Gujarat High Court
Maheshwariben Kantilal Solanki vs State Of Gujarat on 28 March, 2023
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7732 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 7735 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MAHESHWARIBEN KANTILAL SOLANKI
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MS. KRUTI M SHAH(2428) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 28/03/2023
COMMON ORAL JUDGMENT
1. The petition being Criminal Misc. Application Page 1 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 No.7732 of 2017 is for quashing of F.I.R. being C.R. No.I- 30/2017 registered at Dabhoi Police Station, District Vadodara (Rural) on 10.03.2017 for the offence under sections 409, 420, 468, 471 and 120B of IPC, and petition being Criminal Misc. Application No.7735 of 2017 is for quashing of F.I.R. being C.R. No.I-05/2017 registered at Chanod Police Station, District - Vadodara (Rural) on 10.03.2017 for the offence under sections 406, 409, 420 and 114 of IPC.
2. Both the petitions are preferred under Section 482 of the Code of Criminal Procedure, 1973, (for short "the Cr.P.C.") by common petitioner, who is arraigned as an accused in three FIRs i.e. the impugned FIRs and F.I.R. being C.R. No.I-02/2017 registered at Chanod Police Station, District - Vadodara (Rural) on 22.02.2017 for the offence under sections 406, 409, 420 and 114 of IPC.
3. The petitioner is a Civil Engineer at Taluka Panchayat, Dabhoi. She has been accused of the offence Page 2 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 for sections as referred hereinabove in three of the FIRs alleging the occurrence of offence between 01.04.2015 to 02.02.2017. The complainant of all the three FIRs is Dinesh Manubhai Tadvi, who served for about 24 years as Distribution Officer, Agriculture in Narmada District and received promotion on 14.02.2017 as Taluka Development Officer (for short "TDO") and on 17.02.2017, he took the charge at Dabhoi as TDO.
4. Advocate Ms. Kruti M.Shah referring to the judgments of T.T. Antony Vs. State of Kerala, reported in (2001) 6 SCC 181, and Amitbhai Anilchandra Shah Vs. The Central Bureau of Investigation and Ors., reported in (2013) 6 SCC 384, stated that the contents in FIRs are inter-connected and therefore there cannot be multiple FIRs for the same offence. Ms. Shah stated that the complainant is common in all three FIRs, who has alleged of the offence, which is stated to have occurred from 01.04.2015 to 02.02.2017 for the irregularities found in construction of the toilets under government scheme named as "Swachchh Bharat Mission Yojna" for Page 3 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 the year 2015-16.
4.1 Advocate Ms. Shah stated that the irregularity, which has been observed is under one scheme at Village Chanod and Dabhoi and two of the FIRs of village Chanod, Mandwa and Dharampuri. Prayer was thus made to quash the impugned FIRs.
5. While learned APP, Mr. Pranav Trivedi, states that all the FIRs are not in respect of the same incident, but have occurred at different villages with different conspirators and cannot be considered as have taken place in the course of same transaction or same occurrence. It is submitted by APP that all the FIRs in truth and substance are different. Some instances in the FIRs show larger conspiracy as compared to the other, and submitted that 'test of sameness' and 'test of consequences' applied would suggests that the charge- sheets cannot be clubbed together.
6. In F.I.R. being C.R. No.I-02/2017, the accused Page 4 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 are six in number, while the allegations are against Ex- Sarpanch, Talati-cum-Mantri, Block Coordinator and two Cluster Coordinators along with the present petitioner as Civil Engineer of Taluka Panchayat, Dabhoi. The complainant TDO had received an application on 03.02.2017 of Ahulkumar Rajubhai Machhi, resident of Chanod village, Taluka - Dabhoi, District Vadodara, alleging large scale corruption under Swachchh Bharat Mission Yojna of 2015-16 in village Chanod, and it is stated that H.K. Vyas, Deputy Shri District Gram Development Agency, Vadodara was handed over the inquiry, and on 08.02.2017, he visited village Chanod, when he found that out of 222 sanctioned toilets only 29 were constructed. He found irregularities in the statement listed as 'A', 'B', 'C', 'D', 'E', FIR is with the allegation that all the accused misusing the position under concert gave false certificate and has misappropriated the government money of Rs.19,59,000/- and has caused the offence of cheating and criminal breach of trust.
Page 5 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 6.1 In F.I.R. being C.R. No.I-05/2017, the complaint is against six accused as ex-sarpanch, block coordinator, technical assistant, two Cluster coordinators and the present applicant as civil engineer. The complainant TDO had received an application on 03.02.2017 of Ahulkumar Rajubhai Machhi, resident of Chanod village, Taluka - Dabhoi, District Vadodara, who alleged large scale corruption under Swachchh Bharat Mission Yojna of 2015-16. The District Development Officer (Revenue), District Panchayat, Vadodara was handed the inquiry, who visited Mandwa village on 08.02.2017 and had found that out of 81 sanctioned toilets, only 20 were constructed. No toilets of 61 beneficiaries were made, while old toilets of 10 beneficiaries were shown as new and construction work of 49 beneficiaries were not completed and two toilets were not at all made. He saw irregularities in total 61 beneficiaries. It is alleged that by misusing their positions, had given false certificate and misappropriated the government money of Rs.7,32,000/-; thus committed the offence of cheating and criminal Page 6 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 breach of trust.
