RUSTAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 9.4.2002 passed by the 5th Addl. Sessions Judge, Samastipur in S.T. No. 213 of 2001 whereunder the learned trial court had refused the prayer of the petitioners made in a petition dated 18.3.2002 for transferring the case for trial to the court of the Addl. Chief Judicial Magistrate, Rosera in terms of Section 228(1)(a) of the Code.

(2.) FROM the prosecution case it appears that the informant (opposite party no. 2) had lodged the F.I.R. before the Officer Incharge of Bithan Police Station which was registered under Sections 341, 323, 324/34 of the Indian Penal Code. After completion of investigation the police submitted charge sheet against the accused persons also under Section 307 of the Indian Penal Code besides the aforesaid sections mentioned above. The learned Magistrate on receipt of the police report submitted under Section 173(2) of the Code took cognizance of the offence and committed the case to the court of session. On 18.3.2002 a petition was filed under section 228(1)(a) of the Code before the trial court for getting the case transferred to the court of the Addl. Chief Judicial Magistrate, Rosera since the offences alleged were triable by a Magistrate as no case under Sections 307 of the Indian Penal Code was made out. Thereafter on 9.4.2002 the trial court framed the charges under Sections 341, 148 and 307 of the Indian Penal Code and also under Section 307/149 of the Indian Penal Code against the present petitioners. On the same day the learned trial court rejected the petition dated 18.3.2002 for the transfer of the case to the court of the Addl. Chief Judicial Magistrate allegedly by wrongly observing that this petition was not pressed.

(3.) FROM the order sheet dated 13.12.2002 it appears that the notice to opposite party no. 2 was issued to show cause as to why this application be not admitted and if possible be disposed of at the admission stage itself. From the order sheet dated 5.8.2003 it appears that the parties were heard on this admission matter.