[2025:RJ-JP:40346] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Criminal Miscellaneous (Petition) No. 5083/2025 Pushpendra S/o Shri Prabhu, Aged About 35 Years, Resident Of Burawai, Police Station Chiksana, District Bharatpur, Rajasthan, Presently Working As Constable Rajasthan Police. ----Petitioner-Accused Versus 1. State Of Rajasthan, Through Public Prosecutor. ….Respondent 2. Suresh Singh S/o Shri Heeralal, Aged About 45 Years, Resident Of Burawai, Police Station Chiksana, District Bharatpur, Rajasthan. ----Respondent-Complainant For Petitioner(s) : Mr. Ajay Kumar Jain For Respondent(s) : Mr. Rajesh Choudhary, GA-cum-AAG with Mr. Manvendra Singh Shekhawat, PP Mr. Navankur Dubey Mr. Anurag Pareek HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Judgment / Order 06/10/2025 This criminal miscellaneous petition is directed against the order dated 28.07.2025 passed by learned Sessions Judge, Bharatpur (for short, ‘learned Revisional Court’) whereby, while dismissing the Criminal Revision Petition No.86/2025 CIS No.93/2025, the order dated 09.06.2025 passed by learned Judicial Magistrate No.4, Bharatpur, District Bharatpur (for short, ‘learned Magistrate’) in FIR No.262/2020 allowing the application filed by the complainant under Section 190 Cr.P.C., has been affirmed. The relevant facts in brief are that the respondent no.2/complainant (for short, ‘complainant’) lodged an FIR No.0262 [2025:RJ-JP:40346] (2 of 6) [CRLMP-5083/2025] dated 05.08.2020 at Police Station Chiksana, District Bharatpur for the offence under Sections 147, 148, 149, 323, 341, 354 and 302 IPC. Initially, the police after investigation filed charge-sheet against certain accused persons keeping the investigation pending against the petitioner under Section 173(8) Cr.P.C. Ultimately, supplementary charge-sheet(s) was filed against the co-accused persons whereby, the present petitioner was excluded from the array of accused person. Aggrieved thereby, the complainant filed an application under Section 190 Cr.P.C. which has been allowed by the learned Magistrate vide order dated 09.06.2025 taking cognizance against the petitioner for the offence under Sections 147, 148, 149, 323, 341, 302, 325 and 120B IPC, which was unsuccessfully challenged by him by way of a criminal revision petition which came to be dismissed by the learned Revisional Court vide order impugned dated 28.07.2025. Assailing the order, learned counsel for the petitioner made following submissions: (1) In the FIR, the only allegation against him is of outraging the modesty of complainant’s daughter whereas, cognizance has been taken against him of other offences barring this offence. (2) Inviting attention of this Court towards the statement of Shri Ramesh Chand-a Constable, recorded under Section 161 Cr.P.C., he submits that at the time of incident, i.e., 8:45 am on 04.08.2020, the petitioner had already taken over the duty of Gunman with the District Collector, Bharatpur at 8:30 am and hence, was not present at the place of incident. [2025:RJ-JP:40346] (3 of 6) [CRLMP-5083/2025] (3) Referring the transcription of conversation in between the deceased and his nephew, he submits that the petitioner is not named by the deceased as one of the assailants. (4) The learned Magistrate has taken cognizance only on the basis of prima facie doubtful evidence against him and not on the basis of prima facie evidence. He, therefore, prays that this criminal miscellaneous petition be allowed and the order impugned be quashed and set aside. Per contra, learned Public Prosecutor, assisted by the learned counsel for the complainant, opposing the submissions, prayed for dismissal of the criminal miscellaneous petition. Heard. Considered. While taking cognizance against the petitioner, the learned Magistrate has held that during the course of investigation, on the request of the Investigating Officer, arrest warrant under Section 37 of Rajasthan Police Act, 2007 was issued finding his prima facie involvement in the offence and thereafter, the IO also obtained order for filing charge-sheet against him under Section 299 Cr.P.C. The learned Magistrate further held that while, the investigating agency did not find involvement of the petitioner in the alleged offence on the plea of alibi on the premise that the actual time of incident was 8:45 am and the petitioner had already assumed the duty of Gunman of the District Collector, Bharatpur at 8:30 am relying on the statement of his colleagues whereas, from the material on record, it could not be held definitely that the actual time of the alleged incident was 8:45 am. It was held that in the [2025:RJ-JP:40346] (4 of 6) [CRLMP-5083/2025] FIR, the incident is alleged to have taken place at about 7:00-7:30 am which was corroborated by the prosecution witnesses including the complainant as well as the injured witnesses in their statement recorded under Section 161 Cr.P.C. The learned Magistrate further held that the investigating agency erred in drawing presumption as to the time of occurrence being 8:45 am only on the basis of receipt of information in the Police Control Room at about 8:55 am. After appreciating the evidence available on record, it was also held that only on the basis of statement of colleagues of the accused petitioner, it could not be held, at this stage, that he was not present at the time of incident having joined the duty as Gunman at about 8:30 am especially, in view of categorical statement of the prosecution witnesses including injured witnesses recorded under Section 161 Cr.P.C. reflecting his involvement in the alleged incident. These findings have been affirmed by the learned Revisional Court reappreciating the evidence on record. The learned Revisional Court further held that neither any log book nor, any other document was a part of the investigation material to demonstrate that the petitioner was not present at the place of incident, the exact time whereof was still uncertain, on account of resuming his duty as Gunman at 8:30 am with the District Collector, Bharatpur. It was further held that, as a matter of fact, it was not demonstratable from the evidence on record that he was posted as Gunman with the District Collector; rather, it is revealed that he was deputed as a Guard at his residence. This Court, on perusal on the record submitted by the petitioner alongwith the memo of criminal miscellaneous petition, does not find the aforesaid findings to be perverse or suffering [2025:RJ-JP:40346] (5 of 6) [CRLMP-5083/2025] from any patent illegality. It is trite law that this Court, under its limited supervisory jurisdiction under Section 528 BNSS, does not sit as an Appellate Court over the concurrent findings so recorded by the two Courts taking cognizance against an accused person. Submissions of the learned counsel for the petitioner are found to be devoid of merit. The FIR contains specific allegation against the petitioner of not only outraging the modesty of the daughter of the complainant; but, also, of his participation in the incident as one of the members of unlawful assembly which, in furtherance of its common object, committed murder of Shri Kartar Singh. So far as statement of Shri Ramesh Chand- Constable recorded under Section 161 Cr.P.C. is concerned, the jurisdictional Magistrate as also the learned Revisional Court have already held that there was sufficient material on record to reflect prima facie involvement of the petitioner in the offence and the plea of alibi is not sufficient to absolve him from his liability at the stage of cognizance in view of other overwhelming evidence showing his prima facie involvement in the offence. Similarly, from the transcript of the conversation in between the deceased and his nephew, it is not revealed that the present petitioner was not present at the place of incident or that he was not a member of the unlawful assembly. Submission of the learned counsel for the petitioner that the learned Magistrate has taken cognizance against him only on the basis of doubtful evidence, does not merit acceptance. At the cost of repetition, it is held that after appreciating the entire evidence available on record, cognizance was taken against the petitioner finding his prima facie involvement in the alleged offence. [2025:RJ-JP:40346] (6 of 6) [CRLMP-5083/2025] Resultantly, this criminal miscellaneous petition is dismissed being devoid of merit. Pending application(s), if any, also stands disposed of accordingly. (MAHENDAR KUMAR GOYAL),J DIKSHA /63