Shivam Awasthi vs State Of U.P. And Another
2022 Latest Caselaw 147 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
Court No. - 92
 

 
Case :- APPLICATION U/S 482 No. - 4530 of 2022
 

 
Applicant :- Shivam Awasthi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Irshad Husain,Atharva Dixit,Sr. Advocate
 
Counsel for Opposite Party :- G.A.,Anurag Shukla
 

 
Hon'ble Brij Raj Singh,J.

1. Heard Sri Manish Tiwari, learned Senior Advocate assisted by Sri Irshad Husain, learned Advocate, in support of this application, Sri Anurag Shukla, learned counsel for the opposite party No. 2 as well as Sri Aniruddha Sharma, learned A.G.A. for the State opposite parties and perused the record.

2. The present application preferred under Section 482 Cr.P.C., has been filed with a prayer to quash the impugned order dated 21.09.2021 and 23.09.2021 passed in Session Trial No. 81 of 2021 (State of Uttar Pradesh Vs. Kamlesh Pathak and Others), arising out of Case Crime No. 189 of 2020, under Sections 147, 148, 149, 302, 307, 506 I.P.C. and Section 7 of the Criminal Law Amendment Act, Police Station - Auraiya, District Auraiya, pending in the court of Additional District and Session Judge, Court No. 2, Auraiya, with a further prayer to stay the further proceedings of aforesaid case.

3. An F.I.R. in Case Crime No. 189 of 2020 alleging offences under Sections 147, 148, 149, 302, 307, 506 I.P.C. and Section 7 of the Criminal Law Amendment Act, was lodged at Police Station - Auraiya, District Auraiya on 15.03.2020 at 17:17 hours by Ashish Kumar. The said F.I.R. was lodged by Ashish Kumar, the brother of the deceased, making allegation that there was a dispute existing between Samajwadi Party M.L.C. Kamlesh Pathak and the first informant owing to possession over a temple situate in the locality of the first informant. On the alleged date the accused persons named in the first information report, arrived at the place of occurrence and started firing indiscriminately, as a result of which Manjul Chaubey, Km. Sudha Chaubey, died on spot.

4. Another F.I.R. in Case Crime No. 196 of 2020 was registered in same sequence at Police Station - Auraiya, District Auraiya, under Sections 147, 148, 149, 353, 307 I.P.C. and Section 7 of the Criminal Law Amendment Act and the said F.I.R. was lodged by Sub Inspector Neeraj Tripathi.

5. In both cases, the charge sheet were filed separately and the trial commenced. The A.D.G.C. (Criminal) moved an application on 04.09.2021 for consolidation of Sessions Trial No. 83 of 2021 with many other session trials, arising out of the same transaction. It is pertinent to mention that Session Trial No. 81 of 2021 pertains to Case Crime No. 189 of 2020, under Sections 147, 148, 149, 302, 307, 506 I.P.C. and Section 7 of the Criminal Law Amendment Act. The A.D.G.C. (Criminal) furnished a list of many trials along with Session Trial No. 83 of 2021.

6. The Additional District and Sessions Judge, Auraiya passed an order on 21.09.2021 and consolidated Session Trial Nos. 83, 84, 85, 86, 87, 89, 90 and 91 all of 2021. The observation was made that the aforesaid sessions trials pertain to recovery of arms but they are arising out of same transaction. However, Session Trial No. 82 of 2021 pertaining to Case Crime No. 196 registered for offences under Sections 147, 148, 149, 353, 307 I.P.C. and Section 7 of the Criminal Law Amendment Act, was directed to go on separately. The Session Court also noted the fact that counsel for defence had requested to consolidate Session trial No. 82 of 2021 along with Session Trial No. 83 of 2021, but no speaking order was passed on 21.09.2021.

7. An application was filed on behalf of Kamlesh Pathak and others, on 23.09.2021 before Additional Session Judge, Auraiya with a statement that the cause of action of Session Trial No. 82 of 2021 is arising out of the same transaction. It has been further submitted that the place of incident and timing is almost same, therefore, Case Crime No. 196 of 2020, may be consolidated with Case Crime No. 189 of 2020. On the said application, an order was passed by the court below and the court below recorded its finding that the order for consolidating the cases was passed on 21.09.2021 and there was no requirement to consolidate Session Trial No. 82 of 2021 in Case Crime No. 196 of 2020. The court has further observed that since the earlier order was passed, therefore, the court cannot re-enter. Being aggrieved with both these orders dated 21.09.2021 and 23.09.2021, the applicant has filed the present application under Section 482 Cr.P.C.

8. Counsel for the applicant has submitted that the transaction of Case Crime No. 196 of 2020 in Session Trial No. 82 of 2021 is arising out of same transaction and therefore both trials i.e. Session Trial No. 81 of 2021 and 82 of 2021, may be consolidated together. He has further invited the attention of the Court to the provisions of Section 220 Cr.P.C. He has further submitted that a bare perusal of contents of Case Crime No. 189 of 2020 indicates that the cause of action of Case Crime No. 196 of 2020 are having common ingredients, therefore, both session trials are liable to be consolidated together.

