Adalat Prasad Vs. Rooplal Jindal and others - Aug 25 2004

Citation:  AIR 2004 SC 4674, 2004 CriLJ 4874, AIR 2004 SCW 5174, AIR 2004 JharHCR 2834, 2004 (6) ACE 691, 2004 (2) ALD 855 (CRL), 2004 (2) AllCJ 2067, 2004 (50) AllCriC 924, 2004 (4) AllCriLR 376, 2004 (24) AllIndCas 120, 2005 (58) AllLR 158, 2004 AllMR 3131 (Cri), 2004 (2) BomCR 857 (Cri), 2004 (4) CTC 608, 2004 CalCriLR 1001, 2005 CgLJ 268, 2004 (3) ChandCriC 12, 2004 (3) ChandLR 654 (Cri), 2004 CriLR 800 (SC), 2004 (3) Crimes 350, 2004 (3) CurCriR 176, 2004 (113) DLT 356, 2004 (77) DRJ 440, 2005 (1) GujLR 546, 2004 (22) IndLD 425, 2004 (2) JCJR 174, 2004 (4) JLJR 46, JT 2004 (7) 243, 2004 (2) KerLJ 727, 2004 (3) KerLT 382, 2005 MadLJ 167 (Cri), 2004 (4) MahLJ 274, 2004 (29) OCR 264, 2004 (4) PatLJR 124, 2004 (3) RajCriC 829, 2004 (4) RecCriR 1, 2004 (7) SCC 338, 2004 (6) SLT 353, 2004 (8) SRJ 268, 2004 (7) Scale 137, 2004 SCC 1927 (Cri), 2004 (6) Supreme 371, 2004 (2) UC 1236, 2004 (2) UJ 1342 (SC)

Honourable Judges:  N. Santosh Hegde, S. B. Sinha And A. K. Mathur, JJ. Issue:  Criminal Procedure Code - Sections 203, 204, 482 Date of Judgement:  25/08/2004 Case No:  Criminal Appeal No. 91 of 2002 Counsel:  For Appellant: Ranjan Mukherjee, Advocate and For Respondents: B. K.

Satija and Satish Vig, Advocates Headnote:  

Cases Referred:  Nilamani Routray v. Bennett Coleman and Co. Ltd., (1998) 8 SCC 594 : 1998 SCC (Cri) 1551; K. M. Mathew v. State of Kerala, 1992 Cri LJ 3779 : 1992 AIR SCW 2666 : AIR 1992 SC 2206 : (1992) 1 SCC 217

Judgment:

N. Santosh Hegde, J.

1. This is an appeal by leave against the judgment of the High Court of Delhi at New Delhi in Criminal Revision No. 127 of 1995 whereby the High Court allowed the said revision petition, setting aside the order of the trial Court dated 28-1-1995 and remanded the matter to the Court of Magistrate for disposal in accordance with law. Brief facts necessary for the disposal of this case are as follows:

The 1st respondent herein filed a complaint under sections 120A, 120B, 405, 406, 415, 420, 463, 465 and 468 of the IPC against the appellant and other respondents herein alleging that the respondents have cheated and defrauded him. Taking cognizance of the said complaint on 26-5-1992 the learned Metropolitan Magistrate summoned the appellants herein and other accused by issuing process under section 204 of the Code of Criminal Procedure (the Code) for offences confined to section 420 read with 120B IPC.

2. Being aggrieved by the said order of issuance of process the appellant and some of the accused moved the High Court and the High Court in the said petition directed the petitioners therein to move the trial Court against the order of summoning. Pursuant to the said order of the High Court the appellant herein filed an application purported to be under section 203 Cr.P.C. on 10.3.1993 and the learned trial Judge by his order dated 28.1.1995 after

hearing the parties recalled the said summons.

3. The said order of the learned Magistrate recalling the summons originally issued by him was challenged before the High Court on the ground that the Magistrate had no jurisdiction to recall a summons issued under section 204 of the Code. The High Court by the impugned order has allowed the revision petition holding that while the trial court was justified in taking cognizance of the offences punishable under section 420 read with 120-B IPC it erred in recalling the consequential summons issued because the said court did not have the power to review its own order.

4. It is against the said order of the High Court as stated above, the appellant is before us in this appeal.

5. When this appeal came up for preliminary hearing on 13.11.2002 learned counsel appearing for the appellant relied on a judgment of this Court in the case of K.M. Mathew v. State of Kerala and Anr. (1992 1 SCC 217) wherein it was held that it was open to the Court issuing summons to recall the same on being satisfied that the issuance of summons was not in accordance with law. The Court which heard this matter at the preliminary stage doubted the correctness of the judgment in Mathew's case (supra) hence referred that case of Nilamani Routray v. Bennett Coleman and Co. Ltd. (1998 8 SCC 594) to a larger Bench. However said case of Nilamani (supra) got settled out of Court hence the issue involved in Mathew's case (supra) was not decided by the larger Bench. Therefore on 3.12.2002 this Court directed that the present appeal be placed before a 3-Judge Bench with a view to consider the correctness of the law laid down by this Court in Mathew's case (supra). It is in this background this appeal has now come up for our consideration.

