S.M. Ali Mohamed, J.
1. These two petitions under section 482 of the Criminal Procedure Code, 1973, are filed to call for the records in C.C. Nos. 47 and 46 of 1986, respectively, on the file of the learned Additional Chief Judicial Magistrate, Madurai, and to quash the same.
2. There were four accused before the trial court in both the above cases. The first accused is Messrs. Rasi Metals, and Alloys, a registered partnership firm. The third accused is the petitioner in these petitions and she is a partner of the first accused firm. The prosecutions were instituted against the firm, Messrs. Rasi Metals and Alloys, and partners by the Income-tax Officer, Circle I(1), Madurai, for alleged offences under sections 192, 193, 196 of the Indian Penal Code, 1860, and under sections 276C and 277 of the Income-tax Act, 1961, in C.C. No. 46 of 1986 and under sections 193, 197, 420 read with section 511 of the Indian Penal Code and sections 276C, 277 read with section 278B of the Income-tax Act, 1961, in C.C. No. 47 of 1986 on the file of the Additional Chief Judicial Magistrate, Madurai, for the assessment years 1981-82 and 1980-81 respectively.
3. It is alleged in the complaint that the first accused partnership firm was manufacturing and selling tin containers. The sales tax authorities inspected the premises of the accused firm on July 26, 1980, and October 1, 1981. It was found during the inspection that some bogus purchases were made with one Messrs. Thiraviam Agencies, Kannan and Company, Trichy, S. Perumal Chetty, and Messrs. K. Ravindran and Brothers, Madurai. It is further alleged that, on enquiry, it was found out that there were no such dealers at the addresses given in the respective bills. Hence, the sales tax authorities decided that these purchases were bogus as the dealers were found to be non-existing and non-registered parties. The Commissioner (Taxes) had confirmed these findings. After orders of the Commercial Tax Officer, the books of account of the accused firm were scrutinised independently for essential (sic) proceedings and came to the conclusion that the bills and invoices were false and bogus. Thus, they had fabricated false accounts and purchase bills. They wilfully attempted to evade payment of tax under the Income-tax Act, 1961, by suppression of facts. Thus, they filed statements of accounts for the assessment year 1980-81 in C.C. No. 47 of 1986 and for the assessment year 1981-82 in C.C. No. 46 of the 1986 and thereby it was alleged that the accused committed offences under sections 193, 197, 420 of the Indian Penal Code read with section 276C and section 278B of the Income-tax Act, 1961, in C.C. No. 47 of the 1986 and under sections 192, 193, 196 of the Indian Penal Code and under sections 276C and 277 of the Income-tax Act, 1961, in C.C. No. 46 of 1986.
4. The third accused therein who is the petitioner in these two petitions is an old lady aged 60 years. She has stated in her petitions that she is one of the partners of the first accused partnership firm. Messrs. Rasi Metals and Alloys. As per the partnership deed executed on February 1, 1967, the management of the firm was entrusted with the second accused, Thangamani, and she was paid a monthly salary for the day-to-day administration of the firm. She was only a sleeping partner. She has also stated that the said partnership business was wound up and the firm was dissolved in 1984 itself. The petitioner and the fourth accused gave a public notice in the Tamil Nadu Gazette dated February 29, 1984, declaring that they ceased to be partners of the first accused firm found March 31, 1983. She has also stated that three witnesses were examined by the complaint for the purpose of proving the charges against the accused under section 246, Criminal Procedure Code. All the three witnesses are officials belonging to the Income-tax Department. The evidence of these three witnesses does not disclose any incriminating material implicating the petitioner herein. She was not fastened with any criminal liability and no specific overt act has been attributed to her.
5. It is contended by Mr. R. Shanmugasundaram, learned counsel for the petitioner, that as per section 278B of the Income-tax Act, 1961, when an offence is committed by a company or firm, every person who, at the time of committing of the offence, was in charge of, and was responsible for, the conduct of the company as well as the company shall be liable to be proceeded against and as far as the petitioner/third accused is concerned, there are no averments in the complaint to that effect.
