Patna High Court
Aman Kumar vs The State Of Bihar on 20 April, 2020
Equivalent citations: AIRONLINE 2020 PAT 832
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah, Vinod Kumar Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.1827 of 2017
Arising Out of PS. Case No.-207 Year-2013 Thana- BIHRA District- Saharsa
======================================================
Aman Kumar Son of Kusheshwar Mahto, Resident of Village- Patori, P.S.-
Bihra, District- Saharsa.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
For the Appellant : Mr. Shiv Shankar Sharma, Adv.
Mr.Pravin Kumar Sinha, Adv.
Amicus Curiae : Mr. Kanhaiya Prasad Singh, Sr. Adv.
Mr. Ajay Kumar Thakur, Adv.
For the Respondent : Mr. Anjani Kumar, AAG -IV
Mr.Sri Shyed Ashfaque Ahmad, APP.
======================================================
CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN
AMANULLAH
and
HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA)
Date : 20 -04 -2020
Judicial system in India has to face two adage one is
justice delayed is justice denied and another is justice hurried is
justice buried. However, in spite of above two adage, one thing
remains i.e. to provide timely justice, which is an essence of rule
of law and appreciating the same, clause 40 of Magna Carta
provided "To no one will we sell, to no one deny or delay right
or justice." Speedy justice was also mandate and there are
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catena of judgments of Hon'ble Apex Court of India, which
holds it to be a fundamental right to life guaranteed under
Article 21 of Constitution of India.
2. However, what happens, the then, Hon'ble Chief Justice
of this High Court, while considering the bail application of a
person alleged to be of an accused for the offence under Section
304(B) of the Indian Penal Code, came across certain disturbing
situation, which was prevalent in the State and as such passed
the following order in Criminal Miscellaneous No.39878 of
2014:-
One of the contentions advanced by the learned
counsel for the petitioners is that the case
against the petitioners was split up, and in S.T.
No. 124 of 2015 pending in the court of
Additional District Judge IInd, Naugachia, the
prosecution witness has turned hostile. Recently,
this Court has come across the serious
irregularities that are being committed,
particularly in cases, where the offence
punishable under section 304(B) is alleged. The
modus operandi is that one of the accused, by
and large, husband of the deceased, surrenders
before the court, and as regards the others, the
case is split , and even while the rest of the
accused are at large, the trial of the case of only
one of the accused is taken up. Witnesses are
managed and once an acquittal is obtained in the
case against the husband of the deceased, the
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same is cited as basis for granting anticipatory
bail against the other accused. This procedure is
liable to be deprecated. It is with the collusion of
the officials in the Police Department, and in
some cases the undue haste exhibited by the
judicial officers, that such tendencies are taking
place.
2. Therefore, it is directed that in none of the
cases where the offences punishable under
section 304(B) of the Indian Penal Code is
alleged, the concerned court shall permit the
splitting of the cases, and unless all the accused
are arrested or granted regular bail or
anticipatory bail, it shall not be split at all. The
trial shall be comprehensive, and the officer who
deviates and acts other than this, shall be liable
to be proceeded against.
3. On merits, this Court is not inclined to grant
anticipatory bail to the petitioners. It is left open
to them to appear before the court below. The
trial in S.T. No. 124 of 2015 shall stand stayed,
and further steps shall be taken only after the
case pertaining to the petitioners is registered
and clubbed with S.T.No. 124 of 2015.
4. If the petitioners file an application for bail
after surrender, the same shall be taken up and
orders shall be passed on merits on the same
day, duly taking into account the age and status
of the petitioners.
The Registrar General of this Court shall ensure
that the copies of this order are circulated to all
the District and Sessions Judges, and all the
Superintendents of police in the State.
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3. We can very well appreciate the concern of the then,
Hon'ble the Chief Justice in issuing above direction. However, a
Single Judge Bench of this Court, while hearing the appeal filed
by the accused against conviction under Section 304(B) of the
Indian Penal Code, has come across the above direction passed
by the then Hon'ble the Chief Justice, referred the matter for
consideration by Division Bench vide order dated 11.07.2019,
relevant paragraphs of the said order is reproduced herein
below:-
"10. Before coming to judgment in hand, certain
eventualities have to be seen:-
A) There happens to be no barrier/ prohibition
prescribed under the Criminal Procedure Code
that police report in accordance with Section
173 Cr.P.C. should be submitted only after
appearance of the accused.
B) Even at the stage of Section 190 of the
Cr.P.C., the Magistrate is quite competent to
summon the accused against whom the
investigation remains pending, if sufficient
material is found in the case diary depicting his
involvement.
C) There happens to be no barrier under Cr.P.C.
to submit chargesheet in piecemeal manner
though could be avoided.
D) Apart from this, the ambit and scope of
Section 173(8) Cr.P.C. could not be lost sight of.
E) By Constitution Bench, it has been made
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clear that even before recording of evidence the
Sessions Court is competent enough to summon
those accused persons whose presence is not at
all in accordance with Section 193 of the
Cr.P.C., after having a finding relating to
presence of sufficient material. F) Applicability
of Section 319 Cr.P.C. during course of sailing
of trial is also an additional recognized recourse.
G) So far Magistrate Court is concerned, it
would be only in accordance with Section 319
of the Cr.P.C.,once the stage of Section 190
Cr.P.C. is crossed.
11. Under the Code of Criminal Procedure, there
happens to be certain procedure prescribed for
securing appearance of an accused irrespective
of the stage. The aforesaid event could be seen
bifurcated in two parts, the firstly under
Chapter-V exclusively within the domain of
police begins with Section 41 of the Cr.P.C.,
secondly under Chapter-VI begins with Section
61 of the Cr.P.C. From plain reading of those
Sections, independently falling in both the
chapter, it is evident that all the procedures
whatever been incorporated thereunder are
meant for procurement of accused, witness,
having different methodology even allowing
coercive mode where the delinquent is found
defiant one. Furthermore, from the relevant
provisions so falling under both the Chapter, it is
apparent that there happens to be no provision
for separate/ split up the trial relating to absentee
accused. Virtually, Cr.P.C. is complete silent.
But, could it be accepted, more particularly,
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when non-adoption of such procedure will halt
the proceeding for unlimited period, causing
prejudice to the interest of accused, who is
present.
12. However, certain provisions have been
found under the Cr.P.C. whereunder trial has
been allowed to proceed even in physical
absence of the accused, allowing his appearance
through his pleader as enumerated under Section
205 of the Cr.P.C. as well as under Section 317
Cr.P.C. One other eventuality has also been
prescribed, when the status of the accused has
properly been acknowledged as an absconder.
Even during course thereof, the record has not
been allowed to split up rather the evidence has
to be recorded in absence thereof, as prescribed
under Section 299 of the Cr.P.C.
13. So, it is evident that there happens to be no
provision apparently visible under the Cr.P.C.
for splitting up of the record irrespective of
absence of accused. That being so, one could say
that in absence of specific provision, there
should not be split up of record. However,
another circumstance is to be seen:-
1) Even after completion of investigation as well
as submission of report under Section 173
Cr.P.C., police is not at all handicapped to
continue with investigation against others and
that is bound to follow with supplementary
chargesheet, which has got legal recognition in
the eye of law. Then in that circumstance,
whether it could be said that irrespective of
nature of an offence. More particularly Section-
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304B I.P.C., there should be prohibited from
continuing investigation.
2) There happens to be no restriction under Code
that police will submit only one chargesheet in a
case after completing investigation and could
not keep investigation pending against other co-
accused followed with supplementary
chargesheet, which may be a case falling under
Section 304-B of the I.P.C. It is also to be seen,
once chargesheet has been submitted against
particular accused, then in that circumstance, the
Magistrate will sit idle awaiting supplementary
charge sheet and by such activity, the Magistrate
would not violate the mandate of Article 20(1),
22 of the Constitution of India and then in that
circumstance, splitting of record will not be
permitted.
