{"id":245345,"date":"2008-11-28T00:00:00","date_gmt":"2008-11-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahender-singh-kadian-vs-state-of-haryana-on-28-november-2008"},"modified":"2016-12-07T22:55:22","modified_gmt":"2016-12-07T17:25:22","slug":"mahender-singh-kadian-vs-state-of-haryana-on-28-november-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahender-singh-kadian-vs-state-of-haryana-on-28-november-2008","title":{"rendered":"Mahender Singh Kadian … vs State Of Haryana on 28 November, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Mahender Singh Kadian … vs State Of Haryana on 28 November, 2008<\/div>\n
CRIMINAL REVISION NO.2010 OF 2004                                  :{ 1 }\n\nIN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH\n\n\n                    DATE OF DECISION: NOVEMBER 28 , 2008\n\n      Mahender Singh Kadian (Ex.Tehsildar)\n\n                                                             .....Petitioner\n\n                                          VERSUS\n\n      State of Haryana\n\n                                                              ....Respondent\n\n\n\nCORAM:- HON'BLE MR.JUSTICE RANJIT SINGH\n\n1. Whether Reporters of local papers may be allowed to see the judgement?\n2. To be referred to the Reporters or not?\n3. Whether the judgment should be reported in the Digest?\n\n\n\nPRESENT:             Mr. N. K. Sanghi, Advocate,\n                     for the petitioner.\n\n                    Mr. Yashwinder Singh, AAG, Haryana,\n                    for the State.\n\n                                  ****\n\nRANJIT SINGH, J.\n<\/pre>\n
             These two revision petitions bearing Criminal Revision<\/p>\n
Nos.2010         and    2011     of      2004   (Mahender       Singh       Kadian<\/p>\n
(Ex.Tehsildar)         Vs.      State of Haryana),          filed by the same<\/p>\n
petitioner are being disposed of together. In one petition, the<\/p>\n
grievance is that the separate charges made in respect of two FIRs<\/p>\n
be tried together as is envisaged under Section 219 Cr.P.C, whereas<\/p>\n
in the second revision petition, contrary relief is claimed to urge that<\/p>\n
these offences, which have been charged and are being tried
\n CRIMINAL REVISION NO.2010 OF 2004                         :{ 2 }<\/p>\n
together, should be tried separately in terms of Section 218 Cr.P.C.<\/p>\n
            Pleading that the petitioner has been falsely implicated in<\/p>\n
a case as there was no ban on registration of a sale deed, the<\/p>\n
petitioner, who was a Tehsildar, is unnecessarily and falsely being<\/p>\n
prosecuted for accepting gratification for arranging registration of a<\/p>\n
sale deed by the complainant.           Pawan Kumar, complainant,<\/p>\n
presented one application against the petitioner, alleging that there<\/p>\n
was a ban on registration in the month of July 2001 and he enquired<\/p>\n
from the petitioner, who assured him that he would get the ban<\/p>\n
removed, for which purpose he demanded sum of Rs.15 lacs. The<\/p>\n
complainant alongwith some other property dealers arranged the said<\/p>\n
amount and made the payment to the petitioner on 31.7.2001 at his<\/p>\n
residence. The ban, however, was not got lifted and when the<\/p>\n
complainant questioned him about the same, the petitioner<\/p>\n
threatened him to implicate in a false case. It is on this basis that the<\/p>\n
FIR No.159 dated 18.3.2002 was registered against the petitioner<\/p>\n
under Sections 13 and 13 (ii) of Prevention of Corruption Act, (for<\/p>\n
short, “the Act”).\n<\/p>\n
            Upon completion of investigation, the petitioner has been<\/p>\n
charge sheeted by Special Judge, Rohtak, vide his order dated<\/p>\n
24.8.2004 and charge accordingly has been framed on 28.8.2004.<\/p>\n
There is another FIR registered against the petitioner on 17.6.2002<\/p>\n
under Sections 409, 167 IPC and 13(i)(d) of the Act. Allegations in<\/p>\n
this FIR are that D.S.P, State Vigilance Bureau, had submitted a<\/p>\n
complaint for registration of a case against the petitioner on the basis<\/p>\n
of enquiry. This enquiry was conducted against the accused on the<\/p>\n
allegation that Pawan Kumar had obtained a sum of Rs.15 lacs from
\n CRIMINAL REVISION NO.2010 OF 2004                         :{ 3 }<\/p>\n
property dealers for getting ban lifted for registration of the sale deed<\/p>\n