6. In support of the above contention, learned counsel for the petitioner submitted the following rulings : In Alfred Borg and Co. (P.) Ltd. v. Antox India (P.) Ltd. [1992] L.W. (Crl.) 120 (Mad), Arunachalam J. has observed as follows :
'In a catena of cases, the apex court has held that initiating prosecution against sleeping partners or women, when the company is the main offender, cannot be sustained unless there was basic material to show that such partners or directors were also in charge of and responsible for the conduct of the business of the company. Merely by alleging that the directors are in charge of the company, as is found in paragraph 11 of the complaint, petitioners Nos. 2 to 6 cannot be prosecuted. The complainant should further show that petitioners Nos. 2 to 6 were responsible for the day-to-day conduct of the business of the company.'
7. The same view was followed by Swamidurai J. in the decided in K. Subramanyam v. ITO : [1993]199ITR723(Mad) .
8. In a case reported in G. Anantharamiah v. ITO [1992] L.W. (Crl.) 173 (Mad), Swamidurai J. has observed that though an employee of a partnership-firm was charged under sections 276B and 278B of the Income-tax Act read with section 409 of the Indian Penal Code for having withheld the remittance of the taxes deducted beyond the minimum period of seven days following the month in which the tax was deducted, inasmuch as no documents were filed to prove that the petitioner was the principal officer of the accused firm and was responsible for the payment of taxes deducted and was a person in charge of and was responsible for the conduct of the business of the firm, and, therefore, the charges against the petitioner under sections 276B and 278B of the Income-tax Act were not maintainable.
9. Learned counsel for the petitioner has also relied upon the following ruling rendered by the Supreme Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi, : 1983CriLJ159 , wherein it is observed as follows :
'It may be noticed that section 482 of the present Code is the ad verbatim copy of section 561A of the old Code. This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate courts. It was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate courts. Thus, the scope, ambit and range of section 561A (which is now section 482) is quite different from the powers conferred by the present Code under the provisions of section 397. It may be that in some cases there may be overlapping but such cases would be few and far between. It is well-settled that the inherent powers under section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly. If these considerations are kept in mind, there will no inconsistency between sections 482 and 397(2) of the present Code.
The limits of the power under section 482 were clearly defined by this court in Raj Kapoor v. State (Delhi Administration) : 1980CriLJ202 , where Krishna Iyer J. observed as follows (paragraph 10) :
'Even so, a general principle pervades this branch of law when a specific provision is made : easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction, but that inherent power should not invade areas set apart for specific power under the same Code.' Another important consideration which is to be kept in mind is as to when the High Court, acting under the provisions of section 482, should exercise its inherent power in so far as quashing of criminal proceedings is concerned. This matter was gone into in greater detail in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi : 1976CriLJ1533 , where the scope of sections 202 and 204 of the present Code was considered and while laying down the guidelines and the grounds on which proceedings could be quashed, this court observed as follows (paragraph 5) :
'Thus, it may be safely held that in the following cases, an order of the Magistrate issuing process against the accused can be quashed or set aside :
(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;
(3) Where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and
(4) Where the complaint suffers from fundamental legal defects, such as want of sanction, or absence of a complaint by a legally competent authority and the like. The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings.'
The same view was taken in a later decision of this court in Sharda Prasad Sinha (Dr.) v. State of Bihar : 1977CriLJ1146 , where Bhagwati J., speaking for the court, observed as follows (paragraph 2) :
'It is now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence.' It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under section 482 of the present Code ......
So far as the manager is concerned, we are satisfied that from the very nature of his duties, it can be safely inferred that he would undoubtedly be victoriously liable for the offence, vicarious liability being an incident of an offence under the Act. So far as the directors are concerned, there is not even a whisper nor a shred of evidence nor anything to show, apart from the presumption drawn by the complaint, that there is any act committed by the directors from which a reasonable inference is any act committed by the directors from which a reasonable inference can be drawn that they could also be vicariously liable. In these circumstances, therefore, we find ourselves in complete agreement with the argument of the High Court that no case against the directors (accused Nos. 4 to 7) has been made out ex facie on the allegations made in the complaint and the proceedings against them were rightly quashed.'
