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2025 DIGILAW 457 (MP)

Nishant @ Bunty Tyagi v. State of Madhya Pradesh

2025-08-07

ANIL VERMA

body2025
ORDER : 1. The petitioner has preferred this Misc. petition under Section 482 of Code of Criminal Procedure (in short as 'Cr.P.C.') for quashment of the order dated 04.11.2024 passed by Judicial Magistrate, I Class, Mehgaon District Bhind in R.C.T No.167 of 2023 whereby, the closure report filed by the respondent no.2 has been rejected and the cognizance of offences under Sections 302, 307, 294, 147, 148, 149 read with Section 120-B of I.P.C and under Section 25/27 of the Arms Act was taken against the petitioner. 1A. As per order for nomination of Bench passed by Hon'ble the Chief Justice, it has been directed that this court will also hear the Cr. Revision No.6219 of 2024 along with connected three M.C.R.Cs.Therefore, this M.Cr.C. is being heard and decided by this Court. 2. Briefly stated facts of the case are that, respondent No.3/complainant Manoj Nalishi at PS Mehgaon stating that on account of previous enmity, accused persons namely: Narendra Tyagi, Prem Sagar, Vivek Tyagi, Saurabh, Pramod, Jitendra, Gaurav, Anil, Shiv Sagar, Prashant, Vikas, Ramanand, Anoop, Rahul Tyagi, Rahul Rajawat, Vishal Tyagi and Surya Narayan armed with guns and sticks came near Panchayat Bhawan on 15.01.2023 at around 10 a.m and started hurling abuses and firing, as a result, Hakim Prasad Tyagi, Golu @ Anuj and Pinku @ Dhirendra Tyagi had sustained bullet injuries due to which they died, thereafter, the accused persons ran away from there. The said incident was witnessed by Manoj and Lokesh Tyagi. After inquiry of the said Dehati Nalishi, an FIR bearing Crime no. 10 / 23 was registered under sections 302, 307, 147, 148, 149, 294, 120-B of IPC and 25 / 27 of Arms Act against the accused persons including the present petitioner Nishant @ Bunty Tyagi. 3. After completion of investigation, the charge-sheet has been filed against 13 accused persons but the investigation was kept open against the present petitioner and his father Narendra Tyagi and three other persons under section 173(8) of Cr.P.C. Subsequently, the investigation was handed over to the C.I.D and on the basis of the statements of witnesses under Section 161 of Cr.P.C and the CCTV Cameras installed in different places, it has been found that the petitioner's father Narendra Tyagi was not present on the place of incident and at the relevant time, he was present at Shri Ramchandra Mission Heart Fullness Center, Gwalior. Therefore, Narendra Tyagi was exonerated but the investigation was kept open against the petitioner and according to the investigation conducted by the CID, it was found that the petitioner was not present at the place of incident at the relevant time and he was present at Gwalior which is about 60-70 Kms away from the place of occurrence. On the basis of the detailed investigation conducted by the CID, no tempering was found in the CCTV Cameras, pen-drive and hard-disc and after the investigation, it has been held by the investigating officer that the petitioner has not conspired to commit murder of three deceased persons and other offences. Therefore, the closure report under Section 169 of Cr.P.C has been submitted by the CID before the court of J.M.F.C, Mehgaon. The J.M.F.C. Mehgaon has rejected the same and took cognizance for the aforesaid offences and straightway issued warrant of arrest against him. Being aggrievedby the same, the petitioner has preferred this petition. 4. Learned counsel for the petitioner has contended that the petitioner is innocent and he has been falsely implicated in the matter with malafide intention which is duly proved by the investigation conducted by the C.I.D. The learned Magistrate without any reason discarded the closure report whereby, the plea of alibi of the petitioner was found to be true. On the basis of the statements of the independent witnesses of the locality, it has been gathered in the investigation that the petitioner was not present on the place of incident which is also proved by the CCTV Cameras and other electronic evidence which was never tempered. The impugned order is bad in law and suffers from perversity. Hence, he prays that the impugned order be set-aside and the petitioner be exonerated from all the offences registered against him at PS Mehgaon at Crime No.10 of 2023. 