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Reportable IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRLMP NO.20502 OF 2008 AND NO.24292 OF 2011

IN

Petition for Special Leave to Appeal (Crl.) No.9184 of 2008

Babubhai Bhimabhai Bokhiria & Anr. …Petitioners

Versus

State of Gujarat & Ors. …Respondents

J U D G M E N T T.S. THAKUR, J.

1. This special leave petition arises out of an order dated 11th  

December, 2008 passed by the High Court of Gujarat at Ahmedabad  

whereby  Special  Criminal  Application  No.638  of  2008  filed  by  the  

petitioner-Babubhai Bhimabhai Bokhiria has been dismissed and order  

dated  29th March,  2008  passed  by  the  Additional  Sessions  Judge,  

Porbandar affirmed.  The Additional Sessions Judge, Porbandar had  

by the said order summoned the petitioner as an accused person in  

exercise of his power under Section 319 of the Cr.P.C. in Sessions  

Case No.5 of 2007 for offences punishable under Sections 302, 201  

read with Sections 34, 120-B, 465, 468 and 471 of the Indian Penal  

Code, Section 25 of the Arms Act and Section 135 of the Bombay

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Police Act.   

2. The  incident  that  provides  the  genesis  of  the  case  

aforementioned  took  place  on  16th November,  2005  in  which  one  

Mulubhai Modhwadiya was gunned down resulting in registration of  

Criminal  Case  No.I  170  of  2005  at  Kamlabaug  Police  Station,  

Porbandar for the offences mentioned earlier. Upon completion of the  

investigation,  the  jurisdictional  police  filed  a  charge  sheet  on  15th  

February, 2006 before a Magistrate who committed the same to the  

Sessions Court to be registered as Case No.5 of 2007.   

3. The police charge-sheet cited a large number of witnesses out  

of whom as many as 134 have been examined by the prosecution. It  

was, at this stage, that an application was filed by the son of the  

deceased  on  17th March,  2008  in  which  the  applicant  prayed  for  

adding the petitioner-Babubhai Bhimabhai Bokhiria as an accused in  

exercise of the Courts power under Section 319 of the Cr.P.C.  The  

Sessions Judge allowed the said application and added the said Shri  

Babubhai Bhimabhai Bokhiria as a co-accused in the case vide order  

dated 29th March, 2008. Aggrieved by his addition as an accused the  

petitioner  preferred  Special  Criminal  Application  No.638  of  2008  

before the High Court of Gujarat which, as noticed earlier, has been  

dismissed by the High Court in terms of the order impugned in this  

special leave petition.  

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4. When  the  special  leave  petition  came  up  before  a  Bench  

comprising of P. Sathasivam and H.L. Dattu, JJ., this Court referred  

the matter to a larger Bench in view of a similar reference made in  

Hardeep Singh v. State of Punjab (AIR 2009 SC 483). The Court  

at the same time granted permission to the accused persons to move  

an application for bail before the competent Court. The matter then  

came up before a Bench of three Judges who formulated five different  

questions  and  referred  the  same to  a  Constitution  Bench,  for  an  

authoritative pronouncement.   

5. Criminal Miscellaneous Petition No.24292 of 2011 was at that  

stage filed by the applicant-Veja Prabhat Bhutiya in which he prayed  

for his addition as a party to the present proceedings and for vacation  

of order dated 17th December, 2008 by which further steps in the  

case were stayed. In the alternative the applicant prayed for grant of  

bail to him.  By an order dated 8th December, 2011 a three-Judge  

Bench of this Court allowed the prayer for impleadment but directed  

that the prayer for grant of bail be considered by the regular Bench.  

That  is  precisely  how  Criminal  Miscellaneous  No.24292  of  2011  

seeking vacation of the stay order and/or grant of bail and Criminal  

Miscellaneous No.20502 of 2008 filed by the petitioner in the special  

leave petition has come up before us for hearing.   

