FILING A SECOND PROTEST PETITION BASED ON SAME SET OF FACTS IS NOT FORBIDDEN BY LAW- SC

SHIV SHANKAR SINGH v. STATE OF BIHAR

Criminal Appeal No. 2160/2011, SLP 2768/2010 -22nd November, 2011

CORAM: Two judge bench comprising of Justice B.S. Chauhan and Justice T.S. Thakur.

This appeal has been preferred against the judgment and order  passed by the High Court of Judicature at Patna in Criminal Miscellaneous, by which the cognizance taken by the Magistrate vide order against the respondent no.2 under Section 395 of the Indian Penal Code, 1860 has been quashed

The facts of the case are that a dacoity had taken place on 6.12.2004 in the house of the Appellant and the Appellant’s brother Kameshwar Singh. Due to that dacoity, it had not only resulted in the loot of property but also they had to suffer the loss of death of Kameshwar Singh’s son Gopal who was murdered by the hands of the dacoits. The Appellant lodged an FIR on the very same day naming a guy Anand Kumar Singh and others in the report and in the meanwhile, Kameshwar Singh Court and its power vide S. 156(3) of Cr. PC, 1973 & an FIR was also lodged for the same dated 29.12.2004 in which the complainant had alleged that the appellant along with the others, had planned al this and had murdered Gopal in order to acquire some share of immovable property. The appellant later filed a protest petition denying everything Kameshwar Singh had alleged, but he didn’t pursue the matter and also no order was passed by the Court in regard to this matter. After a thorough examination of the case a closure report was filed on 9.4.2005 by the police in respect to the FIR dated 6.12.2004, the report filed by the appellant to the effect that the case was totally false and that Gopal Singh had been killed due to property disputes.

The final report in respect to the FIR filed by Kameshwar Singh was filed u/s. 506 &302 r/w. S.34 against the appellant but the trial court gave a verdict favourable to that of the accused. On 22.9.2005 the appellant filed a second protest petition for the FIR filed by him. The magistrate after examining witnesses took cognizance and issued summons to respondent Anand Kumar Singh. Aggrieved, the respondent appealed to the HC where the magistrate quashed his order since the second protest petition isn’t maintainable and that the appellant pursuing the first protest petition should be sufficient enough.

The question of law raised is as to whether filing two complaints based upon the same facts is forbidden under the law or not?

The Appellants contended that the law does not forbid filing two complaints for the same set of facts as the HC failed to notice that the first protest petition was submitted before the closure report was submitted. It had not been acted upon and so the first protest petition cam be considered to be infructuous and so the order of the HC should be set aside.

They contended that examination of just one precedent Joy Krishna Chakraborthy and Others v. The State and another and giving the verdict based upon that was quite wrong as that case had different set of facts while this case has the same set of facts.

The respondents, on the other hand, had contended that the second protest petition is not to be held maintainable and as the appellant must have pursued the first protest petition, the order of the HC can be held to be perfectly valid.

The Court observed that the appellant’s contention that examination of just one precedent Joy Krishna Chakraborthy and Others v. The State and another and giving the verdict based upon that was quite wrong as that case had different set of facts while this case has the same set of facts and agreed upon it. They examined many cases where it was reiterated that the law does not forbid filing/ entertainment of second protest petitions even based on same set of facts.

The Court held that

“Filing or entertaining a second protest petition on the same set of facts is not forbidden under any provisions of law in exceptional situations such as violation of Principles of Natural Justice or finding a new set of facts.”

View/ Download of the Judgment: SHIV SHANKAR SINGH v. STATE OF BIHAR

– Nardhana Ram

#NardhanaRam #secondprotestpetition