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Makhan Lal Gore and ors. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 1307 of 1962
Judge
Reported inAIR1965Cal457,1965CriLJ351
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 234 and 235; ;Constitution of India - Article 20(2); ;Indian Penal Code (IPC) - Sections 120B, 420, 467 and 471
AppellantMakhan Lal Gore and ors.
RespondentThe State
Appellant AdvocateChintaharan Roy and ;Arun Kishore Das Gupta, Advs.
Respondent AdvocateJ.M. Banerjee, Adv.
Cases ReferredKrishnamurty Iyer v. State.
Excerpt:
- .....on behalf of the state filed a petition before the special court for joint trial of these two cases. the special court rejected this petition on the short ground that till then no complaint was filed before it on the basis of the second allotment and the special court had not till then taken cognizance of the alleged offence in the second case. thereafter on july 10, 1962 a complaint was filed before the special court on the basis of the second allotment and case no. 11 of 1962 was started against the petitioners and those two other persons. the special court thereafter continued the cases separately. one of the said two other accused persons was examined as an approver and 31 other witnesses were examined in case no. 4 till july, 27, 1962. the approver was examined in case no. 11.....
Judgment:
ORDER

R.N. Dutt, J.

1. One case under Sections 120B/420, 420, 467/471 Indian Penal Code against the petitioners and two others was allotted to the Third Additional Special Court, Calcutta, by a Government notification dated December 13, 1961. On the basis of this allotment a complaint was filed before the Special Court and case No. 4 of 1962 was started against them on March 30, 1962. The prosecution started examining witnesses in this case on June 27, 1962. One other ease under the same sections of the Indian Penal Code was allotted to the same Special Court against the petitioners and the same two other persons by a Government Notification dated May, 9 1962. On June 26, 1962 the Director of Public Prosecution on behalf of the State filed a petition before the Special Court for joint trial of these two cases. The Special Court rejected this petition on the short ground that till then no complaint was filed before it on the basis of the second allotment and the Special Court had not till then taken cognizance of the alleged offence in the second case. Thereafter on July 10, 1962 a complaint was filed before the Special Court on the basis of the second allotment and case No. 11 of 1962 was started against the petitioners and those two other persons. The Special Court thereafter continued the cases separately. One of the said two other accused persons was examined as an approver and 31 other witnesses were examined in case No. 4 till July, 27, 1962. The approver was examined in case No. 11 on August 16, 1962. On this date the petitioners filed an application before the Special Judge saying that the second allotment and the second cognizance were bad in law as the offences were the same. The learned Special Judge rejected the petition but directed that if during the trial it appeared from evidence that the offences were the same the petitioners would be discharged or acquitted. Thereafter the petitioners moved this court for a Rule on the State to show cause why the proceeding in case No. 11 should not be quashed or why the proceeding in cases Nos. 4 and 11 should not be tried jointly. The Rule that was issued was limited to show cause why the two eases should not be tried jointly. 17 more witnesses have in the meantime been examined in case No. 4.

2. The prosecution case in case No. 4 is that the petitioners and the other two accused persons entered into a conspiracy between September 7, 1960 and October 1. 1960 to commit offences of cheating, forgery and/or using forged documents as genuine and in pursuance of that conspiracy, forgery and cheating were committed in respect of five money orders and five forged documents were used as genuine. These overt acts are said to have been committed during the period from September 7, 1960 to October 1, 1960.

3. The prosecution case in Case No. 11 is that the petitioners and the other two accused persons entered into a conspiracy between October 11, 1060 and October 15, 1960 to commit offences of cheating, forgery and/or using forged documents as genuine and in pursuance of that conspiracy ommitted forgery and cheating in respect of one money order on October 15, 1960 and also used the forged document as genuine.

4. Mr. Hoy argues that the conspiracy is the same in both the cases and as such the offence of conspiracy under Section 120B of the Indian Penal Code cannot be tried twice over in the two cases. He submits that the two cases should therefore, be jointly tried. Mr. Banerjee, who appears for the State submits that the conspiracy is not the same. The persons might have been the same. The modus operandi might have been the same but the period was different. I have said that at one stage the Director of Public Prosecution who was conducting the prosecution in both the cases on behalf of the State before the Special Court, moved that court for joint trial of the two cases. From the petition filed by the Director of Public Prosecution, there is no doubt that the conspiracy was the same. Not only was it amongst the same persons, not only was the modus operandi the same but the overt acts are said to have been committed on different dates but in pursuance of the same conspiracy. So far as the offence of conspiracy punishable under Section 120B of the Indian Penal Code is concerned, it must be said that there cannot be trial of the petitioners for that offence twice over in the two case.

