IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35247 of 2007 LALAN KUMAR @ LALAN RAM Versus STATE OF BIHAR & ANR ----------- 6 27.11.2009 Heard the learned counsel for the petitioner, the State and the informant. The petitioner has prayed for quashing the order dated 21.5.2007 whereby cognizance of offence under section 302/34 of the I.P.C. and section 27 of the Arms Act has been taken and petitioner has been summoned to face trial. The informant Radhey Yadav who is cousin of the deceased, Mithu Gope stated that on 27.1.2007 at 11 P.M. he heard cry of Mithu Yadav, upon which he and Uday Gope, son of the deceased Mithu Yadav rushed towards him. 7-8 accused persons had surrounded him. The informant alleged that one Parshuram Kumar and Hemraj Yadav were dragging his cousin whereupon Hemraj Yadav and Kishore Yadav instigated others to open fire. Thereupon Umesh Yadav and Damodar Ravidash shot at the deceased. It has further been alleged that as they tried to rescue the deceased this petitioner threatened them by showing pistol at them. The informant corroborated F.I.R. in his statement recorded under section 161 Cr.P.C. Learned counsel submits that the police without sufficient materials submitted charge sheet against the petitioner and few others. He submits that Uday Gope the son of the deceased who is alleged to be present at the time of the occurrence did not make 2 allegation against this petitioner rather he gave a version which was at variance with the statement of the informant. Counsel for the informant and the State submit that the informant has named the petitioner as an accused in the F.I.R. wherein all the accused with a common intention had come to the place of occurrence for killing the deceased. The informant submits that the police conducted the investigation in a shoddy manner. Heard the learned counsel for the parties. It is well settled right from the case of Abhinandan Jha vrs. Dinesh Singh reported in 1968 SCC 117 and Special Bench judgment in case of Kuli Singh Vrs. The State of Bihar reported in 1978 BLJR 377 that a Magistrate can differ from the police opinion, if there is material justifying the same. It is true that out of two witnesses, the version of son of the deceased, is at variance. However, the informant has named this petitioner as an accused . In this view of the matter, I am not inclined to quash the order taking cognizance and summoning the petitioner to face the trial, as there appears to be prima facie materials against him. However, it will be open to the petitioner to take these points at the time of framing of charge. With the aforesaid observation this application is dismissed. However, in the facts of the case, I direct the court in 3 seisin of the case to expedite framing of charge and the trial. Anilkrsinha (Samarendra Pratap Singh, J.)