3) Whether the order dated 23.07.2015 passed in
Cr. Misc. No.39878 of 2014 could be considered
in accordance with law, more particularly in the
background of having presence of Section
173(8) of the Cr.P.C., which is bound to follow
with supplementary chargesheet.
14. In the aforesaid background, with due
respect, the finding so recorded by the Co-
ordinate Bench in Cr. Misc. No.39878 of 2014 is
not at all found favour and needs
reconsideration. As such, the matter is referred
before the Division Bench for proper
consideration and for that, office is directed to
place after taking permission from Hon'ble the
Chief Justice.
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4. In view of above order, the matter was referred before the
Division Bench for consideration, which, ultimately came
before us as per the direction of Hon'ble the Chief Justice of this
High Court.
5. As the matter involves wider implications, this Court has
invited bar to address on the above reference so that the Court
might come to a just decision in the present case and for this
purpose, this Court has also appointed Mr. Kanhaiya Prasad
Singh, learned Senior Counsel and Mr. Ajay Kumar Thakur, as
Amicus Curiae to assist the Court and we have heard Mr. Singh,
Mr. Ajay Kumar Thakur and other learned Advocates.
6. Mr. Singh has argued that though, there is good reason
behind the direction by the then Hon'ble Chief Justice passed in
Criminal Miscellaneous No.39878 of 2014 and it is also clear
that there is no specific provision in the Code of Criminal
Procedure 1973( hereinafter referred to as "Cr.P.C."), for
splitting up of the records but the practice was in vogue that if
other accused persons are not surrendering to the process of law
and one person has already been apprehended and facing the
process of law, he would not unnecessarily been detained in
custody or his trial would not be delayed for the fault on the part
of others, as there is constitutional mandate of speedy trial, for
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which, the apprehended accused is also entitled. However, the
then, Chief Justice of this Court, while passing such a direction,
failed to appreciate the same.
7. Another submission of Mr. Singh is that power of
investigation by the police is plenary and there cannot be
unnecessary interference with the power of police to investigate
into the matter and the same has also been settled by the
Hon'ble Supreme Court and supplementary police report are not
contrary to the provisions of law, as the Police has been
empowered under Section 173(8) Cr.P.C. for the same. In view
of the above, Mr. Kanhaiya Prasad Singh, learned Senior
Counsel has argued that once the chargesheet is submitted
against one accused and investigation is pending against others,
the chargesheeted accused has to be sent up for trial and that can
be done only after splitting up of records, as only, thereafter,
charges can be framed against him and trial may proceed
against him.
8. Drawing our attention towards the provisions contained
in Sections 167, 205 and 376 Cr.P.C., it has been argued by Mr.
Singh that Magistrate has power to dispense with the personal
attendance of an accused and permit him to appear through the
lawyer and Section 299 Cr.P.C. provides power to give
evidence against absconder in certain cases but all the above
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provisions are caveats and thumb rule is that unless an accused
surrendering before the process of law, there can be no
commitment and trial of the case with respect to said accused.
Mr. Singh has further submitted that the observation / direction
of the then Chief Justice of this Court cannot stand the test of
legal scrutiny for the reasons above mentioned i.e. the
possibility of misuse cannot be ground for tinkering with the
provisions of law for whatever reasons. Further the law cannot
be bent specially by a judicial pronouncement, as such, the
Courts are not bound to follow up the above direction, which
needs to be modified or set aside. Mr. Singh citing decisions of
Hon'ble Apex Court reported in (2008) 16 SCC 117 Pankaj
Kumar v. State of Maharashtra and Others and in the case of
Jayendra Vishnu Thakur vs State Of Maharashtra reported
in (2009) 7 SCC 107 has also contended that Hon'ble Apex
Court has also held that a person charged with an offence and
submitted before the process of law, has also a right of speedy
trial, which has been considered as fundamental right of life
under Article 21 of the Constitution of India.
9. Mr. Ajay Kumar Thakur, learned Advocate has also
volunteered himself in order to assist this Court and apart from
supporting the above argument, he has argued that the above
direction of the then Chief Justice of this Court can be tested
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from another angle also and submitted that till the chargesheet is
submitted, a person is only a suspect and as such, the Court
cannot be allowed to wait indefinitely even though chargesheet
has been submitted against one or some of the accused and for
rest, investigation is pending especially, when there is no such
bar in Cr.P.C. It has also been submitted that bare perusal of
Chapter XIV of Cr.P.C. will disclose that charge or charges
against a person is a rule and joinder of charge against several
accused persons is an exception and he has also cited some
decisions of Kolkata High Court and Delhi High Court.
10. Mr. Shiv Shankar Sharma, learned counsel on record in
the present appeal has also made some submissions, however,
his line of argument is almost same, which has already been
discussed.
11. Mr. Anjani Kumar, learned Additional Advocate General
and Mr. Asfaque Ahmad, learned Additional Public Prosecutor
has appeared on behalf of the State and they have also conceded
that police has power for further investigation and to submit a
further report, even if chargesheet has already been submitted
against an accused and cognizance has been taken in such case,
there is no provisions in the Cr.P.C. to withhold his trial for
appearance of rest of the accused persons. As a matter of fact,
they were practically not in a position to defend the above
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direction of the then Hon'ble the Chief Justice, however, they
have drawn our attention towards Section 299 Cr.P.C. under
which, there is provision that evidence can be recorded even
against the absconding accused persons and the same can be
used if the presence of any witness is not possible on account of
his death or long absence and submitted that court below may
be directed to use the above provisions, where the accused
persons are not appearing and in that way, such type of situation,
in which, chargesheet has been submitted against some and
investigation is pending against others, the court does not have
to wait for submission of chargesheet against all accused
persons.
12. Before proceeding further, this court deems it appropriate
to look into the certain provisions mentioned in the Cr.P.C. as
well as in Constitution of India, which appears to be relevant for
answering the present reference.
13. Our law makers, while enacting the Cr.P.C. has taken care
of every aspect of the matter like arrest, investigation, charge,
trial etc. Chapter -V Cr.P.C., deals with the arrest with warrant,
whereas, Chapter XII Cr.P.C., relates to the information to the
police and their power to investigate. Section 167 Cr.P.C.,
depicts for Procedure to be followed when investigation cannot
be completed in twenty four hours, which reads as under:-
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(1)Whenever any person is arrested and detained
in custody and it appears that the investigation
cannot be completed within the period of
twenty- four hours fixed by section 57, and there
are grounds for believing that the accusation or
information is well- founded, the officer in
charge of the police station or the police officer
making the investigation, if he is not below the
rank of sub- inspector, shall forthwith transmit
to the nearest Judicial Magistrate a copy of the
entries in the diary hereinafter prescribed
relating to the case, and shall at the same time
forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person
is forwarded under this section may, whether he
has or has not jurisdiction to try the case, from
time to time, authorise the detention of the
accused in such custody as such Magistrate
thinks fit, for a term not exceeding fifteen days
in the whole; and if he has no jurisdiction to try
the case or commit it for trial, and considers
further detention unnecessary, he may order the
accused to be forwarded to a Magistrate having
such jurisdiction: Provided that-
(a) the Magistrate may authorise the detention of
the accused person, otherwise than in the
custody of the police, beyond the period of
fifteen days; if he is satisfied that adequate
grounds exist for doing so, but no Magistrate
shall authorise the detention of the accused
person in custody under this paragraph for a
total period exceeding,-
(i) ninety days, where the investigation relates to
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an offence punishable with death, imprisonment
for life or imprisonment for a term of not less
than ten years;
(ii) sixty days, where the investigation relates to
any other offence, and, on the expiry of the said
period of ninety days, or sixty days, as the case
may be, the accused person shall be released on
bail if he is prepared to and does furnish bail,
and every person released on bail under this sub-
section shall be deemed to be so released under
the provisions of Chapter XXXIII for the
purposes of that Chapter;]
(b) No Magistrate shall authorise detention in
any custody under this section unless the
accused is produced before him;
(c) No Magistrate of the second class, not
specially empowered in this behalf by the High
Court, shall authorise detention in the custody of
the police. Explanation I.- For the avoidance of
doubts, it is hereby declared that,
notwithstanding the expiry of the period
specified in paragraph (a), the accused shall be
detained in custody so long as he does not
furnish bail;]. Explanation II.- If any question
arises whether an accused person was produced
before the Magistrate as required under
paragraph (b), the production of the accused
person may be proved by his signature on the
order authorising detention.]
