ASHOK THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this Miscellaneous application the prayer is for quashing the order dated 31.5.2006 passed by learned Additional Sessions Judge cum F.T.C. No. 1, Darbhanga in S.Tr. No. 184/93, by which he passed the order to separate the trial of the petitioners from the main case record and directed the office to place the record for hearing on charge.

(2.) IT appears that on the basis of the Fard beyan of informant Ramji Das the Police registered Bahera P.S. Case No. 72/88 against 37 accused for offences punishable under Sections 147, 149, 323, 452, 379, 380, 436 and 302 of the Indian Penal Code and after investigation submitted charge sheet. The case of 37 accused was committed to the Court of Session. Two of the accused namely Kedar Thakur and Baleshwar Thakur died before framing of charge and on behalf of rest 35. accused, a petition was filed in the Court below on 25.7.95 for their discharge under Sec.227 of the Code of Criminal Procedure (in short as 'the Code '). The learned Court below framed charge under different Sections of the Indian Penal Code against 15 accused persons and did not pass any order on the prayer made by the accused under Sec.227 of the Code. It further appears that since beginning of the trial regular Pairvi was being done on behalf of all the accused and the witnesses were also examined in presence of all the accused and it was never pointed out by either side that the name of some of the accused has not been mentioned in the form of the charges. It further appears that during course of trial accused Hardeo Thakur and Uma Shankar Thakur died and therefore, further proceeding against them was dropped. One of the accused named Sitaram Thakur absconded and therefore, his trial was separated on 1.3.2000. After conclusion of the prosecution evidence, the statement under Sec.313 of the Code was recorded of all the accused. It appears that when the case was taken up for argument then it was pointed out by the defence that name of 20 accused are not mentioned in the form of the charge and therefore, it will amount that they were discharged on the date of framing of charge on 25.7.1995. Learned Court below examined the matter in detail and passed order for separating the trial of these 20 accused petitioners from the record of those accused against whom charges were framed on 25.7.1995 and posted the matter for framing of charge against accused petitioners. It has been contended that from the order dated 25.7.1995 it is evident that the learned Trial Court did not find any material to frame charge against the petitioners and accordingly did not frame the charge against them and in that view of the matter, if the present order is allowed to continue the same will amount virtually of reviewing of the previous order which power is not vested in the Trial Court.

(3.) SEC . 464 of the Code specifically provides what is to be done in cases where the charge is not framed or there is an error/ omission or irregularity in framing of the charge. If there is failure of justice, occasioned by not framing of charge or in case of an error or omission in the charge, re -trial of the case is to be followed under sub -section (2) of Sec. 464 of the Code.