The accused in C.C.379 of 1993 on the file of Judicial First Class Magistrate-II, Pathanamthitta is the revision petitioner.

2. This Criminal Revision Petition is filed challenging an order passed by the learned Magistrate dismissing a petition filed by the petitioner to implead C.W.2 – Govinda Kurup – also as an accused.

3. The brief facts necessary for the disposal of the revision petition are as follows: on 4.12.1986, the first accused started a time deposit account in the Post Office of Vallikodu, Kottayam. He deposited an amount of Rs.25,000/-. Subsequently, the second accused, who is the son of the first accused, withdrew the amount with interest producing an authorization letter stated to have been signed by the first accused. At the relevant time, the revision petitioner was the Post Master. The allegation against the petitioner (A3) was that he released the amount without making proper entries in the registers. The further prosecution case is that suppressing the factum of withdrawal, the first accused again filed an application for withdrawing the amount with intention to cheat the Government and to make illegal gains to him. That request for withdrawal was allowed by C.W.2 – Govinda Kurup and the first accused also withdrew Rs.25,000/- and caused loss to the Government to that extent.

4. Based on a complaint given by the competent officer, the police registered a case and investigated the same and filed a final report arraigning A1 to A3 as accused. After the examination of P.W.1, the petitioner, who is the third accused in this case, filed a petition under Section 319 of the Code of Criminal Procedure to arraign C.W.2 Govinda Kurup as 4th accused. The learned Magistrate dismissed that application holding that the accused has no locus standi to file an application under Section 319 of the Code of Criminal Procedure. This Criminal Revision Petition is filed challenging that order.

5. The learned counsel appearing for the revision petitioner has argued that the finding of the learned Magistrate that an accused in a criminal case has no locus standi to file a petition under Section 319 of the Code of Criminal Procedure is illegal. It is argued that the power is vested in the Court to make any person as an accused in case there are sufficient materials to show that such person could also be tried along with the accused already on record. It is argued that by filing a petition, the petitioner has only reminded the Court its duty to invoke the power vested in it under section 319 of the Code of Criminal Procedure. It is argued that the learned Magistrate ought to have considered whether there is any evidence to show that C.W.2 could also be tried along with accused 1 to 3 in this case.

6. Section 319(1) reads as follows:-

“319. Power to proceed against other persons appearing to be guilty of offence.- (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.

Section 319(1) of the Code deals with the power of the Court to proceed against any person to be guilty of an offence. Section 319(1) of the Code of Criminal Procedure provides that if in course of any enquiry into, or trial of, an offence, it appears from the evidence that such person not being the accused has committed any offence for which he could be tried together with the accused the court may proceed against him. A reading of Section 319(1) shows that the power under this Section can be exercised by the Court suo motu or on application of any person. In fact the Section does not contemplate an application at all by the prosecution. This is a discretionary power conferred on the Court. But that discretion must be exercised judicially having regard to the facts and circumstances of each case. A