6. As noticed above it is the correctness of the view expressed by this Court in Mathew's case which is now to be considered by us.

7. It was held in Mathew's case (supra) that section 204 of the Code indicates that the proceedings before the Magistrate commences upon taking cognizance and issue of summons to the accused. When the accused enters appearance in response to the summons the Magistrate has to take proceedings under Chapter XX of the Code. It was further held that the need to try the accused arises only when there is an allegation in the complaint that the accused has committed the crime. Hence, if there is no allegation in the complaint involving the accused in the commission of the crime it is implied that the Magistrate has no jurisdiction to proceed against the accused. In that background this Court held that it is open to the accused served with summons to plead before the Magistrate that the process against him ought not to have been issued and if the Magistrate is satisfied with such an argument, he may drop the proceedings on reconsideration of the complaint on the ground that there was no offence for which accused could be tried. This Court further observed in Mathew's case, such power is Magistrate's judicial discretion and no specific provision is required for the Magistrate to drop proceedings or rescind the process. It also held that the order of issuing process being an interim order and not a judgment, it can be varied or recalled. The Court also held that the fact that the process has been already issued is no bar to drop the proceedings, if the complaint on the very face of it does not disclose any

offence against the accused.

8. It is thus seen that in Mathew's case (supra) this Court held that after issuance of summons under section 204 of the Code, it was open to the Magistrate on being satisfied at the instance of the summoned accused to reconsider its decision of issuing summons under section 204. This Court in that case also held that the Magistrate issuing the summons can do so only on there being material to issue summons hence summons erroneously issued can be recalled by the Magistrate for which no specific provision is required.

9. Having heard the learned counsel for the parties and having considered the judgment of this Court in the case Mathew (supra) we are unable to agree with the law laid down by this Court in the said case.

10. If we analyse the reasons given by this Court in the said case of Mathew then we notice that the said view is based on the following facts:

(a) The jurisdiction of the Magistrate to issue process arises only if the complaint contains the allegations involving the commission of a crime.

(b) If the process is issued without there being an allegation in the complaint involving the accused in the commission of a crime it is open to the summoned accused to approach the Court issuing summons and convince the Court that there is no such allegation in the complaint which requires his summoning.

(c) For so recalling the order of summons no specific provision of law is required;

(d) The order of issuing process is an interim order and not a judgment hence it can be varied or recalled.

11. We will examine the above findings of this Court in the background of the scheme of the Code which provides for consideration of complaints by Magistrates and commencement of proceedings before the Magistrate which is found in Chapters XV and XVI of the Code;

12. Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present if any. If on such examination of the complaint and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under section 203 if he comes to the conclusion that the complaint, the statement of the complainant and the witnesses has not made out sufficient ground for proceeding. Per contra if he is satisfied that there is no need for further inquiry and the complaint, the evidence adduced at the stage has materials to proceed, he can proceed to issue process under Section 204 of the Code.

13. Section 202 contemplates postponement of issue of process. It provides that if the Magistrate on receipt of the a complaint if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself or directs an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding

whether or not there is sufficient ground for proceeding, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the Police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under section 203 of the Code.

14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under section 204 of the Code. Therefore what is necessary or a condition precedent for issuing process under section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew's case before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under sections 200 and 202, and the only stage of dismissal of the complaint arises under section 203 of the Code at which stage the accused has no role to play therefore the question of the accused on receipt of summons approaching the Court and making an application for dismissal of the complaint under section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 stage.

15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 and 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that is not by invoking section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal Courts, the remedy lies in invoking Section 482 of Code.

16. Therefore, in our opinion the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the Code which has not provided for review and prohibits interference at inter-locutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew's case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.

17. In view of our above conclusion, it is not necessary for us to go into the question whether order issuing a process amounts to an interim order or not.

18. For the reasons stated above we are in agreement with the judgment of the

High Court impugned herein. This appeal fails and the same is dismissed.

HELD:

Appeal dismissed.

