Madhya Pradesh High Court
Vijay Singh vs The State Of Madhya Pradesh on 22 November, 2023
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
MISC. CRIMINAL CASE No. 46932 of 2019
BETWEEN:-
VIJAY SINGH S/O RAMROOP TYAGI, AGED
ABOUT 48 YEARS, OCCUPATION:
AGRICULTURIST, R/O VILLAGE
NAYAGAON, POLICE STATION KAILARAS
DISTRICT MORENA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AMIT LAHOTI AND SHRI BRAJESH KUMAR TYAGI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION KAILARAS
DISRTRICT MORENA (MADHYA
PRADESH)
2. DWARIKA S/O JALIM TYAGI, AGED
ABOUT 63 YEARS, MS ROAD JOURA
MORENA (MADHYA PRADESH)
3. VIRENDRA SINGH S/O RAMJILAL
TYAGI, AGED ABOUT 43 YEARS,
NAYAGAON P.S. KAILARAS MORENA
(MADHYA PRADESH)
4. PRAVEEN TYAGI S/O VIRENDRA TYAGI,
AGED ABOUT 25 YEARS, NAYAGAON
P.S. KAILARAS MORENA (MADHYA
PRADESH)
5. MANOJ TYAGI S/O DWARIKA PRASAD
TYAGI, AGED ABOUT 43 YEARS, MS
ROAD JOURA MORENA (MADHYA
PRADESH)
Signature Not Verified
Signed by: RASHID KHAN
Signing time: 22-11-2023
06:35:30 PM
2
6. MUNESH TYAGI S/O KESHAV PRASAD
TYAGI, AGED ABOUT 41 YEARS,
NAYAGAON PS KAILARAS MORENA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIRENDRA SINGH PAL - DEPUTY ADVOCATE GENERAL FOR
STATE)
(BY SHRI R.K. SHARMA - SENIOR ADVOCATE WITH SHRI MAHENDRA
KUMAR CHOUDHARY - ADVOCATE AND SHRI PURAN KUMAR
KULSHRESTHA FOR RESPONDENTS NO.1 TO 6)
AND
MISC. CRIMINAL CASE No. 39226 of 2023
BETWEEN:-
1. DWARIKA PRASAD TYAGI S/O SHRI
ZALIM PRASAD TYAGI, AGED ABOUT 75
YEARS, M S ROAD JORA DISTRICT
MORENA (MADHYA PRADESH)
2. MANOJ TYAGI S/O SHRI DWARIKA
PRASAD, AGED ABOUT 42 YEARS, M.S.
ROAD JOURA MORENA (MADHYA
PRADESH)
3. VIRENDRA TYAGI S/O SHRI RAMJILAL
TYAGI, AGED ABOUT 55 YEARS,
NAYAGAON P.S. KELARAS MORENA
(MADHYA PRADESH)
4. PRAVEEN TYAGI S/O SHRI VIRENDRA
TYAGI, AGED ABOUT 32 YEARS,
NAYAGAON P.S. KELARAS MORENA
(MADHYA PRADESH)
5. MANISH TYAGI S/O SHRI KESHAV
PRASAD TYAGI, AGED ABOUT 39
YEARS, NAYAGAON P.S. KELARAS
MORENA (MADHYA PRADESH)
.....PETITIONERS
Signature Not Verified
Signed by: RASHID KHAN
Signing time: 22-11-2023
06:35:30 PM
3
(BY SHRI R.K. SHARMA - SENIOR ADVOCATE WITH SHRI MAHENDRA
KUMAR CHOUDHARY - ADVOCATE AND SHRI PURAN KUMAR
KULSHRESTHA FOR RESPONDENTS NO.1 TO 6) )
AND
1. THE STATE OF MADHYA PRADESH
INCHARGE POLICE STATION
THROUGH POLICE STATION KOLARAS
DISTRICT MORENA (MADHYA
PRADESH)
2. VIJAY SINGH TYAGI S/O SHRI
RAMROOP TYAGI, AGED ABOUT 49
YEARS, NAYGAON P.S KELARAS
MORENA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VIRENDRA SINGH PAL - DEPUTY ADVOCATE GENERAL FOR
STATE)
(BY SHRI AMIT LAHOTI AND SHRI BRAJESH KUMAR TYAGI - ADVOCATE
FOR RESPONDENT NO.2)
___________________________________________________________
Reserved on : 12/09/2023
Pronounced on : 22/11/2023
These petitions having been heard and reserved for order coming on
for pronouncement this day, this Court passed the following:
ORDER
1. Regard being had to the similitude of controversy, these petitions are heard analogously and decided by this common order. For convenience's sake, facts as narrated in MCRC No.46932 of 2019 are taken into consideration.
Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 42. Instant petition under Section 482 of the Cr.P.C. was preferred by the petitioner as complainant of the case being aggrieved by the order dated 22.10.2019 passed by the learned J.M.F.C., Sabalgarh, District Morena, whereby private complaint filed by the petitioner/complainant for offence punishable under Sections 302, 148, 149 of the IPC and Sections 25/27 of the Arms Act was rejected.
3. Precisely stated facts of the case are that as per story of prosecution, on 07.10.2015, petitioner-Vijay Singh alongwith his father-Ramroop Tyagi was returning from the Sessions Court Sabalgarh District Morena after attending the Court proceedings, then all of a sudden, one Marshal Jeep intercepted the motorcycle of petitioner, accused persons after being alighted from the vehicle opened fire over petitioner and his father. Due to which, petitioner's father became unconscious and later on, succumbed to the injuries. However his dying declaration was recorded.
4. On the basis of aforesaid incident, Police Station Kailaras registered an FIR vide Crime No.340/2015 on 07.10.2015 for offence punishable under Sections 147, 307 of IPC and Sections 25/27 of the Arms Act. Since father of petitioner, at that point of time, was alive, therefore, offence under Section 302 of IPC was not added. Dying declaration and various statements have been recorded. After the incident, when deceased was alive, he was referred to J.A. Hospital, Gwalior where on 08.10.2015 he expired.
Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 55. As per allegations, because of political pressure, police did not investigate the case in free and fair manner which prompted the petitioner to file petition bearing Writ Petition No.365/2016 for free and fair investigation. Government Advocate during the proceedings informed the court that final report (Khatma report) under Section 173 of Cr.P.C. has been filed before the competent Magistrate which indicates that no offence is made out against the present accused persons. Therefore, said writ petition was disposed of vide order dated 04.11.2016 with liberty to the petitioner to resort to the remedies as available to him in accordance with law.
6. The petitioner filed objections before the competent court and filed private complaint against such final report and prayed for taking cognizance for the offence against the accused persons (respondent No.2 to 6) in the murder of the father of petitioner. Despite such objections having being filed, when no action was being taken by the concerned Magistrate, then petitioner approached this Court seeking direction by filing the petition under Section 482 of Cr.P.C. bearing MCRC No.36918/2019 in which vide order dated 09.09.2019 this court considered the rival submissions and concluded that closure report is already pending before the same court where private complaint has been filed by the petitioner, therefore, direction was given to file an application before the trial Magistrate for clubbing both those cases together and to decide as early as possible preferably within a period of two months from the Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 6 date of receipt of certified copy of the order. The said order was to be complied with by the concerned Magistrate but it appears that instead of clubbing the private complaint and closure report, trial court proceeded and heard the complainant on registration/cognizance and dismissed the private complaint purportedly under Section 203 of Cr.P.C.. According to concerned Magistrate, because of previous enmity between the parties and on plea of alibi, no case for registration is made out and private complaint accordingly dismissed.
7. Being aggrieved by the said order, petitioner/complainant filed petition under Section 482 of Cr.P.C. which is the present case (MCRC No.46932/2019). Coordinate Bench of this Court vide order dated 30.11.2019 passed a detailed order narrating all the factual contours of the controversy and set aside the order passed by the J.M.F.C. Sabalgarh, District Morena while allowing the petition and remanded the matter back to the court of J.M.F.C. Sabalgarh to decide the same in accordance with the directions given in Writ Petition No.365/2016 as well as order dated 09.09.2019 passed by this Court in MCRC No.36918/2019. Coordinate Bench noted the fact that final report has not been placed before the J.M.F.C. Sabalgarh, District Morena till that date and therefore, Police Station Kailaras was directed to immediately file the final report within three days before the J.M.F.C. Sabalgarh, so that he can consider the final report as well as contents of Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 7 complaint before ensuring passing appropriate order.
