CRIMINAL REVISION NO.2010 OF 2004 :{ 1 }
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: NOVEMBER 28 , 2008
Mahender Singh Kadian (Ex.Tehsildar)
.....Petitioner
VERSUS
State of Haryana
....Respondent
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
PRESENT: Mr. N. K. Sanghi, Advocate,
for the petitioner.
Mr. Yashwinder Singh, AAG, Haryana,
for the State.
****
RANJIT SINGH, J.
These two revision petitions bearing Criminal Revision
Nos.2010 and 2011 of 2004 (Mahender Singh Kadian
(Ex.Tehsildar) Vs. State of Haryana), filed by the same
petitioner are being disposed of together. In one petition, the
grievance is that the separate charges made in respect of two FIRs
be tried together as is envisaged under Section 219 Cr.P.C, whereas
in the second revision petition, contrary relief is claimed to urge that
these offences, which have been charged and are being tried
CRIMINAL REVISION NO.2010 OF 2004 :{ 2 }
together, should be tried separately in terms of Section 218 Cr.P.C.
Pleading that the petitioner has been falsely implicated in
a case as there was no ban on registration of a sale deed, the
petitioner, who was a Tehsildar, is unnecessarily and falsely being
prosecuted for accepting gratification for arranging registration of a
sale deed by the complainant. Pawan Kumar, complainant,
presented one application against the petitioner, alleging that there
was a ban on registration in the month of July 2001 and he enquired
from the petitioner, who assured him that he would get the ban
removed, for which purpose he demanded sum of Rs.15 lacs. The
complainant alongwith some other property dealers arranged the said
amount and made the payment to the petitioner on 31.7.2001 at his
residence. The ban, however, was not got lifted and when the
complainant questioned him about the same, the petitioner
threatened him to implicate in a false case. It is on this basis that the
FIR No.159 dated 18.3.2002 was registered against the petitioner
under Sections 13 and 13 (ii) of Prevention of Corruption Act, (for
short, “the Act”).
Upon completion of investigation, the petitioner has been
charge sheeted by Special Judge, Rohtak, vide his order dated
24.8.2004 and charge accordingly has been framed on 28.8.2004.
There is another FIR registered against the petitioner on 17.6.2002
under Sections 409, 167 IPC and 13(i)(d) of the Act. Allegations in
this FIR are that D.S.P, State Vigilance Bureau, had submitted a
complaint for registration of a case against the petitioner on the basis
of enquiry. This enquiry was conducted against the accused on the
allegation that Pawan Kumar had obtained a sum of Rs.15 lacs from
CRIMINAL REVISION NO.2010 OF 2004 :{ 3 }
property dealers for getting ban lifted for registration of the sale deed
and that the petitioner had also taken one Maruti car, leading to
ultimately causing loss to the State, amounting to Rs.6,72,873/- and
another sum of Rs.9,34,215/-, which was a wrongful gain to him. The
petitioner had also allegedly violated some direction in regard to
leasing a land, for which he was appointed as a Receiver. These
allegations were enquired into and ultimately the petitioner was
challenged for these offences. In this regard also, charges have
been framed against the petitioner.
Learned counsel for the petitioner would submit that two
separate charges have been framed against the petitioner pertaining
to these two FIRs but both are under the Prevention of Corruption
Act and having been committed within a period of one year, could
have been joined together in terms of Section 219 of Cr.P.C. Section
219 Cr.P.C. provides that three offences of the same kind within year
may be charged together. It reads as under:-
“219. Three offences of same kind within year may be
charge together.-
(1)When a person is accused of more offences than one
of the same kind committed within the space of twelve
months from the first to the last of such offences,
whether in respect of the same person or not, he may
be charged with, and tried at one trial for, any number
of them not exceeding three.
(2) Offences are of the same kind when they are
punishable with the same amount of punishment under
the same section of the Indian Penal Code (45 of 1860)
CRIMINAL REVISION NO.2010 OF 2004 :{ 4 }
or of any special or local law:
Provided that, for the purposes of this section, an
offence punishable under Section 379 of the Indian
Penal code (45 of 1860) shall be deemed to be an
offence of the same kind as an offence punishable
under Section 380 of the said Code, and that an
offence punishable under any section of the said Code,
or of any special or local law, shall be deemed to be an
offence of the same kind as an attempt to commit such
offence, when such an attempt is an offence.”
No doubt, when a person is accused of more than one
offence of the same kind, which are committed within a space of 12
months, he may be charged with and tried at one trial for any number
of them not exceeding three. Reading of Section 219 Cr.P.C would
not mean that whenever any offences of the same kind are
committed within a period of one year, they are to be tried together.