Guriya aka Tabassum Tauquir and Ors Vs. State of Bihar and Anr. - Sep 28 2007

Citation:  JT 2007 (11) SC 438, 2007 (II) OLR (SC) 817, 2007 (11) SCALE 533, (2007) 8 SCC 224

Honourable Judges:  Arijit Pasayat and D.K. Jain, JJ. Issue:  Criminal Procedure Code Section 319 Date of Judgement:  28/09/2007 Case No:  Appeal (crl.) 1305 of 2007, S.L.P.(Crl.) No. 6219 of 2005 Counsel:  For Appellant: S. Wasim A Qadri and Lakshmi Raman Singh,

Advs. and For Respondents: Gopal Singh, Anukul Raj, Rituraj Biswas and Shashi Bhushan Kumar, Advs.

Headnote:  

Cases Referred:  Michael Machado and Anr. v. Central Bureau of Investigation and Anr. (2000 (3) SCC 262); Shashikant Singh v. Tarkeshwar Singh and Anr. (2002 (5) SCC 738 ; Krishnappa v. State of Karnataka (2004 (7) SCC 792); Joginder Singh and Anr. v. State of Punjab and Anr. AIR 1979 SC 339; Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. 1983 (1) SCC 1; Sohan Lal and Ors. v. State of Rajasthan AIR 1990 SC 2158; Lok Ram v. Nihal Singh and Anr. AIR 2006 SC 1892

Judgment:

Arijit Pasayat, J.

1. Leave granted.

2. The appellants call in question legality of the order passed by a learned Single Judge of the Patna High Court dismissing the Criminal Revision filed by them. Challenge before the High Court was to the revisional order passed by learned Additional Sessions Judge, Fast Track Court No. 1, Motihari. By order dated 10.09.2004, learned Additional Sessions Judge set aside the order of learned Judicial Magistrate, Motihari in G.R. No. 996 of 99/Tr. No. 693 of 2004.

3. Background facts in a nutshell are as follows:-FIR was lodged on 29.05.1999 by Manzoor Baitha alleging that his parents, brother and sisters had a fight with his family members. Annu Siddiqui hit on the head of his son Akbar Hawari with the butt of a pistol and he also snatched away a wrist watch of his son. Cognizance was taken on 27.9.1999 and charge-sheet was filed on 09.09.1999. Charges were framed on 14.3.2000. Only three persons were arrayed as accused persons and the present appellants were not arrayed as

accused. It appears that a protest petition was filed before charges were framed on 14.03.2000 but the same was rejected. Recording of prosecution evidence commenced on 16.04.2001 and continued till 29.04.2002. The prosecution evidence was thereafter closed and the statement of accused persons was recorded in terms of Section 313 of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') on 19.02.2003. Thereafter on 07.05.2003, an application in terms of Section 311 Cr.P.C. was filed and was allowed and two more witnesses i.e. PWs 4 and 5 were examined. An application under Section 319 Cr.P.C. was filed on 14.01.2004 stating that new evidence has surfaced which requires the trial of the present appellants. It is to be noted that PWs 4 and 5 were examined on 6.1.2004 pursuant to the order in the application filed under Section 311 Cr.P.C. The petition filed under Section 319 Cr.P.C. was rejected by the Trial Court holding that no case was made out for putting the appellants on trial. Learned Sessions Judge was moved for revision and the same was allowed. The High Court dismissed the revision petition filed on the ground that there are materials against the appellants.

4. Learned counsel for the appellants submitted that the application under Section 319 Cr.P.C. was nothing but an abuse of process of the court as the narration of facts above would go to show. Every possible attempt was made to introduce materials against the appellants which were not on record. Even after the examination of the accused under Section 313 Cr.P.C., an application under Section 311 Cr.P.C. was allowed. Two witnesses were examined on 6.1.2004. Even their evidence in no way connects the appellants to the alleged incident. PWs 1, 2 and 3, who were examined on 16.04.2001, 8.01.2002 and 29.04.2002 merely stated about the alleged presence of the appellants. No definite role was ascribed to them. Therefore, the application in terms of Section 319 Cr.P.C. was not maintainable and in any event was mala fide.

5. Learned counsel for the State submitted that the prosecution has not filed any application under Section 319 Cr.P.C. It was only PW-1, the informant who had filed such an application. Learned counsel for the complainant - respondent No. 2 submitted that the appellants were named in the FIR. PWs 1, 2 and 3 spoke about their presence. Therefore, they should have been arrayed as accused persons.

6. The parameters for dealing with an application under Section 319 Cr.P.C. have been laid down by this Court in several cases. 7. In Michael Machado and Anr. v. Central Bureau of Investigation and Anr. (2000 (3) SCC 262) it was observed as follows:-

"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 other 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.

