JUDGMENT
J.D. Jain, J.
(1) The facts giving rise to this criminal revision under Section 397 read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as “the Code”), in brief are that the complainant was carrying on business as Managing Director of the firm M/s. House of German Machinery and was also functioning as an industrial consultant engineer at the relevant time. He was also the sole representative in India of various manufacturing concerns of repute of Western Germany. The petitioner imported certain machinery from Germany for displaying the same in the International Industries Fair held in November 1961 after obtaining a val?d Customs Clearance Permit from the Chief Controller of Imports, New Delhi, for the said purpose. When the goods arrived at Delhi the aforesaid exhibition was already in progress but the goods could not be cleared on account of certain objections raised by the Customs Department who refused to release the goods. Eventually, however, the petitioner succeeded in getting the goods cleared on compliance with certain formalities as required. The Customs Clearance Permit permitting the petitioner to retain the goods was extended up to 1st June 1982. He applied for its extension, but while his application for the said purpose was still pending B. Saha, Appraiser Customs (accused No. 1) accompanied by other Customs officials, namely, N. K. Nayyar, P. N. Suri and U. S. Tewari (accused Nos. 2 to 4) raided the premises of the petitioner on 16th June 1962 pursuant to search warrant obtained from the Illaqa Magistrate and seized the imported machinery and some goods and cash belonging to the petitioner. Two inventories were prepared by the accused persons at the time of the seizure and the seized goods were then packed in boxes which were duly sealed. A copy of the recovery memo was given to the petitioner also.
(2) On 28th November 1963 the petitioner moved an application before the Sub-Divisional Magistrate. Karol Bagh, praying for interim custody of the goods seized by the Customs officials on superdari because the condition of the said goods was likely to deteriorate unless they were kept in proper condition ; moreover the Customs Department had not instituted any complaint against him for unlawful import etc. The Sub-Divisional Magistrate passed an order on 22nd January 1964 directing delivery of the seized goods to the petitioner on superdari on his furnishing a bond in the sum of Rs. 21,000.00 only. Feeling aggrieved by the said order, the Customs Department field a revision petition in the Court of Sessions Judge and obtained a stay order on 7th February 1964. Eventually, however, the revision petition’ was dismissed by an Additional Sessions Judge vide his order dated 3rd April 1965. Still not satisfied the Customs Department filed another revision petition in the High Court. However, in the meanwhile they delivered part of the seized goods, which were to their custody, to the petitioner. Vide order dated 22nd August 1966 this Court directed that all the goods which were in the custody of the Customs authorities as also the goods which had been handed over to the petitioner on superdari be produced before the Sub-Divisional Magistrate who would prepare an inventory of all the goods and keep the goods in his own custody. Accordingly, both the petitioner and the Customs officials produced the goods in their respective custody and two inventories were prepared, one on 16th November 1966 and the other 13th December 1966. However, it was then noticed that the four packages, which were in the custody of the Customs officials, had been tampered with: one wooden box as also its seal was found broken while the remaining three packages were found to be completely empty although seals were still intact. The petitioner, thereupon, lodged a protest and complained of misappropriation of the goods which were in the custody of the Customs officials.
(3) On 31st January 196/ the petitioner instituted a complaint against all the above mentioned four Customs official under Sections 120-B/166/409, Indian Penal Code (for short IPC’). Slating the foregoing facts he contended that the .acclaimed hp^ entered into a criminal conspiracy for misappropriation of the aforesaid goods and that was the reason why they did not produce the seized goods pursuant to order dated 22nd January 1964 of the Sub-Divisional Magistrate. It may he noticed here that in the meantime a complaint was instituted by the Customs Department against the petitioner under Section 5 of the Import and Export Control Act and Section 167(81) (J of the Sea Customs Act against the petitioner on account of contravention of the provisions of the said Acts and the Rules, but they did not produce some of the goods seized by them before the Sub-Divisional Magistrate when directed to do so. It was therefore alleged that the accused had withheld & misappropriated those goods and did not comply with the under of the Sub-Divisional Magistrate turn producing the same deliberately.
