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1978 DIGILAW 84 (PAT)

Hari Krishna Sahay v. State of Bihar

1978-03-30

UDAY SINHA

body1978
Judgment Uday Sinha, J. By this application under section 482 of the Code of Criminal Procedure, the petitioner has prayed for amalgamation of seven trials into one. The seven cases against the petitioner arises out of Monghyr, P.S. Case No. 43 (8) 76, Dhanbad P.S. Cases No. 39 (5) 76, 40 (5) 76, 41 (5) 76, 42 (5) 76, 43(5) and 44 (5) 76. The cases arising out of Dhanbad Police Station are pending in the Court of Shri K.P. Sinha, Additional Chief Judicial Magistrate Dhanbad. Monghyr Town P.S. Case No. 43 (8) 76 is pending in the Court of Shri Suresh Prasad, Judicial Magistrate 1st Class Monghyr. 2 The application arises in the following circumstances :- The State Government has set up a department known as Lottery Department. The function of the Department is to draw lots from time to time. The ticket for the lots is sold by the State Government through various agencies. The lottery Department has District Officers in every district. The petitioner was proprietor of Sahay Lottery Agency. His business was to purchase tickets from the Lottery organisation and to sell those tickets to various individulas. The substance of the allegation in all the seven cases in that he purchased the tickets from Government and paid for them by cheques which later on bounced and thus the State Government in the Lottery Department suffered loss to the extent of those uncashed cheques. The petitioner is the only accused in the Monghyr Case. In the Dhanbad cases, besides the petitioner, Jai Narayan Prasad Sinha, Accountant of the District Lottery Office, Dhanbad is another accused. Charge sheet has been submitted against both of them in all the six Dhanbad cases. The allegation against both the accused in the Dhanbad cases is that Jai Narayan Prasad Sinha and Hari Krishna Sahay indulged in clandestine and dishonest transactions which indicated that they had conspired together to cheat the State Government of various sums of money. It is therefore obvious that both the accused are alleged to have acted in concert and conspiracy in cheating the State Government. 3. Learned Counsel appearing on behalf of the petitioner submitted that the separate trials of the petitioner will be excessively harassing and prejudicial to his interest without any justification. It is therefore obvious that both the accused are alleged to have acted in concert and conspiracy in cheating the State Government. 3. Learned Counsel appearing on behalf of the petitioner submitted that the separate trials of the petitioner will be excessively harassing and prejudicial to his interest without any justification. He has relied upon the provisions of Sections 212 (2) and 220 of the Code of Criminal Procedure 1973 (hereinafter referred to as "the Code") in support of his prayer to amalgamate all the trials. Section 212 (2) of the Code is an exception upon the general rule that there must be a separate trial for each offence alleged to have been committed by an accused. Section 212 (2) of the Code enables a Court to specify the gross sum embezzled or misappropriated by an accused without specifying particular items or exact dates-but certainly specifying the dates between which the offence is alleged to have been committed. Such charge would be considered to be not in derogation of Section 219 (1) of the Code. The proviso to section 212 (2) of the Code lays down one year as the date between the first and the last of such dates of the offence committed by the accused. In the instant case, all the offences committed by the petitioner are alleged to be within a period of one year. Sub-section (1) of Section 220 provides 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. It is, therefore, submitted that the petitioner having indulged in clandestine and dishonest business by cheating the Lottery Department committed acts, namely, receiving of lottery tickets fraudulently and, therefore, every Act, mentioned in all the seven cases forms part of the transaction. It was also contended on behalf of the petitioner that the other accused Jai Narayan Prasad Sinha (Opposite party no. 2) is also alleged by the prosecution to be in conspiracy with the petitioner and, therefore Section 219 of the Code can be no bar to all the offences being tried together at one trial. 4. Having heard counsel for the petitioner I am inclined to agree with tile submission. Prima facie, the various acts committed by the petitioner and opposite party no. 4. Having heard counsel for the petitioner I am inclined to agree with tile submission. Prima facie, the various acts committed by the petitioner and opposite party no. 2 appear to be in furtherance of a common design to cheat the State Government. It is true that cheques were paid at different times, places and occasions but the modus operandi of the accused in all the cases were the same, namely, to receive tickets on the basis of cheques in favour of the state Government. These cheques were either not cashed or were retained for a considerable long time by opposite party no. 2 giving undue advantage and causing wrongful gain to the petitioner. I am, therefore, inclined to agree with the submission that the acts of the petitioner in all the cases were actuated by one design and form part of one transaction. Learned Counsel has submitted that separate trials would entail the same witnesses coming to Court on several different occasions to testify to matters akin as deposed by him earlier. That would entail wastage of time and money of the State Government. 5. The submission made on behalf of the petitioner was repelled on behalf of the State by contending that Section 219 of the Code would stand as a bar to accused being tried together for all the offences at one trial. It was submitted that although the charge-sheet mentions sections 409 and 420 of the Indian Penal Code as having been committed by both the accused but it is not known which accused will be charged for cheating and which for criminal breach of trust. In that case the prohibition in Section 219 (1) of the Code of not charging an accused with offences exceeding three would stand as bar to framing of charge with respect to offences more than three. In my view, there is no substance in the opposition on behalf of the State. I have looked into the first information report tiled in all the Dhanbad cases. It has been stated in all of them that the facts revealed a conspiracy between the petitioner and opposite party no. 2. In that view of the matter, the acts alleged to have been committed by them formed part of one grand design. Both the accused can legitimately be tried together at one trial for all the offences committed by them. 2. In that view of the matter, the acts alleged to have been committed by them formed part of one grand design. Both the accused can legitimately be tried together at one trial for all the offences committed by them. The accused himself invited amalgamation of all the six trials at Dhanbad and one at Monghyr. Learned Counsel appearing on behalf of opposite party no. 2 has also stated that he has no objection to the cases being amalgamated and tried together at one trial. The accused therefore, cannot plead subsequently having being prejudiced by the facts of all the six cases being clubbed together. The trial of the accused at one trial is likely to cut short wastage of tine and will reduce the harassment to the minimum. With that object in view, I consider it just and expedient that the trials at Dhanbad should be amalgamated into one trial. So far as the case at Monghyr is concerned opposite Party no. 2, Jai Narayan Prasad Sinha is not an accused in that case. Amalgamation of that case is likely to result in complications. That case will therefore, be not amalgamated with the other cases but it will be in the interest of justice that cases also should be transferred to Dhanbad and be heard by the same Court hearing the other trials. 6. With the above observations the application is allowed. It is hereby ordered that the six Dhanbad cases against the petitioner and opposite party no. 2, referred to above, shall be amalgamated and tried at on trial. The case at Monghyr arising out of Monghyr P.S. Case No. 43 (8) 76 will stand transferred to the Court of Shri K.P. Sinha, Additional Chief Judicial Magistrate, Dhanbad. Application allowed.