SHIV SHANKAR SINGH Vs. STATE OF BIHAR
LAWS(SC)-2011-11-30
SUPREME COURT OF INDIA (FROM: PATNA)
Decided on
November 22,2011
SHIV SHANKAR SINGH
Appellant
VERSUS
STATE OF BIHAR
Respondents
Referred Judgements :-
PRAMATHA NATH TALUKDAR SURENDRA MOHAN BASU VS. SAROJ RANJAN SARKAR [REFERRED TO]BINDESHWARI PRASAD SINGH VS. KALI SINGH [REFERRED TO]
RAM LAL NARANG OM PRAKASH NARANG VS. STATE DELHI ADMINISTRATION :STATE DELHI ADMINISTRATION [REFERRED TO]
BHAGWANT SINGH VS. COMMISSIONER OF POLICE [REFERRED TO]
JATINDER SINGH VS. RANJIT KAUR [REFERRED TO]
SUDHIR VS. STATE OF MADHYA PRADESH [REFERRED TO]
T T ANTHONY VS. STATE OF KERALA [REFERRED TO]
MAHESH CHAND VS. B JANARDHAN REDDY [REFERRED TO]
UPKAR SINGH VS. VED PRAKASH [REFERRED TO]
POONAM CHAND JAIN VS. FAZRU [REFERRED TO]
RANVIR SINGH VS. STATE OF HARYANA [REFERRED TO]
BABUBHAI VS. STATE OF GUJARAT [REFERRED TO]
JAY KRISHNA CHAKRABORTY VS. STATE [REFERRED TO]
Cited Judgements :-
RANVEER SINGH VS. STATE OF RAJASTHAN [LAWS(RAJ)-2015-3-392] [REFERRED]JITENDRA CHAUDHURY VS. STATE OF TRIPURA [LAWS(TRIP)-2021-12-1] [REFERRED TO]
RAVINDER SINGH VS. SUKHBIR SINGH [LAWS(SC)-2013-1-27] [REFERRED TO]
SAMTA NAIDU VS. STATE OF MADHYA PRADESH [LAWS(SC)-2020-3-12] [REFERRED TO]
ALUM MOLLA @ ALAM MOLLA VS. STATE [LAWS(CAL)-2013-7-92] [REFERRED TO]
ZAKIR AHMED CHOUDHURY VS. STATE OF ASSAM [LAWS(GAU)-2014-5-20] [REFERRED TO]
JAKIR HUSSAIN KOSIGI VS. STATE OF ANDHRA PRADESH [LAWS(APH)-2017-7-75] [REFERRED TO]
A.S. PATEL AND ORS. VS. THE STATE OF KERALA AND ORS. [LAWS(KER)-2015-4-86] [REFERRED TO]
MANI M M VS. STATE OF KERALA [LAWS(KER)-2012-6-502] [REFERRED TO]
DILAR SINGH AND ORS VS. STATE OF J & K AND ORS [LAWS(J&K)-2016-11-8] [REFERRED TO]
ANJU CHAUDHARY VS. STATE OF U.P. [LAWS(SC)-2012-12-66] [REFERRED TO]
KALEWAR PRASAD RAI AND ORS. VS. THE STATE OF JHARKHAND AND ORS. [LAWS(JHAR)-2015-7-34] [REFERRED TO]
SUBRATA CHOUDHURY VS. STATE OF ASSAM [LAWS(GAU)-2021-1-11] [REFERRED TO]
B. N. MEENA VS. STATE OF KARNATAKA [LAWS(KAR)-2019-8-45] [REFERRED TO]
ABHAY KUMAR MISHRA VS. STATE [LAWS(DLH)-2013-12-42] [REFERRED TO]
V RAVI KUMAR VS. STATE DISTRICT CRIME BRANCH [LAWS(SC)-2018-12-80] [REFERRED TO]
OM PARKASH AND ORS. VS. RAVI AND ORS. [LAWS(P&H)-2015-5-57] [REFERRED TO]
ARVIND VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2014-8-64] [REFERRED TO]
EASTERN INSTITUTE FOR INTEGRATED LEARNING VS. STATE OF SIKKIM [LAWS(SIK)-2013-6-4] [REFERRED TO]
GOLDY RAJIV SANTHOJI VS. STATE OF UTTARAKHAND [LAWS(UTN)-2021-5-17] [REFERRED TO]
YANAB SHEIKH VS. STATE OF WEST BENGAL [LAWS(SC)-2012-12-87] [REFERRED TO]
KUSHAMI DEVI AND ORS. VS. THE STATE OF BIHAR AND ORS. [LAWS(PAT)-2015-8-17] [REFERRED TO]
AKBARUDDIN OWAISI VS. GOVERNMENT OF ANDHRA PRADESH AND ORS [LAWS(APH)-2013-7-163] [REFERRED]
MOUSUMI MAHANTA VS. STATE OF ASSAM [LAWS(GAU)-2022-9-97] [REFERRED TO]
