8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
1/26
HIGH COURT OF MADHYA PRADESH JABALPUR
BEFORE: TARUN KUMAR KAUSHAL, J
CRIMINAL REVISION NO. 1966 OF 2012
Petitioner: Raja Tiwari, S/o Shri Shankarlal Tiwari, aged about 34
years, Resident Near Vyapar Bhawan, Subhash Park,Satna, Distt. Satna (M.P.).
Versus
Respondent: The State of Madhya Pradesh
Through Police Station Ucchehra,District Satna. (M. P.)
For Petitioner: Shri Surendra Singh, Senior AdvocateWith Shri Sharad Verma, Advocate.
For Respondent: Shri Punit Shorit, Panel Lawyer.For Objector: Shri Ranjan Banerjee, Advocate.
Order
14.2.2013
The revision has been preferred against the order dated 17.9.2012 passed by
JMFC, Ucchehra, District Satna in Criminal Case no. 176/2012 taking cognizance
of the offence under sections 147, 148, 149, 307, 302/34 of IPC read with section 3
(2) v) of SC & ST (Prevention of Attrocities) Act and under section 25/27 of Arms
Act and issued arrest warrant for his appearance in the court.
According to prosecution at 18.5.2012 at 11.30 am Molla Kol informed to
police Ucchehra that while he along with some other persons was making his hut
on government land, co-accused Dharendra Singh Tankur along with other persons
reached on the spot in a vehicle and asked those persons to remove their structures
and huts from that land. Then co-accused aimed their gun towards them. Jagan,
brother of the complainant sustained gun shot injury in his chest and was taken to
hospital. Complainant lodged Dehati Nalishi report naming 9 accused persons
including petitioner. On the basis of Dehati Nalishi, police Ucchehra, registered a
case at crime no. 159/2012 under sections 147, 148, 149, 307, 302/34 of IPC read
with section 3 (2) v) of SC & ST (Prevention of Attrocities) Act and under section
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
2/26
25/27 of Arms Act against 9 all of them. During the course of the investigation on
18.5.2012, police statements under section 161 of Cr. P.C. of the complainant and
other witnesses were recorded by police.
On 24.5.2012 vide annexure A-1 Shankarlal, MLA, Satna requested the
Inspector General of Police for independent, fair and high level investigation of the
case, because his own, the petitioner, has been falsely implicated in that case on
account of political rivalry and enimity, despite the fact that the petitioner was not
resent on the spot.
During investigation on 2.7.2012 a superior rank police officer re-recorded
statements under section 161 Cr. P.C. of the complainant and other witnesses in
which a different and diluted version was stated by the witnesses. After
completing the investigation, citing 64 witnesses, charge sheet was preferred
against the 8 accused persons only. In respect of petitioner, it was mentioned in
the charge sheet that under directions of Inspector General of Police
Superintendent of Police AAJAK reinvestigated the matter and observed that
petitioner was not found involved in the incident and his name was separated from
the charge sheet.
In committal court, complainant Molla Kol preferred an application under
section 190 Cr. P.C. making a request that though petitioner was involved in the
incident, but police did not file charge sheet against him, hence, cognizance may
be taken against him now. Vide impugned order, learned Magistrate allowed
application and took cognizance of the case against the petitioner also on the basis
of charge sheet preferred by the prosecution considering FIR and earlier police
statements of the complainant.
Impugned order has been challenged on the grounds that once a charge sheet
is filed by the police for offence exclusively triable by the Sessions Court then
committal magistrate had no jurisdiction to hold the enquiry or to take the
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
3/26
cognizance against any such persons who was not cited as accused in the charge
sheet. Impugned order is completely misconstrued and misinterpreted and against
the provisions of law and settled principles of law.
Learned counsel for the petitioner placed reliance on AIR 2012 SC SC 1485
(Ratiram Vs. State of MP) wherein it has been observed by Apex court that under
section 209 Cr. P.C. in committal proceedings Magistrate in fact has a very limited
scope to the extent to verify the nature of offence only.
