Madhya Pradesh High Court
Kuka vs The State Of Madhya Pradesh on 29 May, 2025
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
IN THE HIGH COURT OF MADHYA PRADESH
AT I n d o re
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 29th OF MAY, 2025
CRIMINAL REVISION No. 764 of 2019
1. KUKA
2. GOBARIYA
3. KASNA
4. SALIYA
5. RAMU
6. KAMMA
7. PUNIYA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Shailendra Singh Nahar - Advocate for the petitioners.
Shri K.K. Tiwari - Govt. Advocate for the respondent/State.
Ms Mayuri Jain - Advocate for the respondent/objector.
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 5/29/2025
5:15:11 PM
2
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
ORDER
This petition under Section 397 read with Section 401 of Code of
Criminal Procedure, 1973 (in short, ‗Cr.P.C.' hereinafter) is filed assailing
the order dated 30.11.2018 passed in S.T. No. 133/2018 by the First
Additional Session Judge, Jhabua, whereby the application filed under
Section 319 of Cr.P.C. by the accused Tar Singh and others was allowed and
cognizance for offence punishable under Section 302 read with Section 34
of IPC was taken against the petitioners - Kuka S/o Ratna, Gobariya, S/o
Ratna, Kasna alias Kisan S/o Gobariya, Saliya S/o Vasna, Ramu S/o Saliya,
Kamma S/o Rangi and Puniya S/o Ratna.
2. The exposition of facts giving rise to present petition, in brief, is as
under:
A. Tar Singh S/o Kalu Vasunia reported to P.S. Kali Devi, Distt.
Jhabua on 03.06.2018 that he and his cousin Maithu Vasunia were
returning home from Village Fattipura around 9:00 in the night. As
they reached near the house of Kasna Parmar, Puniya S/o Ratna,
Kamma S/o Rangi, Kasna alias Kisan S/o Gobariya, Gobariya S/o
Ratna, Saliya S/o Vasna, Ramu S/o Saliya and Kuka S/o Ratna
intercepted them. Kamma Amaliya had an altercation with Maithu
over dispute relating to the way from his agricultural land. Kamma
threatened to kill Maithu. Puniya assaulted Maithu with sword on left
side of his neck. He got frightened and ran towards his home. He
informed his family members and returned to the spot of incident with
them. Maithu was lying dead in a pit near road. They took the dead
body of Maithu to their home. On such allegations, P.S. Kali Devi
registered FIR at Crime No. 95/2018 for offence punishable under
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
Section 302, 341, 147, 148 and 149 of IPC against Puniya, Kamma,
Kasna, Gobariya, Saliya, Ramu and Kuka. The dead body of Maithu
was forwarded for post-mortem examination. The Medical Officer
opined that Maithu had died due to shock and hemorrhage caused by
incised wound over neck and damage to larger blood vessel by hard
and sharp object within 24 hours of the examination. His VISCERA
was preserved and forwarded for chemical analysis. The statements of
witnesses were recorded. Keshu Bai W/o Maithu stated that her
husband Maithu had consumed some poisonous substance around
8:00 in the night on 02.06.2018. She fell unconscious. Later, she came
to know that throat of her husband was slit by some unknown persons.
The statements of other witnesses were also recorded. The post-
mortem examination report did not support the allegation of injury on
throat by sword. Adequate blood stains were not found on the spot of
incident. The Investigation Officer suspected the story narrated by the
informant Tar Singh. Tar Singh and Kaliya were apprehended. They
informed that they conspired with other accused Sadiya and Kalu to
implicate Saliya Parmar and his associates over the dispute of way.
Maithu has consumed some insecticide. Kaliya slit throat of Maithu
with a blade. They placed the blood-stained scarf of Maithu in front of
the house of Saliya and concealed the bottle of insecticide. Thereafter,
the false FIR against Saliya and his associates was lodged. A blood-
stained blade and bottle of insecticide was recovered in furtherance of
this information. The Medical Officer and the Director Incharge of
Medico Legal Institute, Bhopal opined that the injury on the neck and
throat of the deceased Maithu was inflicted, while he was lying in
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
supine position. No poisonous substance was reported in VISCERA of
Maithu on chemical analysis. On completion of investigation, final
report was submitted against Tar Singh Vasuniya, Kaliya Vasuniya,
Kalu Vasuniya, Sadiya Vasuniya for offence punishable u/S 302, 182,
211, 194 and 34 of IPC.
