SANATAN MONDAL v. STATE — 1986 DIGILAW 322 (CAL)

SUKUMAR CHAKRAVARTY, J. ( 1 ) CRIMINAL Appeals Nos. 129, 140 and 179 of 1985 have arisen out of the conviction and sentence of the respective appellants in Sessions Trial No. 10 (7) of 1984 passed by Shri R. Goswami, the learned Additional Session Judge, 4th Court, Alipore. ( 2 ) THE appellant Sanatan Mondalin Criminal Appeal No. 129 of 1985, appellant Subhendu Poddar, Dulal Roy, Bimal Das and Kamal Roy in Criminal Appeal No. 140 of 1985 and appellant Arun Kumar Chakrabarty in Criminal Appeal No. 179 of 1985 were convicted and sentenced to imprisonment for life under S. 395 read with S. 397 I. P. C. ( 3 ) APPELLANTS Subhendu and Kamal each were further convicted and sentenced to rigorous imprisonment for three years under s. 27 of the Arms Act with a direction that the sentences of the aforesaid two accused person under S. 395/397 I. P. C. and under S. 27 of the Arms Act would run concurrently. ( 4 ) ALL the aforesaid accused persons were put to trial on the charge under S. 395/397 I. P. C. and Kamal and Subhendu were further charged under S. 27 of the Arms Act on the allegation by the prosecution that the aforesaid persons on 10th Jan. 1984, at the time in between 2-30 and 3-30 a. m. conjointly committed dacoity in respect of valuable articles from the flats of one Pradyut Kumar Panja, Pijush Roy, Gopi Ranjan Jha and Annapurna Roy in the premises No. 19, J. K. Mitra Road, Calcutta, and that at the time of the commission of the said dacoity in the aforesaid flats, the accused persons used deadly weapons, namely, revolvers, bombs, pipe-guns, bhojalis, dao and iron rod. It was further alleged that subsequently one revolver was recovered from the custody of the accused Kamal Roy and another revolver was recovered from the custody of the accused Subhendu Poddar and that the said two revolvers were used at the time of the commission of the dacoity in the aforesaid flats at 19, J. K. Mitra Road, Calcutta. ( 5 ) MR. Dutta appearing for the appellants in Criminal Appeals Nos. 140 and 179 of 1985 and Mr. Mahato appearing for the appellant in Criminal Appeal No. 129 of 1985 have made their submissions on the same line. Mr. ( 5 ) MR. Dutta appearing for the appellants in Criminal Appeals Nos. 140 and 179 of 1985 and Mr. Mahato appearing for the appellant in Criminal Appeal No. 129 of 1985 have made their submissions on the same line. Mr. Dutta has submitted that the charges framed in the trial have been illegal and that on the basis of the materials placed before the trial court, the charges under S. 27 of the Arms Act against Kamal Roy and Subhendu Poddar cannot be tried in the same trial along with the charge under S. 395/397 I. P. C. against all the accused appellants. Mr. Dutta has further submitted that according to the prosecution the distinct and separate offences of dacoity was committed in respect of each of the aforesaid four flats owned and possessed by different four persons and that accordingly the accused persons ought to have been separately charged for each and every distinct and separate offence under S. 395/397 I. P. C. Mr. Dutta has further submitted that it is true that three offences of the same kind can be tried in one trial but in the instant case, there were four distinct offences with regard to the commission of the dacoity and accordingly the said four offences cannot be tried in one trial. Mr. Dutta has further submitted that the materials on the record do not indicate that the revolvers recovered from the respective custody of Subhendu and Kamal were used for the commission of the dacoity in the aforesaid flats and that accordingly the offences for alleged possession of the said revolvers by the two accused persons cannot be tried along with the offences under S. 395/397 I. P. C. Mr. Dutta has also submitted that the learned trial Judge has not made separate consideration and discussion with regard to each and every offence of dacoity in each flat although he framed a rolled up charge in respect of the offences under S. 395/397 I. P. C. and that accordingly there has been a failure of justice to the prejudice of the accused appellants. Mr. Dutta has also submitted that the trial of the accused appellants in one trial for distinct and separate offences not connected with the same transaction have also made the trial illegal and caused the failure of justice to the prejudice of the accused appellants. ( 6 ) MR. Mr. Dutta has also submitted that the trial of the accused appellants in one trial for distinct and separate offences not connected with the same transaction have also made the trial illegal and caused the failure of justice to the prejudice of the accused appellants. ( 6 ) MR. Mahato has adopted the said submissions of Mr. Dutta. ( 7 ) MR. Safiullah appearing for the State has submitted that as the accused appellants have not taken up the plea or defence in the trial court at the first stage, they should not be permitted to raise this question here in the appellate court although there has been irregularity and some illegality in the frame of the charges. ( 8 ) WE have given due consideration to the submissions of the learned Counsel on both sides with reference to the charges framed in the sessions trial. It appears from the charge under S. 395/397 I. P. C. that the learned trial Judge has framed the rolled up charge in respect of distinct and separate four cases of dacoity in different four flats owned and possessed by different persons, of course, in the same premises. The learned trial Judge in framing such rolled up charge without framing separate and distinct charges for separate and distinct offences in different flats has committed the irregularity although not illegality in view of the decision in the case of Kirtibash Das v. State reported in AIR 1960 Cal 269 . ( 9 ) SECTION 218 of the Cri. 