6. Appearing  for  the  applicant  Mr.  U.U.  Lalit,  learned  Senior

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Counsel, strenuously argued that the applicant has been in custody  

for over six years.  Even so there are no prospects of the Constitution  

Bench taking up the reference in the near future which implies that  

unless  this  Court  either  vacates  the  said  order  passed  on  17th  

December, 2008 or grants bail to the applicant, there is no chance of  

the applicant or other persons who are similarly languishing in jail for  

years seeing the end of their trial and resultant agony. It was also  

urged that although the special leave petition has been filed on behalf  

of the petitioner in the main petition only and although the prayer for  

stay made in Criminal Miscellaneous No.20502 of 2008, he had simply  

asked for stay of the judgment and final order passed by the High  

Court.  The order passed by this Court on 17th December, 2008 was,  

however, understood as though the trial itself was stayed in toto. This  

was, according to Mr. Lalit, not only depriving the applicant of his  

fundamental  right  of  a  speedy  trial  but  also  depriving  him of  his  

personal liberty with hardly any chances of an early conclusion of the  

trial in the near future.  He submitted that even if the order passed  

by the  trial  Court  and affirmed by the  High Court  was eventually  

upheld and the addition of the petitioner in the special leave petition  

was  declared  to  be  justified,  the  said  petitioner  could  be  tried  

separately as there  was no legal  bar  to  such a trial.   Reliance in  

support  was placed by learned Counsel  upon the decisions of  this

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Court  in  Shashikant  Singh  v.  Tarkeshwar  Singh  and  Anr.   

(2002)  5  SCC  738,  Michael  Machado  and  Anr.  v.  Central  

Bureau  of  Investigation  &  Anr.  (2000)  3  SCC  262  and  

Rajendra Singh v. State of U.P. & Anr. (2007) 7 SCC 378

7. On  behalf  of  the  respondents,  Mr.  A.M.  Singhvi,  Senior  

Advocate,  argued  that  the  vacation  or  modification  of  the  stay  

granted by this Court would have the effect of splitting the trial of  

those who have been accused in the charge-sheet and the petitioner  

Babubhai  Bhimabhai  Bokhiria  the  newly added accused which was  

legally  impermissible.   Mr.  Singhvi  made  a  strenuous  effort  to  

distinguish the decisions relied upon by Mr. Lalit and argued that they  

were different fact situations and could not be said to be laying down  

a binding principle of law that splitting of the trial, was permissible.  

Reliance  was,  in  that  regard,  placed  by  learned  counsel  to  the  

expression “could be tried together” appearing in Section 319 of the  

Cr.P.C.  It was also submitted by Mr. Singhvi that the applicant could  

have approached the trial Court for grant of bail, if so advised, and  

that  the  present  application  seeking  enlargement  on  bail  pending  

disposal  of  the  reference  before  the  Constitution  Bench  was  

incompetent.   

8. Learned Counsel for the petitioner in the special leave petition  

argued that the petitioners had not asked for stay of the trial.  All that

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his application prayed for was a stay of the operation of the impugned  

judgment of the High Court which implied that the addition of the  

applicant as an accused could remain stayed pending disposal of the  

special leave petition by this Court.   

9. In  CRLMP  No.20502  of  2008  filed  by  the  petitioners,  the  

petitioners had made the following prayer :

“1. That this Hon’ble Court be pleased to stay the impugned   judgment  and  final  order  dated  11.12.2008  passed  by  the   High  Court  of  Gujarat  at  Ahmedabad  in  Special  Criminal   Application No.638 of 2008 during the pendency of the Special   Leave petition; and 2. Pass any other order (s) and or directions as this Hon’ble   Court may deem fit and proper.”

10. This Court had upon consideration of the said prayer passed  

the following order on 17th December, 2008:

“List on 5.1.2009. Further steps in the case are stayed till then.”

