M.D. Bhatt, J.
1. This is the revision of the accused Manoharlal against the lower appellate Court's order whereby the convictions and sentences in four criminal cases were set aside and those cases were remanded for decision afresh, after recording separate evidence in each case.
2. Four prosecutions had been launched in the trial Court, each under Section 409 of the I.P.C., against the applicant-accused Manoharlal Lohe, Sub-Post Master of Ukuwa Sub-Post Office for defalcating various amounts of savings bank accounts ' of certain account holders during the respective periods as shown below:
(Contd. on Col. 2)Cri.Case No. Period Amount of defalcation348 of 77 8-7-88 to 7.7.89 Rs. 199O/-dopoaitod by one Laxmiprasad340 of 77 11-7-70 to 10.7-71 Rs. 5000/.deposited by Laxmiprasad 350 of 77 13.4.72 to 12.4-73 Rs. 601/. (Ra, 15l/.depoaited by Mat.Chandiakala ; Rb. 120/ and Rs. 260/.deposited by Rupram ; and Rs. 70/-depoeited by Sukhlal).
The trial Court, as is evident on scrutiny of the order-sheets of the above four criminal cases and also on scrutiny of the depositions or copies thereof filed in these cases, is found to have recorded the whole oral evidence of all these four cases, only in one case i.e. 348 of 1977 and in the other three cases, either the carbon copies thereof or retyped statements of the ones recorded in 348 of 1977, were filed. The defence evidence of one witness was equally recorded in one case only and the copies thereof were filed in the remaining cases.
However, examination of the accused under Section 313 of the Code was done separately in each case. As for the judgment, Cri. Case No. 349 of 1977 was clubbed with Cri. Case No. 348 of 1977, the judgment wherein governed also Case No. 349 of 1977. Likewise, Cri. Case No. 331 of 1977 was clubbed with Case No. 350 of 1977, the judgment wherein governed the Case No. 351' of 1977 also. In Case No. 348 of 1977, the applicant-accused, on his conviction under Section 409 of the I.P.C., was sentenced to one year's R. I. with the fine of Rupees 5,000 and in default of fine, to a further term of six months' R. I. In Case No. 349 of 1977, though the applicant-accused was convicted under Section 409 of the I.P.C., no separate sentence was considered necessary, to be passed, in view of the sentence already awarded in Case No. 348 of 1977. In Case No, 350 of 1977, the applicant-accused, on his conviction under Section 409 of the I.P.C., was sentenced to imprisonment till the rising of the Court and to fine of Rs. 3,000 and in default of fine, to six months' R. I. in the last case No. 351 of 1977, the applicant-accused, on his conviction under Section 409 of the I.P.C., was sentenced to imprisonment till the rising of the Court and to pay the fine of Rs. 3,000 and in default of fine, to six months' R. I. Against these convictions and sentences in the four cases, the applicant-accused preferred four respective appeals in the Court of Session,
The learned Addl. Sessions Judge, vide his composite order dated 15-4-80 with respect to all the four appeals, quashed the order of convictions and sentences as passed by the trial Court, in all the four case and remanded the cases for recording evidence afresh and for disposing of each case separately. The grounds on which the cases were remanded were that (i) the trial Court had acted illegally, in not passing separate sentence in Cri. Case No. 349 of 1977; (ii) the trial Court had acted illegally in consolidating all the four cases, or in any case, sets of two cases each, and in recording common evidence in all these cases, in contravention of Section 218 of the Cr, P. C, 1973, in the absence of the petition of the applicant-accused in writing for joint trial, as mandatorily enjoined by the proviso to Sub-section (1) of Section 218 ibid. Being aggrieved with this order of remand, the accused has filed the present revision.
3. The learned Counsel for the applicant-accused has urged before me that the order of remand, as passed by the lower appellate Court, is unjust and not proper, inasmuch as, the consolidation of all the cases had been done by the trial Court with the implicit consent of both sides, with no objection of any one whatsoever, in the matter of any illegality or any irregularity in the procedure for trial. It is, further, urged that the applicant-accused had never made any grievance either in the trial Court or even in the course of appeals, in the matter of any prejudice caused to him in the trial of the four cases against him because of the consolidation of the four cases by the trial Court.