14. Further, section 173 Cr.P.C., deals with report of Police
Officer on completion of Investigation, which reads as under:-
(1) Every investigation under this Chapter shall
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be completed without unnecessary delay.
(2) (i) As soon as it is completed, the officer in
charge of the police station shall forward to a
Magistrate empowered to take cognizance of the
offence on a police report, a report in the form
prescribed by the State Government, stating-
(a) the names of the parties;
(b) the nature of the information;
(c) the names of the persons who appear to be
acquainted with the circumstances of the case;
(d) whether any offence appears to have been
committed and, if so, by whom;
(e) whether the accused has been arrested;
(f) whether he has been released on his bond
and, if so, weather with or without sureties;
(g) whether he has been forwarded in custody
under section 170.
(ii) The officer shall also communicate, In such
manner as may be prescribed by the State
Government, the action taken by him, to the
person, if any, by whom the information relating
to the commission of the offence was first given.
(3) Where a superior officer of police has been
appointed under section 158, the report shall, in
any case in which the State Government by
general or special order so directs, be submitted
through that officer, and he may, pending the
orders of the Magistrate, direct the officer in
charge of the police station to make further
investigation,
(4) Whenever it appears from a report forwarded
under this section that the accused has been
released on his bond, the Magistrate shall make
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such order- for the discharge of such bond or
otherwise as he thinks fit.
(5) When such report is in respect of a case to
which section 170 applies, the police officer
shall forward to the Magistrate alongwith the
report-
(a) all documents or relevant extracts thereof on
which the prosecution proposes to rely other
than those already sent to the Magistrate during
investigation;
(b) the statements- recorded under section 161
of all the persons whom the prosecution
proposes to examine as its witnesses.
(6) If the police officer is of opinion that any
part of any such statement is not relevant to the
subject- matter of the proceedings or that its
disclosure to the accused is not essential in the
interests of justice and is inexpedient in the
public interest, he shall indicate that part of the
statement and append a note requesting the
Magistrate to exclude that part from the copies
to be granted to the accused and stating his
reasons for making such request.
(7) Where the police officer investigating the
case finds it convenient so to do, he may furnish
to the accused copies of all or any of the
documents referred to in sub- section (5).
(8) Nothing in this section shall be deemed to
preclude further investigation in respect of an
offence after a report under sub- section (2) has
been forwarded to the Magistrate and, where
upon such investigation, the officer in charge of
the police station obtains further evidence, oral
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or documentary, he shall forward to the
Magistrate a further report or reports regarding
such evidence in the form prescribed; and the
provisions of sub- sections (2) to (6) shall, as far
as may be, apply in relation to such report or
reports as they apply in relation to a report
forwarded under sub- section (2).
15. Chapter XIV Cr.P.C. deals with conditions requisite for
initiation of proceeding and Section 190 of Cr.P.C., deals with
Cognizance of an offence by Magistrate, which reads thus:-
Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any
Magistrate of the first class, and any Magistrate
of the second class specially empowered in this
behalf under sub- section (2), may take
cognizance of any offence-
(a) upon receiving a complaint of facts which
constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person
other than a police officer, or upon his own
knowledge, that such offence has been
committed.
(2) The Chief Judicial Magistrate may empower
any Magistrate of the second class to take
cognizance under sub- section (1) of such
offences as are within his competence to inquire
into or try.
16. Section 193 Cr.P.C. deals with Cognizance of offence by
the Sessions, which reads as follows:-
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"Cognizance of offences by Courts of Session.
Except as otherwise expressly provided by this
Code or by any other law for the time being in
force, no Court of Session shall take cognizance
of any offence as a Court of original jurisdiction
unless the case has been committed to it by a
Magistrate under this Code."
17. Chapter XVI deals with commencement of proceeding
before a Magistrate and Section 205 Cr.P.C. provides that
Magistrate may dispense with personal attendance of an
accused, which reads as follows:-
(1) Whenever a Magistrate issues a summons,
he may, if he sees reason so to do, dispense with
the personal attendance of the accused and
permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying
the case may, in his discretion, at any stage of
the proceedings, direct the personal attendance
of the accused, and, if necessary, enforce such
attendance in the manner hereinbefore provided.
18. Chapter XVII of the Cr.P.C. deals with charge and they
are in two parts as (A) deals with form of charges and (B) deals
with joinder of charges.
19. Chapter XVIII of the Cr.P.C., and Section 218 Cr.P.C.
provides for Separate charges for distinct offences.
(1) For every distinct offence of which any
person is accused there shall be a separate
charge, and every such charge shall be tried
separately: Provided that where the accused
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person, by an application in writing, so desires
and the Magistrate is of opinion that such person
is not likely to be prejudiced thereby, the
Magistrate may try together all or any number of
the charges framed against such person.
(2) Nothing in sub- section (1) shall affect the
operation of the provisions of sections 219, 220,
221 and 223. Illustration A is accused of a theft
on one occasion, and of causing grievous hurt on
another occasion. A must be separately charged
and separately tried for the theft and causing
grievous hurt.
20. Section 219 Cr.P.C., provides that three offences of same
kind within year may be charged together, which is as under:-
(1) When a person is accused of more offences
than one of the same kind committed within the
space of twelve months from the first to the last
of such offences, whether in respect of the same
person or not, he may be charged with, and tried
at one trial for, any number of them not
exceeding three.
(2) Offences are of the same kind when they are
punishable with the same amount of punishment
under the same section of the Indian Penal Code
(45 of 1860 ) or of any special or local law:
Provided that, for the purposes of this section,
an offence punishable under section 379 of the
Indian Penal Code (45 of 1860 ) shall be deemed
to be an offence of the same kind as an offence
punishable under section 380 of the said Code,
and that an offence punishable under any section
of the said Code, or of any special or local law,
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shall be deemed to be an offence of the same
kind as an attempt to commit such offence,
when such an attempt is an offence.
21. Section 220 deals with trial for more than one offence.
Section 221 Cr.P.C., deals with the procedure to be followed
where it is doubtful what offence has been committed. Section
222 Cr.P.C., provides for procedure when offence proved
included in offence charged. Section 223 Cr.P.C., deals with as
to what persons may be charged jointly. The following persons
may be charged and tried together, namely:-
(a) persons accused of the same offence
committed in the course same transaction;
(b) person accused of an offence and persons
accused of abetment of, or attempt to commit,
such offence;
(c) person accused of more than one offence of
the same kind, within the meaning of section
219 committed by them jointly within the period
of twelve months;
(d) persons accused of different offences
committed in the course of the same transaction;
(e) persons accused of an offence which
includes theft, extortion, cheating, or criminal
misappropriation, and persons accused of
receiving or retaining, or assisting in the
disposal or concealment of, property possession
of which is alleged to have been transferred by
any such offence committed by the first named
persons, or of abetment of or attempting to
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commit any such last- named offence;
(f) persons accused of offences under sections
411 and 414 of the Indian Penal Code (45 of
1860 ). or either of those sections in respect of
stolen property the possession of which has been
transferred by one offence;
(g) persons accused of any offence under
Chapter XII of the Indian Penal Code relating to
counterfeit coin and persons accused of any
other offence under the said Chapter relating to
the same coin, or of abetment of or attempting to
commit any such offence; and the provisions
contained in the former part of this Chapter
shall, so far as may be, apply to all such charges:
Provided that where a number of persons are
charged with separate offences and such persons
do not fall within any of the categories specified
in this section, the Magistrate may, if such
persons by an application in writing, so desire,
and if he is satisfied that such persons would not
be prejudicially affected thereby, and it is
expedient so to do, try all such persons together.
