Rajasthan High Court - Jaipur
Jodhpur Woollen Mills Ltd. And Ors. vs State Of Rajasthan And Anr. on 19 May, 1994
Equivalent citations: 1995CRILJ769
ORDER B.R. Arora, J.
1. These eleven revision petitions involve a common question of law and, therefore, they are being disposed of by this common judgment.
2. Petitioner No. 1, Jodhpur Woollen Mills Limited, Jodhpur, is a body corporate registered under the Indian Companies Act and was engaged in manufacturing of woollen threads at Jodhpur. Petitioner No. 2, Mr. Subhash Kankaria is the Joint Managing Director while petitioner No. 3 Mr. S.G. Kale is the Commercial Officer of the petitioner No. 1. The petitioner No. 1, under para No. 38 of the Employees Provident Fund Scheme, 1952, was required to pay the employer's contribution including the employees' contribution after deducting the same from their salary, within fifteen days of the close of every month. The petitioners, though deducted the employees' contribution from their wages during the period from March, 1984 to December, 1986 and deposited the employees' contribution but did not deposit the employer's contribution and, thus, committed thirty-three offences punishable under Sections 14 and 14A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952. The Provident Fund Inspector, Jodhpur, who was specially authorised to launch the prosecution, therefore, filed eleven complaints for thirty-three distinct offences against the petitioners in the Court of the Additional Chief Judicial Magistrate No. 1, Jodhpur. Each complaint contained three offences of the same kind committed by the accused-petitioners within three months. During the pendency of the proceedings, two applications were moved by the accused-petitioners for consolidating of all the eleven cases and to hold a joint trial. These applications, moved under Sections 218, 219, 220, 221 and 223, Cr. P.C. for consolidating the cases, were opposed by the complainant. The learned Magistrate, by its order dated 24-8-93, dismissed the applications filed by the petitioners and refused to consolidate the eleven cases. It is against this order that the petitioners have preferred these eleven revision petitions.
3. It is contended by the learned counsel for the petitioners that as per the proviso appended to Section 218, Cr. P.C., the accused have a right to ask for the joint trial by way of moving an application in writing and if no prejudice is caused to the accused by the joint trial/joint charges then the Magistrate can try together all or any number of such charges framed against such person. The further contention of the learned counsel for the petitioner is that the proviso appended to Section 218, Cr.P.C. carves out an exception to the main Section apart from other exceptions contained in Sections 219, 220, 221 and 223, Cr. P.C. and, therefore, the learned Magistrate committed an error in refusing to consolidate the cases and to hold a joint trial. In support of its contention, learned counsel for the petitioners has placed reliance over: Harswaroop v. State of Rajasthan, 1986 WLN (UC) 143 and Manohar Lal v. State of Madhya Pradesh, 1981 Cri LJ 1563 (Madh Pra). The learned Public Prosecutor as well as the learned counsel for the complainant-respondent No. 2, on the other hand, have supported the order passed by the learned Magistrate. It is contended by the learned counsel for the complainant that under Section 218(1), Cr. P.C, it is the discretion of the learned Magistrate whether to consolidate the cases and try them as one and if he did not think it proper to exercise the discretion in favour of the petitioners then no illegality appears to have been committed by the learned Magistrate. It has, also, been contended by the learned counsel for the respondents that according to Sub-section (2) of Section 218, nothing in Sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223, Cr. P.C. and as per Section 219, Cr. P.C. only three offences of the same kind shall be charged with and tried at one trial.
