ORDER
The informant/petitioner Shyampati Devi stated in her aforesaid petition that this case was instituted on the fardbyan given by the informant Shyampati Devi before Makhdumpur P.S. Case No. 134/94 Under Section 302/34 I.P.C. for the murder of the brother of the informant but it is alleged that the Makhdumpur Police in collusion of the accused persons, made perfunctory investigation and did not take trouble to take the evidence of the witnesses of this case. It is further stated that the informant already submitted protest petition in this case in the court in the very initial stage of the case. The I.O. submitted F.R. stealthily in this case although they always assured the informant that the investigation was going on. The informant alleged that when enquired about the record, she got reply from the office that the record is not traceable presently and lastly, she came to know that F.F. has already been received and the same already been accepted by the predecessor court. It is alleged that no notice or summon sent to the informant, although she was regularly watching the case. As soon as the informant came to know after enquiry about the F.R., the informant appeared before the court for giving evidence in this case. So, it is prayed that the court be pleased enough to examine the informant and her witnesses according to list furnished in the complaint-cum-protest petition for the ends of justice.
The accused persons, in rejoinder stated that the petition is not maintainable, both in facts and in law. The present case was instituted in the year 1994 and protest petition was filed on 24.11.94 which is ordered to be kept on the record and on 21.9.96, the final form was submitted by the police after thorough investigation and it was ordered to be kept with the record and thereafter it was ordered to send a notice to the informant and accordingly, it appears from the ordersheet dated 21.9.96 that a notice was issued to the informant fixing 30.9.96 as next date. On 30.9.96, no pairvi was done on behalf of the informant and, therefore, again it was ordered to send a notice to the informant fixing 9.10.96 and, accordingly, the same has been issued as it appeared vide order dated 9.10.96. It is further stated that in spite of the notice sent to the informant, neither the concerned private lawyer of the informant nor the concerned informant appeared to file any pairvi and, accordingly, the learned C.J.M. was pleased to accept the final form and discharge the persons vide order dated 9.10.96. As the protest-cum-complaint was kept on the same record, it appears that same has been considered and thereafter the final order was passed which also amount to disposal of the complaint-cum-protest petition. Although, there is no speaking order regarding the dismissal of the protest-cum-complaint petition but from the minute perusal of the above ordersheet, it is apparent clear that the said dcomplaint also dismissed because when the informant's learned lawyer or informant did not appear to proceed with the protest-cum-complaint petition, the learned court cannot kept the said record in abeyance. Hence, it is prayed that to reject the petition of the informant dated 20.6.97.
Heard and perused the record. On perusal, I find that on 24.11.94, the informant has filed a complaint-cum-protest petition, which was not moved by the lawyer of the informant. Hence, it was ordered to be kept on the record. Thereafter, I find that the orderhseet dated 21.9.96 speaks that F.F. received as mistake of fact, which was also kept on the record and it is ordered that the informant be informed by issuing notice to her and the margin of the ordersheet goes to show that the notice was issued. Thereafter, the ordersheet dated 30.9.96 goes to show that no pairvi on behalf of the informant was done. Hence, again notice was issued to the informant and the margin of the ordersheet goes to show that second notice was also issued and the date was fixed as 9.10.96. The ordersheet dated 9.10.96 goes to show that as the informant did not appear as such, the F.F. which was submitted as mistake of fact, was accepted by the court and the accused Devendra Sharma, Amresh Sharma and Upesh Sharma were discharged from the offence. The order dated 9.10.96 is the crucial order which gave rise the cause to the informant for filing the present petition. According to the version of the informant, she was not served with any notice by way of information that police has submitted the F.F. And on perusal of the record, I also do not find any S/R available on the record to show that notices received by the informant.
Moreover, the informant had filed a complaint-cum-protest petition on 24.11.94 i.e. at the very early period, that goes to show her apprehension regarding the submission of F.F. by damaging the case of the informant, and the ordersheet dated 9.10.96 clearly goes to show that while accepting the F.F. as mistake of fact by the learned the then C.J.M. and thereby discharged the accused persons, I do not find any where that the then learned C.J.M. by clears order has also rejected the complaint-cumprotest petition filed by the complainant dated 24 . 11. 94.