5. Per contra, learned counsel for the respondent No.1 and 2/State as well as respondent No.3 opposed the prayer and submitted that on the basis of judgment rendered by the Constitutional Bench in the case of Hardeep Singh Vs. State of M.P. (2014) 3 SCC 1992, wherein, it has been held that the petitioner can plead his innocence only on the basis of trial because, the witnesses have referred in their examination-in-chief about involvement of the petitioner. State of M.P. (2014) 3 SCC 1992, wherein, it has been held that the petitioner can plead his innocence only on the basis of trial because, the witnesses have referred in their examination-in-chief about involvement of the petitioner. Therefore, at this stage, no interference can be made.Learned counsel for the respondents have relied upon the following citations : (i) By Hon'ble Supreme Court in Mukesh Singh Rawat Vs. State of M.P. and Others Special Leave to Appeal (Cri) No. 10484 of 2022 on 07.11.2022, Jagdish Prasad Dixit Vs. State of M.P. in SLP (Cr) Diary No. 48079 of 2024 on 16.12.2024 and Devi Singh Meena and Ors. Vs. State of M.P. & Another in Special Leave to Appeal (Cri) No. 10749 of 2024 on 14.08.2024 and by a coordinate Bench this Court in Mukesh Singh Rawat Vs. State of M.P. and Others in Cr. Revision No. 2319 of 2022 on 03.08.2022, Chandrakant Yadav and Another Vs. State of M.P. and Another in M. Cr. C. No. 25903 of 2024 on 30th July, 2024 and Devi Singh Meena and Others Vs. State of M.P. & Ors in M. Cr. C. No. 26063 of 2022 on 8th April, 2024. 6. Heard learned counsel for both the parties and perused the record. 7. Counsel for the petitioner has initially tried to project that during pendency of the closure report, the trial court is precluded from exercising its powers under section 319 of Cr.P.C and to substantiate his submission, learned counsel for the petitioner has relied upon the judgment of the Apex Court in the case of Brajendra Singh and Others Vs. State of Rajasthan, (2017) 7 SCC 706 as under : "When we translate the aforesaid principles with their application to the facts of this case, we gather an impression that the trial court acted in a casual and cavalier manner in passing the summoning order against the appellants. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The appellants were named in the FIR. Investigation was carried out by the police. On the basis of material collected during investigation, which has been referred to by us above, the IO found that these appellants were in Jaipur city when the incident took place in Kanaur, at a distance of 175 kms. The complainant and others who supported the version in the FIR regarding alleged presence of the appellants at the place of incident had also made statements under 161 Cr.P.C. to the same effect. Notwithstanding the same, the police investigation revealed that the statements of these persons regarding the presence of the appellants at the place of occurrence was doubtful and did not inspire confidence, in view of the documentary and other evidence collected during the investigation, which depicted another story and clinchingly showed that appellants plea of alibi was correct". 8. In the instant case, where the petitioner has been impleaded as an accused by the trial court, while considering closure report and accordingly, the trial court has taken cognizance of the aforesaid offences against the petitioner. Although initially, the name of petitioner was referred in the FIR, but thereafter, the further investigation was referred to the C.I.D and during inquiry by the C.I.D, material electronic evidence i.e. CDR of mobile location and DVR were collected and statements of Archana Sharma, Vinod, Shashikant Bhargava and Rustam Singh Gurjar have been recorded under Section 161 of Cr.P.C and on the basis of the aforesaid evidence, it can be established by the investigating officer that at the relevant point of time, the petitioner was not present on the place of occurrence and he was present at Gwalior and no involvement of the petitioner was found in the instant case. 9. Learned counsel for the respondents has placed reliance upon the several citations of Hon'ble Apex Court and by coordinate Benches of this court as aforesaid that after completion of prosecution evidence, at the defence stage, plea of alibi may be proved. On the contrary, counsel for the petitioner submits that the plea of alibi can be taken at the earliest stage, even at the stage of investigation also. 10. On the contrary, counsel for the