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 recommended 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 large in number the court must seriously consider whether the objects sought to be achieved by such exercise are worth wasting the whole labour already undertaken. Unless the court is hopeful that there is a reasonable prospect of the case as against the newly-brought accused ending in being convicted of the offence concerned we would say that the court should refrain from adopting such a course of action"

8. Shashikant Singh vs. Tarkeshwar Singh and Anr. (2002 (5) SCC 738), it was, inter-alia observed as follows:-

"The intention of the provision here is that where in the course of any enquiry into, or trial of, an offence, it appears to the court from the evidence that any person not being the accused has committed any offence, the courts may proceed against him for the offence which he appears to have committed. At that stage, the court would consider that such a person could be tried together with the accused who is already before the court facing the trial. The safeguard provided in respect of such person is that, the proceedings right from the beginning have mandatorily to be commenced afresh and the witnesses reheard. In short, there has to be a de novo trial against him. The provision of de novo trial is mandatory. It vitally affects the rights of a person so brought before the court. It would not be sufficient to only tender the witnesses for the cross-examination of such a person. They have to be examined afresh. Fresh examination-in-chief and not only their presentation for the purpose of the cross-examination of the newly added accused is the mandate of Section 319 (4). The words "could be tried together with the accused" in Section 319 (1), appear to be only directory. "Could be" cannot under these circumstances be held to be "must be". The provision cannot be interpreted to mean that since the trial in respect of a person who was before the court has concluded with the result that the newly added person cannot be tried together with the accused who was before the court when order under Section 319(1) was passed, the order would become ineffective and inoperative, nullifying the opinion earlier formed by the court on the basis of the evidence before it that the newly added person appears to have committed the offence resulting in an order for his being brought before the court."

9. Again in Krishnappa vs. State of Karnataka (2004 (7) SCC 792), it was observed as follows:-

"It has been repeatedly held that the power to summon an accused is an extraordinary power 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.

In the present case, we need not go into the question whether prima facie the evidence implicates the appellant or not and whether the possibility of his conviction is remote, or his presence and instigation stood established, for in our view the exercise of discretion by the Magistrate, in any event of the matter, did not call for interference by the High Court, having regard to the facts and circumstances of the case.

In Michael Machado v. Central Bureau of Investigation construing the words "the court may proceed against such person" in Section 319 CrPC, this Court held that the power is discretionary and should be exercised only to achieve criminal justice and that the court should not turn against another person whenever it comes across evidence connecting that other person also with the offence. This Court further held that a judicial exercise is called for, keeping a conspectus of the case, including the stage at which the trial has already proceeded and the quantum of evidence collected till then, and also the amount of time which the Court had spent for collecting such evidence. The court, while examining an application under Section 319 CrPC, has also to bear in mind that there is no compelling duty on the court to proceed against other persons. In a nutshell, it means that for exercise of discretion under Section 319 CrPC, all relevant factors, including the one noticed above, have to be kept in view and an order is not required to be made mechanically merely on the ground that some evidence had come on record implicating the person sought to be added as an accused.

Applying the test as aforesaid to the facts of the present case, in our view, the trial Magistrate is right in rejecting the application. The incident was of the year 1993. Seventeen witnesses had been examined. The statements of the accused under Section 313 CrPC had been recorded. The role attributed to the appellant, as per the impugned judgment of the High Court, was of instigation. Having regard to these facts coupled with the quashing of proceedings in the year 1995 against the appellant, it could not be held that the discretion was illegally exercised by the Trial Magistrate so as to call for interference in exercise of revisional jurisdiction by the High Court."

10. The scope and ambit of Sec. 319 of the Code have been elucidated in several decisions of this Court. In Joginder Singh and another v. State of Punjab and another (AIR 1979 SC 339), it was observed:

"6. A plain reading of Sec. 319 (1) which occurs in Chapter XXIV dealing with general provisions as to inquiries and trials, clearly shows that it applies to all the Courts including a Sessions Court and as such a Sessions Court will have the power to add any person, not being the accused before it, but against whom there appears during trial sufficient evidence indicating his involvement in the offence, as an accused and direct him to be tried along with the other

accused;."

11. It was further observed in paragraph 9:

"9. As regards the contention that the phrase 'any person not being the accused' occurred in Sec. 319 excludes from its operation an accused who has been released by the police under Sec. 169 of the Code and has been shown in column No. 2 of the charge sheet, the contention has merely to be stated to be rejected. The said expression clearly covers any person who is not being tried already by the Court and the very purpose of enacting such a provision like Sec. 319(1) clearly shows that even persons who have been dropped by the police during investigation but against whom evidence showing their involvement in the offence comes before the Criminal Court are included in the said expression."

12. In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors. (1983 (1) SCC 1) after referring to the decision in Joginder Singh's case (supra), it was observed:-

"19. In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the Court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused. 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. More than this we would not like to say anything further at this stage. We leave the entire matter to the discretion of the Court concerned so that it may act according to law. We would, however, make it plain that the mere fact that the proceedings have been quashed against respondent Nos. 2 to 5 will not prevent the court from exercising its discretion if it is fully satisfied that a case for taking cognizance against them has been made out on the additional evidence led before it."

