Madhya Pradesh High Court
Pravendra Sharma vs The State Of Madhya Pradesh on 3 April, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 M.Cr.C. No. 9460 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 3rd OF APRIL, 2025
MISC. CRIMINAL CASE No. 9460 of 2025
PRAVENDRA SHARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Applicant in person.
Shri Anil Kumar Mishra - Advocate for applicant.
Shri Mohit Shivhare- Public Prosecutor for respondent/State.
ORDER
Applicant is present in person.
2. This application under, Section 482 of Cr.P.C / 528 of B.N.S.S has been
filed for quashment of proceedings in ST No. 20 of 2021 arising out of Crime
No. 163 of 2020 registered at Police Station Bahadurpur, District Ashoknagar
for offences under Sections 307, 294, 324, 325, and 34 of IPC.
3. Although counsel for applicant, namely Anil Kumar Mishra, was present,
but it was pointed out by Shri Anil Kumar Mishra that the applicant himself
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wants to argue the matter and therefore he may be discharged from the case. It
was fairly conceded by applicant that he would like to argue his case on his
own and he agreed that Shri Anil Kumar Mishra may be discharged.
Accordingly, Shri Anil Kumar Mishra and his associates are discharged from
the present case.
4. According to the prosecution case, complainant Ramswaroop Sharma
lodged an FIR alleging that on 24.07.2020 at about 8:00 a.m., he was working
in his field. His younger brother was taking cattle out of the field and at that
time, on account of old enmity, Moti, Badam, and Sultan, who were armed with
Axe, Pharsa, and Ballam, came there and started abusing his brother Ramsevak
filthily in the name of mother and sister. When it was objected by his brother,
then all three persons assaulted his brother Ramsevak with an intention to kill
him, as a result, he sustained injuries on his head as well as on both of his
hands. At that time, injured Ramesh, who was coming towards the field, tried
to intervene in the matter. Thereafter, all the three persons ran away. At that
time, Bharat Adivasi and Mansingh, who were armed with lathi, and Pravendra
(applicant), who was armed with an Axe, came on the spot and they started
abusing Ramesh filthily in the name of mother and sister, and with an intention
to kill, applicant gave an Axe blow which landed near the left eye of Ramesh.
As a result, he sustained injury and blood started oozing out. Bharat and
Mansingh Adivasi also assaulted Ramesh by Lathi, as a result he sustained
other injuries. Accordingly, FIR was lodged.
5. Challenging the FIR, it is submitted by applicant that police, after
completing the investigation, filed charge sheet against Motilal and Badam
Adivasi and kept the investigation pending against Sultan, Bharat, Mansingh,
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and applicant under Section 173(8) of CrPC. Later on, supplementary charge
sheet was filed against Mansingh, Sultan Singh, and Bharat Singh on
17.02.2021, whereas investigation against applicant was kept pending.
The applicant prayed for an independent enquiry by SDO(P), who submitted an
enquiry report that there is nothing on record to suggest that the applicant had
also participated in the incident. However, the closure report was rejected by
JMFC Mungavali, District Ashoknagar, and he took cognizance against the
applicant under Section 190 of CrPC by order dated 17.02.2021 and non-
bailable warrant of arrest was issued against the applicant. Being aggrieved by
the order of cognizance dated 17.02.2021, applicant preferred a criminal
revision under Section 397 of CrPC, which too was dismissed by order dated
05.04.2022 passed by First Additional Sessions Judge, Mungavali, District
Ashoknagar in Criminal Revision No. 5 of 2022. Being aggrieved by the said
order, applicant preferred MCRC No. 21356 of 2022 and a solitary ground was
raised that JMFC, while taking cognizance of offence, should not have issued
an arrest warrant against applicant directly and should have issued summons.
Accordingly, by order dated 04.02.2025, modifying the order passed by JMFC
Mungavali, it was directed that applicant shall appear before JMFC Mungavali,
District Ashoknagar on 28.02.2025 and in case the applicant fails to appear
before the Magistrate on the said date, then the Magistrate shall be free to issue
bailable warrant of arrest against him.
