Allauddin Shah & Anr.

vs State Of West Bengal on 28 September, 1999

Equivalent citations: (2000) 1 CALLT 234 HC, 2000 (69) ECC 623

Bench: S B Roy

Allauddin Shah & Anr. vs State Of West Bengal on 28/9/1999

JUDGMENT

S. Barman Roy, J.

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 peUtloner
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 Psychotrophlc 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 ball. While
rejecting the said prayer for ball, 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 expediliously 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.

7.1 have heard learned counsel for the petitioner and the learned counsel for the Narcotic Control Bureau.

8. Mr. S. Moltra, learned counsel for the petitioner contended that in certain plrcumstances 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 tn 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. Moltra, 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.
Mollra contended that petitioner is being represented by his counsel before the trial court although and hence
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 Allauddin Shah & Anr. vs State Of West Bengal on 28 September, 1999

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 petitioner would be taken up and tried separately is beyond or at least in excess of his Jurisdiction.

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 from the other
provisions of the Code.

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. 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 within sections 219-221 and 223. 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 in section 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 of section 219 committed
by them Jointly within the period of twelve months;

(d) persons accused of different o offences committed tn 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 commit any such last named offence.

(f) persons accused of offences under sections 411 and 414 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."

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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 in section 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 of section 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 CrLJ 716 it was held that section 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 of the presiding
Judge. The discretion must of course be judicial one.

14. Therefore, section 317 is 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 223 CrPC is only an exception. Even in the circumstances as
enumerated in section 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 of the other accused has wisely exercised his
discretion. Petitioner has no such vested right to demand for Joint trial.

15. However, towards the end of his argument, the learned counsel for the petitioner further submitted that an
order for separation of trial can be made only when charges are being framed and not before that. To buttress
his aforesaid contention, the learned counsel for the petitioner heavily relied upon a decision of the apex court
in State of Andhra Pradesh V. Ganesiuara Rao. .

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 Allauddin Shah & Anr. vs State Of West Bengal on 28 September, 1999

16. After going through the whole Judgment i do not find that apex court laid down any such proposition that
order for separate trial can be made only at the time of framing of charge. 1 am, therefore, unable to accept the
aforesaid contention of the learned counsel for the petitioner. It is, of course, true that when one or more
offences are committed by more than one person in the circumstances enumerated from clause (a) to clause
(g) of section 223 of the Code, court should opt for joint trial. Intention of the legislature was to avoid
multiplicity of proceeding. But in a given situation court may order for separate charge and trial of some of
the accused from the rest of the accused if the circumstances of the case so justify. In the Instant case, no
charge has as yet been framed. Charges will be framed later on. There is nothing in law nor in the decision of
the apex court in Ganeswora Rao that such an order for several trial can be made only at the time ol" framing
of charge. Therefore, I find that aforesaid decision of the apex court in the case of Ganestcora Rao does not
support the contention of the learned counsel for the petitioner.

17. The learned counsel for the petitioner also relied upon a Division Bench decision of the Madras High
Court (n Re : Duraisiiigan, 1983 Crl. LJ 1765. In that case the Madras High Court held that the question
whether section 229(1) of the Code should be resorted to does not arise for consideration because the learned
Sessions Judge exercised the powers conferred on him by sub-section (2) of section 317 of the Code.
Sub-section (2) of section 317 gives power to every Judge or Magistrate to split up a case against an
absconding accused if his personal attendance is necessary, but notwithstanding the fact that the accused has
absconded and failed to participate in the enquiry or trial.

18. After going through the aforesaid decision, it appears to me that the Madras High Court never laid down
any such proposition that court cannot direct separation of trial of one or more of the accused from that of the
rest of the accused at the stage for consideration of framing of charge.

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.

20. As I have already held that by passing the impugned order the trial court has wisely exercised its judicial
discretion vested in it by or under section 323 of the Code, no Interference therewith is called for by this court.

In the result, petition is dismissed.

21. Petition dismissed

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