Research › Search › Judgment

Jharkhand High Court · body

2008 DIGILAW 911 (JHR)

Junul Bhengaraj v. State of Jharkhand

2008-08-11

R.R.PRASAD

body2008
Order All the four cases were heard together, though reliefs sought for in these cases are different but in course of argument, grievances were raised which are common and on that grievance prayer was made which had never been prayed for in the petition except in one writ petition to the effect that the trial court be directed to deliver the judgments in different cases in which petitioners are accused simultaneously and under these circumstances all the cases are being disposed of by the common order as facts of the cases are identical. 2. In W.P.(Cr.) No. 183 of 2007, the prayer has been made to direct the Special Judge, CBI (AHD cases) to amalgamate the case bearing R.C. No. 20A of 1996 with other cases bearing R.C. No. 6BA of 1996. R.C. 49A of 1996 and R.C. 51 A of 1996 whereas in Cr.M.P. No. 1B7 of 200B, the prayer has been made to amalgamate all the cases, in which the petitioners are accused, which are pending before different Special Judges, CBI (AHD cases) and those cases be tried by one Special Judge. 3. So far W.P.(Cr.) No. 157 of 2008 is concerned, the prayer has been made to direct the court not to pronounce the judgment of the cases which are ripe but wait for other trial to be ripe for pronouncing judgment and then pronounce the judgment simultaneously. Further prayer is to direct the court to admit those convict on bail who have been convicted only for four years after serving of sentence for about six months. 4. In W.P.(Cr.) No. 77 of 2008 is concerned, the prayer has been made to stay the case until the petitioner is released so that the petitioner may properly defend his criminal case and also fight out the case properly lodged under the Income Tax Act and also other case (proceeding of attachment). 5. The facts giving rise to all these cases are that when it was detected, by the then Finance Secretary that withdrawal of huge money has been made fraudulently from the Chaibasa Treasury by the officials of Animal Husbandry Department, Chaibasa in the year 1991-92 to 1995-96 five cases relating to Chaibasa Treasury for different periods shown below were lodged:- 1. Chaibasa P.S. Case No. 12 of 1996 (RC. No. 20A of 1996)-for the year 1994-95. 2. Chaibasa P.S. Case No. 13 of 1996 (RC. Chaibasa P.S. Case No. 12 of 1996 (RC. No. 20A of 1996)-for the year 1994-95. 2. Chaibasa P.S. Case No. 13 of 1996 (RC. No. 50A of 1996)-for the year 1991-92. 3. Chaibasa P.S. Case No. 14 of 1996 (R.C. No. 51A of 1996)-from 1.4.1993 to 31.3.1994. 4. Chaibasa P.S. Case NO.4 of 1996 (R.C. No. 19A of 1996)-from 1.12.1995 to 27.1.1996. 5. Chaibasa P .S. Case No. 23 of 1996 (R.C. No. 49A of 1996)-for the year 1980-81 to 1989-90. 6. Subsequently, under the order of the Patna High Court and also by the, Hon'ble Supreme Court, the investigations of the aforesaid cases were taken over by the CBI who renumbered the cases which have been shown hereinabove and also instituted two other cases bearing R.C. No. 66A of 1996 for the offence period from 1.4.1995 to 30.11.1995 and also R.C. No. 68A of 1996 for the year 1992-93. 7. Subsequently, CBI submitted charge-sheet separately in those cases and the Special Judge, CBI took up the trial of those cases and out of those cases three cases, bearing RC. No. 19A of 1996, R.C. No. 50A of 1996 and R.C. No. 66A of 1996 have already been disposed of whereas in RC. No. 20A of 1996, 293 prosecution has examined 293 witnesses out of 459; in RC. No. 51A of 1996, 156 prosecution witnesses out of 159 have been examined whereas in RC. No. 68A of 1996, 118 prosecution witnesses out of 283 have been examined. In R.C. No. 53A of 1996, all the prosecution witnesses have been examined and the case is fixed for examination of the defence witnesses. 8. Under these situations, these writ applications have been filed wherein prayer for amalgamation of all those cases have been made, though in course of argument, learned counsel after realizing that different cases are at different stages the court may not feel inclined to pass order regarding amalgamation of all the cases as it may prejudice the case of the prosecution and even cause prejudice to some of the accused, orally gave up the prayer and instead of that prayer was made to direct the trial court to pass judgment in all the cases simultaneously as all the aforesaid cases related to Chaibasa Treasury and is being tried by one Special Judge. 9. So far fact of the Cr. 9. So far fact of the Cr. M.P. No. 187 of 2008 is concerned, it appears that the petitioners as many as 38 in number are facing trial in so many cases which are not related to one treasury rather different treasuries and those cases are being tried by different Special Judges, CBI, still the prayer has been made to amalgamate all the cases and be transferred to one Special Judge, CBI for its trial. 10. However, learned counsel in course of argument also seems to have adopted the submission advanced in other three cases. 