Dharnidhar Sharma vs State of Uttarakhand & others

LOK PAL SINGH, J.

Present petition, under section 482 Cr.P.C., has been filed for quashing of the order dated 18.01.2018 passed by Additional Sessions Judge,

Ramnagar District Nainital in S.T. No. 3 of 2015 State vs. Rahul Malik whereby learned Judge has separated the trial against accused Smt. Rajbala

and Smt. Chhaya (respondent nos. 2 and 3 herein).

Facts, in brief, are that Smt. Rajbala (respondent no. 2) and smt. Chhaya (respondent no. 3) with one Sanjay Singh and some unknown persons

forcefully entered into the agricultural farm of the applicant and shot open fire upon the applicant and his two sons in which both the sons sustained

gun shot injuries. After investigation, the Investigating officer submitted charge sheet. The learned Judge took cognizance and proceeded with the

matter. During the pendency of the trial, an application under section 319 Cr.P.C. was filed by the prosecution for including Smt.Chaya Devi and Smt.

Rajbala as accused which has been rejected by the learned Additional Sessions Judge , vide order dated 5.11.2016. Feeling aggrieved, the petitioner

preferred criminal revision no. 276 of 2017 before this Court. The co-ordinate Bench of this Court vide judgment and order dated 12.01.2018 allowed

the said revision and set aside the judgment of the Additional Sessions Judge, Ramnagar and has held as follows:-

Consequently, the criminal revision is allowed. The order dated 05.11.2016 passed by the learned Additional Sessions Judge, Ramnagar, Nainital is

hereby set aside. The respondent nos. 2 and 3 be included as accused and the trial shall commence in accordance with law.

Having made the above determination, it is also made clear that since both the accused were women, the court below shall consider their bail

application in the light of the above observations when it is moved before the court concerned.

The learned Additional Sessions Judge, in its order dated 18.01.2018 without taking note of the directions, issued by this Court, separated the

sessions trial against respondent no. 2 and 3 on the ground that the Hon’ble Apex Court in Special Leave to Appeal (Crl.) 768 of 2016 passed the

order dated

09.2016 that the trial court to conclude the trial within six months. Thereafter, an application was filed by the learned Additional Sessions Judge

concerned before the Hon’ble Apex Court, seeking further time to conclude the trial of the case. Application moved by the Additional Sessions

Judge was considered and four months’ time was extended by the Hon’ble Apex Court to conclude the trial. The time granted by the

Hon’ble Apex Court to conclude the trial has expired on 20.11.2017 and the trial is not concluded yet.

Learned counsel for the respondents submit that due to direction of Hon’ble Apex Court that trial should be concluded within four months the

trial court did not consolidate the trial. It is further submitted that trial of Chaya Devi would take lot of time therefore trial court rightly rejected the

application to consolidate case of Chaya Devi along with the S.T. No. 3 of 2015.

Learned counsel for the petitioner would submit that in view of section 319 Cr.P.C., the trial of the accused, who have been summoned under

section 319 Cr.P.C., should be tried together.

This Court is convinced with the submission of the learned counsel for the petitioner. For kind reference, section 319 Cr.P.C. is extracted

hereunder:-

Power to proceed against other persons appearing to be guilty of offence.

(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed

any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he

appears to have committed.

(2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose

aforesaid.

(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into,

or trial of, the offence which he appears to have committed.

(4) Where the Court proceeds against any person under sub- section (1), then-

(a) the proceedings in respect of such person shall be commenced a fresh, and the witnesses re- heard;

(b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the

offence upon which the inquiry or trial was commenced.

Admittedly, the trial of the case has not been concluded yet. After directions issued by the Hon’ble Apex Court and expiry of the prescribed

period, the order dated 18.01.2018 has been passed.

From the perusal of the provisions of section 319 Cr.P.C. as well as order passed by the co-ordinate Bench it would reveal that directions have

been issued by this Court to include respondent nos. 2 and 3 as accused and the trial shall be commenced in accordance with law. Therefore, the

learned Additional Sessions Judge has committed illegality in separating the trial on the pretext that Hon’ble Apex Court issued the directions to

conclude the trial within certain period which has not been decided yet.

Considering the facts and circumstances of the case, this Court is of the view that the impugned order dated 18.01.2018 is liable to be quashed.

Impugned order dated 18.01.2018 is quashed. Learned Additional Session Judge, Ramnagar, Nainital is directed to include Rajbala and Chaya as

accused persons and shall continue with the trial against newly added accused persons along with other accused persons. The trial court shall provide

opportunity to the prosecution to re-examine the witnesses and afford opportunity to newly added accused persons to cross-examine the prosecution

witnesses.

The trial court shall make an endeavour to conclude the trial expeditiously keeping in mind the directions issued by the Hon’ble Apex Court

from time to time in this regard and shall proceed with the matter on day to day basis and adjournments shall not be granted to either of the parties

without recording reasons for doing so, if at all the need arises.

The criminal misc. application under Section 482 Cr.P.C. stands disposed of.