ORDER
A.V. Savant, J.
1. Heard both the learned Counsel.
2. This is a Writ Petition filed by the State of Maharashtra, challenging the two Orders; one dated 18th January, 1997 which is passed below Exhibit “B” to this Writ Petition and the other dated 20th January, 1997 which is passed below Exhibit “C” to this Writ Petition. In substance, the learned Chief Judicial Magistrate, Kolhapur, has rejected the application of the State for permission to file a single charge-sheet in respect of several offences which are alleged to have been committed by the respondents-accused in the course of the same transaction in what has been referred to as “Bal Hatya Kand”, which means children’s massacre. The facts which emerge from the single charge-sheet that was submitted before the learned Magistrate are as under.
3. Four accused viz. respondent No. 1 Anjanabai and her two daughters; respondent No. 2 Renuka and respondent No. 3 Seema, and the fourth respondent Kiran Shinde, who is husband of respondent No. 2 Renuka, had entered into a conspiracy to commit the offences of theft, including chain-snatching and pick-pocketing at crowded places such as State Transport Bus Stands, Railway Stations, Temples and Market places. Their conspiracy was further to the effect that in the event of their being caught while committing the offences, if they had small children with them, it might help arousing public sympathy in their favour and help prove their innocence and, therefore, they should kidnap children of tender age and use them during the course of committing the offences of theft, chain-snatching and pick-pocketing etc. The further conspiracy that has been alleged is to the effect that in the event of the continued presence of the children with them becoming inconvenient, the said children should be done away with by killing them. All the four accused, who are related inter se, as stated above, were alleged to be staying in the house belonging to one ‘Saste in Survey No. 19, at Gondhale Nagar, Hadapsar, Pune, where the conspiracy is alleged to have been hatched in the month of August, 1990. Pursuant to the above conspiracy, several offences have been committed by the four respondents-accused, the details of which are mentioned in the single charge-sheet submitted to the Magistrate.
4. We may summarise the details of the said offences alleged to have been committed in the course of the same transaction as under :-
(i) Santosh, aged about 1-1/2 year was kidnapped from the S.T. Stand, at Karad, in Satara District in August, 1990. He was in the custody of the respondents for over four months and his dead body was found on 15th January, 1991 at the Kolhapur S.T. Stand, in respect of which C.R. 112/91 has been registered with the Shahupuri Police Station, Kolhapur, for the offences punishable under sections 302, 201, 120-B read with Section 34 of the Indian Penal Code.
(ii) Naresh, aged 9 months, was kidnapped from the Thane S.T. Stand in March, 1992. He was with the respondents for about five months and he was abandoned at Panchavati, Nasik, on the Ghats of the river Godavari on 28th August, 1992. In respect of this child Naresh, which is alive, C.R. No. 319/1996 has been registered with the Panchavati Police Station, Nasik, for the offences punishable under sections 363, 364, 468, 120-B read with Section 34, I.P.C.
(iii) Bunty, a boy aged one year, was kidnapped from the Kalyan Railway Station in April, 1993. He was with the respondents for about three months and his dead body was found on the Bombay-Pune Highway, near Khopoli, on 30th June, 1993. In respect of this crime, C.R. No. 101/93 has been registered with the Khopoli Police Station for the offences punishable under sections 363, 364, 302, 201, 120-B read with Section 34, I.P.C.
(iv) Guddu, aged 1-1/2 year was kidnapped from the V.T. Railway Station, Bombay, in May, 1993. He was in the custody of the accused for about a month or so. His dead body was found near Khopoli on the Bombay-Pune Highway, in respect of which same C.R. No. 101/93 has been registered for the offences punishable under sections 363, 364, 302, 201, 120-B read with Section 34, I.P.C. This C.R. No. 101/93 covers both the children of tender age viz. Bunty aged 1 year mentioned at S. No. (iii) above and Guddu aged 1-1/2 years.
(v) Meena, aged 3-1/2 years, was also kidnapped from the V.T. Railway Station in May, 1993. She is alive, but she was abandoned and is now in the Children’s Home, at Pune. In respect of the kidnapping of Meena, C.R. 380/96 has been registered with the Kothrud Police Station, Pune, for the offences punishable under sections 363, 364, 356, 323, 325, 120-B read with Section 34, I.P.C.
(vi) Pinky alias Anjali, aged 2 years, was kidnapped from the Kalika Mandir, Nasik, on 18th October, 1994. She was with the accused for about 37 days, before her dead body was found in Gondhale Nagar, Pune, on 23-11-1994. In respect of the killing of Pinky alias Anjali, C.R. 330/96 has been registered with the Sarkarwada Police Station, Nasik, for the offences punishable under sections 363, 364, 302, 201, 120-B read with Section 34, I.P.C.
