ORDER :

Challenging the validity and correctness of adding of a company as an accused, vide petition under Section 319 Cr.P.C., this Criminal Revision Case is preferred under Sections 397 and 401 of Cr.P.C., impugning the order dated 25.02.2009 in Crl.M.P.No.372 of 2009 in C.C.No.53 of 2003, on the file of Ld. II Additional Judicial Magistrate of First Class, Bhimavaram.

Procedural History

2. The de facto-Complainant viz., I.T.C is a public limited company registered under the Companies Act, 1956, having its registered office at Calcutta and branch office at Bhimavaram. The Complainant company entered into an agreement with M/s. Swarna Sea Food Limited, for processing marine products in cartons and for their storage in cold storage, as per the agreed terms and conditions. Subsequently, Complainant company found certain irregularities and missing of the stock, for which they have given complaint against the company, its’ Executive Director, General Manager, Production Manager alleging the offences of cheating, criminal breach of trust and misappropriation. After due investigation, police laid charge sheet against A-1 to A-3, i.e., Executive Director, General Manager and Production Manager of the company, for the offences punishable under Sections 409, 420 r/w. 34 of the Indian Penal Code.

3. Before the trial Court, after completion of evidence, when the matter reached at the fag end of trial, a petition was filed by the prosecution under Section 319 of the Cr.P.C. seeking to add M/s. Swarna Sea Foods Ltd., as an accused, stating that, though the complaint was given against the company, it was not arrayed due to oversight. Having received notice in the said petition, accused did not choose to file any counter. On hearing arguments, the learned Magistrate passed the following impugned order dated 25.02.2009:

“Notice given to accused counsel. Counter not filed, perused the petition and contents, perused evidence already adduced by prosecution. All the witnesses consistently deposed that A-1 is Ramakota Reddy is the Executive Director of Swarna Sea foods Ltd and the firm is not added as party to the proceedings. On careful perusal of Ex. P-1 is the agreement made in between Swarna Sea foods Ltd and ITC Ltd. and moreover the Swarna Sea Foods is company registered under companies Act, 1956. In such circumstances, it is just and proper to add the firm as proforma accused and tied along with A-1 to A-3. Therefore, in the above circumstances, the prosecution is permitted to add Swarna Sea Foods Ltd., as an accused/A-4.”

4. Challenging the correctness of the order impugned dated 25.02.2009, the newly added accused i.e., M/s. Swarna Sea Foods Ltd., represented by its Managing Director filed the present Revision Case.

5. Heard Sri Srikanth Reddy Ambati, learned counsel for the revision petitioner, learned Public Prosecutor for State and Sri G.V.S. Ganesh, learned counsel for the Respondent No.2. Perused the material available on record.

6. Learned counsel for the revision petitioner would submit that, the company is a juristic person, that A-1 to A-3 were at the site managing the affairs of the company, that the power under Section 319 Cr.P.C., has to be exercised sparingly, and not in casual manner that only when the evidence indicates more than a prima facie case against the additional accused, the Court is justified in adding the accused in the trial, and that the learned Magistrate erroneously exercised the jurisdiction in allowing the petition filed under Section 319 Cr.P.C., consequently prays to allow this revision to set aside the order impugned.

7. Learned counsel placed reliance on Ajay Kumar @ Bittu and another v. State of Uttarakhand and another, (2021) 4 SCC 301, where the Hon’ble Apex Court reiterated the principles of exercise of power under Section 319 as settled by a Constitution Bench in Hardeep Singh v. State of Punjab and others, (2014) 3 SCC 92 to be extra-ordinary, discretionary, and required to be sparingly applied.

8. Per co