22. Section 224 deals with Withdrawal of remaining charges
on conviction on one of several charges, which reads as under:-
"When a charge containing more heads than one
is framed against the same person, and when a
conviction has been had on one or more of them,
the complainant, or the officer conducting the
prosecution, may, with the consent of the Court,
withdraw the remaining charge or charges, or
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the Court of its own accord may stay the inquiry
into, or trial of, such charge or charges and such
withdrawal shall have the effect of an acquittal
on such charge or charges, unless the conviction
be set aside, in which case the said Court
(Subject to the order of the Court setting aside
the conviction) may proceed with the inquiry
into, or trial of, the charge or charges so
withdrawn".
23. Chapter XX Cr.P.C. provides for trial of summons cases
by Magistrates and Section 255 Cr.P.C. provides for acquittal or
conviction.
24. On bare perusal of the provisions contained in above
sections, it appears that Section 223 is an exception when a
person may be charged jointly.
25. Chapter XXIV Cr.P.C. is general provision is to inquiry
and trial and Section 309 Cr.P.C. provides for power to postpone
or adjourn proceedings, which reads as under:-
(1) In every inquiry or trial, the proceedings
shall be held as expeditiously as possible, and in
particular, when the examination of witnesses
has once begun, the same shall be continued
from day to day until all the witnesses in
attendance have been examined, unless the
Court finds the adjournment of the same beyond
the following day to be necessary for reasons to
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be recorded.
(2) If the Court, after taking cognizance of an
offence, or commencement of trial, finds it
necessary or advisable to postpone the
commencement of, or adjourn, any inquiry or
trial, it may, from time to time, for reasons to be
recorded, postpone or adjourn the same on such
terms as it thinks fit, for such time as it
considers reasonable, and may by a warrant
remand the accused if in custody: Provided that
no Magistrate shall remand an accused person to
custody under this section for a term exceeding
fifteen days at a time: Provided further that
when witnesses are in attendance, no
adjournment or postponement shall be granted,
without examining them, except for special
reasons to be recorded in writing:Provided also
that no adjournment shall be granted for the
purpose only of enabling the accused person to
show cause against the sentence proposed to be
imposed on him.] Explanation 1.- If sufficient
evidence has been obtained to raise a suspicion
that the accused may have committed an
offence, and it appears likely that further
evidence may be obtained by a remand, this is a
reasonable cause for a remand. Explanation 2.-
The terms on which an adjournment or
postponement may be granted include, in
appropriate cases, the payment of costs by the
prosecution or the accused.
26. Apart from that Chapter XXXIII Cr.P.C. deals with the
provisions as to bail and bonds and Section 436 (A) Cr.P.C.
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provides for maximum period for which an under trial prisoner
can be detained, which reads as under:-
"Where a person has, during the period of
investigation, inquiry or trial under this Code of
an offence under any law (not being an offence
for which the punishment of death has been
specified as one of the punishments under that
law) undergone detention for a period extending
up to one-half of the maximum period of
imprisonment specified for that offence under
that law, he shall be released by the Court on his
personal bond with or without sureties:
Provided that the Court may, after hearing the
Public Prosecutor and for reasons to be recorded
by it in writing, order the continued detention of
such person for a period longer than one-half of
the said period or release him on bail instead of
the personal bond with or without sureties:
Provided further that no such person shall in any
case be detained during the period of
investigation inquiry or trial for more than the
maximum period of imprisonment provided for
the said offence under that law.
27. Chapter XXXV is with respect to irregular proceedings
and Section 465 of the Cr.P.C. provides as follows:-
465. Finding or sentence when reversible by
reason of error, omission irregularity.
(2)In determining whether any error, omission or
irregularity in any proceeding under this Code,
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or any error, or irregularity in any sanction for
the prosecution has occasioned a failure of
justice, the Court shall have regard to the fact
whether the objection could and should have
been raised at an earlier stage in the
proceedings.
(1)Subject to the provisions hereinbefore
contained, no finding, sentence or order passed
by a Court of competent jurisdiction shall be
reversed or altered by a Court of appeal,
confirmation or revision on account of any error,
omission or irregularity in the complaint,
summons, warrant, proclamation, order,
judgment or other proceedings before or during
trial or in any inquiry or other proceedings under
this Code, or any error, or irregularity in any
sanction for the prosecution, unless in the
opinion of that Court, a failure of justice has in
fact been occasioned thereby.
28. Chapter XXXVI provides limitation for taking
cognizance of certain offences and Section 468 provides as
follows: -
468. Bar to taking cognizance after lapse of the
period of limitation.
(1)Except as otherwise provided elsewhere in
this Code, no Court shall take cognizance of an
offence of the category specified in sub- section
(2), after the expiry of the period of limitation.
(2)The period of limitation shall be-
(a)six months, if the offence is punishable with
fine only
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(b)one year, if the offence is punishable with
imprisonment for a term not exceeding one year;
(c)three years, if the offence is punishable with
imprisonment for term exceeding one year but
not exceeding three years.
(3)For the purposes of this section, the period of
limitation in relation to offences which may be
tried together, shall be determined with
reference to the offence which is punishable
with the more severe punishment or, as the case
may be, the most severe punishment.]
29. From bare perusal of the above provisions of Cr.P.C., it
appears that Section 173(2) Cr.P.C. provides for submission of
report of the police on completion of investigation, whereas,
Section 190 (2) Cr.P.C. provides for power of cognizance by the
Magistrate upon the police report. There is no restriction to the
police to submit chargesheet against the one or some of the
accused or to keep the case pending against others, whereas,
Section 173(8) provides for power of police / investigating
agency to put before the court new evidence which it comes
across even after filing the final report or chargesheet or after
taking cognizance against some of the accused persons. In
general words, we can say that police has power to do further
investigation and submit further report before the Magistrate
under Section 173(8) Cr.P.C. At the same time, it is also
admitted position that when police submits a report against one
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accused person, keeping the investigation pending against
others, Magistrate on perusal of the materials available in the
police report, may take cognizance under Section 190 Cr.P.C.,
against other accused persons also, if he finds materials against
that accused person or persons.
30. Even the Sessions Judge after commitment of the case has
power to take cognizance, if the materials are found against
accused not committed before him for trial under Section 193
Cr.P.C. The Sessions Court has further power to issue process
against any accused, who has not been sent up for trial if the
materials were found during the trial against him under Section
319 Cr.P.C.
31. From the above, it appears that even if the accused has
not been chargesheeted by the police and case was kept pending
by the police for investigation, the Court has enough power to
take cognizance against him under the various provisions as
discussed above and to issue process against him during trial, if
the materials are found.
32. The then, Hon'ble Chief justice of this High Court has
issued direction as per the order as discussed above for not
splitting up the cases, till all the accused persons are arrested or
granted either regular or anticipatory bail and the trial shall be
comprehensive. The practice in vogue in the State is that when
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there are several accused persons and if the chargesheet has
been submitted against one or some of the accused and
investigation is kept pending against others, especially when
accused or accused persons are in custody, in order to avoid
complication under Section 167 Cr.P.C. and also in other
circumstances such as when the appearance of other accused
persons are not possible or investigation on some points are
necessary, which requires time for the Investigating Officer, the
learned Magistrate generally proceeds against the accused
against whom chargesheet has been submitted and cognizance
has been taken, if the case is Sessions triable for the
commitment of the case and keeping the case pending against
other accused persons against whom investigation is pending.
In the present case, the direction was issued by the then Hon'ble
the Chief Justice for the offences punishable under Section
304(B) Indian Penal Code, which is also triable by Sessions to
the Magistrate not to split up the record of other accused
persons unless all the accused persons are arrested or granted
anticipatory bail. The above order does not disclose that police
cannot file chargesheet against all accused persons in piecemeal
manner and order also does not speak a word about power of
police of further investigation and filing of further report rather
the direction is not to split up the record unless appearance of all
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accused persons are completed. As such, the then Chief Justice
was also aware of power of police for further investigation and
further report.