(vii) Rani alias Bhagyashree, aged 1 year and 9 months, was kidnapped from the Mahalaxmi Mandir, Kolhapur, on 22nd April, 1995. She is alleged to have been murdered by the respondents on the Bombay-Ahmedabad Highway on 30th May, 1995 after she was in the custody for one month and 8 days. Her dead body is not yet recovered, but in respect of this offence, C.R. No. 65/1995 has been registered with the Old Rajwada Police Station, Kolhapur, for the offences punishable under Sections 363, 364, 302, 201, 120-B read with Section 34, I.P.C.
(viii) Kranti, aged 9 years, was kidnapped from the Panchavati Chowk, Nasik, on 29th August, 1995 by the accused. She was in the custody of the accused for more than three months and she is alleged to have been killed by the accused at Narsinh Wadi, Kolhapur, on 6th December, 1995. In respect of this offence, C.R. 303/1996 has been registered with the Panchavati Police Station, Nasik, for the offences punishable under Sections 363, 364, 302, 201, 120-B read with Section 34, I.P.C.
(ix) Bhavna alias Gauri, aged 1-1/2 years was alleged to have been kidnapped from Mhasoba Vegetable Compound, Panchavati, Nasik, on 3rd January, 1996. She is alleged to have been in the custody of the accused for four months and 9 days and her dead body was found in the Usha Talkies, at Kolhapur, on 12th May, 1996 in respect of which C.R. 103/96 has been registered with the Shahupuri Police Station, Kolhapur, for the offences punishable under sections 363, 364, 302, 201, 120-B read with Section 34, I.P.C.
(x) Pankaj, aged about 4 years, was kidnapped from the Vithal Mandir, Wadala, Bombay, on 27th July, 1996 by the accused. He was in custody of the accused for one month and 14 days and his dead body was found at Kothrud, Pune, on 11th September, 1996. In respect of this offence, C.R. No. 306/1995 has been registered with the Kothrud Police Station, Pune, for the offences punishable under sections 363, 364, 302, 201, 120-B read with Section 34, I.P.C.
5. Thus, it appears that as many as 10 cases involving serious offences punishable under sections 363, 364, 302, 201, 120-B read with Section 34, I.P.C. are alleged to have been committed by the respondents-accused in respect of which 9 C.Rs. have been registered with different police stations.
6. The application made by the Chief Investigating Officer, in-charge of the children’s massacre, on 18th January, 1997 sets out the details of the various offences alleged to have been committed pursuant to a single criminal conspiracy and it was alleged that the offences were committed in the course of a single transaction. The main conspiracy that was hatched was to commit offences of theft, chain-snatching, pick-pocketing etc., and with a view to gaining public sympathy, have children of tender age with them and use them for the purpose of committing the said offences and keeping the children in their custody till such time as they did not prove to be a nuisance. The further conspiracy was that in the event of any child proving to be a nuisance, the child should be killed. It is this conspiracy which is the basis of a series of acts alleged to have been committed in the course of the same transaction. Relying upon these facts, permission was prayed for to file a single charge-sheet in respect of as many as 9 C.Rs., the details of which have been summarised above.
7. It is true that out of the 9 C.Rs., two offences pertain to Shahupuri Police Station, at Kolhapur; one pertains to the Old Rajwada Police Station, Kolhapur; three pertain to the police station at Nasik viz. two at the Panchavati Police Station and the one at the Sarkarwada Police Station, Nasik; two crimes pertain to the Kothrud Police Station, Pune and one crime viz. C.R. 101/1993 involving the murder of Bunty and Guddu pertain to the Khopoli Police Station in Raigad District. It was submitted before the learned Magistrate that having regard to the provisions of the Code of Criminal Procedure, 1973, it was permissible to submit a single charge-sheet in respect of the different crimes, though the said crimes were committed within the jurisdiction of various police station in the State of Maharashtra, since the said crimes form part of the same transaction pursuant to a single conspiracy, as indicated above. However, the learned Magistrate by his Order dated 18th January, 1997 came to the conclusion that no specific provision was pointed out to him under the Code of Criminal Procedure and since his jurisdiction was restricted to accepting charge-sheets arising from the police station attached to his Court regarding the crime committed within their local jurisdiction, the application submitted by the Chief Investigating Officer was liable to be rejected. Accordingly, the said application has been rejected.