B. The Sessions case (S.T. No. 133/2018) was pending before the
Learned First Additional Sessions Judge, Jhabua. On the date of
hearing on charge, the accused submitted an application under Section
319 of Cr.P.C. alleging that the police had not implicated the
offenders named in the FIR. The named offenders should also be
implicated as accused in the trial. Learned First Additional Sessions
Judge vide impugned order dated 30.11.2018 allowed the application
and directed cognizance of offence punishable under Section 302 read
with Section 34 of IPC against the petitioners.
3. The impugned order dated 30.11.2018 is assailed in present petition
on following grounds:
(i) Learned First Additional Sessions Judge committed gross error of
law in exercising the power u/S 319 of Cr.P.C. on an application of 03
co-accused persons at the stage of hearing on charge.
(ii) The impugned order is cryptic and passed in cavalier manner. The
cognizance of the offence punishable u/S 302 of IPC is taken against
the petitioners without any evidence or material on record.
(iii) The petitioners cannot be tried together with 04 accused, who are
already facing trial for murder of Maithu
(iv) The impugned order is bad in law, as no opportunity of hearing
was accorded to the petitioners.
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
On these grounds, it is prayed that the impugned order dated
30.11.2018 be set aside.
4. The learned counsel for the petitioners in addition to the grounds
mentioned in the petition contended that the FIR lodged by Tar Singh
against the petitioners was found to be false and fabricated after
investigation. The Investigation Officer suspecting the veracity of
allegations conducted detailed investigation and sought opinion from the
Director of Medico Legal Institute, Bhopal. The final report was submitted
against the accused persons exonerating the petitioners for want of reliable
evidence to support the allegations against them. The trial against the
accused has not commenced. Learned trial Court committed error in
allowing the application without any evidence. The accused cannot be tried
together with the petitioners, as either the allegations against the accused or
the petitioners would be proved. Learned trial Court committed grave error
of law in directing joint trial of both the parties.
5. Per contra, learned counsel for the State ably assisted by learned
counsel for the objector opposed the petition and contended that in view of
specific allegations contained in the FIR, learned First Additional Sessions
Judge, Jhabua committed no error in taking cognizance against the
petitioners. The Investigation Officer had committed error in exonerating
the petitioners despite specific allegations against them in the FIR and the
statement of eye-witness, Tar Singh. The criminal revision is meritless and
deserves to be dismissed.
6. Heard both the parties, perused the record and the case diary.
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
7. The Constitution Bench of the Supreme Court in case of Hardeep
Singh v. State of Punjab, reported in (2014) 3 SCC 92, examined the scope of
Secton 319 of Cr.P.C., 1973 and laid down as under-
47. Since after the filing of the charge-sheet, the court reaches the stage of inquiry
and as soon as the court frames the charges, the trial commences, and therefore,
the power under Section 319(1) CrPC can be exercised at any time after the
charge-sheet is filed and before the pronouncement of judgment, except during
the stage of Sections 207/208 CrPC, committal, etc. which is only a pre-trial
stage, intended to put the process into motion. This stage cannot be said to be a
judicial step in the true sense for it only requires an application of mind rather
than a judicial application of mind. At this pre-trial stage, the Magistrate is
required to perform acts in the nature of administrative work rather than judicial
such as ensuring compliance with Sections 207 and 208 CrPC, and committing
the matter if it is exclusively triable by the Sessions Court. Therefore, it would be
legitimate for us to conclude that the Magistrate at the stage of Sections 207 to
209 CrPC is forbidden, by express provision of Section 319 CrPC, to apply his
mind to the merits of the case and determine as to whether any accused needs to
be added or subtracted to face trial before the Court of Session.
