Section 317(2) of the Criminal Procedure Code, 1973 (CrPC): Supreme Court’s Interpretation on Trial Splitting

An Examination of the Supreme Court’s Ruling on Splitting of Trial and its Implications

Introduction

The administration of criminal justice in India operates within a meticulously structured framework established by the Criminal Procedure Code, 1973 (hereinafter referred to as ‘CrPC’). Among its various provisions, Section 317 addresses the conduct of inquiries and trials in the absence of accused persons, a matter of significant procedural importance. The Supreme Court of India recently delivered a landmark judgment in S. Mujibar Rahman v. State [1], which has clarified critical aspects regarding the splitting of trials under Section 317(2) of the CrPC, particularly when further investigation under Section 173(8) has been ordered. This decision has far-reaching implications for the procedural conduct of criminal trials involving multiple accused persons and underscores the judiciary’s commitment to balancing efficient case management with thorough investigation and fair trial principles.

Legal Framework: Understanding Section 317 of the CrPC

Section 317 of the CrPC establishes the framework for conducting inquiries and trials when the accused is not physically present before the court. The provision recognizes that in certain circumstances, the absence of an accused person should not impede the progress of criminal proceedings, particularly when such absence is deliberate or when the accused cannot be located despite reasonable efforts by law enforcement agencies.

Section 317(2) of the CrPC specifically provides 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 adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately” [2]. This subsection grants discretionary power to judicial officers to split trials when certain conditions are satisfied, thereby allowing proceedings to continue against accused persons who are present while keeping the case against absconding accused separate.

The legislative intent behind this provision is to prevent the prolonged pendency of criminal cases due to the non-appearance of some accused while ensuring that those who are present are not indefinitely subjected to pending proceedings. However, this discretionary power is not absolute and must be exercised judiciously, considering various factors including the stage of the trial, the nature of investigation, and the interests of justice.

The Genesis: Facts of S. Mujibar Rahman v. State

The case of S. Mujibar Rahman v. State originated from a First Information Report registered against 31 accused persons for offences punishable under Sections 395, 397, 212, 120B of the Indian Penal Code, 1860, and Section 3 of the Tamil Nadu Public Property Damages Act, 1982 [3]. The charges related to serious criminal offences involving dacoity, robbery with attempt to cause death or grievous hurt, harbouring offenders, and criminal conspiracy.

Section 395 of the IPC prescribes punishment for dacoity, which is defined under Section 391 as robbery committed by five or more persons conjointly. The punishment extends to imprisonment for life or rigorous imprisonment for a term which may extend to ten years, along with fine. Section 397 addresses robbery or dacoity with attempt to cause death or grievous hurt, prescribing a minimum sentence of seven years imprisonment. Section 212 deals with harbouring offenders, while Section 120B pertains to criminal conspiracy [4].

The case had been pending since 2016, and the presence of several accused could not be procured despite issuance of summons and non-bailable warrants through the police department. On June 16, 2019, the learned Judicial Magistrate passed an order rejecting the application for splitting the trial filed by the second accused under Section 317(2) of the CrPC. The Magistrate observed that the police department had not filed a report expressing inability to execute the non-bailable warrants or summons, indicating that sufficient efforts had not been made to secure the presence of the absconding accused.

Significantly, on February 13, 2019, the learned Judicial Magistrate had permitted further investigation under Section 173(8) of the CrPC. This order for further investigation was crucial to the Supreme Court’s eventual decision, as it indicated that the investigation was still ongoing and incomplete.

Proceedings Before the High Court

Aggrieved by the Magistrate’s order refusing to split the trial, the respondent filed a Criminal Revision petition before the Madras High Court. The High Court took note of the fact that the case had been pending since 2016, with summons remaining unserved for three accused individuals and non-bailable warrants pending against eight others out of a total of 30 accused persons [5]. Considering the prolonged pendency and the inability to secure the presence of multiple accused, the High Court allowed the Criminal Revision petition and directed the trial court to split the trial under Section 317(2) of the CrPC, ordering that proceedings continue against the accused who were present while keeping the case against absent accused separate.

The Supreme Court’s Analysis and Ruling

The petitioner approached the Supreme Court by filing a Special Leave Petition against the High Court’s order. A Bench comprising Justice Abhay S. Oka and Justice Pankaj Mithal heard the matter and delivered a judgment that set aside the High Court’s order, restoring the Magistrate’s decision of 2019.

The Supreme Court’s reasoning was grounded in two critical observations that the High Court had failed to consider. First, the High Court had not examined the reasons recorded by the learned Magistrate in the order dated June 16, 2019, which specifically noted that the police had not made sufficient efforts to procure the presence of all accused persons and had not filed a report expressing inability to execute warrants. Second, and more importantly, the High Court had overlooked the fact that on February 13, 2019, the learned Judicial Magistrate had permitted further investigation under Section 173(8) of the CrPC [6].