In fact, joining together of different offences at one trial may lead to
embarrass the accused person and this aspect was considered by
the Law Commission even while prescribing the period of 12 months
for joining the offences of the same kind for one trial under Section
219 Cr.P.C. This Section bars only single trial of more than three
offences of the same kind committed within a space of year. It does
not mean that if the accused had committed 50 offences in the
course of 12 months, only three offences should be tried and rest
abandoned. He may be tried in batches of three at each trial under
separate charges. This Section apparently merely authorizes a
combination of three offences in one trial. It does not bar a separate
CRIMINAL REVISION NO.2010 OF 2004 :{ 5 }
trial of an accused for each separate offence. The effect of the
Section is not to make three offences which are tried together under
its provision as one offence. The offences continue to be separate
though there is only one trial for all of them. This Section, as such, is
not making a provision of any binding nature that offences of the
same kind committed during the period of 12 months are to be tried
together. They may be tried together and this course, if adopted by
the Court, would be permissible but it can not be said that whenever
three offences of the same kind are committed within a space of 12
months, they are to be tried together. This Section 219 Cr.P.C., in my
view, can not be read in this manner. A joint trial of distinct offences
may sometimes lead to confusion and in such cases the Court
generally would refuse to try more than one offence. The accused
person would not have a right to ask for one trial in respect of two
offences, may be of same kind. Accordingly, no case for issuing
directions to direct joint trial of the petitioner for these two offences
arising out of two separate FIRs, though committed within a period of
one year, is made out. It is held in Chhutanni Vs. The State of
Uttar Pradesh, AIR 1956 Supreme Court 407 that there is no
irregularity or illegality in holding separate trial of the same accused
for each of the offences committed by him, even though a single trial
in respect of all those offences is permissible under the Code. I am
not inclined to accept this plea.
In Criminal Revision No.2011 of 2004, the petitioner’s
prayer is to the contrary. Is not it a contradiction in itself? It may show
that the petitioner may be aiming to delay the trial. In this case, the
Vigilance Bureau, has filed a challan against the petitioner under
CRIMINAL REVISION NO.2010 OF 2004 :{ 6 }
Section 409, 167 IPC and 13(i)(d) of the Act on three counts. It is
alleged that petitioner being Tehsildar auctioned the land belonging
to Hindu Education Society in May 2001 for Rs.2,92,000/- whereas
this land was auctioned by S.D.M., Meham, on 14.2.2001 for
Rs.3,62,000/-. From this, it is alleged that he has committed an
offence under Section 13 of the Act. Second allegation against the
petitioner is that he was appointed as a Receiver regarding some
land situated in village Sanghi and on 26.6.2001, he prepared
documents mentioning that Surat Singh, Pardhan, be appointed as a
Receiver and thus, allegedly committed offence under Section 167
I.P.C. Third allegation against him is that he has retained different
amount of cash, which was on account of drought relief but
dishonestly or fraudulently converted the same for his own use. This
action of the Court in framing three charges, which are committed at
different times, at different areas and putting them for trial together is
being challenged in this revision petition. The counsel submits that
this action of the Court would be in violation of the provisions of
Section 218 Cr.P.C. Section 218 makes a provision for separate
charges for distinct offences. It reads as under:-
“218. Separate charges for distinct offences.- (1) For
every distinct offence of which any person is accused
there shall be a separate charge, and every such charge
shall be tried separately:
Provided that where the accused person, by an
application in writing, so desires and the Magistrate is of
opinion that such person is not likely to be prejudiced
thereby, the Magistrate may try together all or any
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number of the charges framed against such person.
(2) Nothing in sub-section (1) shall affect the operation of
the provisions of Sections 219, 220, 221 and 223 Cr.P.C.”
A perusal of Section 218(1) would show that for every
distinct offence, there is to be a separate charge and further that
every such charge is to be tried separately. There is then a proviso
under this Section as per which where the accused person so
desires and gives in writing and the Magistrate is of the opinion that
such person is not likely to be prejudiced thereby the Magistrate may
try together all or any number of charges framed against such
person. It is specifically provided that sub-section (1) shall not
effect the operation of provisions of Section 219, 220, 221 and 223
Cr.P.C. It is pleaded that there is no connection with the charges and
they are also not committed in the same series of act and so should
be separately charged and tried.
In criminal trial, the first and primary object is requirement
of a fair trial. The various provisions of the Code seeks to secure this
object by laying down various provisions. For every offences, there
should be a separate charge as required under Section 218 Cr.P.C.
except in certain specified cases. This is sought to be achieved, so
that the object of fair trial is not nullified by joinder of numerous and
unconnected charges. The exception, carved out to this in the form of
Section 219 Cr.P.C., which again is based on some rational principle
and this is to avoid multiplicity of proceedings. The principle as laid
down in Section 219 Cr.P.C is that if a criminal act has several
aspects, all of them should be adjudged together. It may need a
notice that there was no provisions for an accused person to make
CRIMINAL REVISION NO.2010 OF 2004 :{ 8 }
an application to try together any number of charges framed against
him under Section 233 of the Code, which corresponds to Section
218 Cr.P.C., where such provision has now been made. In fact, the
law in regard to joinder of charges and joint trial is contained in
Sections 218 to 223 Cr.P.C. All these Sections are, as such, to be
read together and not in isolation inasmuch as they deal with the
same subject matter and set out different aspect of it. (See Willie
(William) Slaney Vs. State of Madhya Pradesh, AIR 1956
Supreme Court 116). Section 218 Cr.P.C. provides a general rule
that for every distinct offence, there shall be a separate charge.