48. It may be pertinent to refer to the decision in Raj Kishore Prasad [Raj Kishore
Prasad v. State of Bihar, (1996) 4 SCC 495 : 1996 SCC (Cri) 772 : AIR 1996 SC
1931] where, in order to avoid any delay in trial, the Court emphasised that such a
power should be exercised keeping in view the context in which the words
―inquiry‖ and ―trial‖ have been used under Section 319 CrPC and came to the
conclusion that such a power is not available at the pre-trial stage and should be
invoked only at the stage of inquiry or after the evidence is recorded.
49. A two-Judge Bench of this Court in SWIL Ltd. v. State of Delhi [(2001) 6
SCC 670 : 2001 SCC (Cri) 1205 : AIR 2001 SC 2747] , held that once the process
has been issued, the power under Section 319 CrPC cannot be exercised at that
stage, since it is neither an inquiry nor a trial.
50. In Ranjit Singh v. State of Punjab, (1998) 7 SCC 149, the Court held :
―19. So from the stage of committal till the Sessions Court reaches the
stage indicated in Section 230 of the Code, that court can deal with only
the accused referred to in Section 209 of the Code. There is no
intermediary stage till then for the Sessions Court to add any other person
to the array of the accused.
20. Thus, once the Sessions Court takes cognizance of the offence
pursuant to the committal order, the only other stage when the court is
empowered to add any other person to the array of the accused is after
reaching evidence collection when powers under Section 319 of the Code
can be invoked.‖
51. In Kishun Singh v. State of Bihar, (1993) 2 SCC 16, the Court while
considering the provision of the old Code, the Law Commission's
recommendation and the provisions in CrPC, held that Section 319 CrPC is an
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
improved provision upon the earlier one. It has removed the difficulty of taking
cognizance as cognizance against the added person would be deemed to have
been taken as originally against the other co-accused. Therefore, on the
Magistrate committing the case under Section 209 CrPC to the Court of Session,
the bar of Section 193 CrPC gets lifted thereby investing the Court of Session
complete and unfettered jurisdiction of the court of original jurisdiction to take
cognizance of the offence which would include the summoning of the person or
persons whose complicity in the commission of the crime can prima facie be
gathered from the material available on record, though who is not an accused
before the court.
52. In Dharam Pal v. State of Haryana, (2014) 3 SCC 306, the Constitution Bench
approved the decision in Kishun Singh that the Sessions Judge has original power
to summon the accused holding that :
―37. ... the Sessions Judge was entitled to issue summons under Section
193 CrPC upon the case being committed to him by the learned
Magistrate.
38. ... The key words in [Section 193] are that ‗no Court of Session shall
take cognizance of any offence as a court of original jurisdiction unless
the case has been committed to it by a Magistrate under this Code'. The
above provision entails that a case must, first of all, be committed to the
Court of Session by the Magistrate. The second condition is that only after
the case had been committed to it, could the Court of Session take
cognizance of the offence exercising original jurisdiction. Although, an
attempt has been made by Mr Dave to suggest that the cognizance
indicated in Section 193 deals not with cognizance of an offence, but of
the commitment order passed by the learned Magistrate, we are not
inclined to accept such a submission in the clear wordings of Section 193
that the Court of Session may take cognizance of the offences under the
said section‖
53. It is thus aptly clear that until and unless the case reaches the stage of inquiry
or trial by the court, the power under Section 319 CrPC cannot be exercised. In
fact, this proposition does not seem to have been disturbed by the Constitution
Bench in Dharam Pal (CB). The dispute therein was resolved visualising a
situation wherein the court was concerned with procedural delay and was of the
opinion that the Sessions Court should not necessarily wait till the stage of
Section 319 CrPC is reached to direct a person, not facing trial, to appear and face
trial as an accused. We are in full agreement with the interpretation given by the
Constitution Bench that Section 193 CrPC confers power of original jurisdiction
upon the Sessions Court to add an accused once the case has been committed to
it.
