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Dhurvasalu Naidu Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1980CriLJ911
AppellantDhurvasalu Naidu
RespondentState
Cases ReferredSee Kunhahammad v. State of Madras
Excerpt:
- .....dispose them of in open market and to realise the proceeds thereof. the instances of cutting of trees illegally in the reserve forests of attur and harur, but at various times, were in pursuance of that single conspiracy and therefore the fact that in course of some months, others joined in the conspiracy did not change the conspiracy, nor could it split a single conspiracy into three conspiracies. therefore, it cannot be said that there is no inter-relation between the various acts of the accused and if there be some interrelation, there can be no distinctness.5. the fact that some of the accused in the three cases are different will not change the nature and character of the conspiracy. it is also pointed out by the learned counsel for the petitioner that there is no question of.....
Judgment:
ORDER

Maheswaran, J.

1. This application is one under Section 482 of the Code of Criminal Procedure invoking the inherent powers of the High Court to direct the Additional Special Judge, Dharmapuri to try C. C. Nos. 1, 2 and 3 of 1978 together as one case and hold a joint trial of these three cases.

2. The facts: The petitioner herein was a Forest Range Officer at Harur and is the first accused in the three cases, C. C. Nos. 1, 2 and 3 of 1978, on the file of the Court of Additional Special Judge. Dharmapuri. The other accused are other Forest Officers and contractors who have taken licence for cutting trees from various coupes in the reserve forests in Harur and Athur, The Deputy Superintendent of Police, Central Range, Vigilance and Anti-Corruption, registered a case against the petitioner and fourteen other persons under Sections 120B, 379, 420 and 166 read with Section 109 I.P.C. and under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. The allegation against them was that accused 1 to 8 along with accused 9 to 15 and others entered into a criminal conspiracy to commit theft of valuable timber from the reserve forest area of Harur Range by taking advantage of the permit for transporting fuel from the panchayat forest and in furtherance of the said conspiracy, one or the other of the accused committed' acts resulting in pecuniary loss to Government. The petitioner states that the entire investigation proceeded on the footing that there was one conspiracy among the forest officers including the senior officers and the contractors. Sanction was obtained for prosecution of the officers of lower rank and there was delay in obtaining sanction for prosecution of one of two senior officers. Three charge-sheets were filed before the Additional Special Judge, Dharmapuri, who took cognizance of the cases and numbered them as C. C. Nos. l/78, 2/78 and 3/78 against different sets of accused with the petitioner common in all the cases. The petitioner states that as the alleged offences relate to one and the same transaction they should be tried together in order to avoid multiplicity of proceedings and conflict of daclsions. The Special Judge to whom an application was made declined to try all the cases jointly. A-I, A-II, A-18 in C. C. No. 1/78, A-3 to A-5 in C. C. No. 2/78. A-2, and A-5 to A-7 in C. C. No. 3 of 1978 have no objection for the joint trial. But all others including the Special Prosecutor objected. The learned Additional Special Judge held that the contractors in three cases are different, that the period of conspiracy is also different and that if a joint trial is ordered, it would prejudice the accused, and in the end dismissed the application praying for such joint trial.

3. In the first instance, it is not disputed that a common F.I.R., is filed in these cases. A reading of the F.I.R. and other records shows that there is only one conspiracy. The object of the Criminal conspiracy is to commit theft of valuable timber from the reserve forest of Harur and Athur Ranges and to transport them by dishonestly using the permits obtained for purposes other then cutting and removing of trees, and to share the profits arising out of that act.

4. There appears to be only one object of the conspiracy, namely, to sell the trees so illegally cut and appropriate the sale proceeds. Several instances of theft of timber may have taken place in pursuance of that conspiracy and that fact itself will not change the conspiracy, nor could it split a single conspiracy into several conspiracies. Further, it is pointed out by the learned Counsel appearing for the petitioner that the three conspiracies alleged are not distinct offences, but only one offence. Section 218 of the Code of Criminal Procedure reads:

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.'

