The Supreme Court in the case S. Mujibar Rahman v State observed and has held that the splitting of trial as stated under section 317(2) of the Code of Criminal Procedure, 1973 cannot be ordered when further investigation has already been ordered.
The court stated that the further investigation cannot be sone when the investigating agency has not furnished a non-traceable certificate before it.
The Supreme Court bench comprising of Justice Abhay S. Oka and Justice Pankaj Mithal in the case observed wherein the court was hearing an appeal against the judgement of the Madras High Court, wherein the court allowed the Criminal Revision petition and split the trial under section 317(2) of the Code of Criminal Procedure, 1973.
The said case was related to property damages involving offences as stated under Section 395, Section 397, Section 212, Section 120B, and Section 3 of the Tamil Nadu Public Property Damages Act against 31 accused persons.
The court stated that it being pertinent to note that section 317(2) of the Code of Criminal Procedure, CrPC stated that 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 he can adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.
The bench remarked that this court finds that the High Court has not even considered the reasons recorded by the learned Magistrate in the order dated July 16, 2019. Secondly, it has not been noticed by the High Court that the learned Judicial Magistrate on 13th February 2019 had permitted further investigation. Thus, 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 tha t the police had made sufficient efforts to procure the presence of all the accused.
Therefore, the second factor which is more important is the order of further investigation passed on February 13, 2019 and this being not the stage at which the High Court could have permitted splitting of the case.
The court stated that the case dates back to 2016 when demonetization was announced. It was also alleged before the court that when the accused had induced the petitioner to believe that he could exchange the old notes (500,1000 Rupees) for the new 2000 rupees notes. Thus, the petitioner took 30 lakhs but was attacked by the accused who took away all the money and then he filed the complaint to the police.
The petitioner allegedly found that there was a collusion between the investigating officer and certain accused individuals, compromising the investigation in this case and he made a representation to the Superintendent of Police (SP) about the same.
On the other hand, it has been directed by the SP to the respondent No. 1 to file a petition under section 173(8) CrPC for further investigation, which the magistrate allowed. Consequently, the respondent no 1 seek the splitting of the trial, which was rejected by the trial court in 2019 due to the ongoing order for further investigation. Therefore, he moved the criminal revision application before the HC which allowed it and split the trial of some of the accused.
It has also been noted by the High Court 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.
The High Court in its order stated that 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.
The petitioner filed an SLP before the Supreme Court, aggrieved with the said order. The counsel appearing for the petitioner argued before the court 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.
The petitioner relied in the judgement in the case Subramaniam Sethuraman v. State of Maharashtra in order to contend that an order obtained by fraud is a nullity.
Further, he also argued that no revision shall lie against an interlocutory order. He asserted that an order passed under section 317 CrPC is an interlocutory order.
Accordingly, the court set aside the judgement of the High Court and has restored the order of the Judicial Magistrate passed in 2019.
The counsel, Advocate on record A. Velan appeared for the petitioner.