LACHHAMAN PRADHAN v. STATE — 1996 DIGILAW 110 (ORI)

P. K. MISRA, J. ( 1 ) THE accused persons in S. T. Case No. 110/458 of 1994 pending in the file of C. J. M.-cum-Assistant Sessions Judge, Khurda, have filed this application under Section 482, Code of Criminal Procedure (hereinafter referred to as the "code") challenging the validity of the order dated 8-2-1996 in the said case. ( 2 ) THE petitioners are facing trial under Sections 341/294/324/307/34, Indian Penal Code. The trial of the case is concluded and after hearing arguments, the case had been posted for judgment. At that stage, the trial Court passed an order that the judgment in the case shall not be pronounced until disposal of G. R. Case No. 3566 of 1993 which should be heard by the same Court after receipt of the record from the Sub-Divisional Judicial Magistrate, Bhubaneswar, where it was pending. The aforesaid order was passed by the trial Court on the footing that both the cases should have been tried at one trial in accordance with Section 219 of the Code. ( 3 ) IN the Sessions Trial case, there are seven accused persons who are facing trial for the offences alleged to have been committed on 16-8-1993. In G. R. Case No. 3566 of 1993 pending before the Sub-Divisional Judicial Magistrate, Bhubaneswar, the alleged occurrence took place on 17-8-1993. Though the seven petitioners facing trial in the Sessions case are also the accused persons in the said G. R. Case No. 3566 of 1993 pending before the Sub-Divisional Judicial Magistrate, there are four other accused persons. In other words, all the accused persons are not same in both the cases. Moreover, the alleged offences which are the subject-matter of trial in the G. R. case before the Sub-Divisional Judicial Magistrate are under Sections 323/354/294/427/506/34, Indian Penal Code. The trial Court observed that the offence under Section 294, Indian Penal Code; was common in both the cases and, therefore, opined that both the cases should be tried together at one trial under Section 219 of the Code. ( 4 ) SECTION 219 of the Code reads as follows :-"219. The trial Court observed that the offence under Section 294, Indian Penal Code; was common in both the cases and, therefore, opined that both the cases should be tried together at one trial under Section 219 of the Code. ( 4 ) SECTION 219 of the Code reads as follows :-"219. Three offences of same kind within year may be charged together.- (1) 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. (2) Offences are of the same kind when they are punishable with the same amount of punishment under the same Section of the Indian Penal Code (45 of 1860), or of any special or local law :provided that. . . . . . . . "section 219 is applicable only where the same person is accused of having committed more offences than one of the same kind within the space of twelve months. He may be charged with and tried at one trial for such offences not exceeding three. It is also immaterial if the offences had been committed against the same person or not. However, what is significant is that the offences of the same kind should have been committed by the same accused person and not by different accused persons. Section 219 can have no application to cases where some of the accused persons in the two alleged offences are common and/or some of the alleged offences are common. The trial Court was certainly in error when it directed that the judgment of the Sessions case should not be delivered and the records of G. R. Case No. 3566 of 1993 should be called for the purpose of joint trial. ( 5 ) JOINT trial of several persons is contemplated under Section 223 of the Code, which reads as follows :-"223. ( 5 ) JOINT trial of several persons is contemplated under Section 223 of the Code, which reads as follows :-"223. What persons may be charged jointly.-The following persons may be charged and cried together, namely, (A) persons accused of the same offence committed in the course of the same transaction; (B) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence; (C) persons accused of more than one offence of the same kind, within the meaning of Section 219 committed by them jointly within the period of twelve months; (D) persons accused of different offences committed in the course of the same transaction; (E) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence; (F) persons accused of offences under Sections 411 and 414 of the Indian Penal Code (45 of 1860), or either of those Sections in respect of stolen property the possession of which has been transferred by one offence; (G) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860), relating to counterfeit coin and persons accused of any other offence under the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of the Chapter shall, so far as may be, apply to all such charges :provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this Section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together. "section 223, clause (c) contemplates a case where persons accused of more than one offence of the same kind within the meaning of Section 219 can be tried for and charged with three offences of the same kind committed by them jointly within the period of twelve months. "section 223, clause (c) contemplates a case where persons accused of more than one offence of the same kind within the meaning of Section 219 can be tried for and charged with three offences of the same kind committed by them jointly within the period of twelve months. Such is not the case here, as some of the accused persons are not common in both the cases and except allegations under Section 294, Indian Penal Code, the other alleged offences are also dissimilar in nature. Even assuming that Section 223 (c) could have been applied, in the facts of the present case it was definitely not called for. In the present case, neither the prosecuting agency nor the accused persons wanted that G. R. Case No. 3566 of 1993 should be tried together with the Sessions case. The Sessions trial had reached the stage of finality and only the judgment was to be delivered. The trial of G. R. Case No. 3566 of 1993 along with the Sessions case would have caused prejudice to at least those accused persons who were not being tried in the Sessions case. Even keeping in view the nature of the allegations in the two cases, the prosecution as well as the accused persons would find it difficult at the time of trial of both the cases were to be combined. The discretionary power under Section 219 or Section 223 is to be exercised in a proper and judicious manner depending upon the facts and circumstances of each case. ( 6 ) HAVING regard to the fact that some of the accused persons were different, most of the allegations were dissimilar and the trial in the Sessions case had almost reached finality, I deem it proper to set aside the order dated 8-2-1996 passed by the C. J. M. cum-Assistant Sessions Judge, Khurda, in S. T. Case No. 110/458 of 1994. The trial Court should now proceed to deliver judgment in accordance with law. The Criminal Miscellaneous Case is accordingly allowed.