11. Learned counsel appearing for the petitioners submits that in all the cases the allegations are virtually the same wherein it has been alleged that accused persons, who are suppliers, DDOs, Official of Animal Husbandry Department, Treasury officials and other accused persons did withdraw money in conspiracy with each other fraudulently on the basis of forged supply bills submitted by the suppliers without actual supply of the materials and on the basis of forged allotment letters and these allegations related to the period from 1990-91 to 1995-96 and for that seven cases were instituted and not only that even two cases for same financial year have been instituted, though as per different provisions of the Code of Criminal Procedure as contained in Sections 219 and 223, the CBI should have Instituted only one case and the accused persons should have been put to trial jointly as the offences alleged are in the same transaction but the CBI in order to put the accused persons to harassment instituted more than one case and submitted charge-sheet separately and put the accused persons on trial in different cases which are against the aforesaid provisions and by doing so, the accused persons have been put to great injustice as they would be facing the accusation committed in the same transaction in more than one trial and would be subjected to conviction and sentence separately which would cause great injustice to the accused persons. 12. 12. Learned counsel further submits that though under the aforesaid circumstances the prayer has been made to amalgamate all the cases but keeping in view different stages of different trials the court may feel difficulty in passing such order but regard being had to the provision as contained in Section 427 of the Code of Criminal Procedure, the trial court may be directed to slow down the pace of trial which has proceeded considerably and to accelerate the pace of the trial which IS far behind from its conclusion so that all the cases be brought to stage of argument and then the trial court may proceed with the pronouncing of the judgments and if occasion arises to give benefit to the accused under Section 427 of the Code of Criminal Procedure. Learned counsel In this regard submits that if the trial court does not act in the manner as has been indicated and proceed with the trial which has advanced to a great extent and pronounces the judgment, then the provision as contained in Section 427 of the Code of Criminal Procedure would be redundant for the accused who would be held guilty as some of the cases are at the stage which may consume 4-5 years in its conclusion and therefore, this Court in exercise of extraordinary jurisdiction can easily direct the court below to proceed in the aforesaid manner for the ends of justice. 13. Learned counsel in this respect has referred to a decision rendered in the case of Hanoo @ Har Narain VS. State of Uttar Pradesh (1998 Cri.L.J. 94) holding therein that if the offences are connected inherently and intimately with each other, the court in its inherent power can pass the order for sentences to run concurrently. In this connection one more case decided by the Patna High Court in the case of Shambhu Nath Singh VS. State of Bihar and Others [2003(1) East Cr. Cases 675 (Pat.)] [: 2003(1) PLJR 747 ] has been referred to. 14. In this connection one more case decided by the Patna High Court in the case of Shambhu Nath Singh VS. State of Bihar and Others [2003(1) East Cr. Cases 675 (Pat.)] [: 2003(1) PLJR 747 ] has been referred to. 14. Learned counsel further submits that so far petitioner in W.P.(Cr.) No. 77 of 2008 is concerned, he apart from the cases, referred to above, is facing prosecution in other cases relating to Income Tax Act and also Criminal Amendment Act 44 relating to attachment of the property and the petitioner on account of being in custody is not able to defend those cases properly and, therefore, the court below be directed to grant him provisional bail for certain period so that he may assist his Lawyer properly in order to defend those cases. 15. As against this, learned counsel appearing for the CBI submits that learned counsel appearing for the petitioner has himself demonstrated before this Court that the cases are pending at different stages In the manner that in some cases the prosecution has examined almost all the prosecution witnesses whereas in other cases, large number of prosecution witnesses are still to be examined and, therefore, at this stage, it would not be proper to go in the matter of amalgamation of those cases as it would not only prejudice the case of the prosecution, rather it can also cause prejudice to some of the accused who are not the petitioners here. 16. Learned counsel further submits that though in all the aforesaid cases, referred to above, accused persons have been alleged to have misappropriated Government money drawn from single treasury but at the same time, they have also been alleged to have committed offence under Section 13( 1)( d)( e) read with Section 13(2) of the Prevention of Corruption Act and hence, accusation put forth against the accused persons, under that situation, cannot be said to have been committed in the same transaction and as such the question of amalgamation of the cases at this stage does not arise. 17. 17. Learned counsel further submits that so far as the prayer made in course of argument relating to direction to court below to pass order in terms of Section 427 of the Code of Criminal Procedure is concerned, it is premature as it would be the trial court or the appellate court who would be taking care of that' provision, if the accused persons do fall within the purview of that provision and therefore, at this stage, it would not be proper on the part of this Court exercising extraordinary power under the Constitution of India to direct the court below for resorting to the provision under Section 427 of the Code of Criminal Procedure. 