1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL REVISION APPLICATION NO.574 OF 2008 Nilesh Vithal Sadye ...Applicant (Orig.Accused) Vs. State of Maharashtra & Ors. ...Respondents Mr.A.S.Khandeparkar, Advocate i/b. M/s. Khandeparkar & Associates for Applicant Mr. Madhav Jamdar, Advocate for Respondents 2 and 3 Mr. S.R. Shinde, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 4TH DECEMBER, 2009 ORAL JUDGMENT. 1.The complainant has been given notice of this application. All the parties are represented and have been heard. The trial of the criminal case filed by the complainant is in progress and is stayed. It is required to be proceeded with. Hence, by consent, this Criminal Revision Application is taken up for hearing. 2.This Revision Application challenges the order of the 2 learned Sessions Judge Sindhudurg dated 18th August 2008 in Sessions Case No.28/2007 directing the prosecution to add the applicant herein (Nilesh Sadye) as an accused in the Sessions Case. The directions are passed under Section 319 of the Cr.P.C. Process is issued against the applicant thereupon. 3.In this case one Rashmi Kerkar then aged 15 years left her parental residence on 14th October 2006 without informing anybody. She is stated to have eloped with one Rajesh Kadam. On 6th December 2006 she is stated to have contracted a marriage with Rajesh Kadam. 4.On 28th June 2007 her mother Vaishali Kerkar lodged a missing complaint. This was 8 months after her daughter left home. 5.On the next day i.e on 29th June 2007 she filed an F.I.R alleging that her daughter had left her residence on 14th October 2006 and eloped with Rajesh Kadam with the help of Nilesh Sadye. 6.Rajesh Kadam was arrested on 1st August 2007. Rashmi Kerkar was found and kept in a remand home called  Ankur Sawantwadi Remand Home at Sawantwadi, District: Sindhudurg. 3 7.On 8th August 2007 the statement of Rashmi Kerkar was recorded. She stated that she had left home because she was in love with Rajesh Kadam and had married him. 8.The case sought to be registered under the F.I.R of her mother Vaishali Kerkar was investigated. 9.Upon considering the statements of the mother and her daughter Nilesh Sadye came to be released by the officer incharge of the police station upon insufficient evidence and having no reasonable ground of suspicion to justify forwarding him to the Magistrate. He made an application for such release to the learned Judicial Magistrate, First Class who accepted the said application and discharged Nilesh Sadye. 10.On 20th September 2007 charge-sheet was submitted against Rajesh Kadam inter alia for offences punishable under Sections 363, 366 and 376 of the I.P.C. That case has been committed to the Sessions Court and is being tried as Sessions Case No.28/2007, in which impugned order has been passed by the learned Sessions Judge. 11.Vaishali Kerkar filed a private complaint against Nilesh Sadye on 22nd January 2008 before the learned Judicial Magistrate, First Class, Malwan. That has been 4 numbered Regular Criminal Case No.2/2008. 12.The Sessions Case No.28/2007 has proceeded for hearing. Two witnesses were examined by 7th July 2008. These are stated to be two panch witnesses. On 18th July 2008 Vaishali Kerkar made an application to arraign Nilesh Sadye in Sessions Case No.28/2007. Upon that application the impugned order is passed. 13.The learned Magistrate has not verified the complaint and examined Vaishali Kerkar in her private complaint filed against Nilesh Sadye. She has not lead evidence in Sessions Case No.28/2007. No case for any of the offences under the I.P.C has been made out in the evidence of Sessions Case No.28/2007. The learned Judge has passed the impugned order upon prima facie material reflecting from the charge-sheet . It is not known what material from the charge-sheet made out a case, and under which Section, against Nilesh Sadye. The learned Judge has referred to the private complaint filed by Vaishali Kerkar against Nilesh Sadye also. That private complaint is separately prosecuted. Nilesh Sadye is sought to be made accused under Section 319 of the Cr.P.C. 14.Section 319(1) runs thus:- 5 319. Power to proceed against other persons appearing to be guilty of offence  (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. 15.For invoking the powers under Section 319 it is imperative that the Court has noticed from the evidence that the person sought to be arraigned appears to be guilty of some offence. The only evidence led in Sessions Case No.28/2007 is of the panch witnesses. Vaishali Kerkar s evidence has not been led. No other documentary evidence has been tendered in evidence. The invocation of the power under Section 319(1) by the learned Sessions Judge is pre-mature. The evidence appearing from the charge-sheet is not shown. The private complaint is not evidence in the Sessions Case No.28/2007. 