ORDER: 1. The petitioner is the accused No.1 in the court below and he has challenged the order of the VII Additional Munsif Magistrate, Guntur, dated 3.4.1987, passed on his file in Crl.M.P.No.121 of 1997 in C.C.No.55 of 1990. By the impugned order the petition filed by the petitioner requesting the court to implead the witnesses P.Ws.15 and 16 as the accused in the case has been rejected. 2. The learned counsel Sri A.T.M. Rangaramanujam appearing for the petitioner strenuously contended that the impugned order is illegal and without jurisdiction. On the other hand the Public Prosecutor supported the order. 3. In order to appreciate the rival contentions, it is necessary for me to note brief facts of the case. The petitioner and the other accused are charged for an offence punishable under Secs.120-B , 409 , 468 , 471 and 201 of I.P.C. in C.C.No.55 of 1990 on the file of the VII Additional Munsif Magistrate, Guntur, After examination of about 38 witnesses on behalf of the prosecution the case was posted for the examination of the accused under Sec.313 of Crl.P.C. It is at that point of time this present petition is filed to implead P.Ws.15 and 16 as the accused in the case, contending that P.Ws.15 and 16 during their evidence have admitted their complicity in the above offence. But, the court below rejected that petition by holding that on the basis of their evidence, P.Ws.15 and 16 cannot be impleaded as they have not committed any offence. It is in these circumstances, the present petition is filed by the A-1, 4. It is the prosecution case that A-1 has committed the alleged offences by removing the fertilizer bags from the godown in husk bags and P.W.15 was the watchman of the said godown. It is stated that P.W.16 was a Watchman in Panchayat office and he used to Assist A-1. 5. On the basis of their evidence it is the contention of A-1 that they should be also summoned as accused in the case on the basis of their evidence before the court. Now the short point is whether the court below is correct in observing that P.Ws.15 and 16 did not commit any offence as alleged by A-1 on the basis of their own evidence before the court. 6. Now the short point is whether the court below is correct in observing that P.Ws.15 and 16 did not commit any offence as alleged by A-1 on the basis of their own evidence before the court. 6. The learned Public Prosecutor raised a preliminary objection contending that the accused has no locus standi to file such an application. The learned counsel for the petitioner Sri A.T.M.Rangaramanujam submitted that the petitioner as A-1 can file such an application to summon P.Ws.15 and 16 as accused in the case. He relied upon the judgment of this Court in Rawoof Patel v. State Rawoof Patel v. State , (1996)1 A.L.D. (Crl.) 432 (A.P.) in N.Narayana Reddy v. State of A.P. N.Narayana Reddy v. State of A.P. , (1996)1 A.L.D, (Crl.) 649 (A.P.) a judgment of the Hon’ble Supreme Court in Girish Yadav v. State of M.P Girish Yadav v. State of M.P , (1996)1 A.L.D. (Crl.) 246 (S.C) and also a judgment of the High Court of Delhi in Mohan Wahi v. State. Mohan Wahi v. State. , 1982 Crl. L.J. 2040 (Del.) 7. In order to appreciate the rival contentions 1 have to notice Sec.319 of Cri.P.C. which is the relevant provision and which reads as under: “Sec. 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. (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. (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-sec.(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.” 8. From Sec.319(1) of Cri.P.C. it is clear that, from the evidence adduced before the court any person not being the accused has committed any offence for which such a person could be tried together with the accused, the court may proceed against such person for the offence which appears to have been committed. Thus, under clause (1) of Sec.319 of Cri.P.C. the court has power to proceed against person who is not an accused before the court who has committed an offence on the basis of the evidence produced on record in the case. Such a power, the court may exercise suo moiu or on an application filed by other person or persons. This section does not indicate that one of the accused person cannot invoke such a power by filing an application. In these circumstances, I have to hold, that the accused also can invoke the power of the court by filing suchan application. The same also is the view of the High Court of Delhi in 1982 Crl.L.J. 2040 (Del.) and the relevant para of which is extracted as below. “12. I am in respectful agreement with the view expressed in both these judgments that an accused person has no right to demand or insist upon another accomplice of his being tried jointly with him. However, I am not persuaded to hold that he cannot even make a request to the court or bring to the notice of the court that any person other than him is also involved in the commission of offence and as