54. In our opinion, the stage of inquiry does not contemplate any evidence in its
strict legal sense, nor could the legislature have contemplated this inasmuch as
the stage for evidence has not yet arrived. The only material that the court has
before it is the material collected by the prosecution and the court at this stage
prima facie can apply its mind to find out as to whether a person, who can be an
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
accused, has been erroneously omitted from being arraigned or has been
deliberately excluded by the prosecuting agencies. This is all the more necessary
in order to ensure that the investigating and the prosecuting agencies have acted
fairly in bringing before the court those persons who deserve to be tried and to
prevent any person from being deliberately shielded when they ought to have
been tried. This is necessary to usher faith in the judicial system whereby the
court should be empowered to exercise such powers even at the stage of inquiry
and it is for this reason that the legislature has consciously used separate terms,
namely, inquiry or trial in Section 319 CrPC.
55. Accordingly, we hold that the court can exercise the power under Section 319
CrPC only after the trial proceeds and commences with the recording of the
evidence and also in exceptional circumstances as explained hereinabove.
********
84. The word ―evidence‖ therefore has to be understood in its wider sense both at
the stage of trial and, as discussed earlier, even at the stage of inquiry, as used
under Section 319 CrPC. The court, therefore, should be understood to have the
power to proceed against any person after summoning him on the basis of any
such material as brought forth before it. The duty and obligation of the court
becomes more onerous to invoke such powers cautiously on such material after
evidence has been led during trial.
85. In view of the discussion made and the conclusion drawn hereinabove, the
answer to the aforesaid question posed is that apart from evidence recorded
during trial, any material that has been received by the court after cognizance is
taken and before the trial commences, can be utilised only for corroboration and
to support the evidence recorded by the court to invoke the power under Section
319 CrPC. The ―evidence‖ is thus, limited to the evidence recorded during trial.
**************
105. Power under Section 319 CrPC is a discretionary and an extraordinary
power. It is to be exercised sparingly and only in those cases where the
circumstances of the case so warrant. It is not to be exercised because the
Magistrate or the Sessions Judge is of the opinion that some other person may
also be guilty of committing that offence. Only where strong and cogent evidence
occurs against a person from the evidence led before the court that such power
should be exercised and not in a casual and cavalier manner.
106. Thus, we hold that though only a prima facie case is to be established from
the evidence led before the court, not necessarily tested on the anvil of cross-
examination, it requires much stronger evidence than mere probability of his
complicity. The test that has to be applied is one which is more than prima facie
case as exercised at the time of framing of charge, but short of satisfaction to an
extent that the evidence, if goes unrebutted, would lead to conviction. In the
absence of such satisfaction, the court should refrain from exercising power under
Section 319 CrPC. In Section 319 CrPC the purpose of providing if ―it appears
from the evidence that any person not being the accused has committed any
offence‖ is clear from the words ―for which such person could be tried together
with the accused‖. The words used are not ―for which such person could be
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
convicted‖. There is, therefore, no scope for the court acting under Section 319
CrPC to form any opinion as to the guilt of the accused.
8. Further explaining the dictum of law laid down in Hardeep singh
(supra), the Supreme Court in case of S. Mohammed Ispahani v. Yogendra
Chandak, reported in (2017) 16 SCC 226, held that-
33. As against the above, the High Court, in the impugned judgment, has been
influenced by the fact that names of the appellants were mentioned in the FIR and
even in the statement of witnesses recorded under Section 161 CrPC these
appellants were named and such statements under Section 161 CrPC would
constitute ―documents‖. In this context, the High Court has observed that
―evidence‖ within the meaning of Section 319 CrPC would include the aforesaid
statements and, therefore, the appellants could be summoned.
34. The aforesaid reasons given by the High Court do not stand the judicial
scrutiny. The High Court has not dealt with the subject-matter properly and even
in the absence of strong and cogent evidence against the appellant, it has set aside
the order of the Chief Metropolitan Magistrate and exercised its discretion in
summoning the appellants as accused persons. No doubt, at one place the
Constitution Bench observed in Hardeep Singh case [Hardeep Singh v. State of
Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri) 86] that the word ―evidence‖ has
to be understood in its wider sense, both at the stage of trial and even at the stage
of inquiry. In para 105 of the judgment, however, it is observed that ―only where
strong and cogent evidence occurs against a person from the evidence led before
the court that such power should be exercised and not in a casual and cavalier
manner‖. This sentence gives an impression that only that evidence which has
been led before the Court is to be seen and not the evidence which was collected
at the stage of inquiry. However there is no contradiction between the two
observations as the Court also clarified that the ―evidence‖, on the basis of which
an accused is to be summoned to face the trial in an ongoing case, has to be the
material that is brought before the Court during trial. The material/evidence
collected by the investigating officer at the stage of inquiry can only be utilised
for corroboration and to support the evidence recorded by the Court to invoke the
power under Section 319 CrPC.
