Madras High Court
State vs Dhanam @ Dhanamani on 1 December, 2016
Author: S.Vimala
Bench: S.Vimala
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 01.12.2016
Reserved on : 29.07.2016
Pronounced on : 01.12.2016
CORAM
THE HON'BLE DR.JUSTICE S.VIMALA
Crl.O.P.(MD)No.10768 of 2010
State, Rep. by,
Inspector of Police,
CBCID, Perambalur District ... Petitioner
vs.
1. Dhanam @ Dhanamani
2. Muthusamy
3. Rajan
4. Paramasivan @ Raja
5. Kottaithai
6. Esthar @ Arunachalavadivu
7. Velmayil @ Mayil
8. Ponnuthai
9. Thiruvettai
10. Kathiri @ Kathirikodangi
11. Pootchiammal
12. Parimalam
13. Vimala
14. Chandra
15. Selvi
16. Natarajan @ Vanarajan ... Respondents
Petition filed under Section 482 of the Criminal Procedure Code, to
direct the learned Judicial Magistrate No.VI, Trichy, to accept the
consolidated final report of 11 cases and take it on file for conducting
trial and dispose of the case at the earliest.
For Petitioner : Mr. P.Kandasamy,
Govt. Advocate
For Respondents : Mr. K.Prabhu, for,
M/s. Kathirvelu Associates,
for R-2 to R-4
Mr. V.M.Bala Mohan Thambi,
for R-5 to R-11
No Appearance, for R-1 & R-12 to R-16.
:ORDER
This Criminal Original Petition has been filed by the Inspector of Police, CB CID, Perambalur District, seeking direction to the learned Judicial Magistrate No.VI, Trichirappalli, to accept the consolidated final report of 11 cases and to take it on file for the purpose of conducting trial.
2. The details of 11 cases filed against one Dhanam @ Dhanamani and 15 others, (varied number of accused in each of the cases) under various station limits, run as under:-
S. No. Crime No. Police Station Section / IPC Accused 1 350/2008 Madurai Othakadai 363 Dhanam @ Dhanamani 2 1029/2008 Udumalaipettai 363 Dhanam @ Dhanamani 3 20/2009 Srirangam 364A Dhanam @ Dhanamani 4 33/2009 Tirunelveli District Crime Branch 317,363,372,420 & 120(B) Dhanam @ Dhanamani 5 34/2009 Tirunelveli District Crime Branch 317,363,372,420 & 120(B) Dhanam @ Dhanamani 6 35/2009 Tirunelveli District Crime Branch 363 Dhanam @ Dhanamani 7 36/2009 Tirunelveli District Crime Branch 363 Dhanam @ Dhanamani 8 37/2009 Tirunelveli District Crime Branch 363 Dhanam @ Dhanamani 9 303/2009 Rajapalayam South Girl missing Dhanam @ Dhanamani 10 446/2009 Lalgudi 364(A) Dhanam @ Dhanamani 11 603/2009 Woraiyur 364(A) Dhanam @ Dhanamani
3. Having regard to the nature of the offence complained of, the Director General of Police, by proceedings, dated 30.06.2009 and the Inspector General of Police, Central Zone, (In-charge Commissioner of Police), Trichy, by proceedings dated 15.06.2009, have passed orders directing the concerned Unit Officers to handover the CD files to the CB CID, for further investigation. Thus, a consolidated final report was filed before the learned Judicial Magistrate No.VI, Tiruchirappalli, on 26.08.2010. It was returned citing the following two reasons:-
(i) Separate charge-sheets have to be filed in respect of each cases.
(ii) Those separate charge-sheets should be presented before the concerned Courts, having jurisdiction.
4. It is the case of the prosecution (petitioner herein) that: (a) the main accused is one and the same person, in all the cases; (b) the nature of the offence is similar in all cases; (c) the trial of all cases, based on the consolidated report, cannot be prejudicial to the respondents / accused.
5. It is pointed out by the learned Government Advocate appearing for the petitioner that the trial of each of the cases separately, at different times, in different jurisdictions, may pave the way, i.e., by giving focus to the nature of evidence, the line of accusation by the prosecution and the witnesses who support the prosecution case, which would be prejudicial or detrimental to the prosecution case, in other jurisdictions. Therefore, it is claimed that the direction for taking the consolidated charge-sheet on file has been made.
