Saurabh Jain vs Central Bureau Of Investigation ...
2015 Latest Caselaw 1115 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 3.7.2015
 
Delivered on 10.7.2015
 

 
AFR
 
Court No. - 42
 

 
Case :- APPLICATION U/S 482 No. - 50688 of 2014
 
Applicant :- Saurabh Jain
 
Opposite Party :- Central Bureau Of Investigation And Another
 
Counsel for Applicant :- Ram Milan Mishra
 
Counsel for Opposite Party :- Sri Anurag Khanna
 

 

 
Hon'ble Amreshwar Pratap Sahi,J.

This application under Section 482 Cr.P.C. has been filed by one of the co-accused in Special Case No.3 of 2012 and Special Case No.4 of 2012 as well as Special Case No.4 of 2013 contending, that since all the three cases arise out of an allegation of a common conspiracy of a meeting in August, 2010 where the other co-accused had participated and several other persons who are all part of alleged larger conspiracy in the scam became beneficiaries and is now being tried as the NRHM scam should be tried simultaneously by jointly charging the accused and amalgamating them to avoid any prejudice and inconvenience.

The crux of the submissions of Sri Arvind Mohan, learned counsel for the applicant, is that all the cases since arise out of the same factual allegation of a common conspiracy and therefore the court below ought to have appreciated the issue of joinder of charges and for jointly charging all the co-accused and trying it together instead of proceeding separately in each case. His arguments extends over to the provisions of Sections 218 to 223 of the Code of Criminal Procedure to urge that the act of common conspiracy is one and there are no further facts of hatching of different conspiracies so as to indicate any separate conspiracy for each of the offences so committed so as to try them separately.

He therefore submits that the proviso to sub-section (1) of Section 218 read with Section 223 is clearly attracted in this case which has not been appreciated by the court below in correct perspective and the application has been rejected cursorily. He, therefore, contends that the accused/persons falling in the same category and being charged on the basis of same conspiracy have to be tried together and that these provisions of the Code of Criminal Procedure being mandatory would bar the trial court from proceeding with the trial separately.

He submits that it is a statutory requirement which has to be complied with and the trial court cannot bypass it in the manner it had been done through the impugned order Annexure 15 to the writ petition dated 23.8.2014.

The contention is that the principle of segregation of the act of conspiracy on the facts of this case does not apply even after the filing of the supplementary charge sheet in the case, inasmuch as, the supplementary charges also co-relate to the same conspiracy, even though more witnesses may have come forward and more evidence may have been collected in respect of the same transaction. The syphoning of public funds under this conspiracy cannot be splitted and therefore the trial court has committed a manifest error in proceeding separately, even though the entire genesis of the case is founded on a charge of common conspiracy.

He submits that the separate supply of different materials in all the cases does not change the nature of the allegations and the charges and even the sections being common, the evidence which has been indicated in the charge sheet can be appreciated jointly thereby reducing the inconvenience of the applicant as also preventing any prejudice being caused to the applicant in the trial by adopting such a procedure.

He submits that inasmuch as 59 dates were fixed within a very short span of time in all the three cases, as a result whereof, the learned counsel as well as the applicant has to unnecessarily attend dates in respect of the same charges which are common to all the cases and this prejudice arises out of inconvenience, harassment and non-compliance of the aforesaid procedure the protection whereof is required to be given to the applicant on the facts of the present case. He has cited the decision in the case of Vaghji Nanji Vs. State reported in 1955 Cr.L.J. Page 1520 and in the case of Sushil Kumar Gupta Vs. Joy Shankar Bhattacharjee reported in AIR 1971 Supreme Court 1543 to contend that the charge of conspiracy on the facts of the present case being common is clearly supported by the aforesaid decisions and there being no other facts in relation to the conspiracy even on the basis of the supplementary charges in the same transaction, there is no occasion to deny the proceedings of the trial on the strength of joint charges and jointly trying the charges in respect of all the accused.

The contention is that there are decisions which clearly support this proposition and the Apex Court as well as other courts of the country have taken this view, hence this Court should also issue necessary directions as prayed for to the trial court in the matter.

