Imran @ Imu (Kishan Chandubhai ... vs State Of Gujarat
2023 Latest Caselaw 750 Guj

     R/SCR.A/3866/2021                             JUDGMENT DATED: 31/01/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 3866 of 2021


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE ILESH J. VORA

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1      Whether Reporters of Local Papers may be allowed
       to see the judgment ?

2      To be referred to the Reporter or not ?

3      Whether their Lordships wish to see the fair copy
       of the judgment ?

4      Whether this case involves a substantial question
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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IMRAN @ IMU (KISHAN CHANDUBHAI SOLANKI) S/O HANIFBHAI SAIYED
                          (KADRI)
                           Versus
                     STATE OF GUJARAT
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Appearance:
MR P B KHANDHERIA(5228) for the Applicant(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 2
MR JK SHAH APP for the Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA

                              Date : 31/01/2023

                             ORAL JUDGMENT

1. By way of this application, filed under Article 226 of the Constitution of India, read with Section 482 of the Code of Criminal

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Procedure, 1973, the applicants - original accused nos. 1 and 4, seek to challenge the order dated 06.02.2021, passed below Exh. 135 in Special (POCSO) Case No. 45 of 2019, by the learned 8th Additional Sessions Judge and Special Judge (POCSO) Amreli.

2. The application Exh. 135 moved by the applicants, inter-alia, stating that, each of the accused have committed an offence on different date and time and therefore, for every distinct offence, there shall be a separate charge and every such charge shall be tried separately. It is prayed that, considering the individual role of the accused and allegations made against them, it cannot be forming part of the same transaction and therefore, the investigating agency may be directed to file separate chargesheet and trial shall be tried separately.

3. Facts and circumstances giving rise to file present application are that,

(i) Pursuant to the FIR dated 02.07.2019, registered with Amreli City Police Station, the charesheet came to be filed against five accused for the offences punishable under Sections 376DA, 376(2L), 376(2J), 376(2N), 376(3), 377, 354AD, 341, 504, 506(2), 511, 34 and 114 of IPC, Section 4, 6, 8, 12, 14, 17, 18 of the Protection of Children from Sexual Offences Act, 2012 and Section 67, 67A and 67B of the Information Technology Act, 2000.

(ii) According to case of the prosecution, between 01.04.2019 to 27.06.2019, the victim aged about 14 years, was exploited by the accused and in furtherance of their common intention,

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on different dates and time and on different place, she had been raped by individual accused and was subjected to aggravated penetrative sexual assault and also subjected to unnatural offences. It is alleged that, due to commission of the alleged act of rape, she got pregnant, consequently, she was taken to Civil Hospital, Amreli, where, she lodged an FIR.

(iii) During the course of investigation, it further revealled that the accused no. 2 made video clip of the victim and accused have threatened her to for dire consequences if she disclosed the alleged act of intercourse. The accused are residence of same city and they are good friends and due to their association, with the common intention of each other, they have exploited the victim to satisfy their lust.

(iv) In the aforesaid facts (i) to (iii), the chargesheet came to be filed against the accused and same has been culminated into Sessions Case No. 45 of 2019 (Special POCSO Case).

(v) Trial Court vide Exh.34 framed the charges and recorded the evidence of victim PW-1 Exh. 42.

(vi) The accused herein filed an application Exh. 135, inter-alia, stating that, they have not committed the alleged offence of gang rape and the charge of gang rape framed is seriously prejudiced their right of fair trial. It is stated that, the offence alleged in the FIR, allegedly committed during the period of 3 months at the different places on different date and time

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and on every occasion, the accused never together remained present at the place of offence and therefore, the charge of gang rape is not sustainable in eye of law and therefore, considering Section 218 of the Cr.P.C., for every distinct offence of each accused, there shall be a separate chargesheet required to be filed and same is required to be tried by separate trial.

(vii) The learned trial Court vide its order dated 06.01.2021 rejected the application, observing that the accused though committed offence individually on different date and time, however, the offence alleged committed in the course of 'same transaction' and their acts would be treated as acts forming part of the same transaction.

