Full Judgment Text
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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.
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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.