Controverting the aforesaid submissions on behalf of the applicant, Sri N.I. Jafari, learned counsel for the C.B.I. has urged that the entire material of trial in each of the cases is different inasmuch as the items of supply, the witnesses and the other evidence collected are all separate. So far as the issue of conspiracy is concerned, the allegation made in the complaint by the CBI, the same being referred to in the formal registration of the FIR and being mentioned in the charge sheet do indicate that a conspiracy was hatched in a meeting, but this is subject to evidence to find out as to whether the said conspiracy had led to the commission of the offence or not and which would be a separate issue. He further contends that the provisions of Sections 218 to 222 are all subject to Section 223 and sub-section (2) of Section 218 itself makes that clear. He further contends that all the ingredients of Section 223 have to be available in order to extend any such benefit under Section 218 or other sections as urged by the learned counsel for the applicant. He contends that this has not been established and the application which has been filed by the applicant does not elaborate or substantiate any prejudice being caused to the applicant on this count. He further submits that there is nothing on record to indicate that all the accused have joined together to support such consent or voluntary desire to be tried jointly.

Sri Jafari, learned counsel for the C.B.I., on the issue of the allegation of the same transaction of breach of trust has cited the Apex Court decision in the case of Ranchhod Lal Vs. State of Madhya Pradesh, AIR 1965 SC page 1248 to support separate trials and on the issue of joining of the other co-accused as per Section 223 has relied on the decision in the case of Lalu Prasad Vs. State, AIR 2003 SC Page 3838 to urge that the trials being founded on separate set of evidence and on separate allegations, there is no occasion to try them jointly or charge the accused jointly moreso when all the accused have not joined together nor does the application of the applicant indicate any legal or actual prejudice being caused that would enable the trial court to consider any such plea on behalf of the applicant.

Having considered the submissions raised and having perused the affidavit filed on record, the main thrust of the argument is, that in order to give effect to or execute the alleged offence the conspiracy in the meeting that was allegedly held prior to the issuance of the work orders and award of contracts, was the genesis of the conspiracy. All the letters which have resulted in these separate transactions are stated to be an outcome of that alleged common conspiracy. In my opinion, this issue as to whether the conspiracy was common or not is still subject to evidence. Which work order and in what manner was to be executed, that may co-relate to the conspiracy is itself yet a matter of evidence and merely because there was one meeting initially, it would be difficult to presume at this stage that there was a single conspiracy and no other transaction had taken place in furtherance thereof so as to presume to the contrary.

The second fact which is on record is that more than 37 witnesses have already been examined. This would now at this stage of interference clearly prejudice the trial and it would be not expedient to do so in the wake of the progress of the trial.

Thirdly, the applications which were moved by the applicant have not been able to establish the actual or legal prejudice except for the allegation of inconvenience by fixing of separate dates. Prejudice has to be established by clinching evidence on record to indicate that by continuing with the present procedure the applicant would be really prejudiced. This material, in my opinion, is not available in the contents of the application that was filed by the applicant before the trial court. Comparatively it is the prosecution which would be prejudiced after having led 37 witnesses in the trial in one of the cases. In my opinion, at this stage to interfere in the matter would be aiding the accused in forestalling the trial.

The question of harassment by fixing dates, therefore, will not amount to a prejudice but on this aspect it is open to the trial court to fix such convenient dates for which the applicant or his counsel can always make a prayer before the trial court.

Coming to the legal provisions that have been sought to be invoked, Section 223 envisages the fulfilment of all conditions mentioned therein. The conditions are not optional and are in addition to each other. Learned counsel has urged that all the accused should be presumed to have joined together in this prayer as is being urged by the applicant. The court is unable to appreciate this inasmuch as even though application was filed and the other co-accused were made an opposite party, there is nothing on record to indicate that the other accused had actively, and not passively, prayed for a trial through joinder of charges or joint trial. In the absence of any such material and any such petition having been filed on the record of this application to substantiate this allegation of the learned counsel for the applicant, the arguments of Sri Jafari for the CBI on the basis of the decision in the case of Lalu Prasad (supra) has to be accepted. It may be pertinent to point out that the Apex Court while considering this aspect in that case has dealt with the same after quoting the order of the High Court in paragraph 10 of the decision where it has stated clearly that consent has to be obtained of the other accused before the application for amalgamation is made. Even otherwise, it is for the trial court to consider as to whether it is expedient and in the interest of justice to hold a joint trial after jointly charging the other co-accused in the separate cases.

In my opinion, the trial court has considered these aspects and therefore in view of the reasons recorded hereinabove and for the reasons recorded by the trial court, I do not find any error in the holding of the separate trials in all the three cases at this stage and consequently the application is hereby rejected.

Order Date :- 10.7.2015

Anand Sri./-