IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.56413 of 2007 UPENDRA SINGH Versus THE STATE OF BIHAR ----------- 4 26.2.2009 It appears that inadvertently certain corrections in the order no. 3 dated 9.2.2009 disposing of the matter could not be made and were detected subsequently. The corrections so made do not change the nature of the case or the order. In the fourth line of the third paragraph at page one after the words “undue advantage of” and before the words “which took place” the words “a minor occurrence” is required to be added. Then again in the first line at page 2 the word “remit” is required to be changed to “commit”. In the second line of the same paragraph in the words “Court of sessions” the alphabet “s”in “sessions” is required to be typed in capital letters i.e. “Sessions”. Then again in the fourth line after the word “an” and before the word “to implead” the word “extent” is required to be replaced by the word “incident”. Then again in the fifth line the words “or not” after the words “attempted murder” are required to be deleted and full stop be placed thereafter. From the next word “Whether” a new paragraph is to start. In the final paragraph in the second line after the word “giving a finding” instead of “in” the word “on” is required to be inserted in between the words “giving a finding” and “the rights of the parties”. In the next line after the word “provision” a comma is to be inserted and the word “travel” is replaced by the word - 2 - “travelled”. Then again instead of “release” the word to be used is “level”. In the fourth line of the said paragraph sentence starting with the word “while” the small alphabet “w” is required to be replaced by a capital “W” and after the word cognizance full stop be inserted. Let these modification be made in the order 9.2.2009 and the same be read in the corrected form. Let the corrected order as typed out hereinafter with the corrections be treated as the actual order which is as follows: “Heard Mr. Anil Kumar Mukund, learned counsel for the petitioner, Mr. Jharkhandi Upadhaya, learned A.P.P. for the State and Mr. Mukesh Kumar Thakur, learned counsel for the informant. Through this application the petitioner , who is one of the F.I.R. named accused of Harnaut P.S. Case No. 2 of 2005 has prayed for quashing of the order dated 7.9.2006 passed therein by the learned Chief Judicial Magistrate, Nalanda at Biharsharif who has taken cognizance for offence under sections 147, 148, 149, 323, 341, 307, 379 IPC and section 27 of the Arms Act. The submission advanced by the learned counsel for the petitioner is that the petitioner and his sons have been falsely roped in this case at the instance of his informant brother with whom they are on litigating terms taking undue advantage of a minor occurrence which took place. It has further been submitted that there are no eye witnesses to the occurrence and that it would be apparent from the injury report it cannot be said that with certainty that an offence under section 307 IPC is made out. A supplementary affidavit has been filed today in Court where in it has been submitted that an application under section 209 Cr.P.C. was filed in the Court below to the effect that no case is made out under section 307 IPC and the court should not commit the case to the Court of Sessions but this petition was rejected by order - 3 - dated 19.11.2007 where the informant has taken undue advantage of an incident to implead the petitioner and his sons in the case of attempted murder. Whether an offence under section 307 IPC is made out against the petitioner and his sons are matters of fact which can only be proved by way of evidence. The grievance has also been raised in respect of about 16 days delay in filing the F.I.R. This too is a point which is to be considered at the trial. That apart the petitioner rightly or wrongly has filed a petition in the court below under section 209 Cr.P.C. praying to the Court not to commit the case to the Court of Sessions since no case under section 307 IPC appears to have been made out. The said petition has been dismissed by the court below assigning a cogent reasons. Having availed of the avenue under section 209 Cr.P.C., though I am not giving a finding on the rights of the parties to move under that provision, he has travelled to the next level after taking of cognizance. While giving liberty to the petitioner to raise all these issues at the time of framing of charge. I find not merit in this application which is dismissed.” Spd/- (Abhijit Sinha, J.)