CRIMINAL MISCELLANEOUS No.34510 OF 2001 In the matter of an application under Sectio9n 482 of the Code of Criminal Procedure ----------------- Radhey Shyam Pandey, Son of Sri Kailash Pati Pandey, Assistant Engineer ( Mechanical), Water Resources ( Irrigation) Department, Govt. of Bihar, resident of Village- Papur, P.S. Pacharukhi, District-Siwan ( Bihar) -------------- Petitioner Versus THE STATE OF BIHAR --------------------- For the petitioner: Sri Rakesh Kumar Samarendra, Advocate For the State : Sri A.M.P.Mehta, A.P.P. --------------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 8.8.2001 passed by the learned Chief Judicial Magistrate, Patna in Gardanibagh ( Sachiwalaya ) P.S. Case No.532 of 2000, whereby the learned Chief Judicial Magistrate has taken cognizance of offences under Sections 409, 420,468, 471, 167, 199, 193, 32, 34 and 120B of the Indian Penal code . The petitioner has further prayed for directing the learned Chief Judicial Magistrate to take cognizance of offence of the offences on the police report. Alternatively it has been prayed to direct for investigating the case by an independent Agency i.e. Central Bureau of Investigation. 2. Short fact of the case is that the petitioner earlier filed a complaint vide Complaint Case No. 1318 ( C) of 2000 in the court of learned Chief Judicial Magistrate, Patna arraying altogether 25 persons 2 as accused for commission of offence of criminal misappropriation by way of removing part of machines and other public properties at Kujju under Rajnagar Police Station in the district of West Singhbhum and also vital parts worth Rs.5.2 Lacs of H.M. 101-M Dragline machine at Kitanala under Mango Muffasil Police Station in the district of East Singhbhum . It was alleged that all the accused persons conspiring with each other had committed offences under Sections 120B, 409, 420, 468, 471, 167,199/193, 109, 32 and 34 of the Indian Penal Code. The said complaint was referred to the police for its registration and investigation and, accordingly, Gardanibagh (Sachivalaya) P.S. Case No.532 of 2000 was registered and police started investigation. While investigation was in progress, the petitioner raised apprehension that the police, keeping in view the status of accused, may not do justice with the investigation, the petitioner, accordingly, filed a petition on 28.10.2000 in the court of learned Chief Judicial Magistrate, Patna. In the said petition, the petitioner also indicated that he learnt that the police was going to submit report in the case stating that the case was false one. Subsequently, the police submitted final report vide Final Report No.159 of 2000 dated 1.11.2000. The police in its final report categorically mentioned that the complaint was filed maliciously against accused nos. 1 to 13 and 15 to 25, which was untrue. In its final report, the police indicated that in respect of accused no.14 and the informant of the case investigation in West Singhbhum ( Rajnagar ) P.S. Case No. 45 of 2000 was going on. After submission of final report, notice was issued to the informant and, thereafter, a protest petition was filed by the petitioner (informant). Finally, by order dated 8.8.2001 learned 3 Chief Judicial Magistrate took cognizance of offence under Sections 409, 420, 468, 471, 167, 199, 193, 32 , 34 and 120B of the Indian Penal Code against accused Sradhanand Singh. 3. Dissatisfied with the order of cognizance, the petitioner approached this Court by filing the present petition, which was admitted on 20.8.2002. While admitting, lower court record was also called for. 4. Sri Rakesh Kumar Samarendra, learned counsel appearing on behalf of the petitioner questioning the order of cognizance as well as entire investigation conducted by the police, has argued that since the accused no.1 in the complaint petition was a Cabinet Minister of State, the police under his dictate had not conducted investigation in the fair and honest manner and only doing the table work had filed final report in the present case. Learned counsel for the petitioner submits that along with complaint petition, the petitioner had brought on record number of documents showing connivance of the accused persons in misappropriating huge amount. It has been submitted that the Investigating Officer had even not bothered to examine the documents, which were enclosed with the complaint petition. Those documents read with allegation made in the complaint petition categorically makes out a case of misappropriation of Government fund in connivance with the accused persons named in the complaint petition. It was submitted that it was a fit case for directing the Central Bureau of Investigation to investigate the matter. Learned counsel for the petitioner submits that in the case during investigation itself, a petition was filed by the petitioner raising apprehension in respect of investigation and after filing of the final report, petitioner had 4 also filed a protest petition. Thereafter on several dates, the matter was heard by the learned Chief Judicial Magistrate. While passing the impugned order the learned Magistrate has not at all taken note in respect of the protest petition and in a mechanical manner has passed the impugned order taking cognizance of offence against one of the accused, who was named in the F.I.R. It was submitted that the learned Magistrate was required to pass order on the protest petition filed by the petitioner in the present case. The petitioner in the present case has also filed supplementary affidavit to show that on protest petition as well as on final report, the learned Magistrate had heard learned counsel for the petitioner on several dates, but surprisingly no order has been passed on the protest filed by the petitioner and, as such, it is a fit case for directing the learned Magistrate to pass order on the protest petition. It has alternatively been argued that keeping in view the seriousness of the offence as well as involvement of persons occupying high position the entire may be entrusted to an independency Agency, particularly the Central Bureau of Investigation. 5. Sri A.M.P.Mehta, learned Addl.Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioner. It was submitted by Sri Mehta, learned Addl.Public Prosecutor that the case was thoroughly investigated by the Investigating Agency and thereafter it was found that the case was initiated by the petitioner maliciously. The petitioner , at the relevant time, was posted as Assistant Engineer in the Mechanical Sub Division, Icha Chaliama ( now in Jharkhand) and the complainant had filed the complaint maliciously against number of Engineers, Commissioner- 5 cum- Secretary, Water Resources ( Irrigation) Department as well as Minister Incharge of the Water Resources Department. During investigation, it was found that the case was filed maliciously and, as such, the Investigating Officer had rightly submitted final report. However, the learned Chief Judicial Magistrate vide its order dated 8.8.2001 had taken cognizance of offence against one person, namely, Sradanand Singh , who was at the relevant time Junior Engineer in the Irrigation Department. 6. Besides hearing learned counsel for the parties, I have also perused the material available on record. For just decision in the matter, the Court is of the opinion that there is no need to go into detail in respect of the merit of the case. In this case, lower court record makes it clear that before passing the impugned order, the petitioner being the informant had filed a protest petition and the learned Magistrate on several dates had heard the parties on the protest petition as well as final report, which is evident from order dated 2.12.2000, 7.12.2000, 5.1.2001, 2.6.2001, 11.7.2001, 12.1.2001, 19.7.2001, 6.8.2001 and 7.8.2001 and finally after hearing, the impugned order of cognizance was passed. On perusal of the impugned order, it is evident that the learned Magistrate has not at all whispered regarding the protest petition. Once the protest petition was filed and hearing resumed on several dates on such petition, it was necessary for the learned Magistrate to pass any order on such petition. The Court is of the opinion that without passing any positive order, it would be appropriate to remit back the matter to the learned Chief Judicial Magistrate to pass order on the protest petition, which was filed by the petitioner. 6 7. Accordingly, the petition stands disposed of and the matter is remitted back to the court below for passing necessary orders in view of protest filed by the petitioner. Office is directed to remit back the lower court records forthwith. Patna High Court, Patna Dated : the 19th February, 2011 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)