TMI Blog2019 (7) TMI 1550X X X X Extracts X X X X X X X X Extracts X X X X ..... erative for the State to register a separate FIR if the complainant discloses commission of a cognizable offence. If in case the Hon'ble Court concludes that each deposit has to be treated as separate transaction, then how many such transactions can be amalgamated into one charge- sheet? - HELD THAT:- Section 234 of the Code of Criminal Procedure 1898 (similar to Section 219 of the Cr.P.C.) and lays down that 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. Offences are of the same kind, when they are punishable with the same amount of punishment under the same section of the IPC, or of any special or local laws - From Chapter XII of the Cr.P.C., it is evident that upon disclosure of information in relation to commission of a cognizable offence, the police is bound to register the FIR. The registration of FIR sets into motion the process of investigation. The same culminates into the filing of the final report by the police officer b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Vipin Sanghi And Mr. I.S. Mehta, JJ. Mr. N. Hariharan, (Amicus Curiae) with Mr. Aditya,Vaibhav Singh, Mr. Prateek Bhalla, Ms. Mallika Chaddha and Mr. Siddharth S. Yadav, Advocates Mr. Sanjay Jain, Sr. Adv with Mr. Kewal Singh, APP for State, Ms. Ruchi Jain, Sneh Suman and Shreya Sinha Adv. with SI Gulshan Yadav, ACP Virender Singh, EOW, Delhi Police For The Petitioner. Mr. Kulish Tanwar, Mr. Satish K Sansi, Adv for the Respondent. JUDGMENT Vipin Sanghi, 1. The present is a reference received from the Learned Additional District Sessions Judge- II, North- West District, Rohini Courts, Delhi, Dr. Kamini Lau under Section 395 (2) of the Code of Criminal Procedure, 1973 (Cr.P.C. for short). The questions of law framed by the Ld. ASJ for determination of this Court, read as follows: a. Whether in a case of inducement, allurement and cheating of large number of investors/ depositors in pursuance to a criminal conspiracy, each deposit by an investor constitutes a separate and individual transaction or all such transactions can be amalgamated and clubbed into a single FIR by showing one invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated into a single FIR bearing No. 89/2009. 3. During the hearing of regular bail application of the accused, the ld. ASJ was, prima facie, of the view that the aforesaid acts constituted separate and distinct offences, thereby necessitating the registration of separate FIR‟s. In her order dated 22.02.2014, she relied upon the decision in Narinderjit Singh Sahni Anr. Vs. Union of India Ors., (2002) 2 SCC 210 : AIR 2001 SC 3810 rendered by a 3-Judge Bench of the Supreme Court, wherein it was observed that each deposit agreement between a victim and accused shall have to be treated as a separate transaction. Reference has also been made by the learned ASJ to the decision of another three-Judge Bench in State of Punjab Anr. V. Rajesh Syal, AIR 2002 SC 3687, which reaffirms the view in Narinderjit Singh Sahni (supra). 4. She has also referred to Mohd. Shakeel vs. State, Crl. MC No. 3374/2008 decided by this Court on 17.12.2008 and Anil Kumar Jain vs. State (NCT) of Delhi, W.P.(CRL) No.1486/2010 decided by this Court on 10.02.2011. She has referred to the following decisions of other High Courts as well on the issue: i) Decision of the Jharkand Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecord. Accordingly, we heard the ld. Amicus Curiae as well as the learned senior counsel for the Delhi Police, Mr. Sanjay Jain on these issues. Orders were reserved on 10.08.2018. However, the same could not be pronounced earlier and, therefore, we listed the matter for recapitulation of arguments on 05.07.2019. We have heard the submissions of Mr. Sanjay Jain, Sr. Advocate and Mr. Hariharan, Sr.Advocate, the learned Amicus, and we proceed to answer the reference. No oral submission was advanced on behalf of the respondent. However, his stand is the same as that of the State/ Delhi Police. 10. Before proceeding further, we consider it appropriate to take note of the relevant statutory provisions contained in the Cr.P.C. These are Sections 218 to 220, which fall under Chapter XVII titled The Charge and sub- chapter B‟, which deals with Joinder of Charges . They read as follows: 218. Separate charges for distinct offences.-(1) 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts. (5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860 ). 11. On a reading of Section 218 of the Cr.P.C., the legislative mandate that emerges 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. This Section embodies the fundamental principle of Criminal Law that the accused person must have notice of the charge which he has to meet. The proviso to Sub-Section (1) seeks to carve out an exception to this general rule. This proviso states that the accused may make an application to the Magistrate that the Magistrate may try all or any number of charges framed against the person together, provided the Magistrate is of the opinion that such person is not likely to be prejudiced thereby. Thus, this exceptional course of action may be ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riation of property is also accused of committing - for the purpose of facilitating or concealing the commission of the offences aforesaid, the offence of falsification of accounts, he may be charged with and tried at one trial for every such offence. Thus, at the same trial, apart from the offence of criminal breach of trust or dishonest misappropriation of property, he may be tried for the offence of falsification of accounts for the purpose of facilitating or concealing the commission of the primary offence of criminal breach of trust, or dishonest misappropriation of property. 