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2021 DIGILAW 39 (UTT)

Amar Nath v. State Of Uttarakhand

2021-01-13

LOK PAL SINGH

body2021
JUDGMENT Lok Pal Singh, J. - Heard learned counsel for the parties. 2. The factual matrix of the present case is that the FIR No.158 of 2012, under Sections 420 and 467 of IPC was lodged on 24.07.2012 by one Karam Singh against Manoj Sharma and another. The investigation commenced on the said FIR, it would reveal that the complainant Karam Singh is allegedly involved in opening the bank account and also cheated some persons. The charge-sheet has already been filed against Karam Singh in continuation of the investigation against the revisionist Amar Narth, one Manoj Sharma and Karam Singh. Three charge-sheets were filed in the present FIR being 199A against Karam Singh, 199B against Amarnath and 199C against Manoj Sharma. Since the separate charge-sheets have been filed i.e. Criminal Case No.1316 of 2015, State vs. Karam Singh, Criminal Case No.763 of 2013, State vs. Manoj Sharma, and Criminal Case No.1662 of 2015, State vs. Amarnath, which are pending before the Additional Chief Judicial Magistrate, Khatima, District Udham Singh Nagar. 3. The revisionist has moved an application under Section 223(a) Cr.P.C. before the learned Magistrate stating therein that all the three cases which are pending against the accused persons, namely, Karam Singh, Amarnath & Manoj Sharma be tried together and all the files be consolidated by impugned order dated 07.12.2019. The application filed by the revisionist has been rejected. 4. Having heard learned counsel for the parties and perused the material available on record. 5. On perusal of the record, it would reveal that all the three criminal cases are pending against the accused persons, namely, Karam Singh, Amarnath & Manoj Sharma are in furtherance of criminality. In all three cases, the accused persons have become the prosecution witnesses. For the reason that in one case Amarnath and in other cases Karam Singh and Manoj Sharma, are the prosecution witness no.1. The said application has been rejected. 6. The learned counsel for the revisionist has placed reliance on Sections 222 and 223 of the Cr.P.C. which are extracted as under:- "222. When offence proved included in offence charged- (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence though he was not charged with it. When offence proved included in offence charged- (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. 223. What persons may be charged jointly. (4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied. 223. What persons may be charged jointly. The following persons may be charged and tried together, namely:- (a) persons accused of the same offence committed in the course same transaction; (b) person accused of an offence and persons accused of abetment of, or attempt to commit, such offence; (c) person 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 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 this 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." 7. Having heard learned counsel for the parties and on perusal of the material brought on record, three persons have been charged for the same offence. Having heard learned counsel for the parties and on perusal of the material brought on record, three persons have been charged for the same offence. The set of evidence is to be adduced in all the cases which are the same and identical. The witnesses, namely, Karam Singh, Amarnath & Manoj Sharma, they have to depose as P.W.1 in all the cases, respectively. The proviso attached to Section 223 specifically provides 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 (or Court of Session) may, if such persons by an application in writing, so desire, and if he (or it) is satisfied that such persons would not be prejudicially affected, thereby and it is expedient so to do, try all such persons together. 8. Having considered the provisions of Section 223, this Court is of the view that the charges, so framed against all the accused persons are same in nature. They have shown their desire that all the cases be consolidated and they may be tried together. The trial would not prejudicially affect each other. It is apt to note that the accused persons, namely, Karam Singh, Amarnath & Manoj Sharma are the witness against each other in all the three cases. They shall depose against each other. They shall be permitted to cross examine by each other and in case, the prosecution witnesses, namely, Karam Singh, Amarnath & Manoj Sharma turned hostile against each other. The Trial Court would be at liberty to declare them hostile witnesses and shall proceed with the trial. 9. Accordingly, the present revision is allowed. All the three cases are consolidated. The Trial Court is directed to record the evidence of the witnesses, namely, Karam Singh, Amarnath & Manoj Sharma as prosecution witness and they shall be cross examined by each other but in case, any of the witness for the reason that each of them are witness against each other turned hostile. In such contingency, the Trial Court shall declare the witnesses hostile and shall permit their cross examination again and shall proceed with the trial in accordance with law.