4. Being aggrieved with the order, the accused have preferred the instant application.

5. This Court has heard learned counsel Mr. Prashant Khandheria, and Mr. J.K. Shah, learned State counsel.

6. Mr. P.B. Khandheria, learned advocate for the applicants would submit that it is settled law that, for every distinct offence, a separate charge is required to be framed. An accused cannot be convicted for the offence for which he has not been charged or has not committed the alleged offence. Referring to the facts of the FIR and deposition of the victim Exh. 42, he would urged that, in the month of April, 2019, the accused no. 1 Imran i.e. present applicant no. 1 took the

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victim at the Dam site of the village and committed rape upon her. In the month of May, 2019, the accused No. 2 Aayan, allegedly committed the offence of rape at the backyard of the residence of the victim and therefore, the accused nos. 3 and 4 have individually committed the act of rape on different dates and time. It is in this context, he submitted that, Section 223(D) of the Cr.P.C., is not attracted, as each incident of rape independent of the other incident and therefore, all the acts would not be treated to have formed part of the same transaction and in such circumstances, the learned trial Court committed any error of law by applying Section 223(D) of the Cr.P.C.

7. Mr. Khandheria, learned counsel would further urged that, the charge of gang rape against the applicant has been framed on the wrong premise that the applicants either abetted the co-accused or in furtherance of their common object they were present at the different places of the offence. It is urged that, during the period of 3 months, at different places on different dates and time, on every occasion one accused committed the offence and therefore, the trial Court should have framed the charge as per the individual role played by each accused and same shall be tried separately by filing separate chargesheet as the mis-joinder of charges framed against the accused necessarily vitiates the trial and it has caused the serious prejudice to the right of the accused.

8. Lastly learned counsel Mr. Khandheria, submitted that Section 218 is mandatory in nature and for every distinct offence, there should be a separate charge and same should be tried separately. The object of

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this section is that, the accused shall not embarrassed by having to meet charges in no way connected with one another, more particularly, considering the peculiar facts and circumstances of the present case, where there is mis-joinder of charges, the possibility cannot be ruled out that, Court will be unconsciously prejudiced by evidence, which may caused prejudice to the accused.

9. On the other hand, opposing the contention raised by learned counsel for the applicants, the learned State Counsel Mr. J.K. Shah contended that, the learned trial Court has rightly invoked Section 223D of the Cr.P.C, However, the offence of each accused committed on different date and place, but there was proximity of time and place and with common object and motive, the offence alleged committed by the accused and therefore, when there is continuity of action in respect of serious of acts, allegedly committed by the accused, legally it is not necessary to file separate chargesheet against each accused. He would further submit that, the offence alleged committed in the year 2019 and after deposition of the victim, the trial at the stage of further evidence of the prosecution. Thus, he would urged that, with a view to delay the trial proceedings, the application, by raising technical issue of mis- joinder of charges, claiming the separate trial of each accused has been filed. In such circumstances, no case is made out to exercise inherent powers of this Court and prays that the application may not be entertained.

10. Having regard to the facts and circumstances of the present case, the issue arise is whether the impugned order below Exh. 135 requires

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interference by this Court?

11. Before adverting to the issue raised by the counsel for the respective

parties, it is necessary to refer to the statutory provision with regard to charge. Chapter XVII (Sections 211 to 224) of the Code deal comprehensively with the charge in a criminal trial. Section 211- 214, deal with contents essentials, and particulars in a charge, while Section 216-217 empower the Court to alter the charge in certain circumstances. Section 218 lays down the basic rule that for every distinct offence, there shall be a separate charge and Section 219, 220 and 221 provide exceptional to the above rule. Section 223 deals with joint trial of more than one person.

12. The term 'charge' is defined in Section 2(b) of the Code, which says

that, the charge is an accusation made against a person in respect of an act committed or omitted in violation of penal law and primary object for framing the specific charge in a trial is to inform the accused, as to essential allegations he has to meet and it is the basic requirement of fair trial that, accused must be informed with clarity, certainty and accuracy of the charge against him.

