IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.15344 of 1998 PREM KUMAR SAH SON OF SUKHDEO SAH 2. RATAN SAH @ RATNESHWAR PRASAD, SON OF RAJESHWAR SAH 3. DINESH SAH @ DINESH PRASAD SON OF PRADUMAN SAH 4. RAJESH SAH @ RAJESH KUMAR RANJAN, SON OF SHATRUGHAN SAH 5. SANJAY SAH @ SANJAY KUMAR, SON OF SAGAR SAH 6. KAPILESHWAR MANDAL SON OF BIHARI MANDAL, ALL RESIDENTS OF VILLAGE- SONBARSA,P.S. LAKAHI, DISTT. MADHUBANI………. PETITIONERS. Versus STATE OF BIHAR…………………………..OPP. PARTY. ----------- 7 11-3-2010 Heard learned counsel for the petitioners and learned counsel for the State. Petitioners are aggrieved by order dated 3-3-1998 passed by Additional Chief Judicial Magistrate, Madhubani in Madhubani P.S.Case No. 89 of 1996, G.R. No. 527/1996 whereby the learned Magistrate has taken cognizance of offences under sections 147,148,149,323,324 and 307 of the Indian Penal Code and under section 27 of the Arms Act. Three main arguments have been advanced on behalf of the petitioners. Firstly, it has been submitted that because of success in the Ceiling Proceeding the petitioners had a right over the land in question which was earlier given to Parcha holders and it has been stated that it was the other side who were aggressors and in order to take possession forcibly they caused injuries to many persons on the sides of 2 the petitioners for which a case bearing no. Madhubani P.S.Case No. 88 of 1996 was lodged on the same date prior to lodging of the present case. Secondly, it was submitted that overt act of firing and causing some injuries is only alleged against one of the petitioners namely Prem Kumar Sah. The other allegations do not make out any offence and lastly it has been submitted that the nature of injuries and the circumstances go to show that there was no intention of causing death and hence no cognizance should have been taken under section 307 of the Indian Penal Code. After considering the materials on record and the aforesaid submissions, this Court is of the view that it will not be proper for this Court to go into details of defence case at the present stage or to give any comments or observations on the right of private defence claimed by the petitioners on the basis of a further claim that they were cultivating over the lands in question. It will also not be proper at this stage to embark on an enquiry whether the materials disclose an offence under section 307 I.P.C. or not In fact more care is required in the present case because any observation made by this Court may cause prejudice to the defence of the accused 3 persons in the other case. In the facts and circumstances of the case, this court is not persuaded to interfere in the matter in exercise of power under section 482 of the Cr.P.C. Hence, this application is dismissed with a liberty that petitioners’ aforesaid submissions and defence may be considered by the court below either at the stage of framing of charge or at other appropriate stage without being prejudiced in any manner by this order. Petitioners will also be at liberty to raise issue that no charge should be framed under the Arms Act. ( Shiva Kirti Singh,J) Naresh