Karnataka High Court
State Of Karnataka vs Abhishek @ Small Abhi on 21 March, 2022
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.7740 OF 2021
BETWEEN:
STATE OF KARNATAKA
THROUGH SRINGERI POLICE STATION,
REPRESENTED BY STATE
PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 01.
... PETITIONER
(BY SRI V.S.HEGDE, SPP-II, A/W.
SRI ROHIT B.J., HCGP (PHYSICAL HEARING))
AND:
1. ABHISHEK @ SMALL ABHI
S/O KRISHNAPPA POOJARI,
24 YEARS,
AGRICULTURIST,
R/O KIKRE,
SRINGERI TALUK,
CHIKKAMANGALURU DISTRICT - 577 101.
2. PRASANNA K.S.,
S/O SURESH,
29 YEARS,
R/AT HIMBRAVALLI VILLAGE,
BILGADE POST, KOPPA TALUK,
CHIKKAMANGALURU DISTRICT - 577 101.
... RESPONDENTS
(R1 AND R2 ARE SERVED AND UNREPRESENTED)
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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO A. SET ASIDE THE ORDER DATED 25.06.2021
IN SPL.C.NO.24/2021 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, FTSC-1, CHIKKAMAGALURU PRODUCED AT
ANNEXURE-A FOR THE OFFENCE P/U/S 120(b), 366(A), 376(2)(N),
376(D), 370, 201, 342, 354(C), 109, 114 OF IPC AND SEC.4,5(g)(i)
R/W 6,14,15,17,19 OF POCSO ACT U/S 4 OF THE ITP ACT SEC.75
OF J.J ACT AND SEC.66(E) OF I.T ACT.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The State is before this Court calling in question order dated 25-06-2021, in Special Case (P) No.24 of 2021, passed by the Additional District and Sessions Judge, FTSC-I, Chikkamagaluru, arising out of Crime No. 12 of 2021, registered for offences punishable under Sections 120(B), 366(A), 376(2)(N), 376(D), 370, 201, 342, 354(C), 109, 114 of the IPC, Sections 4, 5
(g)(i) r/w 6, 14, 15, 17, 19 of the POSCO Act, Section 4 of the I.T.P. Act, Section 75 of the J.J. Act and Section 66(E) of the I.T.Act. The State is aggrieved by the order passed under Section 218 of the Cr.P.C. by not acceding to grant different charge sheet number to different crimes albeit being tried simultaneously.
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2. Heard the Special Public Prosecutor-II Sri V.S.Hegde, along with Sri Rohit B.J., learned High Court Government Pleader appearing for the petitioner. The respondents are served and un- represented.
3. The facts that led the State to this Court in this petition succinctly stated are as follows:
The Police attached to Sringeri Police Station registered a crime in Crime No.12 of 2021 on the basis of a complaint and statement of the victim against several accused persons for offences punishable under Section 201, 370, 376(3)(n) of the IPC, Section 75 of the Juvenile Justice Care and Protection Act, 2015 and certain provisions of POSCO Act and Immoral Traffic Act as also under the provisions of Child Labour (Prohibition and Regulation) Amendment Act, 2016. After investigation, the Police filed 7 separate charge sheets in relation to distinct offences against 49 accused persons.4
4. At the time of filing of charge sheet before the Court, it was the contention of the prosecution that as per the statement of the victim under Section 164 of the Cr.P.C., she has been raped by more than 52 persons and has also named each of the accused and also narrated the place, date and time during which each of the accused committed such rape on her. Further, it was the case of the prosecution that after the arrest of the accused and their statements being recorded individually, the accused have specifically stated that all of them were in contact with their co- accused through phones and have used vehicles for committing the offence of alleged rape. It is the case of the prosecution that offences had occurred at various places on different dates. Based upon the aforesaid events that have taken place on different dates, permission was sought by the prosecution to assign separate charge sheet number to such cases. For the said purpose, an application was filed under Section 218 of the Cr.P.C. The contentions of the State in the application are as follows:
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"(a) Though the victim girl in the entire case is the same, but according to the victim girl, the accused persons have committed offences on various dates with in the span of 4 to 5 months in different time period. Hence, the offence cannot be termed as if it has occurred in the same transaction as all such offences are distinct offences. Therefore, all such distinct offences have been separately investigated and separate charge sheets have been filed and therefore, it cannot be clubbed in a single case. If the Court tries all the charges in a single case, it will amount to misjoinder of charges and if the trial is allowed to be continued in such scenario it will be a procedural irregularity which cannot be remedied at a later stage and the same will amount to failure on the part of the prosecution.
