IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.53398 of 2007 1. AKHILESH THAKUR 2. RANJIT THAKUR 3. RAJU THAKUR 4. BRIZ KISHORE THAKUR …PETITIONERS Versus 1. STATE OF BIHAR 2. KANTI THAKUR …OPPOSITE PARTIES. For the petitioner: Mr.Ashok Kumar & : Mr.Javed Aslam For O.P. No.2 : None For the State : Mr. Jharkhandi Upadhya,APP ----------- 03. 03.09.2010 Heard counsel for the parties. Petitioners call in question the order dated 05.07.2007, passed by learned 3rd Addl. Sessions Judge, Motihari in Sessions Trial No.116 of 1992. By this order, learned Magistrate fixed the case for final argument in the following circumstances: Aforesaid sessions trial was earlier taken up wherein witnesses were examined and cross-examined on behalf of prosecution and defence respectively. The case was posted for final argument. Learned trial court noticed from the records that there was non-compliance of section 207 of the Code of Criminal Procedure(hereinafter referred to as the „Code‟) at the time of commitment of the case. Having found the said irregularity/defect the records were transmitted back to the court of learned Magistrate for compliance with the requirement of section 207 of the Code. The police papers were made over to the accuseds whereafter the case was again 2 committed to the court of sessions and then the impugned order was passed whereby learned lower court passed the following order: “In my view there is no need to frame charge against all the accused persons. To 16.8.07 for final argument.” Learned counsel for the petitioners relying on a Division Bench judgment of this Court rendered in the case of State of Bihar vs. Laxmi Paswan and other cognate matters since reported in 1993 BBCJ, 607, submits that in all fairness having regard to the scheme of the Code, the learned trial court ought to have granted at least an opportunity to the accuseds to cross-examine the witnesses after fresh commitment of the case. It is contended that in the case of Laxmi Paswan(supra) the aforesaid defect was noticed at the stage of appeal whereafter the court remitted the records back to the court below for compliance with the requirement of law as contemplated in section 207 of the Code and to proceed afresh from that stage. Learned counsel places reliance on paragraph 11 of the judgment wherein it has been held that the trial conducted in the case was against the mandatory provisions of law being based on illegal commitment and thus stood vitiated. Counsel for the petitioners takes a stand before this Court that in view of the facts of the case, he would not insist on a fresh framing of charge and/or fresh examination(s) in chief of the witnesses who have already appeared and adduced evidence, but the accused(s) should be given fresh opportunity for cross- 3 examination of all the witnesses. Learned counsel further assures the Court that the accuseds shall fully co-operate with the case and shall complete the cross-examination of the witnesses on the date they are produced. Having regard to the aforesaid fair stand of the petitioners, and also having noticed the defect which was found in the trial was not curable one, this Court is inclined to interfere with the order impugned. Consequently, the order dated 05.07.2007, passed by 3rd Addl. Sessions Judge, Motihari in Sessions Trial No.116 of 1992 is set aside. Learned trial court shall proceed to summon the witnesses examined in this case for their cross-examinations and thereafter dispose of the trial in accordance with law. hr ( Kishore K. Mandal )