IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.30484 of 2008 1) Raghunth sah, 2) Sita Ram Sah, both sons of Late Jodha Sah, 3) Bipin Bihari Tiwary, 4) Madana Tiwary, both sons of Dip Narayan Tiwary, 5) Bihari Ram, son of Tulsi Ram, 6) Shyam Bihari Tiwary, son of Late Surendra Tiwary, all of Ratanpur, Birta Tola, PS Ramgarhwa, District East Champaran, Motihari – Petitioners. Vs. 1) The State of Bihar, 2) Ram Babu Prasad, son of Maya Sah, village Chiutahan, PS Ramgarhwa, Dist. East Champaran, Motihari – Opp. Parties. 2 24.6.2011 Heard learned counsel for the petitioners and the State. This application has been filed for quashing the order, dated 26.2.2008 passed by the 4th Addl. Sessions Judge, Motihari in S.T. No. 1155/2006 by which the petition for discharge filed under section 227 of the Code of Criminal Procedure has been rejected. Learned counsel for the petitioners submits that apart from the FIR not even a single witness has supported the fact that the petitioners are responsible for inciting Shyam Bihari Tiwary to shoot the deceased. Learned counsel submits that the 4th Addl. Sessions Judge has not considered this aspect of the matter and merely on the statement made in the FIR has rejected the discharge application. The order, dated 26.2.2008 is quashed with a direction to the 4th Addl. Sessions Judge, Motihari to hear the petitioners and pass orders afresh within two months from the date of receipt of a copy of this order. The court concerned is directed to refer to 2 the materials against the petitioner before passing any order. If there is no material in the investigation which supports the fact that the petitioners had incited accused Shyam Bihari Tiwary to kill the deceased, then the court should pass an order in accordance with law regarding this aspect of the matter. This application is allowed to the extent indicated above. Counsel for the petitioners is directed to deposit the cost of Fax within a week for communicating this order to the court below or else this application shall stand dismissed without further reference to a bench. haque ( Sheema Ali Khan, J.)