13. The issue raised herein is that, five accused have committed an

offence on different dates and time and there was no any unity or purpose and therefore clubbing of all the five offences of rape is, affect affect the rights of the accused for fair trial.

14. Having regard to the facts and circumstances of the present case,

while rejecting the application, the trial Court has referred the

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further statement of the victim and statement of the victim recorded under Section 164 of the Code and considering the deposition, the contention of invocation of Sections of gang rape having been turned down by the Court. The trial is at crucial stage and therefore, discussion on the issue at this stage would affect the interest of both the parties. It needs to be noted that by exercising discretion power, the trial Court, taking rescue of Section 216, alter the charge and accordingly, as per role of each accused, the separate charge is ordered to be framed. In such circumstances, while framing the charge, it can be said that, the trial Court has not committed any error of law and has complied the mandate of Section 218 of Cr.P.C.

15. The main grievance raised by the accused that, the trial with the

other co-accused cannot proceed together, as, it is the case of the prosecution that, on different dates and time, the accused allegedly committed an offence and therefore, there was no continuity of the action and considering the facts and circumstances of the case, the offence committed cannot be said to be in the course of same transaction.

16. Section 223 of the Code, therefore, is relevant provision to be

considered and same may be extracted, in so far as, it is relevant for the present purposes hereinabove, thus:

"223. What persons may be charged jointly.

The following persons may be charged and tried together, namely:-

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(a) persons accused of the same offence committed in the course same transaction;

(b) person accused of an offence and persons accused of abetment 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 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 provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges: Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the Magistrate may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together.

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17. A perusal of the said provision shows that, the person accused of different offences committed in the course of same transaction, can be charged jointly. Clause (d) of Section 223 clearly envisages joint trial of the persons who have committed different offences but in the course of same transaction. It is in the discretion of the Court, which must be exercised judicially considering the facts and circumstances of each case.

18. In the facts of present case, the trial Court while considering the

provision of clause (d) of Section 223 of Code, thought it fit to proceed with joint trial of the accused, recorded that offences are same, arising out of serious of acts of the accused.

19. It is the contention of the accused that, their act cannot be fall within

the word 'same transaction'. The expression, 'same transaction' has been explained by the Apex Court in the leading case of State of A.P. Vs C.G. Rao, (AIR 1963 SC 1850) , in the following words :

"...What is meant by "same transaction" is not defined anywhere in the Code. Indeed, it would always be difficult to define precisely what the expression means. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which has embarked upon the difficult task of defining the expression. 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."

emphasis supplied

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20. In another case, Mohan Baitha (2001 Cri.L.J. 1738), the Apex Court has held ...... 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 particular case, it can be held to be in one transaction. It is not possible to enunciate any comprehensive formula as of universal application for the purpose of determining whether 2 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 from parts of the same transaction or not.

21. In light of the law laid down by the Apex Court, a series of acts in

the form of different offences whether are so connected together as to form the same transaction is purely a question of facts to be decided on the criteria laid down by the Apex Court. In the peculiar facts of the present case, this Court is of the considered opinion that the offences allegedly committed by the accused though on different dates and time, have same sort of proximity of place and motive of the accused. During the course of investigation, the evidence of CDR throw light on the association of the accused. The accused are residing in the same village and are close friends. As per the prosecution case, every occasion the place of commission of crime, either at the Dam site of the village or backyard of the house of victim. The duration of offence was about 3 months and during these

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3 months, she was allegedly raped repeatedly.

22. For the forgoing reasons and discussions made hereinabove, the trial

Court has properly exercised its judicial discretion while holding that the act of the accused forms part of the same transaction and considering the clause (d) of Section 223, the trial of the accused can be tried together. The trial Court by invoking Section 216 of Cr.P.C, framed separate charge as per the role of each accused and has taken care of the mandate of Section 218 of the Cr.P.C.

23. Thus, this Court find itself in agreement with the findings of the trial

Court and in view of the aforesaid, this Court finds no reason to interfere with the impugned order.

24. Accordingly, present application stands rejected. Nothing expressed

herein shall have any bearing on the merits of the case during trial.

(ILESH J. VORA,J) P.S. JOSHI/d-04/02