2020 Supreme(Pat) 349

IN THE HIGH COURT OF JUDICATURE AT PATNA
AHSANUDDIN AMANULLAH, VINOD KUMAR SINHA, JJ.
Aman Kumar Son of Kusheshwar Mahto - Appellant
Versus
The State of Bihar - Respondent
CRIMINAL APPEAL (SJ) No.1827 of 2017
Decided On : 20-04-2020

Headnote:

Criminal Procedure Code, 1973 – Sections 173(8), 190, 193 and 319 – Further investigation and cognizance of offence – There is no restriction to Police to submit charge-sheet against one or some of accused or to keep case pending against others – Police has power to do further investigation and submit further report before Magistrate under Section 173(8) Cr.P.C. – When police submits a report against one accused person, keeping investigation pending against others, Magistrate on perusal of materials available in 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 – Even if accused has not been charge-sheeted by police and case was kept pending by police for investigation, Court has enough power to take cognizance against him under various provisions and to issue process against him during trial, if materials are found. (Paras 29, 30 and 31)

Criminal Procedure Code, 1973 – Section 317(2) – Splitting up of records and splitting up of trial are two different terms – Separate trial against an accused is a rule, whereas, joint trial is an exception – There is provision of splitting up of trial under Section 317(2) Cr.P.C. (Paras 33 and 36)

Indian Penal Code, 1860 – Section 304B – Criminal Procedure Code, 1973 – Section 299 – Dowry death – Splitting up of trial of accused persons – When accused person has absconded and there is no chance of his arrest or for putting in trial, court competent for trial, may examine witnesses produced on behalf of prosecution and record their deposition and such deposition on arrest of such persons be given on evidence against him on enquiry or trial for offence of which he is charged if deponent is dead or incapable of giving evidence or he is not found or cannot be procured on account of delay but essential requirement of recording of evidence is when it is proved that accused person has absconded – Court has power to interpret any section or to issue direction but such direction or interpretation shall be made in consonance with provisions of law and not beyond that and that also shall not be against rights provided under Constitution of India – 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 situation prevailing in a particular case. (Paras 33 and 36)

Per Ahsanuddin Amanullah, J. (Assenting View)

Indian Penal Code, 1860 – Section 304B – Criminal Procedure Code, 1973 – Sections 218, 223 and 317(2) – Dowry death – Splitting up of trial of accused persons – Once a person is before a Court against whom police has submitted its Report by way of a charge-sheet recommending his trial, onus is on Court concerned to proceed with same without any undue delay – Such proceeding with trial cannot be delayed for reasons which are totally not attributable to and beyond control of such accused who himself is before Court and against whom charge-sheet stands filed – Court concerned, without further ado, has to apply its mind with regard to taking cognizance based on Police Report of offence(s), and proceed on the basis of materials in such report keeping in mind sufficiency of evidence justifying trial against accused – If Police Report is final and does not indicate that any further investigation is continuing or pending, matter is simple – Court concerned can take a final view as Police Report is final and no further investigation is either contemplated or continuing – In such case, Court, after taking cognizance, may issue summons or warrant and commit case to a Court of Sessions in terms of Code – In one case, for an/some accused person(s), further proceedings shall continue through further stages, and concerning other accused, either named or unknown, case shall not proceed till such time police/prosecution submit further/Final Report – In such scenario, Court concerned may bifurcate case by creating an extra record of same case and proceed with main original case against person/persons before Court against whom it has taken cognizance, in accordance with law. (Paras 56 to 59)

Constitution of India – Article 21 – Right to speedy trial – An accused before Court has inalienable right that matters be taken to their logical conclusion qua him as soon as possible – One accused cannot be made to bear brunt of waiting or suffer on account of prosecution failing to complete investigation and/or bring other accused before Court or the accused themselves evading process of law – To push upon shoulders of an accused, an extra burden of this kind, would negate cherished Constitutional goal of fairness and justice. (Para 61)

Criminal Procedure Code, 1973 – Section 317(2) – Splitting up of trial – Discretion lies with Trial Court concerned to decide on splitting-up – A blanket fetter cannot be placed on exercise of such discretion by Court concerned – Such discretion is to be judicially exercised, based on facts and circumstances of each case, coupled with other mitigating factors, to be looked into by Court concerned – This, by itself, creates a natural and in-built mechanism to safeguard against any manipulative or dilatory tactics by other co-accused or even investigating agencies, as all possible factors have to be considered before splitting-up a case by Court concerned – Such discretion given to Court concerned under the Code is both reasonable and practical, and does not suffer from vice of constitutional infirmity. (Para 62)