Patna High Court
State Of Bihar vs Simranjit Singh on 11 November, 1986
Equivalent citations: 1987CRILJ999
Author: N.P. Singh
Bench: N.P. Singh
ORDER N.P. Singh, J.
1. This application Under Section 482 of the Cr. P.C. has been filed on behalf of the State of Bihar, for quashing an order passed by the Special Judge, separating the trial of the accused-opposite party for offences Under Sections 165-A and 165-A read with Section 34 of the Penal Code from offences Under Sections 121-A, 124-A and 120-B of the Penal Code and directing that offences Under Sections 121-A, 124-A and 120-B be separately tried.
2. It is the case of the prosecution that in the night of 29-11-1984 the Security Police Patrol on duty near Jogbani Check-Post, noticed a jeep speeding towards Indo Nepal border. Apprehending that criminals or ami social elements might be inside the jeep, a signal was given to stop. When the jeep stopped five Sikhs were sitting with their faces covered. Enquiries were made about their identification but when none of them divulged their names and the purpose of their going to Nepal they were taken to Jogbani Check-Post. One of the officers on duty identified one of them as Sardar Simranjit Singh Mann, Opposite Party No. 1, who had been dismissed from the Indian Police Service. Ah order of preventive detention under the National Security Act had been made against him on 28th Aug. 1984, but the detention order could not be served as he had gone 'underground'. The Special Branch, Patna had informed the officers posted at the Check-Post that the passport of aforesaid Sardar Simranjit Singh Mann dt. 1-1-1980 had been confiscated and his movement outside India had been banned. The five occupants in the jeep were searched us also their luggage. As a result of the search, a number of documents were seized. From the person of Simranjit Singh Mann, a copy of letter dt. 2nd June, 1984 addressed by Simranjit Singh Mann to the Chief Secretary, Punjab, a copy of the letter of resignation dt. 18th June, 1984 of Simranjit Singh Mann, the passport of Simranjit Singh Mann, two photographs of Jarnail Singh Bhindhrawale, a letter from Simranjit Singh Mann to Birbal ¦ Nath, a letter addressed to one Arun Kumar Agarwal asking him to help the bearer of the letter and an anonymous letter warning Simranjit Singh Mann of likely attempts to liquidate him and advising him to leave the country were seized. It is said that during search, a booklet in English 'Simranjit Singh Mann, I.P.S. likely to meet the fate of S. Kapur Singh, I.C.S.', written by Narendra Singh Bullers, containing anti Government and Sikh separatism propaganda and one register in which Shri Simranjit Singh Mann is said to have written the history of Amritsar, in which Indian Army has been described as "enemy" on account of operation blue star and extremist Sikhs have been described as 'nationalists' and 'defenders' of the mother land, are said to have been recovered, apart from other documents. From accused Jagpal Singh's suitcase, a booklet in English entitled 'Sikhs and Foreign Affairs' and a combined road map of India, Pakistan, Bangladesh, ShriLanka and Nepal were seized. As the documents were connected with anti national activities the accused-opposite party were arrested. After arrest one of the accused-opposite party Kamikar Singh offered a bribe of Rs. 25,000/- for allowing them to proceed to Nepal. It is alleged that thereafter aforesaid Kamikar Singh opened a bag lying in the jeep and offered a higher amount. The bag was seized and from that Rs. 62,722/- was recovered.
2A. Cognizance had been taken by the Special Judge on the basis of charge-sheet in accordance with the provisions of the Criminal Law Amendment Act, 1952, not only of offences Under Section 165-A read with Section 34 of the Penal Code but also of offences Under Sections 121-A, 124-A, 153-A, 153-B, 505 and 120B of the Penal Code. But at the stage of framing charges under the aforesaid sections, a prayer was made on behalf of the accused persons that the trial Under Sections 165-A and 165-A read with Section 34 of the Penal Code be separated from the trial for offences Under Sections 121-A, 124-A and 120-B of the Penal Code as those offences had not been committed in course of same transaction.