and that the petitioner had also taken one Maruti car, leading to<\/p>\n
ultimately causing loss to the State, amounting to Rs.6,72,873\/- and<\/p>\n
another sum of Rs.9,34,215\/-, which was a wrongful gain to him. The<\/p>\n
petitioner had also allegedly violated some direction in regard to<\/p>\n
leasing a land, for which he was appointed as a Receiver. These<\/p>\n
allegations were enquired into and ultimately the petitioner was<\/p>\n
challenged for these offences.     In this regard also, charges have<\/p>\n
been framed against the petitioner.\n<\/p>\n
           Learned counsel for the petitioner would submit that two<\/p>\n
separate charges have been framed against the petitioner pertaining<\/p>\n
to these two FIRs but both are under the Prevention of Corruption<\/p>\n
Act and having been committed within a period of one year, could<\/p>\n
have been joined together in terms of Section 219 of Cr.P.C. Section<\/p>\n
219 Cr.P.C. provides that three offences of the same kind within year<\/p>\n
may be charged together. It reads as under:-\n<\/p>\n
           “219. Three offences of same kind within year may be<\/p>\n
           charge together.-\n<\/p><\/blockquote>\n
           (1)When a person is accused of more offences than one<\/p>\n
              of the same kind committed within the space of twelve<\/p>\n
              months from the first to the last of such offences,<\/p>\n
              whether in respect of the same person or not, he may<\/p>\n
              be charged with, and tried at one trial for, any number<\/p>\n
              of them not exceeding three.<\/p><\/blockquote>\n
           (2) Offences are of the same kind when they are<\/p>\n
              punishable with the same amount of punishment under<\/p>\n
              the same section of the Indian Penal Code (45 of 1860)
\n CRIMINAL REVISION NO.2010 OF 2004                        :{ 4 }<\/p>\n
              or of any special or local law:\n<\/p>\n
              Provided that, for the purposes of this section, an<\/p>\n
              offence punishable under Section 379 of the Indian<\/p>\n
              Penal code (45 of 1860) shall be deemed to be an<\/p>\n
              offence of the same kind as an offence punishable<\/p>\n
              under Section 380 of the said Code, and that an<\/p>\n
              offence punishable under any section of the said Code,<\/p>\n
              or of any special or local law, shall be deemed to be an<\/p>\n
              offence of the same kind as an attempt to commit such<\/p>\n
              offence, when such an attempt is an offence.”\n<\/p>\n
           No doubt, when a person is accused of more than one<\/p>\n
offence of the same kind, which are committed within a space of 12<\/p>\n
months, he may be charged with and tried at one trial for any number<\/p>\n
of them not exceeding three. Reading of Section 219 Cr.P.C would<\/p>\n
not mean that whenever any offences of the same kind are<\/p>\n
committed within a period of one year, they are to be tried together.<\/p>\n
In fact, joining together of different offences at one trial may lead to<\/p>\n
embarrass the accused person and this aspect was considered by<\/p>\n
the Law Commission even while prescribing the period of 12 months<\/p>\n
for joining the offences of the same kind for one trial under Section<\/p>\n
219 Cr.P.C. This Section bars only single trial of more than three<\/p>\n
offences of the same kind committed within a space of year. It does<\/p>\n
not mean that if the accused had committed 50 offences in the<\/p>\n
course of 12 months, only three offences should be tried and rest<\/p>\n
abandoned. He may be tried in batches of three at each trial under<\/p>\n
separate charges. This Section apparently merely authorizes a<\/p>\n
combination of three offences in one trial. It does not bar a separate
\n CRIMINAL REVISION NO.2010 OF 2004                          :{ 5 }<\/p>\n
trial of an accused for each separate offence. The effect of the<\/p>\n
Section is not to make three offences which are tried together under<\/p>\n
its provision as one offence. The offences continue to be separate<\/p>\n
though there is only one trial for all of them. This Section, as such, is<\/p>\n
not making a provision of any binding nature that offences of the<\/p>\n
same kind committed during the period of 12 months are to be tried<\/p>\n
