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2022 Supreme(Online)(MP) 8893

IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR

BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

ON THE 3rd OF AUGUST, 2022

CRIMINAL REVISIOIN No. 2319 of 2022

Between:-
MUKESH SINGH RAWAT S/O RAMSVAROOP RAWAT, AGED AROUND 40 YEARS, OCCUPATION - REGIONAL PROVIDENT FUND COMMISSIONER-II, R/O B-58, PEBBLE BAY COLONY, HOSHANGABAD ROAD, BHOPAL (MADHYA PRADESH).
.........APPLICANT
(BY SHRI ANIL KHARE – SENIOR ADVOCATE WITH SHRI PRIYANK AGRAWAL AND SHRI ATUL GUPTA – ADVOCATES)
AND
1. STATE OF MADHYA PRADESH THROUGH POLICE STATION AARON, DISTRICT- GWALIOR (MADHYA PRADESH).
2. RAGHUVEER RAWAT S/O BHARAT SINGH RAWAT, AGED AROUND 33 YEARS, R/O GRAM BANHERI, POLICE STATION AARON, DISTRICT – GWALIOR (MADHYA PRADESH).
.........RESPONDENTS
(SHRI PPS VAJEETA – PUBLIC PROSECUTOR FOR RESPONDENT NO.1 / STATE)
(SHRI PRASHANT SHARMA AND SHRI VIRENDRA SINGH PAL – ADVOCATES FOR RESPONDENT NO.2)

Advocates:
For the Appellants/Petitioners: Anil Khare, Priyank Agrawal, Atul Gupta
For the Respondents: PPS Vajeeta, Prashant Sharma, Virendra Singh Pal

A trial court is not barred from exercising its power under Section 319 CrPC to summon an additional accused simply because a police closure report is pending. Such power is discretionary and based on trial evidence that demonstrates a strong prima facie case of complicity.

Headnote:(A) Code of Criminal Procedure, 1973 - Section 319 - Power to proceed against other persons appearing to be guilty of offence - Summoning of additional accused - Court’s power is discretionary and extraordinary, to be exercised sparingly - Evidence required must be stronger than what is needed for framing a charge but short of evidence required for final conviction - Pendency of a closure report before a jurisdictional Magistrate does not preclude a trial court from exercising its power under Section 319 - Once an order is passed under Section 319, any pending closure report loses its efficacy. (Paras 16, 17, 18, 19)

(B) Evidence - Plea of alibi - Burden of proof - Initial burden lies heavily upon the accused to prove alibi by leadings cogent and reliable evidence - Mere production of inconsistent documentary evidence or manipulated electronic data is insufficient to discharge this burden. (Paras 10, 27, 28, 32)

Facts of the case:
The complainant alleged involvement of an additional person in a criminal incident involving murder and assault. Despite the person being named in the initial complaint, the investigating agency submitted a closure report in his favor, citing a plea of alibi supported by electronic evidence and location tracking. The trial court, acting on evidence recorded during the trial, summoned the person as an additional accused under Section 319 of the Code of Criminal Procedure. The applicant challenged this on the grounds of the pending closure report and the reliability of his alibi evidence.

Findings of Court:
The court observed that the evidence produced to support the plea of alibi was inconclusive, contained internal contradictions, and lacked the necessary authentication under the relevant evidence laws. It ruled that the court’s power under Section 319 must be exercised based on trial evidence, and the trial court is not bound by a pending closure report or the investigating agency’s findings if sufficient grounds for summoning exist.

Issues: The issues were whether a trial court can exercise its power under Section 319 of the Code of Criminal Procedure when a closure report is still pending before a magistrate, and whether the material collected during investigation constitutes sufficient ground to override the prima facie evidence of complicity recorded during the trial.

Ratio Decidendi: The court held that the trial court is not precluded from exercising its extraordinary jurisdiction under Section 319 merely because a closure report is pending. If there is evidence on record suggesting the involvement of an additional person, the trial court must proceed. The plea of alibi remains a matter of evidence that must be rigorously proven by the accused and cannot be established through questionable electronic documentation alone.