The question as to what is 'distinct offence' came up for discussion in Banwari Lal Jhunjhunwala v. Union of India (1963)Supp.(2)SCR 338 : 1963 2 Cri LJ 529. their lordships of the Supreme Court observed:

Two offences would be distinct if they be not in any way inter-related. If there be some inter-relation, there would be no distinctness and it would depend on the circumstances of the case in which the offences were committed whether there be separate charges for those offences or not,

The relevant portion of the charge-sheet relating to the main charge of conspiracy against the accused in each of the three cases runs thus:

C. C. 1 of 1978.

Firstly, that you A-l to A-29, A-l to A-20 being public servants who were employed in the Forest Department at Dharmapuri and Salem Districts, A-28 being the former Karnam of Chitheri village and A-29 being the former President of the Chitheri Panchayat, between June 1971 and July 1972 along with A-21 to A-27 and also along with Karamani, (approver) forest-guard who has since been tendered pardon and Thiru Ellappa Naidu, Forest-Guard (since deceased), at Harur, Attur and other places in Dharmapuri and Salem Districts, agreed to commit illegal acts, to wit, by you A-1 to A-20 and A-28 along with the said Karamani (approver) and the deceased Ellapa Naidu by corrupt or illegal means or otherwise abusing your official positions as public servants, obtained pecuniary advantage for yourselves and for you A-22 to A-27 contractors, obtained gratification other then legal remuneration as a motive or reward for doing or abstaining from doing official acts, disobey law, commit theft of trees from the Reserve Forests of Harur and Attur Ranges in Dharmapuri and Salem Divisions respectively and belonging to the Government of Tamil Nadu, fraudulently or dishonestly using the permits obtained for purpose other then cutting and removing trees from the concerned Reserve Forests for transporting the trees so illegally cut and remove them to Salem and other places, dispose them of in open market as firewood, realise the proceeds thereof so illegally obtained resulting in a loss of about Rs. 4,18,000/- (approximately) and abet each other in the commission of such illegal acts and that in furtherance of the said agreement and conspiracy one or other of you along with approver Thiru Karamani and the deceased Ellappan committed the abovesaid illegal acts, viz, by you public servants A-l to A-20 and A-28 Thiru Karamani (approver) and the deceased Ellappan, obtained gratification other then legal remuneration as motive or reward for doing or abstaining from doing official acts by allowing the contractors A-21 to A-27 amongst you to dishonestly cut and remove the trees so cut from the Reserve Forests of Harur and Attur Ranges, by abusing the permits issued by the appropriate authority to Salem and other placets, dispose them of as firewood, realise the proceeds thereof, resulting in a loss to the Government to a tune of Rs. 4,18,000 (approximately) and abetted each other in the commission of such illegal acts as aforesaid and that you thereby committed an offence punishable under Section 120-B, I.P.C. read with Sections 379, 161, 166, 165, I.P.C. (Central Act XLV of 1860), Section 21(e) of Tamil Nadu Forest Act, 1882, R. 11 of the Timber Transit Rules and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act (Central Act II of 1947) and Section 109 I.P.C. and within my cognizance.

C. C. No. 2 of 1978:

Firstly, that you A-l to A-12, A-l to A-9 being public servants who were employed in the Forest Department at Harur Range in Dharmapuri District, between April 1972 and July 1972 (both months inclusive) at Harur and other places in Dharmapuri district agreed to commit illegal acts to wit by you A-l to A-9 by corrupt or illegal means or otherwise abusing your official positions as public servants, obtained pecuniary advantage for yourselves and for you A-10 to A-12 the contractors obtained gratification other then legal remuneration as a motive or reward for doing or abstaining from doing official acts, disobey law, commit theft of trees from the Reserve Forests of Harur Range in Dharmapuri Division and belonging to the Government of Tamil Nadu, fraudulently or dishonestly using the permits obtained for purposes other then cutting and removing trees from the concerned reserve forests, transporting the trees so illegally cut and removing the same to Salem and other places, dispose them of in open market as firewood, realise the proceeds thereof so illegally obtained resulting in a loss of Rs. 35,750/- (approximately) to the Government of Tamil Nadu and abet each other in the commission of such illegal cut and that in furtherance of the said agreement and conspiracy one or other of you committed the abovesaid illegal acts, viz., (by) you public servants A-l to A-9 obtained gratification other then legal remuneration as motive or reward from the contractors A-10 to A-12 amongst you for doing or abstaining from doing official acts by allowing the contractors A-10 to A-12 to dishonestly cut trees in Dombakkal Reserve Forest of Harur Range and remove the trees so cut from the Reserve Forest of Dombak-Jcal in Harur Range, by abusing the permits issued by the appropriate authorities to Salem and other places and dispose them of as firewood and realise the proceeds thereof resulting in a loss of Rs, 35,750 (approximately) and abetted each other in the commission of such illegal acts as aforesaid and that thereby committed an offence punishable under Section 120-B I.P.C. read with Sections 379, 1161, 166, 165-A of the I.P.C. (Central Act XLV of 1860), Section 21(e) of the Tamil Nadu Forest Act, 1882, Rule 11 of the Timber Transit Rules and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act (Central Act II of 1947) and Section 109 I.P.C. and within my cognizance.