10. On the other hand, it was contended by learned counsel for the Income-tax Department, Mr. K. Ramaswamy, that, after the insertion of section 278B of the Income-tax Act by the Taxation Laws (Amendment) Act, 1975, with effect from October 1, 1975, and in view of the Supreme Court ruling in the case of M. R. Pratap v. V. M. Muthukrishnan : 1994CriLJ628 , at page 6, there is no need for a specific averment in the complaint regarding individual partners with regard to the offence under section 278B of the Income-tax Act and the effect of the new section is to make every person connected with the affairs of the company or firm liable to be proceeded against and punished. Learned counsel for the Income-tax Department, Mr. K. Ramasamy, relied upon the case in Meena Kumari Mohnot v. Chief CIT (Admn.) : [1992]198ITR410(Mad) , wherein it has been held as follows (headnote) :
'Held, that the present petitioner and several other co-accused had earlier filed similar applications under section 482 of the Criminal Procedure Code, 1973, to quash the proceedings. In those applications, the petitioner and the co-accused had raised as many as nine contentions and all the contentions had been answered in detail by the Court. Witnesses had been examined and the case stood posted for questioning the accused under section 313(a) of the Criminal Procedure Code, 1973. Hence, the proper course would be to put forward these contentions before the trial court. Section 482 could not be invoked when there were statutory remedies provided under the Criminal Procedure Code ..........'
11. Learned counsel for the respondent has also cited the decision in R. N. Bajaj v. K. Govindan, ITO : [1992]198ITR447(Mad) , wherein Pratap Singh J. has observed as follows (headnote) :
'Held, dismissing the petition (i) that the offences complained of in these case had arisen subsequent to October 1, 1975, inasmuch as the assessment years were 1976-77 to 1979-80. Section 278B was, therefore, applicable;
(ii) that a perusal of the complaint showed that specific allegations had been made against the firm and its partners;
(iii) that the complaint prima facie disclosed that the offence had been committed;
(iv) that the firm had come forward with a proposal for settlement with regard to the quantum of concealed income and nothing more. The question whether there was anything more could be gone into at the time of trial. The prosecution could not be quashed;
(v) that the prosecutions could not be quashed also because revised returns were filed on October 16, 1980, after the search which was conducted on June 7, 1980, by which time the assessments on the original returns were completed;
(vi) that the pendency of appeal would not also bar the prosecution;
(vii) that the fact that one of the partners was above seventy years was also not relevant because the criminal proceedings were launched in 1988, and, on that date, the petitioner was not seventy years old.
The complaint was valid and could not be quashed.'
12. Counsel for the Income-tax Department also cited the decision in M. R. Pratap v. V. M. Muthukrishnan : 1994CriLJ628 , wherein, the Supreme Court has held as follows :
'In the present case, the appellant admittedly was the managing director of the company and he was thus the principal officer thereof. Rule 12(1) of the Income-tax Rules states that the return of income shall, in the case of a company, be in Form No. 1 and be verified in the manner indicated therein. In view of section 139 read with section 140(c) of the Act, the return has to be signed by the principal officer of the company. A statutory obligation is cast on the principal officer to sign the tax returns. The substitution of the words made under the new Amendment Act will not in any way alter the position with regard to the operation of the provisions of the Income-tax Act as against a managing director of a company when he has signed the return of the company in such capacity. The effect of the amended section 140(c) of the Act is that the company's return of income should be signed only by the managing director or by any director, when there is no managing director, and not by the secretary or the treasurer, who are however included within the meaning of 'principal officer' under section 2(35) of the Act. By the introduction of section 278B by the Taxation Laws (Amendment) Act of 1975, with effect from October 1, 1975, it is enacted that, where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence, and shall be liable to be proceeded against and punished accordingly. The effect of the new section is to make every person connected with the affairs of the company, apart from the managing director who has signed the return, liable to be proceeded against and punished.'
13. In support of his contention, learned counsel for the Income-tax Department further placed reliance on the decision in M. R. Punj v. The State : [1993]199ITR87(Delhi) , wherein it is held as follows (headnote) :
'Held, dismissing the petition, that, in view of section 278B, every partner of the firm would be equally liable. Whether the petitioners stood retired from the partnership was a matter of fact which had to be gone into after recording evidence. And whether the petitioners were connected with the affairs of the firm was also a matter to be gone into after the evidence was recorded. Therefore, no case was made out for quashing the summons.'
14. The question for consideration in these petitions is what is the legal effect of section 278B of the Income-tax Act when an offence is committed by a company or by a firm, represented by the directors of the company or the partners of the firm
15. Section 278B of the Act was inserted by the Taxation Laws (Amendment) Act, 1975, with effect from October 1, 1975, and it readers as follows :
'278B. (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly :
Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation. - For the purposes of this section, -
(a) 'company' means a body corporate, and includes -
(i) a firm; and
(ii) an association of persons or a body of individuals whether incorporated or not; and
(b) 'director', in relation to -
(i) a firm, means a partner in the firm;
(ii) any association of persons or a body of individuals, means any member controlling the affairs thereof.'