8. The second application was submitted on January 20, 1997 by the Senior Public Prosecutor to the Chief Judicial Magistrate, Kolhapur, reiterating the said facts. It was stated that the Investigating Officer had completed the investigation into the multiple murder of small children which was known as ‘Children’s massacre’ and that it had transpired during the course of investigation that the accused persons had hatched a single criminal conspiracy in August, 1990, and that it was in pursuance of the single criminal conspiracy so hatched that various crimes were committed in the course of same transaction, starting with the first offence at Kolhapur in the month of August, 1990 which is the subject-matter of C.R. 112/91 of the Shahupuri Police Station, Kolhapur. It was, therefore, prayed that a single charge-sheet should be accepted and the accused should be committed to the Court of Sessions, Kolhapur, since most of the offences were triable exclusively by the Court of Sessions. The learned Magistrate, who heard this application, has observed that there was no evidence before him that conspiracy was hatched in August, 1990 and in pursuance of a single continuing conspiracy, the accused had committed various offences in the course of the same transaction, though at various places throughout the State of Maharashtra. The learned Magistrate then referred to his earlier Order dated 18th January, 1997 under which he had rejected similar application made earlier. Attention of the learned Magistrate was invited to certain decisions of the Supreme Court and one of the Privy Council, to which we will make a brief reference in the later part of this Judgment. However, the learned Magistrate distinguished the said decision and came to the conclusion that there was nothing before him to hold that accused persons had acted in pursuance of a single continuing criminal conspiracy and had committed offences in the course of the same criminal transaction. He, therefore, concluded that in view of his Order dated 18-1-1997 the application dated 20-1-1997 was also liable to be rejected. Accordingly, the application was rejected. Both these orders have been challenged before us in this Writ Petition.
9. As indicated earlier, the single charge-sheet submitted before the learned Magistrate categorically states that the conspiracy was hatched initially in August, 1990 to the effect that the accused should go to crowded places for committing the offences of theft, including chain-snatching and pick-pocketing and with a view to avoid being detected, they should have children of tender age with them which would also evoke sympathy of the public and would be helpful in escaping in the event of being caught red-handed. It is alleged that it was in pursuance of this criminal conspiracy that the kidnapped children were detained in custody and as and when their custody became inconvenient, such children were killed. It was pursuant to this conspiracy, says the charge-sheet, that offences were committed between 1990 and 1996 at various crowded places as set out in details of the various crimes.
10. If one carefully reads the opening portion of column 5 of the charge-sheet with the heading “Charge or information, name of offence and circumstances connected with it, in concise detail, and under what section of law charged”, it is clear to us that what has been alleged is a single conspiracy hatched by the respondents-accused in August, 1990. After setting out the details of the conspiracy, the Investigating Officer has set out the details of each of the 9 C.Rs. which we have already summarised in para 4 above. It is not necessary for us to refer to the details of each of the 9 C.Rs. which have been set out in the charge-sheet. We are not concerned with the question as to whether the prosecution would be successful in proving its charges or not. However, on the material that was placed before the learned Magistrate, it is difficult to appreciate the approach that “at this juncture there is no evidence before the Court that conspiracy was held in August, 1990” as stated in the beginning of the Order dated 20-1-1997.
11. It may be mentioned at this stage that the learned Public Prosecutor has given us a list of witnesses in connection with the first crime C.R. No. 112 of 1991 of the Shahupuri Police Station, Kolhapur. The said list is taken on record and marked “X” for identification. It mentions as many as 21 witnesses from Kolhapur, as far as this crime is concerned. Similarly, in respect of C.R. No. 65 of 1995 of Juna Rajwada Police Station, Kolhapur, another list is submitted before us which is taken on record and marked “Y” for identification. It mentions as many as 31 witnesses in connection with this crime, out of which first 26 witnesses are from Kolhapur. Witnesses Nos. 15 to 21 are from the Mahalaxmi Dharmashala, Kolhapur, which was the place used by the accused in connection with several crimes. In connection with C.R. No. 103 of 1996 of the Shahupuri Police Station, Kolhapur, another list is submitted before us which is taken on record and marked “Z” for identification. It consists of 14 witnesses from Kolhapur, out of which witnesses Nos. 4, 5 and 6 are from Pallavi Lodge at Kolhapur which was also the place alleged to have been used by the accused for commission of the offences. Lastly, a list of four witnesses is submitted before us in connection with C.R. No. 303 of 1996 of Panchavati Police Station, Nasik. Same is taken on record and marked “Z-1” for identification. It mentions the names of four witnesses from Kolhapur in connection with this crime. Thus, it is brought to our notice that a large number of witnesses from Kolhapur will have to be examined and even the records of the Mahalaxmi Dharmashala, Kolhapur, and Pallavi Lodge, Kolhapur will have to be produced in evidence in connection with some of the crimes. Taking all the facts into account, even from the point of view of convenience, apart from the legal position which we will discuss in the latter part of the judgment, Kolhapur is stated to be better suitable for the trial.
12. Turning to the legal provisions, we will deal with them briefly. Chapter XIII of the Code of Criminal Procedure, 1973 deals with the jurisdiction of the criminal Courts in inquiries and trials. Section 177 dealing with ordinary place of inquiry and trial provides that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Section 178 deals with the place of inquiry or trial.
Clause (a) deals with the situation when it is uncertain in which of several local areas an offence was committed. Clause (b) deals with a situation where an offence is committed partly in one local area and partly in another. Clause (c) deals with a situation where an offence is a continuing one, and continues to be committed in more local areas than one, and Clause (d) deals with a situation where the offence consists of several acts done in different local areas. After providing for these four situations, the concluding portion of Section 178 says that it may be inquired into or tried by a Court having jurisdiction over any of such legal areas.