35. It needs to be highlighted that when a person is named in the FIR by the
complainant, but police, after investigation, finds no role of that particular person
and files the charge-sheet without implicating him, the Court is not powerless,
and at the stage of summoning, if the trial court finds that a particular person
should be summoned as accused, even though not named in the charge-sheet, it
can do so. At that stage, chance is given to the complainant also to file a protest
petition urging upon the trial court to summon other persons as well who were
named in the FIR but not implicated in the charge-sheet. Once that stage has
gone, the Court is still not powerless by virtue of Section 319 CrPC. However,
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
this section gets triggered when during the trial some evidence surfaces against
the proposed accused.
36. In view of the above, it was not open to the High Court to rely upon the
statements recorded under Section 161 CrPC as independent evidence. It could
only be corroborative material. In the first instance, ―evidence‖ led before the
Court had to be taken into consideration. As far as deposition of PW 1 which was
given in the Court is concerned, on going through the said statement, it becomes
clear that he has not alleged any conspiracy on the part of the appellant landlords.
In fact, none of the witness has said so. In the absence thereof, along with the
important fact that these appellant landlords were admittedly not present at the
site when the alleged incident took place, we do not find any ―evidence‖ within
the meaning of Section 319 CrPC on the basis of which they could be summoned
as accused persons. PW 1 and PW 4 have deposed about the incident that took
place at the site and the manner in which the persons who are present allegedly
behaved. In the statement of PW 4, he has alleged that ―Subsequently I came to
know the said people is not police officials the people was sent by landlords of
the building...‖. That statement may not be enough for roping in the
appellants/landlords to face the charge under those provisions of IPC with which
others are charged. The standard of evidence mentioned in Hardeep Singh
case [Hardeep Singh v. State of Punjab, (2014) 3 SCC 92 : (2014) 2 SCC (Cri)
86] , namely, ―strong and cogent evidence‖, is lacking.
9. The impugned order dated 30.11.2018 reveals that the final report was
filed before the Judicial Magistrate First Class, Jhabua on 01.09.2018
against accused- Tar Singh, Kaliya, Kalu and Sadiya for offence punishable
u/Ss. 302, 198, 211, 194 and 34 of IPC. The Judicial Magistrate First Class,
Jhabua did not take cognizance against the peititoners under Section 190 of
Cr.P.C., rather committed the case for trial to the Court of Sessions vide
order dated 06.09.2018. Learned Sessions Judge did not take cognizance
against the petitioners under Section 193 of the Cr.P.C. The Sessions case
was pending for hearing on charge, when the accused submitted application
u/S 319 of Cr.P.C. The impugned order was passed after cognizance of the
offence against Tar Singh, Kaliya, Kalu and Sadiya (the original accused)
and before commencement of the trial on framing of the charge. Learned
Additional Sessions Judge took cognizance against the petitioners for the
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
reason that their names were mentioned in the FIR, without appreciating the
other material on the record. The FIR and the statement of Tar Singh
recorded u/S 161 was not considered sufficient by the Investigation Officer
even to chargsheet the petitioners. The Medical experts' opinion did not
support the story alleged in the FIR. The allegations contained in the FIR
and the statement of Tar Singh recorded u/S. 161 of Cr.P.C. was not
substantiated by either circumstantial evidence or the statement of other
witness recorded u/S. 161 of Cr.P.C. The ―strong and cogent evidence‖ was
not available to implicate the petitioners with the alleged offence. Learned
Sessions Judge did not discuss the availability of strong and cogent evidence
as against mere possibility of complicity of the petitioners reflected by
allegations contained in the FIR. Therefore, in view of the law laid down in
the case of Hardeep Singh and S. Mohammed Ispahani (supra), the
impugned order suffers from legal infirmity as well as manifest impropriety.
