M.K. Shah, J.
1. A question with regard to the interpretation of Section 319 of the Criminal P.C., 1973 ('the Code'), arises in this Miscellaneous Criminal Application, which is now converted into a special criminal application, at the request of the learned Advocate appearing for the petitioner.
2. The question arises in the following circumstances.
3. The present petitioner is original accused No. 4 in proceedings which are pending before the learned Metropolitan Magistrate, 7th Court, Ahmedabad, being Criminal Case No. 1158 of 1977. Respondent No. 3 Keshavlal Pdpatlal attached as Accountant to a firm named Anwarbeg Gausbeg and Company, Manufacturing and Distributing Incensed Sticks (Agarbatti), filed a complaint before the learned Magistrate on 17-6-1977 complaining that there was violation of the registered trade mark of his firm in 'Guru Darbar Agarbatti' supplied by accused No. 1 Dahyabhai Ambalal and accused No. 2 - Narendrabhai Manibhai Modi (present respondent No. 2) and one Kanubhai Gopaldas Modi (original accused No. 3). The said complaint was sent for inquiry to the police by the learned Magistrate under Section 202 of the Code. After the police submitted its report, the learned Magistrate issued process against accused Nos. 1, 2 and 3 on 15-7-1977. Thereafter, on the complainant's application dated 31-8-1977 to take the present petitioner Mohanbhai Bhomraj as accused No. 4, the learned Magistrate passed an order showing the petitioner as accused No. 4. Thereafter, on 17-1-1978, the complainant made an application to the learned Magistrate to drop accused No. 2 on the ground that there was no evidence against him. But the learned Magistrate was pleased to reject the application. Thereafter, prosecution evidence was recorded and on 17-2-1978, the learned Magistrate passed an order discharging accused Nos. 2 and 3 and he framed charge against accused Nos. 1 and 4 for the offence under Sections 78 and 79 of the Trade and Merchandise Marks Act as also under Sections 482, 483, 486 and 488 of the I..P.C. The complainant then gave an application to examine other witnesses including discharged accused Nos. 2 and 3 as aforesaid. That application was granted and the said witnesses had to be examined by the prosecution. Then, on 4th and 6th March, 1978, further cross-examination of prosecution witness Vasudev Bachubhai took place and on his cross-examination being over, accused No. 4 gave an application under Section 319 of the Code to take the said Narendra Manubhai Modi, original accused No. 2, who had been discharged as earlier stated, as an accused person to be tried along with the other accused who were facing the trial before the learned Magistrate. The learned Magistrate, after hearing the parties, passed an order on 6th April, 1978 for proceeding against the said accused along with other accused after framing a charge against him and for rehearing of the case after framing a fresh charge from the stage the said accused had been discharged.
4. Accused No. 2 took the matter further up by way of a criminal revision application which was heard by the learned Additional City Sessions Judge, 5th Court, Ahmedabad. On interpretation of Section 319 of the Code, the learned Additional City Sessions Judge held that accused No. 2 having been once discharged cannot be rejoined as an accused. He, therefore, allowed the revision application and set aside the impugned order of the learned Magistrate dated 6-4-1978. It is this order of the learned Additional City Sessions Judge passed in criminal revision application No. III of 1978 which is the subject-matter of challenge in this special criminal application. It may be noted that the application was originally filed as Miscellaneous Criminal Application No. 717 of 1978, but at the oral request of the learned Advocate Mr. A, D. Shah for the petitioner, permission has been granted to convert it into a special criminal application and it has been heard, as such.
5. In order to resolve the controversy arising in this matter, it would be first of all desirable to have a look at some of the relevant provisions contained in the Code. Section 202 provides that the Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or inter alia direct the investigation to be made by a police officer, and the learned Magistrate in the instant case directed the police on receipt of the complaint of the complainant to make such investigation. It should be noted that such an inquiry has to be ordered for the limited purpose of finding out whether a prima facie case for issuance of process has been made out. After receipt of the report from the police, in such a case, the learned Magistrate, if he is of the opinion that there is sufficient ground for proceeding and if the case appears to be a warrant case, may issue a warrant or if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before him or if he has no jurisdiction, some other Magistrate having jurisdiction. In the instant case, summonses were issued against the three accused as aforesaid.
6. Section 244 provides that when, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution, and as provided in Section 245, if upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. It is in accordance with the provisions contained in Section 245 that the order of discharge was passed inter alia against accused No. 2. Section 246 prescribes procedure when the accused is not discharged, which inter alia includes provisions for framing a charge, recording the plea of the accused, and if the accused refuses to plead or does not plead or claims to be tried as provided in Sub-section (4), he has to be asked if he wishes to cross-examine any and if so, which of the witnesses for the prosecution whose evidence has been taken earlier and after cross-examination and re-examination of such witnesses as may be named by him who are to be recalled, the evidence of the remaining witnesses for the prosecution has next to be taken. In the instant case the proceedings were at the stage when the cross-examination of all the prosecution witnesses, earlier examined, was finished and thereafter the prosecution wanted to examine as additional witnesses both the discharged accused Nos. 2 and 3 and it was at that stage that accused No. 4 submitted the said application under Section 319 of the Code for taking discharged accused No. 2 as an accused along with the other accused in the trial which was proceeding against the other accused.