5. Mr. Banerjee then submits that even inthe conspiracy in two cases be held to be the same case No. 11 should be separately tried for the specific offences under Sections 420, 467 and/or 471 of the Indian Penal Code alleged to have been committed on October 15, 1960. It appears that in case No. 4 five overt acts or five overt offences under each of Sections 420, 467 and/or 471 Indian Penal Code have been alleged. Mr. Banerjee submits that under Section 234 of the Code of Criminal Procedure not more than three offences of the same kind ran be tried at the same trial. He contends that in case No. 4 there can be charge for not more than 3 heads of each of the specific offences alleged. If the two cases are tried together there can be no charge in respect of similar offences said to have been committed on October 15, I960. He submits that if the two cases are tried jointly the prosecution will be forced to abandon the specific offences said to have been rommitted on October 15, 1960. Mr. Roy contends that even if there will be joint trial there will be no bar to the framing of charges for the specific offences said to have been committed on October 15, 1960 in addition to the charges that may be framed for the offences of the same kind alleged in case No. 14. He refers to the Privy Council decision in Babulal Chaukhani v. Emperor and the Supreme Court decision in Banwari v. State of Uttar Pradesh : AIR1962SC1198 . But none oi these decisions is attracted to the facts of this case. Here the question is if, in a case of conspiracy, there may be more than three charges for offences of the same kind committed on different dates in pursuance of the conspiracy. This question was not specifically decided in either of those cases. Mr. Roy nextrefers to the Supreme Court decision in Purshottam Das Dalmia v. State of West Bengal AIR 1961 S.C. 1689. This decision again is not attracted to the facts of this case. The Supreme Court has held in this decision that if in pursuance of a conspiracy several overt acts are committed in different places, the court having jurisdiction to try the offence of conspiracy will also have jurisdiction to try the specific offences constituted by overt acts though those offences were committed beyond its jurisdiction. Mr Roy next refers to the Supreme Court decision in Chandi Prasad Singh v. State of Uttar Pradesh : 1956CriLJ322 . This decision also is not attrac-ed to the facts of this case. There in that case there were three offences under Section 409 and one under Section 477A of the Indian Penal Code. Thus the question if more than three offences of the same kind committed in pursuance of the same conspiracy can be tried together in spite of Section 234 of the Code was not specifically decided Mr. Roy then argues that Section 234 is controlled by Section 235 of the Code and in view of Section 235 of the Code more than three offences of the same kind committed in course of the same conspiracy can be tried at the same trial in spite of Section 234 of the Code. He refers to the decisions in Satyanarayana v. Emperor, 1933 Mad W.N. 528 which was followed in Krishnamurty Iyer v. State. 1957 Mad WN 495. It is true that in those cases the Madras High Court has held that more than three offences of the same kind committed in course of the same conspiracy can be tried at the same trial in view of Section 235 of the Code. No reported decision of this court on this point has been pointed out to me. It is to be considered if the words 'more offences than one' used in Section 235 will include only offences of different nature or will also include separate offences of the same nature. Rut in the facts of this case it is not necessary to decide this point in this proceeding. I shall assume that Section 235 of the Code will include separate offences of the same nature committed in pursuance of the same conspiracy, and in that view of the matter, there may not be any bar to the trial of more than three offences of the same nature in case No. 4 Section 235 of the Code is however an enabling section. But if the State has thought fit to institute separate cases there can be no bar to separate trials also But the question of prejudice has to be considered and if it be found that the accused would be prejudiced by separate trials there may in suitable cases be direction for joint trial. What I find in these cases is that in case No. 4, 49 witnesses have already been examined. If there is now an order for joint trial these witnesses wiil have to be produced over again for further examination. On the ' other hand the main approver witness has already been examined in case No. 11 also and if this case be continued separately only those other witnesses who will be relevant for this case will have to be produced. I do not, therefore, think that the petitioners will be prejudiced if the two trials continue separately.

6. But since the alleged conspiracy was the same there can be no further trial for the offence of conspiracy punishable under Section 130B of the Indian Penal Code in case No. 11. Case No. 11 will, therefore, proceed for trial of specific offences under Sections 420, 467 and/or 471 of the Indian Penal Code alleged to have been committed on October 15, 1960. The State will however be free to adduce evidence in this case about the alleged conspiracy in so far as it will be necessary to prove the alleged specific offences.

7. Subject to the observations made above the Rule is discharged.


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