Vijay Sejwar vs The State of M.P.

B.D. Rathi, J.—Both the petitions i.e. Mcrc No. 3142/2014 and Mcrc No. 3143/2014 are being decided by this common order because both the petitions have been filed being aggrieved by the order dated 28.03.2014 passed by III Additional Sessions Judge, Shivpuri (M.P.) in two different Criminal Revisions i.e. Criminal Revision No. 160/2012 filed by petitioner Mahendra (petitioner in Mcrc 3143/2014 herein) and Criminal Revision No. 01/2013 filed by petitioners Vijay Sejwar and others (petitioners in Mcrc 3142/2014 herein). By passing the common order impugned dated 28.03.2014 both the revision petitions were dismissed in confirmation with the order dated 24.12.2012 passed by the Judicial Magistrate First Class, Shivpuri in Criminal Case No. 279/2008 whereby the application filed u/s 319 of Cr.P.C. by the complainant Smt. Lalita Sejwar was allowed and the petitioners of both the petitions have been called as accused to face trial.$$

In brief, facts of the case are that on the basis of FIR made by complainant/respondent No. 2 Smt. Lalita Sejwar Crime No. 692/07 was registered for the offence punishable u/s 498A/34 of IPC and after completion of investigation charge sheet was filed before the Judicial Magistrate First Class, Shivpuri against respondent (1) Jitendra, (2) Smt. Dhannobai, (3) Shailendra, (4) Smt. Ram Murti bai. Criminal Case No. 279/2008 was registered. After framing charges, statement of complainant/respondent No. 2 Smt. Lalita Sejwar (PW-1) dated 31.03.2009 was recorded. Thereafter, one application was moved by her u/s 319 of Cr.P.C. for calling the petitioners as accused because initially they were not made accused by the police in charge-sheet. After considering the evidence, this application was dismissed vide order dated 29.10.2009. That order was challenged before III Additional Sessions Judge, Shivpuri in Criminal Revision No. 57/2010. Revision was allowed by the Court of III Additional Sessions Judge, Shivpuri vide order dated 25.05.2010 and the case was remanded with a direction that after giving opportunity of hearing to the complainant application u/s 319 of Cr.P.C. be decided afresh. This order was again challenged by the newly added accused persons/petitioners before the High Court in Criminal Revision No. 449/2010 and the same was decided on 29.11.2011. It was directed that Criminal Revision No. 57/2010 be decided afresh after giving opportunity of hearing to both the parties. Then, Criminal Revision No. 57/2010 was again decided by the III Additional Sessions Judge on 09.07.2012 and again it was directed to the trial court that application u/s 319 Cr.P.C. be decided afresh after giving opportunity of hearing to both the parties. In view of this order, application u/s 319 of Cr.P.C. was decided by the trial court on 24.12.2012 and the same was allowed and the petitioners of both the petitions have been made accused and they were called by issuance of bailable warrants for a sum of Rs. 1,000/- each. The order passed by the trial court dated 24.12.2012 was again challenged by the petitioners of both the petitions in Criminal Revision No. 160/2012 and Criminal Revision No. 01/2013 before the Court of III Additional Sessions Judge, Shivpuri and both the criminal revisions were decided by the common order dated 28.03.2014 which is under challenge here in both the petitions. By passing the order dated 28.03.2014, both the revision petitions were dismissed by saying that impugned order passed by the trial court was in accordance with law.

Shri Sharma, learned counsel appearing on behalf of the petitioners, submitted that on the evidence of complainant/respondent No. 2 Lalita Sejwar initially application u/s 319 of Cr.P.C. was dismissed by the Magistrate and on the same set of evidence now the application preferred u/s 319 Cr.P.C. was allowed and in such situation impugned order of the trial court so also of the revisional court were bad in law. Apart that only on the basis of some omnibus allegations during investigation it was found by the investigating agency that no offence is made out against the petitioners and therefore charge-sheet was not filed against them. In support of his contention, Shri Sharma, learned counsel, relied on Neelu Chopra and Another Vs. Bharti, , Bhaskar Lal Sharma and Another Vs. Monica, , Preeti Gupta and Another Vs. State of Jharkhand and Another, , State of Andhra Pradesh Vs. M. Madhusudhan Rao, , Sushil Kumar Sharma Vs. Union of India (UOI) and Others, , Sarabjit Singh and Another Vs. State of Punjab and Another, and Brindaban Das and Others Vs. State of West Bengal, .

Per contra, it is submitted by Shri Saxena, learned counsel appearing on behalf of the complainant/respondent No. 2, that as per the provisions of Section 319 of Cr.P.C. and on the basis of evidence of complainant Smt. Lalita Sejwar recorded by the trial court during trial, the impugned order passed by trial court and confirmed in revision is well merited and need no interference. To strengthen his contention, Shri Saxena, learned counsel, placed reliance on Suman Vs. State of Rajasthan and Another, and Hardeep Singh Vs. State of Punjab and Others etc. etc., .

