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Separation of trials: Key legal and practical issues

Absconding accused persons are the worst problem for investigating agencies and courts alike. In case the accused person is absconding from an ongoing trial, the law provides that such person's trial may be separated, and the others be tried. But this presents practical and legal problems, which are examined in this essay.

I. Introduction

The Indian judicial system is one of the most robust amongst the various judicial systems of the world. However, one of the key challenges it faces is the inordinate delay in completion of proceedings, and one of the factors responsible for such delay is that the criminal proceeding (or, the trial) has to happen together for all persons accused of having committed a crime. This is because of procedural law based on principles of natural justice. This problem becomes even more pronounced in cases involving economic offences, where numerous persons are named as accused and when some of such persons do not appear in the court (or are declared absconding), the trial gets stuck.

Several reports of the Law Commission of India (for instance, the 177th and 239th Reports), have echoed the problem of absconding accused and have declared it as one of the biggest obstructions in the criminal justice system. This is also the main and primary reason why trial courts are not very liberal in granting bail, since they have the apprehension of the accused absconding from the trial. The cases which have hit the headlines in recent years are not the only ones in which the accused has absconded but there are plenty of other such cases where the trial suffers due to the reason that the main (or, some other) accused is absconding. (In fact, in case of certain economic offences, there is now a special law viz. Fugitive Economic Offenders Act, 2018, which lays down a procedure to counter this situation).

II. Legal provisions

Generally, the rule is, when the facts of the case show that the accused persons have committed the offences with which they were charged and that those offences were committed in the course of same transaction, they should consequently be charged and tried together. Where the offence is alleged to have been committed not just by one person but multiple persons, all these persons can be jointly tried in respect of such offence.

The Code of Criminal Procedure, 1973 (‘CrPC’) provides scenarios where multiple persons may be charged and tried jointly – for instance, persons accused of the same offence may be tried together, or a person who has abetted an offence may be tried with the person who has committed such offence, or persons accused of having committed different offences but in the course of the same transaction may also be tried together (refer section 223 of CrPC). Thus, in the interest of procedure, time, and natural justice, in case of multiple persons who are so closely connected to each other qua the offence, the court would prefer to try them jointly.

As a part of the procedure, next comes section 273 of the CrPC. This section makes it obligatory that all evidence, either for the prosecution or the defence, should be taken in the presence of the accused. This section is, again, based on the philosophy that all things and events that take place in the court (the most crucial of which is the admission of evidence) should be done in the presence of the accused.

Now, reading the above two sections together, we are presented with a situation that if multiple persons are accused in an offence, they would be tried together and jointly, and all evidence would need to be admitted in the presence of ‘all’ of them. This, as any layman would guess, would more often than not, stall the process, and in some cases make it reach a complete deadlock.

Though section 299 of the CrPC provides an exception to the above, such section is not a complete remedy. Section 299 states that the prosecution evidence can be recorded in the absence of the accused and can be used against him, in case the witnesses, who had earlier deposed, has died by the time the accused was arrested, or such witness has now become incapable of giving evidence. This section is, thus, a safeguard against the loss of crucial prosecution evidence which may arise because of the absconding of the accused person. However, it is obvious that this section has a very limited applicability.

Considering the above situations involving a complete stalling of the proceeding, courts resort to section 317 of the CrPC. This section, inter alia, empowers the courts to proceed with the trial in the absence of the accused person if the court feels that his personal attendance is not necessary in the interests of justice. The court would necessarily have to record reasons for doing so. Later on, if and when the court desires, the personal attendance of such accused person may be required by the court. It is to be noted that the term ‘interests of justice’ is to be widely interpreted and includes a scenario where the trial is getting stuck or stalled because of the accused person absconding and not participating in the trial.

