HARENDRA RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel appearing on behalf of the petitioner, learned Additional Public Prosecutor appearing on behalf of the State and learned Senior Counsel appearing on behalf of the accused opposite party nos. 2 to 22. The petitioner by filing the present revision application has questioned the validity and correctness of order dated 28.9.2007 passed in Fatuah P.S. Case No. 240/2004 dated 7.12.2004 by the learned Additional Chief Judicial Magistrate, Patna City, whereby while accepting the final form dated 9.12.2005 submitted by the police, he has rejected the protest-cum-complaint petition filed on behalf of the petitioner and thereby, has discharged all the accused persons from the criminal prosecution.

(2.) The facts involved in the present case lie in a very narrow compass. The fardbeyan of the petitioner was recorded on 7.12.2004 by the police, wherein he stated that opposite party nos. 2 to 22 have committed crime of murder with respect to two persons namely, Jai Prakash Rai and Pramod Rai. Other incidental allegations were also made in the aforesaid fardbeyan. On the basis of the aforesaid fardbeyan of the petitioner, Fatuah P.S. Case No. 240 of 2004 dated 7.12.2004 for offences under Sections 302/ 149, 307 and some other allied offences under the Indian Penal Code was registered and formal F.I.R. was drawn up, which has been brought on record as Annexure-1. However, after investigation originally charge-sheet dated 8.3.2005 was submitted against accused Parmanand Rai only for offences under Sections 302/ 149, 307 and some other allied offences of the Indian Penal Code, but the investigation against the rest of the accused persons was kept pending. Subsequently, on completion of entire investigation, the police submitted final form dated 9.12.2005 for offences under Sections 279, 304A and 338 of the Indian Penal Code, accepting the factum of occurrence to be true but clueless. Admittedly, opposite party nos. 2 to 22 were not charge-sheeted by the police with respect to the occurrence in question. In the meantime, on 15.12.2005, the petitioner filed a protest-cum-complaint petition in the Court of teamed Additional Chief Judicial Magistrate, Patna City with a prayer to treat it as complaint case and proceed further against accused persons for the crime in question. However, by the impugned order dated 28.9.2007, the learned Additional Chief Judicial Magistrate, Patna City, has accepted the final form submitted by the police, but at the same time, he has rejected the protest-cum-complaint petition filed on behalf of the petitioner and has discharged the accused persons from the offences in question, without following the procedure prescribed under Chapter XV of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), after treating the protest petition as complaint petition.

(3.) Learned counsel appearing on behalf of the petitioner submits that the learned Judicial Magistrate, while passing the impugned order has committed grave illegality and has exceeded his jurisdiction and, therefore, according to him, the matter requires to be reconsidered by the learned Additional Chief Judicial Magistrate, Patna City.