33. Splitting up of records, which has been discussed above
and splitting up of trial are two different terms. Section 317(2)
Cr.P.C. deals with splitting up of trial in certain cases though
the Jharkhand High Court in the case of Gagan Thakur reported
in 2004 Cr. Law Journal 1910 was not of the view of splitting
up of trial due to certain complications. However, the matter
with respect to splitting up of trial of some of the accused
persons, was also discussed by a Single Judge Bench of Kolkata
High Court in the case of Allaudin Sah & Anr. Vs State of West
Bengal reported in (2000) 1 CALLT 234 HC and following has
been observed in paragraph 9, 14 and 19 of the said judgment.
"9. But it appears to me that Section 317
CrPC does not contain entire law in this respect.
Section 317 is also not exhaustive of all
circumstances in which a direction for
separation of trial can be made. It only
enumerates some of the circumstances in which
separate trial of one or more accused from that
of the rest can be ordered. No other
interpretation of section 317 is possible in view
of various provisions relating to Joinder of
charges contained in part B of Chapter XVII of
CrPC section 317 cannot be interpreted detached
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from the other provisions of the Code.
===============================
14. Therefore, section 317is not the only
provision in the Code dealing the question of
joint/separate trial. General rule is that for every
distinct offence, there shall be separate charge
and trial. Joint trial of several accused in the
circumstances as set out in section 223CrPC is
only an exception. Even in the circumstances as
enumerated insection 223, separate trial Instead
of joint trial may be desirable, if facts of the case
so Justify. 1 have no hesitation in my mind to
hold that the trial court had Jurisdiction to pass
the Impugned order. I am further of the view
that no other option was left open to the trial
court in the circumstances of the case.
Otherwise it would cause great prejudice to
other accused. Other accused had every right to
demand for separation of their case from that of
the petitioner and another so that their trial may
be completed within a reasonable time. It must
be remembered that other accused are in custody
and they are available for trial and hence the
trial of those accused, who are available, cannot
be postponed for an indefinite period merely on
the ground that the petitioner and another
accused are not available Immediately for trial
and nobody knows when they will be available.
In these circumstances trial court by passing the
impugned order directing separation of the trial
of the petitioner and another accused from that
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of the other accused has wisely exercised his
discretion. Petitioner has no such vested right to
demand for Joint trial.
========================
19. In view of the aforesaid and in view of
the peculiar facts and circumstances of the
present case, I am of the view that it is wrong to
say that a Presiding judge of a trial court has no
discretion to separate a trial of one or more of
the accused from that of the rest unless charges
are framed" .
34. As such Criminal Procedure Code provides for splitting
up of Trial, which has also been provided under Section 317(2)
Cr.P.C. but that is only in certain eventualities, which has been
described in the section itself.
35. As discussed above, Sections 218 to 222 Cr.P.C. deals
with separate charge or joint charge against one of the accused
person, whereas, Section 223 Cr.P.C exceptionally deals with
the joint charge against accused persons and it goes to show that
separate charge of charges against an accused and is a rule and
the several accused persons jointly charged is an exception. The
same has also been considered by the Kolkata High Court in the
case of Allaudin Sah (supra) in paragraph 10 to 13, which reads
as follows:-
10. Part B of Chapter XVII (sections 218-224)
of the Code deals with the Joinder of charges,
I.e. the charges that may be joined in one trial.
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These provisions contain rules of general
application. Sections 219-222 refer to case of a
single accused and section 223 deals with the
Joinder of charges when more persons than one
are accused at the same trial.Section 218
embodies the general law and lays down (a) that
there must be a separate charge or head of
charge for each distinct offence and (b) that
there shall be separate trial for each such charge,
except in cases falling withinsections 219-221
and223. The object is to ensure a fair trial and to
see that the accused is not bewildered or misled
in his defence by having to defend several
unconnected charges.
11. Most important provisions relevant for our
purpose is contained insection 223 and it reads
as under :--
"The following persons may be charged and tied
together, namely :--
(a) persons accused of the same offence
committed in the course of the same transaction;
(b) persons accused of an offence and persons
accused of abetment of, or attempt to commit,
such offence;
(c) persons accused of more than one offence of
the same kind, within the meaning ofsection 219
committed by them Jointly within the period of
twelve months;
(d) persons accused of different offences
committed tn the course of the same transaction;
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(e) persons accused of an offence which
Includes theft, extortion, cheating, or criminal
misappropriation, and persons accused of
receiving or retaining, or assisting in the
disposal or concealment of property possession
of which is alleged to have been transferred by
any such offence committed by the first named
persons, or of abetment of or attempting to
commit any such last named offence.
(f) persons accused of offences undersections
411 and414 of the Indian Penal Code, or either
of those sections in respect of stolen properly
the possession of which has been transferred by
one offence:
(g) persons accused of any offence under
Chapter XII of the Indian Penal Code relating to
counterfeit coin and persons accused of any
other offence under the said Chapter relating to
the same coin, or of abetment of or attempting to
commit any such offence: and the provisions
contained in the former part of this Chapter
shall, so far as may be, apply to all such
charges :
Provided that where a number of persons are
charged with separate offences and such persons
do not fall within any of the categories specified
in this section, the Magistrate may, if such
persons by an application in writing, so desire,
and if he is satisfied that such persons would not
prejudicially affected thereby, and it is expedient
so to do, try all such persons together."
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12. As already staled,sections 218-222 deal with
Joinder of charges against some person in one
trial, while section 223 relates to joinder of
charges against two or more persons in the same
trial. There thus is the last exception to the
general rule in section 218 that every offence
must be charged and tried separately. It is also
the only exception authorising a Joint trial of
several persons in the circumstances specified in
the section. Therefore, except in the
circumstances specified insection 223, a Joint
trial of several accused renders the trial Invalid.
Object of the section is to avoid multiplicity of
trial and the "only limitation which could
properly be placed on the trial of several persons
for the same kind of or different offences would
be that which considerations of justice and
fairness would require, (See Stale of Andhra
Pradesh v. Ganeswara Rao, ).
13. Language ofsection 223 is plain enough to
hold that it is merely an enabling provision. The
words "may be charged and tried together"
occurlng in section 223 are clear enough to
further hold that this section gives a discretion to
the trial court to try the accused persons either
jointly or separately even if the circumstances
enumerated therein exist in a particular case. But
the manner of exercise of such discretions must
depend on the facts of each case. In this
connection reference may be made to a decision
of this court in Dwarka v. Emperor. 19 CWN
121. In Dholtomal Karoomal v. Emperor, 37
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CrLJ 716 it was held thatsection 239 of the old
Code (section 223 of the new Code), confers a
discretion upon a Magistrate to try persons
accused of an offence before him either Jointly
or separately. That is clear from the expression
"may" which appears in section 239. But the
discretion vested in the trying Magistrate is to be
exercised by him Judicially, and according to
certain well established principles. Where the
trial court has Judicially exercised the discretion,
vested in it. the High Court will not interfere.
But where, it has exercised a wise discretion in
directing the splitting up of a case against
several accused, the High Court will Interfere.
Again a Full Bench of five Judges of this court
in Emperor v. Cnaru Chander Mukherjee. 25
CrLJ 294 held that where offences are
committed by several persons in course of the
same transaction it is for the court in the
exercise of its Judicial discretion to say whether
the accused be tried together or separately, and
where the court, in the exercise of such
discretion, thinks that they should be tried
Jointly, and proceeds to try them, the High Court
will not Interfere with the same where there is
nothing to show that the discretion exercised
was not a proper judicial discretion. This court
again in the case of Akhtl Bandhu held that
order for separate trial is desirable if the court
finds it is necessary to avoid prejudice to the
accused. Privy Council in Danfel youth v. The
King. AIR 1945 PC 140 held that the question of
joint or several trials is always in the discretion
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of the Presiding Judge. The discretion must of
course be judicial one.
36. The discussions made above clearly disclosed that
separate trial against an accused is a rule, whereas, the joint trial
is an exception and further there is provision of splitting up of
Trial under Section 317(2) Cr.P.C..