together. They may be tried together and this course, if adopted by<\/p>\n
the Court, would be permissible but it can not be said that whenever<\/p>\n
three offences of the same kind are committed within a space of 12<\/p>\n
months, they are to be tried together. This Section 219 Cr.P.C., in my<\/p>\n
view, can not be read in this manner. A joint trial of distinct offences<\/p>\n
may sometimes lead to confusion and in such cases the Court<\/p>\n
generally would refuse to try more than one offence. The accused<\/p>\n
person would not have a right to ask for one trial in respect of two<\/p>\n
offences, may be of same kind. Accordingly, no case for issuing<\/p>\n
directions to direct joint trial of the petitioner for these two offences<\/p>\n
arising out of two separate FIRs, though committed within a period of<\/p>\n
one year, is made out. It is held in Chhutanni Vs. The State of<\/p>\n
Uttar Pradesh, AIR 1956 Supreme Court 407 that there is no<\/p>\n
irregularity or illegality in holding separate trial of the same accused<\/p>\n
for each of the offences committed by him, even though a single trial<\/p>\n
in respect of all those offences is permissible under the Code. I am<\/p>\n
not inclined to accept this plea.\n<\/p>\n
            In Criminal Revision No.2011 of 2004, the petitioner’s<\/p>\n
prayer is to the contrary. Is not it a contradiction in itself? It may show<\/p>\n
that the petitioner may be aiming to delay the trial. In this case, the<\/p>\n
Vigilance Bureau, has filed a challan against the petitioner under
\n CRIMINAL REVISION NO.2010 OF 2004                          :{ 6 }<\/p>\n
Section 409, 167 IPC and 13(i)(d) of the Act on three counts. It is<\/p>\n
alleged that petitioner being Tehsildar auctioned the land belonging<\/p>\n
to Hindu Education Society in May 2001 for Rs.2,92,000\/- whereas<\/p>\n
this land was auctioned by S.D.M., Meham, on 14.2.2001 for<\/p>\n
Rs.3,62,000\/-. From this, it is alleged that he has committed an<\/p>\n
offence under Section 13 of the Act. Second allegation against the<\/p>\n
petitioner is that he was appointed as a Receiver regarding some<\/p>\n
land situated in village Sanghi and on 26.6.2001, he prepared<\/p>\n
documents mentioning that Surat Singh, Pardhan, be appointed as a<\/p>\n
Receiver and thus, allegedly committed offence under Section 167<\/p>\n
I.P.C. Third allegation against him is that he has retained different<\/p>\n
amount of cash, which was on account of drought relief but<\/p>\n
dishonestly or fraudulently converted the same for his own use. This<\/p>\n
action of the Court in framing three charges, which are committed at<\/p>\n
different times, at different areas and putting them for trial together is<\/p>\n
being challenged in this revision petition. The counsel submits that<\/p>\n
this action of the Court would be in violation of the provisions of<\/p>\n
Section 218 Cr.P.C. Section 218 makes a provision for separate<\/p>\n
charges for distinct offences. It reads as under:-<\/p>\n
            “218. Separate charges for distinct offences.- (1) For<\/p>\n
            every distinct offence of which any person is accused<\/p>\n
            there shall be a separate charge, and every such charge<\/p>\n
            shall be tried separately:<\/p><\/blockquote>\n
            Provided that where the accused person, by an<\/p>\n
            application in writing, so desires and the Magistrate is of<\/p>\n
            opinion that such person is not likely to be prejudiced<\/p>\n
            thereby, the Magistrate may try together all or any
\n CRIMINAL REVISION NO.2010 OF 2004                         :{ 7 }<\/p>\n
           number of the charges framed against such person.<\/p>\n
           (2) Nothing in sub-section (1) shall affect the operation of<\/p>\n
           the provisions of Sections 219, 220, 221 and 223 Cr.P.C.”<\/p>\n
           A perusal of Section 218(1) would show that for every<\/p>\n
distinct offence, there is to be a separate charge and further that<\/p>\n
every such charge is to be tried separately. There is then a proviso<\/p>\n
under this Section as per which where the accused person so<\/p>\n
desires and gives in writing and the Magistrate is of the opinion that<\/p>\n
such person is not likely to be prejudiced thereby the Magistrate may<\/p>\n
try together all or any number of charges framed against such<\/p>\n
