Manji Vechar Ozat v. STATE — 1996 DIGILAW 21 (GUJ)

D. G. KARIA, J. ( 1 ) THE petitioner is the accused in respect of Sessions Case No. 118/93 for the offences punishable under Sections 365, 367, 302 and 201 of the Indian Penal Code, facing his trial before the learned Addl. Sessions Judge, Sabarkantha at himatnagar. The petitioner was arrested and was brought for investigation at Prantij police Station in respect of the aforesaid offences of C. R. No. I-41/93 of Prantij Police Station. ( 2 ) AT about 8. 45 p. m. on March 2, 1993, the petitioner pretended to go to answer call of nature during the course of the investigation and escaped from the police custody and thereby committed offence under Section 224 of the Indian Penal Code by escaping from custody wherein the petitioner-accused was lawfully detained for the aforesaid offences. The offence of escaping from lawful custody was thus lodged against the petitioner-accused as per c. R. No. I-42/93 of Prantij Police Station. ( 3 ) THE petitioner, by his application Exh. A of the aforesaid Sessions Case No. 118/93 prayed that he may not be charged for the offence under Section 302 of the Indian penal Code, as there was no evidence on record to show that the deceased had died a homicidal death and that there was nothing on record to show about such homicidal death. The prosecution, by application at exh. 9 in the said Sessions Case, submitted that a subsequent offence of escaping from the lawful custody under Section 224 of the indian Penal Code was connected with the main offence of the aforesaid Sessions Case and as such in course of the same transaction. The prosecution, therefore, requested to charge and try both the offences together. The learned Additional Sessions Judge, sabarkantha at Himatnagar, by his impugned judgment and order dated July 1, 1994, dismissed the aforesaid application exh. 4 of the petitioner-accused and granted application of the prosecution at exh. 9 and thereby ordered the joint trial of the offences of the Sessions Case, i. e. the offences under Sections 364, 302 and 201 of the Indian Penal Code with the offence under Section 224 of the Indian Penal Code. The petitioner has challenged the said order of joint trial contending, inter alia, that an order is contrary to the scheme and the scope of Section 220 of the Code of Criminal procedure. The petitioner has challenged the said order of joint trial contending, inter alia, that an order is contrary to the scheme and the scope of Section 220 of the Code of Criminal procedure. ( 4 ) IT is not in dispute that the offence of escaping from lawful custody under Section 224 of the Code of Criminal Procedure, 1975 took place after one month from the date of main offences under Sections 364, 302 and 201 of the Indian Penal Code. Both the offences are registered by separate c. R. Nos. being C. R. No. I-41/93 and c. R. No. I-42/93. In the facts of the case, the main question to be determined is whether the offence alleged against the accused persons can be said to be in one series of acts so connected together as to form the same transaction. Relevant part of section 220 of the Code of Criminal Procedure, 1973 reads as under:s. 220. Trial for more than one offence - (1) 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. xxx xxx xxx. ( 5 ) IT is evident from the aforesaid provisions of Section 220 of the Code that an accused person may be charged with and tried at one trial for any number of offences which he is alleged to have committed in one series of acts so connected together as to form "the same transaction". Therefore, the real question to be determined is whether escaping from lawful custody and thereby committing offence under Section 224 of the Indian Penal Code can be said to be in one series of acts so connected together as to form part of the same transaction. ( 6 ) APPARENTLY, both the said offences one charged under Sections 364, 302 and 201 of the Indian Penal Code and another under Section 224 of the Indian Code are distinct and different offences. The learned addl. Sessions Judge, in para 6 of his judgment, observed that the accused had escaped from the lawful custody during the course of investigation of the earlier offences of the Sessions Case and therefore he can be said to have committed the of fence forming the same transaction. The learned addl. Sessions Judge, in para 6 of his judgment, observed that the accused had escaped from the lawful custody during the course of investigation of the earlier offences of the Sessions Case and therefore he can be said to have committed the of fence forming the same transaction. I am afraid, in the facts of the case, it cannot be concluded that escaping from the lawful custody during the course of the investigation of the offences under Sections 364, 301 and 201 of the Indian Penal Code can be in one series of acts so connected together as to form the same transaction. ( 7 ) THE offence under Section 224 of the indian Penal Code is triable by the Court of a Magistrate. The other offences under Section 302, etc. with which the accused is charged, are triable by the Court of Sessions. ( 8 ) THERE is, therefore, substance in the contention of Mr. Japee that the petitioner will be prejudiced if both the offences are tried together, inasmuch as the petitioner is likely to lose one appellate forum in case of his conviction for the offence under Section 224 of the Indian Penal Code. An affidavit-in-reply on behalf of the respondent is filed wherein it is contended inter alia, that the petitioner-accused committed the second offence and the same is connected with the main offence within the jurisdiction of the same police station. However, that fact by itself would not conclude that the second or subsequent offence of escaping from the lawful custody can be said to be in one series of acts so connected as to form the same transaction, so as to enable the Sessions Court to try both the offences together under Section 220 of the Code of Criminal Procedure. Considering the contents of the affidavit-in- reply, I am of the view that the second offence is different and distinct and cannot be said to be forming part of the same transaction. ( 9 ) MR. K. P. Raval, learned Addl. Considering the contents of the affidavit-in- reply, I am of the view that the second offence is different and distinct and cannot be said to be forming part of the same transaction. ( 9 ) MR. K. P. Raval, learned Addl. Public prosecutor, appearing for the respondent- state, invited my attention to the Explanation to Section 224 of the Indian Penal code, which reads as under:"explanation - The punishment in this section is in addition to the punishment for which the person to be apprehended or detained in custody was liable for the offence with which he was charged, or of which he was convicted. " ( 10 ) THE same Explanation is also reproduced in the affidavit-in-reply of the respondent. By the aforesaid Explanation, the punishment to be awarded to the accused persons would be in addition to the punishment for which the accused would have been apprehended or detained in custody. It has, therefore, no nexus with the acts of one series so connected together as to form the same transaction. On the contrary, it would support the case of the petitioner. ( 11 ) IN the above view of the matter, the petition is allowed. The impugned order is quashed and set aside. The application Exh. 9 in Sessions Case No. 118/93 pending in the Court of the learned Additional Sessions judge, Sabarkantha at Himatnagar, stands rejected. Rule is accordingly made absolute. Interim relief vacated. Rule made absolute. .