16.It is seen that even otherwise, the very first F.I.R has been filed by the mother of the girl who was missing right from 14th October 2006 only on 28th June 2007. For a period of 8 months the mother did nothing whilst her daughter was missing. Even after lodging of the complaint and the consequent arrest of Rajesh Kadam the victim girl herself had stated that she voluntarily 6 lived with him as she was in love with him. It was because she was minor, the offences under Section 366(A), 363 and 376 of I.P.C came to be made out against Rajesh Kadam. 17.Rashmi Kerkar has delivered a child on 5th November 2007. Certain DNA tests were conducted from the blood collected from Rajesh Kadam, Nilesh Sadye as well as Rashmi Kerkar. The DNA of Nilesh Sadye failed to match with that of the child, but the DNA of Rajesh Kadam and Rashmi Kerkar matched with that of the child. The applicant s Advocate has relied upon the DNA report dated 10th February 2009, which is a part of the charge-sheet. The DNA report has been given by the Doctor of Forensic Science Laboratory. 18.The D.N.A. Report could have been considered by the learned Magistrate. Since the DNA report does not implicate the applicant Nilesh Sadye, it is not seen how the learned Judge came to conclude that prima facie material in the charge-sheet showed that the applicant deserved to be added as an accused. It is also not shown for which offence would the applicant Niles Sadye would be charged. 19.It may also be mentioned that Vaishali Kerkar was aware of the role of Nilesh Sadye at the time of the 7 lodging of the FIR itself. Hence, she has stated in her FIR that her daughter eloped with Rajesh Kadam upon assistance of Nilesh Sadye. Aside from that role no further role is shown against Nilesh Sadye. 20.The private complaint has been filed by her is being prosecuted. That would proceed in accordance with law. She would be free to lead whatever evidence she desires before the learned Magistrate, which shall be considered by the learned Magistrate in accordance with law. That complete evidence has also not been led. 21.It is argued on behalf of the respondents 2 and 3 Rashmi Kerkar and Vaishali Kerkar that the initial order of the learned Magistrate before committal of the case to Sessions Court Sindhudurg dated 29th August 2007 and releasing the applicant herein Nilesh Sadye from the case as an accused is grossly illegal. It is argued that under Section 169 of the Cr.P.C the police officer incharge only has the power to release any person on bail in case no sufficient evidence is shown against him upon investigation or there is no reasonable ground of suspicion to justify forwarding him to any Magistrate. Section 169 runs thus: 169. Release of accused when evidence deficient  If, upon an investigation under this Chapter, it appears to the officer in charge of the police 8 station that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report, and to try the accused or commit him for trial. A reading of Section 169 shows that the power to release is atleast until the report is submitted to the learned Magistrate and then the Magistrate orders to try such an accused. In this case the police report was submitted on 29th August 2007 and the learned Magistrate accepted the report and hence, there is no question of the learned Magistrate directing the applicant to appear before him or commit him for trial. The essence of the Section is to see whether any prima facie case at all is made out against any suspect so as to give the police officer any suspicion that an offence has been committed by such a person. If no such suspicion can be raised then the police officer can release him under Section 169. Ofcourse if the Magistrate sees an offence being committed when the report is placed before him, the Magistrate may order him to be tried or commit him for trial, in which case he would have to appear before the Magistrate and then the case would be proceeded against him in accordance 9 with law. 22.It is seen that upon the respective complaints of Vailshali Kerkar initially filed on 29th June 2007 under a police case and later on 22nd January 2008 in a private complaint both the accused against whom she made complaint are brought to justice albeit in two different Courts as per the complaints of Vaishali Kerkar herself. The case against them in the respective Courts shall be proceeded. 23.Considering all these facts it is seen that the impugned order suffers from gross and material irregularity. It is premature. It is not in terms of Section 319 of the Cr.P.C. On merits no case against Nilesh Sadye is shown to be seen by the learned Sessions Judge. Hence, there is no material to make him an accused in Sessions Case No.28/2007 before the Sessions Judge, Sindhudurg. In fact the DNA report is the material evidence showing no case against the applicant. 24.The order dated 18th August 2008 of the learned Sessions Judge, Sindhudurg is set aside. 25.The learned Sessions Judge shall proceed in accordance with law against the accused Rajesh Kadam in Case No. 10 28/2007. 26.The Criminal Revision Application is disposed off accordingly. (SMT. ROSHAN DALVI, J.)