13. Section 220 which occurs in Chapter XVII dealing with the charge deals with the question of trial for more than one offence. Sub-section (1) provides that if, in 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. Sub-section (4) of Section 220 provides that if several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, of such acts.
Section 223 deals with what persons may be charged jointly. It says that the following persons may be charged and tried together, viz.
“(a) to (c) …………….
(d) persons accused of different offences committed in the course of the same transaction.”
Section 223(d) of the present Code is pari materia with Section 239(d) of the 1898 Code, which was as under :
“239. The following persons may be charged and tried together, namely :-
(a) to (c) …………….
(d) persons accused of different offences committed in the course of the same transaction.”
In the light of the above provisions, it would be necessary to discuss some of the decided cases on the point.
14. In the case of Emperor v. Datto Hanmant, 7 Bombay LR 633 : (1905) 2 Cri LJ 578, the question arose under section 239 of the 1898 Code of Criminal Procedure. Two accused Datto Hanmant and Ganesh Waman were entrusted with certain moneys belonging to the Swami of Chafal, the first as Karbhari and the second as Cashier. They were accused of committing breach of trust in respect of those moneys on different dates. They were tried together and were convicted. In the Revision Application before the, High Court, two objections were raised :- (i) various offences exceed three in number and were not all committed within one year; and (ii) that Datto Hanmant has been charged for totally distinct offence from those with which Ganesh Waman was charged and, therefore, the two accused could not be tried together under Section 239 of the 1898 Code. Both contentions were rejected. While we are not concerned with the first contention, in respect of the second contention the Division Bench observed at page 635 of the Bombay Law Reporter as under :-
“It suffices for the purpose of justifying a joint trial that the accusation alleges the offences committed by each accused to have been committed in the same transaction, within the meaning of S. 239. It is not necessary that the charge should contain the statement as to the transaction being one and the same. It is the tenor of the accusation and not the wording of the charge that must be considered as the test.”
The Court then considered the etymological and dictionary meaning of the word ‘transaction’ and observed at pages 635 and 636 of the B.L.R. as under :-
“According to its eymological and dictionary meaning the word “transaction” means “carrying through” and suggests, we think, not necessarily proximity in time – so much as continuity of action and purpose. The same metaphor implied by the word is continued in the illustrations where the phrase used is “in the course of the same transaction”. In S. 215, the phrase is used in connection which implies that there may be a series of acts – illustration (f) to that section indicates that the successive acts may be separated by an interval of time and that the essential is the progressive action, all pointing to the same object. In S. 239, therefore, a series of acts separated by intervals of time are not, we think, excluded, provided that those jointly tried have throughout been directed to one and the same objective. If the accused started together for same goal this suffice to justify the joint trial, even if incidentally, one of those jointly tried has done an act for which the other may not be responsible (vide S. 239, illustration (b)).”
In the case before us, the opening portion of the 5th column of the charge-sheet clearly states that a conspiracy was hatched by the respondents-accused and pursuant to the said conspiracy, as part of the same transaction, a series of offences were committed between 1990 and 1996 which are the subject-matter of as many as 9 C.Rs. elaborated above. In our view, the ratio of the decision in Datto Hanmant’s case clearly supports the petitioner’s contention.
15. The ratio of Datto Hanmant’s case was followed by another Division Bench of this Court in Emperor v. Gopal Raghunath AIR 1929 Bom 128 : (1929 (30) Cr LJ 588). Relying upon the provisions of Section 239(d) of the Code of 1898, it was held that though the prosecution may have failed to prove the conspiracy, that by itself did not necessarily make the trial illegal, the test being, not what the prosecution has proved in the end, but what is alleged at the beginning of the charges. If the offences which were alleged, formed part of the same transaction of conspiracy, in the sense that it was the working, the fruit and the result of the alleged conspiracy, then separate acts done by any of the conspirators in pursuance of the conspiracy could be joined in the same trial. The observations to this effect are to be found at pages 129 and 130 of the AIR.