It is submitted by applicant that since SDO(P) had given his enquiry
report that applicant was not present on the spot and in fact the applicant was
present at a distance of 40 km away from the spot, therefore it is clear that the
applicant has been falsely implicated. It is submitted that the applicant has been
falsely implicated in order to wreak venegence on account of old enmity over
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property issues. It is submitted that applicant was beaten by son and nephew of
the complainant, and Crime No. 22 of 2020 was registered and final report has
been submitted. The false FIR has been launched to counter the earlier case and
to pressurize the applicant. Similarly, another case in Crime No. 221 of 2020 is
pending against relatives of complainant.
6. Heard the applicant.
7. It is the case of applicant that initially investigation was kept pending
against him and three more accused persons, namely Sultan, Bharat, and
Mansingh. Subsequently, charge sheet was also submitted against Mansingh,
Sultan, and Bharat Singh.
8. From the FIR, which has already been reproduced in the previous
paragraphs, it is clear that the incident took place in two phases. Initially, Moti,
Badam, and Sultan are alleged to have assaulted Ramsevak, and when injured
Ramesh Sharma intervened in the matter, then all three persons ran away. At
that time, Bharat Adivasi, Mansingh, and applicant entered the field and
applicant assaulted Ramesh by axe, whereas Bharat and Mansingh assaulted
him by lathi. Initially, charge sheet was filed against Motilal and Badam. Later
on, charge sheet was also filed against Mansingh, Sultan, and Bharat Singh. It
is not out of place to mention here that Motilal, Badam, and Sultan participated
in the first phase of incident, whereas applicant, Mansingh and Bharat Adivasi
had participated in the second phase of incident. It appears that investigation
was again kept pending against applicant. It appears that the applicant
approached the Superintendent of Police, Ashoknagar, who directed the
SDO(P), Mungavali, District Ashoknagar to conduct a parallel enquiry.
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Accordingly, SDO(P) Mungavali conducted a parallel enquiry and submitted a
report on 28.09.2020.
9. This Court in the case of Deepak alias Preetam Verma and Anr. Vs.
State of MP & Anr. , by order dated 11.09.2018 passed in MCRC No. 12592
of 2018, has held that parallel enquiry under Section 36 of CrPC during
pendency of investigation is not maintainable. The aforesaid order was affirmed
by the Supreme Court by order dated 18.01.2022 passed in the case of
Surendra Singh Gaur Vs. State of M.P. (SLP (Cri) No. 1345/2019), and the
Supreme Court has held as under:
"Both the petitions have been preferred by the senior police
officers of the State of Madhya Pradesh assailing the observations
which has been made by the High Court under the impugned
judgment dated 11th September, 2018 while exercising its jurisdiction
under Section 482 of the Code of Criminal Procedure, when the
accused persons approached the High Court for quashing of the
proceedings initiated against them in reference to the FIR in Crime
No. 75/2017, registered at Police Station Godan, District Datiya, for
the offences punishable under Sections 307, 294 and 34 of the Indian
Penal Code.
At the outset it may be noticed that the State of Madhya
Pradesh also approached this Court by filing Special Leave Petition
(Criminal) No. 10015 of 2018 and that came to be dismissed by an
order dated 30th November, 2018.
The present petitioners have approached in their own rights to
question the observations/remarks which have been recorded by the
learned Judge in the order impugned in reference to the manner in
which an inquiry was conduced parallel to the investigation which
was undertaken by the Investigating Officer in reference to FIR in
Crime No. 75/2017.
We have heard the learned Counsel for the parties at length
and we are of the view that neither Section 36 of the Code nor the
circulars of which a reference has been made during the course of
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arguments in any way provides for holding an independent and
parallel inquiry along with the investigation going ahead in reference
to the FIR in Crime No. 75/2017.
In the instant case, a complaint was made for holding fair
investigation in reference to the FIR in Crime No. 75/2017, we find
no reason the officers under whose instructions an independent
inquiry was initiated apart from the investigation which was going
ahead in reference to the crime, in contravention of the procedure
prescribed by law.
After the matter is examined at length by the High Court
under the impugned judgment(s) for which reference has been made
that an independent inquiry which was conducted in reference to the
FIR in Crime No. 75/2017 was in no manner contemplated by law
and in this reference observations have been made in regard to the
conduct of the officers in holding an inquiry in reference to the FIR in
Crime No. 75/2017.