petitioner submits that the plea of alibi can be taken at the earliest stage, even at the stage of investigation also. 10. It is also settled position of law that if any evidence is produced on behalf of the accused during the investigation, the investigating officer should consider it carefully and such evidence should be made a part of the investigation which may help the investigating officer to discover the truth. His primary duty is to collect all the relevant evidence and must satisfy himself that it is sufficient to send the case before the court. The investigating officer had duly investigated the facts and submitted a detailed closure report under Section 169 of the Cr.P.C, which cannot be ignored, as the respondent No.3 and the State did not challenge the charge sheet filed before the court in which, the petitioner has been exonerated in this matter. Now, the next question emerged, about the reasons behind the plea of alibi, to raise the plea of alibi? 11. The Hon'ble Bombay High Court in the case of Anand Shivaji Ghodake Vs. The State of Maharashtra and Another decided on 23rd January, 2023 in Cr. Revision No. 296 of 2022: "18. The accused may claim discharge, raising the plea of alibi. The discharge is normally claimed before the framing of the charge. The law does not prescribe the stage when such a plea should be raised. Applying the stage of claiming discharge, it is always wise to raise the plea of alibi as early as possible in the initial stage of the trial. The initial stage could be the stage of framing charge of Lakhan Singh @ Pappu v. The State of (NCT) Delhi, Crl Appeal No. 166/1999 decided on 16th September 2011, in paragraph 13, the Delhi High Court has observed thus : "13. It must be noted that the above two decisions (Ram Kisan Vs. State, (2002) 1 SCC 71 and Kashi Ram and Ors. v. State of M.P. Appeal (Crl) No. 320/2000 decided by Hon'ble Supreme Court on 17th October 2001) pertained to the pleas of self-defence. The plea of alibi cannot be equated with the plea of self- defence and ought to be taken at the first instance and not belatedly at the stage of defence evidence....." 19. v. State of M.P. Appeal (Crl) No. 320/2000 decided by Hon'ble Supreme Court on 17th October 2001) pertained to the pleas of self-defence. The plea of alibi cannot be equated with the plea of self- defence and ought to be taken at the first instance and not belatedly at the stage of defence evidence....." 19. Reading the relevant provisions of law as stated above, it emerges that it is not a rule that the plea of alibi should be considered only at the stage of defence evidence. On the contrary, it should be raised at the earliest. Soon after the Court called the applicant after the application of prosecution to add him under section 319 of Cr.P.C., he raised the plea of alibi. In the case at hand, there was positive evidence collected by the investigating officer that at the time of the alleged incident, the applicant was not on the spot of the incident. He has proved his alibi through electronic evidence, which is admissible evidence. Therefore, it can safely be said that the plea of alibi has been proved with absolute certainty, completely excluding the possibility of the presence of the applicant at the place of occurrence. In the circumstances discarding the plea of alibi supported by the genuine electronic evidence collected by a neutral investigating officer soon after registering a crime appears not legally correct." 12. On the basis of the aforesaid, this court is of the considered opinion that the defence of alibi may be taken at the earliest stage, even at the stage of investigation also and a person not named in the FIR or a person though named in the FIR has not been charge-sleeted or a person who has been discharged, although can be summoned under section 319 of Cr.P.C provided from the evidence, it appears that such person can be tried along with the other accused persons who are already facing trial. However, so far as accused who has been discharged is concerned, the provisions of Section 300 and 398 of Cr.P.C have to be complied with. 13. The Hon'ble Apex Court in the case of Asad Ali @ Munna and Others Vs. However, so far as accused who has been discharged is concerned, the provisions of Section 300 and 398 of Cr.P.C have to be complied with. 13. The Hon'ble Apex Court in the case of Asad Ali @ Munna and Others Vs. State of U.P. and others passed on 9th August, 2024 in an Application under Section 482 of Cr.P.C. No. 5465 of 2024, as under : "According to the judgment(s) of the Constitution Bench of the Hon'ble Apex Court in the case of Hardeep Singh Vs. State of Punjab, reported in (2014) 3 SCC 92 , and Brijendra Singh and Others Vs. State of Rajasthan, reported in (2017) 7 SCC 706 , the trial court should record its subjective satisfaction while passing the order under Section 319 CrPC and the trial court is under obligation to take note of evidence which includes the entire evidence collected by the I.O. during investigation." 