7. Section 319 requires td be set out and it reads thus-
(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 ha 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 reheard;
(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.
In the instant case, the learned Magistrate after having passed the order under Section 319(1) for proceeding against accused No. 2 for the said offences for which the other accused were being tried, he also passed the requisite orders under Sub-section (4) for commencing proceeding afresh against the said accused and inter alia for rehearing the witness. A reference may also be made at this stage to that part of the provisions contained in Section 300 which is relevant to be considered in the instant case. Sub-section (1) provides-
(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof.
The provisions of Sub-sections (2) to (6) may be skipped over and then a reference may be made to the Explanation which reads thus-
The. dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.
8. It is submitted by Mr. Shah, the learned Advocate appearing for the petitioner that in the instant case, the learned Additional City Sessions Judge has misread and misconstrued the provisions of Section 319 of the Code and has not appreciated in proper perspective the decision cited before the learned Judge, on behalf of the petitioner. The interpretation on the expression 'any person not being the accused' placed by the learned Judge as covering and taking within its sweep a person who was an accused before the court during the inquiry stage and who has been discharged, is erroneous.
9. A plain reading of the section shows that what is contemplated is that in the course of any inquiry or trial, as the case may be, if any other person save and except the person or persons who is or are before the court in the capacity of accused at the relevant time, that is at the time when the question arises in the inquiry or the trial, as the case may be, appears to have committed an offence then he can be proceeded against if in the opinion of the court such person has committed an offence for which he can be tried together with the accused who is or are already before the court. The learned Additional City Sessions Judge, it seems, has included within the expression 'any person not being the accused', additional words 'or has been the accused before'. It would be significant to note that the section applies not to a single proceeding consisting of an inquiry and trial but any one of two distinct proceedings viz., (1) an inquiry or (2) a trial, thus treating each one as having an existence separate from the other.
10. On analysis of the said sub-section it will be evident that the following questions or considerations will arise. The first fact to be considered is as to what is the proceeding in which such a question arises. Is it in the nature of an inquiry or a trial? Then, the second question will be as to whether during the course of the said proceeding, viz. an inquiry or trial, as the case may be, as decided by answer to the first question, does it appear to the court from the evidence before it that some person has committed an offence of the nature as described in the section, followed by a further question as to whether that person is not the accused before the court in the said proceeding? If the court comes to the conclusion that, such a person who appears, from the evidence; to have committed an offence of the nature as described later in the section, is not the accused against whom the court is presently proceeding, then the court, may if other requirements of the section are fulfilled, proceed against the said person and not otherwise.
11. Now, in the instant case, if we go step by step, we find that the question arose before the learned Magistrate at the stage when there was a trial before the learned Magistrate in which after a charge had been framed he was proceeding against accused Nos. 1 and 4. The question, therefore, arose in the course of a 'trial' and not an 'inquiry'. In this trial, the persons being the accused were accused Nos. 1 and 4 and not the discharged accused Nos. 2 and 3. The learned Magistrate was satisfied from the evidence that the discharged accused No. 2 appeared to have committed an offence for which he could be tried together with accused Nos. 1 and 4 against whom the trial was proceeding at that stage; and, therefore, it was open to the learned Magistrate, as provided in the concluding part of Section 319(1), to proceed against 'such person' that is a person who was not an accused before the court in that trial, for the offence which he appeared to have committed.
12. It is true, the very person namely accused No. 2 was also an accused person earlier before the learned Magistrate when the matter was at an inquiry stage, and, after considering the evidence recorded of the prosecution witnesses, the learned Magistrate thought fit to discharge inter alia the said accused acting under the provisions contained in Section 245(1) of the Code. During the stage of that inquiry after his discharge and before the trial commenced, on the termination of the inquiry and on the framing of the charge against accused Nos. 1 and 4, he could not have proceeded against the said accused under Section 319 of the Code, because he would be dealing with the question arising in 'an inquiry' in which, though discharged, the said accused was still an 'accused person'. But that stage having been over as stated above, there was no inquiry before him. The question which arose thereafter before him after the trial had commenced, arose in a 'trial' which was proceeding after the framing of the charge. This was the trial in which accused Nos. 1 and 4 were the accused; and discharged accused No. 2 was not an accused before the learned Magistrate in the said trial which was so proceeding. The said accused would, therefore answer the description of 'any person not being the accused' in the said trial and hence, he could be proceeded against as provided in Section 319 of the Code.
