IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.7724 of 2007 1. Munna @ Rakesh Kumar , Son of Prabhu Thakur 2. Chunchun Kumar, Son of Prabhu Thakur Both are resident of Mohalla- Baniyapatti Chowk, Motihari, P.S. Motihari Town , District-East Champaran ---------------------- Petitioners Versus 1. The State of Bihar 2. Ranjeet Kumar @ Bhola, s/o Laxman Thakur of Mohalla- Baniyapatti Chowk, Motihari, Motihari Town P.S. District- East Champaran ---- Opp.Parties. ----------- For the petitioners : Mr. D.K.Tandon, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : Mr. Shiv Shankar Sharma, Advocat _________ O R D E R Two of the accused of Sessions Trial No.542 of 2006 arising from Complaint Case no.1123 of 2002 have preferred the application for quashing of the order dated 15.1.2007 passed by the learned 1st Additional Sessions Judge, East Champaran at Motihari, in the said Sessions Trial whereby he has rejected the petitioners’ petition for their discharge under Section 227 Cr.P.C. It appears that one Ranjeet Kumar alias Bhola , impleaded herein as Opp.Party no.2, submitted a written report on the basis whereof Motihari ( Town ) P.S. Case no.100 of 2002 under Sections 380 and 452 I.P.C. was registered against the three named persons, including the petitioners and three unknown others. The police after due investigation eventually submitted a final form and also recommended for action under Section 182/211 I.P.C. against the informant. However, a protest –cum- Complaint Case No.1123 of 2002 was filed by the informant against the submission of the final form and an enquiry under Section 202 Cr.P.C. - 2 - was taken up. Eventually, Sri P.N. Prasad, the erstwhile Judicial Magistrate, First Class, Motihari, by his order dated 24.5.2003 dismissed the complaint. Aggrieved thereby, the complainant filed Cr.Revision No.240 of 2003 wherein notice was directed to be issued to the petitioners herein which in fact does not appear to have been issued at all by the Office. Nevertheless, the learned 1st Additional Sessions Judge, without hearing the petitioners herein, allowed the revision on 24.6.2005 and remitted the case back to the Magisterial Court. The learned Magistrate on remand of the case in the light of the directions of the revisional court, took cognizance under Section 395 I.P.C. on 25.8.2005. The petitioners do not appear to have moved a superior forum against the order of the revisional court but did move this Court in Cr.Misc.No.17062 of 2006 against the order taking cognizance and the same was disposed of on 3.11.2006 with an observation that if the petitioners so advised may file a petition for discharge in the court below and the court below shall consider the pleas of the petitioners. However, as it appears, during the pendency of the case before this Court, the Complaint Case no.1123 of 2002 was committed to the Court of Sessions for trial where it was numbered as Sessions Trial no.542 of 2006. A petition for discharge under Section 227 Cr.P.C. was filed by the petitioners which was rejected by the impugned order dated 15.1.2007. From the narration in the foregoing paragraphs two crucial situations emerge, First, that the revisional court’s order was never sought to be challenged. Secondly, the quashing application challenging the order taking cognizance did not fetch any relief for the petitioners save and - 3 - except a non-committal recommendation to file a discharge petition, if so advised. The cumulative effect of the situation would be that no illegality was found in the order taking cognizance. Apropos, it may be pointed out that the discharge petition was filed before the Sessions Court on 22.9.2006 and Cr.Misc.No.17062 of 2006 was disposed of on 3.11.2006. It is apparent that the petitioners suppressed before the High Court the material fact that the discharge petition had already been filed. I have perused the order under challenge and find no semblance of any apparent illegality or impropriety on the part of the court concerned so as to bring it within the ambit of “abuse of the process of the court.” The law is well settled that at this stage the Judge has to merely consider the broad probabilities of the case and find out whether a prima facie case against the accused has been made out. He is not required to see whether there is sufficient ground for conviction or not, nor is he required to attach any weight to the probable defence. Having given my anxious thoughts to the submissions advanced by the parties, I for the reasons stated in the foregoing paragraphs, find no merit in this application which is accordingly dismissed. ( Abhijit Sinha, J ) Patna High Court,Patna Dated: the 24th April,2009 Nawal Kishore Singh/A.F.R.