ALOK KUMAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) The present application has been preferred for quashing the order dated 25.9.2002 passed by the Sessions Judge, Kaimur at Bhabhua in Cr. Rev. No. 34/2002. By the said order the learned Sessions Judge has set aside the order dated 9.4.2002 passed by the Chief Judicial Magistrate, Bhabhua in Tr. No. 756/2001 arising out of case No. 80/96, whereby the learned Chief Judicial Magistrate recorded that in view of the allegations and the evidence, offence under Section 301, IPC read with Section 27 of the Arms Act was made out against accused Sanjay Singh, opposite party No. 2 herein, and therefore the case be committed to the Court of Sessions for trial.

(2.) The petitioner filed complaint case No. 232/94 in the Court of learned Chief Judicial Magistrate, Bhabhua alleging that on 28.3.1994 an occurrence took place wherein opposite party No. 2 Sanjay Singh fired at the father of the complainant but for the reason of Ashutosh Singh coming in between, Ashutosh Singh received bullet injury and died. Thereafter the petitioner filed an application under Section 323, Cr PC that as firing was done by Sanjay Singh leading to the death of Ashutosh Singh, offence under Section 307 was made out against the accused persons apart from offence under Section 301 of the Penal Code, which was triable by the Court of Sessions and therefore the case be committed to the Court of Sessions. Thereafter the transferee Magistrate rejected the application on the ground that no offence under Section 307, IPC appears to have been made out and that the post-mortem report was not on record and neither was the evidence of the doctor available with regard to time and manner of death. The petitioner thereafter preferred Cr. Rev. No. 139/98 which was dismissed with a direction that the prosecution must produce the evidence to bring post-mortem report on record before charge and the court below shall give opportunity to the prosecution and thereafter pass a detailed and reasoned order on the point of charge and if he found that a case under Section 302 or 304 or 307, IPC is made out in which event he shall commit the case to the Court of Sessions.

(3.) Thereafter the petitioner filed a petition before the learned Magistrate that he had filed relevant documents including the post-mortem report etc. and requested for fresh consideration of his contention that the case be committed to the Court of Sessions since a case under Section 301, IPC was made out. Learned Chief Judicial Magistrate by his order dated 5.3.2001 rejected the petition holding that no case under Section 307, IPC was made out as the injury report was simple in nature and that no new material had come forward to make out a case triable under Section 301, IPC. During course of hearing of this application it was also brought on record that the complainant and his family members are accused persons in Mohania PS Case No. 51/94 for which Sessions Trial No. 519/94 is pending before the Court of Sessions. In that case the allegation against the complainant, petitioner herein, and his family members is to have killed Ashutosh Singh on 28.3.1994. The deceased and the date of occurrence is thus common in both the cases. Aggrieved thereby the petitioner preferred Cr. Rev. No. 42/2001 for commitment to the court of Sessions of complaint case No. 232/94. Learned Sessions Judge by his order dated 10.9.2001 rejected the same. Thereafter the petitioner preferred another application on 19.9.2001 before the Chief Judicial Magistrate who ordered that a case under Section 301, IPC read with Section 27 of the Arms Act was made out against accused Sanjay Singh and posted the case for commitment to the Sessions Court.