Gujarat High Court
Asjad Mohammad Ibrahim Siddiki vs State Of Gujarat on 1 April, 2019
Author: V. P. Patel
Bench: V.P. Patel
R/CR.RA/299/2019 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION NO. 299 of 2019
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ASJAD MOHAMMAD IBRAHIM SIDDIKI
Versus
STATE OF GUJARAT
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Appearance:
MOHAMADZAID I SAIYED(8411) for the Applicant(s) No. 1
MR. K.L.PANDYA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE V.P. PATEL
Date : 01/04/2019
ORAL JUDGMENT
1. Heard learned Advocate Mr. Mohamadzaid I. Saiyed for Applicant
- Accused and learned APP Mr. K.L.Pandya for Opponent - State of Gujarat.
Order Under Challenge:
2. The Applicant has filed this Criminal Revision Application under Section 397 read with Section 401 of the Criminal Procedure Code. 1973 (for short "Cr.P.C.) against the order dated 11.3.2019 passed in the Application (Exhibit-13) under Section 219 of the Cr.P.C. to join the trial of Special POCSO Case No. 206/2018 and Special POCSO Case No. 207/2018.
Arguments of Learned Advocate for Applicant:
3. Learned Advocate for the Applicant has submitted that the order passed by the learned Sessions Judge is unjust, illegal, arbitrary and is passed in hasty manner without appreciating the evidence on record. He submitted that both the FIRs are registered out of the same set of facts. That from the charge sheet it is clear that the statements of the witnesses and the documentary evidence are similar in nature. He also submitted that in both the POCSO cases Page 1 of 6 R/CR.RA/299/2019 JUDGMENT the one and the same Investigating Officer has investigated the offences and charge sheet is also filed by the same Investigating Officer. That the place of offence in both the cases is also same. Therefore as per Section 219 of CR.P.C., both the cases may be tried together. That the learned Sessions Judge has failed to make proper interpretation of the Scheme of Section 219 of Cr.P.C. and passed the erroneous order as in the scheme there is no express or implied bar to the effect that the complainant should be different and so far as the time period of occurrence of offence is concerned then also as per the said section the offences may be registered during a span of one year from first to last. Learned Advocate for the Applicant therefore submitted that the present Revision Application may be allowed.
4. Learned APP has submitted that considering the facts and circumstances of the case just order be passed.
Merits of the Case:
5. The FIR was registered on 9.8.2018 being I-CR No. 38/2019 and I- CR No. 39/2018 with Mahila West Police Station, Ahmedabad for the offence punishable under Sections 354(A) of the Indian Penal Code (for short "IPC") and Section 9(D), 9(L) and 9(P) and Section 10 of the Protection of Children from Sexual Offences Act, 2012 (for short "POCSO Act").
6. After the investigation is completed the charge sheets were filed by the Investigating Officer before the learned Judge, City Civil and Sessions Court, Ahmedabad, which are registered as Special POCSO Case No. 206/2018 and and Special POCSO Case Page 2 of 6 R/CR.RA/299/2019 JUDGMENT No.207/2018. Thereafter both the cases are transferred to the learned Judge, Court No.17, City Civil and Sessions Court, Ahmedabad.
7. The Applicant has filed one Application under Section 219 of Cr.PC for joining the parties and club Special POCSO Case No. 206/2018 and Special POCSO Case No. 207/2018. The said Application was rejected by the learned Additional Sessions Judge for the reasons stated as under.
The learned Additional Sessions Judge has considered Section 219, 222 and 223 of Cr.PC. The learned trial Judge has considered that both the complaints were filed by different complainants, the time of occurrence in both the complaints is different and both the complaints were not arising of out of the same incident and rejected the Application filed by the Applicant Accused.
8. It is pertinent to note here the provision of Criminal Procedure Code for consideration of this case.
8.1 Section 219 of Cr.P.C. reads thus:
"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 Page 3 of 6 R/CR.RA/299/2019 JUDGMENT 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 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.
While reading Section 219 of Cr.P.C., following conditions are required to be satisfied for the offences of same kind be charged together:
(a) More offences than one of the same kind committed by the accused.
(b) Not more than 3 offences committed within the space of 12 months.
(c) The offences committed in respect of same person or not.
(d) The offences be punishable with the same amount of punishment under the Section of IPC or any other local or special law.
8.2 Section 218 of Cr.P.C. reads thus:
"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."
8.3 Section 223 of Cr.P.C. reads thus:
"223. What persons may be charged jointly. - The following persons may be charged and tried together, namely:-Page 4 of 6
R/CR.RA/299/2019 JUDGMENT
(a) ....... ....... .......
(b) ....... ....... ......
(c) 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 twelve months;
(d) ....... ....... .......
(e) ....... ....... ......
(f) ....... ....... .......
(g) ....... ....... ......
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 or Court of Session] may, if such persons by an application in writing, so desire, and [if he or it is satisfied] that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together."
9. Two different complaints were filed against the Applicant accused. The offences in the said complaints are also similar i.e. Sections 354(A) of IPC and Section 9(D), (L) and (P) and 10 of POCSO. The punishment for the offences in two different complaints are the same. The first offence was registered for the incident occurred before 20 days from the date of registration of the complaint and the second offence was registered for the incident occurred before 3 months from the date of registration of the second complaint. Therefore, it can be said that both the offences are alleged to have been committed within the space of 12 months.
10.As per Section 218 of Cr.P.C., generally the separate charge for distinct offence is required to be framed and every such charge shall be tried separately, but Section 218 is not applicable where the situation arises under Section 219 of the Cr.P.C. This Page 5 of 6 R/CR.RA/299/2019 JUDGMENT exception is provided in Sub-Section (2) of Section 218 of the Cr.P.C.
11.The general rule of Section 218 also not applicable when the Accused person by application in writing, so desire and such person is not likely to be prejudiced thereby, in such a situation, court may try together such offences. Here in the case on hand the applicant himself has filed the application u/s 219 of Cr.P.C. therefore, there is no chance of likely to be prejudice to him.
12.Considering the averments made in Criminal Revision Application, the arguments advanced by learned Advocate for the Applicant and learned APP and the facts and circumstances, this court is of the opinion that the order passed by the learned Judge is not correct and proper in eye of law. Hence, Criminal Revision Application is required to be allowed and accordingly stands allowed.
The order passed by the learned Additional Sessions Judge, Court No. 17, City Civil and Sessions Court, Ahmedabad dated 11.3.2019 below Exh. 13 in POSCO Case No. 206/2018 is hereby quashed and set aside.
Further the learned Judge is directed that the charge be framed of the Special POCSO Case No. 206/2018 and Special POCSO Case No. 207/2018 together and tried in one trial.
Rule is made absolute.
(V. P. PATEL,J) J.N. W Page 6 of 6