LAWS(GJH)-1954-7-5

SHAH HIMATLAL AMULKH Vs. STATE

Decided On July 15, 1954
SHAH HIMATLAL AMULKH Appellant
V/S
STATE Respondents

JUDGEMENT

(1.) THE applicant Himatlal was the Special Ghar. khed Mamlatdar, Limbdi. It is alleged that he destroyed certain orders and proceedings with the help of the appellant 2, his brother, in two Gharkhed cases Nos. 1916 and 1917 and substituted new orders and proceedings. The original proceedings and orders were not according to law; the applicant Himatlal apprehended a departmental inquiry and caused destruction and substitution of the record with a view to escape detection. In respect of these two cases two charge-sheets were submitted by the police which were registered as criminal cases Nos. 12 and 13 of 1953 in the Court of the First Class Magistrate of Limbdi. The applicants were accused of more than three distinct offences and abetment thereof in respect of these acts. In 8 other Gharkhed cases the applicant Himatlal alone is alleged to have committed similar acts of destruction and substitution of new records with a similar object. In respect of these 8 cases six non-cognizable complaints were. filed against the applicant Himatlal and they were numbered as criminal cases Nos. 87 to 92 of 1953, In these complainants also the applicant was charged with distinct offences. The offences in criminal cases Nos. 8-52 and the offences in cri. minal cases Nos. 87 to 92 are alleged to have been committed between 1-8-52 and 3-8-52. Inquiry into criminal case No. 12 of 1953 was first taken on hand by the Magistrate and after one prosecution witness was examined, applications were made to him on behalf of the applicant for consolidation and joint trial of cases Nos. 12 and 13 of 1953 as one case and for consolidation'and joint trial of cases Nos. 87 to 92 of 1953 as one case. These applications were rejected by the learned Magistrate. In revision against the learned Magistrate's order, it was conceded before the learned Sessions Judge, and he also found on a perusal of the record, that all these offences were committed in the course of same transaction, but he refused to make a reference to this Court as he thought that the matter was concluded by a decision of this Court in'c (Sau)

(2.) THE question that arises for determination by the Full Bench is whether on the facts found a joint trial of the applicants in criminal cases Nos. 12 and 13 of 1953 can be ordered and whether a joint trial of criminal cases Nos. 87 to 92 can be ordered. It has been found that the offences with which both the applicants are charged in criminal cases Nos. 12 and 13 were committed in the course of the same transaction. Similarly the offences of the applicant Himatlal alleged to have committed in criminal cases Nos. 87 to 92 were also committed in the course ot the same transaction and criminal cases Nos. 12 and 13 can be tried together as one case and cases Nos. 87 and 92 can be tried together as one case if that course is warranted by the provisions of the Criminal Procedure Code. The basic section dealing with the trial of charges is Section 233 which provides that for every distinct offences there shall be a separate charge and every such charge shall be tried separately. But the section itself provides exceptions to the rule in cases mentioned in Sections 234, 235, 236 and 239. A joinder of charges Under Section 234 is permissible if the offences charged are of the same kind committed within the space of twelve month and they should not be more than three in number. Sub-section (2) of Section 234 lays down that 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 or under any special or local law. Sub-section (1) of Section 235 lays down that 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. The other sub-sections are not material for the purpose of the present discussion. Section 236 provides for joinder of alternative charges in cases where the offence arises out of a single act or connected series of acts and it is doubtful which of several offences the facts which can be proved will constitute and lastly Section 239 provides for joint trial of accused under circumstances mentioned therein. Sub-section (d) of this section provides that the person accused of different offences committed in the course of the same transaction may be charged and tried together. In the present case, if criminal cases Nos. 87 and 92 are Consolidated, there will be joint trial of several offences committed by the applicant Himatlal in the same transaction but the joinder will definitely repel the provisions of Section 234 as the applicant is accused of more than three offences which are not of the same kind. So also the consolidation of cases Nos. 12 and 13 will involve joinder of charges in respect of more than three offences of the same kind.

(3.) THERE is considerable difference of opinion amongst the various High Courts on the question whether the exceptions contained in these sections are supplementary to each other and a joint trial of several charges can be justified by resorting to more than one section or whether a joint trial will be justi- Fied only if, although the case falls within one of the exceptions, such joinder will not contravene the provisions of any other exception. As a concrete illustration of the point the question in this case is that although a joinder of criminal cases Nos. 87 and 92 may be justified Under Section 235 (1), whether such joinder is permissible because it contravenes the provisions of Section 234, the applicant Iiimatlal having been accused of more than three distinct offences. The latest decision of the Bombay High Court on this point is 'd. K. Chandra v. The State', In that case the accused was charged with the offence o criminal breach of trust Under Section 40j, IPC commuted on two distinct occasions and in the alternative he was charged with the offence of cheating Under Section 420, IPC The Full Bench held that the joinder of four charges contravened the provisions of Section 234 (a), Cr. PC both on the ground that they were not offences of the same kind and that they exceeded three in number. It was argued before their Lordships on behalf of the prosecution that the accused was charged with having committed only two acts, and two offences, and both the acts and the offences were of the same kind and therefore the joinder of charges was lawful and the alternative charges were framed because the prosecution was in doubt as to the exact nature of the offences committed by the accused. To this argument the learned Chief Justice, who delivered the principal judgment, replied that Section 234 did not pro-vide for charging the accused with having committed three acts but for charging him with three offences and therefore although the accused was charged with having committed only two acts, in respect of thoso two acts he was charged with four offences, and consequently there was a clear contravention of the provisions of Section 234 (1 ). We are in respectful agree-incut with this decision and think that if the several acts out of which the offences arise do not form one transaction and disclose the commission of more than three offences of the same kind or 2 more offences than one which are not of the same kind or if the offences are separated by the interval of more than twelve months the provisions of Section 234 would be contravened, if a joint trial of all these offences is ordered. But the learned Chief Justice made certain observations in his judgment with which, with respect, we are unable to agree. In para. 4 of his judgment he observes as follows (p. 179) :