16. These two decisions have been considered by the Privy Council in the case of Babulal Chaukhani v. King Emperor . This was a case of theft of electric energy from Calcutta Electric Supply Corporation. The accused Babulal Chaukhani had extensive business interests, including ownership and operations of the Bharat Lakshmi Cinema at Calcutta. The two charges framed against him and others were that between January, 1934 and January, 1935 he was a party to a criminal conspiracy at Calcutta, Howrah and 24 Parganas to commit theft (dishonest consumption of electrical energy belonging to the Calcutta Electric Supply Corporation) and in pursuance of the said conspiracy, theft of electric energy was committed at Bharat Lakshmi Picture House, Jupiter Cinema, Calcutta, and other places and thereby committed an offence punishable under Section 120-B of the Indian Penal Code, read with Section 39 of the Electricity Act and Section 379, I.P.C. The second charge against the appellant Babulal was that between April, 1934 and January, 1935 at the Bharat Lakshmi Picture House, Calcutta, he had committed theft of electric energy and thereby committed offence punishable under section 39 of the Electricity Act read with Section 379 of the Indian Penal Code. There were other charges against the other appellants. The Privy Council considered the provisions of Section 235 and Section 239 of the old Code and at page 134 it has been observed as under :-
“Their Lordships decide the question on what they regard as the plain meaning of the language used. In doing so they are in agreement not merely with the careful judgment of the High Court in the present cases, but with the various authorities which are so fully quoted in that judgment that it is not necessary here to quote them again. Mr. Garden Noad has however contended that at least in the majority of the cases cited, the conspiracy was established in the result of the trial so that the charge was justified by the eventual verdict and it was immaterial whether accusation or verdict were taken at the crucial stage. That is true in some of the cases, but does not affect the construction of the section, which in one of the earliest, 30 Bom 49 in 1905, was clearly and correctly explained in the following words of Batty, J., at page 54 :
Section 239 admits of the joint trial when more persons than one are accused of different offences committed in the same transaction. It suffices for the purpose of justifying a joint trial that the accusation alleges the offence committed by each accused to have been committed in the same transaction.
To refer to only one later case, 53 Bom 344, the charge of conspiracy failed, but the convictions for specific acts were upheld. Baker, J. at page 351 said :
So long as the accusation against all the accused persons is that they carried out a single scheme by successive acts, the necessary ingredients of a charge regarding the one transaction would be fulfilled, and the fact that the conspiracy was not established, would not vitiate the trial as regards those acts for which the evidence was sufficient for proof.”
In the result, the Privy Council rejected the contentions raised on behalf of the accused regarding the alleged misjoinder of charges and alleged miscarriage of justice and dismissed the appeal.
17. In S. Swamirathnam v. State of Madras. , the Supreme Court had occasion to consider the question of a single conspiracy although spread over several years where the only object of the conspiracy was to cheat the members of the public. In the course of years, others joined the conspiracy and several incidents of cheating took place in pursuance of the said conspiracy. It was held that, the fact that in the course of years, others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy, did not change the conspiracy and did not split up a single conspiracy into several conspiracies. The relevant observations are to be found in para 7 of the Judgment at page 344 of the Report, which reads as under :-
“(7) On behalf of the appellant Abu Bucker it was contended that there has been misjoinder of charges on the ground that several conspiracies, distinct from each other, had been lumped together and tried at one trial. The Advocate for Swamirathnam, however, did not put forward this submission. We have examined the charge carefully and find no ground for accepting the contention raised. The charge, as framed, discloses one single conspiracy, although spread over several years. There was only one object of the conspiracy and that was to cheat members of the public. The fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not change the conspiracy and did not split up a single conspiracy into several conspiracies. It was suggested that although the modus operandi may have been the same, the several instances of cheating were not part of the same transaction. Reliance was placed on the case of Sharpurji Sorabji v. Emperor AIR 1936 Bom 154 : (1936 (37) Cri LJ 688) (A) and on the case of Choragudi Venkatadari, In re, (1910) ILR 33 Mad 502 (B). These cases are not in point. In the Bombay case no charge of conspiracy had been framed and the decision in the Madras case was given before S. 120-B, was introduced into the Indian Penal Code. In the present case the instances of cheating were in pursuance of the conspiracy and were therefore parts of the same transaction.”
18. In Kadiri Kunhahammad v. State of Madras, , the Supreme Court considered the question of joint trial of accused for different offences in the light of the provisions of Section 239(d) of the 1898 Code. In para 4 of the Judgment, the Supreme Court referred to the Privy Council decision in Babulal Choukhani v. Emperor (supra) and held that Section 239(d) authorised a joint trial of persons accused of different offence committed in the course of the same transaction. In Para 5 of the Judgment, at page 664 of the Report, the Supreme Court observed, thus :-
“Whereas S. 239(d) allows a joinder of persons at a criminal trial, S. 235(1) allows joinder of charges subject to the conditions mentioned respectively in the said two provisions. In other words, these provisions constitute an exception to the provisions of S. 233 as well as those under S. 234(2). There is, therefore, no doubt that, in a case of conspiracy, if specific offences are committed in pursuance of the said conspiracy, all persons who are parties to that conspiracy and are also concerned in the specific offences thus committed can be lawfully tried jointly at the same trial. (Vide Rash Behari Shaw v. Emperor .”