13. On a careful reading of Sec. 319 of the Code as well as the aforesaid two decisions, it becomes clear that the trial court has undoubted jurisdiction to add any person not being the accused before it to face the trial along with other accused persons, if the Court is satisfied at any stage of the proceeding on the evidence adduced that the persons who have not been arrayed as accused should face the trial. It is further evident that such person even though had initially been named in the F.I.R. as an accused, but not charge sheeted, can also be added to face the trial. The trial court can take such a step to add such persons as accused only on the basis of evidence adduced before it and not on the basis of materials available in the charge-sheet or the case diary, because such materials contained in the charge sheet or the case diary do not constitute evidence. of course, as evident from the decision reported in Sohan Lal and others v. State of Rajasthan, (AIR 1990 SC 2158) the position of an accused who has been discharged stands on a different footing.

14. Power under Section 319 of the Code can be exercised by the Court suo

motu or on an application by someone including accused already before it, if it is satisfied that any person other than accused has committed an offence and he is to be tried together with the accused. The power is discretionary and such discretion must be exercised judicially having regard to the facts and circumstances of the case. Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates evidence of witnesses given in Court. Under Sub-section (4)(1)(b) of the aforesaid provision, it is specifically made clear that it will be presumed that newly added person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced. That would show that by virtue of Sub-section (4)(1)(b) a legal fiction is created that cognizance would be presumed to have been taken so far as newly added accused is concerned. (See Lok Ram v. Nihal Singh and Anr. (AIR 2006 SC 1892)

15. The factual position noted above goes to show that there was no new material after examination of the accused persons under Section 313 Cr.P.C., which threw any light on the incident. The evidence of PWs 4 and 5 is not the basis of the application under Section 319 Cr.P.C. as they have not spoken anything about the appellants.

16. As noted above, PWs 1,2 and 3 have stated about the presence of the appellants without any definite role being ascribed to them in their evidence recorded on 16.04.2001, 08.01.2002 and 29.04.2002. If really the complainant had any grievance about the appellants being not made accused, that could have, at the most, be done immediately after the recording of evidence of PWs 1,2 and 3. That has apparently not been done. Additionally, after the charge-sheet was filed, a protest petition was filed by the complainant which was dismissed. No explanation whatsoever has been offered as to why the application in terms of Section 319 Cr.P.C. was not filed earlier. The revisional court did not deal with these aspects and came to an abrupt conclusion that all the PWs have stated that the appellants have committed overt acts and their names also find place in the protest petition. Undisputedly, no overt act has been attributed to the appellants by PWs 1, 2 and 3. Nothing has been stated about the appellants by PWs 4 and 5. There was mention of their names in the FIR. A protest petition was filed. Same was also rejected. These could not have formed the basis of accepting the prayer in terms of Section 319 Cr.P.C. The High Court's order, to say the least, is bereft of any foundation. It merely states that there are materials against the petitioners before it. It also did not deal with various aspects highlighted above.

17. Above being the position, the order of the High Court and that of learned Additional Sessions Judge cannot be maintained and are set aside. The Trial Court had rightly rejected the application filed under Section 319 Cr.P.C.

HELD:

The appeal is, accordingly, allowed.

Jarnail Singh and another Vs. State of Haryana and another - Apr 9 2003

Citation:   Honourable Judges:   Hon?ble Judges Y.K. Sabharwal and H.K. Sema. Issue:   Section 319 of Code of Criminal Procedure Date of Judgement:  09/04/2003 Case No:  Petition for Special Leave to Appeal (Criminal) Nos. 2941-

2942 of 2002 Counsel:   Headnote:  

Cases Referred:  

Judgment:

Y.K. Sabharwal, J -- On an application filed by respondent No. 2 (complainant) under Section 319 of the Code of Criminal Procedure (Code), the petitioners, in terms of the orders passed by Additional Sessions Judge, Karnail, have been summoned to face trial in Sessions Case No. 167 of 1999 for the offence under Sections 148, 302, 397 read with Section 149 of the Indian Penal Code (IPC). The order has been upheld by the High Court and the criminal revision petitions have been dismissed. The order of the High Court is under challenge in these petitions.