To decide these petitions, we have to consider the principles laid down by the Hon''ble Apex Court in regard to provisions of Section 319 of the Code of Criminal Procedure. In the case of Hardeep Singh (supra), principle laid down by the Hon''ble Supreme is that powers given u/s 319 Cr.P.C. can be exercised only on the basis of material available from the challan papers. Sessions Judge can take cognizance u/s 193 Cr.P.C. and need not to wait, till evidence u/s 319 Cr.P.C. becomes available for summoning an additional accused. Powers u/s 319(1) of Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted. Degree of satisfaction required for summoning a person u/s 319 of Cr.P.C. would be the same as for framing a charge. Any person named in the FIR but not charge-sheeted can also u/s 319 Cr.P.C. be summoned provided it appears from the evidence that such person can be tried alongwith the accused already facing trial.

In the case of Sarabjit Singh (supra), it was held by the Hon''ble Apex Court that the order u/s 319 Cr.P.C. should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the Court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the Courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. In the case of Suman (supra) on which reliance was placed by Shri Saxena, learned counsel, it was held by the Hon''ble Supreme Court that exercise of discretionary power u/s 319 Cr.P.C. should be used cautiously and not as a matter of routine.

In view of the aforesaid, principles of law laid down by Hon''ble the Apex Court, now we will examine the facts of the case in hand.

It is an admitted fact that in the FIR names of the present petitioners were also mentioned. Thereafter, during investigation, it was found by the investigating agency that no offence is made out against the petitioners and thus no charge sheet was filed against the petitioners. Thereafter, during trial statement of complainant/respondent no. 2, namely, Smt. Lalita Sejwar was recorded by the trial court as (PW-1) and on the basis of evidence of the complainant application u/s 319 Cr.P.C. was allowed by the trial court. FIR was lodged on 19.10.2007. It was mentioned in the FIR that since February, 2006, offence is being committed continuously. Allegations were made in the FIR that on account of demand of INDICA car, complainant was subjected to cruelty by Dhannobai (mother-in-law), Jitendra (husband), Shailendra, Mahendra, Vijay, Virendra and Makkhanlal (brothers-in-law), Rammurti, Mamta and Geeta (sisters-in-law) and they had also started beating her. Many times for fulfillment of demand of INDICA car, complainant was compelled to visit her parental home by the aforesaid accused persons. Again, she was beaten on 16.10.2007 and was expelled from her matrimonial house. But FIR was lodged on 19.10.2007.

Bare perusal of the facts mentioned in the FIR, it is clear that only omnibus allegations were made by the complainant. No specific date, time and place was mentioned in the FIR. Apart that it cannot be subsided that even after probability of ample opportunities meaning thereby whenever she was sent to her parental home, neither FIR was lodged by the complainant nor any private complaint was filed by her before any court. On perusal of statements of witnesses and also the evidence of complainant/respondent No. 2 Lalita which was recorded by the trial court during trial show the same allegations as made in the FIR. No specific allegation is made against the petitioners. General and omnibus allegations were made in the FIR and in her statement before the Court. It shows that the petitioners'' implication was only meant to harass and humiliate because they are relatives of the husband.

Recently, Hon''ble the Supreme Court in the case of Geeta Mehrotra and Another Vs. State of U.P. and Another, has observed as under:

If the F.I.R. as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the name accused in the F.I.R. to undergo the trial unless of course the F.I.R. discloses specific allegations which would persuade the Court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is well settled principle laid down in cases too numerous to mention, that if the F.I.R. did not disclose the commission of an offence, the Court would be justified in quashing the proceedings preventing the abuse of the process of law.

The same view has also been taken by this Court in the case of Reeta Sharma and Others Vs. State of M.P. and Another, .

It is also pertinent to mention here that in the order dated 24.12.2012 passed by the learned Magistrate, it was mentioned that on 19.10.2007 complainant/respondent No. 2 Smt. Lalita Sejwar was called for medical examination, because allegations were made by her in FIR that she was beaten by the petitioners also but she denied straightway for her medical examination. It is also pertinent to mention here that it is observed by the trial court in the aforesaid order that witnesses Mohan Shrivastava and Uday Joshi have stated in their police statements that they do not know about the incident as mentioned in the FIR. Smt. Lalita Sejwar (PW-1) deposed the same facts which had been mentioned in the FIR, in her evidence on 31.03.2009.

After taking into consideration the FIR and evidence of complainant/respondent No. 2 Smt. Lalita Sejwar with regard to present petitioners only, in their totality, even then petitioners cannot be convicted for the offence punishable u/s 498A of IPC.

Accordingly, both these petitions are allowed. Impugned orders dated 24.12.2012 passed by the Judicial Magistrate First Class, Shivpuri in Criminal Case No. 279/2008 and 28.03.2014 passed by III Additional Sessions Judge, Shivpuri (M.P.) in Criminal Revision No. 160/2012 and Criminal Revision No. 01/2013 are hereby set aside. Accordingly, entire proceedings against the petitioners are hereby dropped.

It is hereby made clear that the observations recorded by this Court in this order will not affect the trial of the remaining accused persons.

A copy of this order be sent to the learned trial court for necessary compliance.