19. In Purushottamdas Dalmia v. State of West Bengal, , the question was again considered in the light of the provisions of Sections 177, 235 and 239 of the 1898 Code of Criminal Procedure. The facts of Purushottamdas Dalmia’s case show that as many as 8 charges were framed, the first of which related to criminal conspiracy between the two accused Dalmia and Kalyanam. The conspiracy was alleged to have been hatched between the months of April and December, 1953 at Calcutta, Howrah, Delhi and Madras. It was a conspiracy to commit an offence of forgery by certificate or endorsement of confirmation and endorsement of validation of the Import Trade Control Licence purporting to be made by public servants viz. officers and staff of the Chief Controller of Imports & Exports. Pursuant to this conspiracy, the offences of using forged documents as genuine were alleged to have been committed at Madras and, therefore, it was contended that the Courts at Calcutta had no jurisdiction to try the offence punishable under section 471 read with Section 466 of the Indian Penal Code. The Supreme Court rejected the said contention. In Para 11 of the Judgment, at page 1592 of the Report, the Court referred to the desirability of the trial together with an offence of criminal conspiracy and all the overt acts committed in pursuance thereof. In Para 16 of the Judgment, at page 1594 of the Report, the Court dealt with the scheme of the provisions of Sections 235 and 239 of the 1898 Code and observed, thus :-
“(16) It is true that it is not stated in express terms either in S. 235 or S. 239, that their provisions would justify the joint trial of offences or of persons mentioned therein in a Court irrespective of the fact whether the offences to be tried were committed within the jurisdiction of that particular Court or not. But such, in our opinion, should be the interpretation of the provisions in these two sections.”
Then, in Para 17 of the Judgment at page 1594, the Court has observed the following :-
“(17) As Ss. 235 and 239 of the Code are enabling sections, the Legislature, rightly, did not use the expression which would have made it incumbent on the Court to try a person of the various offences at one trial or to try various persons for the different offences committed in the course of the same transaction altogether. The omission to make such peremptory provision does not necessarily indicate the intention of the legislature that the Court having jurisdiction to try certain offences cannot try an offence committed in the course of the same transaction, but beyond its jurisdiction.”
In the result, the Supreme Court dismissed the Appeal filed by Purushottamdas Dalmia.
20. The view expressed in Purushottamdas Dalmia’s case was followed in another decision rendered on the same day by the same learned Judges in L. M. Mukherjee v. State of Madras, . This was a case where criminal conspiracy was alleged to have been hatched at Calcutta and the other offences in pursuance of the criminal conspiracy were alleged to have been committed within the jurisdiction of the Court of Sessions, at Madras. The quashing of the commitment was sought on the ground that the Court at Madras had no jurisdiction to try the offence of conspiracy which was hatched at Calcutta. The High Court rejected the contention and the accused moved the Supreme Court. In Para 3 of the Judgment, at page 1602 of the Report, the Supreme Court observed, thus :
“(3) We have held this day, in Purushottamdas Dalmia v. State of West Bengal, Criminal Appeal No. , that the Court having jurisdiction to try the offence of criminal conspiracy can also try offences committed in pursuance of that conspiracy even if those offences were committed outside the jurisdiction of that Court, as the provisions of S. 239, Cr.P.C. are not controlled by the provisions of S. 177, Cr.P.C., which do not create an absolute prohibition against the trial of offences by a Court other than the one within whose jurisdiction the offence is committed. On a parity of reasoning, the Court having jurisdiction to try the offences committed in pursuance of the conspiracy can try the offence of conspiracy even if it was committed outside its jurisdiction. We therefore hold that the order under appeal is correct and, accordingly dismiss this appeal.”
In our view, the ratio of the abovementioned Supreme Court decision, supports the petitioner’s contention.
21. No doubt, Shri Gangal for the respondents-accused tried to draw support from the observations of the Supreme Court in the case of State of Andhra Pradesh v. Cheemalapati Ganeswara Rao, . That was a case where the first respondent was tried before the Court of Sessions, Visakhapatnam, for offences punishable under sections 120-B, 409, 477-A and Section 471 read with Section 467, I.P.C., while respondent No. 2 was tried for an offence under section 120-B and for offences under section 409 read with Ss. 109, 477-A and 471 read with Section 467, I.P.C. Various sentences were passed against them by the Additional Sessions Judge, Visakhapatnam, who presided over the Court. The respondents had preferred Appeal in the High Court challenging their convictions and sentence. On the other hand, State preferred an application for revision under section 439 of the old Code for enhancement of sentence. The High Court allowed the application for revision preferred by the State. The State of Andhra Pradesh had challenged the said order in the Supreme Court. While deciding the question as to whether Section 235(1) of the old Code can be construed to have an overriding effect on Section 239 of the said Code, the Supreme Court observed, thus, in Para 27, at pages 1860 and 1861 :-
