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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 2/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 3/56
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. Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 4/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 5/56
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, Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 6/56
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- Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 7/56
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. Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 8/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 9/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 10/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 11/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 12/56
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:- Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 13/56
(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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 14/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 15/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 16/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 17/56
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:- Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 18/56
“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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 19/56
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, Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 20/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 21/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 22/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 23/56
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. Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 24/56
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, Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 25/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 26/56
(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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 27/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 28/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 29/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 30/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 31/56
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. Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 32/56
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; Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 33/56
(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." Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 34/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 35/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 36/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 37/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 38/56
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: Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 39/56
“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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 40/56
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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 41/56
“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 Patna High Court CR. APP (SJ) No.1827 of 2017 dt.20-04-2020 42/56
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 43/56
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 44/56
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 45/56
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 46/56
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 47/56
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 48/56
(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
23-07-2015 passed 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