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Shah Himatlal Amulkh and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1955CriLJ1399
AppellantShah Himatlal Amulkh and anr.
RespondentThe State
Cases ReferredSaurashtra State v. Keshavlal L.Oza
Excerpt:
.....unless the prosecution satisfies the court that the exception has been strictly complied with, the joinder of charges in a trial must be held to be contrary to law. we do not dispute the correctness of the proposition laid down by the learned chief justice that more than one section mentioned in section 233 can bo made use of in co-operation, but the cooperation, must not lead to the contravention of any of the sections mentioned in section 233. the view of the bombay high high court appears from the above observations to be that in order to, justify a joinder of accused it is necessary that the case should satisfy the conditions of all sections mentioned in section 233, and it is not sufficient that the conditions laid down by one of the sections only should be satisfied. it is no doubt..........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'ghadia bhanuchandra v. state', cri. appeal no. 29 of 1952 (sau) (a), by which he was bound. the applicants approached this court in revision against the learned.....
Judgment:

Baxi, J.

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. 12 and 13 are alleged to have been committed between 31-7-52 to 6-8-52 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'Ghadia Bhanuchandra v. State', Cri. Appeal No. 29 of 1952 (Sau) (A), by which he was bound. The applicants approached this Court in revision against the learned Sessions Judge's order. The Division Bench, which heard the revision, held that the offences were committed in the course of the same transaction and a joinder of charges or accused as suggested by the applicants was premissible Under Section 235(1) or 239(d), Criminal P. C, but in view of the conflict of decisions between various High Courts and also between the Judges of this Court and the Division Bench referred this revision to the Full Bench.

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 : AIR1952Bom177 . 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) :

It is not very helpful to consider whether the exceptions contained in Sections 234, 235 and 236 are mutually exclusive. It would be better to lay down that if the prosecution wishes to justify a trial in which charges are joined, it is for the prosecution strictly to establish that the joinder is permissible under either Section 234, 235 or 236. It is a well-known canon of construction that exceptions must be strictly construed, and unless the prosecution satisfies the Court that the exception has been strictly complied with, the joinder of charges in a trial must be held to be contrary to law. It may be possible in a conceivable case for the prosecution to establish that a case falls under more than one exception. But if it falls under more than one exception it must so fall it must not infringe the provisions of any of the three sections. It is not permissible for the prosecution to combine and supplement the three sections in such a manner as to contravene the provisions of any of these three sections.

At p. 180 while discussing 'In re, Bat Gangadhar Tilak1, 10 Bom L R 973 (C), the learned Chief Justice ?ommented upon some observations in that case in the following terms (pp: 180-181) ;

Therefore the finding of the Court was that the joinder of charges with regard to those two articles was justified Under Section 235 (1) as the two articles constituted one transaction. Having held this the learned 1955 Chief Justice went to consider the other question which, with respect, was really not necessary, and that was whether the exceptions mentioned in Section 233 are mutually exclusive. The learned Chief Justice took the view that these exceptions were not mutually exclusive. With respect, we have no quarrel with this expression if it was intended to be used in the manner we haVe suggested but if it was intended to be used in order to convey that although a joinder of charges may contravene one of the sections mentioned in Section 233 it would still be possible to join the charges if it could be shown that the joinder came within the purview of another section mentioned in Section 233 then with respect we are unable to accept that view as a correct view. We do not dispute the correctness of the proposition laid down by the learned Chief Justice that more than one section mentioned in Section 233 can bo made use of in co-operation, but the cooperation, must not lead to the contravention of any of the sections mentioned in Section 233.

The view of the Bombay High High Court appears from the above observations to be that in order to, justify a joinder of accused it is necessary that the case should satisfy the conditions of all sections mentioned in Section 233, and it is not sufficient that the conditions laid down by one of the sections only should be satisfied. Thus it would appear that although numerous offences may have been committed in the course of the same transaction and joinder of charges in respect of all these offences may be justified by Section 235(1) such joinder cannot to permitted if either the offences are not ot the same kind or they exceed three in number or they are separated by more than 12 months. With great respect we are unable to accept this view. It is no doubt true that the exceptions contained in Sections 234, 235, 236 and 239 are mutually exclusive, but, this only means that it is not permissible for the prosecution to cull out some conditions from one section and some conditions from another but it is necessary that all the conditions of one or the other exceptions should be satisfied. In this sense these sections may be regarded as supple, mentary to each other. Rajadhyaksha J. who delvered a concurring judgment, expressed the view that to consider these sections (Ss. 234, 235, 236) as sup-' plomenting each other would necessarily result in enlarging the scope of each section. With respect although we agree that the scope of these sections should not be enlarged by a process of construction, at the same time it should not be unduly narrowed down. Section 233 enumerates four exceptions, which are independent of each other and to construe any one of them as controlling the others would be to narrow down their proper scope.

