MP High Court Slams Magistrate For Sending Attempt To Murder Case To Sessions Court Without Considering Merits, Says It Acted 'Passively'

Justice Gurpal Singh Ahluwalia in his order observed, “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.”

“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 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,” the Court said.

Background

The applicant-Parimal had filed an application under Section 190 CrPC as the police did not file chargesheet against 2 out of 4 accused who assaulted the applicant and one other person. The said application was rejected by the Magistrate stating that offence under Section 307 is triable by Court of Session. Thereafter, another application filed by Parimal under Section 193 of CrPC which was rejected by the Sessions Court.

The counsel for the applicant submitted that the complainant had lodged a FIR against 4 persons who assaulted and abused him and the applicant while they were on a motorcycle. The FIR alleged that when they objected, one of the four persons fired a gunshot which hit applicant's waist, as a result of which he fell down.

The counsel further submitted that charge sheet was only filed against two persons out of the four. The other two namely, Badshah and Rakesh were exempted on the ground that they had given a complaint to senior officers alleging their false implication. Thereafter, the applicant had filed an application under Section 190 of CrPC for taking cognizance against Badshah and Rakesh which was rejected by the committal Court/Magistrate's Court on the ground that it has no jurisdiction to try the offence under section 307 of IPC. Thereafter, applicant also filed an application under Section 193 of Cr.P.C for taking cognizance against them which was also rejected by the Court.

It was contended that whether Badshah and Rakesh were present or not on the spot was a question which has to be decided by the trial court after considering the evidence led by accused persons and the defence of plea of alibi has to be proved with cogent evidence.

Findings

After hearing the parties, the Court opined that even if the evidence collected by police with regard to plea of alibi of respondent Nos. 2 and 3 is considered, it is not sufficient to draw an inference that Badshah and Rakesh were not present on the spot at the time of incident.

With regard to the medical condition of Rakesh, the Court said that if he was bedridden due to COVID-19 infection, he should have placed a document on record to corroborate the same.

With regard to the jurisdiction of sessions court under Section 193 of CrPC, the Court said that Sessions Court committed a material illegality by not taking cognizance against respondent Nos. 2 and 3 i.e., Badshah and Rakesh

"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 high court said while directing the Sessions Court 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.

Case Title: Parimal Singh Gurjar Versus The State Of Madhya Pradesh And Others, Misc. Criminal Case No. 31252 Of 2024

Counsel for Applicant: Advocate Aditya Singh Ghuraiya

Counsel for Respondent No. 1/State: Advocate Mohit Shivhare

Counsel for Respondent No. 2 & 3: Advocate V.D. Sharma