such he should be summoned to stand trial along with him. However, I am not persuaded to hold that he cannot even make a request to the court or bring to the notice of the court that any person other than him is also involved in the commission of offence and as such he should be summoned to stand trial along with him. In my opinion, power under Sec.319 can be exercised by the court suo motu or on the application of some one including the accused already before him provided of course, it is satisfied that any person other than the accused has committed any offence for which he can be tried together with the accused. The exercise of the power is, however, discretionary with the court and there can be no two opinions that the discretion must be exercised judicially having regard to the facts and circumstances of each case.” 9. The other two judgments relied upon by the learned Counsel for the petitioner in Rawoof Patel v. State Rawoof Patel v. State , (1996)1 A.L.D. (Crl.) 432 and N. Narayana Reddy v. State of A.P. N. Narayana Reddy v. State of A.P. (1996)1 A.L.D. (Crl.) 649 (A.P.) do not apply to the facts of this case since they are the cases in which the issue was whether prior notice was necessary to implead such other person, on the basis of the evidence on record. The case (1996)1 A.L.D. (Crl.) 432 (A.P.) held that no prior notice is necessary On the other hand (1996)1 A.L.D. (Crl) 649, it is Held that such a prior notice was required, on the basis of audi alteram partem principle. But, the issue on hand is not the one relating to the issue of prior notice before a person is impleaded as an accused in the case on the basis of the evidence on record. In the instant case the short point is whether the accused also can invoke the power of the court under Sec.319 of Crl.P.C. As I have already stated above he can also invoke such a power. In the instant case the short point is whether the accused also can invoke the power of the court under Sec.319 of Crl.P.C. As I have already stated above he can also invoke such a power. But, as pointed out by the Hon’ble Supreme Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi Municipal Corporation of Delhi v. Ram Kishan Rohtagi (1983)1 S.C.C.1 I that such a power conferred on the court under Sec.319 of Crl.P.C. “is really an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.” Therefore, the contention of the learned Public Prosecutor that the petitioner has no locus standi cannot be accepted. 10. Nextly, the learned Public Prosecutor contended that P.Ws.15 and 16 were already examined as witnesses in the case and they cannot be roped into the case by exercising the power under Sec.319 of Crl.P.C. For this proposition, he relied upon a Division Bench judgment of this Court in S.Narasingam v. State of A.P. S.Narasingam v. State of A.P. , (1997)1 A.L.D. (Crl.) 150 A.P. (DB). I have carefully considered the said judgment. The facts of the said judgment clearly reveal that a person was as an accused as per the charge-sheet and also he was cited as a prosecution witnesses. In those circumstances, this Court held that a person cannot be compelled to be a witnesses against himself in the same case in which he is an accused and as such, such a procedure would be violative of Art.20(3) of the Constitution of India. But, in the instant case the question is whether P.Ws.15 and 16 also have committed an offence along with the accused in view of the evidence, that they have given before the court. As I have already noticed above Sec.319 of Crl.P.C. provides that during the course of an enquiry or a trial, if it appears to the court from the evidence that any person not being the accused has committed any offence such a person could be tried together with the accused. Therefore, from the voluntary evidence given by the witness before the court as offence is made out aganist such a witness the court may issue process against him. Therefore, from the voluntary evidence given by the witness before the court as offence is made out aganist such a witness the court may issue process against him. The fact remains in this case that as on the date of their deposition P.Ws.15 and 16 were not the accused before the court and if their evidence disclosed that they also committed the offence, alleged against the other accused, the court has the power to summon them for being tried for the offences. In fact a similar case did come up before the High Court of Allahabad in Jai Prakash v. State of U.P Jai Prakash v. State of U.P , (1985)1 Crimes 229 . In that case also the prosecution examined one Sri Jayprakash as one of the witnesses. In his deposition the said witness admitted that during the relevant period he was running the rice mill in question on behalf of one Sri Barial Dass. He also deposed that he was aware that certain amount of rice had to be supplied to the State Government as levy and that was not done. In those circumstances, the accused