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2019 DIGILAW 9 (AP)

S. Sarala Vandanam v. Poluru Bala Venkata Ramana

2019-01-30

T.RAJANI

body2019
ORDER : T. RAJANI, J. 1. This petition is filed seeking to set aside the order, dated 19.4.2018, passed in Crl. RP No. 11 of 2018 by the Court of Principal Sessions Judge, Kurnool, by virtue of which the Court allowed the revision, which was preferred against the order, dated 6.3.2018, passed in Crl. MP No. 552 of 2018 in CC No. 562 of 2011 on the file of the Court of Judicial Magistrate of First Class, Special Mobile Court, Kurnool, by virtue of which the Magistrate dismissed the petition filed by the respondent therein, which is the State represented by the Station House Officer, under Section 319 Cr.P.C. to issue summons to the proposed accused, who is the present petitioner. 2. Heard the Counsel for the petitioner and the Public Prosecutor appearing for the respondent. 3. The Counsel for the petitioner submits that the present petitioner, who is the proposed accused, was figured as LW 6 in the charge-sheet filed against the accused therein and a perusal of the order of the trial Court shows that the material on record was perused by the lower Court and it records that admittedly enquiry was conducted by the Deputy Registrar, Kurnool, dated 12.1.2015, and a detailed report was filed after the said enquiry and, at Paragraph 11, a clean chit was given to the present petitioner stating his role was not there in the misappropriation of funds in the SC Corporation. It also reveals that the accused misappropriated an amount of Rs. 29,50,000/- out of the funds of SC Corporation and also other employees. 4. Such being the facts born by the record, the present petitioner did not figure as accused and she was shown as LW 6 in the charge-sheet. After the trial Court took up the trial and recorded the evidence of PWs. 1 to 3, the prosecution filed a petition under Section 319 Cr.P.C. seeking to add the present petitioner as an accused. After dismissing the said petition by the trial Court, strangely, the accused preferred a revision against the said order seeking this petitioner to be arrayed as additional accused. 1 to 3, the prosecution filed a petition under Section 319 Cr.P.C. seeking to add the present petitioner as an accused. After dismissing the said petition by the trial Court, strangely, the accused preferred a revision against the said order seeking this petitioner to be arrayed as additional accused. The revisional Court records that the Investigating Officer cannot delete the name of the accused and it is for the Court, however, to discharge the accused if there is no material against him/her, or to conduct trial, and only after full-fledged trial, the Court has to either acquit or convict the accused, basing on the evidence available on record. But this proposition evolved by the revisional Court seems to be alien to the established law. The Investigating Officer has every right to conduct investigation and array those persons, who are found to be responsible for crime, as an accused and to drop the proceedings against the accused, who are not found to be guilty. Apart from that, the revisional Court itself records that the learned Public Prosecutor for the respondent contended that the trial Court has dismissed the petition after going through the entire material on record and it also records that a prayer was also made by the Public Prosecutor to dismiss the revision petition. 5. These being the circumstances and the facts, which were brought before the revisional Court, the revisional Court somehow was inclined to allow the petition and array the petitioner as accused. In order to appreciate the validity of the said order, the evidence of P.W. 1, which is the basis for prosecution to move a petition under Section 319 Cr.P.C., at the first instance, has to be gone into. Except a statement in the deposition of P.W. 1 that LW 6 and accused have misappropriated the amounts, there is absolutely no basis laid by P.W. 1 for making such statement. 6. The law is well settled as to how a petition filed under Section 319 Cr.P.C. has to be dealt with. The Supreme Court in a ruling reported in Sarojben Ashwin Kumar Shah and others v. State of Gujarat and another, (2011) 13 SCC 316 : 2011 AIR SCW 5829, categorically held as follows: "(v) The power conferred upon the Court is although discretionary but is not to be exercised in a routine manner. The Supreme Court in a ruling reported in Sarojben Ashwin Kumar Shah and others v. State of Gujarat and another, (2011) 13 SCC 316 : 2011 AIR SCW 5829, categorically held as follows: "(v) The power conferred upon the Court is although discretionary but is not to be exercised in a routine manner. In a sense, it is an extraordinary power which should be used very sparingly and only if evidence has come on record which sufficiently establishes that the other person has committed an offence. A mere doubt about involvement of the other person on the basis of the evidence let in before the courier is not enough. The Court must also be satisfied that circumstances justify and warrant that the other person be tried with the already arraigned accused." 7. The Constitutional Bench of the Supreme Court reported in Hardeep Singh v. State of Punjab and others, 2014 (2) ALD (Crl.) 152 (SC) : (2014) 3 SCC 92 , wherein it was held as under: "105. Power under Section 319 Cr.P.C. is a discretionary and an extraordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the Court that such power should be exercised and not in a casual and cavalier manner." 8. In Jogendra Yadav and others v. State of Bihar and another, 2015 (2) ALD (Crl.) 906 (SC) : (2015) 9 SCC 244 , the Apex Court did not accept the contention of the Counsel for the appellant therein that there is no difference between an accused since inception and the accused who has been added, as such, under Section 319 Cr.P.C.. It held that the said submission cannot be accepted since there is a material difference between two. In the opinion of the Supreme Court, an accused since inception is not necessarily heard before he is added as an accused, while a person, who is added as Section 319 Cr.P.C., is necessarily heard before being so added. It held that the said submission cannot be accepted since there is a material difference between two. In the opinion of the Supreme Court, an accused since inception is not necessarily heard before he is added as an accused, while a person, who is added as Section 319 Cr.P.C., is necessarily heard before being so added. It further held that it seems incongruous and indeed anomalous if the two sections are construed to mean that a person who is added as an accused by the Court after considering the evidence against him can avail remedy of discharge on the ground that there is no sufficient material against him. It further observed that the extraordinary power under Section 319 Cr.P.C., can be exercised only if very strong and cogent evidence occurs against a person from the evidence led before the Court. 9. In this case, apart from there being no prima facie evidence against the petitioner, there is positive evidence to show that she is not involved in this offence. 10. Hence, in view of the above facts and circumstances, this Court opines that the order passed by the revisional Court is not at all sustainable and therefore, it is liable to be set aside. 11. With the above observations, the criminal petition is allowed setting aside the order, dated 19.4.2018, passed in Crl. RP No. 11 of 2018 by the Court of Principal Sessions Judge, Kurnool. 12. As a sequel, the miscellaneous applications, if any pending, shall stand closed.