LexBABUBHAI BHIMABHAI BOKHIRIA & ANR. versus STATE OF GUJARAT & ORS.
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[2013] 1 S.C.R. 665 BABUBHAI BHIMABHAI BOKHIRIA & ANR. A v. STATE OF GUJARAT & ORS. -(CRLMP NO. 20502 OF 2008 AND NO. 24292 OF 2011) in Petition for Special Leave to Appeal (Crl.) B No. 9184 of 2008 JANUARY 30, 2013 [T.S. THAKUR AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.] C CONSTITUTION OF IND/A, 1950: Art. 21 read with s. 319 CrPC - Right to speedy trial - SLP of newly added ccused, referred to Constitution Bench 0 . - Court granting stay - Prayer by one of the accused seeking vacation of stay order/grant of bail - Held: Stay order modified to the effect that while stay of trial of newly added accused shall continue qua him only, trial court shall be free to proceed with trial qua other accused persons - Constitution of India, 1950 - Art. 21. CODE OF CRIMINAL PROCEDURE, 1973: E s. 319 -Power to proceed against other persons appearing to be guilty of offence - Held: The words "could be F tried together with the accused" ins. 319(1) appear to be only directory- "Could be" cannot under the circumstances be held to be "must be" and the opinion formed by court on the basis of evidence would not be nullified - Even if addition of new accused is ultimately held to be justified, mere fact that trial G of remaining accused had already concluded would not prevent prosecution of newly added accused for offences for which he has been summoned by trial court. The petition for special leave to appeal arising out of 665 H 666 SUPREME COURT REPORTS (2013] 1 S.C.R. A the order adding the petitioner as a co-accused in a case pending before the Court of Session for offences punishable u/ss 302, 201 read with s.34 and ss. 120-B, 465, 468 and 471 IPC, s.25 of Arms Act and s.135 of Bombay Police Act, was referred to a Constitution Bench. B In Crl. Misc. Petition No. 20502 of 2008 filed in the SLP, the Supreme Court, by order dated 17.12.2008 granted stay. Crl. Misc. Petition No. 24292 of 2011 was filed by one of the co-accused seeking to add himself as a party to the instant proceedings and for vacation of the order c dated 17.12.2008 by which further steps in the case were stayed. In the alternative the applicant prayed for bail. By order dated 8.12.2011, a three-Judge Bench allowed the prayer for impleadment and directed that grant of bail be considered by the regular Bench. Accordingly, Crl. Misc. 0 Petition No. 20502 of 2008 and Crl. Misc. Petition No. 24292 of 2011 came to be listed before the instant Bench. Allowing the criminal miscellaneous petitions in part, the Court E HELD: 1.1. A perusal of the order dated 17.12.2008 makes it evident that while the prayer was simply for stay of operation of the High Court's order, the direction issued by this Court stayed further steps in the case. "Further steps" would mean not only stay of the addition F of the petitioner but also stay of any further action in relation to the trial which had by that time concluded before the trial court. So long as the petitioner is not tried, pursuant to the order passed against him, he had no objection to the trial court concluding the proceedings G against the remaining accused persons. If the petitioner as dominus litis has no objection to the continuance and conclusion of the trial in his absence qua other accused persons and is not, therefore, asking for stay of the trial qua everybody, there is no justification for granting him a relief larger than what is prayed for. [para 11) (673-E-F, H G-H; 674-A-B] BABUBHAI BHIMABHAI BOKHIRIA v. STATE OF 667 GUJARAT 1.2. Besides, prosecution has already examined as A many as 134 witnesses at the trial. With the addition of the petitioner as accused, all those witnesses shall have to be recalled for a fresh examination and the trial would go on for a few more years. This would in turn mean that the right of the accused to a speedy trial will be in serious B jeopardy on account of the entire process being resumed de novo. The essence of Art. 21 lies not only in ensuring that no citizen is deprived of his life or personal liberty except according to procedure established by law, but also that such procedure ensures both fairness and an· c expeditious conclusion of the trial. [para 16 and 18] [676- E-G; 677-G-H] Hussainara Khatoon and Ors. v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 91; A. R. Antu lay v. R. S. Na yak 1991 (3) Suppl. SCR 325 = (1992) 1 sec 225; and Sher D Singh v. State of Punjab (1983) 2 SCC 3
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