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Synopsis

The Supreme Court has expressed surprise over an order by a Chief Judicial Magistrate, which allowed a protest petition against its own order, saying it is not permissible under the law.

A bench of Justices Abhay S Oka and Pankaj Mithal quashed and set aside the Chief Judicial Magistrate's order as well as the High Court's order, which dismissed a plea for quashing the proceedings against the appellants.

The bench said, "We have perused the order dated April 9, 2009. The order was passed on the charge-sheet dated March 31, 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 Chief Judicial Magistrate and he proceeded to pass the impugned order on 3rd November, 2009 taking cognisance against the present appellants. Such a course was not permissible as it was not open for the Chief Judicial Magistrate to entertain a protest petition against his earlier order of taking cognizance," the bench said.

"The order dated November 3, 2009, amounts to modification of the earlier order dated April 9, 2009, which was not permissible as there is no power conferred on the Judicial Magistrate to modify earlier order of taking cognizance," the bench added.

Appellant Ramakant Singh and others challenged the validity of March 20, 2023 order by a single bench of the Jharkhand High Court.

A First Information Report was registered on November 11, 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 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, the bench noted.

On January 3, 2005, a charge-sheet was filed against all four accused persons. 

On the basis of the order dated November 29,2006 passed by the Chief Judicial Magistrate, the Crime Investigation Department made reinvestigation and submitted a charge-sheet dated March 31, 2009. 

In the final report submitted by the CID, it was recorded that no material was found against the appellants. 

On April 9, 2009, the Chief Judicial Magistrate took cognisance on the basis of the charge-sheet filed by the CID on March 31, 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.

However, a protest petition was filed 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 November 3, 2009, taking cognisance only against one accused–Gupteshwar Singh. 

Thereafter, a further order was passed by the Chief Judicial Magistrate, taking cognisance against the present appellants. 

This was challenged before the High Court, which relied upon a decision of the Supreme Court in Nupur Talwar Vs CBI (2012).

The appellants contended that 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 Judicial Magistrate could take cognisance of the offence under clause (b) of sub-Section (1) of the Section 190 of the CrPC. 

Their counsel submitted that a protest petition can be entertained complaining about the report filed by the Investigating Agency. But there was no question of entertaining a protest petition against the order passed by the Chief Judicial Magistrate on April 9, 2009 of taking cognisance.

The bench allowed the appeal, stating by referring to the decision of the Supreme Court in the case of Nupur Talwar, that 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 cognisance," the bench said.

The bench, however, explained that its judgment will not prevent the court from proceeding in accordance with law at a later stage. 

"We clarify that the order dated April 9, 2009 of the Chief Judicial Magistrate taking cognisance 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," the bench said.

Case Title: Ramakant Singh & Ors Vs State of Jharkhand & Anr