Jharkhand High Court
Ramakant Singh vs The State Of Jharkhand on 20 March, 2023
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1518 of 2009
1. Ramakant Singh
2. Suresh Singh .... ...Petitioners
Versus
1.The State of Jharkhand
2.Janardan Singh ..... ...Opp. Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners: Mr. Anil Kumar Sinha, Sr. Advocate For the State : Mr. Sunil Kumar Dubey, Advocate For the O.P. No.2 : Mr. Kaushik Sarkhel, Advocate 10/ Dated:-20.03.2023 Heard Mr. Anil Kumar Sinha, learned senior counsel for petitioners, Mr. Sunil Kumar Dubey, learned counsel for the State and Mr. Kaushik Sarkhel, learned counsel for the O.P. No. 2.
2. This petition has been filed for quashing of order taking cognizance dated 03.11.2009, passed in Bishrampur P.S. Case No. 80 of 2003, corresponding to G.R. Case No. 1500 of 2003, by the learned Chief Judicial Magistrate, Daltonganj whereby cognizance has been taken under sections 302/34 of the I.P.C. and under section 27 of the Arms Act, pending in the Court of learned Chief Judicial Magistrate, Daltonganj, Palamau.
3. On the basis of fardbeyan of deceased-Dhananjay Singh F.I.R. has been lodged alleging therein that on 10.11.2003 at about 7.30 P.M. the informant along with other co villagers Narmdeshwar Singh, Keshaw Singh, Jasbir Singh, Ramjee Singh, Sanjay Kumar Singh were sitting upon the culvert near Mango tree of the village and they were talking. Thereafter all other co-villagers were gone to their house at about 8 P.M. and only the informant Dhananjay Singh and Sanjay Singh were left there in course of 2 going of their house. At the same time four persons of the same village namely, Ramakant Singh, Suresh Singh both sons of Ramswarup Singh, Rajkamal Singh, son of Ramakant Singh and one Gupteshwar Singh, son of late Ramsharik Singh came from the nearby bushes and asked who are you. Then the informant replied and accordingly, Ramakaant Singh ordered for firing then Gupteshwar Singh fired upon the informant and accordingly, he sustained bullet injury on his left hand and accordingly he fell down. Thereafter, Suresh Singh said to Rajkamal Singh to fire but no injury received by the informant or Sanjay Singh. Thereafter Sanjay Singh had raised alarm and thereafter the other villagers came there and thereafter one commander jeep was arranged from the village and thereafter proceeded to Sadar Hospital at Daltonganj.
It was further alleged that Ramakant Singh ordered Gupteshwar Singh to fire upon Dhananjay Singh accordingly, he sustained got shot injury on his left hand and Suresh Singh ordered Rajkamal Singh to fire upon but the same was not hit any one, with an intention to kill him.
On the basis of above statement, the F.I.R. was registered under sections 326, 307 & 34 of the I.P.C. and later on section 302 I.P.C. was added.
