When the other accused were not being found and
when, therefore, the trial was not being proceeded with further,
there was absolutely no justification for not separating the trial of
the petitioner ( and any other accused, who might be available). In
the impugned order, the Magistrate observed that it would be
against the interest of justice to separate the trial of the petitioner.
It is not possible to agree with this observation. As a matter of
fact, it would be totally unjust, unreasonable and oppressive to
insist that the petitioner must keep on attending the Court for an
indefinite period, and that, though he is ready to proceed with the
trial, though the prosecution is ready to proceed with the trial,
still the trial of the petitioner should not be proceeded with by
separating it from the case of the other accused, whose presence
The impugned order is improper and not judicious. It
was not being procured.
would be, therefore, proper to set it aside and direct the
Magistrate to allow the application (Exhibit 43) and proceed
further in the case in accordance with law.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 85 OF 2014
Shaikh Shakil S/o Shaikh Mohammad
VERSUS
The State of Maharashtra
CORAM : ABHAY M. THIPSAY, J.
ORAL JUDGMENT :
Dated: February 10, 2014
Citation;2014 ALL MR(CRI) 1521 SC
Rule. By consent, Rule made returnable forthwith.
The learned Additional Public Prosecutor waives service on behalf
of respondents. By consent, heard finally forthwith.
2.
The petitioner is one of the accused in R.C.C. No.
93/2008 pending before the Judicial Magistrate, First Class,
Udgir. There are total 14 accused in the said case, which is in
respect of offences punishable under section 143 of the Indian
Penal Code (IPC), section 353 of IPC, section 341 of IPC, section
427 of IPC and section 332 of IPC and section 135 of the Bombay
Police Act. The case was originally registered against about 75 to
100 unknown persons, but the Investigating Agency after
investigation could file chargesheet only against 14 of them. Out
of these 14 only the petitioner and two or three more are attending
the Court. The chargesheet has been filed in the year 2008 and
since then the petitioner has been remaining present before the
Court on all the dates of hearing. However, as the other accused
do not remain present, the case is not proceeding further.
Troubled by this situation, the petitioner on 04.12.2012 made an
application (Exhibit 43) before the learned Magistrate praying that
the case of the petitioner be separated in the interest of justice,
and that, the petitioner be tried separately. To this application, the
Assistant Public Prosecutor, Incharge of the matter signified his no
objection. It appears that that application was pending for one
year before the Magistrate, which ultimately came to be rejected by
him, by an order dated 03.12.2013. The petitioner is aggrieved by
the said order and has approached this Court invoking its power
under Article 227 of the Constitution of India.
3.
I have heard Mr. S.B. Pulkundwar, the learned
Additional Public Prosecutor for the respondents. I have also
heard the respondent no.2, who is Investigating Officer in the
4.
matter.
Neither the learned Additional Public Prosecutor nor
the respondent no.2 has any objection for separating the trial of
the petitioner and for proceeding with the case.
5.
I have gone through the impugned order. The
impugned order appears to be suffering from total nonapplication
The learned Magistrate observed that ‘the case was
6.
of mind.
triable as a Warrant Case and not a Summons Case’, and that,
‘therefore, there was no provision for enabling the Court to proceed
in absence of the accused and only in presence of his Advocate, as
such procedure could be adopted only in summons cases’. He
further observed that therefore, the provisions of section 317(2) of
the Code of Criminal Procedure (hereinafter referred to as “the
Code”) were not applicable to the instant case.
7.
These observations were strange for at least two
reasons. The first is that section 317 does not deal with
‘separation of trials’ which is what the petitioner wanted; and
therefore what made the Magistrate discuss the applicability of
section 317 of the Code in the context of the petitioner’s
Application (Exhibit 43) is difficult to understand. The petitioner
had not made any reference to the provisions of section 317(2) of
the Code. Moreover, section 317 of the Code, which is found in
Chapter XXIV of the Code titled as “General Provisions As To
Inquiries and Trials”, applies to all the inquires and trials under
the Code.
8.
Secondly, the Magistrate has not comprehended what
was the grievance of the petitioner. It was that the case was not
proceeding further because the presence of the other accused in
the case could not be procured. The grievance of the petitioner
was that he has been remaining present before the trial Court
since 2008, and that, still the trial could not make any progress. It
was not possible to the Court to make any progress because of the
absence of the other accused, and therefore, in order to prevent
undue hardship and harassment of the petitioner, the petitioner
had prayed for separation of the trial. This aspect was not
comprehended at all, by the learned Magistrate.
9.
It may be recalled that the prosecution had no
objection for separating the trial of the petitioner. In fact that
appeared to be the only solution in the given situation. Part B of
Chapter XVII of the Code deals with Joinder of Charges.
Section 218 lays down the general rule 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. The
sections that follow section 218, make a joinder of charges, or of
the accused persons, possible. Thus, the normal rule for trials is
that there should be a separate trial in respect of each offence and
each accused. It is only because of the enabling provisions in the
Code that a joinder of charges or of the accused become possible.
The law is that a joint trial may be held and not that it must be
held. A court is never obliged to hold a joint trial. Even where it
can, it is open to it to hold separate trials for the various offences
and offenders. Under the Code, separate trials are held under the
So far as the joinder of accused persons is concerned,
10.
certain circumstances.
general rule and joint trials have only been permitted under
section 223 is the only section which deals with the joint trial of
more than one person. The section is merely an enabling provision
and does not in any way affect the discretion of the Court.
Because of permissive nature of the said provision, the Court
retains a discretion to try certain persons either jointly or
separately. Needless to say that such discretion should be
exercised judicially.
11.
When the other accused were not being found and
when, therefore, the trial was not being proceeded with further,
there was absolutely no justification for not separating the trial of
the petitioner ( and any other accused, who might be available). In
the impugned order, the Magistrate observed that it would be
against the interest of justice to separate the trial of the petitioner.
It is not possible to agree with this observation. As a matter of
fact, it would be totally unjust, unreasonable and oppressive to
insist that the petitioner must keep on attending the Court for an
indefinite period, and that, though he is ready to proceed with the
trial, though the prosecution is ready to proceed with the trial,
still the trial of the petitioner should not be proceeded with by
separating it from the case of the other accused, whose presence
The impugned order is improper and not judicious. It
12.
was not being procured.
would be, therefore, proper to set it aside and direct the
Magistrate to allow the application (Exhibit 43) and proceed
further in the case in accordance with law.
13.
The Petition is allowed in terms of prayer clause ‘C’.
case expeditiously, and in any case, dispose it of within a period of
nine months from today; and in accordance with law.
14.
The Rule is made absolute in the aforesaid terms.
The learned Magistrate shall proceed further with the
Sd/
( ABHAY M. THIPSAY, J. )
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