M.K.SHAH - (1.)A question with regard to the interpretation of sec. 319 of the Code of Criminal Procedure 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 The present petitioner is original accused No. 4 in proceedings which are pending before the learned Metropolitan Magistrate 7 court Ahmedabad being criminal case No. 1158 of 1977. Respondent No. 3 Keshavlal Popatlal 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 sec. 202 of the Code. After the police submitted its report the learned Magistrate issued process against accused Nos. 1 2 and 3 on 15 Thereafter on the complainants 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 complaint 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 secs. 78 and 79 of the Trade and Mercandise Mark Act as also under secs. 482 483 486 and 488 of the Indian Penal Code. 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 crossexamination of prosecution witness Vasudev Bachubhai took place and on his cross-examination being over accused No. 4 gave an application under sec. 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. '
(3.)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 5 court Ahmedabad. On interpretation of sec. 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. 111 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.