-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1281 OF 2007 CRIMINAL WRIT PETITION NO. 1281 OF 2007 CRIMINAL WRIT PETITION NO. 1281 OF 2007 Girishkumar Shah & ors. .... Petitioner versus The State of Maharashtra & ors...... Respondent. Mr. Girish Kulkarni for the petitioner Mr. P.A.Pol APP for State. Mr. Samdhani -respondent no.2.in person- present. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. CORAM; A.P. DESHPANDE, J. DATED; 13TH MARCH, 2008 DATED; 13TH MARCH, 2008 DATED; 13TH MARCH, 2008 P.C.; P.C.; P.C.; 1. The Writ Petitioners are challenging an order passed by the Additional Chief Metropolitan Magistrate dated 5-1-2007 directing impleadment of the present petitioners as accused by invoking provisions of section 319 of Cr.P.C. which order has been confirmed by the dismissal of the revision by the City Civil and Sessions Court, Gr. Mumbai vide order dated 18-5-2007. The respondent no.2 is the original complainant, who instituted a complaint in the Court of Metropolitan Magistrate, against six accused under sections 420, 120-B read with section 34 of IPC and under section 68 of the Companies Act. 2. At the time of filing of the complaint, the present petitioners were not impleaded as accused in -2- the complaint. However, when the respondent no.2 complainant learnt that the present petitioners are also the accomplices, he filed an application under section 319 of Cr.P.C. During the examination in chief of the respondent no.2, material evidence and documents are brought on record and exhibited. The material that was brought on record by the complainant before the trial court, during the course of examination in chief, pertained to the writ petition filed by one Mr. Dayal Gulrajanai, who happens to be one of the share holders of the accused no.1 company. The said person had filed a writ petition in the High Court against the company and the income tax department and other directors of the accused no.1. This court directed the crime branch to enquire and report about the siphoning of the amount. The complainant produced certified copy of various orders passed by the High Court. The High Court had directed a Chartered Accountant to investigate and file report in this court. The Chartered Accountant filed the report and thereafter crime branch CID, Bombay registered the offence against the accused in the private complaint filed by the respondent no.2 so also against the present petitioners under sections 406, 120-B and 34 of IPC. It was only when the complainant came to know about the involvement of the present petitioners in commission of the offence, he moved an -3- application under section 319 and placed on record all material which by then had come to his notice. After perusing the orders passed by the High Court in the writ petition, the report of the Chartered Accountant and the charge-sheet filed by the crime branch CID and also after considering other evidence on record, the trial court primafacie was of the view that the present petitioners, who were not the accused, has committed the offences and that the present petitioners can be tried together with the other accused, the trial court has proceeded against the present petitioners. It is this impleadment of the present petitioners as accused in the complaint case by which the petitioners are aggrieved. 3. Two fold submissions are made by the learned counsel for the petitioners: (1) That only on the basis of evidence in the form of examination in chief, the trial court ought not to have exercise the powers under section 319 Cr.P.C. but should have waited till the completion of the cross examination. (2) That the evidence, which is brought on record in the form of writ petition, orders passed by the High Court in writ petition, report of the Chartered Accountant and the charge-sheet filed by the crime branch, CID, cannot be said to be enough material or evidence to warrant impleadment of the present petitioners. -4- 4. The learned APP appearing for the State has placed reliance on a judgment of the Supreme Court, in the case of Rakesh Vs. State of Haryana reported in AIR Rakesh Vs. State of Haryana reported in AIR Rakesh Vs. State of Haryana reported in AIR 2001 S.C. 2521. 2001 S.C. 2521. 2001 S.C. 2521. The Supreme Court had an occasion to interpret the phraseology used in section 319(1) of Cr.P.C. and more specifically the term "evidence" used in the said section. The Supreme Court has held that the term "evidence" appearing in sub section (1) of section 319 does not postulate "evidence" which is tested by cross examination. It is also held that statement of prosecution witnesses recorded by the court can also be the primafacie material to enable the court to decide whether the person not arrayed before it, is involved in a crime, and an order under section 319 can be passed. It is specifically held that the term "evidence" as used in section 319 would not mean evidence, which is tested by cross examination. The word "evidence" is used in comprehensive and broad sense which would also include the material collected by the investigating officer and the material or evidence which comes before the court and from which the court can primafacie conclude that person not arraigned before it, is involved in the commission of the crime. Thus the material which was brought before the trial court during the examination in chief of the complainant was sufficient -5- for the trial court to primafacie come to the conclusion that the present petitioners though appears to be accomplice, have not been joined as accused, more so for the reason that the present petitioners are arrayed as accused in a State case, which relates to the same offence. The petitioners are being prosecuted in the State case under sections 406, 120-B read with 34 of IPC and section 468 of IPC, which is later on added. 5. In this view of the matter, I do not find any fault with the order passed by the Magistrate, so also the Sessions Judge. Hence the impugned order do not call for any interference at the hands of this court. 6. The learned counsel for the petitioners, then submitted that having regard to the mandate of section 210 of Cr.P.C. it would be desirable to try both the cases together before the same court. The private complaint filed by respondent no.2 herein, is pending on the file of 24th Metropolitan Magistrate’s court Borivli bearing C.C. No. 435/SW/05 whereas the State case is pending in 19th Metropolitan Magistrate’s court at Esplanade, Mumbai bearing C.C. No. 985/P/03. The petitioner so also the learned APP and the respondent no.2 complainant who is appearing in person are in agreement that the State case bearing -6- NO.985/P/03 pending in 19th Metropolitan Magistrate’s Court be transferred to 24th Metropolitan Magistrate’s court at Borivli, which is ceased of the private complaint, so that both the cases can be simultaneously tried. In this view of the matter though I dismiss the writ petition, I direct that Case No. 985/P/03 pending in the file of 19th Metropolitan Magistrate’s court at Esplanade be transferred to 24th Metropolitan Magistrate’s court at Borivli for being tried simultaneously with case No.435/SW/05. The hearing and decision of both the cases need to be expedited. Hence I direct the trial court to decide the cases as expeditiously as possible andpreferably within six months from today. ....