The Magistrate's discretion to take cognizance is not bound by the investigating officer's opinion, and the plea of alibi must be proven at trial, not at the cognizance stage.

ORDER :

This petition has been filed to invoke the inherent powers under Section 482 of Cr.P.C. assailing order dated 28.04.2022, passed in Criminal Revision No.75/2022 (Devi Singh Meena & Others Vs. State of M.P.) by 25th District and Additional Sessions Judge, Bhopal arising out of order dated 13.12.2021, passed by Shri Krishanpal Singh Sisodiya, JMFC by which in exercise of powers under Section 190(1)(a) of Cr.P.C, the Magistrate has taken cognizance against the applicants for offence punishable under Section 302/34 of IPC.

2. The necessary facts for disposal of this petition are that on 20.10.2020 at around 2:50 P.M. Ombabu Meena resident of village Barai, Police Station Bhopal informed Purendra Singh, Police Inspector/SHO Police Station Katara Hills that he is resident of Barai and is a farmer. Today at around 2:00 P.M. he was working in his compound in front of his house. His wife Jyoti and sister Seema were sitting in the Varandah of the house. His mother was roaming outside the Varandah. In the meantime his uncle Devi Singh’s son Raju Meena armed with axe along with his elder brother Jeevan Meena and father Devi Singh Meena uttering abuses came. Uncle Devi Singh exhorted Raju and asked him to eliminate all as they always raise disputes about land and compound (Bada). On the basis of exhortation given by uncle Devi Singh, Raju Meena with an intention to kill his mother gave axe blow on her neck due to which she fell down on the earth but Raju repeatedly hit her. Owing to fear, his wife Jyoti and sister fled away and bolted the house from inside. Jeevan was also exhorting Raju saying that today they have to eliminate all. Upon hearing screams, when number of villagers reached there, Devi Singh, his son Jeevan and Raju fled away from the spot. His mother had died. On account of old enmity with regard to land and compound dispute they all in furtherance of common intention had come and on the basis of exhortation given by Devi Singh and Jeevan, Raju murdered his mother Shanta Bai. Devi Singh and Jeevan had played active role in murder of his mother. On the basis of narration given by Ombabu Meena within 50 minutes of the incident, Dehati Nalsi was recorded and on the basis of Dehati Nalsi FIR No.213/2020 was registered at Police Station Katara Hills, Bhopal for commission of offence under Section 302/34 of IPC. Same day Ombabu Meena’s statement under Section 161 of Cr.P.C. was recorded. His wife and sister’s statements were recorded on 24.10.2020. In postmortem examination 16 injuries were found on the dead body of the deceased. On 11.01.2021, Police filed charge sheet only against Raju @ Rajkumar Meena for commission of offence under Section 302 of IPC. Charge sheet was not filed against present applicants as investigation under Section 173(8) of Cr.P.C was shown to be going on.

3. On 23.10.2020, one Arun Meena, S/o Bharat Singh Meena, resident of Village Surod, District Vidhisa submitted an application in writing before Additional Superintendent of Police, Bhopal stating false implication of Devi Singh and Jeevan in the alleged crime. In the course of investigation with regard to Devi Singh, Jeevan and Omvati Police got recorded the statement of Jitendra Meena, Shubham Sahu, Ashok Meena and Devki Bai under Section 161 and 164 of Cr.P.C. They stated that at the time of commission of offence Devi Singh, Jeevan and Omwati were not present on the spot. Police also recorded the statement of Om Prakash Meena and Om Prakash Sharma. It collected mobile location of the Mobile No.982775428 and footage of one camera of Traffic Police Control Room, Raisen. As per Police in CCTV footage, Jeevan Meena’s car bearing registration No. MP-04-CL-5092 at 2:50 P.M is seen. Police also recorded the statement of Arun Meena, Neeraj Lodhi, Jitendra Meena, Harnam Singh Yadav and Babribhan Meena who stated that on the date of incident at 2:30 P.M. Jeevan Meena was with them. As per police at 2:58 P.M., Jeevan is seen in camera of AU Bank, Raisen. As