TMI Blog1970 (3) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... priate that the respondent should be tried for the conspiracy on the basis of which proceedings are being taken which have been quashed by the High Court. We, however, consider that it is sufficient to make a direction that the Magistrate will allow a period of not more than two months to the prosecution to produce evidence to make out a prima facia case against the respondent, calculated from the date on which the copy of our order is received by the trial Court. On the expiry of the period of two months, the Court will proceed either to frame a charge or to discharge the respondent. - 207 of 1969 - - - Dated:- 24-3-1970 - V. Bhargava and C.A. Vaidialingam, JJ. [Judgment per : V. Bhargava, J.]. - Respondent No. 1 Ghulam Sarwar (hereinafter referred to as "the respondent") who is a Pakistani national, was arrested on 8th May, 1964 under Section 104 of the Customs Act, 1962. Immediately after his arrest, he made a confession before a Magistrate. Since then, he has been in custody part of the time under Section 3(2)(g) of the Foreigners Act, 1946, part of the time as a convict in various offences for which he was convicted, and part of the time as an under-trial prisone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e retired for the same conspiracy, so that this trial was invalid. In the alternative, the respondent prayed that, in case the proceedings are not quashed, the proceedings against him be separated from other co-accused, his plea of guilty be recorded, and he be convicted in accordance with law. Two other alternative prayers were that, in case the first two prayers were not accepted, the trial Court may be directed to record the plea of guilty of the respondent and convict him in accordance with law even in the joint trial, and, in the alternative, the trial Court be ordered to take up the proceedings day to day and a time-limit may be fixed by which the complainant should furnish the evidence against the respondent before the Court. The High Court, by its order dated 11th September, 1969, accepted the plea of the respondent, held that this second trial for the offence of conspiracy was barred as a result of the earlier trial in which the respondent had been convicted on 31st January, 1969, and, consequently, quashed the proceedings in respect of this offence. The Court also quashed the proceedings in respect of specific offences under Section 135 of the Customs Act and Section 23(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent had incorrectly tried to show that there were two separate conspiracies in which he was involved. That appears to be the reason why, at the early stages, in the various documents put forward before the courts, the authorities used language indicating that there was one single conspiracy in respect of which the respondent was being held in custody and was going to be prosecuted. It appears that it was much later, after detailed investigation, that the authorities became satisfied that there were two separate conspiracies and, consequently, came forward with a second prosecution of the respondent in respect of the conspiracy which was not the subject-matter of the first complaint on the basis of which the respondent was convicted on 31st January, 1969. That the authorities were under the impression that there was only one single conspiracy at the earlier stages is apparent from the facts stated in the complaint dated 5th April, 1965 in respect of the substantive offence under Section 135 of the Customs Act, and even later, in an affidavit filed on 5th January, 1966 by the Under Secretary to Government in reply to the habeas corpus petition filed by the respondent in the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owers under Article 136 of the Constitution to order a trial of the respondent and reopen the proceedings. He drew our attention to two decisions of this Court in K.V. Krishnamurthy Iyer and Others v. The State of Madras - AIR 1954 S.C. 406 and The State of Bihar v. Hiralal Kejriwal and Another (1960) 1 SCR 726 in which this Court declined to order a re-trial in exercise of its powers under Article 136 of the Constitution even though the order in which the trials had terminated were held to be incorrect and set aside. In both the cases, the principle laid down was that public interest or the interest of justice did not require that there should be a fresh trial. Reliance was also placed on the views expressed by the Bombay High Court in Chudaman Narayan Patil v. State of Maharashtra - AIR 1969 Bom 1. On the basis of the views expressed in those cases, he urged that, in this case, the respondent had been in custody for a period of about six years since his arrest and was being harassed by prosecutions launched one after the other, while being kept in custody under Section 3(2)(g) of the Foreigners Act during the period when he could not be detained either as a convict or as an under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. 5.We, however, consider that, in view of the long delay and in view of the circumstance that the respondent has been pleading guilty, his second alternative request in the writ petition is justified. Merely because he is a co-accused with 45 others there is no justification that he should be subjected to a prolonged trial, specially because we have been assured by the counsel for the respondent that the respondent is still sticking to his confession and will, very likely, plead guilty as soon as a charge is framed against him. In the circumstances, while allowing the appeal and setting aside the order of the High Court, we direct that the trial of the respondent shall be separated from all other 45 co-accused and will be proceeded with separately. Dr. Seyid Muhammad. counsel for the appellant, opposed this separation of the trial of the respondent on the ground that, if there is a joint trial, the confession of the respondent can be taken into account by the court trying the case against his co-accused which will not be permissible if the respondent is separately tried. That is no ground for unnecessarily delaying the trial of the respondent specially when, if the prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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