IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35085 of 2009 ASHOK KUMAR @ ASHOK KUER, Son of Ramdeo Kuer, resident of Village- Malhipur, P.S. Barauni, District- Begusarai. ............................Petitioner. Versus THE STATE OF BIHAR..........................................Opposite Party. ----------- For the petitioner: M/S. Ashok Kumar Chaudhary & Sanjeev Kumar Advocates. For the State : Mr. Jharkhandi Upadhaya, A.P.P. ---------- 2 13.01.2010. Heard learned counsel for the petitioner and counsel appearing on behalf of the State. The petitioner has come before this Court against the order of discharge dated 17.08.2009. The facts are that two sets of First Information Report were instituted, first bearing Barauni P.S. Case No. 36 of 2002 which was by a private person i.e., the informant Gopal Yadav and other by the Chaukidar, which is Barauni P.S. Case No. 37 of 2009. Charge sheet was submitted in which the petitioner and two other persons were made accused. Subsequently, further investigation was made under Section 173(8) Cr. P.C. On the basis of the further investigation, Charge Sheet No. 385 of 2002 was submitted on 30.10.2002 in which the petitioner was exonerated from the allegations made by the informant, Gopal Yadav. The court while considering the discharge petition, has relied on the evidence that has come with respect to the charge sheet submitted in the earlier case i.e., Barauni P.S. Case No. 36 of 2002. The State who is the prosecutor is supposed to consider the evidence which has come in both investigations unless the later investigation 2 is stayed by an order of the court. At this stage the petitioner can not argue that he should be discharged on the ground that he has been exonerated vide re-investigation of the case. The petitioner would thus have the liberty to bring to the notice of the Court the evidence submitted through Charge Sheet No. 385 of 2002, during the trial and it would be up to the trial court to evaluate the evidence presented during the trial. The facts thus reveal that there are two set of witnesses in this case, as such the petitioner would have the liberty to cross- examine the witnesses regarding this aspect of the matter. As far as the order impugned i.e., order of discharge is concerned, there is no illegality in the order, as at this stage the court cannot ignore the fact that the charge sheet submitted in this case indicates that there is evidence before the court to hold him prima facie guilty and requires that the petitioner should face trial. This application is, therefore, disposed of with the aforesaid directions. U.K. (Sheema Ali Khan,J)