1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL REVISION APPLICATION NO. 209/2010 Central Bureau of Investigation through Dy.S.P. (CBI), Nagpur Versus Shri. V. S. Kumbhare ..................................................................................................................................................... Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ..................................................................................................................................................... Mr. Shyam Ahirkar, counsel for applicant Mr. S. G. Loney, for respondent sole. Coram : A.P. Bhangale, J Dated : 29th June 2011 1. By this application, the applicant questioned the legality, propriety and correctness of the order below Exh. 23, passed by learned Judge, Special Court (Central Bureau of Investigation) Nagpur in Special Case No. 7/2007, under Section 420, 120 B, 468 and 471 of Indian Penal Code and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. It appears that learned Judge, Special Court (CBI) Nagpur by reasoned order after making reference 2 to various rulings decided to discharge the respondent herein from the case on the ground that there was no material available against the respondent-accused to frame charge under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. Learned Special P.P. who filed this revision application contended that the learned Special Judge ought to have considered the documentary evidence on the record. 3. According to learned Special P.P., there is adequate material available against the respondent- accused sufficient enough to proceed further against him by framing charges against him. According to him, the documentary evidence can establish nexus between the offence committed and the accused who illegally misused his position by way of corrupt practices favouring the main accused and causing loss of Rs. 16,45,776/- to the Public Exchequer. Learned special P.P., also submitted that the trial Judge failed to appreciate the import of Section 319 of Code of Criminal Procedure, 1973, as it is open for the trial Court in the course of enquiry into, or trial of an 3 offence if it appears from the evidence that a person not being the accused has committed any offence for which such a person can be tried together with the accused in the case and Court may proceed against such person for the offence which he appears to have committed. 4. In fact, this legal position is not disputed by even learned advocate for the respondent to the effect that even discharged accused can be indicted in trial on the basis of evidence available against him. Principle of double jeopardy contained in Section 300 of the Criminal Procedure Code, is not bar to prosecute even a discharged person provided that the learned trial Judge is satisfied upon evidence in the course of the trial that any person not being the accused before it has committed any offence for which such person can be tried together with the charge- sheeted accused and Court can proceed against such person in view of the power exercisable by the Court under Section 319 of Criminal Procedure Code. One may make reference to Smt. Vijaya Bai and another etc vs. 4 State of Rajasthan, reported in 1990 CRI. L. J. 1754, in which it is specifically observed by the Rajasthan High Court that on account of an order of discharge fresh trial is not in any way barred. Order of discharge passed under Section 239, Cr.P.C., does not amount to acquittal as no trial has taken place on merits and as such trial can be held and cognizance can be taken on the basis of fresh material appearing in evidence. In that case the learned Magistrate recorded the evidence of four witnesses and after considering their evidence proceeded to take cognizance of the offences in respect of the accused for whom order of discharge was passed earlier. In my opinion, it is not a case of reviewing the order of discharge passed by the trial Court earlier. It is a case of taking cognizance of the offence on the basis of the evidence recorded by the trial Court. It is not in any way prohibited in law. In my opinion having regard to the language of Sec. 319, it is permissible and the trial Judge is fully competent to take cognizance of the offence and the offenders on the basis of evidence recorded by him, though for the 5 same offence, order of discharge may have been passed earlier. 4. The special Court seised of the special case, has already taken cognizance of the offences punishable under Section 420, 120 B, 468 and 471 of Indian Penal Code and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. As such it is duty of the Special Court to proceed against all those persons who appears to have been involved in the offences so as to summon them if evidence is available against them and proceed against them in the course of the trial in respect of alleged offences on the basis of evidence against such persons. The scope of Section 319 of Code of Criminal Procedure, 1973, is vast. It is duty of the special Court to appreciate the evidence before it and to take cognizance of offences and proceed against all such persons by whom offence appears to have been committed irrespective of any discharge order made earlier in favour of any such person. 6 5. In view of this legal position sated above, it is open for the revision applicant to bring to the notice of the learned Special Judge, the evidence if any, in the course of the trial so as to enable it to proceed against all offenders including the discharged accused; if necessary in the interest of justice. 6. The revision application is therefore disposed of accordingly. JUDGE Punde