Learned counsel for the respondents submits that name of the petitioner
found place in FIR lodged immediately after the incident. His name appeared in
statements of complainant and other witnesses recorded by police under section
161 Cr. P.C. soon after the incident. After about 4 days, high level police officer
again investigated the matter and recorded the statements of some witnesses in
which no role was assigned to the petitioner and even he was not said to have been
resent on the spot. Again in committal court, the complainant filed an application
under section 190 Cr. P.C. for taking cognizance of the matter and trial court after
considering the contents of the charge sheet, allowed the application. Placing
reliance on (2010) 0 SCC 479 (Uma Shankar Singh Vs. state of Bihar & another)
further submits that nothing is wrong if concerned magistrate took cognizance
against the petitioner exercising powers under section 190 Cr. P.C. at that stage.
In Chapter XII of Cr. P.C. powers of police to investigate the case are
referred. In present case, though petitioner was named in FIR and was also named
in statements recorded under section 161 Cr. P.C. at initial stage has been
separated from the charge sheet and the charge sheet, has been preferred against
the rest of the accused persons only.
Relevant provisions showing powers of police officers in this regard is given
in under Section 169 Cr. P.C. and section 173 Cr. P.C. which reads as below: -
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
4/26
Section 169 Cr. P.C. Release of accused when evidence deficient If, upon
an investigation under this Chapter, it appears to the officer in charge of the
police station that there is not sufficient, evidence or reasonable ground of
suspicion to justify the forwarding of the accused to a Magistrate, such
officer shall, if such person is in custody, release him on his executing a
bond, with or without sureties, as such officer may direct, to appear, if and
when so required, before a Magistrate empowered to take cognizance of the
offence on a police report, and to try the accused or commit him for trial.
Section 173 Cr. P.C. Report of police officer on completion of
investigation
(1) Every investigation under this Chapter shall be completed withoutunnecessary delay.
(2) (i) as soon as it is completed, the officer in charge of the police station
shall forward to a Magistrate empowered to take cognizance of the offence
on a police report, a report in the form prescribed by he state Government,
stating
(a) the names of the parties;
(b) the nature of the information;
(c) The names of the persons who appear to be acquainted with the
circumstances of the case;
(d) Whether any offence appears to have been committed and, if so, bywhom;
(e) Whether the accused has been arrested;(f) Whether he has been released on his bond and, if so, whether with or
without sureties;
(g) Whether he has been forwarded in custody under section 170.
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
5/26
(ii) The officer shall also communicate, in such manner as may beprescribed by the State Government, the action taken by him, to the
person, if any by whom the information relating to the commission of
the offence was first given.
(3) Where a superior officer of police has been appointed under section
158, the report, shall in any case in which the State Government by general
or special order so the State Government by general or special order so
directs, be submitted through that officer, and he may, pending he orders of
the Magistrate, direct the officer in charge of the police station to take
further investigation.
(4) Whenever it appears from a report forwarded under this section that
the accused has been released on his bond, the Magistrate shall make such
order for the discharge of such bond or otherwise as he thinks fit.
(5) When such report is in respect of a case to which section 170 applies,
the police officer shall forwarded to the Magistrate along with the report-
(a) all documents or relevant extracts thereof on which the prosecution
proposes to rely other than those already sent to the Magistrate during
investigation;
(b) the statements recorded under section 161 all of all the persons whom
the prosecution proposes to examine as its witness.
(6) If the police officer is of opinion that any part of any such statement is
not relevant to the sub-matter of the proceeding or that its disclosure to the
accused is not essential in the interests of justice and is inexpedient in the
public interest, he shall indicate that part of the statement and append a note
requesting the Magistrate to exclude that part from the copies to be granted
to the accused and stating his reasons for making such request.
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
6/26
(7) Where the police officer investigating the case finds it convenient so
to do, he may furnish to the accused copies of all or any of the documents
referred to in sub section (5).
(8) Notwithstanding in this section shall be deemed to preclude further
investigation in respect of an offence after a report under sub section (2) has
been forwarded to the Magistrate and, where upon such investigation, the
officer in charge of the police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a further report or reports
regarding such evidence in the form prescribe and the provisions of sub
section (2) to (6) shall, as far as may be, apply in relation to such report or
reports as they apply in relation to a report forwarded under sub section (2).
