Gujarat High Court
Maheshwariben Kantilal Solanki vs State Of Gujarat on 28 March, 2023
Bench: Gita Gopi
R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 7732 of 2017
With
R/CRIMINAL MISC.APPLICATION NO. 7735 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
MAHESHWARIBEN KANTILAL SOLANKI
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MS. KRUTI M SHAH(2428) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 28/03/2023
COMMON ORAL JUDGMENT
1. The petition being Criminal Misc. Application
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No.7732 of 2017 is for quashing of F.I.R. being C.R. No.I-
30/2017 registered at Dabhoi Police Station, District
Vadodara (Rural) on 10.03.2017 for the offence under
sections 409, 420, 468, 471 and 120B of IPC, and petition
being Criminal Misc. Application No.7735 of 2017 is for
quashing of F.I.R. being C.R. No.I-05/2017 registered at
Chanod Police Station, District - Vadodara (Rural) on
10.03.2017 for the offence under sections 406, 409, 420
and 114 of IPC.
2. Both the petitions are preferred under Section
482 of the Code of Criminal Procedure, 1973, (for short
"the Cr.P.C.") by common petitioner, who is arraigned as
an accused in three FIRs i.e. the impugned FIRs and
F.I.R. being C.R. No.I-02/2017 registered at Chanod
Police Station, District - Vadodara (Rural) on 22.02.2017
for the offence under sections 406, 409, 420 and 114 of
IPC.
3. The petitioner is a Civil Engineer at Taluka
Panchayat, Dabhoi. She has been accused of the offence
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for sections as referred hereinabove in three of the FIRs
alleging the occurrence of offence between 01.04.2015 to
02.02.2017. The complainant of all the three FIRs is
Dinesh Manubhai Tadvi, who served for about 24 years as
Distribution Officer, Agriculture in Narmada District and
received promotion on 14.02.2017 as Taluka
Development Officer (for short "TDO") and on
17.02.2017, he took the charge at Dabhoi as TDO.
4. Advocate Ms. Kruti M.Shah referring to the
judgments of T.T. Antony Vs. State of Kerala, reported
in (2001) 6 SCC 181, and Amitbhai Anilchandra Shah
Vs. The Central Bureau of Investigation and Ors.,
reported in (2013) 6 SCC 384, stated that the contents
in FIRs are inter-connected and therefore there cannot be
multiple FIRs for the same offence. Ms. Shah stated that
the complainant is common in all three FIRs, who has
alleged of the offence, which is stated to have occurred
from 01.04.2015 to 02.02.2017 for the irregularities
found in construction of the toilets under government
scheme named as "Swachchh Bharat Mission Yojna" for
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the year 2015-16.
4.1 Advocate Ms. Shah stated that the irregularity,
which has been observed is under one scheme at Village
Chanod and Dabhoi and two of the FIRs of village
Chanod, Mandwa and Dharampuri. Prayer was thus made
to quash the impugned FIRs.
5. While learned APP, Mr. Pranav Trivedi, states
that all the FIRs are not in respect of the same incident,
but have occurred at different villages with different
conspirators and cannot be considered as have taken
place in the course of same transaction or same
occurrence. It is submitted by APP that all the FIRs in
truth and substance are different. Some instances in the
FIRs show larger conspiracy as compared to the other,
and submitted that 'test of sameness' and 'test of
consequences' applied would suggests that the charge-
sheets cannot be clubbed together.
6. In F.I.R. being C.R. No.I-02/2017, the accused
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are six in number, while the allegations are against Ex-
Sarpanch, Talati-cum-Mantri, Block Coordinator and two
Cluster Coordinators along with the present petitioner as
Civil Engineer of Taluka Panchayat, Dabhoi. The
complainant TDO had received an application on
03.02.2017 of Ahulkumar Rajubhai Machhi, resident of
Chanod village, Taluka - Dabhoi, District Vadodara,
alleging large scale corruption under Swachchh Bharat
Mission Yojna of 2015-16 in village Chanod, and it is
stated that H.K. Vyas, Deputy Shri District Gram
Development Agency, Vadodara was handed over the
inquiry, and on 08.02.2017, he visited village Chanod,
when he found that out of 222 sanctioned toilets only 29
were constructed. He found irregularities in the
statement listed as 'A', 'B', 'C', 'D', 'E', FIR is with the
allegation that all the accused misusing the position
under concert gave false certificate and has
misappropriated the government money of Rs.19,59,000/-
and has caused the offence of cheating and criminal
breach of trust.
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6.1 In F.I.R. being C.R. No.I-05/2017, the complaint
is against six accused as ex-sarpanch, block coordinator,
technical assistant, two Cluster coordinators and the
present applicant as civil engineer. The complainant TDO
had received an application on 03.02.2017 of Ahulkumar
Rajubhai Machhi, resident of Chanod village, Taluka -
Dabhoi, District Vadodara, who alleged large scale
corruption under Swachchh Bharat Mission Yojna of
2015-16. The District Development Officer (Revenue),
District Panchayat, Vadodara was handed the inquiry,
who visited Mandwa village on 08.02.2017 and had found
that out of 81 sanctioned toilets, only 20 were
constructed. No toilets of 61 beneficiaries were made,
while old toilets of 10 beneficiaries were shown as new
and construction work of 49 beneficiaries were not
completed and two toilets were not at all made. He saw
irregularities in total 61 beneficiaries. It is alleged that by
misusing their positions, had given false certificate and
misappropriated the government money of Rs.7,32,000/-;
thus committed the offence of cheating and criminal
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breach of trust.