(4) On entering appearance the accused raised a preliminary objection to their prosecution for want of the requisite sanction under Section 155 of the Customs Act, 1962 and Section 197 of the Code. The objection was sustained by the trial Court as also by the Sessions Judge in whose court a revision against the order of the trial Court was filed. However, the petitioner successfully challenged the said orders in this Court and M. R. A. Ansari, J. directed the trial Court to proceed with the trial in accordance with law. Not satisfied with the judgment of this Court the accused persons went in appeal by special leave to the Supreme Court but met with no success. The judgment of the Supreme Court dated 27th July 1979 is reported as B. Saha & others v. M. S. Kochhar, 1979 Chandigarh Criminal Cases 157. (1) The Supreme Court held that the alleged act of misappropriation or conversion could not reasonably be said to be imbued with the colour of the office held by the accused and, therefore, sanction of the appropriate Government was not necessary for their prosecution under Section 4091120-B, Indian Penal Code .
(5) Consequent upon the judgment of the Supreme Court, B. Saha P. N. Suri and N. K. Nayyar appeared in the trial Court although after a long time. However, U. S. Tewari accused has not put in appearance so far. The contention of the petitioner is that he is intentionally evading service of summons and not appearing in court. It would appear that Tewari left the service of the Customs Department, and took up a job at Tata Nagar. He appeared as a witness in the complaint case filed by the Customs Department against the petitioner under Section 5 of the Imports and Exports Control Act for the alleged violation of the import license. He gave his address as resident of 3, Narbada Road, Gulmuri. Tata Nagar (Bihar) Summons as well as warrants of arrest were. issued repeatedly by the trial Court but in vain. The trial Court even addressed a letter to the Chief Judicial Magistrate, Tata Nagar. on 5th April 1983 requesting him to ensure the execution of the non-bailable warrants of arrest and production of Tewri in his court on or before the next date of hearing, viz. 16th July 1983. However, neither the non-bailable warrants of arrest were served upon accused Tewari nor any reply was received from the Chief Judicial Magistrate. This exercise was repeated and fresh non-bailable warrants of arrests were sent to the Chief Judicial Magistrate, Tata Nagar, but in vain. On 29th June 1984, the learned Magistrate passed an order for separating the trial of the accused who had entered appearance from that of U. S. Tewari. He, inter alia, observed that the complainant had been asked to take dusty warrants of arrest and get the service effected on Tewari, but he did not comply with the said order and insisted that the warrants be issued direct to the Chief Judicial Magistrate, Tata Nagar. He also noticed that the other accused were attending the court regularly arid were praying for a separate trial under the circumstances.
(6) Aggrieved by the said order, the petitioner has come up with this petition for quashing the same as being illegal and contrary to the procedure prescribed under law.
(7) The learned counsel for the petitioner canvassed with considerable fervour that the impugned order of the learned Magistrate directing separate trial of Tewari is totally unwarranted by law and the only course open to him was to record evidence of the prosecution in the absence of Tewari after complying with the provisions of Section 299 of the Code (corresponding to Section 512 of the old Code). His line of argument precisely is that where an accused is absconding and there is no immediate prospect of his arrest the only course open to the Court is to record prosecution evidence in absentia so that the same may be used against the absconding accused at a later stage, if and when he is arrested and tried for the offence with which he may be charged. However it was not open to the learned Magistrate to detach the trial of the absconding accused from that of his co-accused who are present arid available to the court for trial. In other words, the Magistrate was bound to keep the case pending and revive the proceedings on his arrest and production in court.