Before the amendment, the firm alone was liable to be prosecuted and not the partners. The Supreme Court, in the case reported in M. R. Pratap v. V. M. Muthukrishnan, ITO : 1994CriLJ628 , has held as follows (at page 7) :
'By the introduction of section 278B by the Taxation Laws (Amendment) Act of 1975, with effect from October 1, 1975, it is enacted that, where an offence under this act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The effect of the new section is to make every person connected with the affairs of the company, apart from the managing director who has signed the return, liable to be proceeded against and punished.'
16. The Supreme Court in the case of Sham Sunder v. State of Haryana : 1989CriLJ2201 , while considering section 10 of the Essential Commodities Act, pertaining to the legal effect of the offences committed by the firm and the liability of the partners of the firm, has held as follows (at page 4 of 67 Comp Cas) :
'From the Explanation to section 10, it will be seen that the company includes a firm and other association of persons. Section 10 provides that a person shall be deemed to be guilty of contravention of an order made under section 3, if he was in charge of and was responsible to the firm for the conduct of the business of the firm. What is of importance to note is that the person who was entrusted with the business of the firm and was responsible to the firm for the conduct of the business, could alone be prosecuted for the offence complained of.
Counsel for the State, however, relied upon the legal liability of partner and he argued that it would be for the accused partners to prove that the offence was communicated without their knowledge or in spite of exercising due diligence on their part. He relied upon the proviso to sub-section (1) of section 10. It is true that under the Indian Partnership Act, 1932, a 'firm' or 'partnership' is not a legal entity, but is merely an association of persons who have agreed to carry on business. It is only a collective name for individuals, carrying on business in partnership. The essential characteristic of a firm is that each partner is a representative of the other partners. Each of the partners is an agent as well as a principal. He is an agent in so far as he can bind the other partners by his acts within the scope of the partnership agreement. He is a principal to the extent that he is bound by acts of other partners. In fact every partner is liable for an act of the firm. Section 2(a) of the Partnership Act defines an 'act of a firm' to mean any act or omission by all the partners or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm.
But, we are concerned with a criminal liability under a penal provision and not a civil liability. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 dose not provide for such liability. It does not make all the partners liable for the offence whether they do business or not.
It is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take any part in the business of the firm. There may be ladies and minors who were admitted only for the benefits of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all the partners and ask them to prove under the proviso to sub-section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urge by counsel for the State.'
17. The above ruling of the Supreme Court in Sham Sunder v. State of Haryana : 1989CriLJ2201 , squarely applies to the facts and circumstances of the case. The ruling cited by learned counsel for the Income-tax Department in M. R. Pratap v. V. M. Muthukrishnan : 1994CriLJ628 , is not applicable to the facts and circumstances of the instant case, since, in the above case, the apex court was concerned with the appellant who was admittedly the managing director of the company and not with partnership firm and its partners. In M. R. Punj v. The State : [1993]199ITR87(Delhi) , the decision of the Supreme Court in Sham Sunder v. State of Haryana [1990] 67 Comp Cas 1, was not brought to the notice of the court which specifically deals with the liability of a firm and its partners, with regard to penal offences. In the case reported in Parmeet Singh Sawney v. Dinesh Verma : [1988]169ITR5(Delhi) , it was held that the income-tax authorities must properly apply their mind and indicate in the complaint the manner in which a partner is in charge or is responsible for the conduct of the business, and a mere reproduction of the words of the section is not enough.
18. The learned judge in Parmeet Singh Sawney v. Dinesh Verma [1988] 169 ITR 5 (Delhi), has observed as follows (at page 7) :
'Section 278B, which was brought into existence on October 1, 1975, for the first time, made every person connected with the affairs of the company liable for prosecution. The fact of the matter is that earlier to the introduction of section 278B, the partners could not be prosecuted and the firm alone could be prosecuted. The person referred to in section 278B is in the context of the definition of 'person' as contained in section 2(31) of the Income-tax Act ....... in case the partners were to be proceeded against in the absence of section 278B, there was no need for the Legislature to introduce section 278B as has been done in the year 1975 ..... It is thus clear that the partners of a firm who at the time of commission of offence were responsible for the conduct of the business of the firm could alone be prosecuted ......... To me it appears that this prosecution has been initiated due to a total failure of the concerned authority to apply its mind. If the petitioners could not be legally prosecuted as has been pointed out above, then this court is justified in coming to the conclusion that the authority concerned has not at all applied its mind to the case before permitting the prosecution of the petitioners ........... The complaint is bound to provide indication, though not evidence, as to in what manner a particular partner of the firm is supposed to be in charge of and responsible for the conduct of business. Mere reproduction of the words used in the section is not sufficient. Income-tax Officers and their higher officers are essentially the creatures of statue and they are expected to behave in a little more responsible manner than an ordinary layman. Creatures of statutes are vested with powers to prosecute citizens but they have responsibility to thoroughly apply their mind to the facts of a case before initiating prosecution.'
