Mohd. Abad Ali & Anr. vs D.R.I.
2009 Latest Caselaw 5125 Del

              HIGH COURT OF DELHI: NEW DELHI
+      CRL. M.C. No. 305/2009
%


MOHD. ABAD ALI & ANR.                 ..... Petitioners
                  Through: Mr. Vijay Aggarwal and Mr.
                           Gurpreet Singh, Advs.

                         Versus

D.R.I.                                      .....Respondent
                         Through: Mr.S.C. Aggarwal, Adv. for
                                  respondent No.1.
                                  Mr. Harish Gulati and Mr.
                                  Anindya Malhotra, Advs. for
                                  CBI.

              Judgment reserved on: 4th December, 2009
              Judgment delivered on: 10th December, 2009

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

       1. Whether the Reporters of local papers    No
          may be allowed to see the judgment?

       2. To be referred to Reporter or not?       No

       3. Whether the judgment should be           No
          reported in the Digest?

A.K. PATHAK, J.

1. Officers of the Directorate of Revenue Intelligence

(DRI), conducted a raid on 20th December, 2004 in room

No. 403 of Hotel Diwan Palace, Paharganj, Delhi and

recovered 9196 counterfeit Indian currency notes of

Rs. 500/- in denomination worth Rs. 45.98 lakhs from two

suitcases. The said suitcases belonged to the petitioners

Narun Nahar Lovely and Rashid Ahmed. These fake

currency notes were to be delivered to co-accused Mohd.

Abad Ali and Imam Raza. Petitioners and co-accused were

arrested and after completion of investigation, a complaint

under Section 135 of the Customs Act was filed by DRI in

the court of learned Additional Chief Metropolitan

Magistrate.

2. Information was also sent to the Central Bureau of

Investigation (CBI). On the basis of this information CBI

registered an FIR under Section 489-B and 489-C read with

Section 120 B of the Indian Penal Code (for short

hereinafter referred to as "IPC") against the petitioners

and their co-accused. Petitioners were arrested in this

case also. Trial of this case is pending in the court of

Additional Sessions Judge.

3. Petitioners filed an application under Section 408

read with Section 220(3) of the Code of Criminal Code (for

short hereinafter referred to as "Cr.P.C.") before the

Sessions Judge for clubbing of both the abovementioned

two cases. This application was disposed of on 20th

December, 2006 and complaint case was transferred to

the court of learned Additional Sessions Judge where

Sessions trial was pending. However, no order of clubbing

of both the cases was passed.

4. Petitioners filed a petition under Section 482 Cr.P.C.

in this Court praying therein that both the cases be

clubbed and tried together. This petition was disposed of

by this Court on 28th March, 2007 with liberty to the

petitioners to approach the learned District & Sessions

Judge seeking relief of one trial of both the cases.

5. Petitioners filed an application under Section 220(3)

Cr.P.C. before the learned District & Session Judge praying

for a direction for holding a single trial of abovementioned

two cases, which was disposed of on 5th October, 2007

with liberty to the petitioners to approach the concerned

court seeking the relief of single trial of the said two

cases.

6. Petitioners then moved an application under Section

220(3) Cr.P.C. before the concerned Additional Sessions

Judge seeking a single trial for the complaint case filed by

the DRI as well as Sessions case arising out of the FIR

registered by the CBI. Learned Additional Sessions Judge

dismissed the said application vide impugned order dated

15th January, 2009. It was observed that all the witnesses

had already been examined in the complaint case; in the

Sessions case, only one or two witnesses remained to be

examined, therefore, clubbing of both these cases at this

stage would not only cause inconvenience to the

prosecution but also to the co-accused as serious

prejudice may be caused to them. Learned Additional

Sessions Judge was also of the view that trial of both the

cases was being conducted by the same court and

judgment was likely to be announced on one day,

therefore, there was no need to club both the cases which

were at different stages of trial. As per the learned

Additional Sessions Judge, Section 220 Cr.P.C. was only an

enabling provision, which permits the court to try more

than one offence in a single trial. Accordingly, court may

or may not try more than one offence in single trial.