4. Mr. Anil Kumar Sinha, learned counsel for the petitioners submits that initially the police has investigated this case and final form has bene submitted in which the accused persons were chargesheeted inclouding the petitioners. He further submits that C.I.D. has taken over the matter and thereafter had investigated the case. He further submits that C.I.D. has filed petition before the learned court which was considered vide order dated 29.11.2006 3 and pursuant to that the learned court has granted permission to re-investigate the matter by the C.I.D. He further submits that C.I.D. has submitted final form wherein the petitioners have not been sent up for trial however, against one Gupteshwar Singh final form is there and accordingly, the learned court has been pleased to take cognizance by order dated 09.04.2009. He further submits that in that order it has been recorded that rest of the accused persons have not been sent up for trial. He further submits that thereafter protest petition was filed by the father of the informant and pursuant to that the petitioners have been called by the learned court by order 03.11.2009. He submits that this is in violation of mandatory provision of section 200 and 202 of Cr.P.C. He further submits that once the protest petition is filed it is required to be treated as complaint and the cognizance based on that protest petition must be in terms of section 200 and 202 Cr.P.C. To buttress his argument he relied in the case of "Vishnu Kumar Tiwari V. State of Uttar Pradesh through Secretary, Home Civil Secretariat Lucknow and Another, (2019) 8 SCC 27 wherein para 42, 43 and 44 the Hon'ble Supreme Court has held as under:-
"42. In the facts of this case, having regard to the nature of the allegations contained in the protest petition and the annexures which essentially consisted of affidavits, if the Magistrate was convinced on the basis of the consideration of the final report, the statements under Section 161 of the Code that no prima facie case is made out, certainly the Magistrate could not be compelled to take cognizance by treating the protest petition as a complaint. The fact that he may have jurisdiction in a case to treat the protest petition as a complaint, is a different matter. Undoubtedly, if he treats the protest petition as a complaint, he would have to follow the procedure prescribed under Sections 200 and 202 of the Code if the latter section also commends itself to the Magistrate. In other words, necessarily, the complainant and his witnesses would have to be examined. No doubt, depending upon the material which is made available to a Magistrate by the complainant in the protest petition, it may be capable of being relied on in a particular case having regard to its inherent nature and impact on the conclusions in the final report. That is, if the material is such that it persuades the court to disagree with the conclusions arrived at by the investigating officer, cognizance could be taken under Section 190(1)(b) of the Code for which there is no necessity to examine the witnesses under Section 200 of the Code. But as the Magistrate could not be compelled to treat the protest petition as a complaint, the remedy of the complainant would be to file a fresh complaint and invite the Magistrate to follow the procedure under Section 200 of the Code or Section 200 read with Section 202 of the Code. Therefore, we are of the view that in the facts of this case, 4 we cannot support the decision of the High Court.
43. It is true that law mandates notice to the informant/complainant where the Magistrate contemplates accepting the final report. On receipt of notice, the informant may address the court ventilating his objections to the final report. This he usually does in the form of the protest petition. In Mahabir Prasad Agarwala v. State [Mahabir Prasad Agarwala v. State, 1957 SCC OnLine Ori 5 : AIR 1958 Ori 11] , a learned Judge of the High Court of Orissa, took the view that a protest petition is in the nature of a complaint and should be examined in accordance with the provisions of Chapter XVI of the Criminal Procedure Code. We, however, also noticed that in Qasim v. State [Qasim v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] , a learned Single Judge of the High Court of Judicature at Allahabad, inter alia, held as follows: (Qasim case [Qasim v. State, 1984 SCC OnLine All 260 : 1984 Cri LJ 1677] , SCC OnLine All para 6) "6. ... In Abhinandan Jha [Abhinandan Jha v. Dinesh Mishra, AIR 1968 SC 117 : 1968 Cri LJ 97 : (1967) 3 SCR 668] also what was observed was "it is not very clear as to whether the Magistrate has chosen to treat the protest petition as complaint". This observation would not mean that every protest petition must necessarily be treated as a complaint whether it satisfies the conditions of the complaint or not. A private complaint is to contain a complete list of witnesses to be examined. A further examination of complainant is made under Section 200 CrPC. If the Magistrate did not treat the protest petition as a complaint, the protest petition not satisfying all the conditions of the complaint to his mind, it would not mean that the case has become a complaint case. In fact, in majority of cases when a final report is submitted, the Magistrate has to simply consider whether on the materials in the case diary no case is made out as to accept the final report or whether case diary discloses a prima facie case as to take cognizance. The protest petition in such situation simply serves the purpose of drawing Magistrate's attention to the materials in the case diary and invite a careful scrutiny and exercise of the mind by the Magistrate so it cannot be held that simply because there is a protest petition the case is to become a complaint case."
