Honble JOSHI, J.–By the impugned order dated 7.4.2003, the learned trial Court has rejected the application dated 3.03.2003 moved by the present petitioners u/s 319 Cr.P.C. to implead Kayum Ali, Anand Surana and Salma as accused in the case. By the said order, the application u/s 310 Cr.P.C. (dated 26.03.03) filed by the accused and the application dated 13.3.03 filed by the complainant Salma were also rejected but, that part of the order has not been challenged either of the parties.

(2). Heard learned counsel for the parties.

(3). Learned counsel for the petitioner Shri Sandeep Mehta argued that the impugned order is liable to be set aside in the interest of justice as the application u/s 319 Cr.P.C. has been rejected by the learned trial Court on the sole ground that previously an application to the same effect was rejected on 11.12.1999. At that time, the evidence of both the parties was to be recorded. It was further argued that the present petitioners as well as Kayum Ali, Anand Surana and Salma were Directors of the Company, but the complainant has not impleaded them as accused in the case. Relying on the decision of the Honble Apex Court in S & S Industries & Enterprises Ltd. vs. Birla Finance Ltd. (1), he argued that the complaint against Managing Director is maintainable even in the absence of specific averment as to Incharge and responsible in affairs of company but, not against other directors.

(4). Per contra, the learned counsel for the complainant Shri Pradeep Shah argued that as per the judgment of this Court in Ramkaran vs. State of Rajasthan (2), the accused cannot insist to implead some-one else as an accused. u/s 319 Cr.P.C. Further relying on judgment of this Court in Madan Lal vs. Bhanwar Lal (3), it was argued that no specific and active role has been assigned and averred in the complaint and therefore, the trial Court was perfectly with its jurisdiction to pass the impugned order. He has argued that the case has been fixed for final arguments after recording the evidence led on behalf of the accused and the application has been filed with an ulterior motive to delay the proceedings.

(5). I have gone through the impugned order. A criminal revision against the order dated 11.12.99 was rejected by the learned Additional Sessions Judge No. 3, Udaipur on 19.6.2002 and in that application, the same point that all the directors are to be made accused in the case was raised. It cannot be said that the impugned order has been passed solely on the ground of dismissal of previous application to the same effect.

(6). Section 319 of the Code of Criminal Procedure reads as under :-

``Section 319(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.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.

(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 witnesses re-heard;

(b) subject to the provisions of Clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.

(7). As per this section, when it appears to the Court that any person not being an accused has committed any offence, for which such person could be tried together with the accused already arraigned, the Court may pursue against such person for the offence, which he appears to have committ

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