14. Question a of the reference reads as follows: a. Whether in a case of inducement, allurement and cheating of large number of investors/ depositors in pursuance to a criminal conspiracy, each deposit by an investor constitutes a separate and individual transaction or all such transactions can be amalgamated and clubbed into a single FIR by showing one investor as complainant and others as witnesses? 15. This question relates to the applicability of Section 220 of the Cr.P.C. to a case of inducement, allurement and cheating of a large number of investors/ depositors in a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... places reliance upon Ganesh Prasad vs. Emperor, AIR 1931 PC 52; State of A.P. v. Cheemalapati Ganeswara Rao, AIR 1963 SC 1850; and Mohd. Husain Umar Kochra v. K.S. Dalipsinghji and Another, (1969) 3 SCC 429. He further submits that every act of cheating a large number of investors is covered under the umbrella of a single transaction, arising out of a single conspiracy. He places strong reliance on S. Swamirathnam (supra) in support of this submission. Mr. Sanjay Jain submits that all such transactions can be amalgamated and clubbed into a single FIR by showing one investor as the complainant, and others as witnesses. 18. In order to answer question (a) of the present reference, it is vital to first understand the meaning of the expression same transaction . What is it that constitutes same transaction , and what is it that does not constitute same transaction i.e. it constitutes separate transactions . Pertinently, these expressions have not been defined in the Cr.P.C. However, the expression same transaction finds mention in Sections 220 and 223 of the Cr.P.C. 19. The meaning of the expression same transaction is no longer res- integra. 20. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision Bench went on to observe: 6. Let us then look at this case first from the commonsense point of view apart from any authority and let us assume for the purpose of argument that the prosecution story is true. What happened, it seems to me, must have been something like this. The accused conceived the idea of getting spurious ticket books printed, disposing of them as if they were genuine books and pocketing the proceeds. In accordance with that scheme accused No. 2 goes to the Caxton Press and orders 200 books. They are supplied, stamped with the Settlement stamp, or possibly a replica of it, and sold in the ordinary way either in the office or outside it. The books are presented by the purchasers at the water stations and accepted without suspicion. The accused have received the money and they keep it. Finding that the scheme has succeeded without any hitch, they decide to repeat the procedure. A further consignment of books is ordered and dealt with in the same way. With occasional intervals, as for instance when No. 2 was sick at the beginning of 1934, they went on ordering fresh consignments of books and disposing of them and pocketing the money for a period of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Emperor [(1910) 33 Mad. 502.] are very important in this connection. He says (page 507): As regards community of purpose I think it would be going too far to lay down that the mere existence of some general purpose or design such as making money at the expense of the public is sufficient to make all acts done with that object in view part of the same transaction. If that were so, the results would be startling; for instance, supposing it is alleged that A for the sake of gain has for the last ten years been committing a particular form of depredation on the public, viz., house-breaking and theft, in accordance with one consistent systematic plan, it is hardly conceivable that he could be tried at one trial for all the burglaries which he committed within the ten years. The purpose in view must be something particular and definite such as where a man with the object of misappropriating a particular sum of money or of cheating a particular individual of a certain amount falsifies bocks of account or forges a number of documents. In the present case not only is the common purpose alleged too general and vague but there cannot be said to be any continuity of action betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a as to the extent of their operations, other than the obvious and natural limitation that they would not be likely to continue once they were found out. 10. Now every case depends on its own facts and none of the authorities cited to us has any close bearing on the present case so far as the facts are concerned. The case of Choragudi Venkatadri v. Emperor [(1910) 33 Mad. 502.] is perhaps the nearest. If I may suggest an analogy it would be this. Suppose a man were to forge a railway season ticket and use it daily, it may be, for a period of three months without being detected. Suppose that having succeeded in doing that he were then to forge a new season ticket for the following quarter and were to continue to do that with impunity say for a period of two years. On the arguments which have been addressed to us on behalf of the