It is, no doubt, true that in the memos of appeal filed by the applicant-accused in the lower appellate Court, the applicant-accused is not found to have challenged the procedure for trial, and he has simply assailed the order of convictions and sentences, purely on merits. The learned Counsel for the applicant-accused has equally filed the petition before me, making a clear and categorical commitment that consolidation of four cases in the trial Court was with the applicant-accused consent and that hi? had no objection to the same. In the present petition, he has further committed that by the recording of all the evidence for all the four cases in one case only, no prejudice has been caused to him, at all, and that he would never raise any technical grievance whatsoever in the matter of such procedure for trial by consolidation of four cases, as has been done by the trial Court. It is also reiterated in the petition that the evidence as recorded in the cases, more particularly in case No. 343 of 1977 be read as be read as evidence1 for the other three case as well. The Panel Lawyer appearing for the non-applicant State has nothing to say in this matter.
4. I have considered the arguments pressed before me It is, no doubt, true that there were four distinct offences with respect to each of which, a separate trial had been launched in the trial Court. Charges in each case were also framed separately. No doubt, Sub-section (1) of Section 218 of the Cr.P.C. enjoins 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'. But, proviso to this Sub-section provides an exception. This proviso reads as under:
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.
No doubt, in the matter of four cases, disposed of by the trial Court with respect to four distinct offences, no application is found to have been made in writing by the applicant-accused, for trial of charges in four cases together, nor the trial Magistrate is found to have recorded his opinion anywhere that such joint trial was not likely to cause prejudice to the accused. The law is settled that in a separate trial, not only are the charges separate from any other trial against the accused, as Sub-section (1) of Section 218 says, but the recording of evidence and every other proceedings in such trial, is to be separate; and the evidence recorded in one trial cannot be used in the other.
Of course, this defect is curable under Section 465 of the Code (old Section 537) in the absence of failure of justice (see Banwari-lal v. Union of India AIR 1963 SC 1620 : 1963 (2) Cri LJ 529). No doubt the broad object underlying Sub-sections (1) and (2) of Section 218 of the Code, providing separate trial for every distinct offence is to save the accused from being embarrassed in his defence, if distinct offences art lumped together in one charge or separate charges are tried together. But the general rule is subject to the exceptions engrafted in the proviso to Section 218(1) ibid. It may well be remembered that this proviso to Sub-section (1) of Section 218 of the Code was inserted in the Bill of 1970 (See notes on Clauses 215-230 at page 246 of the Bill), with the reason that
Where the accused himself wants a joint trial... the Court may allow the same notwithstanding the strict rules in other provisions. This is because the rules in this regard are designed for the benefit of the accused and if they work to his detriment, he should get relief.'
The conditions for application of this Proviso are
(a) The accused person must apply in writing for joint trial.
(b) The Magistrate must himself be satisfied that the accused will not be prejudiced by the joint trial of all or some of the charges framed against him. He will then allow joint trial to that extent.
5. It may also be stated that since the Supreme Court decision in Willie Sla-ney v. State of Madhya Pradesh AIR 1956 SC 116 : 1956 Cri LJ 291, it has been settled that even where the offences are distinct, the joinder of parties would not vitiate the trial unless such misjoinder has occasioned a failure of justice. It is equally to be noted, however, that Section 464(1) or Section 465 of the Code comes into operation, only after the trial had been concluded and the question is before a superior Court (on appeal, revision or confirmation proceedings) as to whether the finding, sentence or Order of the trial Court should be set aside on the ground of misjoinder of parties. Section 464(1) or Section 465 of the Code does not supersede the mandate of Section 218(1) ibid, but only cures the illegality where the trial has been concluded without any failure of justice on account of such misjoinder.
6. Now, in the present case, normally, for distinct offences for which actually four separate trials had been launched, there should have been separate charges and also separate trial of each distinct offence. No doubt, the charges for each distinct offence are separate; but the trial of all such charges in all four cases are found to be joined, inasmuch as, the prosecution evidence of all the four cases is found to have been mostly recorded in Cri. Case No. 348 of 1977. The proviso to Section 218(1) of the Code provides an exception to the trial of each distinct offence as a separate trial. Now, the conditions of this proviso in the strict and technical sense, have not been fulfilled, inasmuch as, in the trial Court no application in writing was filed by the applicant-accused for trial of all the charges together, framed against him in the four different cases with the distinct offences. The trial Magistrate is also not found to have specifically and separately recorded his opinion that by such joint trial, the applicant-accused was not likely to be prejudiced. Although, there is no separate application of the applicant-accused, nor is there any recorded opinion of the Magistrate, as enjoined by the proviso, but, the conditions of this proviso are apparently found to have been substantially fulfilled by the implied consent of the applicant-accused and the implied opinion of the Magistrate, regarding want of any prejudice to the applicant-accused.