37. At present, we are not concerned with the splitting up of
Trial rather we are more concerned with splitting up of record,
in view of the direction of the then Hon'ble the Chief Justice of
this High Court by a Judicial pronouncement, the same is
prohibited. Whole Criminal Procedure Code is silent about the
"splitting up of records" and there is no provision in Cr.P.C.,
prohibiting the Magistrate from splitting up of record in cases,
where one or some of the accused appeared/ in custody and
chargesheeted but investigation is pending against others. Same
depends upon many eventualities. Such as one or some of the
accused has been arrested and they are in detention and there is
chance of getting the benefit of Section 167(2) Cr.P.C., or the
investigation against other accused persons are pending on one
reason or others i.e. may be on the plea of alibi, prosecution
sanction and on some other reasons. There are some other
eventualities also i.e. in a case lodged against unknown
accused persons and Test Identification Parade or some more
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investigation i.e. voice test, other scientific test are necessary.
Such eventualities generally occurs in the case under Section
302, 392 and 395 of Indian Penal Code and other similar type
of cases. In the case under Section 304(B) of the Indian Penal
Code, generally, the accused persons are family members of the
deceased and, therefore, such eventualities generally does not
arise but even though sometimes, some accused persons are
evading arrest, in such case, just to avoid complication under
Section 167(2), police is forced to submit chargesheet against
one accused person for commitment and trial, keeping the case
pending against others for investigation. In such a situation,
learned Magistrate has the option either to wait for appearance
of other accused persons or to proceed for commitment of trial
and in such a situation, he has the power to remand the accused
in custody under Section 308 Cr.P.C. However, if he intends to
proceed against accused persons, against whom, chargesheet has
been submitted, that eventuality requires a Magistrate to split up
the record of such persons, who were evading the arrest or
against whom, investigation is pending in order to take steps
against them. On the other hand, as per direction of Hon'ble the
then, Chief Justice, in no condition a Magistrate can split up the
record of absconding accused persons and the said direction
appears to be a blanket one without considering the fact of each
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case.
38. No doubt, the above order has been passed by the then
Chief Justice, considering the situation prevailing in the State of
Bihar, we are in agreement with the concerned shown by the
then Hon'ble the Chief Justice, while passing the order directing
the Courts not to separate the record till appearance of all the
accused persons arrested or granted regular or anticipatory bail
as that may also lead to a situation allowing the police to favour
some of the accused by not arresting them or sending them for
trial, though other accused persons are put on trial and only on
the result of the Trial, the police submits chargesheet against
the other accused persons, sending them for trial and in the
meantime, allowing them to tamper with the evidence also.
However, accused person/persons are also having invincible
right of speedy trial, which is envisaged under our Constitution.
39. Hon'ble Apex Court time and again has considered the
right of life of a person and considered the need of speedy trial
in various judgments. In the case of Pankaj Kumar (supra) as
cited by learned Amicus Curiae, the Hon'ble Apex Court has
discussed several judgments including the judgment in the case
of Rajdeo Sharma and the case of Abdul Rahman Antulay and
so many other cases and has held in para 17 to 22 as follows:
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"17.Time and again this Court has emphasised the
need for speedy investigations and trial as both are
mandated by the letter and spirit of the provisions of
the Criminal Procedure Code [in particular, Sections
197, 173, 309, 437(6) and 468, etc.] and the
constitutional protection enshrined in Article 21 of
the Constitution. Inspired by the broad sweep and
content of Article 21 as interpreted by a seven-Judge
Bench of this Court in Maneka Gandhiv. Union of
India[(1978) 1 SCC 248] , in Hussainara Khatoon
(1)v.Home Secy., State of Bihar[(1980) 1 SCC 81 :
1980 SCC (Cri) 23] , this Court had said that Article
21 confers a fundamental right on every person not
to be deprived of his life or liberty except according
to procedure established by law; that such procedure
is not some semblance of a procedure but the
procedure should be "reasonable, fair and just"; and
therefrom flows, without doubt, the right to speedy
trial. It was also observed that no procedure which
does not ensure a reasonably quick trial can be
regarded as "reasonable, fair or just" and it would
fall foul of Article 21. The Court clarified that
speedy trial means reasonably expeditious trial
which is an integral and essential part of the
fundamental right to life and liberty enshrined in
Article 21.
18.The exposition of Article 21 in Hussainara
Khatoon (1) case[(1980) 1 SCC 81 : 1980 SCC (Cri)
23] was exhaustively considered afresh by the
Constitution Bench in Abdul Rehman Antulay v R.S.
Nayak[(1992) 1 SCC 225 : 1992 SCC (Cri) 93] .
Referring to a number of decisions of this Court and
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the American precedents on the Sixth Amendment of
their Constitution, making the right to a speedy and
public trial a constitutional guarantee, the Court
formulated as many as eleven propositions with a
note of caution that these were not exhaustive and
were meant only to serve as guidelines. For the sake
of brevity, we do not propose to reproduce all the
said propositions and it would suffice to note the gist
thereof. These are: (i) fair, just and reasonable
procedure implicit in Article 21 of the Constitution
creates a right in the accused to be tried speedily; (ii)
the right to speedy trial flowing from Article 21
encompasses all the stages, namely, the stage of
investigation, inquiry, trial, appeal, revision and
retrial; (iii) in every case where the speedy trial is
alleged to have been infringed, the first question to
be put and answered is--who is responsible for the
delay?; (iv) while determining whether undue delay
has occurred (resulting in violation of right to
speedy trial) one must have regard to all the
attendant circumstances, including the nature of
offence, the number of accused and witnesses, the
work load of the court concerned, prevailing local
conditions and so on--what is called, the systemic
delays; (v) each and every delay does not necessarily
prejudice the accused. Some delays may indeed
work to his advantage. However, inordinately long
delay may be taken as presumptive proof of
prejudice. In this context, the fact of incarceration of
the accused will also be a relevant fact. The
prosecution should not be allowed to become a
persecution. But when does the prosecution become
persecution, again depends upon the facts of a given
case; (vi) ultimately, the court has to balance and
weigh several relevant factors--"balancing test" or
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"balancing process"--and determine in each case
whether the right to speedy trial has been denied;
(vii) ordinarily speaking, where the court comes to
the conclusion that the right to speedy trial of an
accused has been infringed, the charges or the
conviction, as the case may be, shall be quashed. But
this is not the only course open and having regard to
the nature of offence and other circumstances when
the court feels that quashing of proceedings cannot
be in the interest of justice, it is open to the court to
make appropriate orders, including fixing the period
for completion of trial; (viii) it is neither advisable
nor feasible to prescribe any outer time-limit for
conclusion of all criminal proceedings. In every case
of complaint of denial of right to speedy trial, it is
primarily for the prosecution to justify and explain
the delay. At the same time, it is the duty of the court
to weigh all the circumstances of a given case before
pronouncing upon the complaint; (ix) an objection
based on denial of right to speedy trial and for relief
on that account, should first be addressed to the
High Court. Even if the High Court entertains such a
plea, ordinarily it should not stay the proceedings,
except in a case of grave and exceptional nature.
Such proceedings in the High Court must, however,
be disposed of on a priority basis.
19.Notwithstanding elaborate enunciation of Article
21 of the Constitution in Abdul Rehman
Antulay[(1992) 1 SCC 225 : 1992 SCC (Cri) 93] and
rejection of the fervent plea of proponents of the
right to speedy trial for laying down time-limits as
bar beyond which a criminal trial shall not proceed,
pronouncements of this Court in "Common Cause",
A Registered Societyv. Union of India[(1996) 4 SCC
33 : 1996 SCC (Cri) 589] , "Common Cause", A
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Registered Societyv.Union of India[(1996) 6 SCC
775 : 1997 SCC (Cri) 42] , Raj Deo Sharmav. State
of Bihar[(1998) 7 SCC 507 : 1998 SCC (Cri) 1692]
and Raj Deo Sharma (II)v. State of Bihar[(1999) 7
SCC 604 : 1999 SCC (Cri) 1324] gave rise to some
confusion on the question whether an outer time-
limit for conclusion of criminal proceedings could
be prescribed whereafter the trial court would be
obliged to terminate the proceedings and necessarily
acquit or discharge the accused.