(8) On a consideration’ of the matter, however, I am not at all persuaded to accept this contention. On the plain language of Section 299 it is manifest that the object of the provision contained therein is to ensure that important evidence is not lost by the time an absconding accused is arrested. The general rule is that all evidence in a criminal trial shall be taken in the presence of the accused or when’ his personal attendance is dispensed with in the presence of his pleader. So, the special rule of evidence indicated by this Section is an exception to the general rule. It aims at preserving the evidence against the absconding accused so that even if the witness whose evidence has been so recorded is not available on account of death or otherwise as stated in the Section’ itself the same can be pressed into service against the said accused if and when he is brought to trial. Obviously this Section can be resorted to only when it is proved that the accused person has absconded and there is no immediate prospect of his arrest. It is also well settled that evidence given at the trial against the co-accused of the absconder or other persons cannot by an ex post facto operation be converted as evidence recorded under this Section and used subsequently at the trial of the absconding accused after his arrest unless, of course, the evidence has been specially recorded under this Section and the other conditions as to its admissibility are present. There is abundant authority for the proposition that Section 512 of the old Code (to which Section 299 corresponds) represented an exception to the provisions of Section 33, Evidence Act, which itself is an exception to the general rule that only evidence recorded in the proceedings in question and in the presence of the parties can be made use. of. The object and purpose of Section 512 is not to protect an accused from being proceeded against by way of trial or inquiry because of his abscondence but are on the contrary to protect evidence against the accused which would be available at the time of the proceedings at a later stage after the absconding accused is secured. Reference in this context may be made with advantage to State of Hyderabad v. Bhimaraya, 1953 Cri. L. J. 524 (Hyderabad), (2) in re : Nomula Laxminarayana. 1963 (1) Cri. L. J. 517 (Andhra Pradesh High Court) (3) State of Mysore v. Sanjeeva, Air 1956 Mysore 1(4) and Gavisiddiah v. The State of Karnataka, 1975 Cri. L.J. 285 (Karnataka High Court). (5)
(9) Evidently the name of Tewari has not been detected from the array of accused persons and all that the learned Magistrate has done is to order separate trial of Tewari from that of other accused who are actually present and available in court for trial with a view to avoid undue harassment and expense to the latter. The short question for consideration, therefore, is whether such an order can be made under law.
(10) The law on the subject of joinder of charges and joint trials is contained in Sections 218 to 223 of the Code which correspond to Sections 233 to 239 of the old Code. Section 218 lays down that for every distinct offence for which any person is accused there shall be a separate charge and every such charge shall be tried separately. Thus, the framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence is the foundation for a conviction and sentence therefore. In other words, separate trial is the rule and joint trial the exception; Sections 219, 220, 221 and 223 being exceptions to the general rule. Section 223 in terms deals with “what persons may be charged jointly” and lays down the categories of persons who may be charged and tried together. Thus, it is only under Section 223 that the joint trial of several accused persons is permissible. However, it is well settled that it is not obligatory on the court to hold a joint trial. This is manifest from the words “may be tried together” appearing in the opening sentence of the said Section. The obvious object of enacting Section 223 is to avoid multiplicity of trials. Hence, it is in the discretion of the court to adopt whichever course it thinks fit but the discretion being judicial one it has to be exercised according to certain well established principles. The court must exercise its jurisdiction under this Section fairly and honestly so as to promote the cause of justice rather than not.
(11) Dealing with the scope of Sections 233, 234, 235, 236 and 239 of the old Code, the Supreme Court observed in Purushottamdas Dalmia v. State of West Bengal, that: “AS Sections 235 and 239 of the Code are enabling sections, the Legislature, rightly, did not use the expression which would have made it incumbent on the Court to try a person of the various offences at one trial or to try various persons for the different offences committed in the course of the same transaction together. The omission to make such peremptory provision does not necessarily indicate the intention of the legislature that the Court having jurisdiction to try certain offences cannot try an offence committed in the course of the same transaction, but beyond its jurisdiction.”
Observed the Supreme Court in The State of Andhra Pradesh v. Cheemalapati Ganeswara Rao and another, : "THE object of enacting Section 239 is to avoid multiplicity of trials arid the only limitation which could ' properly be placed on the trial of several persons for the same kind of or different offences would be that which considerations of justice and fairness would require." Their Lordship further said that : "ON a plain construction of the provisions of Section 239 it is open to the Court to avail itself cumulatively of the provisions of the different clauses of Section 239 for the purpose of framing charges and charges so framed by it will not be in violation of the law, the provisions of Sections 233, 234 and 235 notwithstanding." Reference in this context may also be made to the following observations of the Supreme Court in Chhutanni v. The State of Uttar Pradesh, : "THERE is no illegality or irregularity in holding separate trials of the same accused persons even in cases where a single trial could have been permissible under the Code of Criminal Procedure." (See also R. S. Nagarwala v. State, 1972 Rlr 73) (9). (12) It is thus abundantly clear that there is no mandatory provision of law laying down that where separate trials can be held under the general rule the Court must hold a joint trial if the case does fall within one or other of the provisions that permit the holding of a joint trial.
