SOMABHAI SHAMALBHAI PATEL v. STATE — 1986 DIGILAW 90 (GUJ)

B. S. KAPADIA, J. ( 1 ) THE petitioners have filed the present Special Criminal Application under Art. 227 of the Constitution of India challenging the order passed by the learned Addl. Sessions Judge Sabarkantha at Himatnagar in the Criminal Revision Application No. 37 of 1985 on 24 By the said order the learned Addl. Sessions Judge has dismissed the revision application filed by the present petitioners who had filed the said revision application against the order passed by the learned Chief Judicial Magistrate Himatnagar on 14-1-1985 in the Criminal Cases Nos. 735 to 843 of 1985 on application Exh. 37. By the said order the learned Chief Judicial Magistrate dismissed the application filed by the present petitioners who are the original accused for having joint trial of the aforesaid criminal cases. The said application was filed on 7-1-1985 stating that they have no objection if all the said cases are consolidated and tried together. It was also pointed out that there was one F. I. R. for the said cases and that the auditor has also made one audit report for the same. It was also submitted that if the cases are tried separately then the accused will be put to much inconvenience and therefore it was prayed that all the cases should be tried together. ( 2 ) THE learned Chief Judicial Magistrate has pointed out in his order that there are 108 cases. The offences alleged against the accused are punishable under secs. 408 465 467 471 and 477a of the IPC. The said offences have taken place during the period from 1-6-74 to 31 and the total amount involved is Rs. 7 85 443-77. The learned Magistrate has observed that in those cases the witnesses will be in great number and that the entries of alleged misappropriation will be required to be proved by examining each concerned witnesses and that the falsification also will be required to be proved. It is also pointed out by the learned Magistrate that there are great number of entries in 108 cases and that at the time of writing the judgment reference will be required to be made of entries from the case. Considering all the relevant circumstances looking to the amount involved and the entries which are to be proved the learned Magistrate was of the opinion that if the cases are consolidated there would be very much complication. Considering all the relevant circumstances looking to the amount involved and the entries which are to be proved the learned Magistrate was of the opinion that if the cases are consolidated there would be very much complication. While on the contrary if the cases are tried separately it would be more convenient to record the evidence and to refer the same in the judgment. Accordingly the learned Magistrate has dismissed the said application filed by the petitioners accused. ( 3 ) THE learned Addl. Sessions Judge has confirmed the order dismissing the said application and he has also given reasons for the same. One of the reasons stated by the learned Additional Sessions Judge is that there is likelihood of prejudice to the accused if the cases are allowed to be consolidated. He has also pointed out in his judgment that whether the proceedings should be consolidated or not depends not only on the written application of the accused under sec. 218 of the Criminal Procedure Code but also on the opinion of the learned Magistrate that in consolidating the same prejudice is not likely to be caused to the accused. If the Magistrate is of the aforesaid opinion then the application of the accused which is given in writing for hearing all the cases together can be granted. However the learned Addl. Sessions Judge also observed that new right of making an application is granted to the accused by the proviso to sub-sec. (1) of sec. 218 but sub-sec (2) thereof further states that nothing in sub-sec. (1) shall affect the operation of the provisions under secs. 219 220 221 and 223 and therefore if such application is granted it would affect the provisions of secs. 219 220 221 and 223. Refusal of the application made by the petitioners is therefore correct. ( 4 ) MISS V. P. Shah the learned Advocate appearing for the petitioners submits that the reasoning given by the learned Addl. Sessions Judge that the proviso applies only to sub-sec. (1) of sec. 218 and not to sub-sec. (2) is erroneous. She further submits that the learned Magistrate and consequently the learned Addl. Sessions Judge have erred in not considering the case from the proper perspective as to whether by trying all the aforesaid cases together and/or by granting such application of the petitioners the accused-petitioners are likely to be prejudiced or not. 218 and not to sub-sec. (2) is erroneous. She further submits that the learned Magistrate and consequently the learned Addl. Sessions Judge have erred in not considering the case from the proper perspective as to whether by trying all the aforesaid cases together and/or by granting such application of the petitioners the accused-petitioners are likely to be prejudiced or not. She also submits that instead of addressing that question the learned Magistrate has only considered about the complication that would arise on account of number of entries that would be required to be proved and therefore that opinion should not be considered as a correct opinion. She further submits that in these cases it is true that number of witnesses will be required to be examined but if the cases are consolidated it would be convenient and witnesses will not have to repeat the same version which is given in one case again in another case while giving the deposition. She submits that if the cases are tried separately they will have to repeat certain versions again and again. She also submits that if the cases are tried separately in the event of filing appeals the accused will be required to file separate appeals and that will also cause much inconvenience to the accused. She therefore submits that this is the application which looking to the facts and circumstances of the case the learned Magistrate should have granted. ( 5 ) MR. K. T. Dave the learned Addl. P. P. submits that the view of the learned Addl. Sessions Judge that the proviso is only restricted to sub-sec. (1) and not to the whole of the sec. 218 does not appear to be correct view. However he submits that looking to the facts and circumstances of the case and the opinion