IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.55431 of 2007 MUNNILAL PASWAN son of Magni Paswan Resident of village-Basatpur, P.S.-Muffasil Motihari, District- East Champaran .…… ……..Petitioner Versus 1.STATE OF BIHAR 2.Shivnandan Paswan son of late Jangli Paswan 3.Ram Sharan Paswan son of Aspchand Paswan 4.Shiv Shankar Paswan son of Dayali Paswan 5.Yadu Paswan son of Dayali Paswan 6.Ram Chandra Paswan son of Bhuwesh Paswan 7. Shiv Dani Paswan son of Bhuwesh Paswan 8.Kishore Paswan son of Aapchand Paswan All resident of village-Basatpur, P.S.- Muffasil Motihari, Dist.-East Champaran ……. …….Opp. Parties -------- For the petitioner:Mr.Shiva Shankar Sharma Mr.Anil Kumar Sinha. For opposite party nos.2 to 8: Mr.Dhurendra Kumar For the State: Mrs.Indu Bala Pandey, Add. P.P. ------- 4. 28.9.2010. The sole petitioner, who was informant in Muffasil P.S. Case No.26 of 2004, has approached this court invoking its inherent jurisdiction under section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 21.9.2007 passed in Sessions Trial No.702 of 2007. By the said order, the learned Additional Sessions Judge, F.T.C.-IV, East Champaran has allowed a petition filed on behalf of opposite party nos. 2 to 8 under section 228(1) of the Code of Criminal Procedure and remitted the matter back to the court of learned Chief Judicial Magistrate, Motihari. Short fact of the case is that on the basis of fardbeyan of the petitioner, a first information report vide Mufassil P.S. Case No.26 of 2004 was registered for the offences under sections 323, 341, 504, 448 and 325/34 of the Indian Penal Code. It was alleged 2 that the accused persons assaulted the informant with fists and sticks. The petitioner was carried to the hospital where he was treated. Subsequently, on the prayer made by the informant learned Magistrate by order dated 22.5.2004 took cognizance of the offences under sections 341, 323, 447, 504 and 307/34 of the Indian Penal Code. Thereafter, the case was committed to the court of Sessions. On 1.9.2007 a petition was filed on behalf of opposite party nos. 2 to 8 under section 228(1) of the Code of Criminal Procedure before the learned Sessions Court disclosing therein that no offence under section 307 of the Indian Penal Code is made out and, accordingly, the case may not be tried by the Sessions Court and it may be remitted back to the court of learned Magistrate. The learned Additional Sessions Judge, F.T.C.-IV, East Champaran by order dated 21.9.2007 allowed the petition and remitted back the case to the court of Chief Judicial Magistrate, Motihari. Aggrieved with the order dated 21.9.2007 the petitioner approached this court by filing the present petition. In this case opposite party nos. 2 to 8 has already appeared through their counsel, Mr. Dhurendra Kumar. Mr. Shiva Shanker Sharma, learned counsel for the petitioner, while challenging the order dated 21.9.2007, submits that this order is in the teeth of an order passed by this court in quashing application i.e Cr.Misc. No.7875 of 2006. It was further submitted that opposite party No.2 to 8 while filing a petition under section 228(1) of the Code of Criminal Procedure has suppressed the fact that order of cognizance was already approved by this court in Cr.Misc. 3 No.7875 of 2006. Learned counsel for the petitioner has argued that after the order whereby the learned Magistrate had taken cognizance under section 307 and other allied sections of the Indian Penal Code, opposite party nos.2 to 8 had preferred a revision petition vide Cr.Revision No.174 of 2004/1 of 2004. The revisional court by its order dated 6.12.2005 rejected the revision petition. Thereafter, opposite party nos. 2 to 8 had approached this court by filing a petition under section 482 of the Code of Criminal Procedure vide Cr. Misc. No.7875 of 2006. It was specifically argued that on the basis of materials available on record no case under section 307 of the Code of Criminal Procedure was made out. However, after hearing the parties this court on 21.7.2006 passed the following orders.: “After investigation was completed, a report was filed and on the basis thereof, cognizance was taken. Subsequently, the informant brought on record a report of C.T. Scan, which suggested that the injury on the outside of the skull of the victim caused a blood clot i.e. heamotoma inside the skull of the victim and accordingly, cognizance has been taken also under section 307 of the I.P.C. Unless heamotoma is removed by operation, the same cause’s certain death of the person. In those circumstances, I see no reason why the Magistrate could not take cognizance under section 307 of the Indian Penal Code. Accordingly, the application fails and the same is dismissed.” On 19.3.2010 this court directed to list this case along 4 with the records of Cr.Misc. No.7875 of 2006 and the same has been placed along with the record of the present case. In course of argument learned counsel for the petitioner produced a certified copy of the petition which was filed by opposite party nos.2 to 8 before learned Additional Sessions Judge, F.T.C.-IV, Motihari, East Champaran under section 228(1) of the Code of Criminal Procedure (keep it on the record). It was submitted that in the said petition filed by opposite party nos.2 to 8 they had not even whispered that order of cognizance under section 307 of the Indian Penal Code was approved by this court by a reasoned order in Cr. Misc. No.7875 of 2006. Accordingly, it has been submitted that the learned Additional Sessions Judge was persuaded by suppression of fact to pass the impugned order. Accordingly, it has been prayed to quash the impugned order. Mr. Dhurendra Kumar, learned counsel appearing on behalf of opposite party nos. 2 to 8 has opposed the prayer of the petitioner. It has been submitted that original injury report was not produced before the court below and, as such, the learned Additional Sessions Judge has rightly passed the order that section 307 of the Indian Penal Code is not applicable. It has been submitted that in the report there was no grievous injury. I have also heard Mrs. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State. Besides hearing learned counsel for the parties, I have also perused the materials available on the record including record of Cr.Misc No.7875 of 2006. Once this court after perusing the 5 materials brought on the record on a petition filed by opposite party nos.2 to 8 has already held that in the fact and circumstances of the case there were materials showing commission of offence under section 307 of the Indian Penal Code, this court fails to understand as to under what circumstance the learned Additional Sessions Judge, F.T.C-IV, East Champaran, Motihari has passed the impugned order which is apparently contrary to the order passed by this court. It appears that this fact was not brought to the notice of the learned Additional Sessions Judge, F.T.C.-IV by opposite party nos.2 to 8. In petition under section 228(1) of the Code of Criminal Procedure it was mandatorily required on the part of opposite party nos.2 to 8 to at least indicate that offence under section 307 of the Indian Penal Code was approved by this court on a petition which was preferred by them. In the circumstance, particularly in view of the order passed by this court in Cr.Misc. No.7875 of 2006, the court is of the opinion that the impugned order i.e. order dated 21.9.2007 is not sustainable in the eye of law. Accordingly, the same is set aside and the petition stands allowed. Md.S. ( Rakesh Kumar, J.)