Raja Tiwari High Court Order and Supreme Court Petition

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


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


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: -


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.


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.


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.


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//


8/26

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


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.


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


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


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.


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


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


15/26


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 :


17/26


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 :-


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.


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


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


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


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


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.


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


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)

Raja Tiwari High Court Order and Supreme Court Petition

Documents

Transcript of Raja Tiwari High Court Order and Supreme Court Petition