IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE VISHAL DHAGAT st ON THE 1 OF JULY, 2023 MISC. CRIMINAL CASE No. 27550 of 2022 BETWEEN:-

1. RAGHAVENDRA SINGH S/O RAJENDRA SINGH, AGED ABOUT 38 YEARS, OCCUPATION: UPSARPANCH VILLAGE SIMARIA POLICE STATION BAHERIA TEHSIL AND DISTRICT SAGAR M.P. (MADHYA PRADESH)

2. RUSTAM SINGH S/O RAJENDRA SINGH, AGED ABOUT 33 YEARS, OCCUPATION: EMPLOYMENT ASSISTANT/PANCHAYAT SECRETARY VILLAGE SIMARIA POLICE STATION BAHERIA TEHSIL AND DISTRICT SAGAR M.P. (MADHYA PRADESH)

.....PETITIONERS (BY SHRI SANKALP KOCHAR - ADVOCATE)

AND

1. THE STATE OF MADHYA PRADESH THROUGH POLICE STATION BAHERIA DISTRICT SAGAR M.P.

(MADHYA PRADESH)

2. INDER SINGH BUNDELA S/O GANESH SINGH BUNDELA, AGED ABOUT 59 YEARS, R/O VILLAGE DHARKHEDI POLICE STATION BAHERIA SAGAR (MADHYA PRADESH)

.....RESPONDENTS (SHRI GAURAV TIWARI - ADVOCATE FOR RESPONDENT NO.2 AND SHRI AKSHAY NAMDEO - GOVERNMENT ADVOCATE)

This application coming on for admission this day, the court passed the following:

ORDER

Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure for quashing of impugned order dated 13.05.2022 nd (Anneuxre-P/8) passed by II Additional Sessions Judge, Sagar, District-Sagar (MP) in CRR No.57/2022.

2. Police station has filed charge sheet under Sections 294, 323, 324, 506, 427, 307, 147, 148, 149 of the IPC. Case is to be tried by Sessions Court. 3. Complainant has filed an application under Section 190(2) of the Code of Criminal Procedure and stated therein that in Dehati Nalisi dated 14.06.2020 and witnesses namely Ranjeet Singh, Hemlata Bundel and Mandvi Bundela in their statement recorded under Section 161 of the Cr.P.C. had stated that Rustam Thakur and Raghvendra Thakur have also committed offence. Investigating Officer has not done investigation fairly and not made said persons as accused in the case. Trial Court has relied on judgement passed by Apex Court in case of Dharam Pal Vs. State of Haryana reported in AIR

2013 SC 3018 took cognizance of offence and issued summons.

4. As per prosecution story, incident is said to have occurred on

14.06.2020 at about 03:00 pm. Complainant went to agricultural field and found that Avdhesh and Brajendra have damaged three motorcycle kept in front of their house. Complainant was assaulted by Avdhesh and when Mahendra Bundela tried to interfere to save complainant at that time Rustam and Raghvendra also arrived there with sticks and assaulted him 2-3 times.

Meanwhile, other family members came on spot and intervened.

5. Learned counsel appearing for the petitioners submitted that trial Court committed an error in not appreciating the CCTV Footage which was produced by complainant side. It is submitted that petitioners were not there in said CCTV Footage. Trial Court committed an error in not appreciating documentary evidence i.e. staff attendance register, Gram Panchayat meeting agenda produced by petitioners. It is also argued that Magistrate at the stage of cognizance cannot issue summon to accused persons who were not accused in the charge sheet. Such summon can be issued at the stage of recording of evidence exercising power under Section 319 of the Cr.P.C. Court may proceed against the person against whom evidence is available. In these circumstances, prayer is made for quashing of impugned order passed by Judicial Magistrate First Class and Revisional Court.

6. Learned Government Advocate appearing for the State supported the order passed by the trial Court and if prima facie material is available in the charge sheet and some persons are not made accused despite availability of said material available against them then Judicial Magistrate First Class is within its jurisdiction to take cognizance and issue summon to said accused persons.

In view of same, petition may be dismissed.

7. Heard the counsel for the parties.

8. Section 190 of the Code of Criminal Procedure is reproduced as under:-

190. Cognizance of offences by Magistrates.

(1) Subject t