IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25258 of 2009 1) Adbhut Pandey, 2) Sudama Pandey, both sons of Late Jainarayan Pandey, 3) Uma Pandey, 4) Bijay Pandey, 5) Ramashankar Pandey, 6) Sheo Shankar Pandey, 7) Harishankar Pandey, all sons of Adbhut Pandey, 8) Shivji Pandey, son of Late Ramanand Pandey, 9) Paramhans Pandey, son of Late Kedar Pandey, 10)Satendra Pandey, 11)Mahendra Pandey, both sons of Shivji Pandey, 12)Karia Rai, son of Late Triyogi Rai, all of village Balua, Ps Krishnagarh, District Bhojpur – Petitioners. Vs. The State of Bihar. 2 6.10.2009 Heard learned counsel for the petitioners and the counsel appearing on behalf of the State. The petitioners have challenged the order, dated 20.5.2009 passed by F.T.C. I, Bhojpur in S.T.No. 618/2008 whereby and whereunder the petition filed by the petitioners under section 227 of the Code of Criminal Procedure has been dismissed and the Court has held and held that the case is triable by the Court of Sessions. Learned counsel for the petitioners submits that there is a case and counter case. The occurrence is said to have taken place because of the land dispute. The main thrust of the argument by learned counsel for the petitioners is that no offence is made out under section 307 of the Penal Code and as such the court below out not to have framed charge under section 307 of the Penal Code as the injuries are simple in nature. It appears that this aspect of the matter was examined earlier by the court below and the petitioners being aggrieved by the order had filed a criminal revision which was also dismissed. The 2 court below at the time of passing of the order relied on the earlier order and observed that the case under section 307 of the Penal Code is made out against the petitioners on the basis of the order of cognizance. In my opinion, the two stages, that is, the stage of taking cognizance and the stage of framing of charges are different and distinct. At the stage of taking cognizance, the court has mainly to see whether prima facie case is made out and take cognizance on the basis of the complaint petition The investigation, if the case arises out of an F.I.R, whereas while considering whether charges may be framed under sections 227 and 228 of the Code of Criminal Procedure the court has to examine as to whether a prima facie case is made out from the materials on records. Accordingly, I remand this matter to F. T. C. Ist, Bhojpur to look into the matter as to whether a case is made out under section 307 of the Penal Code on the basis of the allegations made in the F.I.R., the case diary and the other relevant materials in this case. The court below should pass an order within one month from the date of receipt of a copy of this order. This application is disposed of with the aforesaid observations. haque (Sheema Ali Khan, J.)