IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.2408 of 2009 LAKHAN PANDIT & ORS Versus THE STATE OF BIHAR ----------- 3/ 23.4.2010 Heard Shri Md. Shakeel Ahmad Khan, learned senior counsel for the petitioners and Shri Dashrath Mehta, learned APP for the state. The grievance of the petitioners is that they have been wrongly summoned for the offence under section 302 of the IPC and the facts which were alleged could, at best, have made out a case under section 304A IPC. The other grievance was that it is also doubtful whether an offence of negligent and rash act so as to end up into the death of some persons could also be said to be constituted on the facts alleged. It was, as such, contended that the order of summoning and cognizance appears completely erroneous in law. The last contention was that even assuming that some acts could be attributable to petitioner no. 1 Lakhan Pandit who was the proprietor of the mines in which there was some mishap, other persons could not be held responsible for contributing in any way to the acts of the petitioner no. 1. The court finds some handicap in itself so as to scrutinizing the contentions of the learned senior counsel in the light of the materials collected by the police during investigation in want of the case diary. As such, the court directs the court below, specially, the Sessions Judge to go through the case diary and consider it meticulously with a view to finding out as to what 2 offences are really made out. The learned Sessions Judge shall consider the provision of section 228(1)(b) of the Code of Criminal Procedure which requires a clear finding to be recorded by him that an offence exclusively triable by the court of Sessions is made out. I want to point out that the court of Sessions could proceed with the trial in such a case only when it has recorded a finding to the above effect. What I want to point out, in other words, is that if no offence exclusively triable by the court of Sessions is made out, then the court loses the jurisdiction to try the case and in that case it shall have to remit the case back to the C.J.M. as per the provision of section 228(1)(a) of the Code of Criminal Procedure. The court believes that the learned Sessions judge applies himself fully and completely to the facts of the case and passes an order in the light of the observation made above. In case the petitioners find themselves aggrieved by the order of the Sessions Judge, they shall be at liberty to approach this court, if so advised. The petition stands disposed of with the above observation/direction. Anil/ ( Dharnidhar Jha, J.)