The discretionary power of the Magistrate under Section 319 of Cr. P. C. should be used sparingly, and a party's right to appear as an Advocate before the Court is not absolute.

( 1 ) PETITIONER is a practising Advocate at Bangalore. He has challenged the order of VI Additional C. M. M. , Bangalore, (passed in C. C. No. 14833/1996), who has rejected an application filed by the petitioner under Section 319 of Cr. P. C. The petitioner who preferred to argue his own case by wearing Robes has again raised an old controversy settled by the Bench of this Court in T. Venkanna v. The Hon'ble High Court of Mysore by its Registrar, AIR 1973 Mysore 127. I shall shortly take up that question, after considering the legality and correctness of the impugned order.

( 2 ) THE petitioner has narrated in his petition the circumstances under which he was compelled to make the application under Section 319 of Cr. P. C. It is his case that he filed two private complaints before the Additional C. J. M. , Bangalore, in the year 1992, in P. C. R. No. 27/92 and P. C. R. No. 30/92 against one C. B. Ramamurthy, alleging the offences punishable under Section 506 (b) of the I. P. C. Those two complaints were referred to the Deputy Superintendent of Police for investigation and report. He thereafter submitted another complaint before the Ulsoor Gate Police Station and it was registered in Crime No. 104/1994 under Section 506 (b) of the I. P. C. But, a 'b' report was submitted by the Police. Thereafter, he filed a protest petition before the Court. The learned Magistrate who heard him, took cognizance of the offence under Section 506 (b) of the I. P. C. , treating it as the complaint. The petitioner's statement was recorded. At that stage, the petitioner filed two applications, one praying for the Government to meet the prosecution expenses under Section 312 of Cr. P. C. , and another application under Section 319 of Cr. P. C. , to implead one Mallikarjuna as accused No. 2 in his case. The learned Magistrate after hearing the complainant-the petitioner himself, noticed that there is no whisper against the said Mallikarjuna in his sworn statement made before the Court. Moreover, he has already taken action against the said person for the offence alleged to have been committed by him. But, in the said case there is nothing to show the complicity of the said Mallikarjuna in the alleged offence and therefore, the learned Magistrate found that the application was an afterthought, which was made with an intention to drag on the proceedings. Hence, he has opined that Mallikarjuna committed no offence and accordingly dismissed the said application.

( 3 ) SO far, there is no Order on the application filed under Section 312 of the Code of Criminal Procedure. However, the Court is called upon to decide the application filed under Section 319 of Cr. P. C. Section 319 of the Code of Criminal Procedure empowers the trial Court to proceed against other accused person appeared to be guilty of the offence under the following circumstances : "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. . . . . . xxxx xxxx xxxx xxxx 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 witness re-heard. . . . . . . . "

( 4 ) THIS provision in the Code is an improved version of Section 351 of Act V of 1898 Code. The changes having been introduced on the suggestion of the Law Commission to make it comprehensive so that even persons not attending the Court may be arrested or summoned as the circumstances of the case may require, and by deleting the words 'of which such Court can take cognizance' and by adding clause (b) it is clarified that the impleading of a new person as an accused in the pending proceedings will not make any difference insofar as taking cognizance is concerned.