9. Per contra, counsel for the opposite party No. 2 has submitted that there is no infirmity in the order passed by the court below and the order dated 21.09.2021 and 21.09.2021 are justified. He further submitted that the applicant wants to delay the trial, that is why the application has been moved. He has further submitted that the cause of action of both F.I.Rs are different, therefore, the court below was right in rejecting the application for consolidating the trials.

10. Sub section (1) of Section 220 Cr.P.C. is relevant to mention here, which provides that if in one series of act so connected together as to form the same transaction more offences than one are committed by the same person, he may be permitted with and tried by one trial for every such offence. A bare perusal of the aforesaid provision would go on to reveal that when several offences are arising out of the same transaction, they would be tried together. Section 220 Cr.P.C. is an enabling provision. A bare perusal of the first information report in Case Crime No. 189 of 2020, under Sections 147, 148, 149, 302, 307, 506 I.P.C. and Section 7 of the Criminal Law Amendment Act, would go on to reveal that the said first information report was lodged on 15.03.2020 at 17:17 hours in respect of an occurrence alleged to have taken place at 15:20 hours. Similarly, the first information report of Case Crime No. 196 of 2020 would show that it was lodged in respect of an occurrence alleged to have taken place at 15:30 hours on 15.03.2020. A bare perusal of Case Crime No. 196 of 2020 would itself indicate that alleged offence of Case Crime No. 196 of 2020 was committed by the accused in continuation/furtherance of offence alleged to have been committed in Case Crime No. 189 of 2020.

11. Section 220 Cr.P.C. has been dealt with by Hon'ble Supreme Court in various judgments like (I) Mohan Baitha And Others Vs. State of Bihar and Another [(2001) 4 SCC 350], (II) In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act, 1881 [Suo Motu Writ Petition (Crl.) No. 2 of 2020, decided on 14.04.2021] and (III) Sunil Kumar @ Sudhir Kumar and Another Vs. The State of Uttar Pradesh [Criminal Appeal No. 526 of 2021 (Arising from SLP (Crl.) No. 3549 of 2018), decided on 25 May 2021].

12. The relevant portion of para -4 of Mohan Baitha's case is quoted below:

"4. ..........It may be noticed that under Section 220 of the Code of Criminal Procedure, offences more than one committed by the same persons could be 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."

13. Hon'ble Supreme Court has taken the similar view in the case of In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act, 1881 [Suo Motu Writ Petition (Crl.) No. 2 of 2020, decided on 14.04.2021], where the Hon'ble Court observed thus:

"15. ......But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same. But if several acts committed by a person show a unity of purpose or design that would be a strong circumstance to indicate that those acts form part of the same transaction. There is no ambiguity in Section 220 in accordance with which several cheques issued as a part of the same transaction can be the subject matter of one trial."

14. Hon'ble Supreme Court has again dealt with the matter in  Sunil Kumar @ Sudhir Kumar's case in the following terms:

"14. Faced with the position that the stated omissions will not, by themselves, provide a room for concurrent running of sentences, learned counsel for the appellants has endeavoured to invoke the ''single transaction' principle. In our view, the said principle is essentially referable to Section 220 CrPC, which provides that if more offences than one are committed in one series of acts so connected together as to form the same transaction, then the accused may be charged with and tried at one trial for every such offence. In a given case, after such trial for multiple offences, if the accused is convicted and awarded different punishments, concurrent running thereof may be provided depending on the facts and the relevant surrounding factors. We are afraid, the principle related with ''single transaction' cannot be imported for dealing with the question at hand."

15. After looking into the factual aspects of both case crimes, it is borne out from the record that there are common weapons used in the commission of two offences and thus the offence registered in Case Crime No. 196 of 2020 is forming the part of same transaction in furtherance of Case Crime No. 189 of 2020. From a perusal of the record, it appears that both crime numbers i.e. Case Crime No. 189 of 2020 and 196 of 2020, are emanating from 'same transaction' or 'event' or 'sequence of events'. In case these two trials are directed to be tried separately then it would result in adducing two sets of evidence during the course of trial which would result in harassing the parties. The two trials for the same transaction shall not serve the fruitful purpose.

16. In view of the aforesaid facts, the order dated 21.09.2021 is set aside partly to the extent to which the observation is made that Session Trial No. 82 of 2022, will be tried separately. The order dated 23.09.2021 passed in Session Trial No. 81 of 2021 is also set aside with a further direction that Session Trial No.82 of 2021 will be consolidated with Session Trial No. 81 of 2021 and both trials will be tried together. It is further directed that parties will appear before the court below on the next date fixed for trial and the trial court will conclude the trial within a period of six months from today and if it is required, day to day hearing will be adopted by the court below, without granting unnecessary adjournment to either of parties.

17. With the aforesaid observation, the instant application is allowed.

Order Date :- 2.3.2022

Arun K. Singh

(Brij Raj Singh, J.)