6.2 The date of occurrence of offence in both these
FIRs is shown as between 01.04.2015 to 02.02.2017. The
sections invoked in both the FIRs of Chanod Police
Station is 406, 409, 420 and 114 of IPC. The date of
complaints being C.R. No.I-02/2017 is 22.02.2017 and
C.R. No.I-05/2017 is of 10.03.2017 at Chanod Police
Station for the offence committed in Chanod and Mandwa
village.
6.3 The petitioner has not challenged C.R. No.I-
02/2017, while has considered C.R. No.I-05/2017 of
Chanod Police Station and C.R. No.I-30/2017 as
subsequent FIR and has thus prayed for quashing the
same.
6.4 In F.I.R. being C.R. No.I-30/2017 registered at
Dabhoi Police Station for the allegation of Dharampuri
village, and village Kayawarohan the accused are nine in
number, wherein two are sarpanch, three accused are
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Talati-cum-mantri, present applicant and one another
accused as Civil Engineers, one coordinator and one as
cluster coordinator. The present petitioner is found
common in all the FIRs. While one Rajubhai Maganbhai
Parmar as Cluster Coordinator has also been arraigned in
two FIRs being C.R. No.I-02/2017 and C.R. No.I-05/2017
and one Mr. Manhar M.Vankar as Cluster Coordinator is
made accused in C.R. No.I-05/2017 and C.R. No.I-
30/2017; while other co-accused are different.
6.5 In C.R. No.I-30/2017, as per the complainant,
on 27.09.2016 and 18.11.2016, the Gujarat Takedari
Commission, Gandhinagar had received application from
Bharatbhai Bapalal Patel, Rajubhai Bhagubhai Bariya and
Mehulbhai Maheshbhai Patel of village Dharampuri,
Taluka Dabhoi, District Vadodara regarding corruption of
crore of rupees in context with the toilets. Shri S.K. Vyas,
officer of Gujarat Takedari Commission, Gandhinagar had
entrusted the investigation to District Development
Officer, Vadodara for the investigation by Deputy Shri
District Gram Development Agency, Vadodara, and the
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allegations are that in Dharampuri village, in the year
2015-16 and 2016-17, about 120 toilets were to be
constructed by the government, and 13 beneficiaries
were already paid the money under the scheme; in spite
of that, again aid was provided. Accused nos.1 to 10 by
misusing their status, in case where toilets of 7
beneficiaries were already constructed, again provided
the benefit. False documents were prepared for showing,
as new toilets for six beneficiaries already having old
toilets and thereby misappropriated the amount of
Rs.1,56,000/-, and used the same for their own personal
purpose, and, thus District Development Officer,
Vadodara had passed an order for filing a police
complaint. In the said FIR, the further allegations are also
made with regard to misappropriation in the same village
Dharampuri. The details regarding misappropriation of
money has been given in the FIR for the individual seven
beneficiaries, and it has been alleged that a total amount
of Rs.72,000/- has been misappropriated of six
beneficiaries.
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6.6 The FIR further alleges that, in Kayawarohan
Gram Panchayat, though the aid was provided, again the
money had been given to about 24 beneficiaries and
thereby has caused misappropriation of Rs.2,88,000/-,
and for about 13 beneficiaries, the old toilets were shown
as new, and false certificates were given on which
misappropriation and cheating of Rs.1,56,000/- has been
caused. It is alleged that in baseline survey for the year
2012, though the persons were not entitled for the
benefit, 23 beneficiaries were given the aid, and thereby
has caused loss to the government by misappropriation of
Rs.2,76,000/-. Further it is alleged that, by Voucher
No.362, on 13.10.2016, without any physical verification
or any certification, 79 beneficiaries were shown to have
received the amount of Rs.9,48,000/-, which were in fact
misappropriated by the accused.
6.7 So, for Kayawarohan Gram Panchayat, about 24
beneficiaries were given the benefit of aid twice, 13
beneficiaries were shown to have been issued false
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certificates as of new toilets; hence, for Kayawarohan
Gram Panchayat, total amount of Rs.16,68,000/- were
shown to be misappropriated by the alleged accused of
the F.I.R.
7. In the case of Amitbhai Anilchandra Shah
Vs. Central Bureau Of Investigation And Anr.,
reported in (2013) 6 SCC 348, 'consequence test', as
laid down in C. Muniappan & Ors. Vs. State of Tamil
Nadu, reported in (2010) 9 SCC 567 was approved,
where it was explained that if an offence forming part of
the second FIR arises as a consequence of the offence
alleged in the first FIR, then offences covered by both the
FIRs are the same and accordingly, the second FIR will
be impermissible in law, so as to explain, that the
offences covered in both the FIRs shall have to be treated
as a part of the first FIR. It was observed that, to
determine whether different offences ought to be treated
as part of the same transaction, the "consequence test"
laid down in C.Muniappan, (2010) 9 SCC 567, may be
taken aid of. The said test prescribes that if an offence
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forming part of the second FIR arises as a consequence of
the offence alleged in the first FIR then offences covered
by both the FIRs are the same and, accordingly, the
second FIR will be impermissible in law. In other words,
the offences covered in both the FIRs, shall have to be
treated as a part of the first FIR. Furthermore, merely
because two separate complaints had been lodged does
not mean that they could not be clubbed together and one
charge-sheet could not be filed.
7.1 In T.T. Antony Vs. State of Kerala, reported
in (2001) 6 SCC 181, the Hon'ble Supreme Court
observed that the first information in regard to the
commission of a cognizable offence satisfies the
requirements of the section; there can be no second FIR
and consequently there can be no fresh investigation on
receipt of every subsequent information in respect of the
same cognizable offence. Further it was observed that, on
receipt of information about a cognizable offence or an
incident giving rise to a cognizable offence or offences
and on entering the FIR in the station house diary, the
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officer in-charge of a police station has to investigate not
merely the cognizable offence reported in the FIR but
also other connected offences found to have been
committed in the course of the same transaction or the
same occurrence and file one or more reports as provided
in Section 173 of the Cr.P.C.
