Splitting Of Trial Under S. 317(2) Of Cr. P.C Can't Be Done When Further Investigation Has Already Been Ordered: Supreme Court

The Supreme Court recently held that splitting of trial under section 317(2) of Cr. P.C., 1973 cannot be ordered when further investigation has already been ordered. Moreover, it cannot be done when the investigating agency has not furnished a non-traceable certificate before it.

It is pertinent to note section 317(2) CrPC which states: If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.”

The Supreme Court bench comprising Justices Abhay S. Oka and Justice Pankaj Mithal was hearing an appeal against a judgment of the Madras High Court which allowed the Criminal Revision petition and split the trial U/s 317(2) of Cr. P.C, 1973. The case was related to property damages involving offences under Sections 395, 397, 212, 120B, and Section 3 of the Tamil Nadu Public Property Damages Act against 31 accused persons.

The bench observed “ We find that the High Court has not even considered the reasons recorded by the learned Magistrate in the order dated 16th July, 2019. Secondly, the High Court has not noticed that the learned Judicial Magistrate on 13th February 2019 had permitted further investigation. Therefore, when the High Court permitted the splitting of the trial, two important aspects were not noted by the High Court. The first one was that the learned Magistrate was not satisfied that the police had made sufficient efforts to procure the presence of all the accused. The second factor which is more important is the order of further investigation passed on 13th February 2019. Therefore, this was not the stage at which the High Court could have permitted splitting of the case.”

The case dates back to 2016 when demonetization was announced. It was alleged that the accused had induced the petitioner to believe that he could exchange the old notes(500,1000 Rupees) for the new 2000 rupees notes. The petitioner took 30 lakhs but was attacked by the accused who took away all the money. Then, he filed a complaint to the police.

But later on, the petitioner allegedly found that there was a collusion between the investigating officer and certain accused individuals, compromising the investigation in this case. Therefore, he made a representation to the Superintendent of Police(SP) about the same. Upon knowing about this representation, the Investigating officer hastily filed a defective charge sheet with the judicial magistrate.

Thereafter, the SP directed Respondent No. 1 to file a petition under section 173(8) CrPC for further investigation, which the magistrate allowed. Subsequently, respondent no.1 sought the splitting of the trial, which was rejected by the trial court in 2019 due to the ongoing order for further investigation. Then, he moved a criminal revision application before the HC which allowed it and split the trial of some of the accused.

The High Court noted that the case was pending since 2016 where summons remained unserved for 3 accused individuals, and nonbailable warrants were pending against 8 others out of a total of 30 accused persons. Therefore, the HC ordered the lower court to split the case against the accused who were absent and proceed with criminal proceedings against the rest of the accused persons.

Aggrieved by this order, the petitioner filed an SLP before the Supreme Court.

The petitioner represented by Advocate on record A. Velan argued that the High Court had passed the order without being acquainted with the order of the judicial magistrate ordering further investigation in pursuance of the application by respondent no.1.

He relied on Subramaniam Sethuraman v. State of Maharashtra 2004 8 SCC 220, to contend that an order obtained by fraud is a nullity.

Further, he argued that no revision shall lie against an interlocutory order. He asserted that an order passed under section 317 CrPC is an interlocutory order.

In light of the above, the court aside the judgment of the HC and restored the order of the Judicial Magistrate passed in 2019.

Case title: S.Mujibar Rahman v State

Citation:  2023 LiveLaw (SC) 1016

For petitioner: Arguing Counsel and AOR: A. Velan (Assisted by Mritunjay Pathak)

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