Devendra Sharma Son of Chandradeo Singh, Vs. the State of Bihar and Smt. Shyamapati Devi Wife of Sitaram Singh - Court Judgment

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judgment rakesh kumar, j. 1. while invoking inherent jurisdiction of this court under section 482 of the code of criminal procedure, 1973 (hereinafter referred to as cr.p.c.), three petitioners have prayed for quashing of order dated 11.2.1998 passed by shri j.p. mishra, judicial magistrate, first class, jehanabad in t.r. no. 485 of 1998. by the said order, the learned magistrate has taken cognizance of offence under sections 323, 302/34 of the indian penal code. 2. short facts of the case is that earlier the opposite party no. 2, namely, smt. shyamapati devi, on 9.10.1994 gave a fardbyan before the assistant sub inspector of policecum-officer-in-charge, makhdumpur police station, alleging therein that on 8.10.1994 at about 6.00 p.m., while she was returning back along with her brother ram bali sharma after doing pairvi in a case relating to murder of her son from jehanabad near oba ahar, about six accused persons came and caught hold of her brother. amongst the accused persons, she identified three petitioners of the present case. it was also alleged that the accused persons forcibly took her brother to nearby water of ahar and dragged to kill him by drowning him. any how, the informant saved her life and thereafter, she gave information to her family members and she also disclosed this fact to some of the villagers, but no one gathered courage to proceed towards the place of occurrence. in the morning, she came to the place of occurrence along with her son, husband and other persons and thereafter, she noticed that the dead body of her brother was floating in the water of oba ahar. it was also alleged by the informant that few month back her son was also killed by accused devendra sharma, who is petitioner no. 1 in the present case. on the basis of fardbyan of the opposite party no. 2 (informant), an f.i.r. vide makhdumpur p.s. case no. 134 of 1994 was registered on 9.10.1994 for the offence under section 302/34 of the indian penal code against three named accused persons (petitioners) and three unknown accused persons. 3. shri y.v. giri, learned senior counsel appearing on behalf of the petitioners, while challenging the order of cognizance dated 11.2.1998, submits that after registering the case, police investigated the same and thereafter, police submitted final form as the case was found as a mistake of fact. during the hearing of this petition, learned counsel for the petitioners has referred to annexure-2 to the petition, which is a typed copy of final report no. 71 of 1996 dated 31.8.1996. while referring to annexure-2, it was submitted that the investigating officer, after finding the case untrue, recommended for submission of final form. however, same was not accepted by the superintendent of police. thereafter, the matter was examined by deputy inspector general of police, magadh range and on the direction of deputy inspector general of police, magadh range, final form was submitted in the case. during the course of hearing, learned counsel for the petitioners has also referred to annexure-4 to the petition and it was submitted that annexure-4 to the petition was a second complaint relating to same occurrence and as such the learned magistrate has grossly erred in proceeding with the case on the basis of second complaint petition. it was argued that a protest petition was earlier filed on behalf of the informant in the case and subsequent to filing of final report, notice was issued to the complainant with a direction to come and state on solemn affirmation, if he wants to further proceed in the matter. learned counsel for the petitioners has also referred to annexure-3 to the petition, which is typed copy of some of the order sheets in makhdumpur p.s. case no. 134 of 1994, g.r. no. 1219 of 1994. he submits that after submission of the final form on 30.9.1996, the learned judicial magistrate had passed order for issuance of notice to the complainant and date was fixed as 10.10.1996 for his appearance, if he was willing to proceed with the complaint petition. subsequently, on 9.10.1996, no pairvi could be made by the informant (complainant) and, accordingly, the learned chief judicial magistrate by its order dated 9.10.1996 accepted the final form and passed an order for discharging the three petitioners of the present case. 4. shri giri, learned senior counsel appearing on behalf of the petitioners, while challenging the order of cognizance, has further submitted that the learned magistrate, while taking cognizance, has grossly erred in looking into the postmortem report of the deceased ram bali sharma. he submits that the postmortem report, which was relied upon by the judicial magistrate, ist class, jehanabad, while taking cognizance, was the record contained in the police report. he submits that while proceeding with the complaint petition, the learned magistrate was not entitled to look into the document of makhdumpur p.s. case no. 134 of 1994. since after submission of the final form in the said case, learned magistrate had also accepted the same, according to shri giri, taking cognizance by the learned magistrate on the basis of postmortem report amounts to review of earlier order i.e. order dated 9.10.1996. according to him, in view of section 362 of the code of criminal procedure, the learned magistrate was not entitled to review or recall the order whereby final report was accepted and petitioners were discharged by the same magistrate. on this very point, learned counsel for the petitioners has relied on a judgment of hon'ble supreme court reported in : a.i.r.1963 sc 1430 (chandradeo singh v. prakash chandra bose @ chabi bose and another). he