The Supreme Court emphasized that when further investigation has already been ordered and remains ongoing, the splitting of trial becomes impermissible. This principle is rooted in the fundamental understanding that splitting trials prematurely, while investigation is still in progress, can lead to fragmented proceedings, potential contradictions in evidence, and prejudice to both prosecution and defense.

Furthermore, the Court noted that the investigating agency had not furnished a non-traceable certificate before the court. Such a certificate is crucial as it formally establishes that despite diligent efforts, certain accused persons cannot be traced or their presence cannot be secured. The absence of this certificate indicated that the investigation into locating the absconding accused was incomplete.

The Supreme Court also relied on the precedent established in Subramaniam Sethuraman v. State of Maharashtra [7], which held that an order passed under Section 317 of the CrPC is an interlocutory order, and no revision lies against an interlocutory order. The petitioner’s counsel argued that the High Court lacked jurisdiction to entertain a revision petition against such an interlocutory order, an argument that found favor with the Supreme Court.

The Interplay Between Section 317(2) and Section 173(8) of the CrPC

To fully appreciate the Supreme Court’s reasoning, it is essential to understand the relationship between Section 317(2) and Section 173(8) of the CrPC. Section 173(8) provides that “Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer-in-charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed” [8].

Further investigation under Section 173(8) represents a continuation of the original investigation, not a fresh investigation or reinvestigation. It is a statutory power vested in the investigating agency to gather additional evidence even after the initial charge sheet has been filed. The Supreme Court has consistently held that this power exists until the commencement of trial and serves the paramount purpose of uncovering truth in criminal proceedings.

When further investigation is ongoing, splitting the trial creates practical and legal complications. Evidence gathered during further investigation may implicate additional accused or establish connections between various accused persons that were not apparent in the initial investigation. If trials are split prematurely, such evidence may need to be presented separately in different proceedings, leading to potential inconsistencies and compromising the coherence of the prosecution’s case.

Moreover, splitting trials while further investigation is pending undermines the investigating agency’s ability to present a complete picture of the criminal conspiracy or organized criminal activity. In cases involving multiple accused, particularly those charged under Sections like 120B (criminal conspiracy) or offences involving group actions such as dacoity, the evidence against various accused persons is often interconnected and interdependent.

Judicial Discretion and Conditions for Splitting Trials

While Section 317(2) grants discretionary power to courts to split trials, this discretion must be exercised judiciously and only when specific conditions are satisfied. The Supreme Court’s decision in S. Mujibar Rahman v. State establishes clear guidelines for when such discretion can be exercised.

First, the court must be satisfied that adequate and diligent efforts have been made by the investigating agency to secure the presence of the absconding accused. This includes issuance and proper service of summons, execution of non-bailable warrants, and other lawful measures to locate and apprehend the accused persons. The investigating agency must file a detailed report before the court demonstrating the steps taken and explaining why the presence of certain accused could not be secured.

Second, the investigating agency should furnish a non-traceable certificate in cases where accused persons cannot be located despite reasonable efforts. This certificate serves as formal acknowledgment that further attempts to locate these individuals would be futile and that their continued absence should not indefinitely delay proceedings against other accused.

Third, there should be no ongoing further investigation under Section 173(8) at the time when splitting is considered. If further investigation has been ordered and is in progress, the court must wait for its completion before deciding on splitting the trial. This ensures that all evidence is gathered and the complete picture of the alleged criminal activity is available before proceedings are bifurcated.

Fourth, the court must record detailed reasons for ordering the splitting of trial, carefully considering whether such splitting would cause any prejudice to the prosecution or to the accused persons who are present. The interests of justice require that all parties have a fair opportunity to present their case coherently, and splitting should not compromise this fundamental principle.

Implications for Pending Cases and Future Proceedings

The Supreme Court’s judgment in S. Mujibar Rahman v. State has significant implications for numerous pending criminal cases across India where multiple accused are involved and some remain absconding. Trial courts and High Courts must now carefully examine whether further investigation is ongoing before ordering splitting of trials under Section 317(2).

This decision reinforces the principle that criminal trials must be conducted in a manner that ensures thorough investigation and fair presentation of evidence. While the provision for splitting trials serves the important purpose of preventing indefinite delay in proceedings against present accused, it cannot be invoked mechanically or prematurely.

The judgment also highlights the importance of investigating agencies maintaining proper records and filing detailed reports before courts regarding their efforts to locate absconding accused. Courts can only make informed decisions about splitting trials when they have complete information about the status of investigation and the efforts made to secure the presence of all accused.

