In such circumstances, the court will have to apply the provisions of Section 319 of the Code of Criminal Procedure, while the investigation could seek to conduct a further inquiry under Section 173(8) under the same provision.
Additional Advocate General (Karnataka) K M Nataraj explains that the provisions of Section 319 of the CrPC can be applied in the case of the Mumbai trial, considering the fact that there is a new accused -- David Headley.
This is an extraordinary power granted to the trial courts where it can proceed against persons who appear to be guilty of the offence. Under this provision, Headley can be made an accused in the case and a fresh trial against him will be conducted. The ongoing trial against the rest of the accused will not be affected and will go on as usual and at the specified time.
In the current circumstances, the investigating team could seek permission under Section 173 (8) of the CrPC to conduct further investigation. Such an application would have to be filed before the trial court. However, the investigation agency must also seek details of the Federal Bureau of Investigation report filed before the Chicago court, and this would be done by seeking a letter rogatory.
Legal experts say that there would be no need for a fresh chargesheet in this case and if the prosecution feels that there is sufficient material against the new accused, it could use its extraordinary power to name this person as an accused.
However, for the trial to proceed against Headley, he will have to be brought down to India. The police will first have to verify the claims of the FBI and use the mutual legal assistance system to get him extradited. Once they are completely satisfied about his involvement, they could either inform the court or even file an additional chargesheet against him.
Experts say that there should be no problem in bringing Headley to India, since he is wanted in a case that has occurred India and there should be no legal issues.
Until Headley comes down to India, the trial in the 26/11 Mumbai case will be split up -- the trial against the rest of the members will proceed and Headley's trial will commence only after he is brought down here.