3. The Special Public Prosecutor purporting to act on behalf of the State filed a petition saying that there was sufficient material for framing charge Under Section 165-A of the Indian Penal Code against the accused Kamikar Singh and a charge Under Section 165-A read with Section 34 of the Penal Code against the remaining four accused-opposite party. It was further stated in the said petition that although there was also evidence to justify framing of the charges Under Sections 121 -A, 124A, 153-A, 153-B, 505 and 120-B of the Penal Code against all the accused persons, but as the offences Under Sections 165-A and 165-A read with Section 34 of the Penal Code were not committed in course of the same transaction with the offences Under Sections 121-A, 124-A, 120-B and others, the accused persons be tried separately for offences Under Sections 121-A, 124-A, 153-A, 153-B and 505 read with Section 120B. The Special Judge, by his impugned order dated 9-8-86, upheld the stand taken on behalf of the accused persons as well as by the Special Public Prosecutor on behalf of the State that all the offences has not been committed in the course of same transaction and, therefore, the trial for the offences Under Sections 165-A and 165-A read with Section 34 be separated from other offences. The learned Judge further held that he was not competent to try offences Under Sections 121-A and 124-A etc. as the case had not been committed to the Court of Session. In regard to those offences the learned Judge directed that the records be sent back to the District and Sessions Judge, Purnea for proceeding further in accordance with law.
4. In the present application, the stand of the State of Bihar is that the Special Public Prosecutor under misapprehension of the legal position and without instruction from the State filed the petition aforesaid for separation of the trial and as such the State is not bound by the admission made by the Special Public Prosecutor before the learned Special Judge. In this connection a letter addressed by the Special Public Prosecutor to the Inspector General of Police, C.I.D., Bihar, Patna has been annexed. In that letter, the Special Public Prosecutor has stated that on a second thought, he was convinced that the stand taken by him before the Special Judge was erroneous in law. He has further stated that he had taken that stand without any instruction from the State Government in that respect.
5. As such the first question which has to be considered is as to whether the admission of the Special Public Prosecutor at the stage of the framing of the charge that offences Under Sections 121-A, 124-A and 120-B of the Penal Code cannot be tried by the Special Judge, as they had not been committed in the same transaction, was binding on the State of Bihar. This aspect of the matter has been considered from time to time by different Courts. In one of the earliest judgments of the Privy Council in the case of Maharani Beni Pershad Koeri v. Dudh Nath Roy (1899) 26 Ind App 216, in respect of an admission made by the counsel of one of the parties in the Court below it was observed as follows:
The High Court seem to have understood counsel to have admitted that receipt of rent by the Maharajah operated as a confirmation of the pottah, and the only question, therefore, which remained was the construction of the pottah. In the opinion of their Lordships this admission, if correctly understood, was erroneous in point of law, and does not preclude the counsel for the appellant in this appeal from claiming his client's legal rights.
In the case of Banarsi Das v. Kanshi Ram , it was pointed out as follows:
The admission, however, would bind him only in so far as facts are concerned but not in so far as it relates to a question of law.
A Bench of this Court in the case of D.P. Srivastava v. State as follows:
But even if it be taken that the point was conceded by the Government Pleader, it was open to the defendants to show that the concession was made under some misapprehension, as pointed out before the lower appellate Court. Besides, it was not in the nature of a concession on a point of fact, but, at best, an opinion, which the Government Pleader formed in his mind from the documents on the record. Such an opinion can, by no means, be binding upon the defendants like an admission of their counsel on a point of fact. The appellant's case, therefore, does not get any support from the alleged concession of the Government Pleader.
In the case of Shiv Singh v. S.T.A. Tribunal it was said as follows:
Obviously, therefore, it was an admission on a question of law, and it is well settled that an erroneous admission on a question of law made by a party or his agent is not binding and it does not preclude the party from making an assertion contrary to the admission and from seeking the relief to which on a proper construction of the law he is entitled.
Punjabai Bhilasa v. Bhagvandas Kisandas AIR 1929 Bom 89 was a case in which it had been conceded by the Pleader of the party in question in the Court below that Section 70 of the Contract Act had no application. In respect of that admission the Bombay High Court remarked that a pleader's admission on a question of law is not binding on his client and amounts to no more than his view that the question is unarguable.