2. In nutshell, the case set up by respondent No.2, son of the deceased, in complaint is that on 8th October, 1998, the accused armed with weapons came to the disputed land and tried to stop him and his brother from ploughing the land by standing in front of their tractor. A shot fired hit the deceased Gurcharan Singh who fell down and died. When respondent No.2 and his brother went to the Police Station, they found the accused already present with the Police. The Police did not listen to them. They also went to the hospital but hospital authorities refused to conduct the medical examination saying that it was a Police case and medical examination could be done at the instance of Police. The medical examination of his brother Baljinder Singh was conducted on 9th October, 1998 after an order was obtained from the Court. The Police instead of registering the case against the accused, with a view to help them, registered a false case against the complainant and others under Sections 302/147/148/149/447 IPC on 9th October, 1998 on the basis of the statement of one Mohabbat Singh - resident of Rame village. However, on 14th October, 1998, a case against the petitioners and three others was registered under Section 302 / 307 IPC. Since the Police did not challan Mohabbat Singh and Bhira Singh, a complaint was filed by respondent No.2 on 27th November, 1998 against seven persons including the petitioners and others against whom FIR had been registered on 14th October, 1998 and other two persons who had been left out, namely, Mohabbat Singh and Bhira Singh. The Magistrate directed summoning of Mohabbat Singh and Bhira Singh as respondent No.2 on 21st July, 1999 stated before the Magistrate that he did not wish to pursue the complaint against the petitioners and three others as they had already been charged by the Police under Section 302 IPC in the case registered against them on 14th October, 1998. The complaint case was committed to the Court of Sessions against Mohabbat Singh and Bhira Singh. It is in this case

that now the petitioners have been summoned by learned Additional Sessions Judge whose order has been upheld by the High Court.

3. The question for determination is as to the applicability of Section 319 of the Code, under the aforesaid facts and circumstances, to the petitioners who are already accused in a Police case in respect of the same occurrence. It cannot be disputed that the version of occurrence in the complaint case that has been committed to Sessions is materially different than the version in Police case. In order to appreciate the rival contentions, it would be useful to reproduce Section 319 of the Code which reads as under:

"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.

(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 the witness 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."

4. Shri Jaspal Singh, learned senior counsel arguing for the petitioners, has urged three points:

1. Section 319 of the Code is not applicable to a person who is already an accused in respect of the same occurrence but in a different case;

2. Assuming Section 319 applies the proper and legal exercise of the discretion required the learned Sessions Court not to summon the petitioners; and

3. The High Court did not consider the effect of the petitioners being already accused in the Police case in respect of the same occurrence.

5. We find no substance in the last point. The High Court has noticed as

follows:

"The question to be determined is whether the petitioners, who were accused in the police case in respect of the occurrence with regard to which the complainant had instituted a complaint can be summoned as accused in the complaint case by invoking the provisions of Section 319 Cr.P.C."

6. The High Court, while examining the aforesaid question and noticing that the Police case and the complaint case are before the trial Court, has observed that both cases must necessarily be decided at the same time. We are, therefore, unable to accept the contention that the effect of petitioners being accused in the Police case was not considered by the High Court.

7. Undoubtedly, power under Section 319 of the Code can be resorted to only when a person is not an accused before Court and in the course of any inquiry into, or trial of, an offence, it appears from the evidence that such person has committed any offence for which he can be tried together with the accused. The Court has discretion to proceed against such person for the offence which he appears to have committed. The inquiry into or trial is of ' 'an offence'' and not the offender.

8. The petitioners are not accused in Sessions Case No. 167 of 1999 wherein an order of summoning under Section 319 has been passed. The plain reading of Section 319 of the Code is that if a person is not before Court as an accused of the offence which from the evidence he appears to have committed, the Court may summon such person to face the trial. Section 319 does not exclude from its purview a person who is not an accused before Court in a case in which order for his summoning is passed despite the fact of such a person being an accused in another case though in respect of same occurrence but with different version. The words "any person not being the accused" in Section 319 would cover any person who is not already before the court in the case in which order under Section 319 is passed. It is the duty of the Court to bring before it any person who appears to have committed an offence and to convict and pass an appropriate order of sentence on proof of such person having committed the offence.

9. Mr. Jaspal Singh contends that in law there can be one trial and in support, learned counsel relies upon S.S. Khanna vs. Chief Secretary, Patna & Anr. [(1983) 3 SCC 42] with particular reference to the observations contained in para 8 that there can be in law only one trial in respect of any offence.

