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2007 DIGILAW 1269 (MP)

MANOJ v. STATE OF MP

2007-12-07

R.C.MISHRA

body2007
Judgment R.C.Mishra, J. ( 1. ) This is a petition, under Section 482 of the Code of Criminal Procedure (for short, the Code), for having the order dated 24.09.2007 passed by 1st Additional Sessions Judge, Narsinghpur in S.T. No. 77/98 for a separate trial of co-accused Munna @ Surendra quashed. ( 2. ) The facts leading to the filing of this petition may be summarized as under:- (a) The petitioner namely Manoj is one amongst the five accused of murder of one Om Prakash, whose death was caused by shooting as early as on 11.12.1995. As per the prosecution version, the other offenders are : Ramkishan, Kamal Singh, Raju @ Rajesh and Munna @ Surendra (hereinafter referred to as Ramkishan, Kamal, Raju and Munna respectively). However, during investigation, only Ramkishan could be apprehended, and thereafter, showing the other four accused as absconding, the charge-sheet was put up in the Court of JMFC, Narsinghpur. In turn, the Magistrate committed the case to the Court of Session. The petitioner was declared as absconding and, under Section 299 of the Code, the evidence was recorded in his absence. However, upon a full trial, Ramkishan was acquitted of the charge. (b) Later on, Kamal, Raju and the petitioner were also arrested and tried jointly. The petitioner was charged with the offence under Section 302 whereas the charge of the offence punishable under Section 302 read with 34 of the IPC was framed against Kamal and Raju. The prosecution sought to prove its case by examining as many as 20 witnesses. After being questioned under Section 313 of the Code, the accused entered upon the defence and summoned a witness namely Ram Gopal, who was examined on 07.01.2004. Thereafter, the case was posted for recording of the remaining defence evidence on 27.1.2004. In the meanwhile, upon the information that co-accused Munna was detained in the jail at Narsinghpur, a warrant requiring his production was issued by the CJM and he was also committed to the Court of Session to stand trial. (c) On 12.1.2004, alternative charges of the offences punishable under Sections 302 and Section 302 read with 34 of the IPC were framed against Munna. After recording his plea of not guilty, learned trial Judge proceeded to ascertain as to which of the witnesses examined already by the prosecution in his absence were to be re-summoned. (c) On 12.1.2004, alternative charges of the offences punishable under Sections 302 and Section 302 read with 34 of the IPC were framed against Munna. After recording his plea of not guilty, learned trial Judge proceeded to ascertain as to which of the witnesses examined already by the prosecution in his absence were to be re-summoned. In response, the defence counsel submitted that he wanted to cross-examine only four witnesses namely, Babulal (PW1), Deokumar Bai (PW4), Sattu @ Satyanarayan (PW11) and Vishwas Parihar (PW12). Accordingly, these witnesses were recalled and after their cross-examination on behalf of Munna, the prosecution closed its evidence. Munna was also examined and called upon to adduce evidence. Thereafter, the remaining defence evidence was recorded. (d) On 03.08.2004, the date fixed for the final arguments, an objection was raised to this effect that the evidence of other prosecution witnesses, recorded in absence of Munna, could not be read against him as all the conditions precedent for utilizing the evidence were not in existence. However, observing that it was at his request only that four witnesses were re-summoned for cross-examination, learned trial Judge rejected the objection. This order was challenged not only by Munna but also by the other 3 accused by filing a petition, under Section 482 of the Code, before this Court. (e) The petition, registered as MCrC No. 6085/2004, was allowed vide order 07.11.2006. Accordingly, the impugned order, passed on 03.08.2004 by me trial Judge, was set aside and he was directed to re-summon all the prosecution witnesses examined in absence of co-accused Munna for being cross-examined on his behalf. The operative part of the order also contained the following guidelines:- "If at subsequent stage of trial, the trial Court with regard to some particular witness finds that he is dead or incapable of giving evidence or cannot be found or his attendance cannot be procured without an amount of delay, expense or inconvenience which under the facts and circumstances of the case are unreasonable, it shall be at liberty to read the evidence of that particular witness under Section 299 of the Code. The trial Court shall also have in option to separate the trial of petitioner Munna @ Surendra and decide the case against other accused persons on the basis of the {evidence already recorded in their presence" (emphasis supplied, by me). The trial Court shall also have in option to separate the trial of petitioner Munna @ Surendra and decide the case against other accused persons on the basis of the {evidence already recorded in their presence" (emphasis supplied, by me). (f) In compliance, learned trial Judge proceeded to recall all the 20 prosecution witnesses examined earlier for cross-examination on behalf of co-accused Munna. However a bare perusal of the order-sheets would reveal that this exercise could not be completed for