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Judgment
Arunachalam, J.—Petitioner Subramaniam alias Valmanickam is one of the accused in C.C. No. 7 of 1992 pending on the file of Designated
Court No. II, Madras. He has pleaded for issue of a declaration or order or direction in the nature of a writ declaring R.17 of the Criminal Rules of
Practice as null and void.
In the affidavit sworn to in support of the prayer in the writ petition, Petitioner has stated that he was arrested by the second Respondent on
14.11.1991 for alleged commission of offences u/s 120-B, I.P.C. and Ss. 3(3), 4(1) 5 and 6 of the TADA Act, 1987, apart from Section 5 of
Explosive Substances Act. He was remanded to judicial custody after obtaining signature in plain papers for preparing statements, while he was in
police custody. Charge-sheet was filed on 11.9.1992. Totally there are 32 persons arrayed as accused in the aforesaid calendar case.
According to him, the prosecution case is that the Intelligence Wing of LTTE had instructed the accused to indulge in terrorist and disruptive
activities in Tamil Nadu, after completion of arms training in the use of fire-arms given to them by the LTTE. The object was to achieve separation
of Tamil Nadu from Indian Union to annihilate public servants or persons bound by oath under the Constitution of India to uphold the sovereignty
and integrity of India, to kill those who oppose LTTE in Tamil Nadu, to continue the activities of LTTE in Tamil Nadu, if the activities of LTTE had
to be discontinued due to some exigencies, and to seize arms from announces and police stations in Tamil Nadu. Pottu Amman, arrayed as A-1,
had also assured them monetary assistance, fire- arms and wireless communication sets required in this regard, to be provided by LTTE. The
affidavit further states that A-1 is not an Indian citizen. None of the other accused had seen him. According to them, he is an imaginary character
created by the second Respondent. Prosecution would allege that conspiracy was hatched by A-1 and others at Sri Lanka and was carried out by
others in India, Conspiracy requires a minimum of two persons. Since the second Respondent could not arrest A-1, he preferred a petition before
the Designated Court under Rule 17 of the Criminal Rules of Practice to separate the case against A-1. Designated Court, without notice to the
Petitioner and other accused, passed an order on 16.12.1992 splitting up the case against A-1.
It is the case of the Petitioner that R.17 of the Criminal Rules of Practice is liable to be struck down, since u/s 477, Code of Criminal Procedure
such a rule could not have been framed. Further, even under Article 227 of the Constitution of India, the High Court has no such rule-making
power.
Mr. S. Doraisamy, learned Counsel appearing on behalf of the Petitioner, contended that in the event of A-1 not being arrayed as an accused,
conspiracy charge cannot be proved. He also stated that charges have not yet been framed in this calendar case. He then contended that R.17 of
Criminal Rules of Practice will have to be struck down, as one framed without any authority of law and in any event non-service of notice to the
other accused before the case was split up, must be held to be not in consonance with law.
We have carefully considered the contentions put forth by Petitioner''s counsel. If, according to the prosecution, A-1 in this case is absconding,
it cannot be contended by the Petitioner, that a charge of conspiracy cannot be framed or evidence let in regarding that charge in the absence of A-
It will be the duty of the prosecution to show that the other accused against whom the trial is being proceeded with, were parties to such
conspiracy with A-1. If it were to be held, as contended by Petitioner''s counsel, that if certain accused are neither traceable nor absconding, a trial
cannot be proceeded with, that would lead to anomalous results. If certain accused choose to avoid Court proceedings cunningly and they are not
able to be traced with efficiency, the net result, in the event of accepting the arguments of Mr. S. Doraisamy, would be that there can be no trial at
all, whatever may be the gravity of the offence. Needless to state that the accused facing trial will have sufficient opportunity to cross- examine the
witnesses produced to challenge the non-existence alleged conspiracy as well as A-1 being a fictitious person.
It was then pointed out by Mr. S. Doraisamy that under S. 14(5) of the TADA Act, the Designated Court, notwithstanding anything contained
in the Code of Criminal Procedure, may, if it thinks fit and for any reasons to be recorded by it, proceed with the trial in the absence of the
accused or his pleader and record the evidence of any witness, subject to the right of the accused to recall the witness for cross-examination. It is
quite so. Even under the Criminal Procedure Code, under certain contingencies, trial can be proceeded with in the absence of the accused.
Mereby because such a provision is available, it cannot be contended that splitting up of a case cannot be done under any circumstances.
Criminal Rules of Practice have been framed in exercise of the powers conferred by Article 227 of the Constitution of India. Under Article
227(2)(b) of the Constitution, without prejudice to the generality of the ''foregoing provision'', the High Court may make and issue general rules
and prescribe forms for regulating the practice and proceedings of such Courts. It is therefore clear that the High Court would be competent to
make and issue general rules for regulating the practice and proceedings of Courts. Mr. Doraisamy argued that this sub-clause will only concern
itself with prescribing forms and nothing more. We are not able to agree. Let us see as to the power that is available under R.17 of the Criminal
Rules of Practice. When there are several accused persons in a case, and only some of them have appeared or been produced before the Court, if
the Magistrate is satisfied that the presence of other accused cannot be secured within a reasonable time, having due regard to the right of such of
the accused as have appeared, to have the case against them enquired into without delay, he shall proceed with the case as against such of the
accused as have appeared and dispose it of according to law. That is what exactly has happened in the pending prosecution. A speedy trial, as far
as the available accused, is the object behind such splitting up. Right to speedy trial under Article 21 of the Constitution has been recognised in a
catena of decisions. If this case has not been split up against the non-available accused, it will always be open to the Petitioner to contend that his
right to speedy trial gets thwarted.
Reference to S. 477 of the Code of Criminal Procedure does not appear to have any purpose, for Criminal Rules of Practice have been framed
under the authority of Article 227 of the Constitution. Even u/s 477 of the Code of Criminal Procedure, any other matter which is required to be or
may be, can be prescribed by every High Court with the previous approval of the State Government. We do not have to dwell on his aspect, for it
will be totally unnecessary.
In A.R. Antulay Vs. R.S. Nayak and Another, Supreme Court stated that an accused person cannot assert any right to a joint trial with his co-
accused. Of course, those observations were made in the context that the prosecution can decline to array a person as a co-accused and instead
examine him as a witness for the prosecution, for normally it is the right of the prosecution to decide whom it prosecutes. However, the principle
enunciated will equally apply to the issue involved in this writ petition. A Court owes a duty and obligation to conduct trial or enquiry as
expeditiously as possible and effectively too, and that is the crux of procedure established by law in the interests of justice. In one of its earlier
pronouncements, while considering a rule relating to preferring of a joint appeal. Supreme Court stated that the said rule dealt with the matter of
procedure and not of substantive rights and seemed to be based on sound common sense. Supreme Court described the procedure to be a hand-
maid and not a mistress of law, intended to subserve and facilitate the cause of justice and not govern or obstruct it. Observations extracted above
will squarely attract the instant facts.
We are unable to see any rhyme or reason in demanding for a notice to all the other accused before the case is split up. There can be no
violation of principles of natural justice, for the remaining accused are rather benefited than getting prejudiced. We see no substance in this
argument. The Court will have to use its judicial discretion on the need or otherwise to split up a pending prosecution. It can adopt that procedure
either suo motu or at the instance of either party. We practically find no merit in this writ petition, which shall stand dismissed.