For accused persons who are present and facing prolonged trials due to absconding co-accused, this judgment means they must wait until investigation is complete and proper certificates are filed before seeking splitting of trials. However, they retain the right to approach courts for expeditious completion of investigation and trial.

Procedural Safeguards and the Right to Fair Trial

The Supreme Court’s approach in this case reflects a careful balancing of competing interests in criminal justice administration. On one hand, there is the legitimate interest of accused persons who are present to have their cases decided expeditiously without indefinite delay caused by absconding co-accused. On the other hand, there is the equally important interest in ensuring thorough investigation and coherent presentation of evidence, particularly in cases involving multiple accused and serious offences.

The requirement that further investigation must be complete before trials are split serves as an important procedural safeguard. It ensures that evidence against all accused persons is gathered comprehensively, preventing situations where subsequent evidence might necessitate reopening already concluded proceedings or create inconsistencies between different trials involving the same criminal incident.

This approach also protects the interests of the prosecution and, ultimately, the interests of society in effective law enforcement. Cases involving organized criminal activity, such as those charged under Sections 395, 397, and 120B of the IPC, often require extensive investigation to establish the roles of various accused persons and the connections between them. Premature splitting of such cases can significantly hamper the prosecution’s ability to present a coherent case and secure convictions.

Revisional Jurisdiction and Interlocutory Orders

An important aspect of the Supreme Court’s judgment relates to the nature of orders passed under Section 317 of the CrPC and the scope of revisional jurisdiction. The Court affirmed the principle established in Subramaniam Sethuraman v. State of Maharashtra that orders under Section 317 are interlocutory in nature, and revision petitions do not lie against such orders.

An interlocutory order is one that does not finally determine the rights of parties but is made during the pendency of proceedings. Orders regarding splitting of trials fall within this category as they relate to the procedural conduct of the trial rather than its final outcome. The remedy against such orders, if necessary, lies in filing petitions under Section 482 of the CrPC before the High Court for quashing of proceedings, rather than through revision petitions.

This aspect of the judgment provides clarity on the appropriate legal remedies available to parties aggrieved by orders relating to splitting of trials, thereby promoting judicial efficiency and preventing misuse of revisional jurisdiction.

Conclusion

The Supreme Court’s decision in S. Mujibar Rahman v. State represents a significant contribution to criminal procedure jurisprudence in India. By clarifying that splitting of trials under Section 317(2) of the CrPC cannot be ordered when further investigation under Section 173(8) is ongoing or when the investigating agency has not furnished a non-traceable certificate, the Court has established clear guidelines for the exercise of judicial discretion in this area.

This judgment underscores the judiciary’s commitment to ensuring thorough investigation in criminal cases while also recognizing the need for expeditious disposal of proceedings. It strikes a balance between preventing indefinite delay in trials and ensuring that investigation is complete before cases are bifurcated. The decision serves as an important reminder that procedural provisions must be applied judiciously, with due consideration to the stage of proceedings, the completeness of investigation, and the interests of justice.

For legal practitioners, investigating agencies, and judicial officers, this judgment provides valuable guidance on the conditions under which trials can be split and the procedural requirements that must be fulfilled before such splitting is ordered. It reinforces the principle that in criminal justice administration, the pursuit of truth through complete investigation takes precedence over administrative convenience, while also ensuring that present accused are not subjected to unreasonable delay in adjudication of their cases.

References

[1] LiveLaw. (2024, January 8). Restrictions on Splitting of Trials Under Sec 317(2) of CrPC Is Explained. https://www.livelaw.in/supreme-court/supreme-court-ruling-splitting-of-trial-further-investigation-section-317crpc-243084

[2] Indian Kanoon. Section 317 in The Code of Criminal Procedure, 1973. https://indiankanoon.org/doc/1589014/

[3] Drishti Judiciary. Section 317 of the Code of Criminal Procedure. https://www.drishtijudiciary.com/current-affairs/section-317-of-the-code-of-criminal-procedure

[4] Indian Bar Association. Dacoity Under IPC. https://www.indianbarassociation.org/dacoity-under-ipc/

[5] Court Cast. (2023, December 2). Supreme Court Invalidates Trial Splitting under Section 317(2) of Cr.P.C. When Further Investigation is Ongoing. https://courtscast.com/supreme-court-invalidates-trial-splitting-under-section-3172-of-cr-p-c-when-further-investigation-is-ongoing/

[6] The Laws. S. Mujibar Rahman vs. State. https://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=003202381100

[7] Indian Kanoon. Subramanium Sethuraman vs State Of Maharashtra & Anr on 17 September, 2004. https://indiankanoon.org/doc/1318639/

[8] Indian Kanoon. Section 173(8) in The Code of Criminal Procedure, 1973. https://indiankanoon.org/doc/274924/