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PETITIONER: MICHAEL MACHADO & ANR.

       Vs.

RESPONDENT: CENTRAL BUREAU OF INVESTIGATION & ANR.

DATE OF JUDGMENT:       17/02/2000

BENCH: K.T. Thomas & A.P. Misra

JUDGMENT:

THOMAS, J.

L...I...T.......T.......T.......T.......T.......T.......T..J     When  the trial in a criminal case against four  accused persons  proceeded to the penultimate stage (after examining 54  witnesses  by then) the Metropolitan Magistrate,  before whom  the case was being tried, ordered two more persons  to be arrayed as accused.  If the order of the Magistrate is to sustain,  the  proceedings  in respect of  the  newly  added persons  are to be re-commenced afresh, which means that the entire  massive  evidence  thus far collected and  the  time which  the  court  has  thus far  spent  for  recording  the evidence  of  such a large number of witnesses, besides  the cost  involved for all concerned to reach up to the  present stage, would all become, for all practical purposes, a waste  a colossal waste.  Is it so very necessary at this belated stage  to bring such two more additions to the array of  the accused at the cost of such a de novo trial?

   When   the  persons,  against   whom  the   Metropolitan Magistrate  passed the order, challenged it before the  High Court  of  Bombay a learned single judge of the  High  Court felt  it  unnecessary to interfere on the premise  that  the affected  persons can approach the trial court and pray  for discharging them from the case.  Aggrieved by the said order of the learned single judge the concerned persons have filed this  petition  for  special  leave  to  appeal.   Leave  is granted.

   The  background  in  which the  Metropolitan  Magistrate passed  the  order against the appellants can now  be  shown with more details.  First appellant was Chief Manager of the Malad  Branch  of  the Corporation Bank at Mumbai,  and  the second  appellant  was  Chief Manager of the  Wadala  Branch (Mumbai).   A  complaint was lodged with the police  by  the Deputy  Manager of the Bank with the allegations that a huge amount, more than half a crore of rupees, had been defrauded by certain persons and the Bank was put to great loss to the above  extent.   An  FIR  was registered on  its  basis  for certain  offences and after completion of the  investigation the   police   laid  two   charge-sheets  before  the   said Metropolitan  Magistrate arraigning 4 persons as accused for offences  under Section 120-B, 420, 467, 468 and 471 of  the Indian  Penal  Code.   The Central Bureau  of  Investigation which  conducted the investigation and laid the charge-sheet has stated in the final report that the 4 accused along with

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certain  other  persons secured loans from the bank  to  the tune  of  more than half a crore of rupees in the  names  of existing as well as non-existing persons from three branches of the Corporation Bank (Malad and Wadala Branches at Mumbai and  Library  Branch at Ahmedabad) on the strength of  bogus share  certificates  purported  to  have  been  issued  from various  companies.   The  CBI has further stated  that  the materials  collected  by them are insufficient to  show  the involvement of three officers of the Bank (including the two appellants)  in the perpetration of the said crime.  However the  CBI  has  recommended  to   the  Bank  for   initiating departmental actions against those officers.

   The  Metropolitan  Magistrate, after perusing  the  said charge-sheet  filed against 4 accused persons, felt that the CBI  was shielding the appellants from prosecution and hence he  sought  the  explanation  from the  CBI  regarding  that aspect.   After  considering the explanation offered by  the CBI officials learned Magistrate felt that the investigating officer  has committed the offence under Section 219 of  the Indian Penal Code (making a report corruptly or maliciously, knowing  that  it is contrary to law), and issued notice  to him.   But  at the same time learned Magistrate  decided  to implead the appellants as additional accused in the criminal cases.   That order of the Magistrate was challenged by  the concerned  investigating officer and the High Court  quashed that  order, but made an observation that it is open to  the Magistrate  to consider at the appropriate stage whether any action  is  necessary  under  319 of the  Code  of  Criminal Procedure  (for  short the Code).  Following is  what  the High Court has then observed:

   As  far  as  the present case is  concerned,  there  is absolutely no material in evidence so far to proceed against those  2  bank  officers.   The   learned  counsel  for  the petitioner submitted that there may be some material against them  to proceed departmentally, but nothing is presently on record  of  the Court.  He further stated that in case  such material  or  evidence comes before the court the court  can pass order under Section 319 to join them as accused.

