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TMI Blog2006 (3) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... same within the time. However, the Official Liquidator felt that the statement of affairs had not been filed within the time and filed the company application being CA No. 611 of 1998 for prosecution of the Directors under section 454(5) and (5A) of the Companies Act, 1956 for not filing the statement of affairs. Cognizance was taken in this matter by the learned Company Judge. The Official Liquidator filed an application being CA No. 512 of 2001 under Order 1 Rule 10 and section 151 of the Code of Civil Procedure and under Rule 9 of the Companies (Court) Rules, 1959 to implead the appellant as 10th accused in the company application being CA No. 611 of 1998. The Company Court allowed the application, therefore the appeal. 3. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint of facts constituting such an offence and trying the offence itself in accordance with the procedure laid down in the Code of Criminal Procedure, 1898 (5 of 1898), for the trial of summons cases by Magistrates." 4. It is submitted that bare perusal of section 454(5) and (5A) of the Companies Act, 1956 would show that when cognizance of offence was taken under section 454(5) of the Companies Act 1956, the matter had to be tried in accordance with the procedure laid clown in the Code of Criminal Procedure for trial of summons cases by Magistrates. In a way the Company Court ceases to be a Company Court and has to proceed in the matter as a Magistrate, therefore any reference to Order 1 Rule 10 and section 151 CPC or Rule 9 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section (1), then- (a)the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard; (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." 6. Section 319 lays down that when, in the course of any inquiry 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 with the accused, the Court may proceed against such person for the offence. In the present case only an application has been moved by the Official Liquidator to array the appellant as an accused, but no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence." 7. In Paras 16 and 17 the Court considered as to what would be the meaning of 'from the evidence' and they read as under : "The crucial requirement contemplated by section 319 Cr.P.C. is that it should appear 'from the evidence' that a person not being the accused has committed an offence. Therefore, the primary requirement for application of section 319 Cr.P.C. is availability of evidence in contradistinction from the 'police report and documents enclosed thereto' as contemplated by section 173, Criminal Procedure Code. Before so distinguishing, no doubt, the question in the forefront is what is meant by evidence. The word 'evidence' is defined neither in the Criminal Procedure Code nor in the Indian Penal Code. However, section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be signed; Use of statements in evidence.- (1) No statement made by any person to a police officer...shall...be used for any purpose, save as hereinafter provided, at any inquiry or trial...." The savings provided by section 162 Cr.P.C. are (i) contradictions and (ii) omission. 8. Similar view has been taken by the Supreme Court in Ranjit Singh v. State of Punjab AIR 1998 SC 3148. While interpreting section 319, in Para 8 it said, "8. Now it is well neigh settled that 'evidence' envisaged in section 319 of the Code is the evidence tendered during trial of the case if the offence is triable by a Court of Session. The material placed before the committal Court cannot be treated as evidence collected during enquiry or trial." (p. 3150) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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