So, I am of the opinion that the case of the informant is still alive as the protest petition has not been rejected by a speaking and clear ordersheet. So, as per established principle of law, even after acceptance of F.F. and discharge of accused persons, the complainant can be examined on S.A. on the basis of the complaint-cum-protest petition which was earlier filed.
Hence, on the basis of the aforesaid facts and circumstances of this case, I find force in the argument of the counsel appearing on behalf of the informant that the protest petition is still alive and the informant is entitled to get herself examined on S.A. to continue the case.
So, the petition filed by the informant dated 20.6.97 is accepted. Put up on 22.8.97 for examination of the informant on S.A. Inform the counsel of both sides.
16. Surprisingly, while filing the present petition and arguing the case, it was emphasized that the Annexure-4 was a second complaint petition. Perusal of Annexure-4 itself makes it clear that the said petition was filed for examination of complainant and his witnesses. It was also mentioned in the petition that list has already been furnished in the protest-cum-complaint petition filed in this case. Accordingly, the submission of Shri Giri that Annexure-4 was a second complaint is liable to be rejected out rightly. In view of order dated 24.7.1997, which was fraudly suppressed by the petitioners, it is apparently clear that the learned Chief Judicial Magistrate had allowed the Annexure-4 for examining the complainant and its witnesses. In view of the peculiar facts and circumstances, the argument advanced by Shri Giri that it was a second complaint, second complaint is barred in view of decisions of the Supreme Court, which has been referred above, has now become meaningless. The second limb of argument, which was advanced by Shri Giri that learned Magistrate after acceptance of final report submitted by the police was not authorized to look into postmortem report or case diary has also got no substance in view of the fact which has emerged from the record of the case. Learned Magistrate, while taking cognizance of the offence by its order dated 11.2.1998, had perused the complaint petition, statement of complainant recorded on S.A. and also perused the postmortem report of the deceased Ram Bali Sharma, statement of the enquiry witnesses, namely, Sanjay Kumar, Lala Singh and Sita Ram Sharma. Perusal of the lower court records reveals that in the Complaint Case No. 271 of 1997 along with the list of document, postmortem report of Ram Bali Sharma was also filed by the complainant. The said list of document and postmortem report are at pages 22, 23, 24 of the lower court records. Accordingly, it is clear that the learned Magistrate had examined the document which was filed in the present protest-cum-complaint petition and as such the argument of Shri Giri that learned Magistrate has grossly erred in looking into the postmortem report and case diary of the case in which final report was submitted and accepted by the Magistrate is de void of any merit and such submission is liable to be rejected and I do hereby reject his such submission.
17. Accordingly, the submission of Shri Giri on both the points i.e. entertaining second complaint as well as examining police report are de void of any merit and same are rejected.
18. Accordingly, I do not find any merit in the present petition and petition stands rejected.
19. On perusal of the lower court record, I am satisfied that the petitioners have grossly committed offences of fraud as well as suppression of fact in a judicial proceeding before this Court. The petitioners firstly suppressed the fact regarding rejection of their objection to petition dated 20.6.1997 filed on behalf of the informant for allowing her to be examined on oath and for examining witnesses who were cited in the protest-cum-complaint petition and rejection of his earlier petition i.e. Cr. Misc. No. 18694 of 1997, which was dismissed by this Court on 30.9.1997. Secondly, the petitioners have made false statement on oath by stating in paragraphs 10, 11 and 12 of the petition that it was a second complaint. In paragraph-8 of the petition, he has also made a false statement, which is as follows:
That it appears that after expiry of eight months from the submission of the final form another complaint petition in the form of protest petition was filed by the informant on 20.6.1997 in the Court of Chief Judicial Magistrate, Jehanabad mentioning therein the allegations which in substance were made in the first information report.