On perusal of the aforesaid provisions, it appears that role of JMFC who is
empowered to take cognizance on police report is not removed. He is well entitled
to hear and consider the matter and to look into the contents of the charge sheet.
It further appears that in Ratirams case (supra) comparison being made
between provisions of old Cr. P.C. and new Cr. P.C. in respect of committal
proceedings and it has been observed that role of magistrate is very limited now.
In supra cognizance taken by Special Judge/Sessions Judge directly was
questioned and such action was not approved and conviction was set aside and case
was remanded for fresh trial. Whereas in Umashankar case (supra) powers of
Magistrate under section 190 Cr. P.C. even at the stage of committal was discussed
and considered in para 19, it is observed that : -
19. The law is well settled that even if the investigating authority is of the
view that no case has been made out against an accused, the Magistrate can
apply his mind independently to the materials contained in the police report
and take cognizance thereupon in exercise of his powers under Section 190
(1) (b) Cr. P.C. That is precisely what has happened in the present case.
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
7/26
Brother of deceased and other witnesses gave different versions regarding
involvement of the petitioner at different point of time to police and now again
revert back to their earlier version/statement in the court of committal magistrate
cannot be said to be a case of non sufficient evidence having no reasonable ground
of justification to forward the accused before the Magistrate. Evidence was
already there in the charge sheet. It is merely a matter of interpretation and
appreciation. Some persons are giving different versions at different pointy of
time. In such situation, if Magistrate is exercising power under section 190 Cr.
P.C. on the basis of application of complainant, who lodged the FIR also, there
appears no illegality or error if that application has been entertained, considered
and allowed by the Magistrate. Definitely, power of police officer under section
169 Cr. P.C. cannot be over take the power of the Magistrate under section 190 Cr.
P.C.
In the interest of justice also it is better to hear and decide the matter by trial
court, then to give finality at a premature stage of investigation only.
Learned Magistrate has considered all aspects of the matter in right
prespective and had reached to the correct conclusion in which name of the
petitioner has already appeared in the FIR and police statements at initial stage.
Petition being devoid of substance stands dismissed.
Sd/- illegible.(Tarun Kumar Kaushal)
Judge.//True copy//
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
8/26
SYNOPSIS AND LIST OF DATES
In the present case the Honble High Court while passing the Impugned
Judgment completely ignored the law laid down by this Honble Court in the case
of Dharam Pal Vs. State of Haryana reported in 2004 (13) SCC 9 wherein this
Honble Court has clearly held that in an offence exclusively triable by the
Sessions Court, the committal Magistrate has no jurisdiction to take cognizance
against any person who is not named as accused in the charge sheet. Since the
petitioner was not named in the charge sheet filed before the Committal
Magistrate, it was beyond his jurisdiction to apply his mind on the material of the
charge sheet and pass an order taking cognizance against the petitioner. It is
further submitted that the police after thorough investigation and a detailed inquiry
report had come to the conclusion that the petitioner was not involved in the
offence alleged against him and therefore, his name was excluded from the charge
sheet.
It is further submitted that this Honble Court has also held in number of
judgments that there is no intermediary stage after the filing of the charge sheet
and before the evidence of the witnesses before the Trial Court, to summon a
person who has not been named in the charge sheet. Since summoning of a person
not named in the charge sheet adversely effects his right of life and liberty,
therefore, any such person could only be summoned if his name is disclosed during
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
9/26
the evidence before the Court. It is further to submit here that this issue pertaining
to stage at which a person not named in the F.I.R. could be summoned under
Section 319 Cr. P. C. has already been referred to a larger bench before this
Honble Court as there was difference of opinion amongst different coordinate
Benches of this Honble Court about the question whether a person can be
summoned under Section 319 Cr. P. C. after the examination in-chief or after the
cross examination of the witness.
