(1.) This petition, is directed against the order dated 24-9-1979, passed by the Judicial Magistrate First Class, Chikodj, in C.C. No. 796 of 1978, allowing the Application filed by the complainant under Section 319 Cr. P. C. . One C. D. Hanumanthappa - the complainant, Inspector of Food and Civil Supplies, Deputy Commissioner's Office, Belgaum, filed a complaint before the Police Sub-Inspector, Chikodi, alleging as follows: That M/s. Mirji Brothers Oil Mill, Chikodi, is a dealer in groundnuts and is also expelling oil; that Shantappa, Abhayakumar, Yeshwant, Udaya and Subas are the partners who constituted the firm; and that on 11-1-1978 the complainant visited the firm and noticed that the licence as required under the Karnataka Edible Oil Seeds Dealers Licensing Order, 1977 (which will hereinafter be called the Order) was not taken by the firm. He made a note in the Stock Register Ext. P. 3 directing the firm to comply with the said provisions. Again he visited 'the firm on 10-3-1978. On that day, A-2. AbahayaKumar was present and during the inspection he produced the documents including the Stock Register and took the complainant to their godown and showed the groundnut stock of 18301. 5 Kgs. Though it is said that the said stock of groundnut tallied with the entry for the day shown in the Stock Register no licence was taken as requiretd under the said order. The complainant after noticing the violation of the order drafted a complaint - Ext. P-l and submitted the same to the Police Sub-Inspector, Chikodi, for taking necessary action. The complaint commences with the subject "The Karnataka Edible Seeds Dealers Licensing Order 1977 in contravention of the provisions of the order by M|s. Mirji Brothers Oil Mill M.P.C. No, 2527 Chikodi". It is therefore clear from the first information report that it was the firm that contravened the provisions of the said order. During the, pendency of the criminal case on 25-6-1979 the learned A.P.P. submitted an application under Section 319 Cr.P.C. to implead M/s. Mirji Brothers Oil Mill as an accused on the ground that it was revealed that the firm has also committed the offence and that summons for the firm be; served through its partners arrayed as accused in the said case. At this stage, it is pertinent to note that the said criminal case was instituted against the said five partners of the firm only who were arrayed as accused 1 to 5 and the said Mirji firm of which the accused were partners was not made the accused. The learned; Magistrate after hearing both the parties allowed the said application filed by the prosecution and passed the impugned order, the operative portion of which reads thus: "M/s. Mirji Brothers Oil Mill, Chikodi represented by its partners (a) Shantappa Yeshwant Mirji, (B) Abahayakumar Vasudev Mirji, (C) Yeshwant Shantappa, Mirji, (D) Udaya Abahayakumar Mirji (E) Subas Abhaya Kumar Mirji be tried as accused along with accused No. 2 Abahayakumar Vasudev Mirji for the offence punishable under Section 3 r/w 7 of the Essential Commodities Act. "The remaining four accused are hereby discharged. I further direct that M/s. Mirji Brothers Oil Mill by its partners- (A) Shantappa Yeshwant Mirji (B) Abhayakumar Vasudev Mirji (C) Yeshwant Shantappa Mirji, (D) Udaya, Abhayakumar Mirji, (E) Subas Abhayakumar Mirji be numbered as Accused No. 1 and partner Abhayakumar Vasudev Mirji be numbered as; accused No. 2." The legality and correctness of this order is being challenged by the petitioners - a,ccused-in this revision petition.
(2.) Sri 3. S. CrtmjaX learned Counsel appealing for the petitioners, contended that the impugned order is not sustainable, either on facts or in law, as some of the accused are discharged and the firm in question is impleaded. If that is so, he submitted that this would amount to virtually substituting one case for another and against different accused, which is not at all permissible in law. He further contended that the court below has no jurisdiction to entertain the application as the same did not fall within the ambit of S. 319 Cr.P.C. He also contended that the court having found that the prosecution case as originally filed being not maintainable, should not have allowed the application under Section 319 Cr.P.C. as the effect of which is to fill up the lacuna in the prosecution case. He lastly contended that Section 319 Cr.P.C. refers to a 'person' and not a, 'firm', which is not a juridical person, in which case the court below was not right in allowing the application.
(3.) On the other hand, Sri Farooq, learned High Court Government Pleader, contended that-the impugned order is in conformity with the provisions of Section 319 Cr.P.C. inasmuch as the court h.a,s got power to proceed against other persons also if it found that they are also guilty of the offence, He also sought to refer Sections 10 and 11 of the Essential Commodities Act wherein if the person contravening an order made under Section 3 is a company, every person who, at the time the contravention 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 contrayention and shall be liable to be proceeded against and punished. But, he, however, did not subscribe to the view of the learned Magistrate that apart from A-2 Abhayakumar, the others could ajso be proceeded in the said case. With regard, to the application of Section 319 Cr.P.C. to the facts of the case what he submitted was that though the firm is a juridical person it does not take' away from the purview of Section, 319 Cr.P.C. If that is so, he submitted that the court has always got ample power to proceed against other persons, even if it is a firm, if it appears on the materials placed on record by the prosecution that it is also guilty of the offences with which it was charged. Section 319 Cr.P.C. contemplates that where in the course of any enquiry 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.