IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1140 of 2008 MAINA DEVI & ORS Versus THE STATE OF BIHAR ----------- For the Petitioners : M/s. Anshuman and Ashutosh Ranjan, Advocates. For the State : Mr. Jharkhandi Upadhayay, A.P.P. --------- O R D E R The petitioners who have been named as accused in the First Information Report of Sonebarsa P.S. Case No.21 of 2007 registered under Sections 302/34 I.P.C. giving rise to Sessions Trial No.149 of 2007 have prayed for the quashing of the entire proceedings of the aforesaid Sessions Trial since the petitioners have allegedly been falsely implicated due to malice and grudge and the informant of this case taking advantage of the unfortunate death of the father in connivance with the local police by implicating the petitioners in this case. According to the prosecution case, Gautam Sharma, the informant, the son of the deceased , Shankar Sharma , at about 11 A.M. on 21.3.2007 while his father was opening the Kirana shop in front of his house , the five petitioners arrived and whereas Nirmala Devi pulled his hair , Pawan Sharma pushed him as a result whereof he fell down on the ground and sustained head injuries. The informant with co-villagers claims to have run to the rescue of his father and found his father lying in an unconscious condition. Dr. Shashi Bhushan Sharma was called in to attend to him and he declared the father had sustained brain hemorrhage . It is said that Dr. Anil - 2 - Kumar of the Primary Health Centre, Sonebarsa, also arrived and referred the father for treatment at Saharsa but the father died after some time. It has been submitted by the learned counsel for the petitioners that the allegations against the petitioners are totally false and fabricated and the petitioners and the informant’s side were close relatives inasmuch as the deceased, Shankar Sharma, and the petitioner, Maina Devi, were cousins. It has further been submitted that after the death of father of Maina Devi, deceased Shankar Sharma along with this informant had illegally tried to grab the properties of father of Maina Devi and also tried to tamper with the official Government records by showing that deceased, Shankar Sharma, was adopted son of Late Kunj Bihari Sharma, the father of Mania Devi. It has further been submitted that the entire prosecution story was highly motivated and had been brought forward with a view to deter the petitioners from making a demand of their share in the property. It was also submitted that from the facts and the circumstances of the case, no offence under Section 302 I.P.C. could be said to have been made out and prosecution of the petitioners thereunder would amount to an abuse of the process of the court. I am not impressed with the submissions advanced by the learned counsel for the petitioners. Whether a case under Section 302/34 I.P.C. is made out or not can only be decided at the time of framing of charge. Merely because cognizance has been taken under Sections 302/34 I.P.C. does not give a right to the petitioners to - 3 - challenge the said order. While dismissing the application, liberty is given to the petitioners to raise these issues at the time of framing of charge. Accordingly, the application is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 24th of June, 2008. Pradeep Srivastava/A.F.R.