18.5.2012. On 18.5.2012 a complaint was made by one Molla Kol stating
that when his brother Jagan Kol along with his associates was
preparing a Meid in the field in village Babupur, at that time
some accused persons reached on the spot of the incident from
raising the Meid. As per the complaint they told them that the
Meid is being raised on the Government land but the accused
Dharminder Singh Thakur fired a gun shot which hit the chest
of Jagan Kol and he fall down immediately. On the basis of the
aforesaid complaint an FIR No. 159/2012 under Section 147,
148, 149, 307, 302/34 IPC read with Section 3 (2) (v) of the SC
and ST (Prevention of Attrocities) Act, and under Section 25/27
of the Arms Act was registered against the accused persons. In
the said FIR a total number of 9 persons were named as accused
including the petitioner.
It is further important to point out here that a cross FIR
No. 160/12 under Section 147, 148, 149, 307, 302 IPC was also
registered on the basis of the complaint made by Raj Bhan
Singh.
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
10/26
24.5.2012. The father of the petitioner made a written report to the
Inspector General of Police on 24.5.2012 with a request to
enquire the aforesaid incident dated 18.5.2012 through a high
level committee as due to the political reasons his son has been
falsely implicated in the aforesaid case.
5.8.2012. The aforesaid incident dated 18.5.2012 was thorough
investigated by the Superintendent of Police, Rewa Zone,
Rewa. The said investigation was conducted by taking
statement of various witnesses and also doing the investigation
in the most scientific manner. In the statements recorded under
Section 161 Cr. P. C. it was revealed that accused Dharminder
Singh had fired the gun shot by which the death of Jagan Kol
had caused. However, in the evidence recorded by the police,
the most of the witnesses very clearly stated that they had not
seen the petitioner at the time of the incident. Apart from that
the investigation further revealed that on the day of the incident
the petitioner was not present on the spot of the incident and he
was present far away place at Nazirabad, Satna. In this
investigation the police also found from the Mobile records of
the petitioner that he was not present on the spot of the incident
at the time of incident. The police on the basis of the aforesaid
investigation prepared a detailed investigation report dated
5.8.2012 and submitted the same to the D.I.G. Rewa Zone,
Rewa.
23.08.2012 It is relevant to point out here that on the basis of the
investigation made by the police, the petitioner was not found
to be involved in the aforesaid FIR and accordingly his name
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
11/26
was excluded from the charge sheet filed before the Court of
Chief Judicial Magistrate, 1stClass, Ucchehra, Satna, M. P.
It is to point out here that the complainant in
FIR No. 159/12 filed an application under Section 190 Cr. P. C.
before the Court of Chief Judicial Magistrate, 1st Class,
Ucchehra, Satna, M. P. for taking cognizance against the
petitioner. It was alleged in his application that during the
course of the investigation statements of various witnesses were
recorded between 18.5.2012 to 21.5.2012 and those witnesses
had stated that the petitioner was present on the spot. But in the
statements recorded between 2.6.2012 to 4.8.2012 the petitioner
was not found to be present on the spot. According to the
complainant the investigation was transferred to the S. P. with
the motive to favour the petitioner.
17.9.2012. The Judicial Magistrate, 1st Class, Ucchehra, Satna vide its
order dated 17.9.2012 took cognizance against the petitioner
under Section 147, 148, 149, 307, 302/34 IPC read with Section
3 (2) (v) of the SC and S.T. (Prevention of Attrocities) Act and
under Section 25/27 Arms Act and issued arrest warrant for his
appearance before the Court. The Ld. Magistrate, in his order
held that a Magistrate Court has powers to take cognizance
against any such accused persons against whom no charge sheet
has been filed.
Sept. 2012. The petitioner being aggrieved by the order dated 17.9.2012
passed by the Judicial Magistrate, 1st Class, filed a Revision
Petition before the Honble High Court of Madhya Pradesh,
Principal Seat at Jabalpur. It was contended by the petitioner
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
12/26
in his Revision Petition that once a charge sheet is filed by the
police for offence exclusively tried by the Court of Sessions,
the Magistrate must commit the case to the court of Sessions
and he has no competence or authority to take cognizance
against a person who is not named in the F.I.R.
