K.G. Balakrishnan, J.
1. The appellant was tried by the Special Judge for trial of offences under the Essential Commodities Act, Trichur and was found guilty of offence punishable under Section 7(1)(a)(ii) of E.C. Act read with Section 3(2)(c)(d) of the said Act and Clauses 29 and 50 of the Kerala Rationing Order 1966. The appellant appeals against the conviction and sentence.
2. The appellant was tried along with two other persons. Originally the police filed final report against accused 1 and 2. The gist of allegation against these two accused was that the 1st accused unlawfully removed 611 Kgs. of rice from a. ration shop and sold this ration rice to the 2nd accused. The prosecution alleged that accused 1 and 2 committed offences punishable under Clauses 5 and 5A of the Kerala Rationing Order and Section 7(1)(a)(ii) of the E.C. Act read with Section 3(2)(c)(d) of the said Act. Trial commenced against accused 1 and 2 and 6 witnesses were examined on the side of the prosecution. At this stage, the Public Prosecutor filed a petition under Section 319 of the Cr.P.C. and prayed that from the evidence, it appeared, that the 'appellant herein committed offence and she also should be impleaded as an accused. The petition was allowed and the appellant herein was impleaded as the 3rd accused. Fresh charge was framed against the appellant for the offences punishable under Clauses 5, 5A, 29 and 44 of the Kerala Rationing Order, 1966 and Section 7(1)(a)(ii) read with Section 3(2)(c)(d) of the E.C. Act. The learned Special Judge by his judgment dated 14-1-87 acquitted accused 1 and 2 and convicted the 3rd accused-appellant for the offences punishable under Clauses 29 and 50 of the Kerala Rationing Order 1966 and Section 7(1)(a)(ii) of the E.C. Act read with Section 3(2)(c)(d) of the said Act. The conviction and sentence was challenged by the appellant herein in Crl. Appeal No. 41 of 1987. The appellant alleged that the procedure adopted for trial was illegal as the evidence of 6 witnesses were recorded in her absence. This Court set aside the conviction and sentence and ordered a fresh trial. Thereafter, 7 witnesses were examined including the witnesses already examined by the trial Court. The appellant was given opportunity to cross-examine these witnesses and by judgment dated 30-1-89 the Special Judge found the appellant guilty of offences punishable under Clauses. 29 and 50 of the Kerala Rationing Order read with the provisions of the E.C. Act. This conviction and sentence is challenged by the appellant.
3. The learned counsel for the appellant Shri T. V. Prabhakaran contends that the conviction and sentence is not sustainable since the Special Judge violated the provisions of Section 319, Cr.P.C. It is contended that the Special Judge was not justified in taking cognizance of additional offences when the appellant was impleaded as an additional accused invoking Section 319 of the Code. The short question that arises for consideration whether the Special Judge was justified in taking cognizance of fresh offences in addition to the offences already taken cognizance by the Special Judge against accused 1 and 2.
4. A reading of Section 319 of the Cr.P.C. would show that the Special Judge was not justified in taking cognizance of fresh offences as against the present appellant. Section 319, Cr.P.C. reads as follows:
'319. Power to proceed against other persons appearing to be guilty of offences.--(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.'
Section 319 says that if in the course of inquiry into, or trial of, an offence, it appears from the evidence that any person other than the accused who are already on party array 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. Sub-section (2) of Section 319 further says that if such person is not attending the Court the Court may arrest him and summon him for the purpose of proceeding against him. Sub-section (3) of Section 319 empowers the Court to detain such person for the purpose of any inquiry or trial of the offence which he appears to have committed. Section 4(1)(a) of Section 319 says that proceedings in respect of the person who is newly added as the accused shall be commenced afresh and the witnesses be re-heard. section4(1)(b) of Section 319 raises a legal fiction that the case may proceed against the newly added accused as if such person had been an accused when the Court took cognizance of the offence upon which the inquiry or trial was commenced. Even under the earlier Section i.e. Section 351 of the old Cr.P.C, the Court had powers to take cognizance of offences as against the additional impleaded accused. However, it did not state whether or under what manner cognizance was taken by the Magistrate. Some courts had taken the view that the Magistrate is supposed to have taken cognizance under Section 190(1)(c) of the Code.
5. Under section4(1)(b) of Section 319, Cr.P.C. it is specifically made clear that it will be presumed that the newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. This would show that the Court had already taken cognizance of the offence and by virtue of section 4(1)(b) of Section 319 a legal fiction is created that the cognizance would be presumed to have taken as against this newly added accused also. This, in my view, indicates that the Court is not empowered to take cognizance of any fresh offence. If an accused is impleaded by invoking Section 319, the Court has no power to take cognizance of any fresh offence and the newly added accused could be tried only for the offence already taken cognizance against other accused. Sub-section (1) of Section 319, Cr.P.C. would also show that the Court has got power to implead an additional accused only if it is found that he could be tried together with the accused who are already on party array.
6. In the instant case the allegation against the 1st accused was that he unauthorisedly sold ration articles and the allegation against the 2nd accused that he was in possession of ration articles without a valid ration document whereas the allegation against the appellant herein was that she made falsification of account and thereby committed offence punishable under Section 50 of the Kerala Rationing Order and that she failed to cancel the appropriate space in the ration cards supplied to the card holders, when she actually sold the ration articles to the card holders. The charge against the appellant is independent and has no nexus to the offences alleged against accused 1 and 2. That being so, the Special Judge was not justified in invoking Section 319, Cr.P.C. to implead the appellant herein and to try her for offences other than the offences he had already taken cognizance. It is also important to note that under Section 11 of the E.C. Act no Court shall take cognizance of the offence punishable under this Act except on a report in writing by the public servant as defined under Section 21 of the I.P.C. So, the Special Judge had no power to take cognizance of the offence even under Section 190(1)(c) of the Code unless there was a report in writing by the public servant. In any view of the matter the Special Judge was not justified in invoking Section 319 of the Cr.P.C. to try the appellant for the offences punishable under Clauses 29 and 50 of the Kerala Rationing Order. As the Special Judge had not taken cognizance of these offences, the whole trial against the appellant was vitiated by this illegality and the Special Judge acted without jurisdiction.
The conviction and sentence against the appellant is set aside and she is acquitted of all the charges framed against her.
Crl. appeal is allowed.