Ram Ekbak Missir vs Ram Niwash Pandey @ Sri Niwash Pandey and Ors.

2. An FIR was registered under Section 302 IPC on a fardbayan ofappellant on 5.8.1979. Thereafter, against the report submitted by theInvestigating Officer appellant filed Protest Petition stating thatpolice has colluded with the accused persons. In that petition, fivewitnesses were examined who supported the FIR. It is the say of theappellant that in the meantime, he was taken into custody inconnection with another offence under Section 302 IPC and remainedin jail custody for more than 11 years and was released only in 1997.

3. It is his further say that from the jail itself, he was trying to findout what had happened to the FIR lodged by him. After release, itwas noticed that for unknown reasons the said proceedings were notlisted 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 wasplaced before the ACJM who took cognizance of the offence againstthe respondent accused for the offence punishable under Section 302IPC on 28.1.2000 and passed the following order:-

"Due to non entry in the diary and due to missingof the file the case was put up today. Attendance hasbeen filed on behalf of the informant. The advocate forthe informant submits that this case was pending fororders from 1990 itself. Due to the fact that the file wasmissing in the office the same was not being produced inthe court nor any order was passed. Today it has beenfound. Now after hearing order be passed. Heard thecounsel of the informant and perused the records.Perused the statement of the complainant on solemnaffirmation, on the protest petition, and also perused theevidence of all the witnesses. Ram Ekbal Pandey, RamSinghasan Pandey, Uma Shankar Ram, Rama KantPandey, Dhaja Mishra and Mahesh Dusadh adducedcuring enquiry. The complainant has supported thecomplaint petition on S.A. and all the witnesses havesupported/confirmed the occurrence.

On perusing the statement of the complainant onS.A. of the protest petition and the deposition of all hiswitnesses, prima facie case is made out against all theaccused persons named in the complaint petition Under Section 147,148, 302 IPC and 27 Arms Act. Therefore cognizance istaken in the case. Trial of Section 302 IPC is done bySessions Court. Therefore, the case has been kept forSessions Trial in the personal file. Complainant to fileTalwana & Process fee for the appearance of accusedpersons."

4. Against taking of cognizance, accused preferred Writ Petitionbeing 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 toinquire as to why from the year 1990 to 2000, no order was passed onthe report of the Investigating Officer as well as on the ProtestPetition. In the said report, it was stated that records were never put up on the next date fixed for hearing. Ultimately when the record wasput up in the year 2000, a show cause notice was issued to theconcerned clerk. Thereafter at the time of hearing of the matter, itwas contended by learned counsel for the respondent that accusedwere not at fault and the criminal case has been dragged on for a longperiod of 21 years, and therefore, it should be dropped on the basis ofthe decision rendered by this Court in A.R. Antulay v. R.S. Nayak.

5. The 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 madesome observation on merits. Hence, this appeal.

6. This case reveals a sorry state of affairs in administration of justice by the concerned Court. From the facts narrated above, it isclear that allegations against the accused were for the off encespunishable under Sections 302, 147, 148 and 149 IPC. When theInvestigating Officer submitted report, immediately a Protest Petitionwas filed inter alai contending that investigation was biased and in theinquiry before the Court, it is the say of the appellant that fivewitnesses were examined. For unknown reasons, the said proceedingswere not placed before the Court for more than ten years and whoplayed that mischief is not found out. But this would hardly be aground for dropping the prosecution where the accused are involvedfor the offences punishable under Sections 302, 147, 148 and 149 IPC.It is the duty of the Courts to see that neither the victim nor theaccused suffers by mischief of the Investigating Agency or the staff ofthe Court. Further, at this stage, there was no necessity of making anyobservations on merits by the High Court as that is required to bedecided at the time of trial or at the time of framing of charges.

7. Hence, the appeal is allowed, the impugned judgment and orderdated 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 proceedfurther in the matter in accordance with law.