14.2.2013. The Honble High Court of Madhya Pradesh, Jabalpur, in the
Revision Petition No. 1966 of 2012 filed by the petitioner was
pleased to dismiss the same vide its order dated 14.2.2013. It
was held by the Honble High Court that the Magistrate is
empowered to take cognizance on the police report against the
person who is not named in the charge sheet after looking into
the contents of the charge sheet. It was further held that the Ld.
Magistrate had rightly passed the order of taking cognizance
against the petitioner.
Hence the present special leave petition is being filed.
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
13/26
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CRL.) NO.5693 OF 2013
[Arising out of the Final Judgment and Order dated 14.02.2013passed by the Hon'ble High Court of Madhya Pradesh, PrincipalSeat at Jabalpur in Criminal Revision No.1966 of 2012]
( With Prayer For Interim Relief)
IN THE MATTER OF:
Raja Tiwari Petitioner
Versus
The State of Madhya Pradesh ...Respondent
W I T HCRL. M.P NO. OF 2013[APPLICATION FOR STAY]
AndCRL. M.P NO. OF 2013
[APPLICATION FOR EXEMPTION FROM FILLING OFFICIALTRANSLATION]
PAPER BOOK
(FOR INDEX KINDLY SEE INSIDE)
ADVOCATE FOR THE PETITIONER: RITESH AGRAWAL
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
14/26
I N D E X
SL.
NO.
PARTICULARS PAGE
NO.
1. Office Report on Limitation. A
2. Listing Performa A1-A3
3. Synopsis & List of Dates. B
4. IMPUGNED ORDER:
Copy of the Final Judgment and Order dated
14.02.2013 passed by the Hon'ble High Court of
Madhya Pradesh, Principal Seat at Jabalpur inCriminal Revision No.1966 of 2012
5. Special Leave Petition with Affidavit
6. Annexure P/1:Copy of the FIR No. 159/2012 dated 18.05.2012registered at PS Uchehara, Satna (M.P.)
7. Annexure P/2:
copy of the Chargesheet No. 215/12 dated23.08.2012 filed before the Court of JMFC,SatnaCamp, Uchecha
8. Annexure P/3:
copy of the order dated 17.9.2012 passed by Judicial
Magistrate, 1stClass Ucchehra, Satna in Crl Case
No.176/20129. Annexure P/4:
copy of the Criminal Revision Petition No.1966/2012 filed by the petitioner in Sept 2012 before
the Honble High Court of Madhya Pradesh,Jabalpur
10. Application for Stay
11. Application for exemption from filing
official translation
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
15/26
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
16/26
AIN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO.______ OF 2013
IN THE MATTER OF:
Raja Tiwari Petitioner
Versus
The State of Madhya Pradesh. ...Respondent
OFFI CE REPORT ON LI M I TATION
1. The Petition is/are within time.
2. The Petition is barred by time and there is delay of ____ days in filing
the same against, order dated __________ and petition for condonation of
______ days delay has been filed.
3. There is delay of _____ day in refilling the petition and petition for
Condonation of _______ days delay in refilling has been filed.
BRANCH OFFICER
NEW DELHI :
DATED :
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
17/26
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
18/26
INTHE SUPREME COURT OF INDIA
[ORDER XVI RULE 4 (1) (A)]
Criminal Appellate Jurisdiction
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CRL) NO.5693 OF 2013
IN THE MATTER OF:
STATUS OF PARTIES
Before
Trial Court
Before
High Court
Before
This Court
Raja Tiwari,S/o Shri Shankarlal
Tiwari,
aged about 34 years,Resident of Near Vyapar
Bhawan, SubhashPark, Satna,
Distt. Satna (M.P.). Accused Petitioner Petitioner
Versus
The State of Madhya PradeshThrough Secretary(Home)
SecretariatBhopal. (M. P.) Prosecution Respondent Respondent
A PETITION UNDER ARTICLE 136 OF THE CONSTITUTION
OF INDIA
TO
THE CHIEF JUSTICE OF INDIAAND HIS COMPANION JUSTICESOF THE SUPREME COURT OF INDIA
THE HUMBLE PETITION OF THE PETITIONERABOVE NAMED
MOST RESPECTFULLY SHEWETH :-
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
19/26
1. That this petition is being filed by the petitioners before this Hon'ble
Court with prayer to grant Special Leave to Appeal to the petitioners
against the Final Judgment and Order dated 14.02.2013 passed by the
Hon'ble High Court of Madhya Pradesh, Principal Seat at Jabalpur in
Criminal Revision No.1966 of 2012, whereby the Hon'ble High Court
was pleased to dismiss the said Petition .
