T. Duraisamy vs State

S. Ashok Kumar, J.

This Criminal Revision Case has been filed by the revision petitioner who is A.1 in C.C.No:201 of 2003 on the file of the learned Judicial

Magistrate, Sankagiri against the order passed in Crl.M.P. No. 3253 of 2004 dated 18.10.2004 by the learned Judicial Magistrate, Sankagiri,

dismissing to implead the persons mentioned by him.

The brief facts of the case are as follows:

The petitioner is the President of the Kullampatti Primary Agricultural Cooperative Bank. Based on the report of the Joint Registrar, the case was

filed against the petitioner, who is the President and also against the Secretary of the Bank, who are said to be responsible for the day to day

affairs of the Bank as per by-law 27(1) and 27(2) of the Cooperative Bank. During the course of cross examination of P.W.1 he has stated that

Six persons namely, E.M.Shanmugham, B.Palanisamy, S.Thangaraj, C.Muthupaiyan, R.Kaveri, and the petitioner herein are accused as per the

report filed u/s 81 of the Tamil Nadu Cooperative Societies Act. The grievance of the petitioner is that they were not arrayed as accused in the

complaint. Hence the petitioner filed Crl.M.P.No:3253 of 2003 before the trial court to implead the above five persons as accused. The learned

Judicial Magistrate dismissed the said petition on the ground that a co-accused cannot file a petition to add more accused in the case.

u/s 319(1) Cr.P.C., 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 persons

for the offence which he appears to have committed. Under Sub-section (4) where the Court proceeds against any person under Sub-section (1),

then the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard.

It is the admitted case of P.W.1 that Five other persons mentioned above are also arrayed as accused and responsible for the misappropriation

as per the report submitted u/s 81 of the Tamil Nadu Cooperative Societies Act. But the prosecution has launched case only against the petitioner,

who is the President and against the Secretary of the Cooperative Bank who were responsible for the day to day affairs of the Cooperative Bank.

Since there is a finding in the inquriy conducted by the Sub-Registrar of Cooperative Societies that the Five more persons are also responsible for

the misappropriation of the money, it is appropriate that they are also made as accused.

In M/s. Omparkash Shivprakash Vs. K.I. Kuriakose and Others, the Hon''ble Supreme Court held thus:

Section 319 of the Code empowers the Court to proceed against any person who is not being made an accused already, if it appears from the

evidence collected in the inquiry or trial of an offence that such person has committed an offence for which he could be tried together with the

already arraigned accused. One of the differences between Section 319 of the Code and Section 20-A of the Act is that, while in the former even

if it appears to the Court from the evidence (either during inquiry or trial of the offence), that another person is to be tried along with the already

arraigned accused, then the Court can proceed against that other person, while in the latter the satisfaction of the Court that such manufacturer

(distributor or dealer) is also concerned with that offence must be gathered from the evidence adduced before it during the trial. In other words, the

power u/s 20 cannot be invoked until the trial begins and after the trial ends.

In Jarnail Singh and Another Vs. State of Haryana and Another, , the Apex Court held thus:

The petitioners are not accused in Sessions Case NO.167 of 1999 wherein an order of summoning u/s 319 has been passed. the plain reading

of Section 319 of the Code is that if a person is not before Court as an accused of the offence which from the evidence he appears to have

committed, the Court may summon such person to face the trial. Section 319 does not exclude from its purview a person who is not an accused

before Court in a case in which order for his summoning is passed despite the fact of such a person being an accused in another case though in

respect of same occurrence but with different version. The words ""any person not being the accused"" in Section 319 would cover any person who

is not already before the Court in the case in which order u/s 319 is passed. It is the duty of the court to bring before it any person who appears to

have committed an offence and to convict and pass an appropriate order of sentence on proof of such person having committed the offence.

In the above circumstances, the order of the learned Judicial Magistrate, Sankagiri is set aside. The learned Judicial Magistrate, Sankagiri is

directed to issue summons to the other five persons mentioned in the Petition filed by the revision petitioner, hear them before impleading them as

accused and after affording an opportunity of hearing, he shall include them as accused in the Calendar Case, if there are reasonable grounds to

suspect that they are also responsible for the misappropriation and try the case as enumerated u/s 319 Cr.P.C.,

Criminal Revision Case is allowed with the above directions.