11. It is evident from the above that while the prayer was simply  

for  stay  of  the  operation  of  the  High  Court’s  order,  the  direction  

issued by this Court stayed further steps in this case. “Further steps”  

would mean not only stay of the addition of the petitioner Babubhai  

Bhimabhai Bokhiria but also stay of any further action in relation to  

the trial which had by that time concluded before the trial Court.  Be  

that as it may, learned counsel for the petitioner had no objection to  

the order passed by this Court being modified so as to confine its  

operation to  the  petitioner-Babubhai  Bhimabhai  Bokhiria  only.   So

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long as the petitioner was not tried, pursuant to the order passed  

against  him, he  had no objection to the  trial  Court  proceeding to  

conclude  the  proceedings  against  the  remaining  accused  persons.  

Such  being the  position,  we see  no reason  why order  dated  17th  

December, 2008, even assuming the same was intended to suspend  

further proceedings before the trial Court, should not be modified  so  

as to limit the effect thereof to the addition of the petitioner only. We  

say so because if the petitioner as dominus  litis has no objection to  

the continuance and conclusion of the trial in his absence qua other  

accused persons and is not, therefore, asking for stay of the trial qua  

everybody; there is no justification for granting to him a relief larger  

than what is being prayed for by the petitioner.   

12. Time now to deal with the contention urged by Mr. Singhvi,  

that the expression  “could be tried together”  appearing in Section  

319 of the Cr.P.C. means that the newly added accused must be tried  

along with the accused already sent up for trial. The question is no  

longer  res  integra  in  the  light  of  the  judgment  of  this  Court  in  

Shashikant Singh v. Tarkeshwar Singh and Anr. (2002) 5 SCC  

738, where this Court was examining a similar contention that failed  

to impress this Court and was rejected in the following words:

“9. The intention of the provision here is that where in the   course of any enquiry into, or trial of, an offence, it appears to   the court  from the evidence that  any person not being the  

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accused has committed any offence, the court may proceed  against  him  for  the  offence  which  he  appears  to  have   committed. At that stage, the court would consider that such a   person could be tried together with the accused who is already   before the court  facing the trial.  The safeguard provided in   respect of such person is that, the proceedings right from the   beginning have mandatorily to be commenced afresh and the   witnesses reheard. In short, there has to be a de novo trial   against him. The provision of de novo trial is mandatory. It   vitally  affects  the  rights  of  a  person so brought  before  the   court. It would not be sufficient to only tender the witnesses   for the cross-examination of such a person. They have to be   examined  afresh.  Fresh  examination-in-chief  and  not  only   their presentation for the purpose of the cross-examination of   the newly added accused is the mandate of Section 319(4).   The  words  “could  be  tried  together  with  the  accused”  in   Section 319(1), appear to be only directory. “Could be” cannot   under  these  circumstances  be  held  to  be  “must  be”.  The   provision cannot be interpreted to mean that since the trial in   respect of a person who was before the court has concluded   with the result that the newly added person cannot be tried   together  with  the  accused  who was  before  the  court  when   order  under  Section  319(1)  was  passed,  the  order  would   become  ineffective  and  inoperative,  nullifying  the  opinion   earlier formed by the court on the basis of the evidence before   it that the newly added person appears to have committed the   offence resulting in an order for his being brought before the   court.”

13. The  Court  distinguished  the  earlier  decisions  rendered  in  

Municipal Corporation of Delhi v. Ram Kishan Rohtagi (1983)  

1  SCC  1 and  Michael  Machado  v.  Central  Bureau  of   

Investigation (2000) 3 SCC 262 in the following words:

“13. Reliance by learned counsel for Respondent 1 has been   placed on Municipal Corpn. of Delhi v. Ram Kishan Rohtagi in  support  of  the  contention that  Respondent  1 could be tried   only  with  Chandra  Shekhar  Singh  and  his  trial  having   concluded,  Respondent  1  cannot  be  now tried  pursuant  to   order  under  Section  319(1)  of  the  Code.  This  Court  in  the   cited  decision  was  not  concerned  with  the  issue  which  has   fallen for consideration before us. The same is the position in   respect of Michael Machado v. Central Bureau of Investigation.

