J.D Kapoor, J.:— Both the above petition Nos. Crl. M (M) 3168/2003 and Crl. M (M) 3171/2003 stand disposed of by the following common order as not only the parties are common, but the question of law and facts involved therein are identical.
2. Short question involved for determination is whether in a complaint case or for that purpose in a case filed on the police report, Court can split the trial in respect of those accused persons who are appearing before the Court and simultaneously continue the proceedings against those whose presence is still being procured through some process or the other. In other words can the court create multiple stages in one trial.
3. Impugned, order dated 2nd June, 2003 passed by Sh. S.N Dhingra, Additional Sessions Judge, New Delhi has been challenged as to the mode of trial adopted by the learned ASJ, as out of as many as ten accused persons, notice of offence was given to three of them and after they entered into the plea of not guilty, the learned Additional Sessions Judge fixed the case for complainant's evidence against these persons and at the same time listed the matter for the appearance of the remaining accused including the petitioner.
4. Impugned order has been assailed on the following premises:—
(i) That it is against the provision of Section 223 Cr.P.C, according to which persons accused of the same offence committed in the course of same transaction are to be charged and tried together;
(ii) It is violative of Article 20 of the Constitution of India in as much as petitioners were forced by the Court to disclose their defence which they did by way of written defence and thereby the court not only provided an opportunity to the complainant to modify or adjust their case by filling up the lacuna but also compelled the accused to be witness against him which is prohibited by Article 20.
(iii) It is for the complainant or the prosecution to prove the case against the accused and not for the accused persons to first come out with their defence.
5. Procedure for stating substance of accusation to the accused in a sum mons case is laid down in Section 251 Cr.P.C whereas the procedure for framing charge in a warrant case is provided in Section 240 Cr.P.C Both these provisions need to be reproduced to discern the distinction between the pro cedures in a summons case and a warrant case. Section 251 Cr.P.C is as under:—
“252. Substance of accusation to be stated.
When in a summonscase the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.”
6. Section 240 provides as under:
“240. Framing of charge.
(1) If, upon such consideration examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.”
7. Bare perusal of these provisions shows that after stating the particulars of the offence in a summons case the court shall first ask him whether he pleads guilty and in case the accused does not, he shall then be asked what defence he has to make. It is only in a warrant case where the charge is framed that the accused is asked whether he pleads guilty of the offence charged or claims to be tried. Expression “claims to be tried” impliedly means that the accused pleads not guilty and therefore claims to be tried. In that case the Magistrate cannot ask the accuse to what defence he has to make. This distinction is because of summon cases being ordinarily triable summarily and not by way of a full dress trial required in a warrant case.
8. To say that the accused or the petitioners were only required to enter into plea of not guilty and could not have been asked to make their defence, is not correct. Again to say that disclosure of defence by the accused in reply to the statement of particulars of offence is violative of Article 20 of the Constitution of India is difficult to accept as under Section 251 Cr.P.C itself the accused is required to state his defence in case he does not plead guilty. As a consequence, the contention that the accused cannot be allowed to first come out with his defence looses its force. However, there is no gainsaying the fact that it is incumbent upon prosecution to first prove its case beyond doubt.
9. However, as regards the contention that the Additional Sessions Judge vide impugned order could not split up the trial by serving notice under Section 251 Cr.P.C on some of the accused persons and simultaneously continue the proceedings for appearance of the remaining accused answer is provided in section 223 of Cr. P.C It provides as under:—
“223. What persons may be charged jointly.
The following persons may be charged and tried together, namely:—
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and person ac cused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such of fence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:
Provided that where a number of person-are charged with separate offences and such persons do not fall, within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.”
10. It is apparent that Section 223 prescribes that the persons accused of the same offence committed in the course of same transaction are to be charged and tried together. So much so Section 223 even requires the Court to frame the charge and try even those persons who are accused of more than one offence of the same kind or different offences committed in the course of same transaction.
11. In the instant case, a complaint was filed under Sections 138/132/142 of the Negotiable Instruments Act on account of the dishonour of the cheque issued by the Company of which the petitioner and co-accused happen to be Chairman, Managing Director and Directors. As many as ten persons were arrayed as accused. As is apparent, all of them were accused of the same offence committed in the course of the same transaction. Cheque was issued on behalf of the Company whereas all the Directors including the Chairman and Managing Director were accused of having committed the offence on account of their being incharge of and responsible for the affairs of the Company at the relevant time. In such a circumstance, there was no other option open to the learned Trial Court than to try all of them together.
12. As in the warrant case charges are framed against all the accused persons together, similarly in a summons case also notice containing particulars of the offence has to be given to all the accused persons together, as it is not permissible to create multiple stages of proceedings in one trial.
13. Splitting of trial against some of the accused and simultaneously continue with the proceedings of procuring the presence of remaining accused is neither legally permissible nor congenial to the trial as it has to be intermit-tently subjected to fits and starts and the possibility of de novo trial, if even one of the accused appears at the fag end cannot be ruled out.
14. It is not understandable as to how the evidence of the complainant will be recorded simultaneously with the proceedings for procuring the presence of the remaining accused persons. If at one stage or the other one or two of them appear, it will be incumbent upon the learned Trial Court to serve notice under Section 251 Cr.P.C and again recall the witnesses who have already been examined, for fresh examination in their presence. No witness can be allowed to be examined in the absence of accused until and unless he is declared proclaimed offender.
15. If the Trial Court was chary of expeditious trial it could have expedited the proceedings by issuing coercive process and declare those persons whose presence was difficult to procure as Proclaimed Offenders as per provisions of 82 and 83 Cr.P.C
16. In view of the foregoing reasons the petition is allowed, the impugned order dated 2nd June, 2002 whereby the trial was split up is set aside as it suffers from inherent infirmity and illegality. Learned ASJ is directed to proceed in accordance with the provisions of law by way of serving notice under Section 251 Cr.P.C upon all the accused persons and try them together.