( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 786 OF 2009 Sidram s/o Namdeo Giram, Branch Manager, State Bank of India, Adarsh Colony Branch, Ausa Road, Latur. PETITIONER VERSUS 1. The State of Maharashtra through Public Prosecutor, High Court, Aurangabad. 2. Gajendra s/o Jindas Kandarkar 3. The State Bank of India, Branch at Adarsh Colony, Latur. RESPONDENTS ..... Mr. P.R. Tandale, advocate for the petitioner. Mrs. A.V. Gondhalekar, APP for respondent No. 1. Mr. P.B. Paithankar, advocate for respondent No.3. ..... WITH CRIMINAL WRIT PETITION NO. 605 OF 2009 Sachin Vishwanath Jawalekar, U.D.C. in M.S.E.D.C.L., R/o Lalmiknagar, Latur. PETITIONER VERSUS 1. The State of Maharashtra, through Police Station In-charge, ( 2 ) Shivaji Nagar, Police Station, Latur. 2. Gajendra Jindas Kandarkar, R/o Pattewar Colony, Latur. RESPONDENTS ..... Mr. A.S. Bajaj, advocate for the petitioner. Mrs. A.V. Gondhalekar, APP for the respondent No.1. Mr. Mukul Kulkarni, advocate for the respondent No. 2. ..... WITH CRIMINAL WRIT PETITION NO. 567 OF 2009 Varsha wd/o Suresh Kokate, R/o Barshi Road, Latur, District Latur. PETITIONER VERSUS 1. The State of Maharashtra, Police Station, Shivajinagar, Latur, Dist. Latur. 2. The State Bank of India, Branch Ausa Road, Latur, district Latur, through its Branch Manager. RESPONDENTS ..... Mr. B.R. Kedar, advocate holding for Mr. K.M. Nagarkar, advocate for the petitioner. Mrs. A.V. Gondhalekar, APP for the respondent NO. 1. Mr. P.B. Paithankar, advocate for the respondent No. 2. ..... WITH CRIMINAL WRIT PETITION NO. 961 OF 2009 ( 3 ) Gajendra Jindas Kandarkar, R/o Pattewar Colony, Latur, District Latur. PETITIONER VERSUS The State of Maharashtra RESPONDENT ..... Mr. Mukul Kulkarni, advocate for the petitioner. Mrs. A.V. Gondhalekar, APP for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 9th October, 2009] ORAL JUDGEMENT : 1. Rule. These four (4) petitions are finally heard and being disposed of at the peremptory stage in as much as they arise out of same judgement and order rendered by the learned Adhoc Additional Sessions Judge, Latur in criminal revision application No. 4/2009. 2. In criminal writ petition No. 786/2009, petitioner Sidram, who is Branch Manager of the State Bank of India, alleges that he has been erroneously and arbitrarily directed to be joined as an accused in the ( 4 ) criminal case without hearing him, while deciding the criminal revision application. 3. In criminal writ petition No. 605/2009, petitioner Sachin is the cashier of M.S.E.D.C.L. and alleges that he has been directed by the learned Sessions Judge to be joined as accused in the criminal case under section 319 of the Criminal Procedure without hearing him and without there being any rationale or basis for his impleadment. 4. In criminal writ petition No. 567/2009, petitioner Varsha, who is Peon of the State Bank of India, Branch at Adarsh Colony, Latur, makes a similar averment that she has been directed to be joined as accused in the criminal case without any reason or rhyme. 5. In criminal writ petition No. 961/2009, petitioner Gajendra, who is the original accused involved in the criminal case (RCC No. 887/2008) for offence punishable under section 409 of the I.P. Code, ( 5 ) being the then Cashier of the State Bank of India, Branch at Adarsh Colony, Latur, is also aggrieved by the same order in as much as while quashing the charge for the offence punishable under section 409 of the I.P.Code, the learned Magistrate directed to proceed against him as well as the other petitioners for offences punishable under section 380 and 381 of the I.P. Code. He would submit that neither of the penal section is attracted in view of the averments made in the complaint and the evidence which has been allegedly collected by the Investigating Officer. 6. It is not necessary to elaborately set out the genesis of the criminal action taken against petitioner Gajendra. Suffice it to say that petitioner Sachin, being cashier of M.S.E.D.C.L. went to the State Bank of India, Branch at Adarsh Colony, Latur, on 16-10-2007 with cash amount of Rs. twenty (20) lacs for depositing of the same in the account of the M.S.E.D.C.L. He handed over the cash amount at the cashier’s counter. The prosecution case is that, subsequently, an amount of Rs. eleven (11) lacs was found less when the total ( 6 ) collection was counted at the end of the day. Upon information given by petitioner Sidram, the Bank Manager, the police immediately reached the premises of the Bank. They searched person of petitioner Gajendra as he was the prime suspect being the cashier of the Bank. Nothing was, however, found with him. His house search also drew blank. Consequent upon certain investigation, he came to be chargesheeted for commission of offence punishable under section 409 of the I.P. Code. 7. Before commencement of the trial, petitioner Gajendra filed an application vide Exh-28 in the criminal case (RCC No. 887/2007) for his discharge from the prosecution. The learned Judicial Magistrate by his elaborate order dated 21-11-2008 rejected the said application. The petitioner (Gajendra) filed criminal revision application vide criminal revision application No. 4/2009, which came to be allowed. The learned Adhoc Additional Sessions Judge held that the charge for offence punishable under section 409 was not proper, but it was a fit case in which petitioner Gajendra as well as the other three (3) petitioners could be proceeded ( 7 ) with for offences punishable under section 380 and 381 of the I.P. Code. He took cognizance against first three petitioners. He held that they shall be added as co- accused in the criminal case. Consequently, he rendered the impugned judgement and order. 