2. That the brief facts of the case as would arise for consideration by this
Hon'ble Court in the Special Leave Petition is as under:-
a. That in the present case the Honble High Court while passing theImpugned Judgment completely ignored the law laid down by this
Honble Court in the case of Dharam Pal Vs. State of Haryana reported in
2004 (13) SCC 9 wherein this Honble Court has clearly held that in an
offence exclusively triable by the Sessions Court, the committal
Magistrate has no jurisdiction to take cognizance against any person who
is not named as accused in the charge sheet. Since the petitioner was not
named in the charge sheet filed before the Committal Magistrate, it was
beyond his jurisdiction to apply his mind on the material of the charge
sheet and pass an order taking cognizance against the petitioner. It is
further submitted that the police after thorough investigation and a
detailed inquiry report had come to the conclusion that the petitioner was
not involved in the offence alleged against him and therefore, his name
was excluded from the charge sheet.
It is further submitted that this Honble Court has also held in
number of judgments that there is no intermediary stage after the filing of
the charge sheet and before the evidence of the witnesses before the Trial
Court, to summon a person who has not been named in the charge sheet.
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
20/26
Since summoning of a person not named in the charge sheet adversely
effects his right of life and liberty, therefore, any such person could only
be summoned if his name is disclosed during the evidence before the
Court. It is further to submit here that this issue pertaining to stage at
which a person not named in the F.I.R. could be summoned under
Section 319 Cr. P. C. has already been referred to a larger bench before
this Honble Court as there was difference of opinion amongst different
coordinate Benches of this Honble Court about the question whether a
person can be summoned under Section 319 Cr. P. C. after the
examination in-chief or after the cross examination of the witness.
b. That On 18.5.2012 a complaint was made by one Molla Kol stating thatwhen his brother Jagan Kol along with his associates was preparing a
Meid in the field in village Babupur, at that time some accused persons
reached on the spot of the incident from raising the Meid. As per the
complaint they told them that the Meid is being raised on the
Government land but the accused Dharminder Singh Thakur fired a gun
shot which hit the chest of Jagan Kol and he fall down immediately. On
the basis of the aforesaid complaint an FIR No. 159/2012 under Section
147, 148, 149, 307, 302/34 IPC read with Section 3 (2) (v) of the SC and
ST (Prevention of Attrocities) Act, and under Section 25/27 of the Arms
Act was registered against the accused persons. In the said FIR a total
number of 9 persons were named as accused including the petitioner. A
true and correct copy of the FIR No. 159/2012 dated 18.05.2012
registered at PS Uchehara, Satna (M.P.) under Section 147, 148, 149,
307, 302/34 IPC read with Section 3 (2) (v) of the SC and ST (Prevention
of Attrocities) Act, and under Section 25/27 of the Arms Act is annexed
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
21/26
herewith and marked as Annexure P-1 (pages )to this special
leave petition.
It is further important to point out here that a cross FIR
No. 160/12 under Section 147, 148, 149, 307, 302 IPC was also
registered on the basis of the complaint made by Raj Bhan Singh.
c. That the father of the petitioner made a written report to the InspectorGeneral of Police on 24.5.2012 with a request to enquire the aforesaid
incident dated 18.5.2012 through a high level committee as due to the
political reasons his son has been falsely implicated in the aforesaid case.