13. My attention was drawn to Joginder Singh v. State of Punjab : 1979CriLJ333 . The Supreme Court while considering the scope and ambit, inter alia, of Section 319 held that the expression 'any person not being the accused' appearing in Section 319 clearly covers any person who is not being tried already by the court and the very purpose of enacting such a provision like Section 319(1) clearly shows that even ' persons who have been dropped by the Police during investigation but against whom evidence showing their involvement in the of-. fence later comes before the criminal court are included in the said expression.
14. Again, bearing in mind the procedure prescribed for trial of warrant cases by a Magistrate, it is abundantly clear that the trial begins after the charge is framed in a warrant case. A person, therefore, who was brought before the court at the stage of inquiry before the charge was framed and who was discharged by the court would be an accused in the said inquiry and not an accused in the trial which; commences after the inquiry stage is dver by framing the charge from which point of time, the trial proceeds only against the accused against whom the charge is framed. The accused discharged at the inquiry stage would not be the accused in the trial which so proceeds. My attention was drawn by Mr. A.D. Shah in this connection to Ratilal Bhanji Mithani v. State of Maharashtra AIR 1979 SC 94 wherein at page 101, the Supreme Court has observed in clear terms that the trial in warrant cases starts with the framing of a charge and prior to it the proceeding is only an inquiry,
15. Reliance was also placed by Mr. Shah on Saraswatiben v. Thakorlal Himatlal : AIR1967Guj263 . This was a case under the old Code and the section which came up for interpretation was Section 251-A(2). Here also, facts were similar in the sense that one of the accused was discharged and thereafter in the course of the trial against other accused the Magistrate finding that there were grounds for believing that the discharged accused had committed the offence, proceeded against him and framed a charge. Similar contentions as are raised before me by Mr. M.A. Shaikh, the learned Advocate for the complainant and which found favour with the learned Additional City Sessions Judge, were raised before this Court and negativing the said contentions, it was observed as follows:
If a Magistrate after discharging a person under Sub-section (2) of Section 251-A, Cr. P.C. finds subsequently on inquiry that there are grounds for believing that the person has committed an offence, it is open to the Magistrate, even if that person is not before the court, to issue a notice to that person.
It is true, under the old Code, as observed by the learned Additional Sessions Judge, there was no specific provision, as is now contained in Section 319(1) of the new Code, with regard to proceeding against a person not being an accused person in the inquiry or trial before the court. But Section 351(1) of the old Code did contain similar provisions applicable only to a person actually attending the court. It provided that any person attending the criminal court, although not under arrest or upon a summons, may be detained by such court for the purpose of inquiry into or trial of any offence of which such court can take cognizance and which, from the evidence may appear to have been committed, and may be proceeded against as though he had been arrested or summoned. Here also, as provided even though a person may not be under arrest or not summoned, he could be proceeded against in an inquiry or trial of any offence of which such court can take cognizance and which offence appears to have been committed by the said person. Because of difficulties which were felt in proceeding against persons who were not in attendance before court, specific provisions are now enacted in Section 319(1) whereby even though a person is not in attendance, he can be proceeded against, but the principle remains the same viz. that the court is inquiring into or trying an 'offence' and not an offender. The substance, therefore, is that the court is engaged in an inquiry into or trial of an offence and the person accused of an offence put up before the court is an accused person in such an inquiry or a trial. As observed in Raghubans Dubey v. State of Bihar : 1967CriLJ1081 :
Once cognizance has been taken by the Magistrate, he takes, cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence.
It would be thus seen that the principle applicable would remain substantially the same in spite of the fact that a more comprehensive provision is now enacted in the new Code in the form of Section 319 in place of Section 351 of the old Code.
16. Procedural law makes a distinction by providing in Chapter XIX of the Code two distinct stages in warrant cases instituted otherwise than on a police report, viz. the first stage of inquiry which ends when either the accused is discharged or a charge is framed against him and the second stage of trial which actually commences with the framing of the charge. A conclusion, therefore, would be inescapable that in a trial which has so commenced after the framing of the charge against some of the accused who were put up before the court at the inquiry stage in which some others were discharged, the court can, on material available on record, order framing of the charge against the discharged accused also if in the opinion of the court, it appears from the evidence that such person, who is not an accused person before the court in the said trial but who may be one of the accused at the stage of inquiry and who was earlier discharged, has committed any offence for which he can be tried together with the other accused against whom the trial was already proceeding.
17. The learned Magistrate, therefore, was acting according td law and was not at all in error when he passed the impugned order dt. 6-4-1978 and the learned Additional City Sessions Judge was patently in error' in setting aside' the said order in revision. But it appears that the learned City Sessions Judge in the view which he took on the interpretation of Section 319, did not consider the impugned order of the learned Magistrate on merits. The matter, therefore, will have to go back to him for disposing of the said criminal revision application according to law in the light of the observations made above, and the result will be following order:
18. Rule absolute to this extent that a writ will issue quashing and setting aside the said order passed by the learned Additional City Sessions Judge on 17-6-1978 with direction that the papers be sent back to him for the purpose of disposing of the said criminal revision application, which he will dispose of according to law, in the light of the observations made above.