The grievance of the petitioner in the present case is not
that separate charges have not been framed but plea is that these
separate charges, being distinct, can not be tried together and
should be tried separately. There are exception to this Rule as laid
down in Section 218 Cr.P.C in the form of Sections 219, 220 and 221
Cr.P.C. As already noticed, Section 219 Cr.P.C., talks of trial of three
offences of the same kind, which can be tried together when
committed within a period of one year. Similarly, Section 220 Cr.P.C
provides that if one series of acts so connected together as to form
the same transaction, more offences than one are committed by the
same person, he may be charged with, and tried at one trial for,
every such offence. Then Section 223 Cr.P.C. talks of joint trial of
persons who can be charged jointly. It has been viewed that
question whether two or more charges can be tried together in one
trial or not is a matter of discretion of the Trial Court to be exercised
with regard to the facts of each case. A factor which the Trial Court is
to bear in mind in exercising the discretion is that the joinder should
CRIMINAL REVISION NO.2010 OF 2004 :{ 9 }
not result in such oppression towards the conduct of defence so as
to occasion miscarriage of justice. (see The State of Andhra
Pradesh Vs. Cheemalapati Ganeswara Rao and another, AIR
1963 Supreme Court 1850).
It may be noticed that three offences charged against the
petitioner are committed within a period from May 2001 to December
2001. These offences are committed within a period of one year.
They relate to the conduct of the petitioner in his capacity as
Tehsildar. Charge No.1 concerns the auction, which the petitioner
conducted and Charge No.2 is concerning his being Receiver of a
property. The 3rd charge relates to dishonest misappropriation of
drought relief fund. Since the primary object of all these rules is to
grant fair trial and Trial Court is required to see that exercise of
discretion in joining the charges should not result in oppression
towards the defence so as to occasion miscarriage of justice, the
prayer made by the petitioner seems to have basis and may require
consideration. It has otherwise been held that provision of this
Section must be strictly applied as separate trial is a rule and joint
trial is an exception. (See Willie (William) Slaney’s case (supra).
The words used in the Section is `a distinct offence’, which would
mean, offences which have no connection with each other. Offences
falling under different Sections of penal enactment and the offences
committed on different occasions, even though may fall under same
Section, would be distinct offences. The effect of non compliance of
this rule and mis-joinder of charges would be as provided in Section
464 Cr.P.C. As per this Section, no finding, sentence or order by a
Court of competent jurisdiction shall be deemed to be invalid merely
CRIMINAL REVISION NO.2010 OF 2004 :{ 10 }
on the ground that no charge was framed or on the ground of any
error, omission or irregularity in the charge including any misjoinder
of charges, unless in the opinion of the Court of appeal, confirmation
or revision, a failure of justice has in fact been occasioned thereby.
Accordingly, where failure of justice is likely to take place, such
irregularity in misjoinder of charges may ultimately effect the trial as
such. It appears that the offences for which the Trial Court is trying
the petitioner jointly are different and distinct and trial, as held, may
not be in tune with the provisions of Section 218 of Cr.P.C. It is also
seen that so far the petitioner has not filed any application before the
Trial Court, making such a prayer as made in the petition. Under the
circumstances, it would be appropriate to direct the petitioner to
move an application before the Court, praying for a separate trial for
these distinct offences. It is not permissible to accept the prayer of
the petitioner that he is required to be discharged, as prayed in the
petition on these grounds. Because of misjoinder of charges, the
petitioner can not be ordered to be discharged. The trial is yet to
take place. The Court would consider the prayer of the petitioner for
a separate trial for these offences in terms of Section 218 Cr.P.C and
in case it comes to the conclusion that the offences are distinct and
separate, the Court would consider the prayer of the petitioner and
grant any appropriate relief, which may include a separate trial for
these offences. Needless to mention that the Court has to see
whether this joint trial of offences is a trial where distinct offences are
being tried together and such a mode is likely to prejudice the
petitioner or is likely to embarrass the defence of the petitioner,
which may lead to miscarriage of justice.
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Accordingly, Criminal Revision No.2010 of 2004 is
dismissed. Criminal Revision No.2011 of 2004 is disposed of with the
direction to the petitioner to move an appropriate application before
the Trial Court asking for separate trial for these offences on the
grounds that may be considered relevant and appropriate by the
petitioner. The prayer of the petitioner for his discharge on the
ground of misjoinder of charges is rejected.
November 28,2008 ( RANJIT SINGH ) khurmi JUDGE