SUPREME COURT OF INDIA
Before :- K.T. Thomas and A.P. Misra, JJ.
Criminal Appeal No. 184 of 2000 (Arising out of S.L.P. (Crl.) No. 3780 of 1999). D/d. 17.2.2000
For the Appearing Parties :- M/s. R.N. Trivedi, Additional Solicitor General, Subhash Jha, Sanjay Mann, Ms. Sangeeta Kumar, Ajay K. Agarwala, Ms. Rekha Pandey, P. Parmeswaran, G.B. Sathe, S.V. Deshpande, Ashwini Garg and Ms. Sushma Suri, Advocates.
Michael Machado & Anr. - Appellants
Central Bureau of Investigation & Anr. - Respondents
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 ?
2. 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.
3. The background in which the Metropolitan Magistrate passed the order against the appellants can now be shown with more details.
4. 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 Sections 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 alongwith 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 action against those officers.
5. 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 Section 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."
- "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."
- "In my opinion, it would be improper to interfere with the exercise of his jurisdiction under section 319(1). The sufficiency of the material placed before him cannot be gone into by the High Court unless it is a case of no evidence at all. No doubt Mr. Jha argued that 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 under section 482 of the Criminal Procedure Code will interfere with the discretionary power of the learned Magistrate passed under section 319(1) of the Cr.P.C."
- "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 cases 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."
10. 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 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."
12. 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.
13. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi & Ors., 1983(1) RCR(Crl.) 73 : 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 exist for taking cognizance against the other person against whom action has not been taken."
15. 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.
17. 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.
18. 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.