10. The aforesaid observations have been made in the context of the question involved in that case. The question involved in S.S. Khanna's case was that when a Magistrate had declined to issue process against a person at the stage of an inquiry under Section 202 of the Code, can he later on summon him under Section 319 of the Code. While answering that question, observations were made in para 8 that in law there can only be one trial and that a trial can commence only after process is issued to the accused. The observations cannot be relied upon out of context. Para 8 wherein observations relied upon were made reads as under:

"8. An inquiry under Section 202 of the Code is not in the nature of a trial for

there can be in law only after process is issued to the accused. The said proceedings are not strictly proceedings between the complainant and the accused. A person against whom a complaint is filed does not become an until it is decided to issue process against him. Even if he participates in the proceedings under Section 202 of the Code, he does so not as an accused but as a member of the public. The object of the inquiry under Section 202 is the ascertainment of the fact whether the complaint has any valid foundation calling for the issue of process to the person complained against or whether it is a baseless one on which no action need be taken. The section does not require any adjudication to be made about the guilt or otherwise of the person against whom the complaint is preferred. Such a person cannot even be legally called to participate in the proceedings under Section 202 of the Code. The nature of these proceedings is fully discussed by this Court in two cases Vadilal Panchal V. Dattatraya Dulaji Ghadigaonker and Chandra Deo Sing V. Prokash Chandra Bose in which Section 202 of the former Code of Criminal Procedure arose for consideration. The present Section 202, the observations made by this Court on the nature of the proceedings under that section would have to be accepted as governing the proceedings under Section 202 of the Code."

11. In Harjinder Singh vs. State of Punjab & Ors. [(1985) 1 SCC 422] the question that came up for consideration before this court was as to what was the proper course to be adopted when in respect of the same incident, there were two cases - one on a Police challan and the other on a complaint where the prosecution versions in the Police challan case and the complaint case are materially different, contradictory and mutually exclusive. The facts involved in Harjinder Singh's case in brief were that an occurrence had taken place in which nine respondents, i.e., respondents 2 to 10 therein were alleged to have committed the murder of five persons belonging to the complainants' party. During the occurrence, the complainant Harjinder Singh also received gunshot injuries. The First Information Report was lodged by a Head Constable. After investigation, the Police put up a challan against Respondents 2, 3 and 4 Karnail Singh, Mohinder Singh and Gurcharan Singh and they were committed to stand trial in the Court of Session at barnala for having committed offences punishable under Section 302, 307, 342 and 440, all read with Sections 149, 148 and 120-B of the Indian Penal Code, 1860 and Section 25 and 27 of the Arms Act, 1959. The complainant Harjinder Singh, who was appellant before the Supreme Court, after collecting material lodged complaint before the concerned Magistrate against respondents 2 to 10. In the meantime the learned Additional Sessions Judge had fixed the case put up by the prosecution, i.e., State vs. Karnail Singh for recording of evidence. Apprehending that the complaint case filed by the appellant would not be committed until the trial before the learned Additional Sessions Judge concluded, the appellant moved the High Court under Section 482 of the Code with a prayer that the trial of respondents 2, 3 and 4 Karnail Singh, Mohinder Singh and Gurcharan Singh be stayed till the complaint filed by him against them and six others was processed by the learned Magistrate and they were committed. On the order of the High Court, the commitment proceedings were expedited and ultimately the Magistrate committed all the nine accused to the Court of Additional Sessions Judge, Barnala. An application was filed by the appellant before the Sessions Court that as the prosecution version in the Police challan case and the complaint case was conflicting and the number of accused and the prosecution witnesses were also different, the trial of the two

cases may not be held together. While this application was pending, the respondents made an application that the Police challan case and the complaint case be consolidated and clubbed together. The said application was allowed by the learned Additional Sessions Judge who directed that the cases be clubbed with and consolidated and the evidence recorded in one case be read as the evidence recorded in the other case. This order was upheld by the High Court and revision petition filed by the appellant dismissed with the directions that (1) The complainant should in no event be prejudiced by the adoption of such a course and (2) The list of witnesses submitted along with the complaint would have to be exhausted by the Public prosecutor and it should be vouchsafed that the complainant in that regard does not suffer, i.e., in the matter of leading evidence in the complaint case.

12. As regards the apprehension of the complainant that the evidence meant to be led in the Police challan case and that meant to be led in the complaint case would be mutually exclusive and would necessarily lead to an acquittal of the accused on account of conflicting versions, the High Court observed that it need not be so as to the Court would have to shift the grain from the chaff, that being its bounden duty.

13. While challenging the aforesaid order before this Court, it was, inter alia, contended for the appellant that the High Court was wrong in upholding the order of clubbing and consolidating two cases particularly when the prosecution versions in the Police challan case and the complaint case are materially different and the accused persons are also not the same. In these circumstances, the course to be adopted was laid by this court in para 8 of the report which reads as under:

