RAKESH SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD counsel for the petitioner and the State as well as learned counsel appearing on behalf of the Informant.

(2.) IN the instant writ petition the petitioners pray for quashing the order dated 28. 8. 2006 passed by the learned Chief Judicial Magistrate, Saran at Chapra in u. T. case No. 459 of 2008 whereby the learned Magistrate was pleased to take cognizance and summon the accused petitioners to face trial, (b)and further for a declaration that the impugned order dated 28. 8. 2006 passed by the learned Magistrate, is in violation of the mandatory provisions contained in proviso of sub-section (2) of section 202 of the Cr. P. C. as all witnesses mentioned in complaint petition have not been examined by the complainant.

(3.) THE facts of the case in short are as follows; on the statement of respondent no. 5, a F. I. R. was lodged bearing Mashrak p. S. Case No. 191 of 1995, under section 307 of the Indian Penal Code, and under the arms Act, dated 15. 8. 1995. While the investigation was going on, the informant filed a protest petition on 31. 1. 1996 alleging therein that investigation is being carried out in a perfunctory manner to protect some of the accused persons. The police after investigation submitted final report on 31. 7. 1996 in favour of the accused persons. However, case proceeded on protest cum complaint petition, but at a snail's pace. The enquiry lingered for nine years. It appears that one Gardanibagh P. S. Case No. 339 of 1995 was instituted against the prosecution side in which all the accused persons named in this case are eye witnesses. As the aforesaid case also too proceeded slowly, a bench of this court gave directions for its expeditious disposal. It is the case of the petitioners that when aforesaid direction for expeditious disposal was ordered in Gardanibagh p. S. Case No. 339 of 1995, the prosecutrix of the instant case, who had not pursued their protest cum complaint petition for eight years all of a sudden seems to have woke up from their slumber and only then got examined three witnesses in course of enquiry under section 202 Cr. P. C. Only two out of four witnesses named in the complaint were examined whereas the third witness examined was not named in complaint.