SUDHIR DASGUPTA VS. STATE OF ASSAM [LAWS(GAU)-2013-3-4] [REFERRED TO]
KUMMARI LAKSHMAIAH (ANGADI) AND OTHERS VS. STATE OF ANDHRA PRADESH AND ANOTHER [LAWS(APH)-2015-12-65] [REFERRED TO]
MOHAMMED ALAMGEER SON OF MUHAMMED IBRAHIM VS. STATE OF JHARKHAND [LAWS(JHAR)-2015-2-94] [REFERRED TO]
SHAMBU DAYAL VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2019-1-223] [REFERRED TO]
UDAI SHANKAR AWASTHI VS. STATE OF U.P. [LAWS(SC)-2013-1-21] [REFERRED TO]
JOGINDER KAPOOR VS. STATE OF HARYANA [LAWS(P&H)-2020-1-157] [REFERRED TO]
B.R.K. AATHITHAN VS. SUN GROUP [LAWS(SC)-2022-11-96] [REFERRED TO]
AJAY KUMAR CHOUDHARY SON OF LATE RAJENDRA PRASAD CHOUDHARY VS. STATE OF BIHAR [LAWS(PAT)-2015-3-128] [REFERRED TO]
ANUNG WELLY VS. STATE OF ARUNACHAL PRADESH [LAWS(GAU)-2012-8-63] [REFERRED TO]
MR. MAHENDRA R. DHOLAKIA VS. STATE OF MAHARASHTRA [LAWS(BOM)-2021-4-15] [REFERRED TO]
OM PRAKASH ANAND VS. STATE OF JHARKHAND [LAWS(JHAR)-2023-2-146] [REFERRED TO]
KANUBHAI VIRJIBHAI VS. STATE OF GUJARAT [LAWS(GJH)-2013-9-72] [REFERRED TO]
S. KARUNAKARAN VS. STATE AND ORS. [LAWS(MAD)-2016-1-115] [REFERRED TO]
RADHAKANT LAL DAS VS. STATE OF BIHAR [LAWS(PAT)-2012-2-232] [REFERRED]
PRAMOD KUMAR AGARWAL AND ORS. VS. STATE OF ORISSA AND ORS. [LAWS(ORI)-2013-11-13] [REFERRED TO]
JAKKA VINOD KUMAR REDDY VS. STATE OF TELANGANA [LAWS(TLNG)-2021-6-13] [REFERRED TO]
B.V. Acharya, Senior Advocate, S/o Late Ramachandra Acharya VS. Sri. N. Venkateshaiah, S/o Late Narayanappa [LAWS(KAR)-2012-8-406] [REFERRED TO]
NEELAM RANI AND ORS. VS. STATE AND ORS. [LAWS(J&K)-2017-10-100] [REFERRED TO]
GULLAMPUDI VEERA NAGAMANI VS. STATE OF A P [LAWS(APH)-2014-9-111] [REFERRED TO]
JAI PRAKASH SHARMA VS. STATE OF U.P. [LAWS(ALL)-2019-11-379] [REFERRED TO]
SABIR AND ORS. VS. STATE OF U.P. AND ORS. [LAWS(ALL)-2015-12-161] [REFERRED TO]
GUNEET SINGH DHINGRA VS. STATE OF NCT DELHI [LAWS(DLH)-2023-7-83] [REFERRED TO]
SUBRATA CHOUDHURY VS. STATE OF ASSAM [LAWS(SC)-2024-11-3] [REFERRED TO]
SANJAY HARSH & ANR. VS. STATE OF RAJASTHAN & ANR. [LAWS(RAJ)-2016-7-161] [REFERRED TO]
RAM NIWAS PANGA VS. STATE OF RAJASTHAN [LAWS(RAJ)-2016-9-197] [REFERRED]
SAJJAN KUMAR VS. CBI [LAWS(DLH)-2013-7-210] [REFERRED TO]
SURENDRA SHARMA VS. RAMCHARAN LAL JATAV [LAWS(MPH)-2013-7-262] [REFERRED TO]
P. PUGALENTHI VS. STATE OF TAMIL NADU AND ORS. [LAWS(MAD)-2016-2-178] [REFERRED TO]
KASHINATH KUTWAL VS. STATE OF MAHARASHTRA [LAWS(BOM)-2017-4-8] [REFERRED TO]
JUDGEMENT
B.S. Chauhan, J. -
(1.)This appeal has been preferred against the judgment and order dated 6.5.2009 passed by the High Court of Judicature at Patna in Criminal Miscellaneous No. 36335 of 2008, by which the cognizance taken by the Magistrate vide order dated 2.8.2008 against the Respondent No. 2 under Section 395 of the Indian Penal Code, 1860 (hereinafter called Rs. Indian Penal Code ) has been quashed.
