Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2
CASE NO.:
Appeal (crl.) 1051 of 2002
PETITIONER:
Ram Ekbak Missir
RESPONDENT:
RamSriNiwaiswhashanPdaenydey and Ors.
DATE OF JUDGMENT: 09/10/2002
BENCH:
M. B. SHAH & D. M. DHARMADHIKARI.
JUDGMENT:
J U D G M E N T
Shah, J.
Leave granted.
An FIR 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.
It is 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 records.
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.
On 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2
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].
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 made
some observations on merits. Hence, this appeal.
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.
It is 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.
Hence, 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.