Whether court can separate trial of accused on the basis of caste and religion in the case of communal riot?

Gujarat high court

 (Before Akil Kureshi, J.)

Additional Sessions Judge


State of Gujarat

Criminal Reference No. 1 of 2010

Decided on February 7, 2011

Citation: 2011 SCC OnLine Guj 951

1. Before adverting to the questions referred by the learned Additional Sessions Judge in-charge of Sessions Case No. 326 of 2008, brief facts need to be noted.

2. Against several accused belonging to rival groups of two different communities, an FIR bearing No. 75 of 2002 was lodged. The case pertained to post-Godhra riots where groups of persons belonging to Hindu and Muslim communities seem to have engaged in pitched battle. Ultimately, chargesheet was filed against several persons belonging to both the groups, giving rise to Sessions Case No. 326 of 2008.

After the stage of framing of charge was over, the State moved application Exh.50 and prayed that the trial be separated for both groups of persons, belonging to Hindu and Muslim communities respectively. The case of the State appears to be that the two groups belonging to different communities cannot have common object or common intention. Two communities, therefore, had to be tried separately. Learned Additional Sessions Judge then in-charge of the case, passed following order on 27.4.2009 below application Exh.50:-

“This application (exh.50) is allowed.

The present trial is ordered to be separated for both the groups i.e. Hindus and Muslims.

Since the investigating officer had submitted a common charge sheet and the learned Magistrate has also already committed the case to this court, the Registry is directed to register two separate sessions cases viz. One for Hindus group and second for Muslim group.

The learned APP Mr. R.C. Trivedi is directed to furnish one additional set of all the relevant case papers to the Registry within fifteen days from today, for registration it as separate sessions case for Muslim group.

The Registry is further directed to place the said separate sessions case before this court for trial together with this sessions case No. 326 of 2008.

After separation of trial, the charge exh.4 will be amended as per requirement.”

3. It is not in dispute that the said order dated 27.4.2009 was not challenged by any of the accused and thus achieved finality.

Subsequently, when the Sessions trial in Sessions Case No. 326 of 2008 was to proceed further, another Additional Sessions Judge now in-charge of the case found certain aspects of the matter legally unclear in view of the order for separation of trial. He, therefore, raised three questions for reference to the High Court, which questions read as follows:-

“1. Whether the court can separate trial of the accused persons against whom the charge is framed and recording of evidence is started without discharging them or recording the acquittal?

2. Whether the court of Sessions can take cognizance of the offence against the accused persons, when cognizance against them is already taken on a second charge sheet without any committal order of the competent court for the same offences?

3. Whether the trial of the accused persons can be separated on the basis of cast and religion?”

4. Learned Special Public Prosecutor Mr. J.M. Panchal for the State contended that the accused had not previously opposed the State application Exh.50. They now cannot raise any objection for separation of trial. Learned Judge committed an error in making the reference. He further contended that in any case, the trial of two communities, involved in the pitched battle cannot be a common trial since the two groups cannot be stated to have common intention or common object.

5. On the other hand, learned advocate Mr. Buddh bhatti appearing for one group of accused submitted that the questions referred need to be answered. The order for separation of trial was not correct.

6. Having perused the order of reference and other documents on record and having considered submissions made by the counsel for the parties, I am of the opinion that the questions referred do not arise for consideration of the High Court under Sub-Section (2) of Section 395 of the Criminal Procedure Code. Section 395 of the Criminal Procedure Code, pertains to reference that the Sessions Court or the Court of Magistrate can make to the High Court under certain circumstances, and which reads as follows:-

“395. Reference to High Court.-(1) Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the decision of the High Court.

Explanation.- In this section, “Regulation” means any Regulation as defined in the General Clauses Act, 1897 (10 of 1897), or in the General Clauses Act of a State.

(2) A Court of Sessions or a Metropolitan Magistrate may, if it or he thinks fit in any case pending before it or him to which the provisions of sub-section(1) do not apply, refer for the decision of the High Court any question of law arising in the hearing of such case.

(3) Any Court making a reference to the High Court under sub-section (1) or sub-section (2) may, pending the decision of the High Court thereon, either commit the accused to jail or release him on bail to appear when called upon.”

7. Since the question is not one of validity of any Act, Ordinance or Regulation, Sub-Section (1) of Section 395 does not apply for obvious reasons. The question is under Sub-Section (2) of Section 395 the present reference is maintainable or necessary, which pertains to power of a Court of Sessions or Metropolitan Magistrate to make a reference to the High Court on any question of law arising in the hearing of the case.

8. To revert back to the facts of the case, one finds that for whatever reasons, the request of the State for separation of trial was accepted by the previous judicial officer presiding on the trial. Such order was not challenged by the accused even if they were aggrieved. The order thus, becomes final. Such an order having attained finality, it was necessary that both trials be separated and proceeded further in accordance with law. The third question referred is whether the trial of the accused persons can be separated on the basis of caste or religion, is thus directly opposed to the judicial order previously passed by the Presiding Officer. In face of order dated 27.4.2009 no such question would arise. While deciding the reference, High Court cannot judge the validity of the previous order passed by the Sessions Court separating the trials. In a properly instituted proceedings, if the order was challenged, Court would have gone into legality thereof. No challenge was however made.

9. With respect to the other two questions referred also I find that in the order dated 27.4.2009, there was sufficient safeguard provided. For example it is provided that after separation of trial the charge Exh.4 will be amended as per requirement. This would clearly take care of the anxiety of learned Additional Sessions Judge, expressed in terms of first question referred. With respect to the sole surviving question No. 2 also I am of the opinion that the same is not arising out of any interpretation of legal provision. In my opinion, the reference itself was not necessary. The trial shall have to be proceeded in accordance with law on the basis of order of separation of trial ordered vide order dated 27.4.2009. While answering the questions referred, the High Court cannot entertain a challenge in disguise to the earlier order of separation of trials. All questions are essentially but indirectly questioning validity of order dated 27.4.2009 which has attained finality.

10. With above observations, reference is disposed of. Rule is discharged.

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