Crown in this case it would be permissible to prosecute and charge such a man at one trial for forging eight season tickets and cheating the railway administration of the value of those tickets. But I think that would be obviously impossible. The forging of each particular ticket together with its consequences would be a single transaction. In the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the complaint asked for the money, the post-dated cheques issued by the company were dishonored, since the accounts were closed. It is in regard to the FIR 264/98 that the petitioner No.1 was arrested by the Crime Branch of Delhi Police on 26.6.1998. In all, about 250 FIRs were registered throughout the country against the accused. (Vide paragraph 14 of the judgment in Narinderjit Singh Sahni (supra)) 24. It was, inter alia, argued on behalf of the accused that the offence of conspiracy being in the nature of continuing offence, its inclusion would be sufficient to establish the connection of one offence with the other for the purpose of converting all the offences into a single offence, or in the alternative, into the kind of offence which could only have been committed in the course of the same transaction within the meaning of Section 220 of the Code. 25. It was argued that all the cases initiated against the petitioner were basically under section 420 read with section 120B IPC, and as such the question was whether there are numerous cases of cheating, or there is only one offence and one case. It was contended that many persons may have been induced, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legedly cheated a large number of investors. Several FIRs were registered against the accused under section 406, 420, 468, 471 and 120B IPC and section 7(2) of the Punjab Reforms Act, 1972. The High Court transferred the cases filed in different courts across the State of Punjab to one Court of the Special Judicial Magistrate. That decision of the High court was assailed before the Supreme Court. While defending the decision of the High Court, the accused placed reliance on section 218 of the Cr.P.C. Reliance was also placed on section 220 of the Cr.P.C., evidently, to claim that the series of acts are so connected together, as to form the same transaction and where more than one offence is committed, there could be a joint trial. The Supreme Court rejected the aforesaid submissions on behalf of the respondent/ accused. The Supreme Court, inter alia, observed: 6. ........ Even Section 220 does not help the respondent as that applies where any one series of acts are so connected together as to form the same transaction and where more than one offence is committed, there can be a joint trial. 7. In the present case, different people have alleged to have been defr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the investigation to be conducted at sites also being different - would, prima facie, lead to the conclusion that each and every incident of blast is an independent transaction, and not the same transaction. 32. In Lalu Prasad @ Lalu Prasad Yadav (supra), the allegation against the accused was that money was fraudulently withdrawn from the Treasuries of the State of Bihar on the basis of forged and fabricated allotment letters for making payment to non- existent suppliers of feed, fodder, medicines and other equipments. In pursuance of the criminal conspiracy, on the strength of fake allotment letters, payments to the tune of hundreds of crore were fraudulently made to the accused supplier, who never supplied the materials. The accused moved the Jharkand High Court to seek amalgamation of several distinct cases and for orders that the trial be proceeded as one case. The CBI opposed the petitions for amalgamation claiming that the cases were distinct from each other, involving separate transactions. On behalf of the petitioners, it was contended that the prosecution had alleged a common and single conspiracy and the modus operandi of the accused persons for withdrawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the amount said to have been withdrawn under fake allotment letters for the materials which have never been supplied by the suppliers are also different as from Chaibasa Treasury, a sum of ₹ 37.7 crores was withdrawn in 1991-92, from Dumka Treasury a sum of ₹ 3.79 crores was withdrawn from December, 1995 to January, 1996; from Doranda Treasury during the period 1990-91 to 1995-96 ₹ 185.62 crores. It may be possible that modus operandi of the people/accused might have been the same for withdrawing money from the Government Treasuries under fake allotment letters but the withdrawal was made apparently at different places and also at different point of time and all these factors are matter for consideration. It may also be clarified that only because the petitioners/accused are alleged to have committed offence for the same motive, that by itself will not prove that they had done in pursuance of a single conspiracy rather the withdrawal of such a huge amount from Government Treasury appears to be outcome of larger conspiracy. ...... ... ... x x x x x x x x x 22. There is no continuity of action in the cases at hand as there is no proximity of time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... several instances of cheating were not part of the same transaction. Reliance was placed on the case of Sharpurji Sorabji v. Emperor [ILR LX Bombay 148.] and on the case of Choragudi Venkatadari v. Emperor [ILR XXXIII Madras 502.] . These cases are not in point. In the Bombay case no charge of conspiracy had been framed and the decision in the Madras case was given before Section 120-B, was introduced into the Indian Penal Code. In the present case, the instances of cheating were in pursuance of the conspiracy and were therefore parts of the same transaction. 