The learned Counsel appearing on behalf of the State filed
their counter affidavit and has placed on record a circular dated 26th
June, 2010 under the instructions of the Inspector General of Police,
Madhya Pradesh. We find that the circular of the State Government is
in conformity with Section 36 of the Code, but the procedure which
was followed by the officers in holding inquiry was not in consonance
with the circular of which a reference has been made by the High
Court under the impugned judgment.
After hearing the learned Counsel for the parties and taking
note of the material on record, we find no error being committed by
the High Court in the judgment impugned, which may call for our
interference under Article 136 of the Constitution.
Consequently, both the petitions fail and are dismissed.
Pending application(s), if any, shall stand disposed of. "
10. This Court in the case of Mahendra Kumar Vaidya vs. State of MP
and Others, decided on 3.11.2022 in WP No. 23876 of 2022, has held that
parallel enquiry during pendency of investigation is not maintainable under
Section 36 of Cr.P.C.
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11. Thus, separate enquiry conducted by SDO(P) on an application made by
applicant is without jurisdiction. It is a well-established principle of law that
findings recorded by any Authority having no jurisdiction is nothing but nullity.
12. Furthermore, plea of alibi is a disputed question of fact which is to be
established by the accused by leading cogent evidence. The Supreme Court in
the case of Vijay Pal v. State (Govt. of NCT of Delhi), reported in (2015) 4
SCC 749 has held as under :
25. At this juncture, we think it apt to deal with the plea of alibi that
has been put forth by the appellant. As is demonstrable, the trial court
has discarded the plea of alibi. When a plea of alibi is taken by an
accused, burden is upon him to establish the same by positive
evidence after onus as regards presence on the spot is established by
the prosecution. In this context, we may profitably reproduce a few
paragraphs from Binay Kumar Singh v. State of Bihar: (SCC p. 293,
paras 22-23)
"22. We must bear in mind that an alibi is not an exception (special or
general) envisaged in the Penal Code, 1860 or any other law. It is only
a rule of evidence recognised in Section 11 of the Evidence Act that
facts which are inconsistent with the fact in issue are relevant.
Illustration (a) given under the provision is worth reproducing in this
context:
'(a) The question is whether A committed a crime at Calcutta on a
certain day. The fact that, on that date, A was at Lahore is relevant.'
23. The Latin word alibi means 'elsewhere' and that word is used for
convenience when an accused takes recourse to a defence line that
when the occurrence took place he was so far away from the place of
occurrence that it is extremely improbable that he would have
participated in the crime. It is a basic law that in a criminal case, in
which the accused is alleged to have inflicted physical injury to
another person, the burden is on the prosecution to prove that the
accused was present at the scene and has participated in the crime.
The burden would not be lessened by the mere fact that the accused
has adopted the defence of alibi. The plea of the accused in such cases
need be considered only when the burden has been discharged by the
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prosecution satisfactorily. But once the prosecution succeeds in
discharging the burden it is incumbent on the accused, who adopts the
plea of alibi, to prove it with absolute certainty so as to exclude the
possibility of his presence at the place of occurrence. When the
presence of the accused at the scene of occurrence has been
established satisfactorily by the prosecution through reliable
evidence, normally the court would be slow to believe any counter-
evidence to the effect that he was elsewhere when the occurrence
happened. But if the evidence adduced by the accused is of such a
quality and of such a standard that the court may entertain some
reasonable doubt regarding his presence at the scene when the
occurrence took place, the accused would, no doubt, be entitled to the
benefit of that reasonable doubt. For that purpose, it would be a sound
proposition to be laid down that, in such circumstances, the burden on
the accused is rather heavy. It follows, therefore, that strict proof is
required for establishing the plea of alibi."
(emphasis supplied)
The said principle has been reiterated in Gurpreet Singh v. State of
Haryana, Sk. Sattar v. State of Maharashtra and Jitender Kumar v.
State of Haryana.
