IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.121 of 2007 THAKUR MANOJ KUMAR 'PAPPU' Versus THE STATE OF BIHAR & ORS ----------- 8 03.02.2009. Heard learned counsel for the parties. 2. The instant writ petition had been dismissed by this Court vide order 7.11.2008 but on account of inadvertence, file of the same was missing for some period. This Court under order dated 10.12.2008 directed the office to reconstruct new file along with computer copy of aforesaid order dated 7.11.2008. It appears, in the meantime, original file of the writ petition is traced out. No order need be passed in the reconstructed file. Let the same be kept along with this writ petition. 3. In the instant writ petition, the petitioner has prayed for quashing the order dated 25.1.2007, passed by Additional Sessions Judge-1 cum Special Court, Siwan in Sessions Trial No. 441 of 2006, arising out of Siwan (Mufassil) ps case no.32 of 2001, whereby and whereunder the learned court rejected petitioner’s application dated 12.1.2007 for separating his trial from that of Md Sahabuddin which is going on in Siwan jail premises. The petitioner has further prayed for declaring that the Special court constituted for hearing of case in Siwan jail premises by the High Court, Patna vide notification no. 184A dated 20.5.2006 and follow up notifications dated 7.6.2006 and 12.6.2006 issued by the Law Department and Department of Personnel and Administrative Reforms, Government of Bihar, empowered for trial of co accused Md. Sahabuddin only, and had no jurisdiction to try the case of petitioner, who is co-accused in the aforesaid sessions trial. 4. Before the issue in question is considered, it would be necessary - 2 - to notice the facts in brief. 5. The petitioner along with one Md Sahabuddin and others are accused in Siwan (Mufassil) ps case no. 32 of 2001 lodged for offences under sections 147,149,307 and 353 of the I.P.C. Police after investigation submitted charge sheet under the aforesaid sections as well as Arms Act, thereafter it was committed to the court of Additional Sessions Judge-I on 18.12.2006 for disposal. As co-accused Md Sahabuddin (Member of Parliament) ,lodged in Siwan jail was suffering from various ailments and was unable to appear before the trial court at its normal place of sitting, the High Court exercising it power conferred under section 9(6) of the Code of Criminal Procedure, issued notification no. 184A dated 20.5.2006 declaring that Premises of Siwan jail where he is in captivity would be the place of sitting of court for expeditious trial of sessions trial pending against Md Sahabuddin as contained in annexure 1 to the writ petition. Thereafter, the Law Department, Government of Bihar issued a follow up notification that Governor of Bihar under section 13(1) and 14(1) of the Bengal, Agra and Assam Civil Courts Act, 1887 as well as power vested under section 9(6) of the Code of Criminal Procedure has ordered that cases pending in the court of Additional Sessions Judge in which Md Sahabuddin is an accused will be decided in the Divisional Jail, Siwan, Annexure 2. Thereafter, the Personnel and Administrative Reforms Department issued another notification, whereby it was notified that one Sri Gyaneshwar Srivastava, Additional Sessions Judge is appointed to sit in Siwan Jail as the Presiding officer for trial of cases in which Md Sahabuddin is an accused as contained in annexure 3. Pursuant to the aforesaid notification, the said court started functioning in Siwan Jail. - 3 - 6. Petitioner filed an application for separating his trial from the trial of Md Sahabuddin being conducted by Special court in the Siwan jail but the same was rejected by the trial court vide order dated 25.1.2007. Aggrieved by this order, the petitioner has filed the instant writ petition. 7. Learned counsel for the petitioner submits that he is not challenging the validity of three notifications for trial of Md Sahabuddin by aforesaid court sitting in the Siwan jail rather he is challenging the order of the court directing him to face the trial along with Md Sahabuddin conducted by the Special court in the premises of Siwan jail constituted under the said notifications as the same has been notified for Md Sahabuddin only and not for other co-accused like the petitioner. 8. It is submitted both by petitioner and the State that Md Sahabuddin had challenged the validity of the notifications of his trial by the Special court vide Cr.WJC No. 553/2006, which was dismissed on 14.8.2007 by a bench of this court observing that “ in the present case, adequate measures have been taken by the respondents and prior to taking any steps they have made consultation with the High Court and in terms of that notifications have been issued. Therefore, there is no illegality or impropriety in the notification and the petitioner’s fundamental rights are not violated.” It is also submitted that against this order, an appeal is pending before the Hon’ble Apex court. 9. In view of these aspects of the matter, this court would restrict itself to examining whether the notifications in question empowered the Special Court sitting in the jail premises to try cases of other accused along with Md Sahabuddin or cases in which Md Sahabuddin is an accused. - 4 - 10. Chapter II of the Code of Criminal Procedure enumerates constitution of criminal courts and offices. A part of Section 9 of the Code is as follows:- 11. Court of Sessions. - (1) The State Government shall establish a Court of Sessions for every session’s division. (2) Every court of sessions shall be presided over by a judge, to be appointed by the High Court. (3) The High court may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in a court of session. Sub Section (1) empowers the High court to specify place or places which could be made a place of sitting of Court of sessions. Sub Section (2) empowers the court of Sessions in any particular case, to hold its sitting at any other place in the session’s division, taking into consideration the general convenience and consent of parties and the witnesses. The power of court of sessions is circumspective and can be exercised only under certain situations. The court of Sessions can exercise the aforesaid power only if the conditions mentioned in the provisions are fulfilled. In another words the court of session can exercise the power in special circumstances in some specific case if it meets the general consequence of parties and witness, and both parties broadly confer their consent. 