“27. According to Mr. Chari S. 235(1) cannot be construed as having an overriding effect on S. 239 because whereas it contemplates acts so connected together as to form the same transaction resulting in one offences than one S. 239(d) contemplates offences committed in the course of the same transaction and nothing more. The question is whether for the purposes of S. 239(d) it is necessary to ascertain anything more than this that the different offences were committed in the course of the same transaction or whether it must further be ascertained whether the acts are intrinsically connected with one another. Under S. 235(1) what has to be ascertained is whether the offences arise out of acts so connected together as to form the same transaction, but the words “so connected together as to form” are not repeated after (sic) the words “same transaction” in S. 239. What has to be ascertained then is whether these words are also to be read in all the clauses of S. 239 which refer to the same transaction. Section 235(1), while providing for the joint trial for more than one offence, indicates that there must be connection between the acts and the transaction. According to this provision there must thus be a connection between a series of acts before they could be regarded as forming the same transaction. What is meant by “same transaction” is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unit of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. The connection between a series of acts seems to us to be an essential ingredient for those acts to constitute the same transaction and therefore, the mere absence of the words “so connected together as to form” in Cls. (a), (c) (sic) and (d) of S. 239 would make little difference. Now, a transaction may consist of an isolated act or may consist of a series of acts. The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently they would not form part of the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression “same transaction” alone had been used in S. 235(1) it would have meant a transaction consisting either of a single act or of a series of connected acts. The expression “same transaction” according in Cls. (a), (c) (sic) and (d) of S. 239 as well as that occurring in S. 235(1) ought to be given the same meaning according to the normal rule of construction of statutes. Looking at the matter in that way, it is pointless to inquire further whether the provisions of S. 239 are subject to those of S. 235(1). The provisions of sub-sections (2) and (3) of S. 235 are enabling provisions and quite plain can have no overriding effect. But it would be open to the Court to resort to those provisions even in the case of a joint trial of several persons permissible under S. 239.”
22. Then, in Para 28 of the Judgment, at page 1861 of the Report, , the Court observed as under :-
“(28) Section 235 is also an enabling provision to be availed of in case of doubt and it is meaningless to say that S. 239 is subject to S. 236. Bearing in mind the fact that the provisions in the “former part” of Chapter XIX are applicable to charges made with the aid of S. 239 only “so far as may be” it would not be right to construe S. 239 as being subject to the provisions of Ss. 233 to 236. It was contended by Mr. Chari that the expression “former part” would apply to the first sub-division of Chapter XIX which deals with the form and Content of the charges and the powers of the Court with regard to the absence of charge and alteration of charge. We cannot, however, give the expression such a restricted meaning. For even in the absence of those words, the earlier provisions could not have been ignored. For, it is a rule of construction that all the provisions of a statute are to be read together and given effect to and that it is, therefore, the duty of the Court to construe a statute harmoniously. Thus, while it is clear that the sections preceding S. 239 have no overriding effect on that section, the Courts are not to ignore them but apply such of them as can be applied without detracting from the provisions of S. 239. Indeed, the very expression ‘so far as may be’ emphasises the fact that while the earlier provisions have to be borne in mind by the Court while applying S. 239 it is not those provisions but the latter which is to have an overriding effect.”
Finally, in Para 29 of the Judgment, the Supreme Court observed, thus :-
“(29) Apart from this, the question whether the provisions of Ss. 233 to 236 have no overriding effect on S. 239 is not strictly germane to the question considered by the High Court that is, clubbing together all the provisions of the various clauses of S. 239. Whether they can or cannot be read cumulatively must be determined by consideration of the language used in those clauses. We have already indicated how those clauses may be grammatically read. On a plain construction of the provisions of S. 239, therefore, it is open to the Court to avail itself cumulatively of the provisions of the different clauses of S. 239 for the purpose of framing charges and charges so framed by it will not be in violation of the law, the provisions of Ss. 233, 234 and 235 notwithstanding”.
23. In view of the above, the Supreme Court set aside the order of acquittal and remitted the appeal to the High Court for decision on merits. In the light of the peculiar facts of the said case, , we do not think that the observations in Paras 27 or 29 support Shri Gangal’s contentions. On the contrary, a perusal of the observations in Para 27 shows that it is necessary to have some connection between a series of acts which is an essential ingredient for those acts to constitute the same transaction. A transaction may consist of an isolated act or may consist of series of acts. The series of acts which constitute a transaction must be of necessity connected to one another and if some of them stand out independently, that would not form a part of the same transaction, but would constitute a different transaction or transactions. In the light of the facts set out in the charge-sheet before us, we are of the view that a series of acts alleged against the accused which are the subject matter of the 9 C.Rs. have a common connection between them inasmuch as they are the result of conspiracy that was hatched between the four accused as far back as in August, 1990. Therefore, though there is a series of acts, in the light of the observations of the Supreme Court in Ganeswara Rao’s case (supra), they can still constitute a transaction since they are connected with each other as a result of the conspiracy hatched between the respondents accused.