20.The confusion on the issue was set at rest by a
seven-Judge Bench of this Court in P. Ramachandra
Raov. State of Karnataka[(2002) 4 SCC 578 : 2002
SCC (Cri) 830] . Speaking for the majority, R.C.
Lahoti, J. (as His Lordship then was) while
affirming that the dictum inA.R. Antulay case[(1992)
1 SCC 225 : 1992 SCC (Cri) 93] is correct and still
holds the field and the propositions emerging from
Article 21 of the Constitution and expounding the
right to speedy trial laid down as guidelines in the
said case adequately take care of the right to speedy
trial, it was held that guidelines laid down in A.R.
Antulay case[(1992) 1 SCC 225 : 1992 SCC (Cri)
93] are not exhaustive but only illustrative. They are
not intended to operate as hard-and-fast rules or to
be applied like a straitjacket formula. Their
applicability would depend on the fact situation of
each case as it is difficult to foresee all situations
and no generalisation can be made.
21.It has also been held that it is neither advisable,
nor feasible, nor judicially permissible to draw or
prescribe an outer limit for conclusion of all criminal
proceedings. Nonetheless, the criminal courts should
exercise their available powers such as those under
Sections 309, 311 and 258 CrPC to effectuate the
Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020
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right to speedy trial. In appropriate cases,
jurisdiction of the High Court under Section 482
CrPC and Articles 226 and 227 of the Constitution
can be invoked seeking appropriate relief or suitable
directions. The outer limits or power of limitation
expounded in the aforenoted judgments were held
not to be in consonance with the legislative intent.
22.It is, therefore, well settled that the right to
speedy trial in all criminal prosecutions is an
inalienable right under Article 21 of the
Constitution. This right is applicable not only to the
actual proceedings in court but also includes within
its sweep the preceding police investigations as well.
The right to speedy trial extends equally to all
criminal prosecutions and is not confined to any
particular category of cases.
40. Right of timely justice has even been enumerated in
various sections of Cr.P.C. such as under Section 436, 167,
436A, 437(6) as well as under Section 468 of the Cr.P.C.
41. Learned Additional Advocate General has also impress
upon this Court that such problem can be effectively dealt with
by Trial Court by taking recourse of Section 299 Cr.P.C.
42. On plain reading of Section 299 Cr.P.C., which is with
regard to evidence in absence of accused and it is in two parts
fristly that when accused person has absconded and there is no
chance of his arrest or for putting in trial, the court competent
for trial, may examine the witnesses produced on behalf of the
prosecution and record their deposition and such deposition on
Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020
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arrest of such persons be given on evidence against him on
enquiry or trial for the offence of which he is charged if the
deponent is dead or incapable of giving evidence or he is not
found or cannot be procured on account of delay but the
essential requirement of recording of evidence is when it is
proved that accused person has absconded. Second part is that if
the offence is punishable with death or imprisonment for life,
the High Court or Sessions Judge may direct that the Magistrate
of first class shall hold enquiry and examine any witness, who
can give evidence concerning the offence and deposition may be
taken against any person but subsequently accused of the
offence and the deponent is dead or ungettable or resides out of
limits of India.
43. However, as discussed above, in the first part, condition
is that it has to be proved that accused person is absconding and
there is no immediate chance of arresting him and as such
unless, all the processes i.e. bailable warrants, non bailable
warrants and the process under Section 82 and 83 have legally
been exhausted by the police, the benefit of Section 299 (1)
cannot be taken by the Court when the persons has not been
chargesheeted and investigation is still going on against some
of the accused persons, the above provision will be of no help.
Whereas, the second clause is concerned relates to a case
Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020
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punishable with death or imprisonment for life, wherein, the
High Court or Sessions Judge may direct for recording of
deposition. However, unless, the chargesheet in above case, has
been submitted and the accused has been produced for
commencing the Trial and the case has been committed to the
court of sessions, the benefit of Section 299(2) Cr.P.C. cannot
be taken. Admittedely, the police can submit a chargesheet
showing him or her or them absconder also but prior to that all
the processes as discussed above have to be exhausted for
taking benefit of either clause (1) or clause (2) under Section
299 Cr.P.C. Learned Additional Advocate General has also cited
so many decisions with respect to implication of section 299
Cr.P.C. that evidence of witnesses can be recorded and that can
be looked into when presence of deponent is not possible due to
death or appearance is not possible in near future but in the
present scenario, that is of no help as conditions precedent for
taking benefit is not available in present situation.
44. Hon'ble the then Chief Justice, while passing the
direction, which has been referred to us by another Single
Bench of this Court, has not considered the eventuality as
discussed above or the available right of an accused of speedy
trial, as per the mandate of Hon'ble Apex Court and passed the
direction in general. No doubt, the intention is genuine. It is
Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020
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also well settled that the court has the power to interpret any
section or to issue direction but such direction or interpretation
shall be made in consonance with the provisions of law and not
beyond that and that also shall not be against the rights provided
under Constitution of India. At the same time, it is also settled
law that a Magistrate or Judge, even in absence of any specific
provisions, has to be allowed to act according to his wisdom
and to decide to act as per the situation prevailing in a particular
case.
45. In view of the above discussions, we hold that the
direction issued by the then Hon'ble the Chief Justice of this
Court in Criminal Miscellaneous No.39878 of 2014 cannot be
considered as a good law and is not binding on the Courts.
46. The matter is remitted back to the learned Single Judge
for considering the appeal on merit.
47. Before parting with the judgment in this case, we cannot
shut our eyes to certain ground realities, which has been noticed
by the then Hon'ble the Chief Justice that in several cases,
police while submitting charge-sheet against one or some of the
accused person keeping the case pending against others for
many years, leading to multiplicity of trial as well as putting the
witnesses in difficulty to appear twice or thrice before the court
Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020
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and also allowing the accused persons to tamper with the
evidence. Considering the same, we have called upon the State
to submit the data of cases, which were lodged under Section
304(B) of the Indian Penal Code, in which, chargesheet has
been submitted against one or some of the accused persons,
keeping the case pending against others. The data of such cases
submitted by the State, shows that large number of such cases
are pending for investigation against others, though the
chargesheet has been submitted against one or other accused
persons while accepting the power of police prescribed under
Section 173(8) Cr.P.C., such action of police of keeping the case
pending for long in such cases, certainly appears to be a tool in
the hands of police to misuse the same, to favour some persons
and also to allow the accused persons to tamper with the
evidence as well as putting the witnesses at disadvantageous
situation. It is the high time for our law makers to consider it
and try to curb the same in order to defeat the unscrupulous
elements and may put a time frame for submission of
chargesheet as is being done in the cases under Section 376 of
Indian Penal Code in order to prevent such illegal practice by
the police.
Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020
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(Per: HONOURABLE MR. JUSTICE AHSANUDDIN
AMANULLAH)
48. I have had the benefit of perusing the judgment penned by
my esteemed Brother Vinod Kumar Sinha, J. and I am in full
agreement with the views expressed therein.
49. However, I would like to supplement the same.
50. The reference to the Division Bench in the present case is
necessitated by Order dated 11- 07-2019 passed in the present
case by a learned Single Bench with regard to the direction(s)
issued earlier by another learned Single Bench vide Order dated
23-07-2015passed in Cr. Misc. No. 39878 of 2014. The operative portion of Order dated 23-07-2015 in Cr. Misc. No. 39878 of 2014 reads as under:
"2. Therefore, it is directed that in none of the cases where the offences punishable under section 304(B) of the Indian Penal Code is alleged, the concerned court shall permit the splitting of the cases, and unless all the accused are arrested or granted regular bail or anticipatory bail, it shall not be split at all. The trial shall be comprehensive, and the officer who deviates and acts other than this, shall be liable to be proceeded against."