4. The view of the Bombay High Court runs counter to the observations of the Privy Council in 'Babulal Chaukhani v. Emperor . It was the case of joinder of accused Under Section 239 (d), Cr.PC and their Lordships observed (p. 133) :

The el. (239 (3)) is expressly an exception from Section 233 and enables a plurality of offences to be dealt with in ,the same trial. But it does not import either expressly or by implication the limitation set out in Section 234 according to which not more than three offences of the same kind committed within the space of 12 months can be tried together or the limitation contained in Section 235 (1), under which more offences than one committed by the same person can only be tried together if they are in one series of acts so connected together as to form the same transaction, in which case there is no specific limit of number. Nor is there any limit of number of offences specified in Section 239 (d). The one and only limitation there is that the accusation should be offences committed in the course of the same transaction.

A contrary view was expressed by the Allahabad High Court in 'Rex v. Daya Snanker : AIR1950All167 following earlier decisions of the Patna High Court. In that case the High Court expressed the view that Sections 234, 235, 236 ought to be read as sup. implementary and not as exclusive of one another. This case was dissented from in the Bombay Full Bench case, but the Allahabad High Court reaffirmed it in a subsequent decision in 'Mangi v. State : AIR1953All228 . In that case the accused was charged with committing the murder of the brothers Kameshwar and Badii on the same day at short intervals of time. During the attack on Badri he caused hurt to their grand mother Tulsia and an objection was raised about the legality of the trial on the ground of the offence of murder and of causing hurt to Tulsia could not be joined. Although their Lordships thought that these offences were committed in the course of the same transaction and therefore no objection could be taken against the legality of the trial, they decided the case on the footing that the murders were committed in the course of separate transactions and held that there was a proper joinder of charges. Agarwala J. who delivered the judgment observed that :

So long as a particular joint trial was permitted by one section or the other taken either singly or jointly it cannot be said 'to be contrary to the intention of the legislature, though on the face of it it may appear to go beyond one of the provisions of the enactment. The use of the word 'and' between Sections 235 and 239 instead of 'or' in Section 233 tends to Support the view that a joint trial need not be justified by the provisions of only one of the sections mentioned in Section 233 but can be justified by the provisions of all such sections taken jointly.

5. These observations indicate that a joint trial would be permissible not only in cases where the joinder was justified by these sections singly but also in cases which partly satisfy the conditions of one section and partly of another. With great respect this would be unduly enlarging the scope of these sections. A joinder of charges can be justified if the conditions laid down by one or .the other sections are completely satisfied but not otherwise, though if the joinder is justified by one of them, it does not matter it it goes beyond the provisions of other sections. In 'Gurueharan v. The State : AIR1953Ori258 the scope of Sections 234 and 239 was discussed and it was held that :

Where several offences are committed in the course of the same transaction they may all be tried jointly, whether those offences were of the same kind not and whether their number exceeded three or not and irrespective of whether they were committed within a period of 12 months. On the other hand, where the sameness of the transaction was wanting, only three offences of the same kind alleged to have been committed during the period of 12 months could be tried jointly.

This was a case of embezzlement of three sums of money and forgery and falsification of account. The embezzlement was in respect of three distinct money orders committed on different dates within the space of 12 months. Section 222 (2) was pressed into service and it was held that the criminal breaches of trust committed in the course of one year are to be considered as one offence for the purpose of Section 234 and the offences of forgery and falsification committed to conceal the several criminal breaches of trust should be regarded as having been committed in the course of the same transaction and therefore a joinder of charges was warranted by Section 235 (1), Cr.PC The case turned on a construction of Section 222 (1), Cr.PC and we express no opinion on how far a joinder of charges of distinct acts ot criminal misappropriation and corresponding acts of falsification of accounts and forgery would be justified, but we are in complete agreement on the general rule of law stated above.

6. We might finally notice two decisions of this High Court. In 'Saurashtra State v. Keshavlal L.Oza' AIR 1950 Sau 6 (H) two accused were tried jointly in respect of the offences it obtaining illegal gratification from the farmers of 27 villages and having received in aggregate Rs. 970 from them and the whole affair was a single transaction. This decision is therefore in accordance with our view. The. next decision is in Cri. Appeal No. 29 of 1932 (Sau) (A). In that case the offences for which the accused was charged were not only dissimilar but exceeded three in number and Section 234 did apply. Moreover the acts upon which the accusation was founded were held to be distinct transactions and Section 235 also did not apply. Consequently a joint trial in respect of all the offences was held to be illegal. This decision is also in accordance with our view, but iu the course of the judgment the Division Bench had expressed its preference for the Bombay view in 'D. K, Chandra's ease' (B) to the view expressed by the Allahabad High Court. Though the decision itself is correct, we do not agree that the view expressed by the Bombay High Court can be accepted in its entirety,

7. In the result, we hold that as the applicants Himatlal and Kantilal are accused in criminal cases Nos. 12 and 13 of 1953 of offences alleged to have been committed by them in the course of the same transaction, the inquiries against them should be consolidated Under Section 239 (d). Similarly the inquiries against the applicant Himatlal in Criminal Cases Nos. 87 to 92 of 1953 should be consolidated Under Section 235 (1) as the offences of which he is accused in these cases were all committed in doing acts forming part of the same transaction.

Shah, C.J.

8. I agree.

Chhatpau, J.

9. I agree.


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