"8. In the facts and circumstances of this particular case we feel that the proper course in adopt is to direct that the two cases should be tried together by the learned Additional Sessions Judge but not consolidated i.e. the evidence should be recorded separately in both the cases one after the other except to the extent that the witnesses for the prosecution who are common to both the cases be examined in one case and their evidence be read as evidence in the other. The learned Additional Sessions Judge should after recording the evidence of the prosecution witnesses in one case, withhold his judgment and then proceed to record the evidence of the prosecution in the other case. Thereafter he shall proceed to simultaneously dispose of the cases by two separate judgments taking care that the judgment in one case is not based on the evidence recorded in the other case. In Kewal Krishan case (AIR 1980 SC 1780: 1980 Supp SCC 499: 1981 SCC (Cri) 438), this Court had occasion to deal with a situation as the present, where two cases exclusively triable by the Court of Session, one instituted on a police report under Section 173 of the Code and the other initiated on a criminal complaint, aro9se out of the same transaction. The Court observed that to obviate the risk of two courts coming to conflicting findings, it was desirable that the two cases should be tried separately but by the same court. The High Court was largely influenced in upholding the order of the learned Additional Sessions Judge 20(2) of the Constitution and Section 300 of the Code which provides that no person shall be prosecuted and punished for the same offence more than once. If there is no punishment for the offence as a result of the prosecution, sub-clause (2) of Article 20 has no application. The constitutional right guaranteed by Article 20(2) against double jeopardy can still be reserved if the two cases are tried

together but not consolidated i.e. the evidence be recorded separately in both cases and they be disposed of simultaneously. Further, the second prosecution must be for the 'same offence'. If the offences are distinct, there is no question of the rule as to double jeopardy being applicable.

14. It may be that the aforesaid was held to be the proper course to be adopted while dealing with Section 223 of the Code but the principles laid down are squarely applicable to the present case as well. The High Court in principle and in substance has adopted in a similar course in the impugned order. The course adopted would not result in causing any prejudice to the accused/petitioners. It is a duty of the Court to shift the grain from the chaff and punish the guilty while, at the same time, ensuring that there is no violation of Article 20(2) of the Constitution of India. The impugned order squarely satisfies all these requirements.

15. True, the power of summoning under Section 319(1) is required to be sparingly used it being a discretionary power but on facts of the present case, it cannot be held that the discretionary power has not been properly and legally used. The power is to be exercised to achieve criminal justice. As already noticed, though occurrence is the same but there are two versions - one in the Police case and the other n the case in which the petitioners have been directed to be summoned. In case the petitioners are not before the court as accused in the case in hand, the Court would not be in a position to convict and appropriately sentence them even if the version of the occurrence as given by Respondent No. 2 is accepted and held proved beyond reasonable doubt against the petitioners. We are of the view that there is no merit in points 1 and 2 as well.

Held:

In view of the above discussion, we find no substance in the petitions and the same are accordingly dismissed.

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Michael Machado and another Vs. Central Bureau of Investigation and another - Feb 17 2000

Citation:  AIR 2000 SC 1127, 2000 CriLJ 1706, AIR 2000 SCW 734, 2000 (40) AllCriC 795, 2000 (2) AllCriLR 199, 2000 (27) AllCriR 747, 2000 (2) BLJ 607, 2000 (5) BomCR 860, 2000 CalCriLR 203, 2000 (1) ChandCriC 119, 2000 CriLR SC 265, 2000 CriLR SC 265, 2000 (2) Crimes 23, 2000 (1) CurCriR 298, 2000 (2) EastCriC 461, JT 2000 (2) SC 531, 2000 (2) LRI 86, 2000 MadLJ 481 (Cri), 2000 (18) OCR 441, 2000 (2) RecCriR 75, 2000 (3) SCC 262, 2000 (1) SCJ 551, 2000 (3) SRJ 331, 2000 ScCriR 445, 2000 (1) Scale 624, 2000 SCC 609 (Cri), 2000 (2) Supreme 326, 2000 (1) UJ 540 (SC)

Honourable Judges:  K. T. Thomas and Ajay Prakash Misra, JJ. Issue:  Criminal Procedure Code, 1974 - Section 319 Date of Judgement:  17/02/2000 Case No:  Criminal Appeal No. 184 of 2000 (arising out of S.L.P. (Cri) No. 3780 of

1999) Counsel:  For appearing parties: R. N. Trivedi, Addl. 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, Ms. Sushma Suri, Advocates

Headnote:  

Cases Referred:  Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR 1983 SC 67 : 1983 Cri LJ 159 : (1983) 1 SCC 1

Judgment:

K. T. Thomas, J.

1. 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?

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 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 Liberty 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 perpet-ration of the said crime. However the CBI has recommended to the Bank for initiating departmental actions 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 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."

6. 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."

7. 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 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 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."

8. 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."

9. 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.

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."

11. 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, had 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.

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, (1983) 1 SCC 1: (AIR 1983 SC 67: 1983 Cri LJ 159) 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."

14. 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.

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.

16. 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.

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.

HELD:

Appeal allowed.