5.1. It is alleged that, in one of the case, summons to the accused have been already issued by this Court on 19.07.2013 and the same have been served on 23.07.2013.
6. The case of the prosecution rests upon the evidence regarding conspiracy and the methodology adopted in kidnapping children. The first respondent herein is the main accused in all the cases. Therefore, as rightly contended by the learned counsel for the prosecution, if separate trial takes place in different jurisdictions, there is a possibility of prejudice to the case of the prosecution, in the manner alleged by the prosecution and considering the possibility of tampering with witnesses for the prosecution, it is just and necessary that there should be a joint / parallel / separate trial (at the same time) in the same court.
7. But the only question is, what is the procedure to be adopted in accordance with the provisions of the Criminal Procedure Code.
8. The learned Government Advocate for the prosecution relied upon the following decisions, in support of his contentions:-
(i) AIR 1992 SC 1637 : 1993 (2) SCALE 757 (Ajay Agarwal v. Union of India and Others):-
?25. ...it was held that the court trying an accused for offence of conspiracy is competent to try him for offences committed in pursuance of that conspiracy irrespective of the fact whether or not overt acts have been committed within its territorial jurisdiction.....?
(ii) In AIR 1957 SC 340 : 1957 Cri.L.J. 422 (S.Swamirathnam v. State of Madras), the Supreme Court had occasion to consider the question of a single conspiracy although spread over several years where the only object of the conspiracy was to cheat the members of the public. In the course of years, others joined the conspiracy and several incidents of cheating took place in pursuance of the said conspiracy. It was held that, the fact that in the course of years, others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy, did not change the conspiracy and did not split up a single conspiracy into several conspiracies. The relevant observations are to be found in para 7 of the Judgment at page 344 of the Report, which reads as under :-
?(7) On behalf of the appellant Abu Bucker it was contended that there has been misjoinder of charges on the ground that several conspiracies, distinct from each other, had been lumped together and tried at one trial. The Advocate for Swamirathnam, however, did not put forward this submission. We have examined the charge carefully and find no ground for accepting the contention raised. The charge, as framed, discloses one single conspiracy, although spread over several years. There was only one object of the conspiracy and that was to cheat members of the public. The fact that in the course of years others joined the conspiracy or that several incidents of cheating took place in pursuance of the conspiracy did not change the conspiracy and did not split up a single conspiracy into several conspiracies. It was suggested that although the modus operandi may have been the same, the several instances of cheating were not part of the same transaction. Reliance was placed on the case of Sharpurji Sorabji v. Emperor AIR 1936 Bom 154 : (1936 (37) Cri LJ 688) and on the case of Choragudi Venkatadari, In re, (1910) ILR 33 Mad 502. These cases are not in point. In the Bombay case no charge of conspiracy had been framed and the decision in the Madras case was given before S. 120-B, was introduced into the Indian Penal Code. In the present case the instances of cheating were in pursuance of the conspiracy and were therefore parts of the same transaction.?
(iii) AIR 1960 SC 661 (Kadiri Kunhahammad v. The State of Madras):-
?4. ..Section 239 (d) authorises a joint trial of persons accused of different offences committed in the course of the same transaction; and there can be no doubt that in deciding the question whether or not more persons than one can be tried together under the said section, the criminal Court has to consider the nature of the accusation made by the prosecution. It would be unreasonable to suggest that though the accusation made by the prosecution would justify a joint trial of more persons than one, the validity of such a trial could be effectively challenged if the said accusation is not established according to law. It is true that, in framing the charge against more persons than one and directing their joint trial, Courts should carefully examine the nature of the accusation; but if they are satisfied that prima facie the accusation made shows that several persons are charged of different offences and that the said offences prima facie appear to have been committed in the course of the same transaction, their joint trial can and should be ordered. This question was fully considered by the Privy Council in the case of Babulal Choukhani v. Emperor, and it has been held that the point of time in the proceedings at which it is to be determined whether the condition that the offences alleged had been committed in the course of the same transaction has been fulfilled or not is at the time when the accusation is made and not when the trial is concluded and the result known. ...