made an application under Sec.319 of Crl.P.C. praying that the witness Sri Jayprakash shall be prosecuted along with him. The Special Judge found a prima facie case against the said witness that the said witness also has committed an offence, and consequently issued a non-bailable warrant against such witnesses. Therefore, the question arose in that case that whether the court had the power to issue process against the witnesses as an accused. Relying upon the judgment of the Hon’ble Supreme Court in Raghubansh Debe v. State of Bihar Raghubansh Debe v. State of Bihar , A.I.R. 1967 S.C. 1167 the court concluded that if the witness also committed an offence on the basis of his own deposition before the court, the court has power under Sec.319 of Crl.P.C. to summon such person as an accused in the case. In the above case vide (1985) 1 Crimes 229 , the Hon’ble Supreme Court held that, “Once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence. As pointed out by this Court in 1965 S.C.R. 269: A.I.R. 1965 S.C. 1185, the term complaint’ would include allegations made against persons unknown. If a Magistrate takes cognizance under Sec.190(1)(a) on the basis of a complaint of facts he would take cognizance and a proceeding would be instituted even though persons who had committed the offence were not known at that time. The same position prevails, in out view, under Sec.190(1) (b).” From the above law declared by the Apex Court, it is clear that the court taking cognizance of the offence has the power to summon other persons involved in the case though they are not initially made accused in the case. From this law of the Apex Court it consequently follows that such other persons involved could be the persons who are already examined in the case as witnesses also. In this view of the matter the High Court of Allahabadvide: Jai Prakash v. State of U.P. Jai Prakash v. State of U.P. , (1985)1 Crimes 229 held that the order of the Special Judge summoning the witness as an accused in the case was proper and did not call for interference and accordingly the revision was dismissed. This appears to be the correct position of law. In this view of the matter the Division Bench judgment of this Court vide: S.Narasingam v. State of A.P. S.Narasingam v. State of A.P. , (1997)1 A.L.D. (Crl.) 150 (D.B) (A.P.) is clearly distinguishable from the facts of this case, since the instant case is not the one in which a person is compelled to be the witness against himself in terms of Art.20(3) of the Constitution of India. The witness has already voluntarily deposed before the court and if that evidence discloses an offence as I have already stated above, the court can proceed against him and summon him as an accused. But, at the same time, as pointed out by the High Court of Delhi in Mohan Wahi v. State Mohan Wahi v. State , (1982)22 D.L. T. 139 that the accused person has no right to demand or insist upon another accomplice of his being tried jointly with him, even though he may request the court that such other person may be summoned as an accused in that case. The High Court of Delhi in that case also noticed thai in appropriate case, where the court finds that the purpose of such an application of the accused was to prevent an accomplice from appearing as a witness and defeat his prosecution the court may decline it, or it may even order a separate trial of such person if the circumstances so warrant. It is useful to extract the relevant part of the said judgment, which reads as under: “10. Another contention raised by the learned counsel for the petitioner is that an accused has no right to demand on ask for the trial of someone else along with his even though he is an accomplice. Thus, the learned Additional Sessions Judge slipped into a grave error in summoning the petitioner at the instance of Rajender Singh accused. He has adverted to a couple of reported judgments of Bombay High Court, viz., Narayandas Kedarnath Pass v. State of Maharashtra Narayandas Kedarnath Pass v. State of Maharashtra (1964)56 Bom. L.R. 17 and Lakshmandas Chaganlal Bhatia and others v. State Lakshmandas Chaganlal Bhatia and others v. State , A.I.R. 1968 Bom. 400 in support of this contention. In the former case it was observed that: “The Criminal Pocedure Code gives an accused person certain rights of defence but there is no provision in the Criminal Procedure Code which gives the accused a right to demand and someone else even if an accomplice be tried along with him. It is impossible to accept the contention that the accused is entitled to insist that those persons must be tried along with himself.” This view was reiterated by the learned Judge in . A.I.R. 1968 Bom. It is impossible to accept the contention that the accused is entitled to insist that those persons must be tried along with himself.” This view was reiterated by the learned Judge in . A.I.R. 1968 Bom. 400 with the added observation that: “…The purpose of this was obviously to prevent his being examined as a witness at the trial.” 