4. I have considered the submissions made by the learned counsel for the parties.
5. The controversy involved in the present case is: whether at the instance of the accused, as per the proviso appended to Sub-section (1) of Section 218, Cr. P.C., numberless offence committed by the accused in distinct period, can be consolidated and tried together? The general rule of trial, as per Section 218 of the Code of Criminal Procedure 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 except in certain specified cases referred in Sections 219, 220, 221 and 223, Cr. P.C. A separate trial for separate charges is necessary to ensure fair trial to the accused. By proviso to Sub-section (1) of Section 218, a provision has been made that where the accused himself wants a joint trial for any number of charges, the Court may try together all or any number of charges framed against him provided by such trial no prejudice is caused to the accused. This proviso is designed to give relief to the accused if the rules regarding joinder of the charges do not work to the detriment of the accused. The conditions for the applicability of the proviso are that an application in writing is to be made by the accused and if the Magistrate is of the opinion that such person is not likely to be prejudiced. This proviso is a part of Sub-section (1) of Section 218 and carves out an exception to the main provision. It has its limited operation and the function of the provision is to deal with a case which would otherwise not fallen in the main Section. Sub-section (2) of Section 218, Cr. P.C. provides that nothing in Sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223, Cr. P.C, which means that the proviso appended to Sub-section (1) is controlled by and has to be read in conformity with the provisions of Sections 219, 220, 221 and 223. These Sections appear after Section 218 and, therefore, they restrict the operation of the proviso to Sub-section (1) of Section 218 and it will operate only within the field covered by these provisions and unlimited number of cases cannot be tried together merely because a request has been made by the accused. The exceptions contained in Sections 219, 220, 221 and 223, Cr. P.C. are based on some rational principle. Section 219 permits joint trial for the offence of the same kind not exceeding three and committed within the period of twelve months. This exception is based on the principle of avoidance of multiplicity of proceedings. In Section 220(1) the principle is the relation between the offences forming the part of the same transaction so that separate trials may not lead to conflicting judgments and for carving out an exception in Sections 220(2) and 220(3) the principle behind it is that the criminal act has several aspects and all of them should be adjudged together. Section 221 deals with the cases where it is doubtful what offence has been committed. In such cases it is provided that a single act or series of acts of such a nature that it is doubtful which of the several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offence. Section 223 permits a joint trial of several persons in specified cases mentioned in this Section because of some basic relation between various offences committed by them.
6. Thus, the accused can make a request for the joint trial of all or any number of charges framed against him and if no prejudice is caused to the accused, the Magistrate may order for the joint trial provided those cases fall within the purview of Sections 219, 220, 221 and 223, Cr. P.C. because as per Sub-section (2) of Section 218, nothing in Sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223, Cr. P.C.
7. Learned Counsel for the petitioner has placed reliance over: Harswaroop v. State of Rajasthan, 1986 WLN(UC) 143. That was a case of misappropriation of money made by the accused. He was tried for five offences of different amount and all the items of misappropriation fell within the period of one year. According to Section 212(2), Cr. P.C. when all the charges relate to misappropriation of money, it shall be sufficient to specify the gross sum and the dates between which the offence is alleged to have been committed without specifying particular items or exact dates and the charges so framed shall be deemed to be the charges within the meaning of Section 219, Cr. P.C. As all the charges of misappropriation of money in Harswaroop's case fell within one year and Section 212(2), Cr. P.C. permits framing of only one charge in such cases, the single Bench of this Court, therefore, held that all the five charges can be tried together. Though reference to Section 218 has, also, been made in that judgment but the judgment turned-out mainly on Section 212(2) Cr. P.C. as all the items of misappropriation fell within the period of one year. This case is, therefore, clearly distinguishable and is of no avail to the petitioners. In Manohar Lal v. The State of Madhya Pradesh, 1981 Cri LJ 1563, the question for consideration before the Madhya Pradesh High Court was: whether in the absence of written application by the accused or without recording any opinion by the Magistrate, as enjoined by proviso to Sub-section (1) of Section 218, Cr. P.C, the order can be passed for consolidation of the cases? The Court, therefore, opined that these conditions are substantially stand fulfilled by the implied consent of the applicant-accused and the implied opinion of the Magistrate regarding any prejudice to the accused as all these cases were tried together and, therefore, this judgment of Madhya Pradesh High Court is, also, of no help to the accused because here the position is different. In the present case though the offence committed by the accused-persons are of the same kind but they were committed on different occasions spread over between March, 1984 to December, 1986. In a series of complaints of offences alleged to have been committed by the accused on thirty-three different occasions, it is not permissible to hold a single trial and it is only permissible to try the charges in group of three. Criminal cases cannot be consolidated and tried together like a civil suit except within the limitations laid down by the Code of Criminal Procedure. In each of these cases, pending before the trial Court, the complaints have been filed relating to three charges. Every non-payment of the employer's contribution by the 15th day of the next month constitute a separate offence and, therefore, only three of such charges can be tried together and the thirty-three charges of non-payment of employer's contribution cannot be tried jointly in one trial. A joint trial for thirty-three, charges spread over for thirty three months will not be justified under Section 218(1) and, therefore, these eleven cases for thirty-three charges cannot be consolidated.
8. In the result, I do not find any merit in these revision petitions and the same are hereby dismissed.