7. Aggrieved by the order dated 15th January, 2009,

petitioners have approached this court by filing the

present petition under Section 482 Cr.P.C. praying therein

that a single trial of cases titled DRI vs. Narun Nahar

Lovely & Ors and State (CBI) vs. Narun Nahar Lovely & Ors

be ordered.

8. Learned counsel for the petitioners has vehemently

contended that sub-Section 3 of Section 220 Cr.P.C.

provides that if the acts alleged constitute an offence

falling within two or more separate definitions of any law

in force for the time being by which offences are defined

or punished, the person accused of them may be charged

with and tried at one trial for, each such offences.

According to learned counsel, both the cases arise from

the same incident i.e. recovery of fake currency notes

from the petitioner and the co-accused, thus, single trial of

both the cases be conducted so as to make petitioners

entitled to benefit of Section 71 IPC and Section 31 Cr.P.C.

In nutshell, the contention of learned counsel is that since

both the cases arise out of the same incident, the

complaint case under Section 135 of the Customs Act,

filed by DRI as well as the Sessions case under Section

489-B and 489-C filed by CBI be tried in single trial.

Reliance has been placed on Adnan Bilal Mulla vs.

State of Maharashtra reported in 2006 CRI L.J. 564

and Raja Dayanand vs. State reported in 2004 (3) JCC

1886.

9. As against this, learned counsel for the respondent

has contended that single trial of both the cases cannot be

ordered at this stage. In fact, complaint case is at the

stage of final arguments and all the witnesses had been

examined therein. So far as Session case is concerned,

the same is at the fag end and only one or two witnesses

remained to be examined. Purpose of single trial is that

the common witnesses are examined only once and read

in both the cases. It is further contended that prosecuting

agencies of both the cases are also different, therefore,

single trial cannot be ordered. Two more accused are

involved in both the cases besides the petitioners and

their consent had not been obtained and in absence of

their consent joint trial cannot be ordered. Reliance has

been placed on Lalu Prasad @ Lalu Prasad Yadav vs.

State through CBI (AHD), Ranchi, Jharkhand reported

in AIR 2003 SC 3838.

10. I have considered the rival contentions of both the

parties. In the facts of the present case, I do not find any

force in the contentions of learned counsel for the

petitioners. Admittedly, in trial of complaint case, filed by

the DRI evidence is over as all the witnesses had been

examined and case is at the stage of final arguments. No

witness remains to be examined in this case. So far as

case filed by the CBI is concerned, it is also at the fag end.

All the common witnesses had been examined. At this

stage it would not be practicable to order for single trial of

both the cases. Having slept over the issue for long and

although the trial is practically over, at this stage,

petitioner cannot claim single trial as a matter of right.

11. Accordingly, I am of the view that learned Additional

Sessions Judge has rightly declined the prayer for single

trial more so, when both the cases are at different stages

of trial. Judgments relied upon by the learned counsel for

the petitioners are on different facts and of no help to the

petitioners.

12. Besides this, I am of the view that the petitioners

cannot claim joint trial as a matter of right. The court may

or may not order for joint trial under Section 220(3) Cr.P.C.

The word used under this Section is "may" and not "shall".

It is the discretion of the court to club trial of the offences

under different laws, in the given facts and circumstances

of a case.

13. That apart, co-accused of the petitioners had not

approached for joint trial. In Lalu Prasad's case (supra)

Supreme Court held that trial court had also to consider

the stand of other co-accused who had not prayed for joint

trial inasmuch as consent of other accused who had not

applied for amalgamation had to be obtained.

14. In Mohinder Singh's case (supra), Supreme Court

held that Section 220 Cr.P.C. was an enabling provision

which permits the court to try more than one offence in

one trial. The court may or may not try the offence in one

trial.

15. In the light of the above discussions, I do not find any

justification to interfere with the order passed by the

learned Additional Sessions Judge.

16. Dismissed.

A.K. PATHAK, J.

December 10, 2009 ga