8. Heard the learned counsel for the parties and learned A.P.P. 9. At the threshold, let it be noted that the Bank was not a party before the learned Sessions Judge. It was nobody’s case that the cash amount was stolen away from the office of the State Bank of India Branch. There is no tangible material to infer that these petitioners or any of them committed the theft of the cash amount during the working hours of the Bank. The learned Adhoc Additional Sessions Judge was much impressed by the view taken in “State of Maharashtra v. Mohan Radhakrishna Pednekar” (1998 Cri.L.J. 3771). It was a case wherein cashier of a Bank was charged for offences punishable under section 403, 405 and 408 of ( 8 ) the I.P. Code. The cash was found missing from the Bank. It was alleged that the cash was entrusted with the cashier. The money was not found with the cashier or at his house. The Division Bench came to the conclusion that cashier could be liable for negligence but not for breach of trust in absence of proof of misappropriation of the cash amount. 10. The question is whether the learned Adhoc Additional Sessions Judge could have entertained the belief that alternate charges of house burglary or theft could be framed. The learned Adhoc Additional Sessions Judge completely ignored the fact that in case of “State of Maharashtra v. Mohan Radhakrishna Pednekar” (supra), the order of acquittal was rendered by the trial Court which was the subject matter of challenge. The evidence was considered regarding the manner in which the safe used to be opened with two keys, one of which always used to be with the Manager and another with the accused i.e. cashier. In the present case, the evidence was yet to begin. The discharge application was rejected and ( 9 ) therefore, the only limited question before the revisional Court was as to whether there was sufficient material to proceed against petitioner Gajendra or not. Instead of considering such pointed question, the learned Adhoc Additional Sessions Judge completely went astray and unnecessarily directed the trial Court to take cognizance against the other petitioners as well as petitioner Gajendra for offences of the house burglary and theft in the premises of the branch of the Bank. That was totally uncalled for. 11. So far as taking cognizance against the persons who are not arrayed as accused is concerned, there cannot be any doubt about the legal position in respect of powers available under section 319 of the Criminal Procedure Code, 1973. It is well settled that unless the evidence is recorded and some tangible material is prima facie reflected from such evidence, it is not proper to proceed against any person under section 319 of the Criminal Procedure Code at peremptory stage. 12. Sub-clause (1) of section 319 of the Criminal ( 10 ) Procedure Code reads as follows : “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.” (Emphasis supplied by me) The expression “it appears from the evidence that any person not being the accused has committed any offence”, as used in sub-clause (1) of section 319 of the Criminal Procedure Code, necessarily imply that there must be some evidence on record to infer complicity of the person who is not added as an accused. The investigation papers did not furnish any material evidence to infer complicity of the first three (3) petitioners i.e. Sidram, Sachin and Varsha. Whatever material is collected during course of the investigation is in respect of alleged complicity of petitioner Gajendra. Whether to accept the said material to reach finding of ( 11 ) complicity against him or not is required to be determined by the trial Court. The learned Adhoc Additional Sessions Judge exceeded the limits while passing the arbitrary order to proceed against the first three (3) petitioners inspite of the fact that there was no material collected during the course of investigation to infer complicity of either of them. The learned Adhoc Additional Sessions Judge failed to see that the scope of revisional jurisdiction is limited to the extent of examining legality and propriety of the order which is impugned before it. The impugned order reflects non-application of judicial mind by the learned Adhoc Additional Sessions Judge. 13. So far as the contentions of petitioner Gajendra are concerned, it may be stated that the charge regarding offence of theft was not levelled against him as a result of the investigation. Nor it could have been inferred by the learned Adhoc Additional Sessions Judge on basis of the investigation papers. It is for the trial Court to decide whether a particular charge could be proper or not. The revisional Court should be ( 12 ) slow in interfering with such discretion to be exercised by the trial Court. The framing of charge would depend upon material which is placed on record. The trial Court has power to alter the charge as envisaged in section 216 (1) of the Criminal Procedure Code. The trial Court may alter or add to any charge at any time even till the fag end of the trial, but before the judgement is pronounced. Obviously, if on basis of material gathered during course of the trial, it is found necessary to alter the charge, then the trial Court would be at liberty to do so, but without any foundation, the learned Adhoc Additional Sessions Judge had no business to give such direction and to drop the charge for the offence punishable under section 409 of the I.P. Code. In this view of the matter, the impugned order is totally erroneous, perverse and arbitrary. 14. In the result, all the first three petitions are allowed and fourth petition filed by petitioner Gajendra is partly allowed. The impugned order is quashed. The trial Court may, however, decide to frame appropriate charge against petitioner Gajendra and it ( 13 ) would be permissible only after recording of some evidence to consider whether the charge needs to be altered or that it is required to be dropped. The request of petitioner Gajendra to quash the entire charge is rejected. Rule made absolute in above terms. [ V.R. KINGAONKAR ] JUDGE NPJ/criwp786-09-group