has strongly relied upon paragraphs 10 and 12 of the judgment of the case. relying on the said judgment, shri giri has submitted that the learned magistrate was not at all entitled to peruse either postmortem report or case diary, while he was proceeding with the protest-cum-complaint petition of opposite party no. 2 after accepting the final form submitted by the police. on this very point, he has also relied upon judgment of hon'ble supreme court reported in : a.i.r. 1977 sc 2432 (bindeshwari prasad singh v. kali singh). he has referred to paragraph-4 of the judgment of bindeshwari prasad singh' s case (supra). at this stage, it is necessary to quote paragraph-4 of the said judgment, which is as follows: we might mention that the order dated 23rd november, 1968 was a judicial order by which the magistrate had given full reasons for dismissing the complaint. even if the magistrate had any jurisdiction to recall this order, it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order. we, however, need not dilate on this point because there is absolutely no provision in the code of criminal procedure of 1898 (which applies to this case) empowering a magistrate to review or recall an order passed by him. code of criminal procedure does contain a provision for inherent powers, namely, section 561-a which, however, confers these powers on the high court and the high court alone. unlike section 151 of civil procedure code, the subordinate criminal courts have no inherent powers. in these circumstances, therefore, the learned magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. the remedy of the respondent was to move the sessions judge or the high court in revision. in fact after having passed the order dated 23-11.1968, the sub divisional magistrate became functus officio and had no power to review or recall that order on any ground whatsoever. in these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint, was entirely without jurisdiction. this being the position, all subsequent proceedings following upon recalling the said order, would fall to the ground including order dated 3-5-1972 summoning the accused which must also be treated to be a nullity and destitute of any legal effect. the high court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings. it was suggested by mr. d. goburdhan that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint. we are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out. 5. shir giri has also relied upon a judgment of this court reported in 1979 bbcj 293 (ram kumar pandey v. state of bihar). he has referred to paragraphs 5 and 7 of the said judgment. he submits that second complaint is not permissible. he has forcibly argued that after the submission of the final form and its acceptance by the learned magistrate, the learned magistrate, while proceeding with the protest-cum-complaint petition was not at all authorized to look into either postmortem report or the materials available in the case diary. he submits that after submission of final form by the police in the present case, the chapter relating to the police case had come to an end and thereafter, the learned magistrate, while taking cognizance in the present case, has grossly erred in perusing the postmortem report and the materials available in the case diary. 6. shri giri has further relied upon a judgment of supreme court reported in : a.i.r. 1962 sc 876 (pramatha nath talukdar and anr. v. saroj rajan sarkar) . he has referred to paragraphs 48, 50, 59 and 61 of the said judgment. he submits that protest petition was earlier filed by the petitioners before filing of the charge sheet and after accepting the final form and discharging the accused persons by the court, it will be deemed that his protest petition was rejected and as such the learned magistrate has grossly erred in proceeding in the case on the basis of annexure-4 to the petition, which according to shri giri was a second complaint. in pramatha nath' s case (supra), in paragraph-16, the supreme court has held as follows: in these circumstances, we are of the opinion that the bringing of the fresh complaint is gross abuse of the process of the court and is not with the object of furthering the interest of justice. 7. in support of his argument, shri giri has also referred to paragraphs 5, 6 and 7 of a case reported in : a.i.r. 1968 sc 117 (abhinandan jha v. the state of bihar). 8. in some and substance, learned counsel for the petitioners submits that after filing of the final report and its acceptance and discharging the accused petitioners, the learned magistrate has incorrectly proceeded on the basis of second complaint filed by the opposite party no. 2. according to him, the learned magistrate has also grossly erred in examining the postmortem report and case diary of makhdumpur p.s. case no. 134 of 1994, while proceeding with the second complaint petition filed by opposite party no. 2. accordingly, he has prayed for setting aside the order of cognizance. 9. i have also heard mrs. indu bala pandey, learned counsel appearing on behalf of the staste. however, none has appeared on behalf of opposite party no. 2. mrs. pandey has opposed the prayer of the petitioners on the ground that at the initial stage of a proceeding i.e. after the order of cognizance only, this court may not exercise its inherent jurisdiction under section 482 of the code of criminal procedure and she has prayed for rejection of the present petition. 