5. Mr. Purshottam then argues that even if the joint trial may be justified it was not open to the prosecution to charge the appellant at such a joint trial with the commission of a specific act of breach of trust as alleged in charge six. This argument is wholly untenable. Under Section 235(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. Whereas Section 239 (d) allows a joinder of persons at a criminal trial, Section 235(1) allows joinder of charges subject to the conditions mentioned respectively in the said two provisions. In other words, these provisions constitute an exception to the provisions of Section 233 as well as those under Section 234(2). There is, therefore, no doubt that, in a case of conspiracy, if specific offences are committed in pursuance of the said conspiracy, all persons who are parties to that conspiracy and are also concerned in the specific offences thus committed can be lawfully tried jointly at the same trial. (Vide: Rash Behari Shaw v. Emperor).?
(iv) In the decision reported in 1961 AIR 1589 : 1962 SCR (2) 101 (Purushottam Das Dalmia v. The State of West Bengal), the earlier decision reported in (1) (1929) I.L.R. 52 Mad. 991, 994 (Babulal Choukhani v. The King Emperor) was relied upon, which reads thus:-
?"Nor is there any limit of number of offences specified in s. 239(d). The one and only limitation there is that the accusation should be of offences 'committed in the course of the same transaction'. Whatever scope of connotation may be included in the words 'the same transaction', it is enough for the present case to say that if several persons conspire to commit offences, and commit overt acts in pursuance of the conspiracy (a, circumstance which makes the act of one the act of each and all the conspirators), these acts are committed in the course of the same transaction, which embraces the conspiracy and the acts done under it. The common concert and agreement which constitute the conspiracy serve to unify the acts done in pursuance of it.,, This indicates that the only limitation on the jurisdiction of the court to charge and try together various persons in pursuance of the provisions of cl. (a) of s. 239, Criminal Procedure Code, is that the accusation against those persons should be of offences committed in the course of the same transaction. It cannot be disputed that the accusation against the accused with respect to the overt acts committed by them in pursuance of a conspiracy is with respect to offences committed in the course of the same transaction and that therefore persons accused of these offences can be tried together at one trial in pursuance of the provisions of el. (a) of s. 239. We therefore hold that the Calcutta Court had jurisdiction to try the appellant of the offences under s. 471 read with s. 466, Indian Penal Code, even though those offences, in pursuance of the conspiracy, were committed at Madras.....?
(v) Order, dated 12.10.2006 in Crl.O.P.No.21432 of 2002 (Manjula v.
M/s. Colgate Palmolive (India) Limited):-
?12. ... The general rule is that every distinct offence of which a person is accused, there shall be separate charge and every such charge shall be tried separately. As observed by the Division Bench of the Kerala High Court in 1996 (3) Crimes 283 (cited supra), Section 219 Cr.P.C. is an exception to the general rule. As stated earlier, even though different cheques were given on different dates, the presentation of all those cheques formed the same transaction. Further, the demand was also made by the complainant on the dishonouring of the cheques by giving one lawyer's notice and not several demands for the payment of the dishonoured cheques. In those circumstances, we are of the view that the petitioner/accused herein may be charged and tried at one trial for several such offences, because, the series of acts are so inter-linked or inter-connected.
13. The very object of Section 219 is to prevent miscarriage of justice by clubbing together a number of offences and making it impossible for the accused to defend them. Sections 219 and 220 Cr.P.C. lay down different and distinct exception to the general rule contemplated under Section 218 Cr.P.C.
in framing charges. We are of the view that the number of three offences underlined in Section 219 of the Code cannot control Section 220(1) of the Code.?
9. Relying upon the aforesaid decisions, it is contended by the prosecution that the series of acts in 11 cases are inter-linked / inter- connected through conspiracy and therefore, all cases should be tried in the same court.
10. This Court is of the opinion that the aforestated decisions squarely apply to the facts of the case on hand. Therefore, the learned Judicial Magistrate No.VI, Tiruchirappalli, is directed to take the cases on file.
10.1. After taking the cases on file, the learned Magistrate is directed to issue summons to all the accused. At a later stage of the case, if any materials are forthcoming to show that there is no inter-connection between the cases, the learned Magistrate is at liberty to pass orders / take a decision, in accordance with law, subject to the materials being produced. Accordingly, this Criminal Original Petition is disposed of. No costs. Consequently, the connected MP is closed..