12. In case the prosecution and accused do not broadly consent to such sittings at a different place from its ordinary place of sitting, the same would inhibit the court of sessions from exercising the power. However, there is no such limitation so far as power of High Court in this respect is concerned even in first part of section. The High Court has been vested with power to - 5 - specify such place or places of sittings where court of sessions will ordinarily hold its sitting. 13. By the notification dated 20.5.2006 as contained in annexure 1 the High Court was within its right in notifying Siwan jail as also one of the places for sitting of Sessions Court in Sessions Division for trying case in which Md Sahabuddin is an accused. This means that apart from the general place of the Civil Court premises where the Court of Sessions is ordinarily functioning, the Siwan jail will be also one of the places where the Court of Sessions would hold its sitting, in respect of cases in which Md Sahabuddin is an accused. The High Court under the aforesaid provision is empowered to specify more than one place where the Court of Sessions can ordinarily hold its sitting. 14. The notification dated 20.5.2006, annexure 1 warrants trial of sessions case in the Special Court established in the premises of jail pending against Md.Sahabuddin. Thus the notification is in terms of sessions cases and not of an offence against any particular accused. Thus anyone who is an accused in the aforesaid sessions case in which Md sahabuddin is also an accused would be also tried in the aforesaid Special Court established in the jail premises. As such, there is no merit in the contention of the petitioner that notification empowering the special court of Additional Sessions Judge established in the jail premises for trying the case of Md Sahabuddin only and not other accused persons including the petitioner, who is also accused in these cases. 15. Again notification dated 7.6.2006 issued by Law Department as well as notification dated 12.6.2006 issued by the Department of Personnel and - 6 - Administrative Reforms, Government of Bihar also refers to cases. The aforesaid cases have been identified as being those in which one Md Sahabuddin is an accused. Thus persons who are also an accused along with Md Sahabuddin would be also tried in the aforesaid cases along with him in the Special court established in the jail premises. The trial court is right in its view that the Code of Criminal Procedure envisages the concept of trial of cases, and not of accused. 16. Whether the aforesaid notification envisaged the trial of accused Md Sahabuddin only or all other accused who are involved in the case can also be considered in light of other provisions of the Cr.P.C. Section 209 of the Cr.P.C. talks about commitment of case to the Court of session and not of any particular accused. Section 223 of the Code deals with the provision as to the persons who may be charged jointly. It speaks about various circumstances in which a person can be charged and tried together. 17. Again section 319 of the Code provides that the court has power to proceed against other accused persons appearing to be guilty of offence though initially he may not be accused. 18. Even if an accused commits different offence but if it is committed in the course of same transaction, he can be charged and tried together with other accused. The law in general does not envisage multiplicity of trial which apart from causing delay and harassment, is also a duplication of the same process of witnesses coming and deposing time and again. A trial of accused is separated in case he absconds and his non appearance delays trial of others. The legislature by engrafting section 317 of the Code has specified circumstances in which trial of an accused can be separated. Special - 7 - Acts like Juvenile Justice Act provides for separate trial of children for altogether different reason. 19. Section 319 of the Code empowers the aforesaid special court to even proceed against other persons appearing to be guilty of offence later on also. It would be naïve to say that such persons cannot be tried along with Md Sahabuddin in Siwan Jail premises as notification related to him only. The Government of Bihar or for that matter even High Court, who are the authors of the notifications cannot possibly say to who would figure as an accused subsequently or whose name would stand dropped. On this ground also the plea of petitioner that the notification would empower only to try Md Sahabuddin would create an anomalous situation if submissions of petitioner is to be accepted. 20. Section 194 of the Code also provides that an Additional Sessions Judge or the Assistant Sessions Judge shall try such cases as Sessions Judge of Division may by general or special order may make over to him for trial or the High Court may direct by any such order. Again this provision speaks about trial of a case and not of a particular accused. Section 9 and 194 of the Code relates to each other. On joint reading of the two provisions it would appear that the notifications did not limit itself to trial of Md Sahabuddin only but would also take within its sweep and fold other persons as well, who are accused in the case. Learned counsel in support of his contention has relied upon the case of Kehar Singh Vs. Delhi, reported in AIR 1988 SC 1883. 21. In my view, the reliance on aforesaid decisions is misplaced and the same does not help the petitioner rather it supports the stand of - 8 - opposite parties. The relevant extract of para 22 of the judgment is quoted herein below for easy reference:- “Whatever be the terms of notification, it is not disputed that it is a notification issued by the Delhi High Court under section 9, sub clause (6), Cr.P.C. and thereunder the High Court could do nothing more or less than what it has the authority to do.” 22. In view of discussions made above, the writ petition is dismissed. However, order passed by this court will be subject to the result of the appeal preferred against order dated 14.8.2007, passed on Cr WJC No. 553 of 2006 (Md Sahabuddin Vs State of Bihar and others) pending in the Apex court. Shashi. (S.P.Singh,J).