11. I am in respectful agreement with the view expressed in both these judgments that an accused persons has no right to demand or insist upon another accomplice of his being tried jointly with him. However, I am not persuaded to hold that he cannot even make a request to the court or bring to the notice of the court that any person other than him is also involved in the corn mission of offence and as such he should be summoned to stand trial along with him. In my opinion, power under Sec.319 can be exercised by the court sua motu or on the application of someone including the accused already before him provided, of course it is satisfied that any person other than the accused has committed any offence for which he can be tried together with the accused. The exercise of the power is, however, discretionary with the court and there can be no two opinion that the discretion must be exercised judicially having regard to the facts and circumstances of each case. In an appropriate case where the court finds that the purpose of such an application is to prevent an accomplice from appearing as a witness in court and defeat his prosecution, the court may well decline it. It may even order separate trial of such a person if the circumstances so warrant after examining him as a prosecution witness.” I am respectful agreement with the views expressed by the Delhi High Court in the said decision. 11. In the light of the principles that I have formulated, as above, let me now examine the present case to find out whether on the basis of their evidence. P.Ws.15 and 16 are liable to be summoned as accused in the case. The petitioner has furnished the copies of the depositions of both P.Ws.15 and 16. P.W.15 deposed that he worked as a watchman for the 5 godowns of Agriculture Department at Macherla from 1976 to 1982. A-1 worked as Agricultural Officer at sale point at Macherla. P.Ws.15 and 16 are liable to be summoned as accused in the case. The petitioner has furnished the copies of the depositions of both P.Ws.15 and 16. P.W.15 deposed that he worked as a watchman for the 5 godowns of Agriculture Department at Macherla from 1976 to 1982. A-1 worked as Agricultural Officer at sale point at Macherla. During that time one Sri Kutumba Rao came as Field Assistant and A-1 told the said Kutumba Rao that he was in need of money. On that, Kutumba Rao advised A-1 to remove 10 manure bags and put 10 husk bags. As per the advise of Sri Kutumba Rao, A-1 placed the husk bags in the place of manure bags. A-1 started putting the husk bags by removing the manure bags. P.W.1 further deposed that himself Dubbala Nagayya, Shaik Mastan (A-2) and Sri Kutumba Rao used to supply husk bags from Srinivasa Rice Mills and Balaji Rice Mills. A-¡ used to be in the godown and used to remove the manure from the husk bags. He further deposed that he used to pour husk in the above two godowns in between 1 a.m. and 5 a.m. and the other 3 persons, namely D.Nagayya, Shaik Mastan and Sri Kutumba Rao used to put husk and arrange them in godowns at relevant places, and like that 1,600 gunnies in Anjaneyuiu's godown and 450 bags in Samithi office godown might have been filled up with husk and A-2 used to purchase the manure from A-¡ and like that A-1 might have received 3 lorries of urea from the godown and used to sell to the private people. He further stated that he knew of the removal of the urea bags and it was his duty that no stock is removed from the godown and he did not obstruct the removal of the stock from the godown. In about 2 years the removal of urea bags by substituting with husk bags took place. He further stated that he was one of the persons who brought husk from the Mills and he did not tell P.W.1 about the removal of urea bags by substituting with husk bags. He revealed the same only to C.B.C.I.D. police before Sattenpally Court. He further stated that the keys of the godown will not be with the watchman. He was cross examined. He revealed the same only to C.B.C.I.D. police before Sattenpally Court. He further stated that the keys of the godown will not be with the watchman. He was cross examined. In his cross-examination he stated that he used to see or watch godowns during night times. He further stated that he was being sent for works at Godown while A-1 came to seal the godowns. From the consideration of his entire evidence the court below held that P.W.15 might have known the mischief committed by A-1 and A-2, but, it cannot be said that he was one of the persons who shared the booty along with A-1 and A-2 and consequently concluded that P.W.15 has not committed an offence alleged against the accused persons. From the consideration of evidence on record, I do not find any error in this conclusion. Some times people do not report the commission of offence to the higher authorities or to the police being afraid of their own job. Only because he did not report the matter to the concerned authorities it cannot be said that P.W. 15 witnesses also was one person guilty of the offence as held by the court below. 