6. Dr. Wadehra, the learned Counsel appearing for the accused-opposite party, did not contest the legal position that an admission by a counsel on the question of law is not binding on the party to the proceeding and can be challenged before the superior Court. He, however, submitted that in the facts and circumstances of the present case, the admission by the Special Public Prosecutor, on the question as to whether the different offences had been committed, in course of the same transaction, is not a pure question of law but a mixed question of law and fact as such the petitioner is bound by that admission. In my view, it is difficult to accept this contention. Whenever any admission is made even on a question of law by a counsel in a proceeding such admission has a nexus and is related to the facts of that particular case. But that will not make it an admission on question of fact. In the instant case, whether the series of acts by which several offences are alleged to have been committed by the accused persons, are so connected together, as to form the same transaction, is a question of law which was to be decided by the Court. Merely because that question has to be decided on taking into consideration the allegation in respect of different offences, shall not reduce that question into one of fact. In my view, the petitioner can urge that the Special Judge took an erroneous view, on the basis of a concession wrongly made on question of law by the Special Public Prosecutor.
7. Coming on the merit of the issue, in view of Section 218(1), for different offences, separate charges should be framed and every such charge has to be tried separately. Relevant part of Section 218 is as follows:
218.(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:
(2) Nothing in Sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223.
Because of Sub-section (2) of Section 218, the procedure prescribed Under Section 220, remains unaffected by Sub-section (1) of Section 218. Section 220(1) is as follows:
220. (1) If, in one series of acts so connected together as to form the same transaction,more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence.
In view of Sub-section (1) of Section 220, if more offences than one are committed by the same person or persons, by series of acts so connected together as to form the same transaction, they may be charged and tried at one trial for all such offences.
8. In the case of State of Andhra Pradesh v. Ganeswara Rao , the Supreme Court examined the scope of the expression "same transaction" in connection with joint trial:
What is meant by "same transaction" is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction.
9. On behalf of the petitioner it was pointed out that from a bare reference to the First Information Report, the charge-sheet and the documents seized at the Check-Post from the accused persons it is apparent that the offence Under Section 165-A by offering bribe to the officials at the Check-Post was committed to enable the accused persons to proceed to the territory of Nepal, which will amount to an offence in continuity of the main offence of conspiracy to wage war against the Government of India and to create hatred and dissatisfaction towards the Government established by law in India, which are punishable Under Sections 121-A and 124-A. It was pointed out that even the Supreme Court has come to the conclusion that a prima facie case of conspiracy to commit offences Under Sections 121-A and 124-A has been made out against the accused persons on the materials collected during investigation. Reference was made in this connection to the judgment of the Supreme Court in Writ Petn. (Criminal) No. 137 of 1986 with Special Leave Petn. (Criminal) No. 577 of 1986 (reported in 1987 Cri LJ157) which had been filed before the Supreme Court on behalf of the accused-opposite party for quashing of the criminal proceeding which is pending against them before the Special Judge and for grant of bail in the present case. While considering the question of quashing of the proceeding, the Supreme Court observed as follows:
What do we have here? Five persons were seen in a jeep going towards the Indo-Nepal border, obviously in an attempt to cross the border. The border patrol thought that their movements were suspicious. Their answers to questions regarding their names and parentage were not satisfactory. One of them was identified as a police officer, who had been dismissed from service and who was wanted in connection with an order of detention under the National Security Act. In the light of contemporary history and in the light of the documents found in the possession of the accused, (to the contents of one of which we will presently refer), the police party suspected that they were crossing the border and going to Nepal in the course of a conspiracy to commit the offences of waging war, etc. Their suspicion must have been strengthened by the offer of a bribe to be allowed to cross the border. The police officer whom they apprehended, though apparently a Punjabi, had previously served in the State of Maharashtra while the others were from Calcutta. That several persons from different parts of the country with no apparent connection with each other except that they appeared to belong to the same Community were together trying to cross the country's frontier, apparently made the police suspect, in the context of the political situation in the country, that they belonged to some group of persons of that community who were campaigning against the-Government, call it what you will, agitating or waging war, a suspicion which must have been further influenced by the letter found in their possession. It must be that these circumstances may lead to no more than suspicion that the suspicion was enough to justify an investigation by the Police..... Simranjit Singh Mann, as a highly educated person and as a highly placed officer, was bound to emerge, on his dismissal from service, as a hero and martyr in the eyes of a certain section of the people. His statements would be accepted by them as gospel truth and pronouncements of the oracle on the basis of which they should act. If the letter remained addressed to the President and not publicised, it would cause little or no harm. But the letter though addressed to the President was clearly meant to be what is called an 'open letter' to be given wide publicity. Indeed its full text had been published in the daily press and the accused themselves had such a copy in their possession when they were stopped and searched. We do not know whether any of the accused was responsible for the publicity and whether it was in pursuance of the conspiracy. It may be that Simranjit Singh Mann meant no harm and that the contents of the letter were no more than the vehement outpourings of a bitter, and distressed but honest mind in the Zealots's jargon. On the other hand it is possible that the letter was designed to become or became an instrument of faith and used as such. All these are matters for evidence at the trial..............Shri Jethmalani urged that in (he case of the accused persons other than Simranjit Singh Mann, there was nothing whatever to connect them with the offences Under Sections 121-A, 124-A, etc. It was said that they were not even the authors of any of the letters which were found in the course of the search. We do not want to express any opinion except to say that authorship of seditious material alone is not the gist of any of the offences. Distribution or circulation of seditious material may also be sufficient on the facts and circumstances of a case. To act as a courier is some times enough in a case of conspiracy. It is also not necessary that a person should be a participant in a conspiracy from start to finish. Conspirators may appear and disappear from stage to stage in the course of a conspiracy. We wish to say no more on the- submission of the learned Counsel. Whether such evidence as may now be available in the record to justify the framing of charges is a matter for the trial Court and not for us. We refrain from expressing any opinion.