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. Section 219 of Cri. P. C. however, permits the trial of three offences of the same kind within one year in one trial. Section 220 of Cri. P. C. permits the trial of even more than three offences in one trial if the offences are committed by the same person in one series of acts so connected together as to form the same transaction. ( 10 ) IN the instant case, the dacoity was committed in four flats of the same premises owned by different persons almost at the same time in the same night. ( 10 ) IN the instant case, the dacoity was committed in four flats of the same premises owned by different persons almost at the same time in the same night. So it can be held that the series of dacoities committed in the four flats were so connected together that they form the same transaction. Such being the position, the distinct offences of dacoity in four flats in the course of the same transaction may be tried in one trial, of course, on distinct and separate charges for the commission of dacoity in four flats. The learned trial Judge has committed the irregularity in not framing separate charges for the separate offences of dacoity. The next question is whether such irregularity in the charge can be ignored. The law commands that if there is no failure of justice in arriving at the finding by the learned trial Judge by consideration and discussion of separate and distinct offences then the same can be ignored. Our attention has been drawn to the relevant portions of the judgment of the learned trial Judge and we are constrained to observe that the learned trial Judge has not discussed and considered each and every dacoity in each flat with reference to the evidence and accordingly the jumbled up discussion and finding of the learned trial Judge, according to our opinion, has caused the failure of justice. Such being the position, on that ground alone, justice demands the retrial of the case after framing the charges according to law under S. 395/397 I. P. C. ( 11 ) IT appears from the materials placed before the learned trial Judge by way of evidence at the time of the trial that the learned trial Judge could not find that the revolvers recovered from the custody of the accused Subhendu and Kamal were used for the commission of the dacoity in the aforesaid flats in the night of the occurrence. The judgment shows that for the recovery of one revolver from the custody of Subhendu, another case under S. 25 of the Arms Act was pending. Mr. Dutta submits that the said case was in respect of the self same recovery of the revolver from the custody of Subhendu. Such being the position, it appears that one and the same accused cannot be tried twice for the same offence. Mr. Dutta submits that the said case was in respect of the self same recovery of the revolver from the custody of Subhendu. Such being the position, it appears that one and the same accused cannot be tried twice for the same offence. It has already been said and the learned Counsel appearing for the State also could not deny the same that the materials placed before the learned trial Judge do not indicate at all that the revolvers recovered from the custody of the aforesaid two accused, namely, Subhendu and Kamal were used for the commission of the dacoity in the aforesaid four flats. Such being the position, for the unlawful possession of the revolvers, the aforesaid two accused persons no doubt can be charged and tried separately but not in the trial of the accused appellants under S. 395/397 I. P. C. So here also we find that the learned trial Judge has committed illegality and not irregularity in trying the accused Subhendu and Kamal on the charge under S. 27 of the Arms Act while trying the accused appellants for the charge under S. 395/397 I. P. C. We hold in agreement with Mr. Dutta that such illegality has caused the failure of justice to the prejudice of the accused appellants. ( 12 ) IN view of what has been stated and discussed above, we find no other alternative but to send the case for retrial of the accused appellants on the charges to be framed according to law in the light of the observations and discussions made above. ( 13 ) IN the result, the appeals are allowed and the conviction and sentence of the accused appellants are set aside. The accused appellants be tried on the charges to be framed according to law in the light of the observations made above by a Judge other than Shri R. Goswami. The retrial should be completed as expeditiously as possible preferably within four months from the receipt of the records from this Court. ( 14 ) LET the records be sent as expeditiously as possible. ( 15 ) WE make it clear that nothing stated in this order shall be treated as expression of opinion on the merits of the case. ( 16 ) GOBINDA CHANDRA CHATTERJEE, J:- I agree. Appeals allowed.