TMI Blog2016 (2) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... . The only purpose for impersonation and using of forged documents could be to provide a safe cover for A.K. Srivastava and Chandni Srivastava in accepting bribe money. Thus, the modus operandi appears to have been decided between four of the accused persons including the petitioner, rendering the two offences in two charge sheets being part of the same transaction. It matters not if respondent Nos. 5, 6 7 were not involved in opening of the bank locker by impersonation and using fake documents but one cannot lose sight of the fact that the account and the locker were opened for the purposes of depositing gold bars which were purchased out of the bribe money, allegedly given by the respondent Nos. 5, 6 7. Thus even if the respondent Nos. 5, 6 7 have not played any active role in opening of the bank account and the locker, nonetheless the offence would form part of the same transaction for which four of the accused persons including the petitioner ought to be tried in one trial and not in two different trials - If two trials are held, it would only cause miscarriage of justice. Respondent Nos. 5, 6 7, it is made clear, would not lose on any count as they would be tried wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avours for Bhatia group of companies, obtained huge sum of money as illegal gratification on behalf of A.K. Srivastava from G.S. Bhatia and under instructions from A.K. Srivastava, converted the illegal gratification into gold for delivering it to him. Gold was purchased from Triputi Jewellers, Noida for the aforesaid purpose. When the jeweller informed Mr.B.L. Bajaj for delivery of gold at his residence, he was instructed that Smt. Anita Bajaj, his wife would collect it from Triputi Jewellers. Thus, as per the instructions of her husband (B.L. Bajaj), Smt. Anita Bajaj collected three gold bricks from Triputi Jewellers on 24.02.2011 and brought it home. A.K. Srivastava and B.L. Bajaj had decided to deposit the gold, so purchased through their wives (Smt. Chandni Srivastava wife of A.K. Srivastava and Smt. Anita Bajaj, wife of Sh.B.L. Bajaj) in the lockers maintained at Bank of Maharashtra, Shahjanpur road or Bank of India, Mayur Vihar, Phase-I, Delhi on 25.02.2011. 5. On the aforesaid information, FIR No. RC/AC-1/2011/A0001 was registered on 25.02.2011. 6. After the registration of the aforesaid case, a trap was laid at Bank of Maharashtra, UPSC, Shahjanpur road, New Delhi. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (petitioner) vide charge sheet No. 4/2011 which was also submitted on the same date. The contents of charge sheet No. 4/2011 referred to above, reveal that materials were available for trying A.K. Srivastava, B.L. Bajaj, Chandni Srivastava and Anita Bajaj for commission of offence under Sections 419/466/471 and 474 of the IPC. 12. Thus it was submitted on behalf of the petitioner that after the registration of the FIR No. RC/AC-1/2011/A0001, a trap was laid where Chandni Srivastava (petitioner) was found to be operating the locker which stood in the name of Anita Bajaj and on opening of the locker, gold bars and other gold jewellery which were unaccounted for, was recovered. The trap was thus part of the investigation of the same FIR which was lodged on source information that the bribe money which was collected by Mr.B.L. Bajaj on behalf of Mr.A.K. Srivastava was advisedly converted into gold bars, which were purchased by co accused Anita Bajaj from a jewellery shop in Noida and then Anita Bajaj and Chandni Srivastava, both, went to the bank for depositing the same in the locker. It was submitted that though CBI filed two charge sheets namely charge sheet No. 3/2011 under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejudice to them. 15. The learned Court below, after discussing the facts of the case and the two charge sheets, held that the accused persons who are not common in both the charge sheets, would be prejudiced in case of a joint trial as they would lose the right of appeal before the Sessions Judge as the offence for which they have been charge sheeted would be tried by a Court of Magistrate whereas for P.C. Act, the trial would be held by the Special Court. 16. In order to appreciate the contention of the parties, it would be first necessary to refer to the provisions of Sections 218 to 223 of the Code of Criminal Procedure. 17. Section 218 of Cr.P.C. provides that for every distinct offence, there would be a separate charge and every such charge shall be tried separately unless the accused persons, by an application in writing so desire and the Magistrate is of the opinion that such person is not likely to be prejudiced thereby, and in that event, the Magistrate may try together all or any number of charges framed against such persons. 18. To such rule of separate charge and a separate trial for each distinct offence, certain exceptions have been laid down in Sections 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 (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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e trap in the bank was laid on the same day of the registration of the FIR; (iii) Four of the accused persons are common in both the charge sheets; (iv) Majority of the documents and witnesses are common in both the charge sheets. 21. Thus, if two trial are conducted with respect to the aforesaid two charge sheets, it might lead to conflicting judgments. There would be another danger of the evidence and material in one case being made known to the witnesses and accused in the other case, incurring the risk of miscarriage of justice. The respondent Nos. 5, 6 7, though, are not chargesheeted in charge sheet No. 4/2011, they would definitely not be prejudiced on any score except for the fact that they, if convicted, would not be able to file an appeal before the Sessions Court. Their right to appeal, though, would not in any condition be curtailed or truncated, as against the judgment of conviction, they can always approach the superior Court for their remedies. In any view of the matter, there is no provision of second appeal in any criminal case. Thus it matters not even if respondent Nos. 5, 6 7 are left with no option to file an appeal, in case of conviction, before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tried at one trial, if they can be held to be in one series of acts, so as to form the same transaction. The expression same transaction from its very nature is incapable of an exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense and the ordinary use of language must decide whether on the facts of a particular case, it can be held to be in one transaction. It is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. But the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the factors for deciding whether certain acts form parts of the same transaction or not. Therefore, a series of acts whether are so connected together as to form the same transaction is purely a question of fact to be decided on the aforesaid criteria . 25. The broad test, therefore, for ascertaining whether offences charged form part of the same transaction is whether the other set of offences, even though distinct and separate, have been committe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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