51. The learned Single Bench has referred the matter to the Division Bench vide Order dated 11- 07-2019 in the following Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 49/56 terms:
"14. In the aforesaid background, with due respect, the finding so recorded by the Co-ordinate Bench in Cr. Misc. No. 39878 of 2014 is not at all found favour and needs reconsideration. As such, the matter is referred before the Division Bench for proper consideration and for that, office is directed to place after taking permission from Hon'ble the Chief Justice."
52. From the above, it is apparent that the reference concerns the blanket direction issued by Order dated 23-07-2015 in Cr. Misc. No. 39878 of 2014 to the effect that in none of the cases where an offence punishable under Section 304(B) of the Indian Penal Code, 1860 (hereinafter referred to as the 'IPC') is alleged, the concerned Court shall permit the splitting-up of the cases, and unless, all the accused are arrested or granted regular or anticipatory bail, the case shall not be split-up at all.
53. Thus, this specially constituted Division Bench is called upon only to look into the legal sustainability of such blanket all-encompassing direction issued by the learned Single Bench vide Order dated 23-07-2015 in Cr. Misc. No. 39878 of 2014.
54. My esteemed Brother has elaborately dealt with the relevant Sections of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') as well as the various Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 50/56 caselaws. It is not necessary for me to repeat the same. However, on the core issue of such blanket prohibition on the Trial Court not to go ahead with the trial by splitting-up the cases unless all the accused are arrested or granted regular or anticipatory bail, we find that such direction cannot withstand legal scrutiny upon the touchstone of the concerned Constitutional and Statutory provisions.
55. The Code, under Section 218, requires that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately. Similarly, Section 223 of the Code deals with persons who may be charged and tried together.
56. Once a person is before a Court against whom the police has submitted its Report by way of a chargesheet recommending his trial, the onus is on the Court concerned to proceed with the same without any undue delay. In any view of the matter, such proceeding with the trial cannot be delayed for reasons which are totally not attributable to and beyond the control of such accused, who himself/herself is before the Court and against whom the chargesheet stands filed.
57. Thus, the Court concerned, without further ado, has to apply its mind with regard to taking cognizance based on the Police Report of the offence(s), and proceed on the basis of Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 51/56 materials in such Report keeping in mind the sufficiency of evidence justifying trial against the accused. Accordingly, if the Police Report is final and does not indicate that any further investigation is continuing or pending, the matter is simple. The Court concerned can take a final view as the Police Report is final and no further investigation is either contemplated or continuing. In such case, the Court, after taking cognizance, may issue summons or warrant and commit the case to a Court of Sessions, as the case may be, in terms of the Code.
58. The catch comes when against one or more accused persons, a Report labelling them responsible for commission of the offence(s) is submitted vide chargesheet and it is also indicated that investigation is pending against the other named/unknown accused or otherwise. In such a situation, the Court has two options:
1. It may wait for the prosecution to submit further Report stating that no further investigation is pending or contemplated and taking into consideration all Reports submitted, proceed thereafter, OR,
2. Depending on the peculiar facts and circumstances of the case at hand, and after hearing learned counsel for the prosecution and the accused against Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 52/56 whom chargesheet is submitted but the prosecution has informed the Court that investigation is incomplete being in progress, the Court is not handicapped or bound not to proceed to take cognizance and move to the subsequent stage(s) as contemplated under the Code.
59. The above would necessarily mean that in one case, for an/some accused person(s), further proceedings shall continue through further stages, and concerning other accused, either named or unknown, the case shall not proceed till such time the police/prosecution submit further/ Final Report.
60. In such scenario, the Court concerned may bifurcate the case, 'splitting-up' as called in common parlance, by creating an extra record of the same case, called the 'split-up record' in common parlance, and proceed with the main original case against the person/persons before the Court against whom it has taken cognizance, in accordance with law.
61. The statutory provisions are also in consonance with Article 21 of the Constitution of India, which, as has been held in a catena of decisions by the Hon'ble Supreme Court, mandates speedy trial. Amidst this backdrop, the decision dated 23-07-2015 restraining the Courts from splitting-up the cases under Section 304(B) of the IPC cannot be said to valid or Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 53/56 sustainable in the eyes of the law. An accused before the Court has an inalienable right that matters be taken to their logical conclusion qua him as soon as possible. One accused cannot be made to bear the brunt of waiting or suffer on account of the prosecution failing to complete investigation and/or bring the other accused before the Court or the accused themselves evading the process of law. To push upon the shoulders of an accused, an extra burden of this kind, would negate the cherished Constitutional goal of fairness and justice.
62. In light of the discussions made hereinabove, in conjunction with the judgment rendered by my learned Brother, and the precedents available, it is clear that the discretion lies with the Trial Court concerned to decide on splitting-up. A blanket fetter cannot be placed on exercise of such discretion by the Court concerned. It is further obvious, that such discretion is to be judicially exercised, based on the facts and circumstances of each case, coupled with other mitigating factors, to be looked into by the Court concerned. This, by itself, creates a natural and in-built mechanism to safeguard against any manipulative or dilatory tactics by other coaccused or even the investigating agencies, as all possible factors have to be considered before splitting-up a case by the Court concerned. Such discretion given to the Court concerned under the Code is both reasonable Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 54/56 and practical, and does not suffer from the vice of constitutional infirmity.
63. Even otherwise, the direction to not split-up a case by the learned Single Bench vide Order dated 23-07-2015 in Cr. Misc. No. 39878 of 2014 is in the specific background of that particular case, the relevant observations being:
"One of the contentions advanced by the learned counsel for the petitioners is that the case against the petitioners was split up, and in S.T. No. 124 of 2015 pending in the court of Additional District Judge IInd, Naugachia, the prosecution witness has turned hostile. Recently, this Court has come across the serious irregularities that are being committed, particularly in cases, where the offence punishable under section 304(B) is alleged. The modus operandi is that one of the accused, by and large, husband of the deceased, surrenders before the court, and as regards the others, the case is split, and even while the rest of the accused are at large, the trial of the case of only one of the accused is taken up. Witnesses are managed and once an acquittal is obtained in the case against the husband of the deceased, the same is cited as Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 55/56 basis for granting anticipatory bail against the other accused. This procedure is liable to be deprecated. It is with the collusion of the officials in the Police Department, and in some cases the undue haste exhibited by the judicial officers, that such tendencies are taking place."
64. With due respect, what has been recorded by the learned Single Bench in Cr. Misc. No. 39878 of 2014, with regard to misuse/abuse of the provisions, either by the accused or by the police, does not justify issuance of a blanket prohibition on splitting-up of cases, impacting all pending cases in the subordinate Courts in the State of Bihar, and is clearly not in accordance with law.
65. For reasons aforesaid, the direction passed by the learned Single Bench vide Order dated 23-07-2015 in Cr. Misc. No. 39878 of 2014 is held to be unsustainable, being without correct appreciation of the Constitutional and Statutory provisions governing the field. Consequent thereupon, the said direction cannot be and is not binding on the Courts concerned.
66. The Reference stands answered accordingly. The matter be now placed before an appropriate Bench for consideration on merits, after due permission of Hon'ble the Chief Justice.
67. The learned Registrar General is requested to ensure that Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 56/56 copies of the present Judgment are circulated electronically to the District and Sessions Judges and Superintendents of Police in the State of Bihar for onward transmission to all concerned officers. Copies may also be sent to the Additional Chief Secretary (Department of Home) and Secretary-cum-Legal Remembrancer (Department of Law), Government of Bihar; Director General of Police, Bihar as also Director, Bihar Judicial Academy, Patna.
68. Before finally concluding, the court would record its deep appreciation for the assistance rendered by learned Counsels specially the Amicus Curiae, Mr. Kanhaiya Prasad Singh, Senior Advocate and Mr. Ajay Kumar Thakur, Advocate.
(Ahsanuddin Amanullah, J) ( Vinod Kumar Sinha, J) sunilkumar/-
AFR/NAFR AFR CAV DATE 24.09.2019 Uploading Date 20.04.2020 Transmission Date 20.04.2020