III. Practical scenarios when courts may order separation of trial

(i) Absconding Persons: The Madras High Court in the case of H. Aarun Basha V. The State 2018 SCC OnLine Mad 12845 issued certain guidelines which have to be kept in mind while dealing with the cases of absconding accused. These guidelines inter alia provided that:

‘When there are several accused persons in a case and only some of them have appeared before the court and if the court is satisfied that that the presence of other accused cannot be secured, the court may split up the case if it satisfied that such splitting up will cause no prejudice either to the prosecution or to the accused who are in attendance. Before splitting up of the case, the Magistrate Court shall follow the same procedure mutatis mutandis just like any other criminal case. After splitting up of the case, information regarding split up case shall be given to the Sessions Court, and it shall assign a new number to the split-up case and communicate the same number to the Magistrate Court. If the absconding accused appears before the court, the Magistrate Court shall comply with section 207 or 208 of CrPC’.

(ii) Persons residing outside the country and there is no legal means available (e.g., no treaty or an uncooperative jurisdiction) to service processes upon them: Section 105 of the CrPC, provides for reciprocal arrangements to be made by Central Government with the foreign governments with regard to the service of summons / warrants / judicial processes. Under this provision, India has entered into several treaties (e.g., Mutual Legal Assistance Treaties). In respect of other countries, the Ministry attempts to serve the judicial papers by giving an assurance of reciprocity. However, despite the government’s best efforts the summonses and other judicial processes get delayed for various reasons and there is no other legal means available to service processes upon the people residing in other countries. In such situations, therefore, to ensure that the trial is not stalled, the court may order for the trial to be separated in case of persons who are residing outside India and who cannot be duly served with the process.

As explained above, the courts may separate or split up the trial in the interests of justice. However, it is now pertinent to take note of certain key issues that arise due to such splitting up or separation.

IV. Key problems in separating trials

(a) Admission and examination of evidence in the court may have to be done multiple times:

If the trial is separated, the admission of each and every evidence will have to be done multiple times causing delay in the process of the court. It is to be noted that the entire evidence law in India (i.e., primarily the Evidence Act, 1872) carefully lays down the procedure for the admission of various kinds of evidence, and such procedure has to be scrupulously followed to ensure the admissibility, reliability, and testing of such evidence. Consider the following: if the trial was initially a joint trial for multiple persons, it would have been so because such persons would be interrelated to each other qua the offence(s) or the transaction. This means that the evidence in relation to such offence(s) or transaction would necessarily be the same. Separating itself therefore means that the evidence would have to be given multiple times.

(b) If the transactions involved in the commission of the offence are interconnected and the roles of the various persons are to be examined together and are closely related to each other:

In very many cases, where either the various steps or the various offences in the same transaction are so intrinsically connected to each other that they comprise an indivisible whole, the real truth cannot be discovered if the trial is separated. For instance, in economic offences, the nature of enquiry and subsequent investigation is complex and different than the investigation of other crimes like murder and robbery. The evidence in these cases is generally documentary in nature, and all the documents have to be read and understood together to figure out the real essence of the transaction. Due to this reason the trial of these offences is complicated in itself as various persons and steps are closely related to each other and are to be examined together for the purpose of finding out different offences which these persons have committed during the conduct of such transactions or offences.

Once the application of separation of trial of these kinds of offences gets accepted, it would become impossible to determine the true role of each and every person involved in such kind of offence. It would be similar to the famous six blind men and the elephant in the dark room story, and it would be rather impossible to unravel the complete truth.

One of the problems in these type of offences is that it becomes difficult to determine that who will be responsible while the offence is done at the decision making level of the firms or companies, because in many cases it can be seen that decision making is fragmented and not there in the hands of a single person, besides, the persons who are making the decision can practice some concerted ignorance so that they can shield themselves from the criminal liability.

V. Conclusion

In India, separation of trial is not frequently ordered by the courts during the trial of the cases due to which the number of trials pending in country is on rapid rise. Although the trial courts have been given this power of separation under section 317 of the CrPC, it appears that section 317 CrPC is also not exhaustive of all circumstances in which a direction for separation of trial can be made. It only enumerates some of the circumstances in which separate trial of one or more accused from that of the rest can be ordered. Hence, a wide interpretation of this section must be made while separating the case of the absconding accused to overcome the problem of delayed, stalled, and consequently pending trials in India.

Authored by Jitin Bharadwaj, Metalegal Advocates. The views are personal and do not constitute legal opinion.


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