IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6416 of 2010 RAM BINOD PRASAD, SON OF JAMUNA MAHTO, RESIDENT OF VILLAGE GALIMPUR, P.S. KARAI-PARSURAI, DISTRICT NALANDA. ---- PETITIONER Versus 1. THE STATE OF BIHAR. 2. RAMUN RAI, SON OF GOBARDHAN RAI, RESIDENT OF VILLAGE GALIMPUR, P.S. KARAI, DISTRICT NALANDA. ---- OPPOSITE PARTIES ----------- 2 14.5.2010 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. This application has been filed challenging the order dated 22.1.2010, passed by the 3rd Additional Sessions Judge, Hilsa (Nalanda) in Sessions Trial No. 430 of 2007 (arising out of Hilsa P.S. Case No. 203 of 2002) by which he has rejected the application filed on behalf of the petitioner under Section 227 of the Code of Criminal Procedure. The order impugned has been challenged on the ground that the Court has presumed that the case cannot be decided without taking evidence in the case. At the stage of framing of charge, the petitioner accused has a right to refer to the records of the case and documents submitted and the Court must consider the submissions of the accused and the prosecution and thereafter if the Court finds that there is not enough material for proceeding against the accused, he should discharge the accused of the offences in question. The Section envisages that the Court must consider and apply its independent mind to the evidence which has come on record. At the stage of taking cognizance, the Court has to satisfy itself on two aspects. Firstly, the Court has to see 2 that the offence is made out on the allegations contained in the First Information Report and thereafter summon the accused persons who had allegedly committed the offence. At the stage of discharge the duty of the Court expands inasmuch as the Court has to apply itself to the material on record, hear the parties and thereafter decide whether the accused persons can be charged of the offences alleged. On facts the Court has considered that the alibi put forth by the petitioner cannot be looked into at the stage of framing of charge. If that is the only defence of the petitioner then the Court has rightly rejected the discharge application. However, if there is some other material on which the petitioner wishes to rely then he may file a fresh application for discharge within two weeks of receipt of a copy of this order and the Court will dispose it off forthwith. Counsel for the petitioner is permitted to deposit the cost of FAX for communicating this order to the Court of the 3rd Additional Sessions Judge, Hilsa (Nalanda) by 20th of May, 2010 or else this application shall stand dismissed. This application is disposed of with the aforesaid observations. Sanjay (Sheema Ali Khan, J.)