Moreso, another significant legal aspect requires proper consideration.
10. In case of R. Dineshkumar v. State reported in (2015) 7 SCC 497,
while examining the scope of joint trial in reference to the Section 319 of
Cr.P.C., it was observed that-
21. Coming to Balbir case [(2000) 1 SCC 285 : 2000 SCC (Cri) 160] , the facts
are as follows : one Om Prakash was killed. On the basis of a report made to the
police by the nephew of the deceased accusing two brothers Balbir and Rajinder
to be the assailants, police registered a crime and investigated. On the basis of the
investigation, eventually, the police filed a charge-sheet under Section 302 IPC
against one Guria but not against the two accused mentioned in the FIR. The
nephew of the deceased lodged a private complaint before the Magistrate
accusing Balbir and Rajinder of the murder of Om Prakash. It was alleged therein
that the police had deliberately suppressed the case against the real culprits and
filed a charge-sheet against Guria. As a consequence, two sessions cases were
registered and tried separately. Guria was acquitted and his acquittal became
final. Whereas, Balbir and Rajinder were convicted by the Sessions Court. Their
conviction was confirmed by the High Court. It was argued before this Court by
the convicts that such separate trials were uncalled for and both the cases must
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
have been consolidated and tried jointly invoking Section 223(a) CrPC. This
Court rejected the submission : (Balbir case [(2000) 1 SCC 285 : 2000 SCC (Cri)
160] , SCC p. 293, para 16)
―16. ... for both versions here are diametrically divergent without
anything in common except that the murdered person was the same. In
such cases the most appropriate procedure to be followed by a Sessions
Judge should be the same as followed in the present case i.e. the two trials
were separately conducted one after the other by the same court before the
same Judge and judgments in both cases were separately pronounced on
the same day. No doubt the Sessions Judge should take care that he would
confine his judgment in one case only to the evidence adduced in that
particular case.‖
Both Guria on one hand and Balbir and Rajinder on the other hand were
independently accused of murdering Om Prakash. It does not appear to be either
the case of the police or the private complainant that all three accused acted in
concert and killed Om Prakash. Therefore, this Court held that the application of
Section 223(a) is clearly ruled out. In the process, this Court referred
to Ganeswara Rao case [AIR 1963 SC 1850 : (1963) 2 Cri LJ 671] and extracted
certain passages.
11. In case of Balbir v. State of Haryana, (2000) 1 SCC 285, the
Supreme Court held thus:
11. According to Shri D.D. Thakur the case against the appellant and the case
against Guria should have been consolidated together for a joint trial. He made an
endeavour to show that two cases in respect of the murder of one person could be
brought within the ambit of Section 223 of the Code (which corresponds to
Section 239 of the old Code of 1898). As per that provision, all persons falling
under any one of the seven categories enumerated therein can be charged and
tried together. Out of those seven categories enumerated in the section we need
not even advert to those categories indicated with placitum (b), (c), (d), (e) and (f)
of the section as they are not relevant in this context. We would, therefore, extract
clauses (a) and (d) in Section 223 as under:
―223. The following persons may be charged and tried together, namely--
(a) persons accused of the same offence committed in the course of the
same transaction;
(b)-(c)***
(d) persons accused of different offences committed in the course of the
same transaction;‖
In both the aforesaid clauses the primary condition is that persons should have
been accused either of the same offence or of different offences ―committed in
the course of the same transaction‖. The expression advisedly used is ―in the
course of the same transaction‖.