6.2 The date of occurrence of offence in both these FIRs is shown as between 01.04.2015 to 02.02.2017. The sections invoked in both the FIRs of Chanod Police Station is 406, 409, 420 and 114 of IPC. The date of complaints being C.R. No.I-02/2017 is 22.02.2017 and C.R. No.I-05/2017 is of 10.03.2017 at Chanod Police Station for the offence committed in Chanod and Mandwa village.
6.3 The petitioner has not challenged C.R. No.I- 02/2017, while has considered C.R. No.I-05/2017 of Chanod Police Station and C.R. No.I-30/2017 as subsequent FIR and has thus prayed for quashing the same.
6.4 In F.I.R. being C.R. No.I-30/2017 registered at Dabhoi Police Station for the allegation of Dharampuri village, and village Kayawarohan the accused are nine in number, wherein two are sarpanch, three accused are Page 7 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 Talati-cum-mantri, present applicant and one another accused as Civil Engineers, one coordinator and one as cluster coordinator. The present petitioner is found common in all the FIRs. While one Rajubhai Maganbhai Parmar as Cluster Coordinator has also been arraigned in two FIRs being C.R. No.I-02/2017 and C.R. No.I-05/2017 and one Mr. Manhar M.Vankar as Cluster Coordinator is made accused in C.R. No.I-05/2017 and C.R. No.I- 30/2017; while other co-accused are different. 6.5 In C.R. No.I-30/2017, as per the complainant, on 27.09.2016 and 18.11.2016, the Gujarat Takedari Commission, Gandhinagar had received application from Bharatbhai Bapalal Patel, Rajubhai Bhagubhai Bariya and Mehulbhai Maheshbhai Patel of village Dharampuri, Taluka Dabhoi, District Vadodara regarding corruption of crore of rupees in context with the toilets. Shri S.K. Vyas, officer of Gujarat Takedari Commission, Gandhinagar had entrusted the investigation to District Development Officer, Vadodara for the investigation by Deputy Shri District Gram Development Agency, Vadodara, and the Page 8 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 allegations are that in Dharampuri village, in the year 2015-16 and 2016-17, about 120 toilets were to be constructed by the government, and 13 beneficiaries were already paid the money under the scheme; in spite of that, again aid was provided. Accused nos.1 to 10 by misusing their status, in case where toilets of 7 beneficiaries were already constructed, again provided the benefit. False documents were prepared for showing, as new toilets for six beneficiaries already having old toilets and thereby misappropriated the amount of Rs.1,56,000/-, and used the same for their own personal purpose, and, thus District Development Officer, Vadodara had passed an order for filing a police complaint. In the said FIR, the further allegations are also made with regard to misappropriation in the same village Dharampuri. The details regarding misappropriation of money has been given in the FIR for the individual seven beneficiaries, and it has been alleged that a total amount of Rs.72,000/- has been misappropriated of six beneficiaries.
Page 9 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 6.6 The FIR further alleges that, in Kayawarohan Gram Panchayat, though the aid was provided, again the money had been given to about 24 beneficiaries and thereby has caused misappropriation of Rs.2,88,000/-, and for about 13 beneficiaries, the old toilets were shown as new, and false certificates were given on which misappropriation and cheating of Rs.1,56,000/- has been caused. It is alleged that in baseline survey for the year 2012, though the persons were not entitled for the benefit, 23 beneficiaries were given the aid, and thereby has caused loss to the government by misappropriation of Rs.2,76,000/-. Further it is alleged that, by Voucher No.362, on 13.10.2016, without any physical verification or any certification, 79 beneficiaries were shown to have received the amount of Rs.9,48,000/-, which were in fact misappropriated by the accused.
6.7 So, for Kayawarohan Gram Panchayat, about 24 beneficiaries were given the benefit of aid twice, 13 beneficiaries were shown to have been issued false Page 10 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 certificates as of new toilets; hence, for Kayawarohan Gram Panchayat, total amount of Rs.16,68,000/- were shown to be misappropriated by the alleged accused of the F.I.R.