d. That the aforesaid incident dated 18.5.2012 was thorough investigated bythe Superintendent of Police, Rewa Zone, Rewa. The said investigation
was conducted by taking statement of various witnesses and also doing
the investigation in the most scientific manner. In the statements
recorded under Section 161 Cr. P. C. it was revealed that accused
Dharminder Singh had fired the gun shot by which the death of Jagan
Kol had caused. However, in the evidence recorded by the police, the
most of the witnesses very clearly stated that they had not seen the
petitioner at the time of the incident. Apart from that the investigation
further revealed that on the day of the incident the petitioner was not
present on the spot of the incident and he was present far away place at
Nazirabad, Satna. In this investigation the police also found from the
Mobile records of the petitioner that he was not present on the spot of the
incident at the time of incident. The police on the basis of the aforesaid
investigation prepared a detailed investigation report dated 5.8.2012 and
submitted the same to the D.I.G. Rewa Zone, Rewa.
e. That it is relevant to point out here that on the basis of the investigationmade by the police, the petitioner was not found to be involved in the
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
22/26
aforesaid FIR and accordingly his name was excluded from the charge
sheet filed before the Court of Chief Judicial Magistrate, 1st Class,
Ucchehra, Satna, M. P on 23.08.2012. A true and correct copy of the
Chargesheet No. 215/12 dated 23.08.2012 filed under Section 147, 148,
149, 307, 302/34 IPC read with Section 3 (2) (v) of the SC and ST
(Prevention of Attrocities) Act, and under Section 25/27 of the Arms Act
before the Court of JMFC,Satna Camp, Uchecha is annexed herewith and
marked as Annexure P-2(pages )to this special leave petition
f. That it is to point out here that the complainant in FIR No. 159/12 filedan application under Section 190 Cr. P. C. before the Court of Chief
Judicial Magistrate, 1st Class, Ucchehra, Satna, M. P. for taking
cognizance against the petitioner. It was alleged in his application that
during the course of the investigation statements of various witnesses
were recorded between 18.5.2012 to 21.5.2012 and those witnesses had
stated that the petitioner was present on the spot. But in the statements
recorded between 2.6.2012 to 4.8.2012 the petitioner was not found to be
present on the spot. According to the complainant the investigation was
transferred to the S. P. with the motive to favour the petitioner.
g. That the Judicial Magistrate, 1st Class, Ucchehra, Satna vide its orderdated 17.9.2012 took cognizance against the petitioner under Section
147, 148, 149, 307, 302/34 IPC read with Section 3 (2) (v) of the SC and
S.T. (Prevention of Attrocities) Act and under Section 25/27 Arms Act
and issued arrest warrant for his appearance before the Court. The Ld.
Magistrate, in his order held that a Magistrate Court has powers to take
cognizance against any such accused persons against whom no charge
sheet has been filed. A true and correct copy of the order dated
17.9.2012 passed by Judicial Magistrate, 1stClass Ucchehra, Satna in Crl
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
23/26
Case No.176/2012 is annexed herewith and marked as Annexure P-3
(pages )to this special leave petition.
h. That in Sept. 2012 the petitioner being aggrieved by the order dated17.9.2012 passed by the Judicial Magistrate, 1st Class, filed a Revision
Petition before the Honble High Court of Madhya Pradesh, Principal
Seat at Jabalpur. It was contended by the petitioner in his Revision
Petition that once a charge sheet is filed by the police for offence
exclusively tried by the Court of Sessions, the Magistrate must commit
the case to the court of Sessions and he has no competence or authority to
take cognizance against a person who is not named in the F.I.R. A true
and correct copy of the Criminal Revision Petition No. 1966/2012 filed
by the petitioner in Sept 2012 before the Honble High Court of Madhya
Pradesh, Jabalpur is annexed and marked as Annexure P-4 (pages
)to this special leave petition.
i. That the Honble High Court of Madhya Pradesh, Jabalpur, in theRevision Petition No. 1966 of 2012 filed by the petitioner was pleased to
dismiss the same vide its order dated 14.2.2013. It was held by the
Honble High Court that the Magistrate is empowered to take cognizance
on the police report against the person who is not named in the charge
sheet after looking into the contents of the charge sheet. It was further
held that the Ld. Magistrate had rightly passed the order of taking
cognizance against the petitioner.