variety of reasons. Ultimately, on 22.09.2007, the defence counsel declined to cross-examine the witnesses namely Manohar and Munnalal on the ground that in the light of the provisions of Section 273 of the Code, the trial Judge was first required to record their Chief-Examinations in presence of Munna. After Rearing the arguments, learned trial Judge ordered that Munnas case shall be tried separately. ( 3. ) The legality and propriety of the order for splitting up of the trial have been questioned on the ground that after trying the petitioner and other co-accused Kamal and Raju jointly with him, it was not open to the learned trial Judge to direct a separate trial of Munna. ( 4. ) Learned Senior Counsel for the petitioner has strenuously contended that the guideline to exercise discretion for separating the trial, as contained in this Courts order dated 07.11.2006, was not consistent with the well-settled position of law on the point. This apart, according to him, even in pursuance of the order, the trial could have been split up only on 14.03.2007, the first date of hearing after receipt of the copy thereof. Reference has also been made to the Allahabad Authority in Mangal Singh and others vs. Rex AIR 1949 Allahabad 599, to fortify the contention that legality of joint trial depends on allegations and not on the result of the trial. ( 5. ) In reply, learned Dy. Govt. Advocate as well as learned counsel for the objector/complainant have submitted that this is yet another device to protract the trial by the main accused of murder who ,was able to remain out of the clutches of law for a considerable period of more than 6 years. Inviting attention to the relevant order-sheets, they proceeded to contend that there was no other alternative left with the trial Judge except to separate the trial of co-accused Munna. Inviting attention to the relevant order-sheets, they proceeded to contend that there was no other alternative left with the trial Judge except to separate the trial of co-accused Munna. According to them, the order in question would cause no prejudice to the petitioner whose trial, in accordance with law, is nearing completion. ( 6. ) As pointed out already, the present petitioner was also one of the petitioners in the earlier petition. Since, the legality of the guideline contained in the operative part of the corresponding order was not questioned by any one of them that order has attained finality. Even otherwise, it is well settled that this Court has no jurisdiction even under the inherent powers to alter its judgments in view of Section 362 of the Code (Moti lal vs. State of M.P. AIR 1994 SC 1544 relied on). ( 7. ) Joint trial is contemplated under Section 223 of the Code whereas the power to split a joint trial has been conferred by sub-Section (2) of Section 317 thereof. Section 223 reads thus :- "223. ( 7. ) Joint trial is contemplated under Section 223 of the Code whereas the power to split a joint trial has been conferred by sub-Section (2) of Section 317 thereof. Section 223 reads thus :- "223. The following persons may be charged and tried 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 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 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 (45 of 1860), 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 be any 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." ( 8. ) The ambit and scope of Section 223 of the Code has been considered by the Apex Court in Lalu Prasad v. State through C.B.I. AIR 2003 SC 3838 , The relevant extracts of the judgment may be quoted as under :- ".............It is thus be seen that irrespective of the applicability of clauses (a) to (g), Section 223 gives to the magistrate a discretion to amalgamate cases. The Magistrate has to be satisfied that persons would not be prejudicially affected and that it is expedient to amalgamate cases....... ...........It is the trial Court, which would have to consider the stand of the other accused persons who have not prayed for joint trial" ( 9. ) Accordingly, joint or separate trial is always in the discretion of the trial Judge only. Further, the power given by Sub-Section (2) of Section 317 of the Code is indicative of the fact that division of an integrated trial is not unknown to criminal procedure. This apart, as observed by the Apex Court in A.R. Antulay vs. R.S. Nayak AIR 1988 SC 1531 , an accused cannot assert any right to a joint trial with his co-accused. ( 10. ) To sum up, Section 223 of the Code gives the discretion to trial Judge to try the offenders either jointly or separately but the exercise of the discretion would depend upon the facts and circumstances of the case. Moreover, splitting up of a joint-trial is permissible if it does not result in prejudice to anyone of the affected parties. ( 11. ) Applying these well-settled prepositions of law as to the facts and circumstances of the case, I am of the view that the order for separate trial is not going to result into any prejudice to the present petitioner, whose trial had already reached the stage of defence even before Munna was put to a joint trial with him. ( 12. ) For these reasons, no interference, under the inherent powers, is called for. ( 13. ) Consequently, the petition stands dismissed and the impugned order for splitting up of the trial is hereby upheld. Petition dismissed. RAHUL