7. In the case of Amitbhai Anilchandra Shah Vs. Central Bureau Of Investigation And Anr., reported in (2013) 6 SCC 348, 'consequence test', as laid down in C. Muniappan & Ors. Vs. State of Tamil Nadu, reported in (2010) 9 SCC 567 was approved, where it was explained that if an offence forming part of the second FIR arises as a consequence of the offence alleged in the first FIR, then offences covered by both the FIRs are the same and accordingly, the second FIR will be impermissible in law, so as to explain, that the offences covered in both the FIRs shall have to be treated as a part of the first FIR. It was observed that, to determine whether different offences ought to be treated as part of the same transaction, the "consequence test"
laid down in C.Muniappan, (2010) 9 SCC 567, may be taken aid of. The said test prescribes that if an offence Page 11 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 forming part of the second FIR arises as a consequence of the offence alleged in the first FIR then offences covered by both the FIRs are the same and, accordingly, the second FIR will be impermissible in law. In other words, the offences covered in both the FIRs, shall have to be treated as a part of the first FIR. Furthermore, merely because two separate complaints had been lodged does not mean that they could not be clubbed together and one charge-sheet could not be filed.
7.1 In T.T. Antony Vs. State of Kerala, reported in (2001) 6 SCC 181, the Hon'ble Supreme Court observed that the first information in regard to the commission of a cognizable offence satisfies the requirements of the section; there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence. Further it was observed that, on receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the Page 12 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 officer in-charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 of the Cr.P.C.
7.2 Here these three FIRs are of the offences committed at different villages with different accused. The money has been misappropriated under one scheme but at different villages, where the beneficiaries are different, and in C.R. No.I-30/2017, over and above the case of cheating and criminal breach of trust, the allegation is also of issuance of false certificate. The case of Brijiwan Das Vs. Emperor, reported in 1932 Criminal Law Journal 1931, was of the embezzlement with respect to a sum of Rs.446-8-3 received by the accused in his capacity as a servant and had misappropriated between the dates 01.02.1928 and 26.09.1928. He was sentenced to a day's imprisonment and a fine of Rs.600. In the month of December of the earlier year the accused Page 13 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 master through another servant instituted a fresh complaint for the prosecution on three charges of embezzling three sums of money on 21 st June, 2nd August and 21st August, 1928. It was noticed that these dates fell within the dates of the previous charge of 1 st February and 26th September, but these items were not included in the gross sum for which the accused was prosecuted, charged and convicted at the former trial. 7.3 It was observed that there were divergence in judicial opinion to the issue whether after a trial in respect of a gross sum for which a breach of trust was alleged to have been committed between two specified dates, second trial in respect of an offence alleged to have been committed on intermediate days but not included in the gross sum is permissible or not. By referring to the provisions of sections 233 and 222 of the earlier Criminal Procedure Code it was held that the provision of section 233 is of a separate trial of every offence, are in no way modified by the new provisions of section 222(2). It was observed that section 222(2) is enabling provision for the Page 14 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 Court to have a joint trial of what may apparently be several offences of breach of trust. It was laid down that the charge of a gross sum embezzled between two dates is only one charge and there may be separate trial under the provisions of section 233 of embezzlement of another item not included in the gross sum for which an earlier charge was framed under section 222(2). It was observed that two of the offences could have been tried jointly with the former offence for embezzling a gross sum, and there was no reason why there could not be a separate trial because section 235 is only permissive and permits the trial of three offences of the same kind within a year by one trial, but does not bar three separate trials for those offences.
7.4 The Gwalior Bench in the case of Ramkrishna Vs. State, reported in 1956 Madhya Bharat 194, held that section 222(2) directs that all items or misappropriation included in the gross sum need not be specified but they can be grouped together into one lump sum and that can be shown as the sum misappropriated. Page 15 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 It was laid down that there is nothing in the sub-section to show that all items misappropriated within the space of one year must be included in the gross sum. Further observing that sub-section indicates clearly that the intention of the Legislature was to allow three lump sums to be combined at one trial under section 234 of the Code and if that be the intention of the Legislature, it would not be correct to say that the gross sum must include all the items of misappropriation made during the course of one year, and, thus it was held that where, therefore, an accused person was tried and convicted for misappropriating a gross sum during a certain period, his conviction is no bar to another trial in respect of other sums of money alleged to have been misappropriated by him during the said period.
7.5 In re. Osman Ali, Petitioner, reported in AIR 1959 Andhra Pradesh 520, the scope of section 222 was explained by observing that it is only an enabling section and not a disabling one. It enables the prosecution, when it considers taking such a course as Page 16 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 appropriate, or convenient, or necessary, to put in a gross sum representing the total amount misappropriated by the accused, instead of framing a large number of separate charges in respect of small sums of money which go to make up the gross amount. To spell out from such an enabling section, a disability on the part of the prosecution to follow the procedure, which is enjoined by the sections of the Code, such as 233, is wrong. 7.6 It was held that when the accused is alleged to have committed distinct and different offences of criminal misappropriation in respect of different individuals and in relation to different sums of money and committed at different places and times there is no law which can stand in the way of the prosecution in respect of the subsequent charges, going on simply because the earlier charges happened to end in an acquittal.
7.7 In the case of State of Madhya Pradesh Vs. Indrajeetsingh, reported in 1987 CRI. L.J. 348, it was observed that when the accused is charged under section Page 17 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 409 of Penal Code for misappropriation of various items of money extending over a period of more than one year the various items cannot be lumped together in the same charge, in view of the provisions of the proviso to section 212(2) which are mandatory. Therefore, it was concluded that the trial held in a manner not warranted by the proviso is wholly bad, irrespective of the question whether or not there was any actual prejudice to the accused and consequent failure of justice. The contravention of the proviso is not an irregularity but an illegality which cannot be classed as curable under section 464.
