MUNESHWAR PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The main question for consideration in this case is whether a Magistrate, differing with the final report of the police, and without examining on solemn affirmation the informant who files the protest petition, can take cognizance of an offence and issue process against a non-sent up accused.

(2.) On the 24th December, 1974, an information was lodged by one Parmeshwar Prasad before the Bihar police-station relating to an occurrence which took place in village Ita Sang, police-station Rahui, district Nalanda. On the basis of the said report, a case under sections 302/149, Indian Penal Code, and under section 25-A of the Arms Act was instituted against the petitioner and four others. The police took up investigation. After completing the investigation, charge-sheet was submitted on 22.6.76 against three persons under sections 302/148/l49, Indian Penal Code, and under section 25-A of the Arms Act. The petitioner was not sent up by the police.

(3.) It appears that before the submission of the charge-sheet, a petition had been filed by the informant on 3.5.75 alleging, Inter alia, that the investigating officer was in collusion with the accused persons. Another petition seems to have been filed by the informant on 19.5.75 in which a prayer was made to hear him after the submission of the final form. The petition was kept on the record. Yet another petition was filed by the informant on 22.6.76, i. e., on the very date the charge-sheet submitted against three of the accused was received by the Magistrate, making a prayer to put the petitioner and one Tilakdhari Prasad (since dead) on trial.