13. The Supreme Court in the case of S.K.Sattar v. State of Maharashtra,
reported in (2010) 8 SCC 430 has held as under :
35. Undoubtedly, the burden of establishing the plea of alibi lay upon
the appellant. The appellant herein has miserably failed to bring on
record any facts or circumstances which would make the plea of his
absence even probable, let alone, being proved beyond reasonable
doubt. The plea of alibi had to be proved with absolute certainty so as
to completely exclude the possibility of the presence of the appellant
in the rented premises at the relevant time. When a plea of alibi is
raised by an accused it is for the accused to establish the said plea by
positive evidence which has not been led in the present case. We may
also notice here at this stage the proposition of law laid down in
Gurpreet Singh v. State of Haryana as follows: (SCC p. 27, para 20)
"20. ... This plea of alibi stands disbelieved by both the courts and
since the plea of alibi is a question of fact and since both the courts
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concurrently found that fact against the appellant, the accused, this
Court in our view, cannot on an appeal by special leave go behind the
abovenoted concurrent finding of fact."
36. But it is also correct that, even though the plea of alibi of the
appellant is not established, it was for the prosecution to prove the
case against the appellant. To this extent, the submission of the
learned counsel for the appellant was correct. The failure of the plea of
alibi would not necessarily lead to the success of the prosecution case
which has to be independently proved by the prosecution beyond
reasonable doubt. Being aware of the aforesaid principle of law, the
trial court as also the High Court examined the circumstantial
evidence to exclude the possibility of the innocence of the appellant.
14. The Supreme Court in the case of Binay Kumar Singh v. State of
Bihar, reported in (1997) 1 SCC 283 has held as under:
22. We must bear in mind that an alibi is not an exception (special or
general) envisaged in the Indian Penal Code or any other law. It is
only a rule of evidence recognised in Section 11 of the Evidence Act
that facts which are inconsistent with the fact in issue are relevant.
Illustration (a) given under the provision is worth reproducing in this
context:
"The question is whether A committed a crime at Calcutta on a certain
date; the fact that on that date, A was at Lahore is relevant."
23. The Latin word alibi means "elsewhere" and that word is used for
convenience when an accused takes recourse to a defence line that
when the occurrence took place he was so far away from the place of
occurrence that it is extremely improbable that he would have
participated in the crime. It is a basic law that in a criminal case, in
which the accused is alleged to have inflicted physical injury to
another person, the burden is on the prosecution to prove that the
accused was present at the scene and has participated in the crime. The
burden would not be lessened by the mere fact that the accused has
adopted the defence of alibi. The plea of the accused in such cases
need be considered only when the burden has been discharged by the
prosecution satisfactorily. But once the prosecution succeeds in
discharging the burden it is incumbent on the accused, who adopts the
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plea of alibi, to prove it with absolute certainty so as to exclude the
possibility of his presence at the place of occurrence. When the
presence of the accused at the scene of occurrence has been
established satisfactorily by the prosecution through reliable evidence,
normally the court would be slow to believe any counter-evidence to
the effect that he was elsewhere when the occurrence happened. But if
the evidence adduced by the accused is of such a quality and of such a
standard that the court may entertain some reasonable doubt regarding
his presence at the scene when the occurrence took place, the accused
would, no doubt, be entitled to the benefit of that reasonable doubt.
For that purpose, it would be a sound proposition to be laid down that,
in such circumstances, the burden on the accused is rather heavy. It
follows, therefore, that strict proof is required for establishing the plea
of alibi. This Court has observed so on earlier occasions (vide Dudh
Nath Pandey v. State of U.P.; State of Maharashtra v. Narsingrao
Gangaram Pimple.''
15. Furthermore, the revision filed by applicant against order taking
cognizance was already dismissed on merits, and in MCRC No. 21356 of 2022,
a solitary argument was raised that the Magistrate should not have issued the
non-bailable warrant at the first instance. Accordingly, applicant was directed
to appear before JMFC, Mungavali, District Ashoknagar on 28.02.2025 with
liberty to the Magistrate to issue bailable warrants in case applicant fails to
appear before the Magistrate.
16. Under these circumstances, this Court is of considered opinion that no
case is made out warranting interference.
17. Application fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
(and)