4. The Petitioner states that no other petition seeking leave to appeal has
been filed by the petitioner before this Hon'ble Court against the Final
Judgment and Order dated 14.02.2013 passed by the Hon'ble High
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
24/26
Court of Madhya Pradesh, Principal Seat at Jabalpur in Criminal
Revision No.1966 of 2012.
5. That the Annexures being Annexure P/1 to P/4 filed alongwith the
Special Leave Petition before the Hon'ble Court form part of the
records of proceedings of the court below our of which the Special
Leave Petition has been filed before this Hon'ble Court.
6. That the petitioner raises the following grounds in this Special Leave
Petition for their humble consideration by this Hon'ble Court as under:
GROUNDS
The Leave to appeal is sought for on the following grounds.
I. Because this Honble Court in the case of Dharam Pal Vs. State ofHaryana reported in 2004 (13) SCC 9 has held that in a case triable
by Court of sessions, in law, the court of Magistrate, would have no
power to summon an accused mentioned in Col. 2 of the Charge sheet
and as such the petitioner who was not named in the charge sheet, was
wrongly summoned by the Court of Magistrate in the present case
which is exclusively triable by the Court of Sessions.
II. Because even the question that at what stage a person not named inthe charge sheet could be summoned by the Court, has been referred
to the Constitution Bench of this Honble Court for decision and till
the pronouncement of law on the said question, the petitioner could
not be forced to appear before the Court on the basis of cognizance
taken by the Magistrate prior to the stage of Section 319 Cr. P.C.
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
25/26
III. Because the police after thorough investigation and on the basis of thestatement of several witnesses had come to the conclusion that the
petitioner was not involved in the offence and therefore, he was
excluded from the charge sheet and the Magistrate has no power to
summon the petitioner unless his name is appeared in the statement of
the witnesses during the course of the trial before the Sessions Court.
IV. Because the petitioner could not be deprived of his life and personalliberty without following the due process of law as the Magistrate
who has no power to conduct the trial, cannot exercise his power to
summon a person who is not named in the charge sheet.
PRAYER
It is, therefore, most respectfully prayed that this Honble Court may
kindly be pleased to:
a) grant Special Leave to appeal to the petitioners against the Final
Judgment and Order dated 14.02.2013 passed by the Hon'ble
High Court of Madhya Pradesh, Principal Seat at Jabalpur in
Criminal Revision No.1966 of 2012; and
b) pass such other order and or orders as this Honble Court may
deem fit and proper in the facts and circumstances of the case.
AND FOR THIS ACT OF KINDNESS, THE PETITIONER
SHALL EVER REMAIN GRATEFUL.
Dr awn & F i led By:-
(RITESH AGRAWAL)
Advocate for the Petitioner
New DelhiDrawn on:- .5.2013
Filed On:- .5.2013
8/13/2019 Raja Tiwari High Court Order and Supreme Court Petition
26/26
RITESH AGRAWALADVOCATE ON RECORD
SUPREME COURT
CHAMBER: OFFICE:
112,New Lawyers Chamber, A-5, CEL Apartments,Supreme Court, New Delhi-1 VasundharaEnclave,Delhi-
Tel : 23383987 Tel:9810773394,9999972564Email: [email protected]
Dated: 19.09.2013
To
Raja Tiwari,S/o Shri ShankarlalTiwari,
Resident of Near Vyapar
Bhawan, Subhash
Park, Satna,Distt. Satna (M.P.).
Subject: S.L.P ( Criminal) No. 5693 / 2013
Raja TiwariVersus
The State of Madhya Pradesh
(Against Judgment and Order dated 14.02.2013 passed by the Hon'ble High
Court of Madhya Pradesh, Principal Seat at Jabalpur in Criminal RevisionNo.1966 of 2012)
Dear Sir,
This is to inform you that as per your instructions, the aforesaid matter filedby the undersigned before the Hon'ble Supreme Court is pending and the same may
be listed before the Court very soon.
This is for your information and necessary action.Thanking you,
Yours faithfully,
(RITESH AGRAWAL)
Top Related