7.2 Here these three FIRs are of the offences
committed at different villages with different accused.
The money has been misappropriated under one scheme
but at different villages, where the beneficiaries are
different, and in C.R. No.I-30/2017, over and above the
case of cheating and criminal breach of trust, the
allegation is also of issuance of false certificate. The case
of Brijiwan Das Vs. Emperor, reported in 1932 Criminal
Law Journal 1931, was of the embezzlement with respect
to a sum of Rs.446-8-3 received by the accused in his
capacity as a servant and had misappropriated between
the dates 01.02.1928 and 26.09.1928. He was sentenced
to a day's imprisonment and a fine of Rs.600. In the
month of December of the earlier year the accused
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master through another servant instituted a fresh
complaint for the prosecution on three charges of
embezzling three sums of money on 21 st June, 2nd August
and 21st August, 1928. It was noticed that these dates fell
within the dates of the previous charge of 1 st February
and 26th September, but these items were not included in
the gross sum for which the accused was prosecuted,
charged and convicted at the former trial.
7.3 It was observed that there were divergence in
judicial opinion to the issue whether after a trial in
respect of a gross sum for which a breach of trust was
alleged to have been committed between two specified
dates, second trial in respect of an offence alleged to have
been committed on intermediate days but not included in
the gross sum is permissible or not. By referring to the
provisions of sections 233 and 222 of the earlier Criminal
Procedure Code it was held that the provision of section
233 is of a separate trial of every offence, are in no way
modified by the new provisions of section 222(2). It was
observed that section 222(2) is enabling provision for the
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Court to have a joint trial of what may apparently be
several offences of breach of trust. It was laid down that
the charge of a gross sum embezzled between two dates
is only one charge and there may be separate trial under
the provisions of section 233 of embezzlement of another
item not included in the gross sum for which an earlier
charge was framed under section 222(2). It was observed
that two of the offences could have been tried jointly with
the former offence for embezzling a gross sum, and there
was no reason why there could not be a separate trial
because section 235 is only permissive and permits the
trial of three offences of the same kind within a year by
one trial, but does not bar three separate trials for those
offences.
7.4 The Gwalior Bench in the case of Ramkrishna
Vs. State, reported in 1956 Madhya Bharat 194, held
that section 222(2) directs that all items or
misappropriation included in the gross sum need not be
specified but they can be grouped together into one lump
sum and that can be shown as the sum misappropriated.
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It was laid down that there is nothing in the sub-section
to show that all items misappropriated within the space of
one year must be included in the gross sum. Further
observing that sub-section indicates clearly that the
intention of the Legislature was to allow three lump sums
to be combined at one trial under section 234 of the Code
and if that be the intention of the Legislature, it would
not be correct to say that the gross sum must include all
the items of misappropriation made during the course of
one year, and, thus it was held that where, therefore, an
accused person was tried and convicted for
misappropriating a gross sum during a certain period, his
conviction is no bar to another trial in respect of other
sums of money alleged to have been misappropriated by
him during the said period.
7.5 In re. Osman Ali, Petitioner, reported in AIR
1959 Andhra Pradesh 520, the scope of section 222
was explained by observing that it is only an enabling
section and not a disabling one. It enables the
prosecution, when it considers taking such a course as
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appropriate, or convenient, or necessary, to put in a gross
sum representing the total amount misappropriated by
the accused, instead of framing a large number of
separate charges in respect of small sums of money
which go to make up the gross amount. To spell out from
such an enabling section, a disability on the part of the
prosecution to follow the procedure, which is enjoined by
the sections of the Code, such as 233, is wrong.
7.6 It was held that when the accused is alleged to
have committed distinct and different offences of criminal
misappropriation in respect of different individuals and in
relation to different sums of money and committed at
different places and times there is no law which can stand
in the way of the prosecution in respect of the subsequent
charges, going on simply because the earlier charges
happened to end in an acquittal.
7.7 In the case of State of Madhya Pradesh Vs.
Indrajeetsingh, reported in 1987 CRI. L.J. 348, it was
observed that when the accused is charged under section
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409 of Penal Code for misappropriation of various items
of money extending over a period of more than one year
the various items cannot be lumped together in the same
charge, in view of the provisions of the proviso to section
212(2) which are mandatory. Therefore, it was concluded
that the trial held in a manner not warranted by the
proviso is wholly bad, irrespective of the question
whether or not there was any actual prejudice to the
accused and consequent failure of justice. The
contravention of the proviso is not an irregularity but an
illegality which cannot be classed as curable under
section 464.
7.8 In the case of Ranchhod Lal Vs. State of
Madhya Pradesh, reported in AIR 1965 Supreme
Court 1248, the Hon'ble Supreme Court has laid down
that sub-section (2) of section 222 Cr.P.C. is an exception
to meet a certain contingency and is not the normal rule
with respect to framing of a charge in cases of criminal
breach of trust. The normal rule is that there should be a
charge for each distinct offence, as provided in section
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233 of the Code. Section 222 mentions, what the contents
of the charge should be. It is only when it may not be
possible to specify exactly particular items with respect to
which criminal breach of trust took place or the exact
date on which the individual items were misappropriated
or in some similar contingency, the Court is authorised to
lump up the various items, with respect to which criminal
breach of trust was committed and to mention the total
amount misappropriated within a year in the charge.
