BHAWESH CHANDRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and learned counsel for the State. Despite service of notice, opposite party No. 2 has not appeared. In any case I am of the opinion that the impugned order being a judicial order passed by opposite party No. 2 Shri Chakradhar Rai, the then District and Sessions Judge, Gaya that could have been heard without making the learned Judge as a party to this application.

(2.) THE facts briefly stated are that in Belaganj P.S. Case No. 82 of 1985 when that came for trial, in course of that a prayer was made by the prosecution to add additional charge under sections 380 and 436 of the Indian Penal Code and to commit the case to the court of Sessions. By order dated 21.7.1988 the learned trial Court concluded that no case under section 436 of the Indian Penal Code was made out, rather further charges could be framed under sections 380 and 435 of the Indian Penal Code.

(3.) IT will appear that after addition of charges as aforesaid, the prosecution did not examine any fresh witness, rather already examined witnesses were cross - examined on behalf of the accused and the learned Subdivisional Judicial Magistrate, Gaya then in seisin of the case, by order dated 23.6.1995 came to the conclusion that a case under section 436 of the Indian Penal Code was made out and then committed the case to the Court of Sessions. This is how this case came up before the learned Sessions Judge, Gaya and, at the time of hearing on framing of charge, the learned Sessions Judge under section 228 of the Code of Criminal Procedure sent back the case to the court of Chief Judicial Magistrate, Gaya finding that a case was not made out under section 436 of the Indian Penal Code.