Ramakant Singh vs The State Of Jharkhand

IN THE SUPREME COURT OF INDIA 2023 INSC 1002 CRIMINAL APPELLATE JURISDICTION

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

the Office Report dated 25th September, 2023.

Leave granted.

The appellant has impugned the judgment dated 20th 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

(for short, “FIR”) was registered on 11 th 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 Digitally signed by Anita Malhotra Date: 2023.11.11 one Gupteshwar Singh and the allegation against the 12:40:38 IST Reason:

appellants was that they were present at the scene of crime.

1 On 3rd January, 2005, a charge-sheet was filed against all four

accused persons. On the basis of the order dated 29th November,

2006 passed by the learned Chief Judicial Magistrate, the Crime

Investigation Department (for short, “CID”) made reinvestigation

and submitted a charge-sheet dated 31st March, 2009. In the final

report submitted by the CID, it was recorded that no material was

found against the appellants.

On 9th April, 2009, the learned Chief Judicial Magistrate took

cognizance on the basis of the charge-sheet filed by the CID on 31 st

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

an objection to the order dated 3 rd November, 2009, taking

cognizance only against one accused–Gupteshwar Singh. Thereafter,

a further order was passed by the learned Chief Judicial Magistrate

on 3rd 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

case of Nupur Talwar vs. CBI and Anr.1 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

2 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

learned Chief Judicial Magistrate on 9 th April, 2009 of taking

cognizance.

We have also heard the learned counsel appearing for the

State.

We have perused the order dated 9th April, 2009. The order was

passed on the charge-sheet dated 31 st 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

proceeded to pass the impugned order on 3 rd 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

order of taking cognizance. The order dated 3 rd November, 2009,

amounts to modification of the earlier order dated 9 th 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

3 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

20th March, 2023 of the High Court is set aside and the impugned

order dated 3rd November, 2009 passed by the learned Chief Judicial

Magistrate is hereby quashed and set aside.

We clarify that the order dated 9th 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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