8. Incidentally, in the said case, Coordinate Bench did not give any opportunity of hearing to the accused persons (present respondents No.2 to 6), therefore, one of the accused persons (Munish Tyagi) went to the Hon'ble Supreme Court by filing the SLP (Criminal) No.1877 of 2020 and same was filed on 22.02.2020. Vide order dated 11.07.2023, said SLP was allowed and order dated 30.11.2019 passed in present petition (MCRC No.46932 of 2019) was set aside on the ground of violation of principles of natural justice and the same was restored to its original position and direction was given to decide the case in accordance with law after giving opportunity of hearing to the parties concerned. Although, before passing of interim order on 07.07.2020 by Apex Court, the lower court complied the order dated 30.11.2019 of this court and vide order dated 31.01.2020 rejected the closure report and took cognizance. After that order, S.L.P. was filed on 22.02.2020 and interim order was passed on 07.07.2020.
9. In pursuance thereof, matter is before this Court.
10. It appears that after passing of the order dated 30.11.2019 in MCRC No.46932/2019, learned Magistrate considered the request for clubbing the closure report alongwith private complaint vide order dated 11.12.2019 and thereafter, heard the petitioner/complainant/objector and ADPO on 25.01.2020 and vide order dated 31.01.2020 rejected the closure report (Final Report) Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 8 and took the cognizance against the respondents No.2 to 6 under Sections 148, 302, 149 of the IPC and Sections 25/27 of the Arms Act. Against the said order dated 31.01.2020 whereby cognizance has been taken, recently petition under Section 482 of Cr.P.C. has also been filed by the petitioner on 28.08.2003 vide MCRC No.39226/2023. Therefore, both these cases are heard together.
11. After passing of the order dated 31.01.2020 by the learned J.M.F.C., Sabalgarh whereby cognizance has been taken, SLP was filed on 22.02.2020 and placed for consideration before the Hon'ble Supreme Court whereby interim order was passed on 07.07.2020 whereby effect and operation of the judgment and order dated 30.11.2019 was stayed. However; till that time, learned J.M.F.C. Sabalgarh has already passed the order dated 31.01.2020 and it appears that parties have not apprised the Apex Court about this fact at the time of hearing on admission/stay, therefore, possibility cannot be ruled out that SLP might have been filed at the instance of one of the accused namely Munish Tyagi after getting the knowledge of passing of the order dated 31.01.2020.
12. Not only this, when final order was passed on 11.07.2023 by Hon'ble Supreme Court, then also this fact was not disclosed before the Supreme Court by the litigating parties.
13. Now the matter is remanded back by the Hon'ble Supreme Court for fresh hearing and meanwhile, accused persons have filed petition under Section 482 of Cr.P.C. bearing MCRC Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 9 No.39226/2023. Therefore, both the cases are being heard analogously for factual clarity and decided by this common order.
14. It is the submission of learned counsel for the petitioner/complainant (in MCRC No.46932/2019) that despite serious allegations levelled by the petitioner against the accused persons in respect of murder of father of petitioner where petitioner himself is a eye-witness which is duly corroborated by the medical evidence as well as dying declaration of deceased, still police did not investigate the case in just and fair manner and filed Khatma report. When dying declaration and eye-witness account specifically divulged the details of accused persons and course of action, then it was the duty of the police authorities to investigate the matter thoroughly. Only on flimsy pretext of plea of alibi and on the ground of previous enmity, the case was rejected. Surprisingly, learned Magistrate did not consider all these aspects and imposed its findings, thereafter, proceeded on assumptions when he earlier rejected the private complaint vide order dated 22.10.2019.
15. It is submitted that when this Court in MCRC No.36918/2019 gave directions vide order dated 09.09.2019 to club final report alongwith private complaint and thereafter, pass an appropriate order then learned J.M.F.C. Sabalgarh was duty bound to comply the same, but he did not ask the police authorities to file final report and did not club the final report alongwith private complaint and Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 10 thus, non-compliance of order dated 09.09.2019 is writ large. Therefore, order suffers from illegality and perversity.