When so done, the charge is deemed to be the charge of
one offence. If several distinct items with respect to
which criminal breach of trust has been committed are
not so lumped together, no illegality is committed in the
trial with respect to each distinct offence of criminal
breach of trust with respect to an individual item, is the
correct mode of proceeding with the trial of an offence of
criminal breach of trust.
7.9 It was observed that section 234 is also an
enabling provision, and is an exception to section 233,
Cr.P.C. If each of the several offences is tried separately,
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there is nothing illegal about it. Where offences have
been committed in the course of the same transaction,
the separate trial of the accused for certain specific
offences is not illegal. Section 235 is an enabling section.
7.10 The decision of the Delhi High Court in the case
of The State Vs. Ram Kanwar, reported in 1984 Cr.
L.J. 958, was with the charge of Criminal breach of trust
or dishonest misappropriation. The accused was already
convicted for the breach of trust of four items. The
terminal dates of theses items were 06.03.1978 and
03.05.1978, and there were fresh charge for 8 items,
where the terminal dates were 23.05.1978 and
19.07.1978. It was held that by continuation of the
subsequent trial no injustice has been caused. Reference
was also made of section 300 of Cr.P.C., which initiates
the English rule of 'autrefois acquit' and 'autrerfois
convict' applicable to criminal trials, and was observed
that those were not applicable when recourse is had by
the prosecution to the exceptional rule contemplated by
section 212(2), when challan or charge-sheet was filed by
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the prosecution against the accused person in respect of
various items of misappropriation, defalcation, trial held,
resulting in conviction or acquittal, and subsequent
charge-sheet/challan was filed in respect of other items of
misappropriation occurring during the same period of two
terminal dates, or bringing the same year to which the
items of previous charge-sheet pertained. It was observed
that the charge framed in respect of items shall be
deemed to be the charge of one offence within the
meaning of section 219 Cr.P.C., provided that the time
intervening to the two terminal dates does not exceed one
year, and this provisions of law is enabling one for the
prosecution and cannot be converted into disabling one.
7.11 It was also observed by the Delhi High Court
that there would be no warrant for the prosecution that
merely because section 212(2) Cr.P.C. enables the
prosecution in cases of criminal breach of trust or
dishonest misappropriation of money, to satisfy only the
gross sum and the dates between which the same are
alleged to have been committed, without specifying the
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particular items or exact dates thereof, that only one
offence has arisen out of the different offence of
misappropriation, criminal breach of trust or defalcation,
and that must be regarded in one time. This provision of
law, as was observed, simply incorporates the deeming
provision whereby the charge framed thereunder shall be
deemed to be charge of one offence within the meaning of
section 219 Cr.P.C., and not that it is one offence.
7.12 In case of E.K. Thankappan Vs. Union of
India, reported in 1989 Cr. L.J. 2374, the Kerala High
Court, held that, when person charged with one or more
offences of criminal breach of trust or dishonest
misappropriation of property as provided in sub-section
(2) or in sub-section (1) of section 219, is accused of
committing for the purpose of facilitating or concealing
the commission of that offence or those offence, one or
more offences of falsification of accounts, he may be
charged, and tried at one trial for every such offence,
there is no violation of section 219 in such a case.
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8. Chapter XVII of the Cr.P.C. 1973, from section
211 to section 217 in Part A deals with form of charges
while Part B from section 218 to section 224 makes
provision for joinder of charges. Section 218 of the
Cr.P.C. mandates that for every distinct offence of which
any person is accused, there shall be a separate charge,
and every such charge shall be tried separately. While the
proviso to sub-section (1) grants the accused person a
right to make an application in writing, if he so desires,
and, if the Magistrate is of an opinion that such person is
not likely to be prejudiced, the Magistrate may try
together all or any number of charges framed against that
person. The object of section 218 is to give an accused
person notice of the charges, which he has to meet, and
that he has not to be embarrassed by having to meet
charges in no way connected to each other. However, the
provision, if read in its entirety, with sub-section (2), the
principle of framing of charge is, that unless otherwise
indicated, every distinct offence should be subject matter
of separate charge, and every such charge shall be tried
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separately, unless the case is covered by the operation of
provision of sections 219, 220, 221 and 223 Cr.P.C. Thus,
Section 218 of the Cr.P.C. and its two sub-sections lays
down general rules. Sub-section (1) lays down that, for
every distinct offence for which any person is accused
there shall be a separate charge, and sub-section (2) lays
down that every such charge shall be tried separately,
except in cases mentioned in sections 219, 220, 221 and
223.
9. Relevant Sections of Cr.P.C. for ready reference
are reproduced herein under:
Section 212 of the Cr.P.C. Particulars
as to time, place and person. (1) The
charge shall contain such particulars as
to the time and place of the alleged
offence, and the person (if any) against
whom, or the thing (if any) in respect of
which, it was committed, as are
reasonably sufficient to give the accused
notice of the matter with which he is
charged.
(2) When the accused is charged with
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criminal breach of trust or dishonest
misappropriation of money or other
movable property, it shall be sufficient to
specify the gross sum or, as the case may
be, describe the movable property in
respect of which the offence is alleged to
have been committed, and the dates
between which the offence is alleged to
have been committed, without specifying
particular items or exact dates, and the
charge so framed shall be deemed to be
a charge of one offence within the
meaning of section 219;
Provided that the time included
between the first and last of such dates
shall not exceed one year.
218. Separate charges for distinct
offences. (1) For every distinct offence
of which any person is accused there
shall be a separate charge, and every
such charge shall be tried separately:
Provided that where the accused
person, by an application in writing, so
desires and the Magistrate is of opinion
that such person is not likely to be
prejudiced thereby, the Magistrate may
try together all or any number of the
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charges framed against such person.
