IMPORTANT POINT
Cognizance of offence – Where magistrate had played active role by considering as to whether cognizance against persons who have not been charge-sheeted by police can be taken or not, then Sessions Court may not consider similar application made by complainant and only option which will be left with Sessions Court would be to exercise its power under Section 319 of Cr.P.C.

ORDER

This application, under Section 482 of the CrPC, has been filed against the order dated 24.6.2024 passed by Third Additional Sessions Judge, Morena in S.T. No. 315 of 2023, by which application filed by the applicant under Section 193 of the Cr.P.C has been rejected.

2. It is submitted by counsel for applicant that complainant Ramvilas Gurjar lodged an FIR that on 1.6.2021, at about 4:00 a.m., he was going from Morena to Vindwa on his Motorcycle along with applicant Parmal. Dharmendra Singh Kansana was also going by his separate motorcycle. As soon as they reached in front of farmhouse of Hakim Baghel situated at Piparsa Station Road, they saw that Badshah, Rakesh, Rahul, and Lalla alias Janavar were standing along with Lathi in their hand. On account of old enmity, all the four persons started abusing them with filthy language in the name of mother and sister. When applicant objected to it, then Badshah fired a gunshot which hit on the back side of waist of Parmal/applicant, as a result he fell down. Rakesh fired a gunshot which also caused injury on the back side of the waist of Dharmendra and he also fell down. All the four persons ran away after leaving their Scooty on the spot. Registration No. of scooty is MP06-S-9988. Information of the incident was given by complainant Ramvilas to Mohan Singh Gurjar on phone. Thereafter Mohan Singh Gurjar came on the spot and thereafter both the injured persons, i.e., applicant Parmal and Dharmendra, were taken to District Hospital, Morena on Motorcycles, from where both of them were referred to Gwalior and after admitting them in Apollo Hospital, Gwalior, complainant Ramvilas lodged the FIR.

3. It is submitted by counsel for applicant that police, after concluding the investigation, filed charge sheet against Rahul Dandotiya and Lalla alias Janavar Dandotiya and did not file charge sheet against Badshah Dandotiya and Rakesh Dandotiya on the ground that Badshah and Rakesh had given a complaint to senior officers alleging their false implication. Rakesh had also produced the documents pertaining to medical ailment on account of COVID-19 pandemic. The statements of various persons were also recorded and CCTV footage was also collected and accordingly charge sheet was not filed against Badshah Dandotiya and Rakesh Dandotiya/respondent No.s 2 and 3. It is submitted by counsel for applicant that an application filed by the applicant under Section 190 of CrPC for taking cognizance against respondent Nos. 2 and 3 was rejected by the committal Court on the ground that it has no jurisdiction to try the offence under section 307 of IPC. Thereafter, applicant filed an application under Section 193 of Cr.P.C for taking cognizance against Badshah Dandotiya and Rakesh Dandotiya, which was rejected by order dated 24.6.2024.

It is submitted by counsel for applicant that whether Badshah Dandotiya and Rakesh Dandotiya were present or not on the spot is a question which is to be decided by the trial court after considering the evidence led by accused persons. It is further submitted that defence of plea of alibi is to be proved by leading cogent evidence. In the present case, FIR specifically contains allegation that it was Badshah Dandotiya and Rakesh Dandotiya who fired two different shots causing injuries to Parimal and Dharmendra, and under these circumstances, the police committed a material illegality by relying upon the medical prescription of Rakesh Dandotiya to hold that he was medically sick on the date of incident.

It is further submitted that so far as CCTV footage of house of neighbour is concerned, the same cannot be said to be conclusive evidence in favour of accused persons because the time and date in the DVR of CCTV system is fed manually and the scene can be recreated by feeding incorrect date and time.

4. Per contra, application is vehemently opposed by counsel for respondent Nos. 2 and 3. It is submitted that earlier applicant had filed an application under Section 190 of CrPC