18. Learned counsel in this respect referred to a decision rendered in the case d M.R. Kudva vs. State of Andhra Pradesh [ (2007)2 SCC 772 ] [: 2007(2) PUR (SC)4] and also in the case of H.K. Dua vs. Chander Mohan [2008 Cri.L.J. 2301 (P&H)]. Thus, it was submitted that in view of the deciSion of the Hon'ble Supreme Court in a case of M.R. Kudva vs. State of Andhra Pradesh [ (2007)2 SCC 772 ] [ : 2007(2) PLJR (SC)4] the petitioners are not entitled to get any relief. 19. Having heard learned counsel appearing for the parties it would be pertinent to note that the provision as contained in Section 218 of the Code of Criminal Procedure stipulates that for every distinct offence of which any person is accused there shall be separate charge and every such charge shall be tried separately. However, the provisions as contained in Sections 219 to 221 and 223 of the Code of Criminal Procedure form exception to the general rule as has been enunciated in Section 218 of the Code of Criminal Procedure which seems to have been enacted with an intention to prevent embarrassment and difficulty to the accused in defending himself. However, under circumstances the accused can be tried in respect of more than one offences in the same trial but that is exception to the general rule. However, under circumstances the accused can be tried in respect of more than one offences in the same trial but that is exception to the general rule. Therefore, it would not be always incumbent on a court to hold joint trial, rather it is left With the discretion of the court so that the court may assess as to whether joinder of the charges would put the accused person in difficulty and embarrassment or not and if the joinder of the charges relegate the aforesaid persons to the aforesaid situation, the court would not resort to that provision and therefore, it is never mandatory for the court to resort to the provision as contained in Section 220 or 223 of the Code of Criminal Procedure. Coming to the fact of the case where it has been demonstrated that cases are at different stages where one case is at the fag end of its conclusion whereas in other case the evidence is still to be commenced, coupled with other situation that the accused persons are also facing charges under the Prevention of Corruption Act, any order regarding amalgamation of the trial would not be justified. However, coming to the other aspect of the matter, there has been no denial of the fact that several cases have been lodged against almost the same set of accused for misappropriation of the Government money for the period from 1990-91 to 1995-96 in which case witnesses also seems to be common but the trial seems to have been progressing with different pace. On one hand some of the cases have progressed considerably to the stage of its conclusion whereas in other cases either it is halfway through or at the beginning of the evidence, as a result of which if one case gets disposed of the other cases may take time say 2 to 4 years in its disposal and in that event the provision of Section 427 of the Code of Criminal Procedure would lose its relevance and, therefore, in order to have applicability of the provision as contained in Section 427 of the Code of Criminal Procedure all the cases need to be disposed of simultaneously but if is It not possible then at the earliest. But any direction in this regard by this Court in exercise of extraordinary power under the Constitution of India in view of the ratio laid down by the Hon'ble Supreme Court in the case of M.R. Kudva vs. State of Andhra Pradesh (supra) would be unwarranted. It would be fair on my part to point it out that the Hon'ble Supreme Court in the aforesaid case has held that High Court should not have exercised its inherent jurisdiction for giving benefit to the accused in terms of Section 427 of the Code of Criminal Procedure but that was held in view of the fact that no such relief in terms of Section 427 of the Code of Criminal Procedure was sought either before the trial court or the appellate court and only after dismissal of the Special Leave to Appeal, the High Court under its extraordinary power granted relief in terms of Section 427 of the Code of Criminal Procedure. But at the same time it has been held that the provision as contained in Section 427 of the Code of Criminal Procedure could not be applied in a separate and independent proceeding by the High Court and under this situation, it would not be proper on my part to give any direction in terms of provision as contained in Section 427 of the Code of Criminal Procedure but at the same time, I must say that provision as contained in Section 427 may not be allowed to be frustrated with by disposing of one case and taking time in disposing of other cases and therefore, the CBI is directed to increase the pace of the trial in which there has been less progress in the trial so that there may not be much gap in disposal of the cases. So far the matter relating to grant of provisional bail to the petitioners on the ground of defending his case pending before other forum is concerned, it is the discretion of the trial court and therefore, no direction needs to be passed in the matter. However, it is expected that the trial court would take into consideration such situation whenever such matter does arise for consideration. 20. With the aforesaid observation, all these four applications are dismissed.