(2) Nothing in sub- section (1) shall
affect the operation of the provisions of
sections 219, 220, 221 and 223.
219. Three offences of same kind
within year may be charged together.
-
(1) When a person is accused of more
offences than one of the same kind
committed within the space of twelve
months from the first to the last of such
offences, whether in respect of the same
person or not, he may be charged with,
and tried at one trial for, any number of
them not exceeding three.
(2) Offences are of the same kind when
they are punishable with the same
amount of punishment under the same
section of the Indian Penal Code (45 of
1860 ) or of any special or local law:
Provided that, for the purposes of
this section, an offence punishable under
section 379 of the Indian Penal Code (45
of 1860 ) shall be deemed to be an
offence of the same kind as an offence
punishable under section 380 of the said
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Code, and that an offence punishable
under any section of the said Code, or of
any special or local law, shall be deemed
to be an offence of the same kind as an
attempt to commit such offence, when
such an attempt is an offence.
220. Trial for more than one offence.
- (1) If, in one series of acts so connected
together as to form the same
transaction, more offences than one are
committed by the same person, he may
be charged with, and tried at one trial
for, every such offence.
(2) When a person charged with one or
more offences of criminal breach of trust
or dishonest misappropriation of
property as provided in sub- section (2)
of section 212 or in sub- section (1) of
section 219, is accused of committing,
for the purpose of facilitating or
concealing the commission of that
offence or those offences, one or more
offences of falsification of accounts, he
may be charged with, and tried at one
trial for, every such offence.
(3) If the acts alleged constitute an
offence falling within two or more
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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 of such offences.
(4) If several acts, of which one or more
than one would by itself or themselves
constitute an offence, constitute when
combined a different offence, the person
accused of them may be charged with,
and tried at one trial for the offence
constituted by such acts when combined,
and for any offence constituted by any
one, or more, of such acts.
(5) Nothing contained in this section
shall affect section 71 of the Indian Penal
Code (45 of 1860 ).
223. What persons may be charged
jointly. - The following persons may be
charged and tried together, namely:-
(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;
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(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;
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(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.
300. Person once convicted or
acquitted not to be tried for same
offence.-
(1) A person who has once been tried by
a Court of competent jurisdiction for an
offence and convicted or acquitted of
such offence shall, while such conviction
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or acquittal remains in force, not be
liable to be tried again for the same
offence, nor on the same facts for any
other offence for which a different
charge from the one made against him
might have been made under sub-
section (1) of section 221, or for which
he might have been convicted under sub-
section (2) thereof.
(2) A person acquitted or convicted of
any offence may be afterwards tried,
with the consent of the State
Government, for any distinct offence for
which a separate charge might have
been made against him at the former
trial under sub- section (1) of section
220.
(3) A person convicted of any offence
constituted by any act causing
consequences which, together with such
act, constituted a different offence from
that of which he was convicted, may be
afterwards tried for such last- mentioned
offence, if the consequences had not
happened, or were not known to the
Court to have happened, at the time
when he was convicted.
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(4) A person acquitted or convicted of
any offence constituted by any acts may,
notwithstanding such acquittal or
conviction, be subsequently charged
with, and tried for, any other offence
constituted by the same acts which he
may have committed if the Court by
which he was first tried was not
competent to try the offence with which
he is subsequently charged.
(5) A person discharged under section
258 shall not be tried again for the same
offence except with the consent of the
Court by which he was discharged or of
any other Court to which the first-
mentioned Court is subordinate.
(6) Nothing in this section shall affect
the provisions of section 26 of the
General Clauses Act, 1897 , (10 of 1897 )
or of section 188 of this Code.
10. Section 212 Cr.P.C. lays down that in cases
where accused is charged with criminal breach of trust of
dishonest misappropriation of money, it shall be sufficient
to specify the gross sum in respect of which the offence is
alleged to have been committed without specifying the
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particular item or exact dates and the charge so framed
shall be deemed to be a charge of one offence within the
meaning of section 219 Cr.P.C., while, Section 219
Cr.P.C. is an enabling provision and is an exception to
section 218 Cr.P.C. Section 219 lays down three
limitations they are (i) that the offences must be of same
kind (ii) that they must have been committed within the
space of one year, and (iii) that more than three offences
should not be joined in the same trial. Section 219 is one
of the exception for section 218. There is no provision in
the Code authorising amalgamation of case beyond the
ambit of section 219. The Section providing for the
joinder of charges and the joinder of person do not permit
a Magistrate to amalgamate cases, that by strictly
following the provision of Code, need to be separately
tried. Section 219 Cr.P.C. speaks of offences and not
transaction or acts. Thus, section 219 of the Code confers
discretion upon the Magistrate to the effect that if the
person is charged with three offences and the same were
committed within the space of 12 months, he may be
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charged and tried at one trial for the said three offences.
10.1 Section 219 of the Cr.P.C. cannot be read in
isolation, it has to be read with sections 220, 221 and
section 223 of the Code. Section 223 is with regard to
what persons may be charged jointly. It has been stated
in the said section, that the persons may be charged and
tried together namely as in clause (a) "persons accused of
same offence committed in the course of same
transaction", and clause (d) "persons accused of different
offences committed in the course of same transaction".