7.8 In the case of Ranchhod Lal Vs. State of Madhya Pradesh, reported in AIR 1965 Supreme Court 1248, the Hon'ble Supreme Court has laid down that sub-section (2) of section 222 Cr.P.C. is an exception to meet a certain contingency and is not the normal rule with respect to framing of a charge in cases of criminal breach of trust. The normal rule is that there should be a charge for each distinct offence, as provided in section Page 18 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 233 of the Code. Section 222 mentions, what the contents of the charge should be. It is only when it may not be possible to specify exactly particular items with respect to which criminal breach of trust took place or the exact date on which the individual items were misappropriated or in some similar contingency, the Court is authorised to lump up the various items, with respect to which criminal breach of trust was committed and to mention the total amount misappropriated within a year in the charge. When so done, the charge is deemed to be the charge of one offence. If several distinct items with respect to which criminal breach of trust has been committed are not so lumped together, no illegality is committed in the trial with respect to each distinct offence of criminal breach of trust with respect to an individual item, is the correct mode of proceeding with the trial of an offence of criminal breach of trust.
7.9 It was observed that section 234 is also an enabling provision, and is an exception to section 233, Cr.P.C. If each of the several offences is tried separately, Page 19 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 there is nothing illegal about it. Where offences have been committed in the course of the same transaction, the separate trial of the accused for certain specific offences is not illegal. Section 235 is an enabling section. 7.10 The decision of the Delhi High Court in the case of The State Vs. Ram Kanwar, reported in 1984 Cr. L.J. 958, was with the charge of Criminal breach of trust or dishonest misappropriation. The accused was already convicted for the breach of trust of four items. The terminal dates of theses items were 06.03.1978 and 03.05.1978, and there were fresh charge for 8 items, where the terminal dates were 23.05.1978 and 19.07.1978. It was held that by continuation of the subsequent trial no injustice has been caused. Reference was also made of section 300 of Cr.P.C., which initiates the English rule of 'autrefois acquit' and 'autrerfois convict' applicable to criminal trials, and was observed that those were not applicable when recourse is had by the prosecution to the exceptional rule contemplated by section 212(2), when challan or charge-sheet was filed by Page 20 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 the prosecution against the accused person in respect of various items of misappropriation, defalcation, trial held, resulting in conviction or acquittal, and subsequent charge-sheet/challan was filed in respect of other items of misappropriation occurring during the same period of two terminal dates, or bringing the same year to which the items of previous charge-sheet pertained. It was observed that the charge framed in respect of items shall be deemed to be the charge of one offence within the meaning of section 219 Cr.P.C., provided that the time intervening to the two terminal dates does not exceed one year, and this provisions of law is enabling one for the prosecution and cannot be converted into disabling one. 7.11 It was also observed by the Delhi High Court that there would be no warrant for the prosecution that merely because section 212(2) Cr.P.C. enables the prosecution in cases of criminal breach of trust or dishonest misappropriation of money, to satisfy only the gross sum and the dates between which the same are alleged to have been committed, without specifying the Page 21 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 particular items or exact dates thereof, that only one offence has arisen out of the different offence of misappropriation, criminal breach of trust or defalcation, and that must be regarded in one time. This provision of law, as was observed, simply incorporates the deeming provision whereby the charge framed thereunder shall be deemed to be charge of one offence within the meaning of section 219 Cr.P.C., and not that it is one offence. 7.12 In case of E.K. Thankappan Vs. Union of India, reported in 1989 Cr. L.J. 2374, the Kerala High Court, held that, when person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) or in sub-section (1) of section 219, is accused of committing for the purpose of facilitating or concealing the commission of that offence or those offence, one or more offences of falsification of accounts, he may be charged, and tried at one trial for every such offence, there is no violation of section 219 in such a case. Page 22 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023
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8. Chapter XVII of the Cr.P.C. 1973, from section 211 to section 217 in Part A deals with form of charges while Part B from section 218 to section 224 makes provision for joinder of charges. Section 218 of the Cr.P.C. mandates that for every distinct offence of which any person is accused, there shall be a separate charge, and every such charge shall be tried separately. While the proviso to sub-section (1) grants the accused person a right to make an application in writing, if he so desires, and, if the Magistrate is of an opinion that such person is not likely to be prejudiced, the Magistrate may try together all or any number of charges framed against that person. The object of section 218 is to give an accused person notice of the charges, which he has to meet, and that he has not to be embarrassed by having to meet charges in no way connected to each other. However, the provision, if read in its entirety, with sub-section (2), the principle of framing of charge is, that unless otherwise indicated, every distinct offence should be subject matter of separate charge, and every such charge shall be tried Page 23 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 separately, unless the case is covered by the operation of provision of sections 219, 220, 221 and 223 Cr.P.C. Thus, Section 218 of the Cr.P.C. and its two sub-sections lays down general rules. Sub-section (1) lays down that, for every distinct offence for which any person is accused there shall be a separate charge, and sub-section (2) lays down that every such charge shall be tried separately, except in cases mentioned in sections 219, 220, 221 and
223.