person.    It is specifically provided   that sub-section (1) shall not<\/p>\n
effect the operation of provisions of Section 219, 220, 221 and 223<\/p>\n
Cr.P.C. It is pleaded that there is no connection with the charges and<\/p>\n
they are also not committed in the same series of act and so should<\/p>\n
be separately charged and tried.\n<\/p>\n
           In criminal trial, the first and primary object is requirement<\/p>\n
of a fair trial. The various provisions of the Code seeks to secure this<\/p>\n
object by laying down various provisions. For every offences, there<\/p>\n
should be a separate charge as required under Section 218 Cr.P.C.<\/p>\n
except in certain specified cases. This is sought to be achieved, so<\/p>\n
that the object of fair trial is not nullified by joinder of numerous and<\/p>\n
unconnected charges. The exception, carved out to this in the form of<\/p>\n
Section 219 Cr.P.C., which again is based on some rational principle<\/p>\n
and this is to avoid multiplicity of proceedings. The principle as laid<\/p>\n
down in Section 219 Cr.P.C is that if a criminal act has several<\/p>\n
aspects, all of them should be adjudged together. It may need a<\/p>\n
notice that there was no provisions for an accused person to make
\n CRIMINAL REVISION NO.2010 OF 2004                         :{ 8 }<\/p>\n
an application to try together any number of charges framed against<\/p>\n
him under Section 233 of the Code, which corresponds to Section<\/p>\n
218 Cr.P.C., where such provision has now been made. In fact, the<\/p>\n
law in regard to joinder of charges and joint trial is contained in<\/p>\n
Sections 218 to 223 Cr.P.C. All these Sections are, as such, to be<\/p>\n
read together and not in isolation inasmuch as they deal with the<\/p>\n
same subject matter and set out different aspect of it. (See Willie<\/p>\n
(William) Slaney      Vs.    State of Madhya Pradesh, AIR 1956<\/p>\n
Supreme Court 116). Section 218 Cr.P.C. provides a general rule<\/p>\n
that for every distinct offence, there shall be a separate charge.<\/p>\n
           The grievance of the petitioner in the present case is not<\/p>\n
that separate charges have not been framed but plea is that these<\/p>\n
separate charges, being distinct, can not be tried together and<\/p>\n
should be tried separately. There are exception to this Rule as laid<\/p>\n
down in Section 218 Cr.P.C in the form of Sections 219, 220 and 221<\/p>\n
Cr.P.C. As already noticed, Section 219 Cr.P.C., talks of trial of three<\/p>\n
offences of the same kind, which can be tried together when<\/p>\n
committed within a period of one year. Similarly, Section 220 Cr.P.C<\/p>\n
provides that if one series of acts so connected together as to form<\/p>\n
the same transaction, more offences than one are committed by the<\/p>\n
same person, he may be charged with, and tried at one trial for,<\/p>\n
every such offence. Then Section 223 Cr.P.C. talks of joint trial of<\/p>\n
persons    who can be charged jointly. It has been viewed that<\/p>\n
question whether two or more charges can be tried together in one<\/p>\n
trial or not is a matter of discretion of the Trial Court to be exercised<\/p>\n
with regard to the facts of each case. A factor which the Trial Court is<\/p>\n
to bear in mind in exercising the discretion is that the joinder should
\n CRIMINAL REVISION NO.2010 OF 2004                       :{ 9 }<\/p>\n
not result in such oppression towards the conduct of defence so as<\/p>\n
to occasion miscarriage of justice. (see The State of Andhra<\/p>\n
Pradesh Vs. Cheemalapati Ganeswara Rao and another, AIR<\/p>\n
1963 Supreme Court 1850).\n<\/p>\n
           It may be noticed that three offences charged against the<\/p>\n
petitioner are committed within a period from May 2001 to December<\/p>\n
2001. These offences are committed within a period of one year.<\/p>\n
They relate to the conduct of the petitioner in his capacity as<\/p>\n
Tehsildar. Charge No.1 concerns the auction, which the petitioner<\/p>\n
conducted and Charge No.2 is concerning his being Receiver of a<\/p>\n
property. The 3rd charge relates to dishonest misappropriation of<\/p>\n
drought relief fund. Since the primary object of all these rules is to<\/p>\n
grant fair trial and Trial Court is required to see that exercise of<\/p>\n
discretion in joining the charges should not result in oppression<\/p>\n