Clause (b) also permits person accused of an offence and
persons accused of abetment of, or attempt to commit,
such offence, to be charged and tried together and clause
(c) is with respect to the persons accused of more than
one offence of the same kind, within the meaning of
section 219 committed by them jointly within the period
of 12 months, to be charged and tried together. The true
effect of section 219 is not to create a prohibition, that
more than three offences cannot be tried together. For
the applicability of section 219 Cr.P.C., it is necessary
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that a person is accused of more offence than one, of the
same kind. Section 219 governs the case, where there is
only one accused, as the word "a person" therein cannot
be read as including several persons. The case of several
persons, being accused of more offences than one of the
same kind committed within the space of 12 months is
dealt with in clause (c) of section 223, that the word
'jointly" in section 223(c) is important and unless various
persons committed the offence jointly, there would be no
logic behind trying them jointly.
10.2 Section 220 is, like section 219, an exception to
the general rule of separate charge and separate trial for
every distinct offence. Sub-section (1) of section 220 also
provides for trial of more than one offences, but the
limitation lays down is that the offences must arise from
the same transaction, expressing in case of one series of
acts so connected together to form the same transaction
when more offences are committed by the same persons.
Sub-section (2) of section 220 further clarifies that, when
a person charged with one or more offences of criminal
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breach of trust or dishonest misappropriation of property
as provided in sub- section (2) of section 212 or in sub-
section (1) of section 219, is accused of committing, for
the purpose of facilitating or concealing the commission
of that offence or those offences, one or more offences of
falsification of accounts, he may be charged with, and
tried at one trial for, every such offence. Section 220
refers to an offence committed in the series of acts,
where the offence are more than one by the same person,
then he can claim for charge to be framed in one trial.
Sub-section (2) of section 220 also makes provision for a
common trial in which 'a person' is charged with offences
of criminal breach of trust, dishonest and
misappropriation of property. The expression "a person"
in section 220 does not refer to the offences committed in
the series of act jointly with others.
10.3 In the present case, in FIR being Cr. No.I-
30/2017, total accused are 9 in number, in Cr.No.I-
05/2017, total accused are 6, while in Cr. No.I-02/2017,
accused are 6 in total.
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10.4 The expression "same transaction" is not
defined anywhere in the Code and would be difficult to
define precisely what the expression means. Whether a
transaction can be regarded the same would necessarily
depend upon the particular facts of each case, but
generally when there is proximity in time or place or
immediate purpose or design or continuity of action in
respect of series of acts, it may be possible to infer that
they form part of the same transaction. Several acts
committed by a person, so unity of purpose or design that
would be on a strong circumstances to indicate that those
acts form part of same transaction. The connection
between 'a series of acts' is to be an essential ingredient
for those acts to constitute the same transaction. A
transaction may be an isolated act or may be consisting of
one series of acts. A series of acts which constitute a
transaction must of necessarily be connected with one
other and if some of them spell out independently they
would not form part of the same transaction, but would
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constitute a different transaction or transactions. The
expression "same transaction" occurring in clause (a) and
(d) of section 223 are required to be given the same
meaning according to the normal rule of construction of
statute. The real and substantial dates of determining,
whether several offences are so connected together as to
form the same transaction, depend upon whether they are
related to one point of purpose or as cause or effect of as
principle and subsidiary act as to constitute one
continuous action. The continuity of action is not in the
sense that one act follow the others without any
connection but in the sense of intimate connection
between different acts, there must be continuity of
purpose and concert.
11. In the instant cases, apart from the petitioner
there are other accused, who are jointly alleged to have
committed more than one offence of same kind the period
of offence as alleged is between 01.04.2015 to 02.02.2017
i.e. approximately one year and almost ten months. The
law recognises a common trial in one series of acts so
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connected together so as to form the same transaction as
has been considered in section 220 Cr.P.C., while
observed hereinabove, the expression "same transaction"
could not be specifically defined and has to be understood
upon the facts of each case.
12. In the case of Mohan Baitha And Others Vs.
State of Bihar And Another, reported in (2001) 4 SCC
350, it has been held that 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
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parts of the same transaction or not.
13. 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. In Clause (a) and (d) of section 223, the primary
condition is that a person should have been an accused
either of the same offence or of different offence
"committed in the course of same transaction". The
expression advisably used "in the course of same
transaction". The said expression is not akin to saying "in
respect of same subject matter". The series of acts which
constitute a transaction must necessarily be connected
with one another and if some of them stand out
independently, then would not form part of the same
transaction, but would constitute a different transaction
or transactions. The expression "same transaction" used
in sub-clause (a) and (d) of section 223 would have meant
a transaction consisting either of single act or of a series
of connected act.
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14. In case of Babubhai Vs. State of Gujarat,
reported in (2010) 12 SCC 254, it has been observed in
Para-21 as under:
"21. In such a case the court has to
examine the facts and circumstances
giving rise to both the FIRs and the test
of sameness is to be applied to find out
whether both the FIRs relate to the same
incident in respect of the same
occurrence or are in regard to the
incidents which are two or more parts of
the same transaction. If the answer is in
the affirmative, the second FIR is liable
to be quashed. However, in case the
contrary is proved, where the version in
the second FIR is different and they are
in respect of the two different
incidents/crimes, the second FIR is
permissible. In case in respect of the
same incident the accused in the first
FIR comes forward with a different
version or counterclaim, investigation on
both the FIRs has to be conducted."
15. If in one case, the accused is alleged to have
committed an offence without any connection with the
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accused in other case, then it cannot be treated as the
same offence or even different offences committed in the
course of the same transaction. It had been observed in
Balbir v. State of Haryana, 2000 Cri. L.J. 169 : AIR
2000 SC 11, that if two diametrically opposite versions
are put to joint trial, the confusion which it can cause in
the trial would be incalculable. It would then be a mess
and then there would be no scope for a fair trial. Hence
the attempt to bring the two cases under the umbrella of
Section 223 of the Code has only to be foiled as
untenable.
