RAM EKBAK MISSIRversusRAM NIWASH PANDEY@ SRI NIWASH PANDEY AND ORS.

A                     RAM EKBAK MISSIR
                             v.
        RAM NIWASH PANDEY@ SRI NIWASH PANDEY AND ORS.

                                 OCTOBER 9, 2002

B                 [M.B. SHAH AND D.M. DHARMADHIKARI, JJ.]


           Criminal Trial-Delay in-Quashing ofFIR--FIR against accused under
    section 302 !PC-Proceeding not placed before court for more than ten years-
C   Finally Magistrate taking cognizance of offences against accused-Accused
    filing application for dropping the proc.eedings in view of long delay-High
    Court dropping the prosecution case-On appeal held delay would not be a
    ground to drop the prosecution case since the accused is involved in serious
     offences-It is the duty of the court to see that neither the victim nor the
    accused suffers by the mischief of the investigation agency or the staff of the
D   court-Penal Code, 1860-Sections 302, 147, 148 and 149.

          On the fardbayan of appellant, FIR was registered under section 302
    IPC. Investigation officer submitted the report. Appellant filed petition
    contending that the investigation was biased. Witnesses were examined in
    enquiry before the court. For unknown reasons the proceedings were not
E   placed before the Magistrate for more than ten years. Appellant made
    inquiry and Magistra.te took cognizance in the 1rnse. Accused filed a writ
    petition against taking of cognizance of the case. Accused relying on A.R.
    Antulay 's case contended that as the accused was not at fault and the
    criminal case had been dragged for a long period of 21 years case be
F   dropped. High Court accepted the contention and allowed the petition.
    Hence the present appeal.

          Allowing the appeal, the Court

          HELD: For unknown reasons the proceedings were not placed before
G the court for more than ten years and who played the mischief is not found
    out. The delay would hardly be a ground for dropping the prosecution
    where the accused are involved for the offences punishable under sections
    302, 149, 148 and 147 IPC. It is the duty of the court to see that neither
    the victim nor the accused suffers by the mischief of the investigation
    agency or the staff of the court. Further at this stage, there was no
H                                        162




            I I
   RAM EKBAK M!SSIR v. RAM NIWASH PANDEY@SRJ NIWASH PANDEY [SHAH, J.]      J63

necessity of making any observations on merits by the High Court as that           A
is required to be decided at the time of trial or at the time of framing of
charges. (165-8-CJ

     A.R. Antulay \'. R.S. Nayak, [1992] I SCC 225, referred to.

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                        L
I 051 of 2002.

     From the Judgment and Order dated 11. l 0.200 I of the Patna High
Court in C.R.W.J.C. No. 668 of 2000.

     Akhilesh Kumar Pandey and Ashok Kr. Pandey, for the Appellant.                C
     Pankaj Kalra, T. Mahipal, Pradeep Misra and B.B. Singh and Saket
Singh, for the Respondent.

      The Judgment of the Court was delivered by
                                                                                   D
      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 person~. In that petition, five witnesses were examined who            E
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   F
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           G
punishable under Section 302 IPC on 28.1.2000 and passed the fol lowing
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
        infonnant. The advocate for the informant submits that this case was H
    164                       SUPREME COURT REPORTS [2002] SUPP. 3 S.C.R.

A           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
B           all the witnesses, Ran1 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.
c                  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 lPC and 27 Arms Act. Therefore cognizance
            is taken in the case. Trial of Section 302 !PC is done by Sessions
D           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 prE:ferred Writ Petition being
  Cr.W.J.C. No. 668 of 2002 before the High Court at Patna. The High Court
E 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
F 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 2 I years, and therefore, it should be dropped on the basis of the decision
  rendered by this Court in A. R. Antu/ay v. R.S. Nayak, [ 1992] I SCC 225.

G        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
H the concerned Court. From the facts narrated above, it is clear that allegations
       RAM EKBAK MISSIR v. RAM NIWASH PANDEY@SRI NIWASH PANDEY [SHAH, J.] J65

against the accused were for the offences punishable under Sections 302,            A
 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 nqt found out. But this would hardly be a ground for dropping the       B
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          C
to be decided at the time of trial or at the time of framing of charges.

       Hence, the appeal is .:llowed, the impugned judgment and order dated
11.10.2001 passed by the :-fig'1 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.                                                                D
N.J.                                                           Appeal allowed.