10. In the present application, whether-fR prima facie case has been made out for framing charges Under Sections 121-A, 124-A and 120-B of the Penal Code is not to be examined because the Special Judge has not come to the conclusion that there was no material to frame charges for offences aforesaid. In this application the only question which has to be answered is as to whether the offence Under Sections 165-A and 165-A read with Section 34 i.e. offer of bribe to the officials at the Check-Post was an independent offence in the sense being a separate transaction or it was connected with the series of acts constituting offences Under Sections 121-A, 124-A and 120-B. In other words, whether the act of offering bribe was a part of the main conspiracy for committing offences Under Sections 121-A and 124-A. In my view, in the facts and circumstances of the case, the act of offering bribe to the officials at the Check-Post cannot be treated as an independent transaction. On the allegations made, the bribe was offered only to enable the accused persons f o get themselves released so that they may jursue the main part of the conspiracy to leave the territory of India and to proceed to Nepal. If accused persons had not been arrested, there was no occasion to offer bribe and to commit an offence Under Section 165-A read with Section 34 of the Penal Code. As such it has to be held that the act of offering bribe was connected with the other alleged activities of the accused persons so as to form the same transaction.
11. On behalf of the accused persons it was pointed out that even in cases of conspiracy if the offences have been independently committed, they shall not be held to have been committed in the same transaction. In this connection reliance was placed on the case of Ram Lai Narang v. State . In that case a conspiracy case had been initiated against certain accused persons on the ground that they had replaced certain articles of great antiquity, beauty and value by fake ones by cheating the Court. Subsequent investigation revealed that still more persons were involved and the object was to export the articles of antiquity illegally to foreign countries and in fact the genuine articles were recovered from a foreign country. For exporting the same articles of antiquity to a foreign country a second case of conspiracy was initiated in a different Court. On the facts of that particular case, it was held that two conspiracies were in substance and in truth separate and not one and as such there could have been two investigations and cognizance could have been taken by different Courts. The facts of that case were different. Moreover the question aforesaid had not been considered in connection with framing of the charge or joint trial but in connection with quashing of the investigation.
12. The counsel for the accused-opposite party then submitted that even if it is held for the purpose of framing charges that all the offences had been committed in the same transaction, still it was not obligatory on the Court below to try all the offences at the same trial, because $.220(1) is only an enabling provision. Reliance was placed on the judgment of the Supreme Court in the case of V. N. Kamdar v. Municipal Corporation, Delhi where while construing the scope of Section 20-A of the Prevention of Food Adulteration Act which prescribes that a Court during trial of an offence under the Act aforesaid alleged to have been committed by any person, can also proceed against the manufacturer, distributor or dealer as well, it was observed as follows:
The Section is an enabling one. There is nothing mandatory about it. It is left to the discretion of the Magistrate whether, in a particular case, having regard to the evidence adduced, it is necessary, in the interest of justice, to implead the manufacturer, distributor or dealer as the case may be.