20. It appears that by way of suppression of fact and committing fraud with the judicial proceeding, the petitioners got an order of stay of the proceedings in the court below by order dated 5.10.1998 passed by this Court. Similarly, it is difficult to comprehend that as to under what circumstances, when by order dated 30.9.1996, while passing an order for issuance of notice to the informant, the court had fixed 10.10.1996 the date for examining the informant on oath, the date in the case was preponed to 9.10.1996. At this stage, it would be appropriate to mention some facts, which has been incorporated in the petition dated 20.6.1997 filed by the complainant in the court of Chief Judicial Magistrate, Jehanabad in Makhdumpur P.S. Case No. 134 of 1994, which is at pages 25 to 28 of the lower court record. The complainant in paragraph-7 of said petition had stated that according to her apprehension, the Investigating Officer submitted final form stealthily in the case although they always assured the informant that investigation was going on. In paragraph-8, it has further been stated that on enquiry from the office in the court, the informant was always told that the record of the case is not traceable in the office and she would be informed through notice, if final form is received in the case. The allegation of the complainant is further corroborated on perusal of order dated 24.7.l1997 passed by the Chief Judicial Magistrate, Jehanabad in Makhdumpur P.S. Case No. 134 of 1994. The learned Magistrate, while allowing the petition for examining the complainant and her witnesses has noticed that though notice was ordered to be issued, but no service report was available on the record. The allegation of the complainant to the extent of giving incorrect information by the office of court below is also required to be investigated. In the present case, in the F.I.R., the informant had made specific allegation against the accused persons regarding their commission of offence in the occurrence. It is difficult to understand as to what was the reason for submission of the final form in the case by the Investigating Officer that too after intervention of the Deputy Inspector General of Police, Magadh Range, while the Superintendent of Police was not ready to accept the recommendation for submission of the final form. It is also surprising that what was the reason for the office of this Court in not complying with the judicial order dated 18.11.2003 whereby this Court had directed the office to put up the entire record of Cr. Misc. No. 18694 of 1997 and it is also difficult to comprehend the reason why for about seven years from the date of order i.e. from 18.11.2003, no step was taken by the office in compliance with the order of this Court. This shows the towering stature of the accused persons. By way of suppression of fact, the petitioners enjoyed the benefit of stay of criminal proceeding in Complaint Case No. 271 of 1997, since order of cognizance dated 11.2.1998 was stayed by this Court on the false statement of petitioners.
21. For the ends of justice, I am of the view that entire allegations and commission of offences by the accused persons including the alleged offences are required to be investigated by an independent investigating agency. I am of the view that the role of the police in proceeding with the investigation in Makhdumpur P.S. Case No. 134 of 1994 appears to be doubtful. The copy of final form, which has been enclosed as Annexure-2 to the present petition and which was referred by the learned Counsel for the petitioners indicates that the recommendation of Investigating Officer for submission of final form as a mistake of fact was not accepted by the Superintendent of Police, but in the present case, the Deputy Inspector General of Police, Magadh Range had intervened and only thereafter, final form was submitted in the case. Accordingly, I am of the view that keeping in view the involvement of powerful accued persons as well as to examine the role of the police, it would be appropriate to issue a direction to the Superintendent of Police, C.B.I., Patna to investigate the entire fraud episode and other connected matter after registering a regular case. While investigating the case, it is expected that C.B.I. will also examine the allegation of complainant regarding not intimating the actual development in his complaint and preponing the date from 10.10.1996 to 9.10.1996 as well as the reasons for not placing the present case for such a long time and not complying the direction of this Court dated 18.11.2003, besides examining the role of other accused persons, who directly or indirectly have committed the offence of conspiracy and abatement in commission of offence of fraud and other offences. It is up to the C.B.I. to either start investigating the case after re-registering the Makhdumpur P.S. Case No. 134 of 1994 or to register a fresh case.
22. Accordingly, the Superintendent of Police, Central Bureau of Investigation, Patna is hereby directed to register a case and investigate the same in aforesaid matter and complete the investigation preferably within a period of six months from the date of receipt/production of a copy of this order. In view of the fact that proceeding in the court below in Complaint Case No. 271 of 1997 was stayed since 5.3.1998 and still the order of stay is continuing, it would be appropriate to keep the proceeding in Complaint Case No. 271 of 1997 in abeyance till the final result of the investigation being conducted by the Central Bureau of Investigation.
23. The office is directed to immediately hand over copy of petition with annexure of Cr. Misc. No. 4718 of 1998 and Cr. Misc. No. 18694 of 1997 and also the copy of lower court record, which was earlier received in Cr. Misc. No. 4718 of 1998 to the Central Bureau of Investigation forthwith. It is further made clear that during investigation, if the C.B.I. approaches for copy of the entire lower court record, same may be provided to the C.B.I. without any delay. The Registry of this Court is directed to render full co-operation during the investigation of the case.
24. Let a copy of this order be handed over to Shri Bipin Kumar Sinha, learned Standing Counsel for Central Bureau of Investigation, Patna.