(b) It is also the contention of the prosecution that there are several accused who have conspired against the victim and the role of such accused are individual and distinct and therefore, continuation of trial or framing of charges jointly against all the accused is not at all proper. If the single charge is framed against all the accused, the same will be against the mandate of Section 223 of the Cr.P.C.
(c) It is also contended that even for the conduction of the trial, it is practically improbable on the point of view of the victim wherein she would have to be cross-examined by all the accused who are around 52 persons in the present case.
In such case, she will have to face more humiliation than the actual ordeal which she has already been through at the hands of the accused. Therefore, it is logically to assign 6 separate case numbers on the basis of individual charge sheets and separate trial is required to avoid such humiliation on the part of the victim also.
(d) It is also contended that if the Court tries all the accused in one particular case and conduct trial in a single case, the same will amount to misjoinder of charges and also trial will have to be vitiated for not complying provisions of 461, 464 and 465 of Cr.P.C. Therefore, the law is very clear regarding framing of separate charges for each and every separate offence. The Police have rightly conducted the investigation in such a manner and filed 37 different charge sheets. Out of which, only for accused are common in each charge sheet, but insofar as other charge sheets are concerned, the Police have attributed individual distinct acts on such accused persons who have been charge sheeted separately." In terms of what is contended supra, the State has filed different charge sheets for distinct offences against several accused. The charge sheet filed has begun with that of rape but after investigation what has emerged is, several offences in addition to rape, which has led the prosecution to distinct charge sheets in the matter for distinct offences. Section 218 of the Cr.P.C. reads as follows:
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"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 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."
The mandate of Section 218 of the Cr.P.C. is for every distinct offence of which any person is accused there shall be a separate charge and every charge shall be tried separately. The proviso would direct that where the accused person by an application in writing desires and the Magistrate is of the opinion that such person is not likely to be prejudiced thereby, the Magistrate may try all or any number of charges framed against such person together. It is also settled principle of law that contravention of the mandate of Section 218 of the Cr.P.C., is not curable defect 8 either in terms of Section 464 or 465 of the Cr.P.C., it is the charge against each individual.
5. In the light of the mandate of Section 218 of the Cr.P.C. afore-quoted, the application filed by the State merited consideration. It is also germane to notice the interpretation of Section 218 of the Cr.P.C. by the Division Bench of Delhi High Court and a Co-ordinate Bench of this Court. The Division Bench of Delhi High Court in the case of STATE VS. KHIMJI BHAI JADEJA reported in 2019 SCC OnLine Del 9060, wherein the Division Bench holds as follows:
"11. On a reading of Section 218 of the Cr.P.C., the legislative mandate that emerges is 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. This Section embodies the fundamental principle of Criminal Law that the accused person must have notice of the charge which he has to meet. The proviso to Sub-Section (1) seeks to carve out an exception to this general rule. This proviso states that the accused may make an application to the Magistrate that the Magistrate may try all or any number of charges framed against the person together, provided the Magistrate is of the opinion that such person is not likely to be prejudiced thereby. Thus, this exceptional course of action may be adopted only upon the accused making an application 9 therefore, and upon the Magistrate forming the opinion that trial of all or some of the charges together would not prejudice the accused. Sub-Section (2) makes it clear that sub-Section (1) shall not affect the operation of Sections 219, 220, 221 & 223, meaning thereby, that the said sections would apply irrespective of: (a) the mandate of sub-Section (1) - 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, and; (b) the order that the Magistrate may pass under proviso to sub-Section (1) of Section 218 of the Cr.P.C.
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75. On the aforesaid question (b), the only submission advanced by Mr. Jain is the one advanced in relation to question (a) i.e. that of acts of cheating under a single conspiracy constitute the "same transaction". He further submitted that question (b), as framed by the leaned ASJ, was flawed since it proceeded on the assumption that number of transactions represents the same number of offences. We have already rejected the aforesaid submission of Mr. Jain while dealing with question (a)."