(13) Finding himself in this predicament the learned counsel for the petitioner made a rather feeble attempt to urge that having regard to the fact that there is an accusation of conspiracy which is an independent offence under Section 120-B. I Pc, it was but meet and appropriate that all of them should have been tried together. There can hardly be two opinions on this aspect of the matter because the desirability of the trial together for an offence of criminal conspiracy and all the overt acts committed m pursuance thereof is self-evident. Indeed there is ample authority for the proposition that all the offences committed in the course of the same transaction and the offence of conspiracy should normally he tried together and they afford one good test for exercising the discretion in favor of a joint trial. However, this wholesome principle will not in any mariner detract from the discretion vesting in the court to hold joint trial of all the accused or not. One sound test for exercising the discretion one way or the other would be to see ‘ whether it would lead to the prejudice or harassment of the accused. It the court comes to the conclusion that in given S circumstances adherence to joint trial will cause avoidable hardship and expense to the accused person before it, it would ‘certainly be sound exercise of the discretion to order separate trial of such of the accused whose presence could not be secured despite repeated efforts and there is no immediate prospect of securing his attendance by arrest or otherwise. It may be pertinent to notice that sub-section (2) of Section 317 of the Code affords an illustration of the circumstance under which a Magistrate can order that the case of an accused be taken up B or tried separately. So it cannot be said that splitting of joint trial is unknown to criminal law.
(14) A perusal of the judicial record in the instant case would show that the learned Magistrate made repeated endeavors to secure the arrest of Tewari. Unfortunately there was absolutely no response from the Chief Judicial Magistrate, Tata Nagar, although warrants of arrest of Tewari were sent under covering letter addressed to him. So even though in the fitness of things it would have been advisable to hold a joint trial having regard to the nature of accusation levelled against all the four accused it cannot be said by any stretch of reasoning that the impugned order directing separate trial of Tewari is vitiated or suffers from any legal infirmity. It is not understandable how the petitioner is prejudiced by the impugned order so long as the name of Tewari is not deleted from the array of the accused. Every effort will have to be made to procure his attendance and put him on trial albeit separately.
(15) It may be pertinent in this respect to bear in mind that the alleged offences in the instant case were committed way back in 1963-64. Even the complaint was instituted in February 1967 i.e. 19 years ago. However, the accused successfully thwarted commencement of the trial uptil 1979 by raising the preliminary objection that the court could not take cognizance of the offences under Sections 120-B & 409 Indian Penal Code without prior sanction of the competent authority. Thereafter, Tewari failed to appear in court and his presence could not be secured despite repeated attempts. He is apparently a fugitive from justice. So apart from resorting to proceedings under Section 299 of the Code which course will be still open to the trial Court and Indeed will have to be followed in case arrest of Tewari cannot be secured, it was certainly open to the learned Magistrate to separate his trial with a view to avoid undue hardship and expense to the other accused. Such a step is certainly conducive to the larger interest of justice.
(16) In State of Bihar v. Uma Shankar Kotriwal & Others, the trial of the accused had not made much headway even though a period of twenty years had gone by. The case was under Section 7 of the Essential Commodities Act. A learned Single Judge of the Patna High Court quashed the entire proceedings on the ground of colossal delay in the completion of trial. In special leave to appeal, the Supreme Court refused to interfere with the order of the High Court even though the accused themselves were responsible in large measure for the slow pace of the case. Said the Supreme Court : “SUCH protraction itself means considerable harassment to the accused not only monetarily but also by way of constant attention to the case and repeated appearances in court, apart from anxiety. It may well be that the respondents themselves were responsible in a large measure for the slow pace of the case inasmuch as quite a few orders made by the trial Magistrate were challenged in higher courts, but then there has to be a limit to the period for which criminal litigation is allowed to go on at the trial stage.”
(17) See also Leela Menon v. State, 21(1982) Dlt (SN) 24, (II) where a learned Judge of this Court following the afore- said authority held “that the High Court in exceptional circumstances has the power to quash the proceedings on the ground of delayed trial is now settled.”. If that be so, there can be no escape from the conclusion that the impugned order of the learned Magistrate directing separate trial of Tewari is eminently just and proper having regard to the protracted litigation over a period of 19 years. Hence, there is absolutely no ground for this Court to interfere with the same.
(18) This petition is accordingly dismissed as being devoid of any merit. The parties are, therefore, directed to appear in the trial Court on 3rd April 1986 for further proceedings. The learned Magistrate shall make every endeavor to expedite the trial and finish it as far as possible by the end of this year March 14, 1986.