10. in the present case, on 5.3.1998, while issuing notice to opposite party no. 2, this court had directed that in the meantime, further proceedings in the court below shall remain stayed. subsequently, on 5.7.1998, the case was admitted for hearing. since opposite party no. 2 had already appeared, no notice was ordered to be issued. while admitting the case, this court called for the lower court record and further directed that during the pendency of this application, interim order dated 5.3.1998 shall continue. from the record, it appears that after the case was admitted for hearing, the case was taken up on 5.11.2003 under the heading for hearing. however, on the prayer of the parties, the case was deferred to 6.11.2003. on 6.11.2003, again a prayer was made for an adjournment and one week time was granted. on 17.11.2003, during the course of hearing of the present case, learned lawyer appearing on behalf of the opposite party no. 2 submitted that the petitioners of this cr. misc. case had filed a petition bearing cr. misc. no. 18694 of 1997 for quashing the order dated 24.7.1997 passed in makhdumpur p.s. case no. 134 of 1994, which was dismissed. it was prayed on behalf of opposite party no. 2 for calling of the record of the said case. accordingly, this court directed to call for the record of cr.misc. no. 18694 of 1997. on 18.11.2003, this court observed 'record of cr. misc. no. 18694 of 1997 has been put up but it has only one page of order-sheet only and has no other paper. office is directed to put up the entire record'. 11. i have examined the order sheet of the present case. from the order sheet, it does not appear as to whether office of this court took any step in the light of the judicial order of this court dated 18.11.2003 nor any step was taken to again list this case under the heading for hearing. however, after expiry of about seven years, the case was taken up on 19.3.2010. on the prayer made by the parties, the case was again ordered to be listed in the second week of april, 2010. the order sheet of cr. misc. no. 18694 of 1997 shows that it was filed by devendra sharma and others and it was dismissed on 30.9.1997. 12. in this case, i have also examined the lower court record, which has been kept along with the record of the present case. on perusal of the lower court record as well as order sheet in the present case very disturbing fact has emerged. 13. the present petition was filed against the order of cognizance dated 11.2.1998. in the petition, the petitioners fraudly suppressed the fact that they had earlier moved before this court in the matter. the submission of the opposite party no. 2, which was recorded by this court in its order dated 7.11.2003 indicates that petitioners had earlier filed cr. misc. no. 18694 of 1997 for quashing of the order dated 24.7.1994 passed in makhdumpur p.s. case no. 134 of 1994, which was dismissed. 14. from the lower court record, it transpires that while investigation was going on, the opposite party no. 2 apprehending that she may not get justice from the investigating officer, filed a protest-cum-complaint petition on 23.11.1994 vide complaint case no. 271 of 1997. in the complaint petition, the complainant had also given the names of witnesses to be examined on behalf of the complainant, which was noticed by the chief judicial magistrate, which is evident from order dated 24.11.1994. from the order sheet, it appears that on 29.9.1996, a final report was submitted by the police and the learned judicial magistrate passed an order for issuance of notice to the informant and fixed the case to 30.9.1996. on 30.9.1996, the learned chief judicial magistrate recorded in its order that no pairvi was made on behalf of the informant and again office was directed to issue notice to the informant. it was recorded in order dated 30.9.1996 that if the complainant wants to further proceed with his complaint, he may come on 10.10.1996 in the court for his examination on oath. on 9.10.1996, the order sheet of the chief judicial magistrate shows that no pairvi was made by the informant and, accordingly, final report was accepted on the ground of mistake of fact and accused devendra sharma, amresh sharma and umesh yadav were discharged. 15. order dated 20.6.1997 of the chief judicial magistrate shows that while filing a petition, a prayer was made on behalf of the informant for examining her on oath. thereafter, on 10.7.1997, the said petition was moved by the learned counsel appearing on behalf of the informant (complainant). however, on the prayer made by the learned counsel appearing on behalf of the accused persons, the hearing was deferred to 14.7.1997 and on 14.7.1997, a petition was filed on behalf of the accused persons. again on 15.7.1997, a rejoinder was filed on behalf of the informant. thereafter, on 19.7.1997, the learned magistrate heard both the side on petition dated 20.6.1997 filed by the informant and the case fixed to 24.7.1997 for order in the case. by a detailed order, discussing every points, the learned magistrate rejected the objection of the accused-petitioners and allowed the petition dated 20.6.1997 filed on behalf of the informant (complainant) and fixed the case to 20.8.1997 for examination of informant on s.a. since the petitioners, while filing the present petition, has completely suppressed the fact relating to order dated 24.7.1997 as well as suppressed the fact relating to rejection of his quashing application i.e. cr. misc. no. 18694 of 1997, it would be appropriate to quote the order dated 24.7.1997, which was passed by learned chief judicial magistrate, jehanabad in makhdumpur p.s. case no. 134 of 1994 and the same is as follows: this order is directed against the petition filed by the informant shyampati devi wife of sitaram singh for examination of complainant and his witnesses, list already furnished in the protest-cum-complaint petition filed in this case dated 20.6.97 and on its rejoinder filed by accused dated 14.7.97 and also on the reply of rejoinder dated 15.7.97. - orderthe 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.

Judgment:
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.