Jharkhand High Court
Anand Shankar vs The State Of Jharkhand on 21 October, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.1352 of 2017
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Anand Shankar, Son of Late Jyotin Prakash, Residents of Nawatoli,
P.O.-Daltonganj, P.S.-Sadar (Town), District-Palamau.
... Petitioner
Versus
1. The State of Jharkhand,
2. C.K. Mishra S/o B.K. Mishra R/o Awadganj, Daltonganj, P.O. &
P.S.-Daltonganj, District-Palamau.
... Opposite Parties
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For the Petitioners : Mr. Prabhat Kr. Sinha, Advocate
: Mr. Diwakar Jha, Advocate
For the State : Mr. Rajesh Kumar, Addl.P.P.
For the O.P. No.2 : Mr. Jitendra S. Singh, Advocate
: Mr. Randhir Kumar, Advocate
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PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
By the Court:- Heard the parties.
2. This Criminal Miscellaneous Petition has been filed invoking the
jurisdiction of this Court under Section 482 of the Code of Criminal Procedure
with a prayer to quash and set aside the entire criminal proceeding including
the order taking cognizance dated 21.10.2014 passed in Sadar (Town) P.S. Case
No.359/2011 corresponding to G.R. Case No.1609/2011 by the learned Chief
Judicial Magistrate, Palamau whereby and where under the learned Chief
Judicial Magistrate, Palamau observed that prima facie case is made out against
the petitioner for having committed the offences punishable under Section
341/323/379/504 of Indian Penal Code and cognizance has been taken against
the petitioner accordingly.
3. The brief fact of the case is that the petitioner is an accused of Sadar
(Town) P.S. Case No.359 of 2011, the case was investigated by police and the
police submitted Final Report on 12.12.2012. The same was seen by the learned
Chief Judicial Magistrate, Palamau and notice was issued to the informant. On
21.12.2013, a petition along with a power has been filed on behalf of the
informant for accepting the Final Form and the same was kept in the record.
On 10.07.2014, another petition along with power was filed on behalf of the
informant. On 21.10.2014, the informant appeared before the Court and pressed
the Protest Petition dated 10.07.2024, but the learned Chief Judicial Magistrate,
Palamau without following the procedure under Section 200 & 202 of the Code
of Criminal Procedure and without examining the complainant and the inquiry
witnesses, has taken the cognizance of the offences, as already indicated.
4. Learned counsel for the petitioner relying upon the judgment of the
Hon'ble Supreme Court of India in the case of Bhagwant Singh vs.
Commissioner of Police & Anr. reported in (1985) 2 SCC 537 submitted that if
the police report submitted under Section 173 of Code of Criminal Procedure
state that in the opinion of the police no offence appears to have been
committed, the Magistrate has the option to adopt one of the three courses (1)
he may accept the report and drop the proceeding or (2) he may disagree with
the report and taking the view that there is sufficient ground for proceeding
further, take cognizance of the offence and issue process or (3) he may direct
further investigation to be made by the police under Section 156 (3) Cr.P.C. but
in case if the learned Magistrate decides that there is no sufficient ground for
proceeding further and to drop the proceeding; then in such case only, the
informant must be given an opportunity of being heard so he can make his
submission to persuade the learned Magistrate to take cognizance of the
offence and issue process. It is next submitted that in this case the fact that the
learned Chief Judicial Magistrate, Palamau has issued the notice to the
informant, goes to show that the learned Chief Judicial Magistrate, Palamau
has made up his mind to accept the report and drop the further proceeding but
even though a protest petition was filed on 10.07.2014, as has been mentioned
in the order dated 21.10.2014 but without following the procedure prescribed
under Section 200 and 202 of Code of Criminal Procedure, the learned Chief
Judicial Magistrate, Palamau has taken cognizance; hence, such cognizance
order is not sustainable in law.
5. Relying upon paragraph no.42 of the judgment of Hon'ble Supreme
Court of India in the case of Vishnu Kumar Tiwari vs. State of Uttar Pradesh
through Secretary Home, Civil Secretariat, Lucknow & Anr. reported in
(2019) 8 SCC 27 which reads 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, we
cannot support the decision of the High Court." (Emphasis supplied)
It is submitted by the learned counsel appearing for the petitioner that the
impugned order passed by the learned Chief Judicial Magistrate, Palamau is
not in consonance with the settled principle of law. Hence, it is submitted that
the entire criminal proceeding including the order taking cognizance dated
21.10.2014 passed in Sadar (Town) P.S. Case No.359/2011 corresponding to
G.R. Case No.1609/2011 by the learned Chief Judicial Magistrate, Palamau
being not sustainable in law be quashed and set aside.
6. Learned Addl.P.P. appearing for the State and the learned counsel for the
opposite party No.2 on the other hand vehemently oppose the prayer of the
petitioner made in the instant Cr.M.P and submit that it is not necessary that a
protest petition if filed has to be treated as a complaint and the Magistrate may
not treat the same as a complaint. Hence, it is submitted that as there is no
illegality in the impugned order passed by the learned Chief Judicial
Magistrate, Palamau, therefore, this criminal miscellaneous petition being
without any merit be dismissed.
7. Having heard the submissions made at the Bar and after going through
the materials in the record, it is pertinent to mention here that as has rightly
been submitted by the learned counsel appearing for the petitioner that the
very fact that the learned Chief Judicial Magistrate, Palamau has issued notice
to the informant upon receipt of the Final Report; the same goes to show that
he made up his mind to accept the report and drop the proceeding or else there
was no necessity of issuing the notice to the informant. The undisputed fact
remains that protest petition has been filed; as is evident from the order dated
21.10.2014 itself. So, this Court has no hesitation in holding that the learned
Chief Judicial Magistrate, Palamau ought to have treated the protest petition as
a complaint and have followed the procedure envisaged under Section 200 and
202 of Code of Criminal Procedure and ought to have examined the complaint
and the inquiry witnesses but without following the same the learned Chief
Judicial Magistrate, Palamau having passed the order of cognizance; by the
impugned order, the learned Chief Judicial Magistrate, Palamau has committed
a grave illegality.
8. Under such circumstances, the entire criminal proceeding including the
order taking cognizance dated 21.10.2014 passed in Sadar (Town) P.S. Case
No.359/2011 corresponding to G.R. Case No.1609/2011 by the learned Chief
Judicial Magistrate, Palamau, being not sustainable in law and the same is
liable to be quashed and set aside. The learned Chief Judicial Magistrate,
Palamau, may pass fresh order after following the procedure under Section 200
& 202 of the Code of Criminal Procedure.
9. Accordingly, the entire criminal proceeding including the order taking
cognizance dated 21.10.2014 passed in Sadar (Town) P.S. Case No.359/2011
corresponding to G.R. Case No.1609/2011 by the learned Chief Judicial
Magistrate, Palamau, is quashed and set aside.
10. In the result, this Cr.M.P., stands allowed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated the 21st of October, 2024
AFR/ Abhiraj