12. Now, let us examine the evidence of P.W.16. He stated, that he was also appointed as a watchman in Panchayat Samithi, Macherla and he used to bring food to A-1 and A-1 used to pay some amount. He further deposed that he was removed from the office after the death of his uncle and A-1 informed that he would post him as N.M.R. in the godown and accordingly he was working as N.M.R. and A-1 used to pay him Rs.150 per month and also doing the personal work of A-1. A-1 gave gunny bags and brought the paddy scrap from the rice mill and those paddy bags were kept in the godown. He further deposed that he did not remove any fertilizer bags from the godown. A-2 used to pass the bills and the keys of the godown were with A-1. He stated that himself and one Kottaiah used to take paddy scrap in rickshaw to the godown, and A-1 used to open the doors. For that services A-1 used to pay some extra amount of Rs.150 per month. A-2 used to pass the bills and the keys of the godown were with A-1. He stated that himself and one Kottaiah used to take paddy scrap in rickshaw to the godown, and A-1 used to open the doors. For that services A-1 used to pay some extra amount of Rs.150 per month. He further deposed that there were pesticide bags in the godown and the paddy scraps were being substituted in the place of pesticides bags and some paddy scraps were kept in the gunny bags. At that stage A.P.P. asked the permission of the court to cross-examine the witnesses treating the witnesses hostile and he was permitted. In the cross-examination he stated that he did not state as per Ex.111 that about 400 to 500 bags were removed from the godown as per the instructions of A-1. He denied the suggestion that he was deposing falsely at the instance of A-1 and he knew the removal of the manure bags from the godown. He was also cross-examined on behalf of A-1. He admitted that there were two jawans appointed by Government and A-1 used to live in quarters. He stated that he did not know whether the jawan used to bring food for A-1. There is no evidence on record that he received any wages as N.M.R. From his deposition also at the most one can say that P.W.16 was also aware of the mischief being done by A-1 in removing the manure and putting the husk in the manure bags. It cannot be said that he was one of the persons committed the offence along with A-1 and A-2 by sharing the sale proceeds of fertiliser of godown. 13. Thus, from the evidence of P.Ws.15 and 16, as held by the court below, it cannot be said that they shared the mischief along with the accused and received the sale proceeds by participating in the commission of the offence. At the most it can be said that they were aware of the commission of the offence and they did not inform the concerned authorities for the best reasons known to them Moreover, A-1, being an officer, P.Ws.15 and 16 were obeying his instructions. In the cross-examination P.W.15 stated that the keys of the godown were not with him and he was only watching the godown during night times. In the cross-examination P.W.15 stated that the keys of the godown were not with him and he was only watching the godown during night times. P.W.16 also likewise stated that when he was working as N.M.R. for 3 months on the instructions of A-1 he used to carry husk to godown. He further made it clear in his evidence that he did not touch the husk bags. 14. Having assessed the evidence of P.Ws.15 and 16 the court below held that from the evidence of P.Ws.15 and 16 on record it cannot be said that they have also committed an offence along with the accused persons. Accordingly the petition filed by the accused was dismissed refusing to exercise powers under Sec.319 of CrI.P.C. 15. Having assessed the entire evidence myself, 1 am of the opinion that there is neither illegality nor irregularity in the impugned order. Moreover, apparently A-1 has filed the present application only to defeat the prosecution case or to delay it, by making the present application to summon P.Ws.15 and 16 as accused in the case. As I have already stated that the prosecution has already examined 38 witnesses and closed the case and the matter was posted for examination of the accused under Sec.313 of Crl.P.C. it is only at this stage the present petition is made. As held by the High Court of Delhi in Mohan Wahi v. State Mohan Wahi v. State , (1982)22 D.L.T. 139 that in appropriate cases the court may decline to summon the other persons as accused if the circumstances so warrant. The present also according to me is one such a case. Hence, even for this reason also I decline to interfere with the discretionary order passed by the court below. 16. Accordingly this Crl.R.C. is dismissed. Petition dismissed.