- (1.) THIS misc. petition under Section 482 Cr.P.C. is preferred to assail the order dated 3.3.2010 passed by learned Sessions Judge, Merta, affirming the order dated 29.7.2008 passed by learned Judicial Magistrate, Merta, rejecting an application preferred under Section 319 Cr.P.C.
(2.) IN brief, facts of the case are that at the instance of the petitioner a criminal case was lodged (FIR No.27/2006) dated 28.3.2006 at police station Merta Road. After necessary investigation a police report was filed as per Section 173 Cr.P.C. alleging commission of an offence punishable under Sections 332, 353 IPC by Shir Chhotu Khan. After recording statements of PW-1 Shabbir Ali (petitioner) and PW-2 Kesharam, an application was preferred under Section 319 Cr.P.C. to add respondent Jagdish Prasad too as an accused. As per the petitioner PW-1 and PW-2 in quite unambiguous terms stated before the court that respondent Jagdish Prasad held the hands of informant and Chhotu Khan gave beating, therefore, Jagdish Prasad too is required to be added as an accused. The trial court after considering the entire material available on record reached at the conclusion that no averment was made in first information report regarding involvement of Jagdish Prasad in the crime and also that nothing in this regard was also stated in the statements recorded as per provisions of Section 161 Cr.P.C. during the course of investigation. The trial court also not found the statements of PW-1 and PW-2 sufficient to draw a presumption about prima facie probable conviction of Jagdish Prasad. The application was accordingly rejected. The revisional court also examined the entire matter and did not find any merit in the matter to interfere. In this misc. petition it is urged that a definite allegation is made against Shri Jagdish Prasad and, therefore, he is required to be added as an accused. This Court in SBCr.Revision Petition No.1079/2006, Amara Ram & Ors. v. State of Rajasthan & Anr., decided on 5.12.2007, while following various pronouncements of Hon'ble Supreme Court, [1983(1) SCC 1, Municipal Corporation, Delhi v. R.K.Rodhi & Ors.; 2000(3) SCC 262, Michel Machhado and Ors v. Central Bureau of Intelligence & Ors.; and 2004(7) SCC 792, Krishanappa v. State of Karnataka], reached at the following conclusions:- "(1)the power available under Section 319 Cr.P.C. is extra ordinary power and such power must not be exercised mechanically; (2)the Court must not add a person as an accused unless having hope that a reasonable prospect exists for conviction of the person concerned for the offence alleged; (3)on basis of available evidence it should appear to the Court that some other person who is not arraigned as an accused could as well be tried alongwith already arraigned accused; and (4)the Court while exercising power under Section 319 Cr.P.C. may not enter into deep merits of the matter but must ensure that innocent person may not be prosecuted, hence mere a lurking doubt from the evidence about involvement of a person is not sufficient to add and try him." In the instant matter after investigation the police report was filed and respondent Jagdish Prasad was not arrayed as an accused. On perusal of the statements of PW-1 Shabbir Ali and PW-2 Kesharam, I also do not find any substantial evidence at this stage on basis of which it can be said that a reasonable prospect exists for conviction of the respondent in the offence alleged. As such the orders passed by the court below does not suffer from any material illegality that may warrant interference of this Court under Section 482 Cr.P.C. The misc. petition is dismissed accordingly. ;