(emphasis supplied)
44. We may also notice that in Veerappa v. Bhimareddappa [Veerappa v. Bhimareddappa, 2001 SCC OnLine Kar 447 : 2002 Cri LJ 2150] , the High Court of Karnataka observed as follows: (SCC OnLine Kar para 9) "9. From the above, the position that emerges is this: Where initially the complainant has not filed any complaint before the Magistrate under Section 200 CrPC, but, has approached the police only and where the police after investigation have filed the 'B' report, if the complainant wants to protest, he is thereby inviting the Magistrate to take cognizance under Section 190(1)(a) CrPC on a complaint. If it were to be so, the protest petition that he files shall have to satisfy the requirements of a complaint as defined in Section 2(d) CrPC, and that should contain facts that constitute offence, for which, the learned Magistrate is taking cognizance under Section 190(1)(a) CrPC. Instead, if it is to be simply styled as a protest petition without containing all those necessary particulars that a normal complaint has to contain, then, it cannot be construed as a complaint for the purpose of proceeding under Section 200 CrPC."
5. Relying on the aforesaid judgment, he submits that there is violation of section 200 and 202 of the Cr.P.C. as on protest petition cognizance has been taken which is not in accordance with law.
6. He further submits that the petitioners have unnecessarily been called by the learned court. He further submits that what are the prima facie materials recorded in the case is not disclosed in the order taking cognizance but the petitioners have been called upon. He submits that reasons are required to be stated in the order 5 taking cognizance when a final form is submitted and the learned court is proceeding in the matter. To buttress his argument, he relied in the case of "Nooman Ansari & Others V The State of Jharkhand" 2023 1 JLIR 158 wherein para 7 and 8 it has been held as under:-
"7. In view of the above facts and submissions of the learned counsel for the parties, the Court has gone through the materials on the record and 4 Cr.M.P. No. 764 of 2017 finds that admittedly, the FIR was lodged, which was investigated by the police and final form has been submitted and the petitioners have not been sent up for trial. The learned court has taken cognizance and observation has been noted by the learned court by considering whether the cognizance is to be taken or not, however the learned court has taken cognizance. In the impugned order, it has come that there is personal grudge between the parties and even dead persons have been made accused. Moreover, once the final form is submitted and if the learned court is differing with the final form, some reason is required to be disclosed that why final form is not being accepted. What new material has come in the protest petition, that has not been disclosed in the order taking cognizance. 8. In view of the above facts, reasons and analysis, the entire criminal proceedings including the order dated 04.01.2017 passed in Protest Complaint No.724/2016 in connection with G.R. Case No.3551/2015 arising out of Ormanjhi P.S. Case No.107/2015, pending in the court of the learned Judicial Magistrate, Ranchi is, hereby, quashed."
7. On these grounds he submits that order taking cognizance is bad in law and the same may be set aside.
8. On the other hand, Mr. Kaushik Sarkhel, learned counsel for the O.P. No. 2 submits that order taking cognizance is in accordance with law and there is no illegality. He further submits that the police has already investigated the matter wherein chargesheet has been submitted against these petitioners also. He submits that however, the C.I.D. came in picture and on the petition filed by the C.I.D., learned court has allowed the said petition to re- investigate the issue and C.I.D. re-investigated the issue and inspite of the material on record C.I.D. has not submitted final form against the petitioners which itself suggests that there was some manipulation in submitting final form. He further submits that learned court has not taken cognizance on protest petition he has only applied independent mind under section 190(1)(b) of CPC and took cognizance. He submits that once final form is submitted the 6 learned court is competent to differ with the final form and take cognizance. On these background he submits that identical was the situation in the case of Nupur Talwar v. CBI, (2012) 2 SCC 188 wherein para 16 and 17 the Hon'ble Supreme Court has held as under:-
" 16. Section 190 of the Code lays down the conditions which are requisite for the initiation of a criminal proceeding. At this stage the Magistrate is required to exercise sound judicial discretion and apply his mind to the facts and materials before him. In doing so, the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion irrespective of the views expressed by the police in its report and may prima facie find out whether an offence has been made out or not.