24. In the light of the above, we are of the view that for the purpose of a joint trial it is sufficient that the accusation alleges offences committed by the respondents accused being committed in the course of the same transaction within the meaning of Section 223(d) of the 1973 Code. It is the tenor of the accusation and not the wording of the charge that must be considered to be a decisive test as held by this Court in Datto Hanumant’s case (supra). In our view, there is continuity of action and purpose, common to all the offences and all the accused before us. The acts are alleged to have been throughout directed to one and the same objective viz. committing thefts, including chain snatching and pick-pocketing and using’ children of tender age for the purpose of avoiding suspicion and invoking, sympathy in the event of being detected. The same view was held by this Court in AIR 1929 Bombay 128 : ((1929) 30 Cri LJ 588) Emperor v. Gopal Raghunath (supra). The interpretation put by this Court in Datto Hanumant’s case has been approved by the Privy Council in Babulal Chaukhani v. King Emperor . This is clear from the observations at page 134 of the Report, which we have reproduced above in Para 16 above. Again, as stated by the Supreme Court in S. Swamirathnam v. State of Madras, (supra) where the charge as framed discloses one single conspiracy as in the present case, although spread over several years, there is only one object of the conspiracy and that is to commit the offence of theft, including chain-snatching and pick-pocketing. The mere fact that in the course of 7 years, from 1990 to 1996, several incidents of kidnapping, theft, murder have taken palce in pursuance of the same conspiracy does not, in our view, change the conspiracy and does not split up single conspiracy into several conspiracies. The allegations before us in the charge-sheet are that there was a conspiracy pursuant to which specific offences are alleged to have been committed by the respondents and hence, the respondents, who are parties to the said conspiracy and are also alleged to be concerned in the specific offences can be lawfully tried jointly at the same trial. This would be clearly permissible in view of the provisions of Section 239(d), 223(d) of the Code of Criminal Procedure, 1973. Finally, as held by the Supreme Court in Purushottam Dalmia’s case (supra) and reiterated in L. N. Mukherjee’s case (supra), it is immaterial if the conspiracy to commit the offences has taken place at Pune as long as some of the offences have been alleged to have been committed at Kolhapur. From out of the 9 crimes registered, the very first crime which is the subject matter of C.R. No. 112/91, in respect of the murder of Santosh has been registered at the Shahupuri Police Station, Kolhapur. The dead body was found at Kolhapur S.T. Stand on 15th January, 1991. Similarly, in respect of Rani alias Bhagyashree, who is alleged to have been kidnapped by the accused from the Mahalaxmi Temple, Kolhapur, on 22nd April 1995 and who is alleged to have been killed on 30th May 1995 – C.R. No. 65/95 has been registered with the Old Rajwada Police Station, at Kolhapur. Again, in respect of Bhavna alias Gauri, whose dead body was found in Usha Talkies, at Kolhapur, on 12th May 1996 C.R. No. 103/96, has been registered at the Shahupuri Police Station, Kolhapur.
25. We have already referred to the lists of witnesses in some of the crimes, which lists have been taken on record and marked Exhibit “X” to “Z1” for identification as mentioned in Para 11 above. Relying upon the said lists, both Shri Tulpule and Shri Nikam appearing for the State contended that Kolhapur was the place used by the accused for their occasional residence and concealing the children kidnapped from time to time. The original registers of the Mahalaxmi Dharmashala, Kolhapur, and Pallavi Lodge, Kolhapur will also be required to be produced and the employees of the said Dharmashala and Hotel will also be required to be examined as witnesses. Thus, it is brought to our notice that much of the evidence that will be led will be from Kolhapur. Hence, apart from the legal position enunciated above, even from the point of view of convenience of witnesses, it is brought to our notice that Kolhapur would be ideally suited for the joint trial of the respondents for all the offences which are the subject matter of 9 C.Rs. so far registered against them. Needless to repeat that all these offences are the result of a single conspiracy hatched by the respondents accused and it is in the course of the same transaction pursuant to the said conspiracy that different offences are alleged to have been committed by them at different places during the period 1990 to 1996.
26. In this view of the matter, we are of the view that both the orders of the learned Magistrate are liable to be set aside. Accordingly, we set aside the impugned Orders dated 18-1-1997 and 20-1-1997 below Exhibits “B” & “C” respectively to this Petition. We hold that in the facts of the present case, the submission of a single charge-sheet in respect of the 9 C.Rs. mentioned at the end of the charge-sheet is permissible in law and is also advisible from the point of convenience of the witnesses. In this regard, we may mention that having regard to the nature of the allegations made against the accused, interests of justice require that the trial of these offences is not unduly delayed. Hence, Rule in the Petition is made absolute in terms of prayer (d) only.
27. Though the Petition contains a prayer for setting aside the Order dated 15-1-1997 passed by the learned Magistrate relating to confession statement of respondent No. 4 Kiran Ramchandra Shinde, we make no order in that behalf since the impugned order was not annexed to the petition and no notice was given to the respondents in respect of the relief regarding Order dated 15-1-1997 in respect of the confessional statement of respondent No. 4 Kiran Shinde. We however, reserve liberty to the State to adopt appropriate proceedings in respect of the said Order dated 15th January, 1997.
28. Petition allowed.