(2.)Facts and circumstances giving rise to this case are that:
A. A dacoity was committed in the house of present Appellant Shivshankar Singh and his brother Kameshwar Singh on 6.12.2004 Where in Gopal Singh son of Kameshwar Singh was killed by the dacoits and lots of valuable properties were looted. The police reached the place of occurrence at about 3.00 AM i.e. about 2 hours after the occurrence. An FIR No. 147/2004 dated 6.12.2004 was lodged by the Appellant naming Ramakant Singh and An and Kumar Singh alongwith 15 other persons under Sections 396/398 Indian Penal Code.
B. However, Kameshwar Singh, the real brother of the Appellant and father of Gopal Singh, the deceased, approached the court by filing a case under Section 156(3) of the Code of Criminal Procedure, 1973, (hereinafter called Rs. Code of Criminal Procedure. ). Appropriate orders were passed therein and in pursuance of which FIR No. 151/2004 was lodged on 29.12.2004 in respect of the same incident with the allegations that the present Appellant, Bhola Singh, son of the second complainant and Shankar Thakur, the maternal uncle of Bhola Singh had killed Gopal Singh as the accused wanted to grab the immovable property.
C. Investigation in pursuance of both the reports ensued. When the investigation in pursuance of both the FIRs was pending, the Appellant filed Protest Petition on 4.4.2005, but did not pursue the matter further. The court did not pass any order on the said petition. After completing investigation in the Report dated 6.12.2004, the police filed Final Report under Section 173 Code of Criminal Procedure. on 9.4.2005 to the effect that the case was totally false and Gopal Singh had been killed for property disputes.
D. After investigating the other FIR filed by Kameshwar Singh, father of the deceased, charge-sheet was filed under Sections 302, 302/34, 506 Indian Penal Code etc. on 29.8.2005 against the Appellant, Bhola Singh, son of complainant and others. The matter stood concluded after trial in favour of the accused persons therein.
E. It was on 22.9.2005, the Appellant filed a second Protest Petition in respect of the Final Report dated 9.4.2005. After considering the same and examining a very large number of witnesses, the Magistrate took cognizance and issued summons to Respondent An and Kumar Singh and Ors. vide order dated 2.8.2008.
F. Being aggrieved, the Respondent An and Kumar Singh filed Criminal Miscellaneous No. 36335 of 2008 for quashing the order dated 2.8.2008 which has been allowed by the High Court on the ground that second Protest Petition was not maintainable and the Appellant ought to have pursued the first Protest Petition dated 4.4.2005.
Hence, this appeal.
