IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.5719 of 2009 DATE:12.11.2010 Between: Kathula Uday Kiran …… Petitioner And The State of Andhra Pradesh, rep. by Its Public Prosecutor, High Court of A.P. …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION No.5719 of 2009 ORDER: The petitioner was impleaded as A-5 in C.C. No.1026 of 2008 by the Judicial Magistrate of the First Class, Srikakulam as per order dated 25.08.2008 in Crl.M.P.No.514 of 2008. Questioning the same, the petitioner filed this petition under Section 482 Cr.P.C. 2) Originally A-1 to A-4 were being prosecuted for offences punishable under Sections 498-A, 323/34 I.P.C in C.C. No.1026 of 2008. A-1 is husband of the victim woman. A-2 and A-3 are parents and A-4 is sister of A-1. The petitioner/proposed accused is A-4’s husband. Though originally the victim is stated to have given report to the police against A-1 to A-5 and though some of the witnesses examined by the investigating officer during investigation under Section 161(3) Cr.P.C stated some facts relating to the proposed accused also, the Sub Inspector of Police, Srikakulam Town Police Station who filed the charge sheet in the lower Court did not choose to implead A-5 as one of the accused in the charge sheet and filed the charge sheet only against A-1 to A-4. The case was taken on file by the Magistrate against A-1 to A-4 only for the above offences. It is stated that the Assistant Public Prosecutor filed the present petition in the lower Court under Section 319 Cr.P.C for impleading the petitioner as A-5 after examination of the victim as P.W-1 and that P.W-1 in her evidence had spoken to participation of A-5 in the offences. The lower Court impleaded the petitioner as A-5 on the ground that the record i.e., F.I.R, evidence of P.W-1 and her statement under Section 161 Cr.P.C are sufficient material to proceed against the proposed accused also in this case. 3) The lower Court failed to notice requirements of law for impleading a new accused in a case by exercising power under Section 319 Cr.P.C. The said enabling provision reads as follows: “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.” As can be seen from language employed in the above provision, the trial Court has to record the finding on the basis of evidence that “he appears to have committed” the offences complained. In Ram Singh V. Ram Niwas[1], the Supreme Court observed as follows: “The High Court, in our opinion, however, has committed a serious error in proceeding on the premise that mere existence of a prima facie case would be sufficient to exercise the court’s jurisdiction under Section 319 of the Code. We have noticed hereinbefore the importance of the word ‘appears’. What is, therefore, necessary for the court is to arrive at a satisfaction that the evidence adduced on behalf of the prosecution, if unrebutted, would lead to conviction of the persons sought to be added as accused in the case.” 4) Unless the trial Court gives a finding to that extent, the trial Court is not expected to exercise its power to implead a new accused person under Section 319 Cr.P.C. In case on hand, the lower Court failed to record such finding before impleading the proposed accused in this case. The order passed by the lower Court is thus unsustainable in law. 5) In the result, the Criminal Petition is allowed setting aside order dated 25.08.2008 passed by the Judicial Magistrate of the First Class, Srikakulam in Crl.M.P.No.514 of 2008 in C.C.No.1026 of 2008. _______________________________ SAMUDRALA GOVINDARAJULU, J November 12, 2010 ksh [1] (2009)14 Supreme Court Cases 25