   The  trial  which  commenced as against  the  4  accused persons  progressed  substantially.  Until 49  witness  were examined  by  the  prosecution the trial Magistrate  had  no reason to feel the necessity to implead the appellants.  But when  evidence of the remaining 3 witnesses was recorded  it appeared to the Magistrate that appellants are also involved in  the  crime.  So he passed the order on  16.10.1999,  the relevant portion of which reads thus:

   After  perusal of the evidence of Mrs.  Sathe, Dayanand Hejmadi  and Naushad, similarly after going through Ex.16, I am  satisfied  that  there is  sufficient  evidence  against Branch Manager Mr.  N.  Ramamurthy as well as Branch Manager Mr.   Michael Machado as alleged in present case along  with other accused persons.  The evidence on record is sufficient to  show  that  they  were also  party  to  the  conspiracy, cheating and forgery of valuable security.

   It  was  the said order which the appellants  challenged before  the  High  Court.  While dismissing  that  challenge learned  Single  Judge  of the High Court has,  inter  alia, observed  thus:   In  my opinion, it would be  improper  to interfere  with the exercise of his jurisdiction u/s 319(1). The  sufficiency of the material placed before him cannot be

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gone  into  by  the  High Court unless it is a  case  of  no evidence  at  all.   No  doubt Mr.  Jha argued  hat  in  the evidence  of the three witnesses nothing has come on  record as against the present petitioners but as pointed out by Mr. Mehta,  there is some indication that the petitioners  could be  concerned with the case though I am making it clear that I am not giving any final opinion on this point.  All I wish to say is that this certainly is not a case where this Court in  its  power u/s 482 of the Criminal Procedure  Code  will interfere  with  the  discretionary  power  of  the  learned magistrate passed u/s 319(1) of the Cr.P.C.

   In  this context we may point out that even according to the trial magistrate the first 49 witnesses did not utter a single  word against any of them;  last witnesses  disclosed their  role. We have perused the evidence of the  aforesaid three  witnesses.   No doubt there is a reference  in  their evidence  to  the  role played by the appellants,  but  such reference  is  insufficient to make out a case  of  criminal conspiracy  under  Section  120B  of  the  IPC  against  the appellants.   The reason for the CBI to refrain from  making the  appellants  as accused along with the  other  arraigned persons,  has  been stated that the evidence as against  the appellants was too inadequate to send them as accused before a  court of law.  Following is the stand adopted by the  CBI in that regard:

   However,  after investigation the petitioners were  not charge-sheeted by the CBI but CBI recommended for initiation of regular departmental action for major penalty against the 2  petitioners.  That as provided under CBI Crime Manual the case investigated by the CBI are referred to the Ministry or Departments concerned for taking regular departmental action against  the  public servants under the  disciplinary  rules instead  of launching prosecution in the court of law  under the following circumstances:  -

   (a)  When in opinion of CBI there is inadequate evidence for  a  successful  criminal prosecution but there  is  good evidence for departmental action.

   (b)  When  the  charges established by the  enquiry  are breaches  of  departmental rules or misconduct not  strictly amounting to criminal offences under the law.

   (c)  When  the  departmental  action  is  preferable  to prosecution for some other important reasons.

   Hence  the  CBI  has chosen  to  recommend  departmental proceedings  against  the appellants, instead of  arraigning them as accused along with the four persons.  We are not now concerned  with  the  wisdom with which CBI has  chosen  the aforesaid  course.  We are only to see whether the action of the  magistrate  in  joining the  appellants  as  additional accused at that belated stage is legally sustainable.

   Powers  under Section 319 of the Code can be invoked  in appropriate situations.  This section is extracted below:

   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 with  the accused,  the Court may proceed against such person for  the

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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 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.