towards the defence so as to occasion miscarriage of justice, the<\/p>\n
prayer made by the petitioner seems to have basis and may require<\/p>\n
consideration.   It has otherwise been held that provision of this<\/p>\n
Section must be strictly applied as separate trial is a rule and joint<\/p>\n
trial is an exception. (See Willie (William) Slaney’s case (supra).<\/p>\n
The words used in the Section is `a distinct offence’, which would<\/p>\n
mean, offences which have no connection with each other. Offences<\/p>\n
falling under different Sections of penal enactment and the offences<\/p>\n
committed on different occasions, even though may fall under same<\/p>\n
Section, would be distinct offences. The effect of non compliance of<\/p>\n
this rule and mis-joinder of charges would be as provided in Section<\/p>\n
464 Cr.P.C. As per this Section, no finding, sentence or order by a<\/p>\n
Court of competent jurisdiction shall be deemed to be invalid merely
\n CRIMINAL REVISION NO.2010 OF 2004                           :{ 10 }<\/p>\n
on the ground that no charge was framed or on the ground of any<\/p>\n
error, omission or irregularity in the charge including any misjoinder<\/p>\n
of charges, unless in the opinion of the Court of appeal, confirmation<\/p>\n
or revision, a failure of justice has in fact been occasioned thereby.<\/p>\n
Accordingly, where failure of justice is likely to take place, such<\/p>\n
irregularity in misjoinder of charges may ultimately effect the trial as<\/p>\n
such. It appears that the offences for which the Trial Court is trying<\/p>\n
the petitioner jointly are different and distinct and trial, as held, may<\/p>\n
not be in tune with the provisions of Section 218 of Cr.P.C. It is also<\/p>\n
seen that so far the petitioner has not filed any application before the<\/p>\n
Trial Court, making such a prayer as made in the petition. Under the<\/p>\n
circumstances, it would be appropriate to direct the petitioner to<\/p>\n
move an application before the Court, praying for a separate trial for<\/p>\n
these distinct offences. It is not permissible to accept the prayer of<\/p>\n
the petitioner that he is required to be discharged, as prayed in the<\/p>\n
petition on these grounds. Because of misjoinder of charges, the<\/p>\n
petitioner can not be ordered to be discharged. The trial is yet to<\/p>\n
take place. The Court would consider the prayer of the petitioner for<\/p>\n
a separate trial for these offences in terms of Section 218 Cr.P.C and<\/p>\n
in case it comes to the conclusion that the offences are distinct and<\/p>\n
separate, the Court would consider the prayer of the petitioner and<\/p>\n
grant any appropriate relief, which may include a separate trial for<\/p>\n
these offences. Needless to mention that the Court has to see<\/p>\n
whether this joint trial of offences is a trial where distinct offences are<\/p>\n
being tried together and such a mode is likely to prejudice the<\/p>\n
petitioner or   is likely to embarrass the defence of the petitioner,<\/p>\n
which may lead to miscarriage of justice.\n<\/p>\n
 CRIMINAL REVISION NO.2010 OF 2004                      :{ 11 }<\/p>\n
           Accordingly, Criminal Revision No.2010 of 2004 is<\/p>\n
dismissed. Criminal Revision No.2011 of 2004 is disposed of with the<\/p>\n
direction to the petitioner to move an appropriate application before<\/p>\n
the Trial Court asking for separate trial for these offences on the<\/p>\n
grounds that may be considered relevant and appropriate by the<\/p>\n
petitioner. The prayer of the petitioner for his discharge on the<\/p>\n
ground of misjoinder of charges is rejected.\n<\/p>\n<\/p>\n
November 28,2008                          ( RANJIT SINGH )\nkhurmi                                         JUDGE\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Mahender Singh Kadian … vs State Of Haryana on 28 November, 2008 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-245345","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nMahender Singh Kadian ... vs State Of Haryana on 28 November, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mahender-singh-kadian-vs-state-of-haryana-on-28-november-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mahender Singh Kadian ... vs State Of Haryana on 28 November, 2008 - 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