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2012 DIGILAW 1206 (PAT)

Harendra Rai v. State of Bihar

2012-08-29

BIRENDRA PRASAD VERMA

body2012
ORDER Heard learned counsel appearing on behalf of the petitioner, learned Additional Public Prosecutor appearing on behalf of the State and learned Senior counsel appearing on behalf of the accused opposite party nos. 2 to 22. 2. The petitioner by filing the present revision application has questioned the validity and correctness of order dated 28.9.2007 passed in Fatuah P.S.Case No. 240/2004 dated 7.12.2004 by the learned Additional Chief Judicial Magistrate, Patna City, whereby while accepting the final form dated 9.12.2005 submitted by the police, he has rejected the protest-cum-complaint petition filed on behalf of the petitioner and thereby, has discharged all the accused persons from the criminal prosecution. 3. The facts involved in the present case lie in a very narrow compass. The fardbeyan of the petitioner was recorded on 7.12.2004 by the police, wherein he stated that opposite party nos. 2 to 22 have committed crime of murder with respect to two persons namely, Jai Prakash Rai and Pramod Rai. Other incidental allegations were also made in the aforesaid fardbeyan. On the basis of the aforesaid fardbeyan of the petitioner, Fatuah P.S.Case No. 240 of 2004 dated 7.12.2004 for offences under Section 302/149,307 and some other allied offences under the Indian Penal Code was registered and formal F.I.R. was drawn up, which has been brought on record as Annexure-1. However, after investigation originally charge sheet dated 8.3.2005 was submitted against accused Parmanand Rai only for offences under Sections 302/149,307 and some other allied offences of the Indian Penal Code, but the investigation against the rest of the accused persons was kept pending. Subsequently, on completion of entire investigation, the police submitted final form dated 9.12.2005 for offences under Sections 279,304A and 338 of the Indian Penal Code, accepting the factum of occurrence to be true but clueless. Admittedly, opposite party nos. 2 to 22 were not chargesheeted by the police with respect to the occurrence in question. In the meantime, on 15.12.2005, the petitioner filed a protest-cum-complaint petition in the court of learned Additional Chief Judicial Magistrate, Patna City with a prayer to treat it as complaint case and proceed further against accused persons for the crime in question. 2 to 22 were not chargesheeted by the police with respect to the occurrence in question. In the meantime, on 15.12.2005, the petitioner filed a protest-cum-complaint petition in the court of learned Additional Chief Judicial Magistrate, Patna City with a prayer to treat it as complaint case and proceed further against accused persons for the crime in question. However, by the impugned order dated 28.9.2007, the learned Additional Chief Judicial Magistrate, Patna City, has accepted the final form submitted by the police, but at the same time, he has rejected the protest-cum-complaint petition filed on behalf of the petitioner and has discharged the accused persons from the offences in question, without following the procedure prescribed under Chapter XV of the Code of Criminal Procedure, 1973 ( for short ‘Cr.P.C.’), after treating the protest petition as complaint petition. 4. Learned counsel appearing on behalf of the petitioner submits that the learned Judicial Magistrate, while passing the impugned order has committed grave illegality and has exceeded his jurisdiction and, therefore, according to him, the matter requires to be reconsidered by the learned Additional Chief Judicial Magistrate, Patna City. 5. Learned Senior counsel appearing on behalf of the accused opposite party nos. 2 to 22, though initially supported the impugned order and according to him, in the facts of the case, no useful purpose will be served by remitting the matter back to the learned Additional Chief Judicial Magistrate, Patna City, but after some arguments, in response to a query of this Court, he fairly conceded that the impugned order, in the manner in which it has been passed, is not sustainable in the eye of law. He has fairly submitted that the learned Judicial Magistrate was fully justified in accepting the final form submitted by the police, but at the same time, once a protest-cum-complaint petition was filed on behalf of the petitioner, then the learned Judicial Magistrate was obliged to proceed in accordance with the provisions of law contained in Chapter XV of the Code of Criminal Procedure, 1973. He also conceded that mandate of Sections 200 and 202 Cr.P.C. have not been complied with in the present case before passing the impugned order. 6. He also conceded that mandate of Sections 200 and 202 Cr.P.C. have not been complied with in the present case before passing the impugned order. 6. After having heard the parties at great length and on consideration of entire materials as also on examination of the impugned order, this Court is of the considered opinion that the matter requires reconsideration and fresh decision by the learned Judicial Magistrate in accordance with law. 7. It is well settled, on the basis of catena of judgments of the Apex Court as also of this Court, that once a criminal case is registered and investigation is taken up by the police, then on submission of final form, the learned Magistrate has three options- firstly, he can accept the final form submitted by the police and take cognizance of the offence, secondly, he may disagree with the police report and pass an order dropping the criminal case, and thirdly, he may direct further investigation. Similarly, in a case of final report being submitted by the police finding the accusations against the accused persons or the case itself to be false, then also the learned Magistrate has three options. Firstly, he can accept the final report and drop the entire criminal prosecution, secondly, he can disagree with the police report and take cognizance of the offence and thirdly, he can direct further investigation. But once a protest-cum-complaint petition is filed, then he is obliged to proceed in accordance with the procedure prescribed under Chapter XV of the Cr.P.C. After recording the statement of the complainant on Solemn Affirmation as also after recording the statement of witnesses produced for enquiry under Section 202 Cr.P.C., he can still dismiss the complaint petition under Section 203 Cr. P.C. if he does not find a prima facie case, or he can take cognizance and issue process under Section 204 Cr.P.C. after finding sufficient ground for proceeding against the accused persons. But in no case at the very threshold, he can dismiss the protest-cum-complaint petition without following the procedure prescribed under Chapter XV of the Cr. P.C. 8. Coming to the present case, it is apparent that after completion of entire investigation, the police submitted final form finding the occurrence to be correct for offences under Sections 279, 304A and 338 of the Indian Penal code, but without any clue. P.C. 8. Coming to the present case, it is apparent that after completion of entire investigation, the police submitted final form finding the occurrence to be correct for offences under Sections 279, 304A and 338 of the Indian Penal code, but without any clue. So far acceptance of the final form submitted by the police is concerned, the impugned order cannot be faulted, but, prior to the passing of the impugned order a protest-cum-complaint petition was filed on behalf of the petitioner on 15.12.2005, yet, admittedly, neither the petitioner was examined on Solemn Affirmation in terms of Section 200 Cr. P.C. nor he was given opportunity to produce his witnesses for enquiry under Section 202 Cr. P.C. but by the impugned order the learned Magistrate has dismissed his protest-cum-complaint petition. This part of order cannot be sustained in the eye of law, as he has not only exceeded his jurisdiction, but has failed to discharge his duty conferred upon him under chapter XV Cr.P.C. 9. For the reasons recorded above, the impugned order dated 28.9.2007 passed by the learned Additional Chief Judicial Magistrate, Patna City in Fatuah P.S.Case No. 240 of 2004 dated 7.12.2004, whereby he has rejected the protest-cum-complaint petition filed on 15.12.2005 by the petitioner, is hereby set aside and the matter is remitted back to the learned Additional Chief Judicial Magistrate, Patna City, to proceed further in accordance with law by treating the aforesaid protest petition as a complaint petition. The mandate of Chapter XV of the Cr.P.C. shall necessarily be followed by the learned Additional Chief Judicial Magistrate and thereafter fresh order shall be passed in accordance with law. 10. Since the matter has already been delayed for one reason or the other, it would be expedient that the learned Additional chief Judicial Magistrate, Patna City, proceeds expeditiously in this matter. 11. With the aforesaid observations and directions, the present application stands finally disposed of.