IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.10989 of 2010 1. JAI SHANKAR OJHA 2. Dineshwar Ojha, both sons of late Pandit Baldeo Ojha, resident of village – Kothiyan, P.S.- Awtarnagar, District – Saran. ---------------- Petitioners. Versus 1. THE STATE OF BIHAR 2. Vijay Shankar Ojha, son of late Baldeo Ojha, resident of village – Kothiyan, P.S.- Awtarnagar, District – Saran. ------------ Opposite Parties. ****** For the petitioners : Mr. Anjani Kumar, Adv. For the State : Mr. Ajay Kumar, APP. ****** 02. 07.05.2010 Heard learned counsel for the petitioners and State. This is an application under Section 482 of the Criminal Procedure Code seeking quashing of the order dated 17.12.2009 passed by learned Additional Sessions Judge, F.T.C. No. 3, Saran at Chapra in S.T. No. 153 of 1988 arising out of Garkha (Awatarnagar) P.S. Case No. 97 of 1986, for the offence under Sections 453, 380, 307, 324, 323, 336/34 of the Indian Penal Code, refusing prayer of the petitioners to remit the case to the Court of Judicial Magistrate, 1st Class, Saran for trial. The relevant facts of the case is that the case was instituted on the fardbeyan of opposite party no. 2 on 17.07.1986 against the three persons for the offences under Section 307 of the Indian Penal Code and others. After investigation and cognizance, the case was committed to the court of session where trial commenced as early as on 10th of August, 1995. One of the accused Manoj Kumar Ojha was 2 charged for the offences under Section 307 and 380/34 of the Indian Penal Code, whereas the remaining two petitioners were charged respectively for the offences under Section 380/34 and 323 I.P.C. When the trial arrived at its fag end only after hearing the argument, judgment is to be delivered at this stage co- accused Manoj Kumar Ojha appears to have been declared juvenile by the orders of this court leading separation of the trial of said Manoj Kumar Ojha and transfer of his case to the Juvenile Court. Subsequent to separation of record of solitary co- accused facing trial for the offences exclusively triable to the court of session and the petitioners were charged for minor offences which in absence of co-accused since beginning could have been trialed by the court of Magistrate. The petitioners filed an application seeking remittance of their cases to the subordinate court. After hearing the parties, the court below refused the prayer of the petitioners considering there is no such provision in the Code of Criminal Procedure at this stage of the case. While assailing the impugned order, learned counsel for the petitioners Sri Anjani Kumar, submitted that since now before the trial i.e. the court of session, only case of the petitioners remain pending for adjudication and they are charged for minor offences. Competent court to try such cases is a Magistrate of 1st Class not the court of session. He further 3 contended that in case of their conviction by the trial court the petitioners are to prefer appeal before this court where as if they are tried by the court of Magistrate, they may prefer the appeal before the court of Sessions Judge. On the other hand, learned Additional Public Prosecutor Mr. Ajay Mishra, submitted that there is no provision in the Code of Criminal Procedure to remit the case to the court of Magistrate at this stage, specially when the entire case was committed to the court of session and one of the co-accused was charged for the offences under Section 307 I.P.C. exclusively triable by the court of session. Further to meet second contention of learned counsel for the petitioners, it is contended by learned Additional Public Prosecutor that the petitioners could have seek their remedy before the sessions judge itself praying to transfer the case to the court of Assistant Sessions Judge who is equally competent to try the offences under Section 307 I.P.C. meaning thereby to try the entire case even before co-accused was not declared juvenile then right to file appeal against the findings of court of Assistant Sessions Judge is available to the court of Sessions Judge and petitioners could have get the relief but, they in stead of doing so preferred to come here. On careful consideration and the facts and circumstances of the case and findings that undisputedly once the case is committed to the court of session may be remitted to 4 the subordinate courts at the stage of Section 228(1)(a) of the Criminal Procedure Code itself but, once trial commenced, after framing the charge under Section 228(1)(a) of the Code, there is no provision in law to sent back the case to the court of Magistrate. Section 228(1)(a) of the Code of Criminal Procedure reads as such: “228. Framing of charge – (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which – (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, [ or any other Judicial Magistrate, of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge 5 under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” The case wherein, the petitioners are co-accused was committed to the Court of Session and the court finding the offence exclusively triable by Court of Session in exercise of his powers conferred under Section 228(1)(b) Cr.P.C. framed the charge and proceeded with the trial. No doubt, the petitioners were prima facie found guilty for minor offences but, it does not affect the jurisdiction of the Court to proceed with the trial as one of the offences for which the case was committed to the Court. Though, prima facie co-accused was found offender and this situation is not going to change even if, such co- accused has been declared juvenile and his case is bring tried by the Juvenile Court on the ground that his trial cannot proceed along with persons who are not juvenile. But, it has also do not minimize the nature of offence committed by him. So, the petitioners cannot take any benefit of separation of trial of the co-accused for the offences exclusively triable by the Session irrespective of now where his trial is going on. If on such eventuality, that case of one of the co- accused is separated either due to his being declared juvenile or being dead, the case of co-accused does not trial for minor 6 offences be remitted to the Court of Magistrate for trial. It shall be nothing but, abuse of the process of law and sheer wastage of judicial time. Thus, I find no merit in this application, accordingly, this application stands dismissed. Rajeev/ (Akhilesh Chandra, J.)