38. Thus, on the reading of S. Swamirathnam (supra), no doubt, the Supreme Court held that where there was a single conspiracy, spread over several years with the object to cheat members of the public, the fact that in the course of implementation of the conspiracy several incidents of cheating took place in pursuance thereof, the several acts of cheating constituted part of the same transaction. 39. However, as pointed out by Mr. Hariharan, the learned Amicus Curiae, firstly, this decision proceeds on the premise that in Shapurji Sorabji (supra), no charge of conspiracy had been framed. This premise does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cheating were not part of the same transaction In the pre sent case, the instances of cheating were in pursuance of the conspiracy and were therefore parts of the same transaction. 14. There the appellants were tried for the offence of conspiracy to cheat members of the public and for specific offences committed in pursuance of that conspiracy. The method adopted for cheating was to persuade such members of the public as could be persuaded to part with their money to purchase counterfeit ₹ 5 currency notes at half their face value and after having obtained their money to decamp with it. When a member of the public handed over his money, at a certain stage, one of the conspirators pretending to be a Police Officer would arrest the man who had the box containing their money and take him away with the box. The victim was thus deprived of his money without even having a single counterfeit currency note in his possession in exchange of the genuine money paid by him. It was found on evidence that all the appellants took part in the various acts committed pursuant to that conspiracy. In such a situation this Court held that there was only one conspiracy. The only princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause it has lengthened the case enormously, and we think that in the result to which we have come it plainly worked an injustice on one at least of the appellants before this court today. Therefore we quash the convictions on the first count. 16. This authority, though it may not be of any help in construing s. 239(d) of the Code of Criminal Procedure, points out the dangers of irregular exercise of discretion in the matter of framing a charge of conspiracy clubbed along with innumerable illegal acts against many persons. 17. This discussion leads us to the following legal position. Separate trial is the rule and joint trial is an exception. While s. 239 of the Code of Criminal Procedure allows a joint trial of persons and offences within defined limits, it is within the discretion of the Court to permit such a joint trial or not, having regard to the circumstances of each case. It would certainly be an irregular exercise of discretion if a Court allows an innumerable number of offences spread over a long period of time and committed by a, large number of persons under the protecting wing of all-embracing conspiracy, if each or some of the offences can legitimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences are undertaken, then they constitute the same transaction and are liable to be charged and tried at a single trial, has not been considered as the ratio of the said decision. The observation made by the Supreme Court in paragraph 14 of Natwarlal Sakarlal Mody (supra) renders the decision in S. Swamirathnam (supra) of no avail to Mr. Jain, since it cannot be regarded as a precedent on the issue under our consideration. Pertinently, the Supreme Court observed in Natwarlal Sakarlal Mody (supra) that it would tantamount to irregular exercise of discretion, if the Court were to allow an innumerable number of offences, spread over a long period of time and committed by a large number of persons, under the protective wing of all embracing conspiracy, to be put to joint trial, if different offences are committed, or some of the offences can legitimately and properly form a subject matter of separate trial. It further observed that a Court should not be overzealous to provide a cover of conspiracy for a number of offences, unless it is clearly satisfied on the material placed before it that there is evidence to prove prima facie that the persons who committed separate offences w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 235(1) it would have meant a transaction consisting either of a single act or of a series of connected acts. The expression same transaction occurring in clauses (a), (c) and (d) of s. 239 as well as that occurring in s. 235(1) ought to be given the same meaning according to the normal rule of construction of statutes. Looking at the matter in that way, it is pointless to inquire further whether the provisions of s. 239 are subject to those of s. 236(1). The provisions of sub-section (2) and (3) of s. 235 are enabling provisions and quite plainly can have no overriding effect. But it would be open to the court to resort to those provisions even in the case of a joint trial of several persons permissible under s. 239. (emphasis