The Magistrate is not found to have specifically passed any Order regarding consolidation of cases or any of them, but, as a matter of fact, he has consolidated them all, and has recorded the evidence of all these cases in only one case and filed the copies of those depositions in rest of the cases. Throughout the trial, the applicant-accused is not found to have made any grievance. The very fact, that the Magistrate, consolidated the four distinct offences of the four criminal cases, impliedly leads to the conclusion that the Magistrate was of the view that such a joint trial was not likely to adversely affect the applicant-accused and it was because of his being so satisfied that he had naturally consolidated all the four cases for a joint trial. Even in the appeal preferred by the applicant-accused, no grounds whatsoever were taken regarding any illegality or irregularity in the joint trial; and the Order of convictions and sentences as passed by the trial Court was assailed, simply on merits and facts of the case. So also, in the present revision, the applicant-accused does not challenge the factum of joint trial and makes no grievance regarding any illegality or irregularity in trial Now, the learned Counsel for the applicant-accused has filed a petition in writing, clearly stating that he has not been prejudiced to any extent by the joint trial and that he will never make any grievance or raise any objection regarding the procedure, adopted by the trial Court for the joint trial and that all evidence that has actually been recorded in one case or in other cases, be fully read against him in the matter of respective distinct offences in all the four cases, instituted against him. This application, though belated, cures the defect in the procedure of trial, if there be any.
Since, the learned Counsel for the applicant-accused has candidly stated that the joint trial, as has been done, does not work any injustice to the applicant-accus- ed and has not been to his detriment, but has actually been to his benefit, and since, no prejudice has been caused to the applicant-accused by such joint trial, the joint trial as done by the trial Magistrate is, in my opinion, perfectly in order, and is fully covered under the proviso to Section 218(1) of the Code. The matter of holding of a joint trial in such cases is usually in the discretion of the Court; and the principal consideration, controlling this judicial discretion, has always to be to avoid embarrassment to the defence by joinder of parties or by a joint trial and to avoid undue harassment to the accused by summoning the same set of witnesses over again, in each case and by recording evidence each time, (See Chandra Bhal v. State of U. P. 1970 UJSC 379 : Cri. A. No. 135 of 1957, D/- 19-2-1970 (SC).) It was to avoid this inconvenience and embarrassment to the applicant-accused that the trial Court had consolidated the four cases and had held the joint trial, to which the applicant-accused was fully a consenting party, without his least protest. In the present circumstances, therefore, the joint trial, as held by the trial Court, is found to be in order and consequently, the lower appellate Court's order quashing the judgment of respective convictions and sentences in the four cases in question and for remanding the cases for decision afresh after recording evidence in each case separately, deserves to be set aside.
The evidence as already recorded by the trial Court, mostly in one case, in view of the joint trial, will have to be read for decision, of all the four cases, and the appeals which were preferred by the applicant-accused in the lower appellate Court will have to be decided in the light of all that evidence, without going into the question of legality or otherwise of the procedure in holding the trial.
7. Regarding the other remaining point that no separate sentence has been passed in Criminal Case No. 349 of 1977, there is actually no illegality, since, even if the trial Court had passed the separate sentence in that case, there would have well been the Order for the concurrent running of the sentence of imprisonment with the ones awarded in Case No. 348 of 1977.
8. In view of all the above, the revision is allowed. Lower appellate Court's Order quashing the trial Court's Orders of convictions and sentences in the four criminal cases and further directing the remand of the cases for decision afresh after recording of evidence separately in each case is set aside with the direction that the four appeals be, now, heard by the lower appellate Court on merits, and be disposed of expeditiously. The applicant-accused is directed to appear on 26-11-1980 in the lower appellate Court, who may thereafter fix a suitable date for final hearing of the four appeals as early as possible.