Michael
Machado & ANR Vs. Central Bureau of Investigation & ANR [2000] INSC 72
(17 February 2000)
K.T.
Thomas & A.P. Misra
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 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 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 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 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.
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