GHANSHYAM Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS petition under section 482 of Criminal Procedure Code is directed against the order dated 2.7.1993 passed by the Additional Sessions Judge, Jaora in Sessions Trial No. 138 of 1992 by which the learned Judge acquitted the single accused Shankarlal s/o Mangilal and at the end ordered prosecution of the present petitioner Ghanshyam in relation to contraband 200 grams opium which was subject -matter of charge vis -a -vis Shankarlal. 2. It is pertinent to note that on the very first hearing at the time of taking cognizance of the offence on 10.7.1992 the prosecution moved an application before the trial Court that there was no case against petitioner Ghanshyam who was named as second accused in the challan and, therefore, his name be omitted. It is in this situation that the name of Ghanshyam was omitted and the case proceeded only against Shankarlal.

(2.) Learned counsel for the petitioner relying on the language of section 319 (1) Cr.P.C. argues that the provision cannot be used for substitution of an acquitted accused by another person. The provision can be used only in a case where the main accused is being tried and during the trial it appears expedient to the Court to try a person who is not an accused and appears to have committed the crime together with the main accused and then such other person may be joined in the trial after notice to him.

(3.) Secondly even considering the matter ex debito justitiae under section 482 Cr.P.C. it would be virtually unjust to handle the liberty of a citizen in a cavalier fashion by declaring that there is no case against him and getting him dropped from a prosecution and then again asking him to be tried after the sole accused left in the case was acquitted. There is no doubt that it would cause a very serious prejudice to such a person to be tried thereafter. It may be bear repetition that such a course is not permissible within the ambit of section 319 Cr.P.C. as stated above.