Missir Vs. Ramsriniwaiswhashanpdaenydey & Ors  Insc 433 (9 October 2002)
B. Shah & D. M. Dharmadhikari. Shah, J.
was registered under Section 302 IPC on a fardbayan of appellant on 5.8.1979.
Thereafter, against the report submitted by the Investigating Officer,
appellant filed Protest Petition stating that police has colluded with the
accused persons. In that petition, five witnesses were examined who supported
the FIR. It is the say of the appellant that in the meantime, he was taken into
custody in connection with another offence under Section 302 IPC and remained
in jail custody for more than 11 years and was released only in 1997.
his further say that from the jail itself, he was trying to find out what had
happened to the FIR lodged by him. After release, it was noticed that for
unknown reasons the said proceedings were not listed before the C.J.M. from
1990 to the year 2000. Ultimately, appellant made inquiry and he was able to
trace out the file which was placed before the ACJM who took cognizance of the
offence against the respondent accused for the offence punishable under Section
302 IPC on 28.1.2000 and passed the following order: - "Due to non entry
in the diary and due to missing of the file the case was put up today.
Attendance has been filed on behalf of the informant. The advocate for the
informant submits that this case was pending for orders from 1990 itself. Due
to the fact that the file was missing in the office the same was not being
produced in the court nor any order was passed. Today it has been found. Now
after hearing order be passed. Heard the counsel of the informant and perused
the statement of the complainant on solemn affirmation, on the protest
petition, and also perused the evidence of all the witnesses, Ram Ekbal Pandey,
Ram Singhasan Pandey, Uma Shankar Ram, Rama Kant Pandey, Dhaja Mishra and
Mahesh Dusadh adduced during enquiry. The complainant has supported the
complaint petition on S.A. and all the witnesses have
supported/confirmed the occurrence.
perusing the statement of the complainant on S.A. of the protest petition and
the deposition of all his witnesses, prima facie case is made out against all
the accused persons named in the complaint petition u/s 147, 148, 302 IPC and
27 Arms Act. Therefore cognizance is taken in the case. Trial of Section 302
IPC is done by Sessions Court. Therefore, the case has been kept for Sessions
Trial in the personal file. Complainant to file Talwana & Process fee for
the appearance of accused persons." Against taking of cognizance, accused
preferred Writ Petition being Cr.W.J.C. No. 668 of 2002 before the High Court
at Patna. The High Court called for the
record of S.D.J.M., Bikramganj, Sasaram to inquire as to why from the year 1990
to 2000, no order was passed on the report of the Investigating Officer as well
as on the Protest Petition. In the said report, it was stated that records were
never put up on the next date fixed for hearing. Ultimately when the record was
put up in the year 2000, a show cause notice was issued to the concerned clerk.
Thereafter at the time of hearing of the matter, it was contended by learned
counsel for the respondent that accused were not at fault and the criminal case
has been dragged on for a long period of 21 years, and therefore, it should be
dropped on the basis of the decision rendered by this Court in A.R. Antulay v.
R.S. Nayak [(1992) 1 SCC 225].
High Court accepted the said contention and allowed the petition by further
holding that cognizance of the matter is taken by the Judicial Magistrate in a
mechanical manner. The Court also made some observations on merits. Hence, this
case reveals a sorry state of affairs in administration of justice by the
concerned Court. From the facts narrated above, it is clear that allegations
against the accused were for the offences punishable under Sections 302, 147,
148 and 149 IPC. When the Investigating Officer submitted report, immediately a
Protest Petition was filed inter alia contending that investigation was biased
and in the inquiry before the Court, it is the say of the appellant that five
witnesses were examined. For unknown reasons, the said proceedings were not
placed before the Court for more than ten years and who played that mischief is
not found out. But this would hardly be a ground for dropping the prosecution
where the accused are involved for the offences punishable under Sections 302,
147, 148 and 149 IPC.
the duty of the Courts to see that neither the victim nor the accused suffers
by mischief of the Investigating Agency or the staff of the Court. Further, at
this stage, there was no necessity of making any observations on merits by the
High Court as that is required to be decided at the time of trial or at the
time of framing of charges.
the appeal is allowed, the impugned judgment and order dated 11.10.2001 passed
by the High Court of Patna in Cr.W.J.C. No.668 of 2000 is set aside. The trial
Court is directed to proceed further in the matter in accordance with law.