IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY NINETH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.2403 OF 2010 Between: Nagam Dora Babu …Petitioner And The State of A.P., through P.P. High Court, High Court Buildings, Hyderabad. … Respondent This Court made the following: HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.2403 OF 2010 ORDER: The newly added accused files this revision petition questioning order, dated 17.09.2010, passed by the Judicial Magistrate of the First Class, Tuni, in C.C.No.78 of 2006. Originally, one Perumalla Anand Kumar was shown as the sole accused in this case. He was accused of offences punishable under Sections 304-A IPC and Section 133/177 of the Motor Vehicles Act, 1988. It is a case of rash and negligent driving of the car resulting in death of an individual. P.W.1 is the first informant to the police. In the First Information Report, P.W.1, who is an eye witness to the occurrence, stated that after the accident, the driver ran away while informing him that the car belonged to Venkata Vasu Dorababu. Even in his statement recorded by the police during investigation under Section 161 (3) Cr.P.C., P.W.1 stated that he can identify the car driver if shown to him. FIR was registered by the police against car driver of Indica Car bearing No.AP 37 Q 7778. Ultimately, the police filed the charge sheet against Perumalla Anand Kumar identifying him as driver of the accident car. 2. During trial in the lower Court, the first informant was examined as P.W.1. In the examination in chief, P.W.1 stated that Nagam Dorababu (revision petitioner herein) is driver of the car and not the accused and that he is resident of Chamavaram. Taking a clue from that portion of examination in chief of P.W.1, the Assistant Public Prosecutor in the lower Court filed petition under Section 319 Cr.P.C. to implead Nagam Dorababu as the accused in the case, after four years. The lower Court accepted the petition of the Assistant Public Prosecutor and impleaded Nagam Dorababu as the accused in the case. In no part of the investigation record during investigation made by the police as per the provisions of Code of Criminal Procedure, 1973, name of Nagam Dorababu figures as the driver of the accident car. Simply because P.W.1 for the first time after four years stated the name of Nagam Dorababu as the driver of the car at the time of accident, the lower Court should not have ordered impleading the said person as accused in the case. 3. In order to exercise power to proceed against any other person for the offence, Section 319 (1) Cr.P.C. contemplates existence of the circumstances to the following effect. It must appear to the Court from the evidence that the newly added accused person committed the offence. Mere existence of prima facie case or prima facie evidence in that regard is not sufficient. I n MOHD. SHAFI VS. MOHD RAFIQ AND ANOTHER[1], the Supreme Court held that before a Court exercises its discretionary jurisdiction in terms of Section 319 of the Code, it must arrive at the satisfaction that there exists a possibility that the accused so summoned is in all likelihood would be convicted. In SARABJIT SINGH AND ANOTHER VS. STATE OF PUNJAB AND ANOTHER[2], the Supreme Court held that before an additional accused can be summoned for standing trial, the nature of evidence should be such which would make out grounds for exercise of extra ordinary power and that the materials brought before the Court must also be such which would satisfy the Court that it is one of those cases where its jurisdiction could be exercised sparingly. 4. In BRINDAVAN DAS AND OTHERS VS. STATE OF WEST BENGAL[3], the Supreme Court held that the power under Section 319 Cr.P.C. is to be invoked not as a matter of course, but in the circumstances where the invocation of such power is imperative to meet the ends of justice. Probability to secure conviction on the basis of material which is already on record, is the criterion for exercising the power under Section 319 Cr.P.C. to implead a new accused in a case. If that test is applied in the present case, mere evidence of P.W.1 in his examination that Nagam Dorababu was driver of the accident car, cannot be taken on its face value. When that statement is cross checked with his prior statements contained in his First Information Report and his statement under Section 161 (3) Cr.P.C., it is evident that the present statement has no basis in them and, therefore, it cannot be taken for granted. There is absolutely no possibility of recording conviction against Nagam Dorababu in this case merely based on statement of P.W.1 made in his examination in chief. Thus, the lower Court erred in exercising its jurisdiction in favour of the prosecution in allowing the petition filed by the Assistant Public Prosecutor under Section 319 Cr.P.C. 5. In the result, the Criminal Revision Petition is allowed setting aside the impugned order passed by the lower Court and dismissing the application fildd in the lower Court under Section 319 Cr.P.C. ______________________________ SAMUDRALA GOVINDARAJULU, J December 29, 2010 KL HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL REVISION CASE No.2403 OF 2010 December 29, 2010 KL [1] 2007 (6) SCJ 731 [2] 2009 (5) SCJ 477 [3] 2009 (2) SCJ 250