16. Presumptions and assumptions in a criminal case, at the time of cognizance of offence, are not to be taken into consideration especially when eye-witness account and dying declaration were staring at the record of the case but ignoring the same, learned J.M.F.C. Sabalgarh caused illegality and arbitrariness. Defence of the accused persons could not have been considered at the stage of cognizance.
17. Learned Deputy Advocate General for the respondent/State fairly took the stand that when direction was given by this Court vide order dated 09.09.2019 in MCRC 36918/2019, the learned J.M.F.C. Sabalgarh had to comply the said order and thereafter, should have ensured passing of the order. According to the counsel for the State, this is a case where investigation was to be carried out more extensively and trial court ought to have considered all the anomalies crept into the investigation by the police. He fairly submitted that no case is made out by accused persons to accept their petition under Section 482 of Cr.P.C. (MCRC No.39226/2023) once cognizance has been taken by the court below. Said cognizance has been taken on 31.01.2020 at the time when SLP was not even filed before the Hon'ble Supreme Court because notices were issued on 07.07.2020 and stay was granted but by that time, much water had flown already because cognizance was taken Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 11 by the court below on 31.01.2020.
18. Learned counsel for the respondents No.2 to 6 (in MCRC No.46932/2019) opposed the prayer made by the petitioner/complainant. According to said respondents, cognizance was taken on 31.01.2020 but thereafter stay was granted, therefore, cognizance is bad in law.
19. It is further submitted that since the Hon'ble Supreme Court has set aside the order dated 30.11.2019 passed by this Court in MCRC No.46932/2019 and remanded back the case to this Court for fresh hearing, therefore, any order subsequently passed by the learned Magistrate (order dated 31.01.2020) in compliance of the order dated 30.11.2019 has no value and no cognizance could have been taken against the respondents No.2 to 6. However; with abundant caution, order dated 31.01.2020 passed by the learned J.M.F.C. Sabalgarh is also challenged.
20. According to learned counsel for the respondents No.2 to 6, court below has caused illegality in taking cognizance in the matter in year 2012 because members of complainant party committed murder of Keshav Prasad and his two sons and in said case, all accused persons were convicted by the learned Second Additional Sessions Judge, Sabalgarh, Morena vide order dated 01.04.2017. During the pendency of such sessions trial, Ramroop Tyagi (deceased) aged 70 years was murdered by his own family members to concoct and fabricate a false case of murder against the Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 12 respondents No.2 to 6 because the complainant party was trying to pressurize the respondents No.2 to 6, so that no evidence has been given against the accused persons in Session Trial No.110/2013. Police has conducted just and fair investigation and found the case of complainant as of false implication, therefore, filed closure report. Learned J.M.F.C. Sabalgarh erred in ignoring the contents of Khatma report and taking cognizance in the matter.
21. Heard the counsel for the parties and perused the documents appended thereto.
22. This is a case which has been remanded back as per the direction of Hon'ble Supreme Court vide order dated 11.07.2023 in SLP (Criminal) No.1877 of 2020.
23. Perusal of the order dated 30.11.2019 passed in MCRC No.46932/2019, it appears that Coordinate Bench discussed all the factual contours of the controversy in detail but looking to the peculiar facts situation and to avoid delay, did not afford any opportunity of hearing to the accused persons. Therefore, matter was remanded back by the Hon'ble Supreme Court for fresh hearing.
24. Perusal of the order dated 22.10.2019 passed by the JMFC, it appears that learned Magistrate proceeded with the case in haste and overlooked the directions given by this court vide order dated 09.09.2019 passed in MCRC No.36918/2019. Vide said order, direction for clubbing of closure report and private complaint was Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 13 given and thereafter, analogous hearing was directed to be undertaken. Learned J.M.F.C. Sabalgarh failed to do so. Not only this, role of police smacked mischief prima facie, because when the W.P. No.365/2016 was heard on 04.11.2016 then Government Advocate, on the basis of instructions, informed the court that closure report is being filed before the concerned court but that closure report was never filed till 30.11.2019 when order was passed in MCRC No.46932/2019. Thereafter, closure report was placed before the concerned court and analogous arguments were advanced on 25.01.2020 and thereafter, order dated 31.01.2020 was passed in which cognizance has been taken.