17. The taking of cognizance means the point in time when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence which appears to have been committed. At the stage of taking of cognizance of offence, the court has only to see whether prima facie there are reasons for issuing the process and whether the ingredients of the offence are there on record."
9. Relying on the said judgment, Mr. Sarkhel, submits that once the learned court has taken cognizance under section 190(1)
(b) of Cr.P.C. there is no question of section 200 and 202. He submits that had it been case that cognizance was taken on the protest petition in that situation the matter would be otherwise however, in the case in hand there is no illegality and the learned court has rightly taken cognizance. On these grounds he submits that the criminal miscellaneous petition is fit to be dismissed.
10. In view of above submission of the learned counsel for the parties, the court has gone through the materials on record and finds that admittedly on the fardbeyan of the decease case was registered. The deceased has taken the name of the petitioners including one Gupteshwar Singh. The police submitted chargesheet in which the petitioners were also sent up for trial however all of a sudden a petition was filed by the C.I.D. which was allowed by the learned court for re-investigation of the case and thereafter C.I.D. re-investigated the matter and submitted chargesheet whereby 7 these petitioners have not been sent up for trial and the learned court has taken cognizance against Gupteshwar Singh by order dated 09.04.2009. Looking into that order, it learned court has not accepted the final form and has only recorded that cognizance has been taken and rest of accused was not sent up for trial. It is well settled that once final form is submitted notices are issued to the informant. Admittedly petition was filed on behalf of the father of the informant who died later on pursuant to the crime. The Court gone the order dated 03.11.2009 and finds that the learned court has only recorded that petition has been learned count through filed on behalf of the father of the informant however, the learned court has applied his independent mind and has taken note of the relevant materials which has come in the case diary. In that order learned court has recorded that final form has not been accepted by the court in view of that he has proceeded to examine the contention of the parties. Admittedly, the deceased was the informant who died later on and he has taken the name of the these petitioners pursuant to that police has submitted chargesheet against the petitioners. The C.I.D. has come suo motu in the matter and filed a petition for re-investigation and the learned court has allowed the petition only for re-investigation, these petitioners have not been sent up for trial. It appears that in the case diary the name of these petitioners have appeared which has been taken note by the learned trial court in order dated 03.11.2009 and thereafter he has summoned the petitioners and issued warrant of arrest. Looking into that order, it transpires that the learned court has not taken the cognizance only on the protest petition, he has applied his independent mind channel of orders suggests that it was 8 not on the protest petition and that is why section 200 and 202 Cr.P.C.f is not coming into picture. It is well settled that in the case the final form is submitted the learned court is having four options:-
(1) He may agree with the conclusion of the police and accept the final report and drop the proceeding.
(2) He may take cognizance under Section 190(1)(b) CrPC and issue process straightaway to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed.
(3) He may order for further investigation if he is satisfied that the investigation was made in a perfunctory manner.
(4) He may without issuing process and dropping the proceedings under Section 190(1)(a) CrPC upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 CrPC and thereafter whether complaint should be dismissed or process should be issued.
11. Looking into that order which is impugned in this case, learned court has not chosen option no. 4 and he has chosen option no. 2 which is within the jurisdiction of the learned court. Identical was the situation in Nupur Talwar (supra). The judgments relied by Mr. Sinha, learned senior counsel for the petitioners are not in dispute. It is well settled that once protest is filed and if the learned court proceeds on the basis of that complaint petition the procedure of sections 200 and 202 of Cr.P.C. is required to be followed which is not the case in hand. Identical 9 was the situation in the case of Nooman Ansari (supra) and the fact of that case is different and that judgment is not helping the petitioners.
12. In view of above facts, reasons and analysis, no interference is required by this Court. Accordingly, this petition is dismissed. Pending, I.A., if any stands disposed of.
(Sanjay Kumar Dwivedi, J.) Satyarthi/-