IMPORTANT POINT
In order to invoke the provisions of Section 319 of the Code of Criminal Procedure to add new accused, the Court must have satisfied from the evidence already recorded that the proposed new accused had committed an offence and there is reasonable prospect of convicting him. Mere suspicion is not sufficient. 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, the Court should refrain from adopting such a course of action.

Headnote:Code of Criminal Procedure, 1973-Section 319-Addition of accused for trial-Conditions precedent to invoke provisions of Section 319-Court must have reasonably satisfied from evidence already collected that the other person committed offence and could well be tried along with already arraigned person-Mere doubt about involvement of other person in offence not sufficient-There must be reasonable prospect of conviction-Discretionary power must be exercised judicially-Trial proceeded to penultimate stage- 54 witnesses examined-At this stage Magistrate ordering two more persons to be arrayed-Statement of witness created some suspicion against newly arraigned accused-Suspicion not sufficient to hold that there is reasonable prospect of convicting newly arraigned accused-Addition of new accused warranting new trial not warrant-Order under Section 319 quashed.
       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. (Para 11)
       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. (Para 12)
       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 instant 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. The Metropolitan Magistrate felt the need to start afresh only because next three witnesses disclosed something against the appellants.
       Held : 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. 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. Consequently the order is set aside. (Paras 16, 17 & 1)

JUDGMENT

Thomas, 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?

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 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.

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

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2000 Supreme(SC) 399

Cases Referred (1)