14. Further, in Ramesh Chandra Srivastava Vs. The State of U.P. and Another vide order dated 13.09.2021 in Cr. Appeal No. 990 of 2021 held in the following manner : "The test as laid down by the Constitution Bench of this Court for invoking power under 319 Cr.P.C. inter alia includes the principle that only when strong and cogent evidence occurs against a person from the evidence the power under Section 319 Cr.P.C. should be exercised. The power cannot be exercised in a casual and cavalier manner. The test to be applied, as laid down by which is more than prima facie case which is applied at the time of framing of charges." 15. On the basis of the aforesaid cumulative analysis of facts, it appears that on the same set of evidence, which is prevailing since day one, the petitioner has been tried for the aforesaid offence and tried to be implicated in the offence, but later on, on the basis of the detailed investigation conducted by theC.I.D, collecting the relevant electronic evidence of CCTV footage, mobile location and etc in the form of electronic evidence and also recording the statements of material witnesses under section 161 of Cr.P.C, the investigating officer, held that there is no sufficient evidence against the petitioner to prosecute him in the instant matter. Therefore, on the basis of the evidence collected during investigation, the Investigating Officer filed the closer report. Therefore, on the basis of the evidence collected during investigation, the Investigating Officer filed the closer report. But it is the duty of the trial court to consider the statements of the witnesses which have already been recorded under section 161 of Cr.P.C. and the trial court is duty bound to look into the same while forming primafacie opinion for taking cognizance of an offence. But the trial court has ignored the material evidence collected during investigation and not appreciated the aforesaid evidence at the time of passing impugned order. 16. Having gone through the charge-sheet submitted by the investigating agency and considering the citations of the learned counsel for the parties, in the opinion of this court, there is no reason to take a different view as taken by the investigating agency with regard to the said offence. Accordingly, it is held that the learned trial court has committed error in not accepting the closure report as the investigating agency has investigated the matter deeply and arrived at a reasonable possible conclusion which in view of this court does not warrant any interference to take a contrary view. Hence, the closure report deserves to be accepted. 17. Therefore, in the considered opinion of this court, the trial court has ignored the material evidence during investigation and also ignored the report under section 169 of Cr.P.C filed by the investigating officer and accordingly, committed an error in passing the impugned order. Hence, the impugned order appears to be illegal, improper and incorrect. The evidence collected by the investigating agency does not disclose the commission of any offence therefore, this Court is bound to exercise inherent power under Section 482 of Cr.P.C to quash the impugned order and all the subsequent proceedings regarding cognizance of offence against the petitioner. 18. As a result, the impugned order dated 04.11.2024 regarding taking cognizance against thepetitioner along with consequential proceedings, is hereby quashed and the petitioner is exonerated from the offences registered against him under Section 302, 307, 294, 147, 148, 149 read with Section 120-B of I.P.C and under Section 25/27 of the Arms Act in connection with Crime No.10 of 2023 at PS Mehgaon Distt. Bhind. 19. With the aforesaid, this petition stands allowed and disposed of accordingly. 20. Let a copy of this order be sent to the trial court concerned for information and necessary compliance. C.C. as per rules.