15.1 In the case of Balbir v. State of Haryana
(supra), the Hon'ble Court by referring the judgment of
State of Andhra Pradesh vs. Cheemalapati
Ganeswara Rao, reported in (1964) 3 SCR 297 : (AIR)
1963 SC 1850), observed in para-11, 12 and 13, as
under:
The series of acts which constitute
a transaction must of necessity be
connected with one another and if some
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of them stands out independently, they
would not form part of the same
transaction but would constitute a
different transaction or transactions.
Therefore, even if the expression "'same
transaction" alone had been used in S.
235(1) it would have meant a transaction
consisting either of a single act or of a
series of connected acts. The expression
'same transaction' occurring in cls. (a),
(c) and (d) of S. 239 as well as that
occurring in s. 235(1) ought to be given
the same meaning according to the
normal rule of construction of statutes.
12. For several offences to be part
of the same transaction, the test which
has to be applied is whether they are so
related to one another in point of
purpose or of cause and effect, or as
principal and subsidiary, so as to result
in one continuous action. Thus, where
there is commonality of purpose or
design, where there is continuity of
action, then all those persons involved
can be accused of the same or different
offences "committed in the course of the
same transaction."
13. But if in one case the accused
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is alleged to have killed a person without
any junction with the accused in the
other case, then it cannot be treated as
the same offence or even different
offences "committed in the course of the
same transaction". If such two
diametrically opposite versions are put
to joint trial the confusion which it can
cause in the trial would be incalculable.
It would then be a mess and then there
would be no scope for a fair trial. Hence
the attempt to bring the two cases under
the umbrella of Section 223 of the Code
has only to be foiled as untenable.
16. Section 223, which provides for joint trial, deals
with various circumstances, Clause (a) permits persons
who are accused of having committed the same offence in
the course of same transaction to be charged and tried
together, clause (d) of Section 223 permits persons who
are accused of having committed different offences, but
during the course of same transaction to be charged with
and tried together. So Clause (a) and (d) permits joint
trial of persons committing 'same offences' or 'different
offences', but so committed in the course of same
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transaction.
16.1 The thing to be noticed is that section 223 does
not read as if, various clauses can be applied only
alternatively. The very opening words of the section
shows that it is enabling provision for all the persons
falling in section 223 Cr.P.C., who could be charged and
tried together. Different clauses of section 223 Cr.P.C.
are not materially exclusive, but can be availed of
cumulatively.
17. In Narayan Prasad Vs. State of Rajasthan,
reported in 1999 (4) Crimes (HC) 86, the Rajasthan
High Court in para-7 has held as under:
"[7] Section 223(a) Cr.P.C. provides that
persons accused of the same offence
committed in the course of same
transaction may be charged and tried
together. It is obvious that it is enabling
provision. The general rule is that every
person is entitled to insist that his case
should be tried separately. A joint trial in
the circumstances mentioned in Section
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223 is not compulsory and the Court has a
discretion to order separate trials if that
serves the purpose of justice best. The
burden to justify the joint trial is always on
the prosecution. It has to be accepted that
it would be very hard and almost
oppressive to any set of persons, to charge
them together unless the whole of the
evidence against all of them is precisely
the same. In the instant case, it cannot be
said that the whole of the evidence against
all the accused will the same. As a matter
of fact, the evidence will be different in
respect of the incidents which have taken
place at different shops. There is,
therefore, a danger of prejudice being
caused to the petitioners, if they are tries
jointly."
18. Section 223 Cr.P.C. though enabling provision,
such joint trial for persons alleged to have committed
same offence or different offence in the course of same
transaction can be ordered only if such persons would not
be prejudically affected thereby and it is expedient so to
do when one or more accused are involved, though the
role of each one is different, but the offence committed is
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the same transaction of same kind, their joint trial does
not in any way prejudice or embarrass anyone of them
since each one of them is connected with the evidence
appearing against him. An accused cannot assert any
right for a joint trial with the co-accused by invoking the
provision of section 223, as the option is with
prosecution.
19. All the three FIRs alleging of cheating and
misappropriation as criminal breach of trust are at
different Gram Panchayats. The total amount, as alleged
in FIR being C.R. No.I-02/2017 is Rs.19,59,000/-; in FIR
being C.R. No.I-05/2017, the allegation is of
Rs.7,32,000/-, while, in FIR being C.R. No.I-30/2017, the
allegation of total misappropriated amount is
Rs.18,96,000/-, which includes the amount of villages
Dharampuri and Kayawahoran.
19.1 All the offences, as alleged, have not been
committed in the course of same transaction. Different
persons, at different village panchayats have committed
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the offence within the period alleged to be 01.04.2015 to
01.02.2017. As per section 223 of Cr.P.C., all persons
falling under any of the seven categories enumerated
therein can be charged and tried together. In both the
sub-clauses (a) and (b) of section 223, the primary
condition is that the persons should have been accused
either of the same offence or of difference offences
"committed in the course of same transaction". As
observed hereinabove, the expression used in the course
of the same transaction is not same as the expression "in
respect of the same subject matter". When there is a
community of purpose or design and when there is a
continuity of action, then all those persons involved can
be accused of the same or different offences "committed
in the course of same transaction". But, if two diametrical
opposite versions are put up in the FIR for the offence
alleged to have been committed under a same scheme of
Swachchh Bharat Mission Yojna for the year 2015-16,
2016-17, it could not be considered that the offences
were committed in the course of same transaction. The
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only common aspect is that, the present petitioner is a
common accused in all the three FIRs. The offence has
been committed with the office bearers of different Gram
Panchayats under one same scheme, which was in force
in all the Gram Panchayats. If such offences with different
versions are put up for a joint trial, then there would not
be any scope for fair trial. Further, the other co-accused's
right of a separate independent trial, cannot be burdened
with joint trial, since that would create prejudice to their
interest. The discretion is always with the Magistrate
concern.
