Md. Azad Alam @ Azad Alam v. State Of Bihar And ANR

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.9771 of 2015 Arising Out of PS. Case No.-41 Year-2011 Thana- BARH District- Patna ====================================================== Md. Azad Alam @ Azad Alam, S/o Enamul Haque, R/o Akbarpur, P.S.- Barh, District- Patna.

... ... Petitioner/s

Versus

1.

State Of Bihar 2.

Samim Sajid, S/o Md. Sanaullah, Resident of Village- Bajidpur, P.S.- Barh, District- Patna.

... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s :

Mr.Vijay Kumar Sinha, Advocate For the Opposite Party/s :

Mr.Jharkhandi Upadhyay, A.P.P.

====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR ORAL JUDGMENT Date : 26-06-2019 Heard learned counsel for the petitioner and learned A.P.P. for the State.

2. The petitioner is named accused along with others in connection with Barh Police Station Case No.41 of 2011, registered under Sections 379, 427, 506/34 of the Indian Penal Code and Section 27 of the Arms Act.

3. The petitioner had filed a petition before the learned trial judge under Section 227 of the Code of Criminal Procedure, stating therein that offence under Section 307 of the Indian Penal Code is not made out against the petitioner. Hence, no charge should be framed against the petitioner under Section 307 of the Indian Penal Code.

Patna High Court CR. MISC. No.9771 of 2015 dt.26-06-2019 2/3

4. The prayer has been refused by the learned court below, vide impugned order dated 20.01.2015, passed in Sessions Trial No.524 of 2013 by the learned Additional Sessions Judge3rd, Barh.

5. According to F.I.R., the petitioner and others cut away the crop from the field of the informant and when they were carrying the same on a truck, Shiv Prasad Singh, Bacchan Das, Salendra Das, Md. Arshad and Md. Maniruddin, the men of the informant stopped them from carrying away the crop. Thereafter, co-accused, Munna Rai, Shamsad Alam @ Sadhuya and Sahzad Alam fired from their rifle, which caused no injury to anyone. The same is the statement of Shiv Prasad Singh, Bacchan Das and others before the Police.

6. While refusing the prayer of the petitioner, the learned court below got swayed away by the fact that causing of injury is not necessary when knowledge or intention of the accused making firing was evident from their act.

7. Evidently, the petitioner was not carrying any firearm or any other arm, nor any other overt act is alleged. Hence, it cannot be prima facie said that petitioner had knowledge or intention to commit murder. Therefore, charge under Section 307 of the Indian Penal Code cannot be framed

Patna High Court CR. MISC. No.9771 of 2015 dt.26-06-2019 3/3 against the petitioner. However, the petitioner may be proceed with for other charges and shall face trial in the same trial along with other co-accused.

8. With the aforesaid observation, this application stands allowed.

(Birendra Kumar, J) abhishek/- AFR/NAFR NAFR CAV DATE N.A.

Uploading Date 28.06.2019 Transmission Date 28.06.2019