Reference was also made to the case of Ranchhod Lai v. State of M.P. where it was pointed out in respect of Section 222 of the old Code (Sectionm 212(2) of the new Code) that it was an exception to meet a certain contingency and was not the normal rule with respect to framing of a charge in cases of criminal breach of trust. It was observed in respect of Section 234 of the old Code (Section 219 of the new Code) that it was an enabling provision and exception to the general rule as contained in Section 233 of the old Code (Section 219 of the new Code). Reliance was also placed on behalf of the accused-opposite party on the case of Chhutanni v. State of U.P. where it was pointed out as follows:
There is no illegality or irregularity in holding separate trials of the same accused persons even in cases where a single trial could have been permissible under the Code of Criminal Procedure.
13. Although Section 21(1) of the Code says that for distinct offences there should be separate charges and such charges should be tried separately, but Section 220(1) vests power in the Court to try different offences together if they have been committed in the same transaction. The Court has to be all the more cautious and circumspect, while trying an offence of conspiracy, in determining whether the different offences had been committed by the same accused persons in the same transaction and as to whether they should be tried together. In the case of Babulal v. Emperor AIR 1938 PC 130 : 1938-39 Cri LJ 452, while examining Section 239(d) of the Old Code (Section 223(d) of the New Code), it was observed "The one and only limitation there is that the accusation should be of offences "committed in the course of the same transaction". Whatever scope of connotation may be included in the words "the same transaction", it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a circumstance which makes the act of one the act of each and all the conspirators) these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy, serve to unify the acts done in pursuance of it." The Supreme Court in the case of K. Kunbahammad v. State of Madras pointed out:
It is true that, in framing the charge against more persons than one and directing their joint trial, Courts should carefully examine the nature of the accusation; but if they are satisfied that prima facie the accusation made shows that several persons are charged of different offences and that the said offences prima facie appear to have been committed in the course of the same transaction, their joint trial can and should be ordered. This question was fully considered by the Privy Council in the case of Babulal Choukhani v. Emperor 65 Ind App 158 : AIR 1938 PC 130 : 1938-39 Cri LJ 452 and it has been held that the point of time in the proceedings at which it is to be determined whether the condition that the offences alleged had been committed in the course of the same transaction, has been fulfilled or not is at the time when the accusation is made and not when the trial is concluded and the result known. Therefore, we cannot accept Mr. Purshottam's argument that the framing of the charge of conspiracy was not justified and that the trial of the appellant jointly along with the other persons was either improper or illegal.
(emphasis added).
14. In the case of Purshottamdas v. State of W.B. the desirability of the trial of an offence of criminal conspiracy and all the overt acts committed in pursuance of it was impressed.In that connection it was pointed out as follows:
If some of the overt acts were committed outside the jurisdiction of the Court trying the offence of criminal conspiracy and if the law be that such overt acts could not be tried by that Court, it would mean that either the prosecution is forced to give up its right of prosecuting those accused for the commission of those overt acts or that both the prosecution and the accused are put to unnecessary trouble inasmuch as the prosecution will have to produce the same evidence a second time and the accused will have to test the credibility of that evidence a second time. The time of another Court will be again spent a second time in determining the same question. There would be the risk of the second Court coming to a different conclusion from that of the first Court. It may also be possible to urge in the second Court that it is not competent to come to a different conclusion.
The same view was reiterated in the case of L. N. Mukherjee v. State of Madras . In my view, once it is held for the purpose of framing charges that offence Under Section 165-A read with Section 34 were committed in same transaction with offence Under Sections 121-A, 124-Aandl20B of the Penal Code such offences should be tried together which shall be also in the interest of the accused persons. It need not be pointed out that if separate trials are held it is bound to cause harassment not only to the prosecution but also to the accused persons inasmuch as the prosecution has to examine many witnesses again in the second trial and they have to be cross-examined again by the accused. The matter would have been different if the act of offering bribe to the officials at the Check-Post had been held to be an independent act of one or the other. But once the alleged act of offering bribe is held to be part of the conspiracy to enable the accused persons to leave the territory of India and to cross to Nepal, evidence in respect of offering bribe after arrest, has to be produced at the second trial for offences Under Sections 121-A, 124-A and 120-B. The learned Counsel for the accused could not point out as to how that will be in the interest of the accused persons.
