Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
2023 INSC 1002
CRIMINAL APPEAL NO(S). 3484 OF 2023
(ARISING OUT OF S.L.P. (CRIMINAL) NO(S).9228/2023)
RAMAKANT SINGH & ORS. APPELLANT(S)
VERSUS
THE STATE OF JHARKHAND & ANR. RESPONDENT(S)
J U D G M E N T
ABHAY S. OKA, J.
Notice has been served to the respondent no.2 as recorded in
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the Office Report dated 25 September, 2023.
Leave granted.
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The appellant has impugned the judgment dated 20 March, 2023
passed by the learned Single Judge of the High Court on a petition
under Section 482 of the Code of Criminal Procedure, 1973 (for
short, “CrPC).
Few facts are required to be set out for the purposes of
understanding the controversy. A First Information Report
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(for short, “FIR”) was registered on 11 November, 2003, at the
instance of one Dhananjay Singh (since deceased) for the offences
punishable under Sections 326, 307 read with Sections 34 and 302 of
the Indian Penal Code, 1860 (for short, “IPC”) and Section 27 of
the Arms Act, 1959. The allegation in the FIR was mainly directed
Signature Not Verified
against one Gupteshwar Singh and the allegation against the
Digitally signed by
Anita Malhotra
Date: 2023.11.11
12:40:38 IST
Reason:
appellants was that they were present at the scene of crime.
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On 3 January, 2005, a charge-sheet was filed against all four
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accused persons. On the basis of the order dated 29 November,
2006 passed by the learned Chief Judicial Magistrate, the Crime
Investigation Department (for short, “CID”) made reinvestigation
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and submitted a charge-sheet dated 31 March, 2009. In the final
report submitted by the CID, it was recorded that no material was
found against the appellants.
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On 9 April, 2009, the learned Chief Judicial Magistrate took
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cognizance on the basis of the charge-sheet filed by the CID on 31
March, 2009 against accused-Gupteshwar Singh for the offences
punishable under Section 302 read with Section 34 of the IPC and
Section 27 of the Arms Act.
The second respondent’s father purported to file a protest
petition by making an allegation that the CID acted in collusion
with the present appellants. The protest petition was for raising
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an objection to the order dated 3 November, 2009, taking
cognizance only against one accused–Gupteshwar Singh. Thereafter,
a further order was passed by the learned Chief Judicial Magistrate
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on 3 November, 2009 taking cognizance against the present
appellants. This is the order which was subjected to a challenge
before the High Court.
The High Court relied upon a decision of this Court in the
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case of Nupur Talwar vs. CBI and Anr. and rejected the petition
for quashing filed by the appellant.
The learned counsel appearing for the appellants submitted
that the issue which arose in the case of Nupur Talwar (supra) was
1 (2012) 2 SCC 188
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completely different. The issue was whether after receiving a
final charge-sheet recording that no case was made out of
commission of offence against the accused, the learned Judicial
Magistrate can take cognizance of the offence under clause (b) of
sub-Section (1) of the Section 190 of the CrPC. She submitted that
a protest petition can be entertained complaining about the report
filed by the Investigating Agency. But there is no question of
entertaining a protest petition against the order passed by the
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learned Chief Judicial Magistrate on 9 April, 2009 of taking
cognizance.
We have also heard the learned counsel appearing for the
State.
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We have perused the order dated 9 April, 2009. The order was
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passed on the charge-sheet dated 31 March, 2009 filed by the CID.
The order takes cognizance only as against Gupteshwar Singh.
Surprisingly, a protest petition against the said order was
entertained by the learned Chief Judicial Magistrate and he
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proceeded to pass the impugned order on 3 November, 2009 taking
cognizance against the present appellants. Such a course was not
permissible as it was not open for the learned Chief Judicial
Magistrate to entertain a protest petition against his earlier
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order of taking cognizance. The order dated 3 November, 2009,
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amounts to modification of the earlier order dated 9 April, 2009,
which was not permissible as there is no power conferred on the
learned Judicial Magistrate to modify earlier order of taking
cognizance.
These legal aspects have been clearly overlooked by the High
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Court. By referring to the decision of this Court in the case of
Nupur Talwar (supra), the High Court observed that it is well-
settled that once protest petition is filed, depending upon the
facts of the case, the Court can proceed on the basis of that
protest petition and follow the procedure prescribed under Sections
200 and 202 of the CrPC. In this case, the Court was dealing with
a completely different case where protest petition was filed
against an order taking cognizance.
Therefore, the Appeal succeeds. The impugned order dated
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20 March, 2023 of the High Court is set aside and the impugned
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order dated 3 November, 2009 passed by the learned Chief Judicial
Magistrate is hereby quashed and set aside.
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We clarify that the order dated 9 April, 2009 of the learned
Chief Judicial Magistrate taking cognizance against Gupteshwar
Singh is maintained. We also make it clear that we have made no
adjudication on the question of involvement of the present
appellants in the crime in question. This judgment will not
prevent the Court from proceeding in accordance with law at a later
stage.
Subject to what is observed above, the Appeal is allowed.
..........................J.
(ABHAY S.OKA)
..........................J.
(PANKAJ MITHAL)
NEW DELHI;
November 07, 2023.
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