19.2 Hence, when the series of acts, which has been
alleged in three different FIRs, are not found to be
connected with another, but it stand independently, it
would not form a part of the same transaction, but would
constitute a different transaction or transactions.
19.3 Thus, as observed in State of Andhra Pradesh
vs. Cheemalapati Ganeswara Rao (supra), the test which
has to be applied is whether they are related to one
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another in point of purpose or cause and effect of
principle and subsidiary so as to result in one continuous
action, then with the community of purpose or design,
where there is continuity of action, in all persons involved
can be accused of the same or different offences
committed in the course of same transaction. Here, all
the alleged transactions are not in the same series of
acts, but by different accused along with the present
petitioner.
20. In Kari Chaudhary Vs. Sita Devi, reported in
2002 (1) SCC 740, it was opined that there cannot be
two FIRs against the same accused in respect of same
case, but when there was rival versions in respect of
same episode they would normally take the shape of two
different FIRs and investigation can be carried out under
both of them by the same investigating agency. In the
case of Upkar Singh Vs. Ved Prakash and Others,
reported in (2004) 13 SCC 292, the three Judges' bench
addressing the issue pertaining to correctness of the law
laid down in the case of T.T. Antony Vs. State of Kerala
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(supra) and while accepting the case had observed that if
the law laid down in T.T. Antony Vs. State of Kerala
(supra), is to be accepted to have held that the second
complaint in regard to the same incident filed as a
counter complaint is prohibited, under the code, such
conclusions would lead to serious consequences,
inasmuch as, the real accused can take the first
opportunity to lodge a false complaint and get it
registered by the jurisdictional police and then that would
preclude the victim to lodge a complaint.
21. Here, in the instant case, if the proposition of
law laid down in T.T. Antony's case (supra) is to be
considered, then the petitioner as an accused would be
found committing offences under 'Swachchh Bharat
Mission Yojna' at different Taluka Panchayats and would
insists that there should be only one F.IR. against her for
other offences of cheating and misappropriation. Sub-
section (2) of section 220 clarifies that when a person is
charged with one or more offences of criminal breach of
trust or dishonest misappropriation of property as
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provided in sub-section (2) of section 212 or in sub-
section (1) of section 219, is accused of committing, for
the purpose of facilitating or concealing the commission
of that offence or those offence, one or more offences of
falsification of accounts, he may be charged with and
tried at one trial for every such offence. In the instant
case, in the FIR being C.R. No.I-30/2017, the offence
under section 409 IPC for criminal breach of trust by
public servant lays down for a punishment with
imprisonment for life or with imprisonment for either
description for a term which may extend to ten years,
which shall be accompanied by a liability to pay the fine,
is associated with the offence under section 420 IPC for
cheating and dishonestly inducing the delivery of
property with offence as noted under sections 468, and
471 of IPC of forgery for the purpose of cheating, and
dishonestly and fraudulently using as genuine documents
known to be or has reason to believe to be forged. While
in the FIRs being C.R. No.I-05/2017 and C.R. No.I-
02/2017, sections 461, 468, 471 and 120B of the IPC have
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not been associated.
22. The allegations in all the three FIRs are
different. The FIR being C.R. No.I-30/2017 is registered
at Dabhoi Police Station, while FIRs being C.R. No.I-
02/2017 and C.R. No.I-05/2017 are registered at Chanod
Police Station. The FIR at Dabhoi Police Station is with
the total different versions, while the other two FIRs at
Chanod Police Station involve the same sections, but with
different accused in different transactions. The time of
occurrence, as alleged, is 01.04.2015 to 02.02.2017 in all
the FIRs; and further it is to be noted that, if at all any of
the accused would want to invoke the provisions of
section 223 of Cr.P.c. for the offences, which have been
alleged at Chanod Police Station registered under two
FIRs, they can certainly move the Magistrate to be
charged and tried jointly, but it would be certainly the
discretion of the Magistrate to consider such a plea on
hearing the parties concerned, and if no prejudice would
be caused to, the accused or the prosecutor, the Court
may direct a joint trial; however, it would be for the
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Magistrate concern to satisfy itself prior to ordering a
joint trial, to prima facie come to the conclusion that the
series of acts, as alleged in both the FIRs at Chanod
Police Station, would fall under the expression "same
transaction".
23. The complainant may be common in all the
FIRs but the witnesses and the documentary evidence to
be produced to prove the offence would be different. The
burden to justify the trial is always on the prosecution
and it would be very hard and oppressive to charge two
set-of persons together, unless the whole of the evidence
against all of them is precisely the same.
24. Thus, to the reasons given hereinabove, the
petitions are required to be rejected, since all the FIRs
are with different versions and of the transactions at
different villages with different sets of persons alleged to
have committed the offence, and it is not the case of
different FIRs for the same offence. Accordingly, both the
petitions stand rejected. Rule is discharged.
(GITA GOPI,J)
R/CR.MA/7732/2017 JUDGMENT DATED: 28/03/2023
Further Order
After the order was pronounced, Advocate Ms. Kruti
M.Shah appearing for the petitioner requested for
extension of interim relief granted earlier in terms of no
coercive steps against the petitioner, for a further period
of one month from today.
In view of the above, no coercive steps be taken
against the petitioner for a further period of one month
from today.
(GITA GOPI,J)
Pankaj