(3.)Shri Gaurav Agrawal, learned Counsel appearing for the Appellant has submitted that the High Court failed to appreciate that the so-called first Protest Petition having been filed prior to filing the Final Report was not maintainable and just has to be ignored. The learned Magistrate rightly did not proceed on the basis of the said Protest Petition and it remained merely a document in the file. The second petition was the only Protest Petition which could be entertained as it had been filed subsequent to filing the Final Report. The High Court further committed an error observing that the Magistrate s order of summoning the Respondent No. 1 was vague and it was not clear as in which Protest Petition the order had been passed. More so, the facts of the case in Joy Krishna Chakraborty and Ors. v. The State and Anr., 1980 Cri. L.J. 482, decided by the Division Bench of the Calcutta High Court and solely relied by the High Court were distinguishable as in the said case the first Protest Petition had been entertained by the Magistrate and an order had been passed. Protest Petition is to be treated as a complaint and the law does not prohibit filing and entertaining of second complaint even on the same facts in certain circumstances. Thus, the judgment and order impugned is liable to be set aside.
(2.)Facts and circumstances giving rise to this case are that:
A. A dacoity was committed in the house of present Appellant Shivshankar Singh and his brother Kameshwar Singh on 6.12.2004 Where in Gopal Singh son of Kameshwar Singh was killed by the dacoits and lots of valuable properties were looted. The police reached the place of occurrence at about 3.00 AM i.e. about 2 hours after the occurrence. An FIR No. 147/2004 dated 6.12.2004 was lodged by the Appellant naming Ramakant Singh and An and Kumar Singh alongwith 15 other persons under Sections 396/398 Indian Penal Code.
B. However, Kameshwar Singh, the real brother of the Appellant and father of Gopal Singh, the deceased, approached the court by filing a case under Section 156(3) of the Code of Criminal Procedure, 1973, (hereinafter called Rs. Code of Criminal Procedure. ). Appropriate orders were passed therein and in pursuance of which FIR No. 151/2004 was lodged on 29.12.2004 in respect of the same incident with the allegations that the present Appellant, Bhola Singh, son of the second complainant and Shankar Thakur, the maternal uncle of Bhola Singh had killed Gopal Singh as the accused wanted to grab the immovable property.
C. Investigation in pursuance of both the reports ensued. When the investigation in pursuance of both the FIRs was pending, the Appellant filed Protest Petition on 4.4.2005, but did not pursue the matter further. The court did not pass any order on the said petition. After completing investigation in the Report dated 6.12.2004, the police filed Final Report under Section 173 Code of Criminal Procedure. on 9.4.2005 to the effect that the case was totally false and Gopal Singh had been killed for property disputes.
D. After investigating the other FIR filed by Kameshwar Singh, father of the deceased, charge-sheet was filed under Sections 302, 302/34, 506 Indian Penal Code etc. on 29.8.2005 against the Appellant, Bhola Singh, son of complainant and others. The matter stood concluded after trial in favour of the accused persons therein.
E. It was on 22.9.2005, the Appellant filed a second Protest Petition in respect of the Final Report dated 9.4.2005. After considering the same and examining a very large number of witnesses, the Magistrate took cognizance and issued summons to Respondent An and Kumar Singh and Ors. vide order dated 2.8.2008.
F. Being aggrieved, the Respondent An and Kumar Singh filed Criminal Miscellaneous No. 36335 of 2008 for quashing the order dated 2.8.2008 which has been allowed by the High Court on the ground that second Protest Petition was not maintainable and the Appellant ought to have pursued the first Protest Petition dated 4.4.2005.
Hence, this appeal.
(3.)Shri Gaurav Agrawal, learned Counsel appearing for the Appellant has submitted that the High Court failed to appreciate that the so-called first Protest Petition having been filed prior to filing the Final Report was not maintainable and just has to be ignored. The learned Magistrate rightly did not proceed on the basis of the said Protest Petition and it remained merely a document in the file. The second petition was the only Protest Petition which could be entertained as it had been filed subsequent to filing the Final Report. The High Court further committed an error observing that the Magistrate s order of summoning the Respondent No. 1 was vague and it was not clear as in which Protest Petition the order had been passed. More so, the facts of the case in Joy Krishna Chakraborty and Ors. v. The State and Anr., 1980 Cri. L.J. 482, decided by the Division Bench of the Calcutta High Court and solely relied by the High Court were distinguishable as in the said case the first Protest Petition had been entertained by the Magistrate and an order had been passed. Protest Petition is to be treated as a complaint and the law does not prohibit filing and entertaining of second complaint even on the same facts in certain circumstances. Thus, the judgment and order impugned is liable to be set aside.
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