supplied) 44. Mr. Jain has emphasized the observation made in this decision that if several acts committed by a person show unity of purpose or design, that would be a strong circumstance to indicate that those acts form part of the same transaction. This observation, firstly, cannot be read as a Statute. Secondly, this observation cannot be understood to mean that in every case where there is unity of purpose or design, the acts would constitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 5 currency notes at half their face value and after having obtained their money to decamp with it. When a member of the public handed over his money, at a certain stage, one of the conspirators pretending to be a police officer would arrest the man who had the box containing their money and take him away with the box. The victim was thus deprived of his money without even having a single counterfeit currency note in his possession in exchange of the genuine money paid by him. We have scrutinised with care the judgments of the Sessions Judge and the learned Judge of the High Court and find that they were amply justified, having regard to the state of the evidence on the record, in coming to the conclusion that the case of the prosecution concerning the existence of the conspiracy as charged to cheat the members of the public, had been proved. We are unable to find any special circumstance, arising from the evidence on the record, which would justify our interference with the finding of fact arrived at by the courts below. Indeed, the evidence is overwhelming and convincing to prove the case of the prosecution that there had been a conspiracy in the relevant years to cheat the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was that the holding of separate trials in respect of separate charges framed relating to cheating - which stem out of the same conspiracy, would tantamount to double jeopardy. This submission of the accused was rejected by the Supreme Court. After referring to several decisions rendered by it earlier, it held that the substantive offence was that of defalcation. Conspiracy was an allied offence to the said substantive offence. In paragraph 38 of its decision, the Supreme Court observed: 38. Section 218 deals with separate charges for distinct offences. Section 219 quoted above, provides that three offences of the same kind can be clubbed in one trial committed within one year. Section 220 speaks of trial for more than one offence if it is the same transaction. In the instant case it cannot be said that defalcation is same transaction as the transactions are in different treasuries for different years, different amounts, different allotment letters, supply orders and suppliers. Thus the provision of Section 221 is not attracted in the instant case. There are different sets of accused persons in different cases with respect to defalcation. (emphasis supplied) 47. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) was relied upon on behalf of the respondent accused. The Supreme Court rejected the said reliance by observing that in S. Swamirathnam (supra) 44. ... ... ... this Court did not consider various provisions and question of double jeopardy did not arise for consideration. It was held in the facts that there was no prejudice to the accused persons. There was no misjoinder of the charges. On facts the case has no application and cannot be said to be an authority on Article 20 of the Constitution and Section 300 CrPC. 49. The Supreme Court in paragraph 50 observed as under: 50. The modus operandi being the same would not make it a single offence when the offences are separate. Commission of offence pursuant to a conspiracy has to be punished. If conspiracy is furthered into several distinct offences there have to be separate trials. There may be a situation where in furtherance of general conspiracy, offences take place in various parts of India and several persons are killed at different times. Each trial has to be separately held and the accused to be punished separately for the offence committed in furtherance of conspiracy. In case there is only one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the decision in S. Swamirathnam (supra) cannot be considered to be binding precedent on the issue under consideration. However, even if the same were to be treated as a binding precedent, clearly, the ratio of that decision goes contrary to several subsequent decisions of the Supreme Court itself, including in Natwarlal Sakarlal Mody (supra), Narinderjit Singh Sahni (supra), Rajesh Syal (supra), Lalu Prasad Vs. State through CBI (A.H.D.) Ranchi, Jharkhand, (supra) and State of Jharkhand (supra). Pertinently, Natwarlal Sakarlal Mody (supra), Narinderjit Singh Sahni (supra), Rajesh Syal (supra) and Lalu Prasad Vs. State through CBI (A.H.D.) Ranchi, Jharkhand, (supra) are all decisions of three learned Judges, as S. Swamirathnam (supra). In this situation, as to what should be the approach of this Court, and which view the Court should follow was considered by a learned Single Judge of this Court (Late Valmiki J. Mehta, J.) in Simplex Waterpipes India Limited Vs. Union of India, ILR (2010) II Delhi 699. The learned Judge cited Smt. Gopa Manish Bora Vs. Union of India, ILR (2009) 4 Del 61, decided by a Division Bench of this Court, wherein the Division Bench observed as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Superior Court are earlier later is a consideration which appears to me as hardly relevant. 