IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.29657 of 2007 1.RAMCHANDRA SAH @ BHANDUL son of Late Ramdhari Sah 2.Dawrik Raut son of late Saryug Raut 3.Bishun Sah son of late Jiya Lal Sah 4.Ram Narayan purbey son of late Anup Lal Purbey 5.Ramrup Yadav son of late Nand Lal Yadav 6.Parmeshwar Thakur son of late Malhu Thakur 7.Dhrub Narayan Raut son of late Parmeshwar Raut 8.Santosh Kumar Sah son of late Ram Chandra Sah 9.Satya Narayan Gami son of late Rajeshwar Gami 10.Kedar Purbey son of late Anup Lal Purbey 11.Manish Raut son of Dawarika Raut 12.Malhi Mahto son of late Asharfi Mahto 13.Satya Narayan Thakur son of late Jhinjur Thakur 14.Suraj Mohan Pajiyar son of late Takka Pajiyar 15.Sukhdeo Yadav son of late Mahabir Yadav 16.Chhitan Yadav son of late Nandan Yadav 17.Narayan Mahto son of late Saryu Mahto 18.Kaushal Sah son of late Raghunath Sah 19.Indra Sah son of Teka Sah All resident of Mohalla- Suhela Ganj (Kadirabad) P.S.-L.N.M.U., Darbhanga, District-Darbhanga. …….. ……..Petitioners Versus 1.STATE OF BIHAR 2.Hari Shankar Thakur son of Susil Thakur, resident of village-Jahanpur, P.S.-Katra District-Muzaffarpur. …….. ……..Opp.Parties ------- For the petitioners: Mr.Prafull Chandra Jha For the State : Mrs. Indu Bala Pandey, Addl.P.P. ------- 6. 29.9.2010. Nineteen petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 26.4.2007 passed by Additional Sessions Judge, F.T.C.-III, Darbhanga in Sessions Trial No.96 of 1992. By the said order, the learned court below has rejected the petition for discharge filed under section 227 of the Code of Criminal Procedure on behalf of the petitioners. 2 Short fact of the case is that in the year 1986 on the statement of one Hari Shankar Thakur a first information report was lodged for the offences under sections 307 and other allied sections of the Indian Penal Code vide LNMU P.S. Case No.43 of 1986. It was alleged in the said fardbeyan that the informant was brutally assaulted by the accused persons and he sustained serious injuries. He was admitted in the hospital where his farbdeyan was recorded and, thereafter, first information report was registered. After investigation, charge sheet was submitted against all the nineteen petitioners. Thereafter the case was committed to the court of sessions in the year 1992. Subsequently, a petition was filed on behalf of the petitioners under section 227 of the Code of Criminal Procedure for their discharge. The learned Additional Sessions Judge, F.T.C.-III, Darbhanga by the impugned order dated 26.4.2007 has rejected the petition filed by the petitioners. Aggrieved with the order of rejection of discharge petition, the petitioners have approached this court by filing the present petition. On 17.8.2009 after hearing the parties, carbon copy of the case diary along with injury report was called for from the court of Fast Track Court-III, Darbhanga in Sessions Trial No.96 of 1992 and in compliance with the order instead of case diary, a report has been received under the signature of Senior Superintendent of Police, Darbhanga, which is kept at Flag-X. Mr.Prafull Chandra Jha, learned counsel for the petitioners at the very outset submitted that all the petitioners were shopkeepers of the localities and they were falsely implicated by 3 the police to the reasons best known either to the informant or other police officials. Learned counsel for the petitioners, while challenging the impugned order, has argued that Fast Track Court No.III, Darbhanga without application of mind and in a mechanical manner has rejected the discharge petition. Learned counsel for the petitioners has pointedly referred to an order dated 29.3.2007 and submitted that from the said order it is evident that a report was received before the trial court from the office of Inspector of Police, Town, Darbhanga whereby it was intimated that entire record of the case i.e. LNMU P.S. Case No.43 of 1986 has already been destroyed by white-ant and the record was not at all readable. It was submitted that once the learned court had noticed that the record was not even readable, it was not possible for the learned court below to pass an order whereby he had indicated that he had examined the carbon copy of the case diary and, thereafter, he came to the conclusion that there were sufficient materials to proceed with the case. It was submitted that the impugned order read with order dated 29.3.2007 itself indicates that without any material or without any application of mind the court below has rejected the discharge petition. Learned counsel has further submitted that even in compliance with the order of this court, the Senior Superintendent of Police has intimated that the record of the case was completely destroyed during the devastating flood of 2004 and, as such, neither the case diary nor injury report was sent to this court. It has been alternatively argued that even if for the time being it is assumed 4 that there were some materials against the petitioners, keeping in view the fact that the occurrence as alleged had taken place in the year 1986, the petitioner may not be compelled to participate in such a delayed proceeding. According to the learned counsel for the petitioners the pendency of the present case creates a situation which is sufficient to indicate that right of speedy trial has been infringed and on the ground of delay also it has been prayed to quash the entire proceeding. Mrs. Indu Bala Pandey, learned Addl. Public Prosecutor appears on behalf of the State. She has opposed the prayer of the petitioners. Besides hearing learned counsel for the petitioners and the State, I have also perused the materials available on the record particularly the report which has been sent by the Superintendent of Police, Darbhanga, which is kept a flag-x i.e. letter no.2926 dated 13.8.2010. By the said report, it has been intimated that entire record was destroyed due to flood of the year 2004. From the order dated 29.3.2007 it is also evident that the case diary which was available in the court had completely been destroyed by white-ant and the records were not even readable. The court below has noticed this fact in its order dated 29.3.2007. It is surprising that just one month back the learned court below has asserted that record was not readable, this court failed to comprehend that under what circumstance while hearing the petition for discharge he had come to the conclusion that the record and the case diary indicate involvement of the petitioners. Besides non-availability of record, 5 the court is also of the opinion that in the facts and circumstances of the present case, the criminal proceeding may not be allowed to be kept pending indefinitely. In view of the facts and circumstances of the case, I am of the opinion that allowing prosecution of the petitioners in the facts and circumstances of the present case will amount to allowing an abuse of process of court and for the ends of justice it is necessary to interfere with the impugned order. Accordingly, the order dated 26.4.2007 passed by Fast Track Court No.-III, Darbhanga in Sessions Trial No.96 of 1992 is hereby set aside and the petition stands allowed. Md.S. ( Rakesh Kumar, J.)