Smt. Sheela Bhagel vs State of M.P. and others

Hon''ble Shri Justice Sujoy Paul

The brief facts necessary for adjudication of this matter are as under:

By invoking the revisional jurisdiction of this Court u/s 397 read with Section 401 Cr.P.C., the petitioner has challenged the order dated 20/12/2011 passed by the Court below. The petitioner has preferred an application u/s 319 Cr.P.C. to include certain other persons as accused.

Shri Rishishwar, learned counsel for the petitioner would submit that the petitioner lodged FIR and mentioned the names of various persons including Majboot Singh, Ramsahai, Laxman, Ramratan, Horilal, Abhilakh, Pappu and Dev Singh. In her statement recorded u/s 161 Cr.P.C. also she made allegations and took the names of the aforesaid persons. However, while preparing report and framing charge, the police only framed charge against Majboot Singh and Ramsahai and did not proceed against the said persons. Learned counsel submits that in view of the specific allegations against the left-out persons stated above and categorical statement u/s 161 Cr.P.C., ample material was available before the police authorities to include their names in the challan and Court below has also committed an error in rejecting the application u/s 319 Cr.P.C. by impugned order dated 20/12/2011. By placing reliance Ram Kishan Yadav and another Vs. State of M.P., , Shri Rishishwar submits that for taking cognizance u/s 319 Cr.P.C. the Court is only required to examine the evidence of witness during trial and not the evidence collected during investigation. He further submits that while taking cognizance u/s 319 Cr.P.C., the persons sought to be included as new accused are not required to be heard. Next reliance placed on Jagjeevan Tiwari Vs. State of M.P. and Others, to submit that if prima-facie case is made out, no further detailed analysis of evidence is required.

Per Contra, Shri B.K. Sharma and Shri A.S. Bhadoriya learned counsel for the other side supported the order passed by the Court below. Learned counsel submit that the Court below has assigned detailed reasons for rejecting the said application.

I have heard the parties at length and perused the record.

It cannot be doubted that Section 319 Cr.P.C. is an enabling provision. The language of the statute itself makes it clear that it is an enabling provision and in the facts and circumstances of a particular case, the Court may exercise of such powers as per its judicial discretion. The case of the petitioner is that she narrated the names of all the persons in the FIR, made allegations in Section 161 Cr.P.C. statements and also stated against them in the examination in chief during trial. Thus, the Court below has erred in rejecting the said application.

The Apex Court in Krishnappa Vs. State of Karnataka, has held as under:

The power to summon an accused is an extraordinary power conferred on the court. It is discretionary and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.

(Emphasis supplied)

The same view has been taken by Apex Court in Lok Ram Vs. Nihal Singh and Another, . In (2007) 7 SCC 378 Rajendra Singh Vs. State of U.P. and another, the Apex Court has held as under:

For exercising jurisdiction u/s 319 Cr.P.C., it need only appear to the court from the evidence that someone else has committed an offence. The court need not be satisfied that he has committed an offence. Even then, the court has a discretion not to proceed, since the expression used is "may" and not "shall". The legislature apparently wanted to leave that discretion to the trial court so as to enable it to exercise its jurisdiction under this section. The expression "appears" indicates an application of mind by the court to the evidence that has come before it and then taking a decision to proceed u/s 319 Cr.P.C. or not.

(Emphasis supplied)

In the light of aforesaid legal position, it is clear that the trial Judge has applied his mind by invoking Section 319 Cr.P.C. The trial Court has rejected the application for following reasons: i) The petitioner deposed that she put her signature on the FIR when it was a blank paper and it is filled up later on.

ii) The police had not recorded the statement of the petitioner after the report/FIR.

iii) Petitioner became hostile before the trial Court.

iv) Petitioner refuted the facts during her deposition that Police had recorded the report as per her version in cross-examination in Para 6, she refuted that she narrated the statement (Ex.P/8).

v) Petitioner''s own statement does not support the FIR, Section 161 Cr.P.C. statement (Ex.P/8) and her own case. Another witness Ram Lakan''s statement is contradictory.

vi) Petitioner''s brother was a dacoit, who was killed in an operation.

vii) Petitioner had a dispute on a tube-well with the persons sought to be included as accused. There is no independent witness in the matter.

The judgments stated by the petitioner will not help her because of reasons stated above in (i) to (vii). No compelling reason on the basis of evidence could be established by the petitioner before the trial Court for the purpose of invoking Section 319 Cr.P.C. The trial Court has assigned detailed cogent and plausible reasons for rejecting the said application. Since, petitioner did not even support the FIR, Section 161 Cr.P.C. statement and even became hostile during the trial, no case was made out by her for invoking Section 319 Cr.P.C. I do not find any fault in the decision making process adopted by the Court below. The Court below has exercised its judicial discretion in a proper, reasonable and justifiable manner. In this view of the matter, I do not find any scope for interference in the order impugned.

Petition is bereft of merits and substance and is hereby dismissed.