21. The Allahabad High Court in Ganga Saran (supra) agreed with the view taken by the Full Bench of Punjab Haryana High Court in Indo Swiss Time Limited (supra) that when there is a conflict between two decisions of equal Benches, which cannot be reconciled, the courts must follow the judgment which appears to them to state the law accurately and elaborately. 22. A Division Bench of this court in Virender Kumar (a), Bittoo v. State, 59 (1995) DLT 341 (DB) also considered the question of conflict of judgments of different Benches of the Supreme Court of coequal strength. The Division Bench noted with approval the decision of the Full Bench of the Allahabad High Court in the case of Ganga Saran (supra) as having been laid down that if there is a conflict between two decisions of equal Benches of the Supreme Court, which cannot possibly be reconciled, the courts must follow the judgment which appears to them to state the law accurately and elaborately and particularly so when the later decision of the Supreme Court did not notice the earlier decision. (em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Mr. Jain is equally misplaced. 54. Mr. Jain has particularly placed reliance on Mohd. Husain Umar Kochra (supra). This decision, in our view, is of no avail since the Supreme Court was not concerned with the aspect of joinder of charges, or the joinder of accused persons in the same trial. The Supreme Court framed the questions considered by it in the said decision, which read as follows: (1) was the import of gold in contravention of Section (1) of the Foreign Exchange Regulation Act, 1947 punishable under Section 167(81) of the Sea Customs Act, 1878; (2) did the prosecution establish the general conspiracy laid in Charge 1; (3) did the learned Magistrate wrongly allow a claim of privilege in respect of the disclosure of certain addresses and cables and if so, with what effect; (4) did he wrongly refuse to issue commission for the examination of Pedro Fernandez and (5) did he wrongly refuse to recall PW 50 Ali for cross- examination? 55. Mr. Jain has also placed reliance on paragraph 15 of this decision. The same reads as follows: 15. As to the second question the contention was that the evidence disclosed a num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision is absolutely of no avail in the present context. 57. The reference order notices the decision of the Supreme Court in T. T. Antony (supra) and Amitbhai Anilchandra Shah (supra). These decisions are distinguishable, since the issue involved in this case was registration of two FIRs from the same cause of action. In Amitbhai Anilchandra Shah (supra), the Supreme Court referred to its decision in C. Muniappan v. State of T.N., (2010) 9 SCC 567, which explains the consequence test i.e. if an offence which forms part of the second FIR arises as a consequence of the first FIR, then the offences covered by both the FIRs are the same and, accordingly, it will be impermissible in law to register the second FIR. The same shall form part of the first FIR itself. In the present context, it cannot be said that the cheating of the successive complainants/ victims undertaken under the same conspiracy is a consequence of the offence alleged in the complaint- on the basis of which, the sole FIR was registered. It was open to the accused not to proceed to commit the subsequent offence(s), even after committing the offence of hatching a conspiracy to cheat the people and even afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60. The practice followed by the Delhi Police/ State of registering a single FIR on the basis of the complaint of one of the complainants/ victims, and of treating the other complainants/ victims merely as witnesses, even otherwise, raises very serious issues with regard to deprivation of rights of such complainants/ victims to pursue their complaints, and to ensure that the culprits are brought to justice. Firstly, the other complainants/ victims cannot be merely cited as witnesses in respect of the complaint of one of the victims on the basis of which the FIR is registered. They may not be witnesses in respect of the transaction forming the basis of the registration of the case. In a situation where hundreds of persons claim that they have been cheated by the same accused at different locations and at different points of time by adoption of the same modus operandi, it is unthinkable and unlikely that all the complainants/ victims - who are cited as witnesses, would be witnesses to the single transaction in relation to which FIR is registered. They may, at the most, be witnesses only to establish the conspiracy - which is an allied offence, but unless there is a charge framed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of a cognizable offence under Section 154 Cr. P.C. should lead to investigation on the information disclosed relating to commission of cognizable offences and, eventually, to the filing of a final report, on completion of investigation, under Section 173 Cr.P.C. Thus, in respect of each FIR, the Investigating Authority is obliged to file a separate final report. The Investigating Authority may furnish a further report or reports in terms under Section 173(8) Cr.P.C. However, in respect of each FIR, a separate final report under Section 173 would, necessarily, be required to be submitted. He submits that at the stage of registration of FIR and its investigation, Section 219 