9. Relevant Sections of Cr.P.C. for ready reference are reproduced herein under:
Section 212 of the Cr.P.C. Particulars as to time, place and person. (1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with
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criminal breach of trust or dishonest
misappropriation of money or other
movable property, it shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219;
Provided that the time included between the first and last of such dates shall not exceed one year.
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 number of the Page 25 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 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.
219. Three offences of same kind within year may be charged 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 ) 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 Page 26 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 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.
220. Trial for more than one offence.
- (1) 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.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub- section (2) of section 212 or in sub- section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence.
(3) If the acts alleged constitute an
offence falling within two or more
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separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (4) 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.
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860 ).
223. What persons may be charged jointly. - The following persons may be charged and tried together, namely:-
(a) persons accused of the same offence committed in the course same transaction;
(b) person accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
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(c) person accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first named persons, or of abetment of or attempting to commit any such last-
named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860 ). or either of those sections in respect of stolen property the possession of which has been transferred by one offence;
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(g) persons accused of any offence under Chapter XII of the Indian Penal Code relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:
Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.
300. Person once convicted or acquitted not to be tried for same offence.-
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction Page 30 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-
section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub- section (1) of section
220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last- mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
Page 31 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-
mentioned Court is subordinate.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 , (10 of 1897 ) or of section 188 of this Code.
10. Section 212 Cr.P.C. lays down that in cases where accused is charged with criminal breach of trust of dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed without specifying the Page 32 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 particular item or exact dates and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219 Cr.P.C., while, Section 219 Cr.P.C. is an enabling provision and is an exception to section 218 Cr.P.C. Section 219 lays down three limitations they are (i) that the offences must be of same kind (ii) that they must have been committed within the space of one year, and (iii) that more than three offences should not be joined in the same trial. Section 219 is one of the exception for section 218. There is no provision in the Code authorising amalgamation of case beyond the ambit of section 219. The Section providing for the joinder of charges and the joinder of person do not permit a Magistrate to amalgamate cases, that by strictly following the provision of Code, need to be separately tried. Section 219 Cr.P.C. speaks of offences and not transaction or acts. Thus, section 219 of the Code confers discretion upon the Magistrate to the effect that if the person is charged with three offences and the same were committed within the space of 12 months, he may be Page 33 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 charged and tried at one trial for the said three offences. 10.1 Section 219 of the Cr.P.C. cannot be read in isolation, it has to be read with sections 220, 221 and section 223 of the Code. Section 223 is with regard to what persons may be charged jointly. It has been stated in the said section, that the persons may be charged and tried together namely as in clause (a) "persons accused of same offence committed in the course of same transaction", and clause (d) "persons accused of different offences committed in the course of same transaction". Clause (b) also permits person accused of an offence and persons accused of abetment of, or attempt to commit, such offence, to be charged and tried together and clause
(c) is with respect to the persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of 12 months, to be charged and tried together. The true effect of section 219 is not to create a prohibition, that more than three offences cannot be tried together. For the applicability of section 219 Cr.P.C., it is necessary Page 34 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 that a person is accused of more offence than one, of the same kind. Section 219 governs the case, where there is only one accused, as the word "a person" therein cannot be read as including several persons. The case of several persons, being accused of more offences than one of the same kind committed within the space of 12 months is dealt with in clause (c) of section 223, that the word 'jointly" in section 223(c) is important and unless various persons committed the offence jointly, there would be no logic behind trying them jointly.
10.2 Section 220 is, like section 219, an exception to the general rule of separate charge and separate trial for every distinct offence. Sub-section (1) of section 220 also provides for trial of more than one offences, but the limitation lays down is that the offences must arise from the same transaction, expressing in case of one series of acts so connected together to form the same transaction when more offences are committed by the same persons. Sub-section (2) of section 220 further clarifies that, when a person charged with one or more offences of criminal Page 35 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 breach of trust or dishonest misappropriation of property as provided in sub- section (2) of section 212 or in sub- section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with, and tried at one trial for, every such offence. Section 220 refers to an offence committed in the series of acts, where the offence are more than one by the same person, then he can claim for charge to be framed in one trial. Sub-section (2) of section 220 also makes provision for a common trial in which 'a person' is charged with offences of criminal breach of trust, dishonest and misappropriation of property. The expression "a person"
in section 220 does not refer to the offences committed in the series of act jointly with others.
10.3 In the present case, in FIR being Cr. No.I- 30/2017, total accused are 9 in number, in Cr.No.I- 05/2017, total accused are 6, while in Cr. No.I-02/2017, accused are 6 in total.