The specific question is answered interpreting Section 218 of the Cr.P.C. by a Co-ordinate Bench of this Court in the case of IDEYA VENDAN R. VS. ADDITIONAL CHIEF SECRETARY AND OTHERS reported in LAWS (KAR)-2013-9-242 has held as follows:
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"36. As noticed supra, it is the contention of the learned counsel appearing for the petitioners that CID Police had no jurisdiction to file the charge sheet before the jurisdictional Magistrate since they were directed by the Government to submit a report to the Government, as such, the charge sheets filed are without jurisdiction. I find no substance in this contention. The Government in exercise of its power of superintendence over the Police Force and having regard to the seriousness of the allegations made involving huge sums of public money, transferred the investigation to CID Police. Of course, in the notification, the CID was directed to complete the investigation at an early date and take steps to submit the report to the Government. This direction in my considered opinion, does not come in the way of the power of the CID Police as officers-in-charge of the police station to file final report in terms of Section 173(2) of Cr.P.C. on completion of investigation. The Government notification does not preclude the CID Police from exercising the power vested in the Investigating Officer to file final report under Section 173(2) of Cr.P.C. to the jurisdictional court. In every case registered in respect of cognizable offences under Section 154 of Cr.P.C., the officer-in-charge of the police station having jurisdiction to investigate, is empowered to proceed with the investigation and on completion of investigation to form opinion as to whether on the materials collected, there is a case to place the accused before the Magistrate for trial and if so, to take necessary steps for the same by filing a charge sheet under Section 173(2) of Cr.P.C. The Apex Court in Ashok Kumar Todi's case referred to supra, in Paragraph-49 has set-out various steps contemplated by Code of Criminal Procedure to be carried-out during investigation, which reads as under:-11
"49. The Code contemplates the following steps to be carried-out during such investigation, which reads as under:-
i) proceeding to the spot;
ii) ascertainment of the facts and circumstances of the case;
iii) discovery and arrest of the suspected offender;
iv) collection of evidence relating to the commission of the offence which may consist of-
a) The examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit,
b) The search of places or seizure of things considered necessary for the investigation and to be produced at the trial; and
v) formation of opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and, if so, to take necessary steps for the same by filing of charge sheet under Section 173."
Therefore, in the light of the above, it cannot be said that the CID Police had no competence to file charge sheet under Section 173(2) of Cr.P.C. Having regard to the fact that the Government transferred the 12 investigation to CID police, the CID police assumed the status of officer-in- charge of the police empowered to take all necessary steps as contemplated by the Code regarding investigation of the case including the power to form final opinion and to place the charge sheet before the jurisdictional court. Merely because, in the notification issued by the Government, CID was directed to submit a report to the Government, it cannot be interpreted that the CID police had no jurisdiction to file the charge sheet in terms of Section 173(2) of Cr.P.C.. The direction so contained in notification will have to be construed as a direction to CID to submit a status report to the Government as to the action taken by it in respect of the investigation of the case entrusted to it. In this view of the matter, I find no substance in the said contention and accordingly, it is rejected.
37) Yet another argument which calls for consideration is about C.I.D filing multiple charge sheets. There is no statutory provisions which curtails the power of the Investigating Officer to file multiple charge sheets. As noticed supra, the allegations made in the FIR were general in nature. Without mentioning the names of any of the officials/officers/person in the FIR, it was generally stated that there is large scale defalcation of the funds of BBMP on the basis of the forged, fabricated and created documents and the entire matter requires a detailed investigation. It was for that reason only, the case was registered against the persons to be identified as accused. The investigation relate to a long period from 2005-06 upto 2011-12 in respect of different Engineering Divisions. The illegalities and irregularities alleged, covers large number of officials and officers apart from Civil Contractors. Therefore, having regard to the above 13 facts and circumstances, it cannot be expected that the CID should file a single charge sheet. On the other hand, on completion of investigation as regards particular work during a particular period, the CID has filed charge sheets against those officers/officials/contractors involved in such work. Therefore, I find no illegalities or irregularities in CID filing multiple charge sheets. In fact, according to the learned Advocate General, as on today, the Investigating Officer is able to complete the investigation in respect of certain works only since it involves examination of large amount of records, registers, etc. and therefore, very few charge sheets have been filed and many more charge sheets are expected to be filed, as and when the investigation progresses."
On a conjoint reading of Section 218 of the Cr.P.C., Sections 464 and 465 of the Cr.P.C., the judgments rendered by the Division Bench of Delhi High Court and that of this Court, the unmistakable conclusion would be that the order impugned is rendered unsustainable. Therefore, the application filed by the State ought to have been taken note of in analyzing the purport of Section 218 of the Cr.P.C. The order of the Court that since the victim is one and accused are many, the charge sheet has to bear only a single number sans countenance. 14
6. For the aforesaid reasons, I pass the following:
ORDER
(i) The criminal petition is allowed.
(ii) The order dated 25.06.2021, in Special Case (P) No.24 of 2021, passed by the Additional District and Sessions Judge, FTSC-I, Chikkamagaluru, stands quashed.
(iii) The Sessions Court is directed to assign separate numbers in terms of Section 218 of the Cr.P.C.
and distinctly try the offences, simultaneously in Special Case (P) No.24 of 2021.
Sd/-
JUDGE nvj CT:MJ