Madras High Court

K.S.Sathish Kumar vs The State Of Tamilnadu on 2 March, 2021

                                                           Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021


                                   IN THE HIGH COURT OF JUDICATURE AT

                                                     MADRAS

                                                DATED : 02.03.2021

                                                      CORAM

                        THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA

                                              Crl.R.C.No.103 of 2021
                                                           and
                                             Crl.M.P.No.1938 of 2021
                     K.S.Sathish Kumar
                     S/o.V.Sundararajan                                                  ... Petitioner
                                                            Vs.
                     The State of Tamilnadu
                     Rep. By
                     The Inspector of Police
                     Vigilance & Anti-Corruption
                     Salem
                     Cr.No.7/AC/2013                                                      ...Respondent

                     Prayer: Criminal Revision Petition filed under Section 397 and 401
                     Cr.P.C. to set aside the order dated 22.11.2019 made in Crl.M.P.No.483
                     of 2019 in Spl.C.C.No.4 of 2019 on the file of the Special Judge (Special
                     court for Trial of cases under the Prevention of Corruption Act), Salem.

                                          For Petitioner       : Mr.K.S.Karthik Raja
                                          For Respondent         : Mr.C.Iyyappa Raj
                                                                  Additional Public Prosecutor

                     1/16

https://www.mhc.tn.gov.in/judis/
                                                           Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021


                                                        ORDER

This petition has been filed seeking to set aside the order dated

22.11.2019 in Crl.M.P.No.483 of 2019 in Spl. C.C.No.4 of 2019 passed

by the learned Special Judge (Special Court for Trial of Cases under the

Prevention of Corruption Act), Salem.

2.The brief facts of the case is that the petitioner is A7 facing

trial in Spl.C.C.No.4 of 2019 along with 6 other accused for offence

under Sections 120B read with 167, 477A, 420, 409 IPC read with 13(2),

13 (1) (C) and (d) of PC Act and 120 of IPC read with 167, 477A, 420,

409 read with 109 IPC and 109 read with 13(2) read with 13(1) (C) and

(d) of PC Act. The petitioner is also an accused in Spl.C.C.No.5 of 2019

and facing trial along with 7 other accused for offence under Sections

120B read with 167, 477A, 420, 409 IPC read with 13(2), 13 (1) (C) and

(d) of PC Act and 120 of IPC read with 167, 477A, 420, 409 read with

109 IPC and 109 read with 13(2) read with 13(1) (C) and (d) of PC Act.

The allegation in both the charge sheets is that the accused A1 to A3

hatched criminal conspiracy along with A4 to A8, private individuals to

https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021

misappropriate public money by entertaining the bogus claim

applications from the SC/ST students as if, they have been studying in

the institutions (non-existing and existing) and with the connivance of

private individuals A4 to A8, committed misappropriation of the public

money by framing incorrect documents, forgery and falsification of

accounts and used the forged documents as genuine and further

committed misappropriation of the Government funds granted to the

SC/ST students as Post Metric Scholarship for the period from the year

2010 to 2011 and 2011 to 2012 at Salem.

3. The petitioner claiming that the charges against the

petitioner and other accused in both the cases were similar and that the

alleged occurrences are continuous occurrences raising out of a single

crime number namely 7/AC/2013 and claiming that in both the cases

most of the evidences, documents, accused and witnesses are common,

had filed a petition under Section 220 and 223 Cr.P.C. in Crl.M.P.No.483

of 2019 in Spl.C.C.No.4 of 2019 seeking to frame charges together in

Spl.C.C.No.4 of 2019 and Spl.C.C.No.5 of 2019 and try both the cases

together for single trial.

https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021

4. The respondent had filed a counter. In the counter it had

been stated that originally the case in Crime No.7/AC/2013 was

registered and investigated against the above accused and one accused

was deleted from the charge sheet, since no case was made out against

him. Thereafter, during the course of investigation, the Investigating

Officer had collected numerous documents and taking into consideration

that there are distinct offences committed by the public servants with the

aid of the other accused in committing offences of criminal misconduct,

criminal breach of trust, misappropriation of funds by cheating,

falsification of accounts and framing incorrect documents, the

prosecution taking into consideration Section 23 of the Prevention of

Corruption Act, had filed two separate charge sheets against the

petitioner for various charges. Further, since the offences committed by

each of the accused were distinct and that the period between the first

and the last date of the offence were beyond one year, separate charge

sheets had been filed under Section 23 of the Prevention of Corruption

Act which is a special provision. It was further stated that as per Section

212 Cr.P.C. and Section 23 of Prevention of Corruption Act, since the

https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021

charges were in respect of offences under Section 13(1)(c) read with

13(2) of the Prevention of Corruption Act and which were committed

beyond the period of 12 months, the petition for joint trial was not

maintainable.

5. The trial Court finding that the charges were framed against

different accused i.e in Spl.C.C.No4 of 2019 the charges had been

framed against 7 accused and in Spl.C.C.No.5 of 2019, the charges had

been framed against 8 accused and also finding that the charges were in

respect of offences which were distinct and were committed beyond the

period of one year, by following the dictum laid in G.P.Parameswaran

Nair Vs. Kerala reported in 1990 Crl.L.J. 2011, had dismissed the

petition filed by the petitioner in Crl.M.P.No.483 of 2019 vide order

dated 22.11.2019. Against which, the present revision has been filed.