That expression is not akin to saying ―in respect of the same subject-matter‖. It is
pertinent to point out that the same expression is employed in Section 220(1) of
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
the Code also [corresponding to Section 235(1) of the old Code]. The meaning of
the expression ―in the course of the same transaction‖ used in Section 223 is not
materially different from that expression used in Section 223(1) [sic 235(1)]. It is
so understood by this Court in State of A.P. v. Cheemalapati Ganeswara
Rao [AIR 1963 SC 1850 : (1964) 3 SCR 297] . The following observation in the
said judgment is contextually quotable:
―The series of acts which constitute a transaction must of necessity be
connected with one another and if some of them stand 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 Section 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 clauses (a),
(c) and (d) of Section 239 as well as that occurring in Section 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 a commonality of purpose or design, where 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 the same transaction‖.
13. But if in one case the accused 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 233 of the Code has only to be foiled
as untenable.
14. In Harjinder Singh v. State of Punjab [(1985) 1 SCC 422 : 1985 SCC (Cri)
93] a two-Judge Bench of this Court has held that clubbing and consolidation of
two cases, one instituted on a police report and the other instituted on a private
complaint (when both were triable by the Sessions Court) is impermissible. It was
directed that the two cases in such a situation should be tried by the same Judge
but not consolidated. The following direction was given in that case: (SCC p. 426,
para 8)
―[T]he evidence should be recorded separately in both the cases one after
the other except to the extent that the witnesses for the prosecution who
are common to both the cases be examined in one case and their evidence
be read as evidence in the other. The learned Additional Sessions Judge
should after recording the evidence of the prosecution witnesses in one
case, withhold his judgment and then proceed to record the evidence of the
prosecution in the other case. Thereafter he shall proceed to
simultaneously dispose of the cases by two separate judgments taking care
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
that the judgment in one case is not based on the evidence recorded in the
other case.‖
16. We are afraid, in the present case even that much which was directed
in Harjinder Singh case [(1985) 1 SCC 422 : 1985 SCC (Cri) 93] cannot be
permitted, for both versions here are diametrically divergent without anything in
common except that the murdered person was the same. In such cases the most
appropriate procedure to be followed by a Sessions Judge should be the same as
followed in the present case i.e. the two trials were separately conducted one after
the other by the same court before the same Judge and judgments in both cases
were separately pronounced on the same day. No doubt the Sessions Judge should
take care that he would confine his judgment in one case only to the evidence
adduced in that particular case. We may add, if more than one Public Prosecutor
are available at the same station it is advisable that the Public Prosecutor who
prosecuted one case should avoid prosecuting the other case.
12. The prosecution against the original accused Tar Singh, Kaliya, Kalu
and Sadiya is diametrically opposite to the allegations against the
petitioners. Maithu had died. The final report implicated accused- Tar
Singh, Kaliya, Kalu and Sadiya for murder of Maithu. One of the accused
Tar Singh had alleged that Puniya had assaulted Maithu with sword on neck
in presence of other accused. Thus, Maithu was either killed by accused Tar
Singh and his associates or he was killed by Puniya and his associates. Joint
trial of the accused and the petitioners may present serious legal
complications. If the petitioners and the accused are tried jointly, the
prosecution cannot examine accused Tar Singh as prosecution witness
against petitioners, who would be arraigned as co-accused in the joint trial.
Similarly, the petitioners cannot depose for prosecution against the accused
Tar Singh and others after they are arraigned as co-accused in the joint trial.
The offence of murder, either by the original accused or by the petitioners,
cannot be said to be committed ―in the course of same transaction‖ by both
the parties. In such a scenario, fair and proper trial cannot be expected and
NEUTRAL CITATION NO. 2025:MPHC-IND:13916
the trial would suffer from complications entailing a mess. Learned trial
Court did not consider these important aspects of the matter.
13. In view of the above discussion, this Court is of the considered
opinion that the impugned order suffers from patent illegality and manifest
impropriety. Therefore, in exercise of supervisory jurisdiction under Section
397 read with 401 of Cr.P.C., the impugned order dated 30.11.2018 passed
in S.T. No. 133/2018 by the First Additional Session Judge, Jhabua is set
aside. If needed, the trial Court and the prosecution may follow the
procedure laid down in cases of Harjinder Singh and Balbir (supra).
14. The Criminal revision is, accordingly, allowed.
A copy of this order be sent to the concerned for information and
compliance.
(SANJEEV S KALGAONKAR)
JUDGE
sh/-