Page 36 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 10.4 The expression "same transaction" is not defined anywhere in the Code and would be difficult to define precisely what the expression means. Whether a transaction can be regarded the same would necessarily depend upon the particular facts of each case, but generally when there is proximity in time or place or immediate purpose or design or continuity of action in respect of series of acts, it may be possible to infer that they form part of the same transaction. Several acts committed by a person, so unity of purpose or design that would be on a strong circumstances to indicate that those acts form part of same transaction. The connection between 'a series of acts' is to be an essential ingredient for those acts to constitute the same transaction. A transaction may be an isolated act or may be consisting of one series of acts. A series of acts which constitute a transaction must of necessarily be connected with one other and if some of them spell out independently they would not form part of the same transaction, but would Page 37 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 constitute a different transaction or transactions. The expression "same transaction" occurring in clause (a) and
(d) of section 223 are required to be given the same meaning according to the normal rule of construction of statute. The real and substantial dates of determining, whether several offences are so connected together as to form the same transaction, depend upon whether they are related to one point of purpose or as cause or effect of as principle and subsidiary act as to constitute one continuous action. The continuity of action is not in the sense that one act follow the others without any connection but in the sense of intimate connection between different acts, there must be continuity of purpose and concert.
11. In the instant cases, apart from the petitioner there are other accused, who are jointly alleged to have committed more than one offence of same kind the period of offence as alleged is between 01.04.2015 to 02.02.2017 i.e. approximately one year and almost ten months. The law recognises a common trial in one series of acts so Page 38 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 connected together so as to form the same transaction as has been considered in section 220 Cr.P.C., while observed hereinabove, the expression "same transaction"
could not be specifically defined and has to be understood upon the facts of each case.
12. In the case of Mohan Baitha And Others Vs. State of Bihar And Another, reported in (2001) 4 SCC 350, it has been held that expression "same transaction"
from its very nature is incapable of an exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense and the ordinary use of language must decide whether on the facts of a particular case, it can be held to be in one transaction. It is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. But the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the factors for deciding whether certain acts form Page 39 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 parts of the same transaction or not.
13. Therefore a series of acts, whether are so connected together as to form the same transaction is purely a question of fact, to be decided on the aforesaid criteria. In Clause (a) and (d) of section 223, the primary condition is that a person should have been an accused either of the same offence or of different offence "committed in the course of same transaction". The expression advisably used "in the course of same transaction". The said expression is not akin to saying "in respect of same subject matter". The series of acts which constitute a transaction must necessarily be connected with one another and if some of them stand out independently, then would not form part of the same transaction, but would constitute a different transaction or transactions. The expression "same transaction" used in sub-clause (a) and (d) of section 223 would have meant a transaction consisting either of single act or of a series of connected act.
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14. In case of Babubhai Vs. State of Gujarat, reported in (2010) 12 SCC 254, it has been observed in Para-21 as under:
"21. In such a case the court has to examine the facts and circumstances giving rise to both the FIRs and the test of sameness is to be applied to find out whether both the FIRs relate to the same incident in respect of the same occurrence or are in regard to the incidents which are two or more parts of the same transaction. If the answer is in the affirmative, the second FIR is liable to be quashed. However, in case the contrary is proved, where the version in the second FIR is different and they are in respect of the two different incidents/crimes, the second FIR is permissible. In case in respect of the same incident the accused in the first FIR comes forward with a different version or counterclaim, investigation on both the FIRs has to be conducted."
15. If in one case, the accused is alleged to have committed an offence without any connection with the Page 41 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 accused in other case, then it cannot be treated as the same offence or even different offences committed in the course of the same transaction. It had been observed in Balbir v. State of Haryana, 2000 Cri. L.J. 169 : AIR 2000 SC 11, that if two diametrically opposite versions are put to joint trial, the confusion which it can cause in the trial would be incalculable. It would then be a mess and then there would be no scope for a fair trial. Hence the attempt to bring the two cases under the umbrella of Section 223 of the Code has only to be foiled as untenable.
15.1 In the case of Balbir v. State of Haryana (supra), the Hon'ble Court by referring the judgment of State of Andhra Pradesh vs. Cheemalapati Ganeswara Rao, reported in (1964) 3 SCR 297 : (AIR) 1963 SC 1850), observed in para-11, 12 and 13, as under:
The series of acts which constitute a transaction must of necessity be connected with one another and if some Page 42 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 of them stands 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' occurring in cls. (a),
(c) 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.
12. For several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is commonality of purpose or design, where there is continuity of action, then all those persons involved can be accused of the same or different offences "committed in the course of the same transaction."
13. But if in one case the accused Page 43 of 55 Downloaded on : Fri Mar 31 20:40:45 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 is alleged to have killed a person without any junction with the accused in the other case, then it cannot be treated as the same offence or even different offences "committed in the course of the same transaction". If such two diametrically opposite versions are put to joint trial the confusion which it can cause in the trial would be incalculable. It would then be a mess and then there would be no scope for a fair trial. Hence the attempt to bring the two cases under the umbrella of Section 223 of the Code has only to be foiled as untenable.
