Bal Manohar Jalan vs Sunil Paswan & Anr

3. The facts necessary for the disposal of the present appeal are stated as follows: The father of the respondent No.1 herein filed a complaint on 24.5.2003 against five accused persons alleging therein that they had committed murder of son of the complainant by name Anil Paswan by administering poison. A case was registered in First Information Report No.96 of 2003 on the file of Chowk Police Station, Patna City, on 28.5.2003 against 5 accused persons for the alleged offences under Section 328/302/34 IPC. During investigation, the complainant filed a protest-cum-complaint petition on 7.6.2003 which was kept on record. The investigation officer submitted the final report in the case on 31.5.2008 against accused No.1 Sunita Devi alone under Section 328/302 IPC for the murder of Anil Paswan. The Addl. Chief Judicial Magistrate, Patna City, perused the charge-sheet and the case diary as well as the protest-cum-complaint petition dated 7.6.2003 and took cognizance for the offences under Section 328/302 IPC against accused No.1 Sunita Devi and discharged accused Nos. 2 to 5 in the First Information Report from the case and rejected the protest-cum- complaint petition filed by the complainant by his order dated 4.3.2009. Aggrieved by the rejection of the protest-cum-complaint petition Sunil Paswan, the son of complainant late Harinandan Paswan filed revision petition in Criminal Revision No.830 of 2009 on the file of the High Court of Judicature at Patna under Section 397 and 401 of the Code of Criminal Procedure. The High Court after hearing the revision petitioner and the respondent State set aside the order dated 4.3.2009 passed by Addl. Chief Judicial Magistrate, Patna City and remanded the matter to the court below for proceeding in accordance with law treating the protest-cum-complaint petition as a complaint. Accused No.4 mentioned in the First Information Report Bal Manohar Jalan has challenged the said order of the High Court in this appeal.

6. Admittedly the appellant herein is mentioned as accused No.4 in First Information Report No.96 of 2003 dated 28.5.2003. The father of respondent No.1 herein, while alive filed a protest-cum-complaint petition dated 7.6.2003 in the said case and on the filing of the final report, cognizance was taken by the Addl. Chief Judicial Magistrate against accused No.1 Sunita Devi alone for the alleged offences under Section 328 and 302 IPC and the other four accused mentioned in the First Information Report were discharged from the case and the protest-cum-complaint petition was also rejected by order dated 4.3.2009. Since by then, the complainant was not alive, his another son namely Sunil Paswan preferred the Criminal Revision under Section 397 and 401 of the Criminal Procedure Code and the High Court without issuing notice to the concerned accused passed the impugned order and on the ground of non-compliance of the provision under Section 401 clause (2) of the Criminal Procedure Code resulting in prejudice, the appellant has preferred this appeal.

9. Though other grounds such as charge-sheet having been filed and the cognizance has been taken against accused No.1, the protest petition cannot be treated as a complaint warranting an independent inquiry, have been raised in this appeal, we do not deem it necessary to consider the same since we are remitting the matter for fresh consideration and it is open to the appellant to raise them before the High Court.

10. In the result the impugned order of the High Court dated 18.4.2011 is set aside and the matter is remitted and the High Court shall issue notice to all the concerned accused and thereafter hear and dispose of the criminal revision petition in accordance with law. This appeal is allowed accordingly.

June 30, 2014