- (1.) THESE misc. petitions are directed to challenge the orders dated 17.2.2010 and 10.3.2010 passed by learned Sessions Judge, Udaipur in Cr. Revision Petitions No.164/2009, 66/2010 and 65/2010 affirming the order dated 25.11.2009 passed by learned Additional Chief Judicial Magistrate No.2, Udaipur taking cognizance against the petitioners for the offences punishable under Sections 408, 409 and 120-B Indian Penal Code.
(2.) THE factual matrix, necessary to be noticed is that petitioner Subhash Chandra while working as Chief Manager, Union Bank of India, New Fatehpura Branch, Udaipur, found that Shri Bharat Kumar, the Head Cashier of the branch, misused his position and embezzled a sum of Rs.35,81,900/-, thus, lodged an FIR at Police Station Amba Mata and on that basis a 2 criminal case was registered. After completion of investigation a charge sheet was filed and charges against Bharat Kumar were framed. The trial court recorded the statements of the prosecution witnesses including the present petitioners and the accused Bharat Kumar also explained the circumstances appearing against him in evidence. The arguments in the case commenced on 16.11.2009 and were also to be heard on 25.11.2009. The trial court on 25.11.2009 suo moto took cognizance against the present petitioners for the offences punishable under Sections 409 and 120-B Indian Penal Code while exercising powers under Section 319 Cr.P.C., the petitioners were accordingly summoned through a warrant of arrest. The cognizance against accused Bharat Kumar was also taken for the offences punishable under Sections 408 and 120-B Indian Penal Code. The trial court was of the view that huge amount from the bank's chest could have not been embezzled without the connivance and consent of the present petitioners and, therefore, apprehended a conspiracy. Being aggrieved by the order taking cognizance the petitioners preferred separate revision petitions before the learned Sessions Judge and those 3 came to be rejected on 17.2.2010 and 10.3.2010, hence these misc. petitions are preferred. While pressing these petitions, it is submitted by counsel for the petitioners that the cognizance against the petitioners are taken merely on basis of a bald suspicion, based on some alleged negligence and that is not sufficient to take motion as per provisions of Section 319 Cr.P.C. Per contra, learned Public Prosecutor quite straneously submitted that the present petitioners are responsible officers of the bank and two sets of keys of chest could not have been handed over to Bharat Kumar by them without having a definite role in a criminal conspiracy, thus, the cognizance under the order impugned was rightly taken. Heard counsel for the parties.
(3.) THE trial court under the order dated 25.11.2009 took cognizance of the offences punishable under Sections 408, 409 and 120-B Indian Penal Code with the factual background that during the course of recording evidence, it revealed that the bank keys were handed over by petitioner K.L.Jat to Bharat Kumar Lodha and on 13.8.2008 the safe was closed by Bharat Kumar Lodha in presence of petitioner Balwant Singh. As per the prescribed norms, the officers of the bank 4 should have kept one key with them and, another with Bharat Kumar Lodha and both the sets of keys could have not been given to one officer. Looking to the wrong committed, by handing over two sets of keys to Bharat Kumar, the trial court presumed strong suspicion regarding participation of the petitioners in criminal conspiracy. Precisely, the issue requires determination is that whether the trial court after examining the present petitioners as prosecution witnesses and also getting explanation from accused Bharat Kumar could have taken cognizance as impugned, on basis of a suspicion? Hon'ble Supreme Court in Michael Machado & Anr. v. Central Bureau of Investigation & Anr., reported in 2000 Cr.L.R. (SC) 265, considered all the eventualities for taking cognizance by exercising powers under Section 319 Cr.P.C. Hon'ble Supreme Court in the case aforesaid held as under:- "10.Powers u/s.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 5 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-sec.(1) then-- (a)the proceedings in respect of such person shall be commenced afresh, and witnesses re- heard; (b)subject to the provisions of Cl.(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 of trial was commenced." 11.The basic requirements of 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 6 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 & Ors., (1983)1 SCC 1, this Court has truck 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 extra-ordinary 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 u/s.319 of the Code, must address itself about the other constraints imposed by the first limb of sub-sec.(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." The entire law relating to care and cautions required to be taken while exercising powers under Section 319 Cr.P.C. were also considered by Hon'ble Supreme Court in Sarabjit Singh and another v. State of Punjab and another, reported in (2009)16 SCC 46. The discussions so made by Hon'ble Apex Court read as under:- "18.There is no gainsaying that the power under Section 319 of the Code is an extraordinary power which in terms of the decision of this Court in MCD is required to be exercised sparingly and if compelling reasons exist for taking cognizance against whom action has not been taken. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the Court. Has the criterion laid down by this Court in MCD been satisfied is the question? 19.Indisputably, before an additional accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly. 20.We may notice that in Y.Saraba Reddy v. Puthur Rami Reddy this Court opined : "11. ... Undisputedly, it is an extraordinary power which is conferred on the court and should be used very sparingly and only if compelling reason exist for taking action 9 against a person against whom action had not been taken earlier. The word 'evidence' in Section 319 contemplates the evidence of witnesses given in court." 21.An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction. For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned. 22.The observation of this Court in MCD and other decisions following the same is that mere existence of a prima facie case may not serve the purpose. Different standards are required to be applied at different stages. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. 23.Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i)an extraordinary case, and (ii)a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied." ;