16. Section 223, which provides for joint trial, deals with various circumstances, Clause (a) permits persons who are accused of having committed the same offence in the course of same transaction to be charged and tried together, clause (d) of Section 223 permits persons who are accused of having committed different offences, but during the course of same transaction to be charged with and tried together. So Clause (a) and (d) permits joint trial of persons committing 'same offences' or 'different offences', but so committed in the course of same Page 44 of 55 Downloaded on : Fri Mar 31 20:40:46 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 transaction.
16.1 The thing to be noticed is that section 223 does not read as if, various clauses can be applied only alternatively. The very opening words of the section shows that it is enabling provision for all the persons falling in section 223 Cr.P.C., who could be charged and tried together. Different clauses of section 223 Cr.P.C. are not materially exclusive, but can be availed of cumulatively.
17. In Narayan Prasad Vs. State of Rajasthan, reported in 1999 (4) Crimes (HC) 86, the Rajasthan High Court in para-7 has held as under:
"[7] Section 223(a) Cr.P.C. provides that persons accused of the same offence committed in the course of same transaction may be charged and tried together. It is obvious that it is enabling provision. The general rule is that every person is entitled to insist that his case should be tried separately. A joint trial in the circumstances mentioned in Section Page 45 of 55 Downloaded on : Fri Mar 31 20:40:46 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 223 is not compulsory and the Court has a discretion to order separate trials if that serves the purpose of justice best. The burden to justify the joint trial is always on the prosecution. It has to be accepted that it would be very hard and almost oppressive to any set of persons, to charge them together unless the whole of the evidence against all of them is precisely the same. In the instant case, it cannot be said that the whole of the evidence against all the accused will the same. As a matter of fact, the evidence will be different in respect of the incidents which have taken place at different shops. There is, therefore, a danger of prejudice being caused to the petitioners, if they are tries jointly."
18. Section 223 Cr.P.C. though enabling provision, such joint trial for persons alleged to have committed same offence or different offence in the course of same transaction can be ordered only if such persons would not be prejudically affected thereby and it is expedient so to do when one or more accused are involved, though the role of each one is different, but the offence committed is Page 46 of 55 Downloaded on : Fri Mar 31 20:40:46 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 the same transaction of same kind, their joint trial does not in any way prejudice or embarrass anyone of them since each one of them is connected with the evidence appearing against him. An accused cannot assert any right for a joint trial with the co-accused by invoking the provision of section 223, as the option is with prosecution.
19. All the three FIRs alleging of cheating and misappropriation as criminal breach of trust are at different Gram Panchayats. The total amount, as alleged in FIR being C.R. No.I-02/2017 is Rs.19,59,000/-; in FIR being C.R. No.I-05/2017, the allegation is of Rs.7,32,000/-, while, in FIR being C.R. No.I-30/2017, the allegation of total misappropriated amount is Rs.18,96,000/-, which includes the amount of villages Dharampuri and Kayawahoran.
19.1 All the offences, as alleged, have not been committed in the course of same transaction. Different persons, at different village panchayats have committed Page 47 of 55 Downloaded on : Fri Mar 31 20:40:46 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 the offence within the period alleged to be 01.04.2015 to 01.02.2017. As per section 223 of Cr.P.C., all persons falling under any of the seven categories enumerated therein can be charged and tried together. In both the sub-clauses (a) and (b) of section 223, the primary condition is that the persons should have been accused either of the same offence or of difference offences "committed in the course of same transaction". As observed hereinabove, the expression used in the course of the same transaction is not same as the expression "in respect of the same subject matter". When there is a community of purpose or design and when there is a continuity of action, then all those persons involved can be accused of the same or different offences "committed in the course of same transaction". But, if two diametrical opposite versions are put up in the FIR for the offence alleged to have been committed under a same scheme of Swachchh Bharat Mission Yojna for the year 2015-16, 2016-17, it could not be considered that the offences were committed in the course of same transaction. The Page 48 of 55 Downloaded on : Fri Mar 31 20:40:46 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 only common aspect is that, the present petitioner is a common accused in all the three FIRs. The offence has been committed with the office bearers of different Gram Panchayats under one same scheme, which was in force in all the Gram Panchayats. If such offences with different versions are put up for a joint trial, then there would not be any scope for fair trial. Further, the other co-accused's right of a separate independent trial, cannot be burdened with joint trial, since that would create prejudice to their interest. The discretion is always with the Magistrate concern.
19.2 Hence, when the series of acts, which has been alleged in three different FIRs, are not found to be connected with another, but it stand independently, it would not form a part of the same transaction, but would constitute a different transaction or transactions. 19.3 Thus, as observed in State of Andhra Pradesh vs. Cheemalapati Ganeswara Rao (supra), the test which has to be applied is whether they are related to one Page 49 of 55 Downloaded on : Fri Mar 31 20:40:46 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 another in point of purpose or cause and effect of principle and subsidiary so as to result in one continuous action, then with the community of purpose or design, where there is continuity of action, in all persons involved can be accused of the same or different offences committed in the course of same transaction. Here, all the alleged transactions are not in the same series of acts, but by different accused along with the present petitioner.
