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High Court Of Calcutta
Sujit Barman Roy
ALLAUDDIN SHAH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. R. 1351 Of 1999
Decided On : 09/28/1999
CRIMINAL PROCEDURE CODE - SECTION 317, 223 - SPLITTING UP OF TRIAL - DISCRETION OF TRIAL COURT - KEY LEGAL PRINCIPLE : Trial court has the discretion to split up a case against several accused even before framing of charges, if circumstances justify.
Fact of the Case:
Petitioner challenged an order of the trial court splitting up the case against him and another accused from that of the other accused in a drug-related case, arguing that the trial court lacked jurisdiction to do so.
Finding of the Court:
The court held that section 317 of the Code of Criminal Procedure (CrPC) is not the only provision dealing with the question of joint/separate trial, and that section 223 CrPC gives the trial court discretion to try accused persons either jointly or separately even if the circumstances enumerated therein exist in a particular case.
Issues: 1. Whether the trial court had jurisdiction to split up the case against the petitioner and another accused from that of the other accused. 2. Whether an order for separate trial can be made only at the time of framing of charges.
Ratio Decidendi: 1. The court held that the trial court had jurisdiction to pass the impugned order, as section 223 CrPC gives the trial court discretion to try accused persons either jointly or separately even if the circumstances enumerated therein exist in a particular case. 2. The court held that there is nothing in law or in the decision of the apex court in Ganeswara Rao that such an order for several trial can be made only at the time of framing of charge.
Final Decision: The court dismissed the petition, holding that the trial court had wisely exercised its judicial discretion vested in it by or under section 323 of the Code.
( 1 ) BY this application petitioner seeks to challenge the order dated 25. 6. 99 passed by the learned Special Judge (N. D. P. S. Act), Howrah in T. R. No. 8 of 1998 by which learned trial court split up the case of the petitioner and another from the case of other accused and directed separate trial of all the accused except the petitioner and another.
( 2 ) CASE in short is that the petitioner and others are accused in the aforementioned case for alleged commission of various offences under Narcotic Drug and Psychotrophic Substances Act. When the petitioner and other accused persons were in custody in connection with the aforesaid case, LIC Town Police Station at Balasore instituted another case being LIC Town P. S. Case No. 209 of 1998 under sections 20 (B), 21 and 29 of the N. D. P. S. Act corresponding to Special Case No. 64/98 against the petitioner and others. Pursuant to a production warrant issued by the Special Court (N. D. P. S. Act), Balasore in connection with the aforesaid Balasore case, petitioner and one Naushaba alias Sumitra Dutta were produced before the Balasore Court and since then the petitioner and Naushaba Anjum are in custody at Balasore. It needs to be mentioned here that petitioner and Naushaba Anjum were produced before Balasore Court when they were in the custody of Howrah Court in connection with the aforesaid Howrah case.
( 3 ) SINCE then Howrah Court passed several orders issuing production warrant for production of the petitioner and Naushaba Anjum before Howrah Court from the custody of Balasore Court. Yet, petitioner and Naushaba have not been produced before the Howrah Court. Number of other accused are in custody in connection with the Howrah case. For non production of the petitioner and another, trial of the Howrah Case is being delayed.
( 4 ) DUE to continued custody of other accused, they filed and application before this court for bail. While rejecting the said prayer for bail, Division Bench of this court observed that if prosecution files an application for splitting up the case of other accused from the case of the petitioner and Naushaba, same shall be disposed in accordance with law, as expeditiously as possible.
( 5 ) SOON thereafter prosecution and some of the accused filed applications before the trial court for splitting up their case from that of the accused persons who are detained in the custody of Balasore court. By the impugned order dated 25. 6. 99, trial court allowed the said prayer for splitting up the case.
( 6 ) PETITIONER has now challenged the aforesaid order by which case was directed to be split up.
( 7 ) I have heard learned counsel for the petitioner and the learned counsel for the Narcotic Control Bureau.
( 8 ) MR. S. Moitra, learned counsel for the petitioner contended that in certain circumstances splitting up of trial may be possible in view of what is provided by section 317 (2) Crpc. But none of those circumstances which permit splitting up of a case under the aforesaid provision are present in this case and hence it was beyond and/or in excess of jurisdiction of the trial court to split up the case. According to Mr. Moitra, under the circumstances of the present case trial court could not have directed separation of the trial of the petitioner and another accused from that of the rest of the accused. Petitioner is bound to be prejudiced in his defence if his trial is held separately from that of the other accused. Referring to sub-section (2) of section 317 Crpc Mr. Moitra contended that petitioner is being represented by his counsel before the trial court although and hence said provision is inapplicable in the present case. None of the circumstances set out in sub-section (1) and (2) of section 317 Crpc are available in the present case and in such circumstances case of an accused cannot be taken up and tried separately from that of the rest of the accused. Therefore, direction of the trial court that the case of the petitio
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