It is a matter of profound significance that the Single Judge Bench of the Madhya Pradesh High Court at Gwalior comprising of Hon’ble Mr Justice GS Ahluwalia in a most learned, laudable, landmark, logical and latest judgment titled Parimal Singh Gurjar vs The State Of Madhya Pradesh And Others in Misc. Criminal Case No. 31252 of 2024 and cited in Neutral Citation No.: 2025:MPHC-GWL:10853 that was pronounced just recently on May 9 has minced absolutely just no words to hold in no uncertain terms most unequivocally that the Sessions Court has committed a material illegality by not taking cognizance against respondent nos. 2 and 3. This cognizance should have been taken by the Sessions Court but was not taken. There can be just no denying or disputing it!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of the Madhya Pradesh High Court at Gwalior comprising of Hon’ble Mr Justice GS Ahluwalia sets the ball in motion by first and foremost putting forth in para 1 that:
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.
To put things in perspective, the Bench while spelling out the version of the counsel for applicant envisages in para 2 stating that:
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-S9988. 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.
While delving deeper, the Bench then further lays bare in para 3 enunciating that:
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 COVID19 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.
On the contrary, the Bench then points out in para 4 that:
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 which was rejected by the committal Court, and once the committal court had played an active role, then power under Section 193 of Cr.P.C comes to an end and the trial court could have exercised its power under Section 319 of the CrPC only.
Briefly stated, the Bench then while citing the relevant case law points out in para 6 observing that:
So far as plea of alibi is concerned, Supreme Court in the case of Harjinder Singh vs. State of Punjab and another decided on 6.5.2025 in SLP (Criminal) No. 1891 of 2024, has held as under:
10. Hence, in our considered opinion, the power under Section 319 CrPC is triggered not by conjecture but by evidence that surfaces in Court.
It is worth noting that the Bench then notes in para 11 that:
So far as jurisdiction of trial court to take cognizance under Section 193 of CrPC is concerned, it is suffice to mention here that committal Court never actively considered the question of taking cognizance under Section 190 of CrPC. The role played by committal Court in the present case was passive. When an application under Section 190 of CrPC was filed, it was dismissed by the committal Court by order dated 30.9.2023 by holding that committal Court has no jurisdiction to take cognizance and its duty is only to commit the case and whether any case is made out against respondent Nos 2 and 3 or not, and whether respondent Nos 2 and 3 were involved in commission of offence or not can only be decided by the Sessions court. (It is clarified that order dated 30.9.2023 is not on record and certified copy of the said order was provided by counsel for respondent Nos. 2 and 3.).
Quite significantly, it would be instructive to note that the Bench hastens to add in para 13 holding that:
Thus, it is clear that where magistrate had played an active role by considering as to whether cognizance against the persons who have not been charge-sheeted by the police can be taken or not, then Sessions Court may not consider similar application made by the complainant and the only option which will be left with the Sessions Court would be to exercise its power under Section 319 of CrPC. In the present case, this Court has already summarised the reasons assigned by the Magistrate. At the cost of repetition, it is once again pointed out that Magistrate has not considered the merits of the case and simply held that offence under Section 307 of IPC is triable by the Court of Session and whether respondent Nos. 2 and 3 were involved or not and whether they were falsely implicated or not can be looked into by Sessions Court only. Therefore, it is held that the Committal Court did not play an active role but it played a passive role merely by committing the case to the Court of Session. Under these circumstances, the power under Section 193 of CrPC was available with the Sessions Court. Therefore, the contention of counsel for respondent Nos. 2 and 3 that Sessions Court was otherwise having no jurisdiction under Section 193 of CrPC is misconceived and is hereby rejected.
Most significantly and so also most forthrightly, the Bench encapsulates in para 14 what constitutes the cornerstone of this notable judgment postulating that, Considering the totality of the facts and circumstances of the case, this Court is of considered opinion that the Sessions Court committed a material illegality by not taking cognizance against respondent Nos. 2 and 3. Accordingly, order dated 24.6.2024 passed by Third Additional Sessions Judge, Morena in S.T. No. 315 of 2023 is hereby set aside. The application filed by applicant under Section 193 of CrPC is allowed. The trial court/Third Additional Sessions Judge, Morena is directed to take cognizance against respondent Nos 2 and 3 for offences under Sections 307 and 294 of IPC as well as any other offence which may be made out under the facts and circumstances of the case.
Finally, the Bench then concludes by holding in para 15 that:
With aforesaid observations, the application is allowed.
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