20. In Kari Chaudhary Vs. Sita Devi, reported in 2002 (1) SCC 740, it was opined that there cannot be two FIRs against the same accused in respect of same case, but when there was rival versions in respect of same episode they would normally take the shape of two different FIRs and investigation can be carried out under both of them by the same investigating agency. In the case of Upkar Singh Vs. Ved Prakash and Others, reported in (2004) 13 SCC 292, the three Judges' bench addressing the issue pertaining to correctness of the law laid down in the case of T.T. Antony Vs. State of Kerala Page 50 of 55 Downloaded on : Fri Mar 31 20:40:46 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 (supra) and while accepting the case had observed that if the law laid down in T.T. Antony Vs. State of Kerala (supra), is to be accepted to have held that the second complaint in regard to the same incident filed as a counter complaint is prohibited, under the code, such conclusions would lead to serious consequences, inasmuch as, the real accused can take the first opportunity to lodge a false complaint and get it registered by the jurisdictional police and then that would preclude the victim to lodge a complaint.
21. Here, in the instant case, if the proposition of law laid down in T.T. Antony's case (supra) is to be considered, then the petitioner as an accused would be found committing offences under 'Swachchh Bharat Mission Yojna' at different Taluka Panchayats and would insists that there should be only one F.IR. against her for other offences of cheating and misappropriation. Sub- section (2) of section 220 clarifies that when a person is charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as Page 51 of 55 Downloaded on : Fri Mar 31 20:40:46 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 provided in sub-section (2) of section 212 or in sub- section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offence, one or more offences of falsification of accounts, he may be charged with and tried at one trial for every such offence. In the instant case, in the FIR being C.R. No.I-30/2017, the offence under section 409 IPC for criminal breach of trust by public servant lays down for a punishment with imprisonment for life or with imprisonment for either description for a term which may extend to ten years, which shall be accompanied by a liability to pay the fine, is associated with the offence under section 420 IPC for cheating and dishonestly inducing the delivery of property with offence as noted under sections 468, and 471 of IPC of forgery for the purpose of cheating, and dishonestly and fraudulently using as genuine documents known to be or has reason to believe to be forged. While in the FIRs being C.R. No.I-05/2017 and C.R. No.I- 02/2017, sections 461, 468, 471 and 120B of the IPC have Page 52 of 55 Downloaded on : Fri Mar 31 20:40:46 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 not been associated.
22. The allegations in all the three FIRs are different. The FIR being C.R. No.I-30/2017 is registered at Dabhoi Police Station, while FIRs being C.R. No.I- 02/2017 and C.R. No.I-05/2017 are registered at Chanod Police Station. The FIR at Dabhoi Police Station is with the total different versions, while the other two FIRs at Chanod Police Station involve the same sections, but with different accused in different transactions. The time of occurrence, as alleged, is 01.04.2015 to 02.02.2017 in all the FIRs; and further it is to be noted that, if at all any of the accused would want to invoke the provisions of section 223 of Cr.P.c. for the offences, which have been alleged at Chanod Police Station registered under two FIRs, they can certainly move the Magistrate to be charged and tried jointly, but it would be certainly the discretion of the Magistrate to consider such a plea on hearing the parties concerned, and if no prejudice would be caused to, the accused or the prosecutor, the Court may direct a joint trial; however, it would be for the Page 53 of 55 Downloaded on : Fri Mar 31 20:40:46 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 Magistrate concern to satisfy itself prior to ordering a joint trial, to prima facie come to the conclusion that the series of acts, as alleged in both the FIRs at Chanod Police Station, would fall under the expression "same transaction".
23. The complainant may be common in all the FIRs but the witnesses and the documentary evidence to be produced to prove the offence would be different. The burden to justify the trial is always on the prosecution and it would be very hard and oppressive to charge two set-of persons together, unless the whole of the evidence against all of them is precisely the same.
24. Thus, to the reasons given hereinabove, the petitions are required to be rejected, since all the FIRs are with different versions and of the transactions at different villages with different sets of persons alleged to have committed the offence, and it is not the case of different FIRs for the same offence. Accordingly, both the petitions stand rejected. Rule is discharged.
(GITA GOPI,J) Page 54 of 55 Downloaded on : Fri Mar 31 20:40:46 IST 2023 R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023 Further Order After the order was pronounced, Advocate Ms. Kruti M.Shah appearing for the petitioner requested for extension of interim relief granted earlier in terms of no coercive steps against the petitioner, for a further period of one month from today.
In view of the above, no coercive steps be taken against the petitioner for a further period of one month from today.
(GITA GOPI,J) Pankaj Page 55 of 55 Downloaded on : Fri Mar 31 20:40:46 IST 2023