Section 319 allows rejoining discharged accused based on evidence in ongoing trial; defining the distinction between inquiry and trial stages.

1. A question with regard to the interpretation of S. 319 of the Criminal P. C., 1973 ('the Code'), arises in this Miscellaneous Criminal Application, which is now converted into a special criminal application, at the request of the learned Advocate appearing for the petitioner.

2. The question arises in the following circumstances.

3. The present petitioner is original accused No. 4 in proceedings which are pending before the learned Metropolitan Magistrate, 7th Court, Ahmedabad, being Criminal Case No. 1158 of 1977. Respondent No. 3 Keshavlal Popatlal attached as Accountant to a firm named Anwarbeg Gausbeg and Company, Manufacturing and Distributing Incensed Sticks (Agarbatti), filed a complaint before the learned Magistrate on 17-6-1977 complaining that there was violation of the registered trade mark of his firm in "Guru Darbar Agarbatti" supplied by accused No. 1 Dahyabhai Ambalal and accused No. 2 - Narendrabhai Manibhai Modi (present respondent No. 2) and one Kanubhai Gopaldas Modi (original accused No. 3). The said complaint was sent for inquiry to the police by the learned Magistrate under S. 202 of the Code. After the police submitted its report, the learned Magistrate issued process against accused Nos. 1, 2 and 3 op 15-7-1977. Thereafter, on the complainant's application dated 31-8-1977 to take the present petitioner Mohanbhai Bhomraj as accused No. 4, the learned Magistrate passed an order showing the petitioner as accused No. 4. Thereafter, on 17-1-1978, the complainant made an application to the learned Magistrate to drop accused No. 2 on the ground that there was no evidence against him. But the learned Magistrate was pleased to reject the application. Thereafter, prosecution evidence was recorded and on 17-2-1978, the learned Magistrate passed an order discharging accused Nos. 2 and 3 and he framed charge against accused No's. 1 and 4 for the offence under S.78 and S.79 of the Trade and Merchandise Marks Act as also under S.482, S.483, S.486 and S.488 of the I.P.C. The complainant then gave an application to examine other witnesses including discharged accused Nos. 2 and 3 as aforesaid. That application was granted and the said witnesses had to be examined by the prosecution. Then, on 4th and 6th March, 1978, further cross - examination of prosecution witness Vasudev Bachubhai took place and on his cross - examination being over, accused No. 4 gave an application under S. 319 of the Code to take the said Narendra Manubhai Modi, original accused No. 2, who had been discharged as earlier stated, as an accused person to be tried along with the other accused who were facing the trial before the learned Magistrate. The learned Magistrate, after hearing the parties, passed an order on 6th April, 1978 for proceeding against the said accused along with other accused after framing a charge against him and for rehearing of the case after framing a fresh charge from the stage the said accused had been discharged.

4. Accused No. 2 took the matter further up by way of a criminal revision application which was heard by the learned Additional City Sessions Judge, 5th Court, Ahmedabad. On interpretation of S. 319 of the Code, the learned Additional City Sessions Judge held that accused No. 2 having been once discharged cannot be rejoined as an accused. He, therefore, allowed the revision application and set aside the impugned order of the learned Magistrate dated 6-4-1978. It is this order of the learned Additional City Sessions Judge passed in criminal revision application No. III of 1978 which is the subject - matter of challenge in this special criminal application. It may be noted that the application was originally filed as Miscellaneous Criminal Application No. 717 of 1978, but at the oral request of the learned Advocat