to raise all his points at the time of hearing on the point of charge, if trial is yet to commence. When the above liberty was pointed out, learned counsel for the petitioners seeks permission to withdraw this application with a liberty to avail the opportunity before the trial court at the time of hearing on the point of charge. Submission is accepted. This application stands disposed of with a liberty to the petitioners to raise all his points including the - 2 - point that it was a case of day time and the parties are co-villagers. The trial court shall consider all the prayer in the light of materials available without being prejudiced of instant withdrawal. It is further made clear that if trial has already commenced all such plea shall be considered at appropriate stage. Accordingly, this application stands disposed of. Praveen (Akhilesh Chandra, J.)