BIRENDRA SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS application by the various accused under Sections 435 and 439 of the Code of Criminal Procedure is directed against the order dated the 6th May, 1969 passed by the judicial Magistrate whereby he has refused to discharge the petitioners and fixed certain date for framing charges against them.

(2.) IN order to appreciate the point involved in this case it will be necessary to state briefly the facts. One Dinesh Pandey lodged first information report before the police on the 23rd June, 1967, alleging therein that while he was irrigating his land by water of the Government tube-well, the petitioners arrived there and forcibly diverted the water from the main channel to their Tola. Subsequently, when the petitioners returned to their village, Dinesh Pandey again opened the channel and began to irrigate his field. The petitioners again came there and assaulted Dinesh Pandey and his brother. After investigation the police submitted charge-sheet against the petitioners under Section 147 of the INdian Penal Code (hereinafter referred to as 'the Code'), On the 14th September, 1967, the Sub-divisional Magistrate took cognizance under Section 147 of the Code and transferred the case to Bharokhara Gram Cutcherry as the offence was exclusively triable by it. He further directed the petitioners to appear before the Gram Cutcherry on the 29th September, 1967. On the 6th February, 1968 the informant filed a petition alleging therein that the police in connivance with the petitioners had tried to make out a case under Section 147 although clear offence under Section 148 had been committed by the accused. Since the offence under Section 148 is not triable by the Gram Cutcherry, the informant further prayed in the said petition that the case, which was transferred to the Gram Cutcherry, may be recalled and be transfers ed to some Judicial Magistrate for disposal. From the order sheet dated the 13th February, 1968, it transpires that the Sub-divisional Magistrate ordered that the application should be put up along with the record on the 26th February, 1968. Ultimately on the 28th August 1968 he passed an order whereby he recalled the case from the Gram Cutcherry and transferred it for disposal to Mr. Ram Janam Singh. Munsif Magistrate. Subsequently it was transferred to Shri G.D. Mishra Judicial Magistrate.

(3.) MR. Thakur Prasad, learned Counsel appearing on behalf of the petitioner, has challenged the impugned order and raised chiefly two points for consideration by this Court They are: