Kishore K. Mandal, J.:— Heard counsel for the petitioner and the State.
Petitioner is the son of the informant. It is stated that during the pendency of this application, the informant died and, as such, the petitioner being his son, is prosecuting the present proceeding.
An FIR was lodged on 24.05.2003 against five accused persons alleging therein that they had committed murder of the son of the informant (since deceased) by administering poison. During the pendency of investigation, the informant (since deceased), filed a protest-cum-complaint petition on 7.6.2003 which was on record. It appears that the Investigating Officer, on conclusion of investigation, submitted a final report on 31.05.2008 whereby only one accused was sent up for trial. Rest of the accuseds were not sent up for trial. Learned Magistrate by the impugned order has accepted the said report and rejected the protest petition filed by the informant (since deceased).
While assailing the order, it is submitted that once a protest petition has been filed by the informant, the court is obliged to dispose of the same in accordance with the procedures laid down in the Code of Criminal Procedure (hereinafter referred to as the ‘Code’) treating the said protest petition as complaint. Reliance in this regard has been placed on judgment of this Court rendered in the case of Barister Rao… v. The State Of Bihar & Ors.…Opp. Parties. since reported in 2010 (2) PLJR 18 (paragraph 8). It is submitted that court below has committed a manifest error in rejecting the protest-cum-complaint petition filed on behalf of the informant (since deceased) without making enquiry in terms of the provision of the Code.
Learned APP in view of the ratio laid down by Hon'ble the Supreme Court as has been taken note of in the case of Barister Rao (supra), submits that the matter requires re-consideration by the court below in accordance with law treating the protest-cum-complaint petition which was already on record as complaint petition.
Having considered the submissions advanced on behalf of the parties, this Court is satisfied that learned court below has committed an error in outrightly rejecting the protest-cum-complaint petition filed by the informant well before submission of final report/charge-sheet.
Accordingly, the impugned order dated 4.03.2009, passed by learned ACJM, Patna City in Chowk P.S Case No. 96 of 2003 (G.R No. 661 of 2003) is quashed and set aside. The matter goes on remand to the court below for proceeding in accordance with law treating the protest-cum-complaint petition already on record as the complaint. Petitioner being the son of the informant and brother of the victim shall be permitted to pursue the said complaint.