   The basic requirements for invoking the above section is that  it  should  appear  to the  court  from  the  evidence collected  during  trial or in the inquiry that  some  other person, who is not arraigned as an accused in that case, has committed  an  offence for which that person could be  tried together  with  the  accused already arraigned.  It  is  not enough  that  the  court entertained some  doubt,  from  the evidence,  about  the involvement of another person  in  the offence.   In  other words, the court must  have  reasonable satisfaction  from the evidence already collected  regarding two  aspects.  First is that the other person has  committed an  offence.   Second  is that for such offence  that  other person  could  as  well  be tried  along  with  the  already arraigned accused.

   But  even then, what is conferred on the court is only a discretion  as could be discerned from the words the  court may  proceed against such person.  The discretionary  power so  conferred  should be exercised only to achieve  criminal justice.   It  is  not that the court  should  turn  against another  person whenever it comes across evidence connecting that  another  person  also with the  offence.   A  judicial exercise  is  called for, keeping a conspectus of the  case, including the stage at which the trial has proceeded already and  the  quantum of evidence collected till then, and  also the  amount of time which the court had spent for collecting such  evidence.   It  must be remembered that  there  is  no compelling  duty  on  the  court to  proceed  against  other persons.

   In  Municipal  Corporation  of  Delhi  vs.   Ram  Kishan Rohtagi  &  ors.  {1983 (1) SCC 1} this Court has  struck  a note  of caution, while considering whether prosecution  can produce  evidence  to satisfy the court that  other  accused against whom proceedings have been quashed or those who have not  been arrayed as accused, have also committed an offence in order to enable the court to take cognizance against them and  try  them along with the other accused.  This  was  how learned Judges then cautioned:

   But  we  would  hasten to add that this  is  really  an extraordinary  power  which  is conferred on the  court  and should be used very sparingly and only if compelling reasons

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exist for taking cognizance against the other person against whom action has not been taken.

   The  court  while deciding whether to invoke  the  power under Section 319 of the Code, must address itself about the other  constraints imposed by the first limb of sub- section (4),  that  proceedings  in respect of newly  added  persons shall  be  commenced afresh and the witnesses re-  examined. The   whole  proceedings  must  be  re-commenced  from   the beginning  of the trial, summon the witnesses once again and examine  them  and cross-examine them in order to reach  the stage  where  it  had  reached earlier.   If  the  witnesses already  examined are quite a large in number the court must seriously consider whether the objects sought to be achieved by  such exercise is worth wasting the whole labour  already undertaken.   Unless  the  court is hopeful  that  there  is reasonable prospect of the case as against the newly brought accused  ending  in conviction of the offence  concerned  we would say that the court should refrain from adopting such a course of action.

   In  the  present  case,  as   pointed  out  above,   the prosecution  has  already examined quite a large  number  of witnesses  and they were cross-examined by the defence.  The Metropolitan  Magistrate felt the need to start afresh  only because next three witnesses disclosed something against the appellants.  They are:

   (1)  Mrs.  Anuradha Anand Sathe, a Clerk- cum-Cashier of Malad Branch of the Corporation Bank.

   (2)  Dayanand Hejmadi, an officer in the saving Accounts Department of the Bank.

   (3)Naushad  Ali, Special Assistant attached to the  same Branch.

   The  statements  of  those three witnesses  were  placed before  us.   No  doubt  the   statements  may  create  some suspicion  against  the  appellants.  But suspicion  is  not sufficient  to  hold  that there is reasonable  prospect  of convicting  the  appellants  of   the  offence  of  criminal conspiracy.

   We  strongly feel that a situation has not reached as to waste  the  whole massive evidence already collected by  the trial court thus far, against the 4 accused arraigned in the case.   Hence  the order of the trial court in  exercise  of Section  319  of  the  Code has to be  interfered  with  for enabling the trial to proceed to its normal culmination.

   We,  therefore,  allow  this appeal and  set  aside  the impugned  judgment of the High Court as well as the order of the  Metropolitan Magistrate under challenge.  We direct him to  proceed  with  the  trial   with  the  existing  accused arraigned before the court.