ORDER

M. Karpagavinayagam, J. – The impugned order passed in Crl. M.P. No. 282 of 1996 in E.O.C.C. Nos. 263 to 265 of 1994 dated 3-10-1996 by the learned Additional Chief Metropolitan Magistrate (E.O.II) Madras fixing the petitioner to represent the Al firm in prosecution proceedings, is challenged in this revision.

2. Mr. Sundar, learned Senior Counsel representing Mr. Sundaramohan. Counsel on record appearing for the petitioner would mainly contend that the order passed by the lower Court on the application filed by the complainant Income Tax Officer, the respondent herein, under Section 305 of the Code of Criminal Procedure making the petitioner as the representative of the first accused firm cannot be sustained under law. Therefore, the impugned order is liable to be set aside.

3. The facts of the case are these: The Income Tax Officer filed a complaint against the first accused firm and its partner Peer Mohideen (A2) for the of fences under the Income Tax Act. When the Proceedings were pending. Peer Mohideen (A2) passed away. The petitioner Syed Ibrahim filed a petition for waiver of interest and also paid a substantial amount of the bills on behalf of the first accused firm. The complaint was filed in the year 1994. On 17-4-1996 the Income Tax Officer, the Complainant filed a petition under Section 305 of the Code of Criminal Procedure requesting the lower Court in Crl. M.P. No. 282 of 1996 to fix the liability on the petitioner to represent the first accused firm in the criminal proceedings and issue processes to him for his appearance. The petitioner on receipt of summons filed a counter before the lower Court that he did not have any connection with the said firm and as such he was not competent to represent the firm as he was not in charge of or responsible for the said firm. He also further contended that Section 305 of the Code Of Criminal Procedure would not apply to the firm and even assuming it to be so, the representative can be appointed only by the accused and not by the complainant.

4. After hearing both sides, the learned Additional chief Metropolitan Magistrate, while allowing the petition filed by the complainant observed as follows:

"Whatever may be the reason for taking part in the departmental proceedings it may be construed that he is the person to be considered as a competent person to represent the firm in the prosecution proceedings also. The second respondent is competent person only to represent the first accused firm and he has no personal liability in the offence."

5. Mr. Sundar, Counsel for the petitioner in this revision, challenging the above said order, would press into to service the following two contentions:

(1) Section 305(1) of the Code of Criminal Procedure does not apply to the first accused firm and therefore, fixing the liability on the petitioner under Section 305(1) of the Code of Criminal Procedure, to represent the firm is not permissible under law.

(2) As per Section 305(2) of the Code of Criminal Procedure, even in case the Section 305(1) of the Code of Criminal Procedure applies, only the accused firm has got a right to appoint its representatives and the complainant cannot pick and choose the representative, especially when the other partners are still available.

6. Admittedly, the petitioner is the son of one late Mohammed Idris who was a partner of the firm. The father of the petitioner was not an accused in this case. When it is so it is stated that the petitioner who is his legal representative cannot be asked to represent the firm.

7. Mr. K. Ramasamy. Counsel for Income Tax cases in bid to support the impugned order stated that Section 305 of the Code of Criminal Procedure would be very much applicable to the present case and even aS6uming that said Section is not applicable, the relevant provisions under Sections 159(6), 189(3) and (5) of the Income Tax Act would provide for the department to make the legal representative of the partners of the firm to be representa