IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. REV. No.830 of 2009
SUNIL PASWAN SON OF LATE HARINANDAN PASWAN,
RESIDENT OF MOHALLA BAHARI BEGAMPUR, POLICE
STATION BYEPASS PATNACITY, PATNA
...PETITIONER
Versus
STATE OF BIHAR
...OPPOSITE PARTY
For the petitioner :Mr. Ajit Kumar Ojha
For the State :Mr.R.B.Roy 'Raman',APP
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02. 18.04.2011 Heard counsel for the petitioner and the State.
Petitioner is the son of the informant. It is
stated that during the pendency of this application, the
informant died and, as such, the petitioner being his son, is
prosecuting the present proceeding.
An FIR was lodged on 24.05.2003 against five
accused persons alleging therein that they had committed
murder of the son of the informant(since deceased) by
administering poison. During the pendency of
investigation, the informant(since deceased), filed a
protest-cum-complaint petition on 7.6.2003 which was on
record. It appears that the Investigating Officer, on
conclusion of investigation, submitted a final report on
31.05.2008 whereby only one accused was sent up for trial.
Rest of the accuseds were not sent up for trial. Learned
Magistrate by the impugned order has accepted the said
report and rejected the protest petition filed by the
informant(since deceased).
While assailing the order, it is submitted that
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once a protest petition has been filed by the informant, the
court is obliged to dispose of the same in accordance with
the procedures laid down in the Code of Criminal
Procedure(hereinafter referred to as the ‘Code’) treating the
said protest petition as complaint. Reliance in this regard
has been placed on judgment of this Court rendered in the
case of Barister Rao vs. State of Bihar and Ors. since
reported in 2010(2) PLJR 18 (paragraph 8). It is submitted
that court below has committed a manifest error in rejecting
the protest-cum-complaint petition filed on behalf of the
informant(since deceased) without making enquiry in terms
of the provision of the Code.
Learned APP in view of the ratio laid down by
Hon’ble the Supreme Court as has been taken note of in the
case of Barister Rao (supra), submits that the matter
requires re-consideration by the court below in accordance
with law treating the protest-cum-complaint petition which
was already on record as complaint petition.
Having considered the submissions advanced
on behalf of the parties, this Court is satisfied that learned
court below has committed an error in outrightly rejecting
the protest-cum-complaint petition filed by the informant
well before submission of final report/charge-sheet.
Accordingly, the impugned order dated
4.03.2009, passed by learned ACJM, Patna City in Chowk
P.S. Case No.96 of 2003(G.R.No.661 of 2003) is quashed
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and set aside. The matter goes on remand to the court
below for proceeding in accordance with law treating the
protest-cum-complaint petition already on record as the
complaint. Petitioner being the son of the informant and
brother of the victim shall be permitted to pursue the said
complaint.
( Kishore K. Mandal )
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