C. C. No. 3 of 1978:

Firstly, that you A-l to A-17, Al to A9 being public servants who were employed in the Forest Department in Dharmapuri district between June 1971 and July 1972, along with Thiru K. Sanjeevi who has since been tendered pardon, at Harur and other places in Dharmapuri District, agreed to commit illegal acts, to wit, by you A-l to A-9 along with the said K. Sanjeevi (approver) by corrupt or illegal means or otherwise abusing your official positions as public servants, obtain pecuniary advantage for yourselves and for you A10 to A17, contractors, obtain gratification other then legal remuneration as a motive or reward for doing or abstaining from doing official acts, disobey law, commit theft of trees from the Reserve Forests of Harur Range in Dharmapuri Division and belonging to the Government of Tamil Nadu, fraudulently or dishonestly using the permits obtained for purposes other then cutting and removing trees from the concerned Reserve Forests, for transporting the trees so illegally cut and remove them to Salem and other places, dispose them of in open market as firewood, realize the proceeds thereof so illegally obtained, resulting in a loss of about Rs. 4,17,300/- and abet each other in the commission of such illegal act and that in furtherance of the said agreement and conspiracy one or other of you along with the approver Thiru K. Sanjeevi committed the abovesaid illegal acts viz., by you public servants Al to A9 along with the approver Thiru Karamani obtained gratification other then legal remuneration as motive or reward for doing or abstaining from doing official acts by allowing the contractors A1 to A9 (?) to dishonestly cut and remove the trees so cut from the Reserve Forests in Harur Range and other places in Dharmapuri District, by abusing the permits issued by the appropriate authority to Salem and other places, disposed them of as firewood, realised the proceeds thereof, resulting in a loss to the Government to a tune of Rs. 4,17,300/- (approximately) and abetted each other in the commission of such illegal act as aforesaid and that you thereby committed an offence punishable under Section 120-B Indian Penal Code read with Sections 379, 161, 166, 165-A, I.P.C. (Central Act XLV of 1860), Section 21(e) of Tamil Nadu Forest Act, 1882, R. 11 of the Timber Transit Rules and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act (Central Act II of 1947) and Section 109 I.P.C. and within my cognizance.

A reading of the above extracts from the charge-sheets in the three cases shows that there was only one object of the conspiracy, namely, to cut the trees clandestinely and to dishonestly use the permits obtained for purposes other then cutting and removing the trees from the reserve forests and dispose them of in open market and to realise the proceeds thereof. The instances of cutting of trees illegally in the reserve forests of Attur and Harur, but at various times, were in pursuance of that single conspiracy and therefore the fact that in course of some months, others joined in the conspiracy did not change the conspiracy, nor could it split a single conspiracy into three conspiracies. Therefore, it cannot be said that there is no inter-relation between the various acts of the accused and if there be some interrelation, there can be no distinctness.

5. The fact that some of the accused in the three cases are different will not change the nature and character of the conspiracy. It is also pointed out by the learned Counsel for the petitioner that there is no question of misjoinder of charges as all the persons who are parties to the conspiracy and who are also concerned in the specific offences thus committed can be tried lawfully in the same trial See Kunhahammad v. State of Madras : 1960CriLJ1013 . It should also be noted here that there are about 20 forest officials, 12 commercial tax officials and 5 police officials who are common witnesses in C. C. Nos. 1 of 1978 and 3 of 1978 and that there are also 3 forest officials, 3 commercial tax officials and 8 police officials who are common witnesses in C. C. Nos. 1 of 1978 and 2 of 1978. In C. C. Nos. 2 of 1978 and 3 of 1978, there are two forest officials, 6 commercial tax officials and 5 police officials who are common witnesses in those cases. My attention was also invited to the fact that if there is one single cross-examination in all the three cases (if tried together), there cannot be any scope for improving the case consequent on the evidence elicited in cross-examination in one case and that would be a great advantage to the accused.

6. All these considered, I am of the view that a joint trial of all the cases will not prejudice the accused in any way, but would be to their advantage. The petition is allowed. The order of the Additional Special Judge dismissing the petition for joint trial is set aside. The Additional Special Judge is directed to try all the cases together and dispose them of expeditiously.


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