15. Coming to the question as to whether offences Under Sections 121-A and 124-A can be tried without an order of commitment, reference can be made to Section 7(3) and Section 8(1) of the Criminal Law Amendment Act aforesaid. Sub-section (1) of Section 8 vests power in the Special Judge to take cognizance of offences without the accused being committed to him for trial. In view of Sub-section (3) of Section 8 of the Act, the Special Judge shall be deemed to be a Court of Session. Sub-section (3) of Section 7 of the Act provides that while trying an offence Under Section 165-A, the Special Judge may try . any other offence if the accused can be charged for the same at the same trial. Reading Section 7(3) along with Section 8(1), the Special Judge can try for offences even Under Sections 121-A and 124-A without the accused persons being committed to him for trial for the said offences. The learned Counsel, who has appeared on behalf of the accused-opposite party, did not contest this position and he admitted that if the offence Under Section 165-A is > held to have been committed in the same 1 transaction with offences Under Sections 121-A and 124-A read with Section 120,- then the Special Judge can try those offences without there being an order of commitment in view of the specific provisions, mentioned above.
16. On behalf of the accused persons the very maintainability of this application was also challenged on the ground that this Court should not exercise its inherent power Under Section 482 of the Code because that power has to be exercised to prevent abuse of the process of any Court or to secure ends of justice. In this connection reference was made to the judgment of the Supreme Court in the cases of V. C. Shukla v. State and Nand Lai Poddar v. State of Bihar 1979 BBCJ 132 where limitation of entertaining application Under Section 397(2) and Section 482 of the Code against an interlocutory order was impressed and it was pointed out that an application Under Section 482 should not be entertained to circumvent the bar prescribed Under Section 397(2) of the Code. In the case of V.C. Shukla v. State (supra), it was observed as follows:
Applying this test to the present case it would follow that if the Special Judge did not frame a charge and discharged the accused, the proceedings would no doubt terminate but if it framed charges against the accused the proceeding would continue. Unless, therefore, an order results in a final termination of the proceeding in any way it is decided, the order is of an interlocutory nature.
In the instant case, the Special Judge has refused to frame charges Under Sections 121-A, 124-A an 120-B of the Penal Code on the graound that those offences had not been committed in the course of same transaction; as such the order which is under challenge, in my view, cannot be held to be an interlocutory in its strict sense. Apart from that, in the case of Madhu Limaye v. State of Maharashtra , the scope of Section 397(2) of the Code vis-a-vis Section 482 was considered and it was observed as follows:
In our opinion, a happy solution of this problem would be to say that the bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High, Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court.
In the facts and circumstances of the present case, in my view, the quashing of the order impugned will prevent the abuse of the process of the Court and shall also secure the ends of justice. Even after repeated queries the learned Counsel for the accused-opposite party could not point out as to how the accused persons are likely to be prejudiced if they are tried for offences including offences Under Sections 121-A, 124-A and 120-B or they shall be benefited in any manner if they are tried separately for offences Under Sections 121-A, 124A and 120-B. If the order of the Special Judge is upheld, as already mentioned above, it is likely to cause prejudice to the accused persons, inasmuch as they shall have to face two separate trials, although many evidence in the two trials may be common. Even if the offence Under Section 165-A read with Section 34 is tried separately, the prosecution has to lead the same evidence in connection with the charge of conspiracy alleged to have been entered into between the accused persons in respect of offences Under Sections 121-A and 124-A because, according to the prosecution, the bribe had been offered to allow the accused persons to leave the territory of India and to proceed to Nepal. In my view, in the facts and circumstances of the present case, the order separating the trial will lead to abuse of the process of the Court and for ends of justice it should be quashed.
17. This application is, accordingly, I allowed and the part of the impugned order ' separating the trial of offences Under Sections 121 A,124-A and 120-B etc. is quashed and the learned Special Judge is directed to proceed with the trial as early as possible and to conclude the same at an early date.
18. On behalf of the accused persons a grievance was made that they are not being provided with day to day facilities which are admissible to a prisoner. Although that grievance cannot be examined in this application but I direct the learned Special Judge as well as the jail authorities to provide all facilities to the accused persons which are admissible under the Jail Manual and the directions issued by the Supreme Court from time to time in respect of the prisoners who are in custody in connection with offences with which the accused persons have been charged in the present case. It will be open to the accused persons to move the learned Special Judge for any appropriate direction in that respect which shall be issued in accordance with law and shall be complied by the jail authorities.
Yadunathsharan Singh, J.
19. I agree.