JOSHI, J. - (1.) BY the impugned order dated 7. 4. 2003, the learned trial Court has rejected the application dated 3. 03. 2003 moved by the present petitioners u/s 319 Cr. P. C. to implead Kayum Ali, Anand Surana and Salma as accused in the case. BY the said order, the application u/s 310 Cr. P. C. (dated 26. 03. 03) filed by the accused and the application dated 13. 3. 03 filed by the complainant Salma were also rejected but, that part of the order has not been challenged either of the parties.
(2.) HEARD learned counsel for the parties. Learned counsel for the petitioner Shri Sandeep Mehta argued that the impugned order is liable to be set aside in the interest of justice as the application u/s 319 Cr. P. C. has been rejected by the learned trial Court on the sole ground that previously an application to the same effect was rejected on 11. 12. 1999. At that time, the evidence of both the parties was to be recorded. It was further argued that the present petitioners as well as Kayum Ali, Anand Surana and Salma were Directors of the Company, but the complainant has not impleaded them as accused in the case. Relying on the decision of the Hon'ble Apex Court in S & S Industries & Enterprises Ltd. vs. Birla Finance Ltd. (1), he argued that the complaint against Managing Director is maintainable even in the absence of specific averment as to Incharge and responsible in affairs of company but, not against other directors. Per contra, the learned counsel for the complainant Shri Pradeep Shah argued that as per the judgment of this Court in Ramkaran vs. State of Rajasthan (2), the accused cannot insist to implead some-one else as an accused. u/s 319 Cr. P. C. Further relying on judgment of this Court in Madan Lal vs. Bhanwar Lal (3), it was argued that no specific and active role has been assigned and averred in the complaint and therefore, the trial Court was perfectly with its jurisdiction to pass the impugned order. He has argued that the case has been fixed for final arguments after recording the evidence led on behalf of the accused and the application has been filed with an ulterior motive to delay the proceedings. I have gone through the impugned order. A criminal revision against the order dated 11. 12. 99 was rejected by the learned Additional Sessions Judge No. 3, Udaipur on 19. 6. 2002 and in that application, the same point that all the directors are to be made accused in the case was raised. It cannot be said that the impugned order has been passed solely on the ground of dismissal of previous application to the same effect. Section 319 of the Code of Criminal Procedure reads as under :- " Section 319 (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. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub- section (1), then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. "
(3.) AS per this section, when it appears to the Court that any person not being an accused has committed any offence, for which such person could be tried together with the accused already arraigned, the Court may pursue against such person for the offence, which he appears to have committed. This provision of this section empowers the Court to proceed against any person not shown or mentioned as accused if it appears from evidence that such person has committed an offence for which he could be tried together with the main accused against whom an enquiry or trial is being held. The proceedings against such person shall be commenced de-novo, and the witnesses must be reheard. Otherwise the case proceeds as if such person had been an accused when the Court took cognizance of the offence upon which inquiry or trial was commenced. The policy of the Code is that the offence can be taken cognizance of once only and not repeatedly upon discovery of further particulars. The power of summoning under Section 319 is not to be exercised in a routine and mechanical manner, is to invoked when on consideration of all the materials available on record, the Court feels the necessity of impleading some persons as accused. The power exercisable under Section 319 is an extra-ordinary power conferred on the Court to do real justice, it should be used with caution and only if compelling reasons exist for proceeding against a person against whom action has not been taken. As per the judgment in Mohan Wahi vs. State (CBI) (4), and Chiragali Mohammad Abdul Abeem Ahmed vs. State (5), the accused may also move the Court for exercising its powers under this Section. But, there is no reason to distinguish or otherwise give an opinion contrary to the judgment given by this Court in Ramkaran vs. State of Rajasthan (supra), in which it has been held as under :- " The present petition has been filed by the accused- petitioner Ram Karan to implicate Roopa Ram as a co-accused and be tried alongwith him and other co-accused. Section 319 Cr. P. C. does not give any power to the accused to insist that some one else be joined with him in the trial. The discretion under Section 319 Cr. P. C. is entirely with the Court, which has to be exercised judiciously having regard to the facts of each case. The High Court can interfere in the order passed by the Court below in such matters only when there is a fundamental legal defect going to the root of the proceedings or there is an abuse of the process of the Court or the exercise of the discretion being, in any way, capricious or arbitrary. In the present case, the order passed by the learned lower Court does not suffer from any of these infirmities. The evidence does not show the involvement of Roopa Ram as a co-accused and the learned trial Court has rightly rejected the application filed by the petitioner-accused. " ;