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

...... 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 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 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 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 .

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 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 .

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 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