Result: Revision dismissed.

Reserved on : 1st of August, 2022

Delivered on : 3rd of August, 2022

This application coming on for hearing this day, the Court passed the following:

ORDER

This Criminal Revision under Sections 397, 401 of Cr.P.C. has been filed against the order dated 14/6/2022 passed by Third Additional Sessions Judge, Gwalior in Sessions Trial No.476/2021, by which the applicant has been summoned as an additional accused under Section 319 of Cr.P.C. as well as all other consequential proceedings.

2. The necessary facts for disposal of the present revision in short are that the complainant Raghuveer Rawat lodged a Dehati Nalishi on 26/5/2021 at 23:50 hours on the allegations that on the issue of old enmity, at about 10:15 PM co-accused Poshan, Banti, Dharmveer, Rajveer, Pushpendra, Atendra and Ashok came to his tube-well in furtherance of common object and started abusing him and also fired indiscriminately. Poshan fired a gunshot on his younger brother Ramnivas from his mouser gun, which hit on the right side of his abdomen. After sustaining the gunshot injury, Ramnivas fell down on the ground. Banti and Rajveer assaulted his father Bharat Singh, as a result, he sustained injury on his legs, head and hands. Vikram Singh and Sughar Singh were present on the spot, who have witnessed the incident. Thereafter, they took Raghuveer to J.A. Hospital on their private vehicle where he was declared dead. His father Bharat Singh has been admitted in the Link Hospital. The above-mentioned persons in furtherance of common object have attached his brother and father, as a result, his brother Ramnivas has expired and his father has sustained grievous injuries. For committing this offence the co-accused Mukesh (applicant) and Saroj have played a direct role. On the basis of this FIR, Crime No.31/2021 was registered in Police Station Aaron, District Gwalior against nine persons including the present applicant. The statements of the witnesses were recorded and accordingly, the police filed the charge-sheet against 11 accused including Saroj Rawat against whom identical allegations were made in the FIR, and kept the investigation pending against the applicant.

3. It appears that at a later stage, the police filed a closure report in respect of the applicant on the ground that from the CCTV footage of the house of the applicant, it is clear that at the time of the incident the applicant was in his house B-58, Pebble Bay Colony, Hoshangabad Road, Bhopal.

4. Prior to that, the complainant had filed an application under Section 193 of Cr.P.C. for taking cognizance against the applicant. The said application was rejected by the Trial Court by order dated 26/11/2021 on the ground that investigation is still pending against the applicant. The said order was challenged before this Court and by order dated 29/4/2022 passed in Criminal Revision No.693/2022 the said revision was dismissed and the following order was passed:-

Shri Prashant Sharma, Counsel with Shri Veerendra Pal, Counsel for the applicant.

Shri C.P. Singh, Counsel for the State.

This criminal revision under Section 397, 401 of CrPC has been filed against the order dated 26.11.2021 passed by the Third Additional Sessions Judge, Gwalior in S.T. No.476/2021, by which the application filed by the applicant under Section 193 of CrPC for taking cognizance against Mukesh Rawat has been rejected on the ground that the investigation is pending against the respondent No. 2.

It is submitted by the counsel for the applicant that during the pendency of this application, the police has filed the closure report and, accordingly, by order dated 11.03.2022, this Court had directed the counsel for the applicant to address on the question of maintainability of this revision in the light of changed circumstance.

The facts of the case are that the police has filed the charge-sheet against 11 persons for offence under Sections 302, 147, 148, 149, 294, 323, 120-B of IPC in Crime No.31/2021 registered at Police Station Aron Distri

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2022 Supreme(Online)(MP) 8893

A trial court is not barred from exercising its power under Section 319 CrPC to summon an additional accused simply because a police closure report is pending. Such power is discretionary and based on trial evidence that demonstrates a strong prima facie case of complicity.

Cases Referred (2)