6. Heard Mr.K.S.Karthik Raja, learned Counsel for the

petitioner and Mr.C.Iyyappa Raj, Additional Public Prosecutor for

respondent.

https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021

7. Mr.K.S.Karthik Raja, the learned Counsel for the petitioner

would submit that all the charges against the petitioner are one and the

same and the learned Judge has failed to see that the charges against the

petitioner and the other accused are almost similar and most of the

evidences and documents relied on by the prosecution is common and

therefore, the learned Judge ought to have allowed the petition for a

single trial. He would submit that even as per the recital in the counter

filed by the respondent in both the cases, the acts contemplated are

series of acts and the transactions are alleged to have been committed by

the same accused and therefore, in the interest of justice, it is necessary

to frame charges together and both the cases have to be tried together as

one trial. He would submit that by separating the cases, the rights of the

petitioner is affected due to multiplicity of proceedings and thereby,

grave prejudice is caused to the petitioner since, he has to face two trial.

He would seek for setting aside the order and direction for a single trial.

8. The learned Additional Public Prosecutor would vehemently

oppose stating that in this case the petitioner along with 7 other accused

https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021

in C.C.No.4 of 2019 is tried for having committed misappropriation of

public money by framing incorrect documents and forgery and

falsification of accounts and using the forged document as if a genuine

one. The period of offence in Spl.C.C.No.4 of 2019 is committed during

the year 2010 to 2011 and as far as Spl.C.C.No 5 of 2019 is concerned,

the same offences were committed during the year 2011 to 2012, beyond

the period of 12 months. The petitioner is also charged for offence under

Sections 13(1)(c) read with 13(2) of the Prevention of Corruption Act

committed during the period and obviously, as per Proviso to Section

212 Cr.P.C and Proviso to Section 23 of PC Act, separate trials have to

be conducted and thereby the trial Court had rightly dismissed the

petition seeking for joint trial. He would submit that there is no

illegality or irregularity in the impugned order passed by the trial Court

and would press for dismissal of the revision.

9. In this case, certain other public servants along with the

petitioner are alleged to have committed offence of criminal misconduct,

criminal breach of trust, misappropriation of funds by cheating,

https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021

falsification of accounts in framing of incorrect documents. Though, it

may look as if series of acts are connected together in one transaction,

there are distinct offences committed by each of the accused for the

period from 2010 to 2011 and 2011 to 2012.

10. At this juncture, it is relevant to refer to Sections 212 and

219 Cr.P.C. and Section 23 of Prevention of Corruption Act.

Section 212 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 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

https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021

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.

Section 219 Cr.P.C.: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 laws:

https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021

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 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

Section 23 of the Prevention of Corruption Act;

23. Particulars in a charge in relation to an offence under 1 [section 13(1)(a)].—Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), when an accused is charged with an offence under 2 [clause (a)] of sub-

section (1) of section 13, it shall be sufficient to describe in the charge the 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

https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021

dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219 of the said Code:

Provided that the time included between the first and last of such dates shall not exceed one year.

11. As stated above in the first case in Spl.C.C.No. 4 of 2019

is concerned, the offences are alleged to be committed during the year

2010 and there are totally 7 accused along with the petitioner and in

respect of the case in Spl.C.C.No.5 of 2019 is concerned, the offences

are alleged to be committed during the year 2012 and there are totally 8

accused along with the petitioner. In view of the fact that the charges are

framed in respect of distinct offences committed beyond the period of 12

months and thereby, the trial Court considering Section 212 Cr.P.C. and

Section 23 of the Prevention of Corruption Act, had rightly decided to

conduct separate trial. Further, Section 219 Cr.P.C. also makes it clear

that 3 offences of same kind and within a year may be charged together,

whereas in this case, the charges are in respect of offences committed

during the period between 2010 to 2012 which is beyond the period of

https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021

12 months and thereby, the respondent has filed two separate charge

sheets. For easy reference, the charges alleged against the petitioner

/accused and the relevant period of offence is stated below;

Spl.C.C.No.4 of 2019 - Period from 2010 to 2011 S.No. Charge Numbers Period of Offence

Spl.C.C.No.5 of 2019 - Period from 2011 to 2012 S.No. Charge Numbers Period of Offence

https://www.mhc.tn.gov.in/judis/ Crl.R.C.No.103 of 2021 and Crl.M.P.No.1938 of 2021

12. Thus, the time/period between the first and last charge is

beyond one year and thereby, the trial Court has split up and taken the

cases for separate trial.

13. It is relevant to refer to the Judgment of Lalu Prasad @

Lalu Prasad Yadav vs The State Of Jharkhand, reported in 2017 8 SCC

1 wherein, the Hon'ble Apex Court has held that separate trial is a rule

and joint trial is an exception and further in the case of Essar

Teleholdings Limited Vs. CBI reported in 2015 10 SCC 562, the Hon'ble

Apex Court has held that holding of joint trial is a discretion vested with

the Court and holding of joint trial is not obligatory.

14.In view of the fact that the offences have been committed in

respect of distinct offences beyond a period of 12 months, the trial Court

has rightly decided to conduct separate trial. Further, in the opinion of

this Court, no prejudice is caused to the petitioner by such separate trials.

This Court finds no error or infirmity in the order passed by the learned