In the connection, it is interesting to note that the eighth edition of Kanga and Palkhivala's The law and Practice of Income-tax, commenting on section 278B of the Income-tax Act, 1961, on the authority of the ruling in Parmeet Singh Sawney v. Dinesh Verma : [1988]169ITR5(Delhi) (at page 1674), submits, 'The authority must properly apply his mind to the case and indicate in the complaint the manner in which a partner is in charge of or is responsible for the conduct of the business; mere reproduction of words of this section is not enough' and there is also a note that the special leave petition filed against the judgment is Parmeet Singh Sawney v. Dinesh Verma : [1988]169ITR5(Delhi) was dismissed by the Supreme Court as per [1988] 171 ITR 257. Thus, the Supreme Court has confirmed the view taken by the Delhi High Court in Parmeet Singh Sawney v. Dinesh Verma : [1988]169ITR5(Delhi) .
Therefore, I am of the view that there must be specific averments in the complaint to the effect that the partner of the firm, at the time the offence was committed, was in charge of, and was responsible for, the conduct of the business of the firm and particulars regarding conduct of business and responsibility should be stated in the complaint, in order to make him liable for the offence. I am unable to accept the contention of learned for the Income-tax Department, Mr. K. Ramaswamy, to the effect that there is no need for any specific averments with regard to a particular partner in the complaint but, by virtue of section 278B of the Income-tax Act, all the partners of the firm will be liable for the offence. It is well-settled that there is a marked difference between the averments in the complaint and the proof of the same. The object of specific averments in the complaint is to make accused aware of the prosecution case and to give him adequate opportunity to defend the case and it is in conformity with the principles of natural justice and fair play. If there are no specific averments in the complaint, regarding the part played by a particular partner, to use the words of the Supreme Court in the case of Sham Sunder v. State of Haryana : 1989CriLJ2201 : 'It would be a travesty of justice to prosecute all the partners and ask them to prove under the proviso to sub-section (1) that the offence was committed without their knowledge. It is significant to note that the obligation of the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was, during the relevant time, in charge of the business. In the absence of any such proof, no partner could be convicted.'
It is, therefore, imperative that the concerned authority must properly apply its mind to the facts of the case and indicate in the complaint the manner in which a partner is in charge of or is responsible for the conduct of the business. The complaint is bound to provide indication though not evidence as to in what manner a particular partner of the firm was in charge of and responsible for the conduct of business. A mere reproduction of the words of the section is not enough. In the instant case, there are no such averments in the impugned complaint regarding the third accused/petitioner. Further, the petitioner has sated in paragraph 5 of the petition that she is a lady aged about 60 years and that there are no specific overt acts alleged against her. Further, the partnership business itself was wound up and the firm was dissolved in 1984 and a public notice in the Tamil Nadu Government Gazette was issued declaring that she ceased to be a partner of the first accused firm from March 31, 1983.
Further, there is force in the contention of learned counsel for the petitioner to the effect that with regard to the alleged offences under the Indian Penal Code also part from alleged offences under the Income-tax Act, 1961, there are no specific averments and overt acts against the third accused, the petitioner herein in the complaint.
19. In view of the above, both the proceedings in C.C. Nos. 47 and 46 of 1986 now pending on the file of the Additional Chief Judicial Magistrate, Madurai, are quashed as far as the third accused, the petitioner herein, is concerned.
20. However, it is always open to the trial court to invoke the provision of section 319 of the Criminal Procedure Code, if in the course of enquiry or trial, it appears to it from the evidence that any person not being the accused had committed any offence.
21. In the result, Criminal Original Petitions. Nos. 2970 and 2973 of 1993 are allowed.