@JUDGMENTTAG-ORDER
N. Arumugam, J.@mdashHeard. Without any shred of evidence or materials, the order passed by the learned Special Judge of E.C. Act Cases,
Thanjavur, in Crl.M.P.No.280 of 1992 in S.T.C.No.6 of 1990 on 29.4.1992 is being challenged in Crl.R.C.No.479 of 1995, for its impropriety
and illegality.
2. It is seen from the case records that the revision petitioners were indicated for the alleged offences punishable under cl.19 of the Fertiliser
Control Order read with Section 10 of the Essential Commodities Act before the trial Court above referred. When the trial was almost over by
recording the evidence from both sides, at the stage of arguments on behalf of the parties, a petition under S.319(1) of the Code of Criminal
Procedure was filed by and on behalf of the prosecution, seeking to implead the Chairman, Vice Chairman & Managing Director and Chief
Chemist of EID Parry (India) Limited, as accused in this case, for the reason that the accused who was facing the trial cannot be held responsible.
S.319(1) of the Code of Criminal Procedure, is extracted hereunder for the purpose of appreciating the case in its proper perspectives
Power to proceed against other persons, appearing to be guilty of offence.-
(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 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.
3. Other sub Sections may not be relevant for the purpose of this case. It is thus seen that sub Section (1) of S. 319 of the Code clearly provides
an imperative that the Court is empowered to proceed against any person under this Section upon coming to know of the material evidence
produced or identified before it even though he was not arraigned as an accused already. Thus, to extend the legal rope against any person, who
has committed the offence, though not brought before the Court but liable to be brought before the court under this Section, identification of the
proper materials and evidence for his involvement is a must. Judicial function is the basis to be exercised before proceeding against any such
person though he was not on record. If such basis is identified by the Court, then Court is empowered to proceed into bring him to the record of
the Court to answer to the offence found out against him, otherwise, under no circumstances it can.
4. A perusal of the impugned order shows that there is no finding or semblance of observation made by the learned Special Judge of the very
involvement of the new persons sought to be arraigned for the offences charged nor his finding projects anything towards the commission of the
offences charged by the new persons sought to be added. Even if there is any evidence, then, under the guided judicial principle of policy and
principle of natural justice, the persons sought to be added as accused before proceedings under S. 319 of the Code must be heard in person and
Court should exercise judicial function as provided under S. 319 of the code by serving notice upon the new persons to be added as accused.
Simply because a mere asking was done to add any number of persons in a criminal case, it is not at all desirable to accede the request and order
to implead any person as an accused. There must be some basic reasonings and materials before the Court to get such persons impleaded and
even if it is there, the concerned persons should be provided with an opportunity to be heard, to put forth their objections, if any, for the simple
reasoning that there were no new materials or investigation done in such case. If the facts of the instant case is looked into in the context of the
above legal position, I am fully constrained to hold that the impugned order under this revision is totally lacking the above legal ratio and for the
said reason, I am of the firm view that it cannot be sustained. However, in the interest of justice, while setting aside the impugned order, I deem it
necessary to remit back the whole matter to the file of the Special Judge, to consider the case in the light of the above observation after sending
notice to the proposed new parties and hear their objections as well as the prosecution and to dispose of the same in accordance with law as
discussed above without any further delay.
5. In the result, for all the foregoing reasonings and with the direction given above, the impugned order passed by the Learned Special Judge in
C.M.P. No. 280 of 1992 in S.T.C.No.6 of 1990 dated 29.4.1992 is set aside and the whole mater is remitted back to the file of the learned
Special Judge for fresh disposal and accordingly, Crl.R.C.No.479 of 1995 is allowed and disposed of.
6. Following the disposal of Crl.R.C.No.479 of 1995, Crl.R.C.No.478 is also allowed for the simple reasoning that the acceptance of the memo
filed on behalf of the prosecution at the first instance and the latter dismissal is without any legal propriety but however, in view of the observations
held by me in the earlier revision, no separate finding is necessary in this revision. Accordingly, Crl.R.C.No.478 of 1995 is also allowed.
