TARKESHWAR SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner, learned counsel for the State and learned counsel appearing for the respondent No. 2, the informant.

(2.) The last order dated 27.1.2005 records the fact that petitioner was granted an opportunity to convert this application into one under Section 482 of the Code of Criminal Procedure but that offer was declined. This Court finds that the impugned order passed by the trial Court was under the conspectus of the Code of Criminal Procedure and since petitioner has statutory alternative remedy hence this petition will not be permitted to be maintained under Article 226 of the Constitution of India. Learned counsel for the petitioner opted that this petition be confined to Article 227 of the Constitution of India. The matter has been heard thereafter treating his petition to be under Article 227 of the Constitution of India only.

(3.) On the earlier date this Court was given an impression that the impugned order dated 11.1.2005 contained in Annexure-11 is an order under Section 319 of the Code of Criminal Procedure pursuant to which petitioner has been summoned to face trial but after hearing the counsel for the other side it is clear that by order dated 11.1.2005 the trial Court has only expressed its inability to review or recall the order dated 5.9.2003 (Annexure- 9) pursuant to which non-bailable warrant of arrest was issued against the petitioner. It further appears from order dated 25.6.2004 passed in Cr. Misc. No. 27958/03 as contained in Annexure-10 that petitioner's application under Section 482 of the Code of Criminal procedure seeking quashing of order dated 5.9.2003 passed in exercise of power under Section 319, Cr PC by the trial Court (6th Addl. Sessions Judge, Saranant Chapra) in S.T. No. 62/2000 was rejected after due consideration of points raised. The said order dated 25.6.2004 was challenged by the petitioner before the Supreme Court of India through Special Leave to Appeal (Crl. C.) No. 3910/04 which was dismissed on 10.9.2004. That order has been brought on record by the informant (respondent No. 2) as Annexure-A to his counter-affidavit.