25. Submissions of counsel for the accused persons that learned J.M.F.C. Sabalgarh cannot review its own order lacks merit because earlier order dated 22.10.2019 was already set aside by this Court in order dated 30.11.2019. Therefore, order dated 31.01.2020 was a valid order which was passed by the learned J.M.F.C. in absence of any stay order from the Hon'ble Supreme Court of India at that point of time.
26. It appears prima facie that SLP was preferred after passing of the order dated 31.01.2020 (S.L.P. Filed on 22/02/2020) and perhaps kept pending for long before came for hearing on admission on 07.07.2020 after almost 6 months of passing of order dated 31.01.2020 by the J.M.F.C. and surprisingly this fact has not been disclosed before the Hon'ble Supreme Court when arguments were Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 14 heard on admission and stay on 07/07/2020.
27. However, perusal of the order dated 31.01.2020 indicates that learned J.M.F.C. has considered the closure report extensively and thereafter, ensured cognizance. Since learned J.M.F.C. has considered the closure report for the first time because prior to it, closure report was never filed by the police for consideration before the J.M.F.C. and therefore, this is a cognizance taken by the J.M.F.C. while rejecting the closure report and impliedly accepting the objections of complainant and of-course taking into consideration the contents of private complaint also.
28. Perusal of order dated 22.10.2019 at the one hand indicates that learned J.M.F.C. did not consider the contents of closure report and objections filed by the complainant and at the same time, when the said order was set aside by this Court vide order dated 30.11.2019 and remanded back the matter for fresh reconsideration while clubbing the closure report and private complaint, then learned J.M.F.C. objectively considered the same and passed the order of cognizance dated 31.01.2020. At that time, no stay of Hon'ble Supreme Court was operating in favour of accused persons and in fact, proceedings were open. Therefore, learned J.M.F.C. was right in its approach when after due consideration, cognizance was taken. As per the allegations leveled in dying declaration / eye- witness account duly supported by medical evidence, trial is required to be held in the interest of justice. Therefore, this court Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 15 does not express any opinion about the authenticity / veracity of the allegations or defence but the observation is made for the purpose of considering issuance of cognizance and confined to the extent of consideration over cognizance.
29. Even otherwise, after hearing the rival submissions, this Court came to the conclusion that matter requires to go for trial at least where parties shall have the right and opportunity to unravel the truth and trial court may unfold the truth. Therefore, after remand from Hon'ble Supreme Court and after hearing the counsel for the parties at length, it appears that order dated 22.10.2019 passed by the J.M.F.C. deserves to be set aside and therefore, it is hereby set aside.
30. Since cognizance has already been taken, therefore, no further order is required to be passed. Purpose of filing the petition bearing MCRC No.46932/2019 is over. Similarly, on the basis of discussions made above, purpose of filing the MCRC No.39226/2023 is also over as it lacks merit. Cognizance vide order dated 31.01.2020 has already been taken after due appreciation of evidence available on record. Accused persons shall have to face trial in accordance with law as per rights available to them.
31. If the order dated 22.10.2019 would not have deserved any interference and if this Court would have come to the conclusion that order dated 22.10.2019 was just and legal, then certainly in Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM 16 that condition arguments of the counsel for the accused persons would have assumed importance but since no material position on merits has been changed even after affording opportunity of hearing to all the parties concerned, therefore, this order has been passed.
32. It is made clear that this order has been passed exercising the inherent powers of this Court in this peculiar facts situation to check the abuse of process of law and to secure the ends of justice.
33. It is also made clear that observations made in preceding paragraphs are only for the purpose of deciding the cases in hand and trial shall be proceeded on its own merits without being influenced by any observations of this Court.
34. Accordingly, petition vide MCRC No.46932/2019 stands disposed of in above terms. MCRC No.39226/2023 stands dismissed.
(ANAND PATHAK) JUDGE Rashid Signature Not Verified Signed by: RASHID KHAN Signing time: 22-11-2023 06:35:30 PM