expressed by the learned Magistrate as well as the learned Addl. Sessions Judge order passed by the learned Addl. Sessions Judge cannot be interfered with in this writ petition under Art. 227 of the Constitution of India where the High Court can only interfere with the order if the lower courts have not kept themselves within the bounds of law while passing the order. ( 6 ) IN view of the rival contentions raised by the learned advocates it would be necessary to reproduce the provisions of sec. ( 6 ) IN view of the rival contentions raised by the learned advocates it would be necessary to reproduce the provisions of sec. 218 of the Criminal Procedure Code with a view to appreciate the same:218 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 only number of the charges framed against such person. (2) Nothing in sub-sec. (1) shall affect the operation of the provisions of secs. 219 220 221 and 223. ( 7 ) IT may be stated at the outset that secs. 218 to 223 which deal with joinder of charges should be read together and not in isolation inasmuch they deal with the same subject matter and set out different aspects of it. It is true that general rule is 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 and joint trial is an exception. It appears that the object of sec. 218 in requiring that there shall be separate trial for every charge is two-fold firstly to give the accused notice of charges and secondly to see that he is Dot embarrassed by having to meet charges in no way connected with one another. However right from sec. 219 to sec. 220 certain exceptions to the above rule have been carved out. For example when a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences whether in respect of the same person or not he may be charged with and tried at one trial for any number of them not exceeding three. Further under sec. 220 the exception to the rule embodied in sec. Further under sec. 220 the exception to the rule embodied in sec. 218 is made namely it 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 ( 8 ) IT may be stated that before 1973 there was no such proviso as is incorporated in sec. 218. Now it is therefore clear that if the proviso is not to apply to the whole of sec. 218 including sub-sec. (2) thereof the proviso would become infructuous inasmuch as in spite of the right given to the plaintiff for making the application for a joint trial of all the offences that cannot be done because as per sec. 219 there can be one trial for the offences not exceeding three when they are committed with the space of 12 months. It is therefore clear that if that narrow construction is given the proviso would be infructuous or ineffective. It is pertinent to note that sub-sec. (1) is different or separate from the proviso while sub-sec. (2) refers to only sub- sec. (1) and not the proviso. That also indicates that sub-sec. (2) applies only to sub-sec. (1) and not to the proviso. In other words that proviso would be applicable to the whole of sec. 218. As stated above taking the practical aspect of the matter also proviso should be read as a proviso to the whole of the section. Otherwise as stated above the said proviso would become redundant in view of the provisions of sec. 219. In this view of the position of law it appears that the learned Addl. Sessions Judge has wrongly observed to the effect that sub-sec. (2) of sec. 218 states that nothing in sub-sec. (1) shall affect the operation of the provisions of secs. 219 220 221 and 223 and if such application is granted it would affect the provisions of secs. 219 220 221 and 223. ( 9 ) NEXT aspect required to be considered would be as to whether the Magistrate has rightly refused the application on the ground that accused-persons are likely to be prejudiced on account of the joint trial. 219 220 221 and 223 and if such application is granted it would affect the provisions of secs. 219 220 221 and 223. ( 9 ) NEXT aspect required to be considered would be as to whether the Magistrate has rightly refused the application on the ground that accused-persons are likely to be prejudiced on account of the joint trial. There is no dispute on the point that in these cases if they are all tried together as per the application given by the petitioners there would be number of entries to be proved. Handwritings and signatures of the accused will be required to be proved. It will be also the duty of the Court to compare the wrintings/signatures and come to its own conclusion as to whether the said entries/signatures have been made by the accused or not. As laid down by the Supreme Court in the case of Murarilal v. State of M. P. AIR 1980 SC 531 the duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions they will aid the Court. Where there is none the Court will have to seek guidance from some authoritative textbook and the courts own experience and knowledge. But discharge it must its plain duty with or without expert with or without other evidence. In that view of the matter if the entries are in such big number and court avoids not intentionally but on account of any inadvertence also the prejudice is likely to be caused. ( 10 ) FURTHER it may be stated that it is also the duty of the Court under sec. 313 of the Criminal Procedure Code to record further statement of the accused putting all incriminating circumstances against the accused for getting his explanation. It is not merely an ideal formality. If the learned Magistrate fails to put the relevant entry out of number of entries to the accused at the time of recording further statement possibly that part of the evidence cannot be used against the accused and therefore it is likely to prejudice the accused if there will be joint trial. Both the courts below have come to the conclusion that looking to the number of entries to be proved there are chances of prejudice being caused to the accused. Both the courts below have come to the conclusion that looking to the number of entries to be proved there are chances of prejudice being caused to the accused. ( 11 ) IN that view of the matter I do not find this case to be a proper case to interfere with in writ petition under Art. 227 of the Constitution of India. 1 therefore do not find any merit in any of the contentions raised by Miss V. P. Shah for the petitioners. The result is that the petition fails and stands dismissed. Stay stands vacated. Rule is discharged. Petition dismissed. .