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.) Shri Surendra Singh, Senior Advocate With Shri Sharad Verma, Advocate. Shri Punit Shorit, Panel Lawyer. 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

For Petitioner:

For Respondent: For Objector:

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

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: -

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 without unnecessary 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) (b) (c) the names of the parties; the nature of the information; 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, by whom; (e) (f) Whether the accused has been arrested; 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.

(ii)

The officer shall also communicate, in such manner as may be prescribed 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.

(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.

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//

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

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.

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

was excluded from the charge sheet filed before the Court of Chief Judicial Magistrate, 1st Class, 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

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.

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 14.02.2013 passed by the Hon'ble High Court of Madhya Pradesh, Principal Seat at Jabalpur in Criminal Revision No.1966 of 2012] ( With Prayer For Interim Relief) IN THE MATTER OF: Raja Tiwari Versus The State of Madhya Pradesh ...Respondent Petitioner

WITH CRL. M.P NO. OF 2013 [APPLICATION FOR STAY] And CRL. M.P NO. OF 2013 [APPLICATION FOR EXEMPTION FROM FILLING OFFICIAL TRANSLATION]

PAPER BOOK (FOR INDEX KINDLY SEE INSIDE)

ADVOCATE FOR THE PETITIONER: RITESH AGRAWAL

I N D E X
SL. NO. 1. 2. 3. 4. PARTICULARS Office Report on Limitation. Listing Performa Synopsis & List of Dates. IMPUGNED ORDER: Copy of the Final Judgment and Order dated PAGE NO. A A1-A3 B

14.02.2013 passed by the Hon'ble High Court of Madhya Pradesh, Principal Seat at Jabalpur in Criminal Revision No.1966 of 2012
5. 6. Special Leave Petition with Affidavit Annexure P/1:

Copy of the FIR No. 159/2012 dated 18.05.2012 registered at PS Uchehara, Satna (M.P.)
7. Annexure P/2:

copy of the Chargesheet No. 215/12 dated 23.08.2012 filed before the Court of JMFC,Satna Camp, Uchecha
8. Annexure P/3:

copy of the order dated 17.9.2012 passed by Judicial Magistrate, 1st Class Ucchehra, Satna in Crl Case No.176/2012
9. 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. 11. Application for Stay Application for exemption from filing official translation

A
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CRL.) NO.______ OF 2013 IN THE MATTER OF: Raja Tiwari Versus The State of Madhya Pradesh. ...Respondent Petitioner

OFFICE REPORT ON LIMITATION

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 :

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 Raja Tiwari, S/o Shri Shankarlal Tiwari, aged about 34 years, Resident of Near Vyapar Bhawan, Subhash Park, Satna, Distt. Satna (M.P.). Accused Before High Court Before This Court

Petitioner

Petitioner

Versus

The State of Madhya Pradesh Through Secretary(Home) Secretariat Bhopal. (M. P.) Prosecution Respondent Respondent A PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA TO THE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED MOST RESPECTFULLY SHEWETH :-

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 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 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 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. 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

herewith and marked as Annexure P-1 (pages leave petition.

)to this special

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 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. d. That 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. e. That 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 was excluded from the charge sheet filed before the Court of Chief Judicial Magistrate, 1 st 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 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. g. That 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. A true and correct copy of the order dated

17.9.2012 passed by Judicial Magistrate, 1st Class Ucchehra, Satna in Crl

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 dated 17.9.2012 passed by the Judicial Magistrate, 1 st 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 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 cognizan ce 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

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. Because this Honble Court in the case of Dharam Pal Vs. State of Haryana 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 in the charge sheet could be summoned by the Court, has been referred to the Constitution Bench of this Honble Court f or 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.

I.

III.

Because the police after thorough investigation and on the basis of the statement 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 personal liberty 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 pass such other order and or orders as this Honble Court may deem fit and proper in the facts and circumstances of the case.

b)

AND FOR THIS ACT OF KINDNESS, THE PETITIONER SHALL EVER REMAIN GRATEFUL. Drawn & Filed By: (RITESH AGRAWAL) Advocate for the Petitioner New Delhi Drawn on:- .5.2013 Filed On:- .5.2013

RITESH AGRAWAL
ADVOCATE ON RECORD SUPREME COURT CHAMBER : 112,New Lawyers Chamber, Supreme Court, New Delhi-1 Tel : 23383987 OFFICE : A-5, CEL Apartments, VasundharaEnclave,DelhiTel:9810773394,9999972564 Email : [email protected]

Dated: 19.09.2013 To Raja Tiwari, S/o Shri Shankarlal Tiwari, Resident of Near Vyapar Bhawan, Subhash Park, Satna, Distt. Satna (M.P.). Subject: S.L.P ( Criminal) No. 5693 / 2013 Raja Tiwari Versus 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 Revision No.1966 of 2012)

Dear Sir, This is to inform you that as per your instructions, the aforesaid matter filed by 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)