1. FIR for murder and arms act offences — CID report finding no material against some accused — CJM taking cognizance against one accused — Protest petition filed against said order. (Para 4 , 5 , 6 , 7 )
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2023 Supreme(SC) 1134
SUPREME COURT OF INDIA
ABHAY S. OKA, PANKAJ MITHAL, JJ.
Ramakant Singh and Others – Appellants
Versus
The State of Jharkhand and Another – Respondents
Criminal Appeal No. 3484 of 2023, S.L.P. (Criminal) No. 9228 of 2023
Decided On : 07-11-2023
Important Points
IMPORTANT POINT
Chief Judicial Magistrate cannot entertain a protest petition against his earlier order of taking cognizance – There is no power conferred on Judicial Magistrate to modify earlier order of taking cognizance.
Chief Judicial Magistrate cannot entertain a protest petition against his earlier order of taking cognizance – There is no power conferred on Judicial Magistrate to modify earlier order of taking cognizance.
Subject
Criminal Law - Cognizance of Offences
Act Referred
Headnote
Criminal Procedure Code, 1973 – Sections 190 and 482 – Indian Penal Code, 1860 – Sections 326, 307 read with Sections 34 and 302 and Section 27 of Arms Act, 1959 – Murder, attempt to murder and grievous hurt – Common intention – Cognizance of offences – It was not open for Chief Judicial Magistrate to entertain a protest petition against his earlier order of taking cognizance – There is no power conferred on Judicial Magistrate to modify earlier order of taking cognizance – Impugned order of High Court set aside and order of Chief Judicial Magistrate taking cognizance against accused maintained. (Paras 10, 12 and 13)
Facts of the case:
Appellant has impugned judgment dated 20th March, 2023 passed by Single Judge of High Court on a petition under Section 482 of Code of Criminal Procedure, 1973. First Information Report was registered for offences punishable under Sections 326, 307 read with Sections 34 and 302 of
Indian Penal Code, 1860 and Section 27 of Arms Act, 1959.
Findings of Court:
Impugned order dated 20th March, 2023 of the High Court is set aside and the impugned order dated 3rd November, 2009 passed by Chief Judicial Magistrate is hereby quashed and set aside.
Result : Appeal allowed.
Legal Category Hierarchy
Advocates appeared:
For the Petitioner(s): Ms. Mrigna Shekhar, Adv. Mr. Sunny Choudhary, AOR
For the Respondent(s): Mr. Vishnu Sharma, Adv. Ms. Madhusmita Bora, AOR Mr. Pawan Kishore Singh, Adv. Mr. Dipankar Singh, Adv. Mrs. Anupama Sharma, Adv. Mr. Amar Jyoti Sharma, Adv. Ms. Vedika Dalmia, Adv.
For the Petitioner(s): Ms. Mrigna Shekhar, Adv. Mr. Sunny Choudhary, AOR
For the Respondent(s): Mr. Vishnu Sharma, Adv. Ms. Madhusmita Bora, AOR Mr. Pawan Kishore Singh, Adv. Mr. Dipankar Singh, Adv. Mrs. Anupama Sharma, Adv. Mr. Amar Jyoti Sharma, Adv. Ms. Vedika Dalmia, Adv.
Table of Contents
2. Whether a protest petition can be entertained against an order of taking cognizance as opposed to a protest petition against an investigating agency's report. (Para 9 )
3. A Judicial Magistrate cannot entertain a protest petition against his own earlier order of taking cognizance as it amounts to an impermissible modification of that order. (Para 11 , 12 )
4. A Judicial Magistrate lacks the power to modify an earlier order of taking cognizance by entertaining a protest petition directed against that specific order. (Para 11 )
5. Appeal allowed — High Court order set aside — Order taking cognizance against appellants quashed. (Para 13 , 15 )
6. Can a Judicial Magistrate entertain a protest petition against an order of taking cognizance?
No. A Judicial Magistrate cannot entertain a protest petition against his own earlier order of taking cognizance, as such an action would amount to a modification of the order, and no power is conferred upon the Magistrate to modify an order of taking cognizance. (Para 11 )
7. What is the legal distinction between a protest petition against a police report and one against a cognizance order?
A protest petition against a report filed by an investigating agency is permissible, enabling the court to follow procedures under Sections 200 and 202 of the Cr.P.C. Conversely, a protest petition cannot be entertained against a Judicial Magistrate's order of taking cognizance. (Para 9 , 12 )
JUDGMENT :
ABHAY S. OKA, J.
1. Notice has been served to the respondent no. 2 as recorded in the Office Report dated 25th September, 2023.
2. Leave granted.
3. 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 “Cr.P.C.”).
4. 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 11th 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 against one Gupteshwar Singh and the allegation against the appellants was that they were present at the scene of crime.
5. 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.
6. On 9th April, 2009, the learned Chief Judicial Magistrate took cognizance on the basis of the charge-sheet filed by the CID on 31st 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.
7. 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 3rd 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.
8. The High Court relied upon a decision of this Court in the case of Nupur Talwar vs. CBI and Another, (2012) 2 SCC 188 and rejected the petition for quashing filed by the appellant.
9. The learned counsel appearing for the appellants submitted that the issue which arose in the case of Nupur Talwar (supra) was 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 Cr.P.C. 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 9th April, 2009 of taking cognizance.
10. We have also heard the learned counsel appearing for the State.
11. We have perused the order dated 9th April, 2009. The order was passed on the charge-sheet dated 31st 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 3rd 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 3rd November, 2009, amounts to modification of the earlier order dated 9th April, 2009, which was not permissible as there is no power conferred on the learned Judicial Magistrate to modify earlier order of taking cognizance.
12. These legal as