does not come into play. 65. Mr. Hariharan submits that after completion of investigation and after filing of the charge sheet in respect of each of the FIRs, three cases of the same kind in a particular year could be clubbed together and tried by virtue of Section 219 of the Cr.P.C. In this regard, he not only places reliance on the observations made by the Division Bench in Sharpurji Sorabji (supra), he also places reliance on Sheo Saran Lal v. Emperor, 5 Ind. Cas. 896. In this case, the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en read with Section 234. It has been argued, however, that Section 235 Clause (1) must be read with Section 234, and that the three offences mentioned in the latter section must be deemed to include all the offences committed in three similar transactions such as contemplated by Section 235 Clause (1); in other words, if an accused person goes through three similar transactions within the period of twelve months, committing in each transaction the same series of offences, he can be tried at one and the same trial, on account of all offences committed in the course of the three transactions, even if they total more than three. I am of opinion that this would be too great an extension of the exception mentioned in Section 234. A point connected with these sections came before the Bombay High Court in the case of Bal Gangadhar Tilak 33 B. 221 : 10 Bom. L.R. 973 : 9 Cr. L.J. 226 : 4 M.L.T. 45 : 2 Ind. Cas. 277. The judgment in that case makes no reference to whatever Clause (1), Section 235. Clause (2) of that section and Sections 237 and 239 were considered, no doubt, but the present point was not before that Court and, in my opinion, Clause (1), Section 235 and Section 234 must be m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before the High Court. One of the issues framed by the Court for its determination was whether the learned Additional Sessions Judge had erred while holding that the issuance of every licence was a separate offence, and by virtue of Section 219 of Cr.P.C., separate report under Section 173 of Cr.P.C. are required to be submitted. 73. The aforesaid issue was answered by the learned Single Judge as follows: 11. It is apposite to point out here that as per allegations, the petitioner alongwith others issued 177 driving licenses on one and the same day before he relinquished the charge in consequence of his transfer. The expression used in the language of Section 219 of Cr.P.C. is whether in respect of the same person or not . Here in this case, the licenses have been issued to different persons. Therefore, all the applicants fall within the expression of whether in respect of the same or not . As per this Section if a person is accused of more offences than one of the same kind committed within the space of twelve months may be charged with and tried at one trial for, any number of them not exceeding three. The reasonable interpretation which can be put on this e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). 76. From Chapter XII of the Cr.P.C., it is evident that upon disclosure of information in relation to commission of a cognizable offence, the police is bound to register the FIR. The registration of FIR sets into motion the process of investigation. The same culminates into the filing of the final report by the police officer before the Magistrate. Thus, in respect of every FIR, there would be a separate final report and, there could be, further report(s) in terms of Section 173(8). 77. Thus, the observations made by the learned Single Judge in Chaman Lal Sankhla (supra), though generally correct, do not appear to be correct in so far as it purports to convey that the report under Section 173 Cr.P.C. could comprise of up to three offences covered by the different FIRs. In fact, in our view, the final report under Section 173 Cr.P.C. would be required to be filed in respect of each FIR separately, and Section 219 would come into play only at the stage of the framing of the charge. It is quite possible that the final report in respect of one, or the other, of the multiple FIRs (in relation to the commission of the offence of the same kind), may be a closure repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FIR with maximum punishment of seven years? 82. In our view, the aforesaid question does not survive in view of the answer to question (a) and (b). It would be for the Trial Court to consider the sentence to which the convict may be subjected as per law, keeping in view the well settled principles of sentencing. In this regard, we may only refer to Section 31 of the Cr.P.C. which, inter alia, provides that when a person is convicted at one trial of two or more offences, the Court, may subject to the provisions of Section 71 IPC, sentence him for such offences to the several punishments prescribed therefor which such Court is competent to inflict. It further provides that such punishments, which consist of imprisonment, would commence one after the expiration of the other, unless the Court directs that such punishments shall run concurrently. The limitation on the quantum of sentence is prescribed by sub Section 2 of Section 31 of the Cr.P.C., but the same would apply in respect of convictions at one trial of two or more offences. However, where the trials are multiple, which result into multiple convictions, the proviso to Section 31(2) would have no application. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
