Magistrate can’t entertain protest petition against own order taking cognisance: SC
THE JHARKHAND STORY DESK Advertisement New Delhi, Nov 15: Judicial Magistrate cannot entertain a protest petition against an order taking cognisance…
THE JHARKHAND STORY DESK
New Delhi, Nov 15: Judicial Magistrate cannot entertain a protest petition against an order taking cognisance of a final report, held the Supreme Court in a recent judgment, reports Live Law.
In this case, a Chief Judicial Magistrate took cognizance against one accused for the offence of murder based on a final report filed by the Crime Investigation Department.
The victim’s father filed a protest petition taking objection to the Magistrate not taking cognizance against other accused. After that, a further order was passed by the Chief Judicial Magistrate on 3rd November taking cognizance against the other accused persons. The other accused persons, against whom cognizance was taken subsequently, filed a petition before the High Court under Section 482 CrPC against the action of the Magistrate. Since the High Court rejected their petition, they appealed to the Supreme Court.
The High Court relied on the Supreme Court’s judgment inNupur Talwar vs. CBI and Anr (2012) 2 SCC 188to reject the appellants’ petition. They contended before the Supreme Court that the issue in Nupur Talwar was completely different, as the dictum laid down in that case was that a Magistrate can take cognizance of a protest petition against a closure report filed by the investigating agency.
The Supreme Court expressed agreement with the argument raised by the appellants. The bench comprising Justices Abhay S Oka and Pankaj Mithalexpressed surprise at the Magistrate entertaining a protest petition against an order taking cognizance. The bench stated that Magistrate has no power to modify an earlier order taking cogniznace.
The Court observed :
“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.”
The Court observed that Nupur Talwardealt with a completely different scenario. Allowing the appeal, the Court set aside the subsequent order passed by the CJM taking congizance against the appellants.