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There this Court considered the scope of the provision as to   the circumstances under which the court may proceed to make   an order under Section 319 and not the question as to the   effect  of  the  conclusion  of  the  trial  after  passing  an  order   under  Section  319(1).  None  of  these  decisions  have  any   relevance for determining the point in issue.”

14. To the same effect is the decision of this Court in  Rajendra  

Singh v. State of U.P. & Anr. (2007) 7 SCC 378,  where too a  

similar question arose for consideration.  Relying upon the decision of  

this Court in Shashikant Singh’s case (supra) this Court held:

“11....The mere fact that trial of co-accused Daya Singh has   concluded cannot have the effect of nullifying or making the   order  passed  by  learned  Sessions  Judge  on  26.5.2005   infructuous”.    

15. In the light of the above two decisions rendered by co-ordinate  

Benches of this Court, we have no hesitation in holding that even if  

the addition of the petitioner Babubhai Bhimabhai Bokhiria is held to  

be justified by the Constitution Bench of this Court, the mere fact that  

the trial of the remaining accused has already concluded, would not  

prevent the prosecution of the petitioner for the offences for which he  

has been summoned by the trial Court.

16. There is another angle from which the matter can and must be  

examined. The prosecution has already examined as many as 134  

witnesses at the trial. In terms of the ratio of the direction of this  

Court in  Shashikant Singh’s  case (supra) with the addition of the  

petitioner as accused all those witnesses shall have to be recalled for

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a fresh examination. If that be so, the trial would go on for a few  

more years having regard to the number of witnesses that have to be  

examined. This would in turn mean that the right of the accused to a  

speedy trial, that they have laboured to complete within six years or  

so, will be in serious jeopardy on account of the entire process being  

resumed de novo. Such a result is manifestly unjust and unfair and  

would be  perilously close to  being in  violation of  the  fundamental  

rights guaranteed to the accused persons who cannot be subjected to  

the tyranny of a legal process, that goes on endlessly for no fault of  

theirs.  This  Court  has  in  several  pronouncements  emphasised  the  

need for speedy trials in criminal cases and recognised the same as  

an integral part of the right to life itself.  In  Hussainara Khatoon  

and Ors. v. Home Secretary, State of Bihar, Patna  (1980) 1  

SCC 91, this Court held that an expeditious trial is an integral and  

essential part of the fundamental right to life and liberty enshrined in  

Article  21  of  the  Constitution.   In  A.R.  Antulay  v.  R.S.  Nayak  

(1992) 1 SCC 225, this Court declared that speedy trial is not only  

the right of the accused but is also in public interest and that the right  

to speedy trial flowing from Article 21 encompasses all the stages,  

namely, the stage of investigation, inquiry, trial, appeal, revision and  

retrial.  In Sher Singh v. State of Punjab (1983) 2 SCC 344  , this    

Court sounded the following note of caution against delay of criminal

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Babubhai  Bhimabhai  Bokhiria  as  an  accused  to  the  case  at  hand  

would lead to an indefinite suspension of trial and eventual recall of  

134 witnesses already examined against the applicant who has been  

in jail for over six years now.  There is, therefore, no reason for a  

blanket stay against the progress of the trial before the courts below  

qua other accused persons.

19. In the totality of the above circumstances, therefore, we are  

inclined to modify our  order  dated 17th December,  2008 by which  

further proceedings before the trial Court were brought to a halt. We  

make  it  clear  that  while  the  stay  of  the  trial  against  Babubhai  

Bhimabhai  Bokhiria  the  petitioner  in  SLP  No.9184  of  2008  shall  

continue  qua the  said  petitioner,  the  trial  court  shall  be  free  to  

proceed  with  the  trial  qua  the other  accused  persons.  Criminal  

Miscellaneous Petition  Nos.20502 of  2008 and 24292 of  2011 are  

allowed in part and to the above extent.                      

…...........…………………………………….……….…..…J   (T.S. THAKUR)

 ............ ……………………………………….……….…..…J.         (FAKKIR MOHAMED IBRAHIM KALIFULLA)

New Delhi

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January 30, 2013