Orissa High Court

(An Application Under Section 482 ... vs State Of Odisha And Another on 4 April, 2023

                IN THE HIGH COURT OF ORISSA AT CUTTACK

                               CRLMC NO.1207 OF 2022

          (An application under Section 482 Cr.P.C. Code of Criminal Procedure,
          1973)


               Mohan Kumar Bhuyan                            ...                 Petitioner


                                              -versus-

                State of Odisha and another ...                              Opp.       Parties


               Advocates appeared in the case through hybrid mode:

            For Petitioner                      :     Mr. A.K. Behera,
                                                      S. Mohapatra,
                                                      M.B. Smruti Ranjan
                                                      S. Routray, Advocates

                                                          -versus-

            For Opposite Parties                :     Mr. S.K. Mishra,
                                                      Addl. Standing Counsel
              --------------------------------------------------------------------------------
                       CORAM:
                                 JUSTICE SASHIKANTA MISHRA
                                      JUDGMENT

4th April, 2023

Sashikanta Mishra, J. The petitioner is facing trial in two cases,

one being C.T. Special POCSO No.34 of 2020 originally

in the Court of learned Additional District and Sessions

Judge-cum-Special Judge, POCSO, Jajpur and the

other being C.T. Special POCSO No.36 of 2020 pending

in the Court of learned Additional District and Sessions

Judge-cum-Ad-hoc Special Judge, POCSO, Jajpur. In

the present application filed under Section 482 of

Cr.P.C. he seeks to challenge order dated 04.02.2023

passed by learned Additional District and Sessions

Judge-cum-Special Judge POCSO, Jajpur whereby his

prayer for trial of both the aforementioned cases was

rejected.

2. The facts, relevant only to decide the present

case are that two FIRs was lodged on 07.03.2020 before

IIC of Panikoili P.S. by two persons alleging that their

minor daughters, both of whom were studying in Class-

VI in Nodal U.P. School, Karada had expressed their

unwillingness to attend classes on the ground that the

petitioner, being a teacher of that school had sexually

assaulted them and also threatened to kill them if they

disclosed the matter. As such, Panikoili P.S. Case Nos.

61 and 62 of 2020 were registered corresponding

respectively to C.T. Special POCSO No.34 of 2020 in the

Court of learned Additional District and Sessions

Judge-cum-Ad-hoc Special Judge (POCSO), Jajpur and

C.T. Special POCSO No. 36 of 2020 in the Court of

learned Additional District and Sessions Judge-cum-

Special Judge (POCSO), Jajpur. Investigation in both

the cases having concluded charge sheet was submitted

on 05.05.2020 for the offences punishable under

Sections 376(A)/506/ 376(2)(n) of IPC read with Section

6 of the POCSO Act.

3. In C.T. Special POCSO No.36 of 2020, charge was

framed and trial commenced during which four out of

twenty one charge-sheeted witnesses have already been

examined. However, in so far as Panikoili P.S. Case No.

61 of 2020 is concerned, it is claimed that charge has

not been framed as yet. The petitioner filed an

application on 03.08.2022 in C.T. Special POCSO No.34

of 2020 under Section 219 read with 220 of Cr.P.C to

frame charge along with C.T. Special POCSO No.36 of

2020. Learned Ad-hoc Special Judge, POCSO held that

the other case does not belong to his Court. The

petitioner thereafter filed an application under Section

408 of Cr.P.C. in the Court of learned Sessions Judge,

Jajpur who, after considering the facts and

circumstances transferred the case record in C.T.

Special No. 34 of 2020 from the Court of Ad-hoc Special

Judge to the Principal Court. As such, both the cases as

mentioned above are now pending before the learned

Additional District and Sessions Judge-cum-Special

Judge (POCSO), Jajpur.

4. The petitioner filed an application on 03.08.2022

before the Principal Court claiming analogous trial of

both the cases under the provisions of Section 219 read

with Section 220 of Cr.P.C.. The said application came

to be rejected by order dated 04.02.2023 passed by the

Court below by holding that one of the cases is at the

fag end of the trial whereas in the other case charge has

only been framed. At this stage hearing of both the

cases together will prejudice the victims. On such

ground, the petition was rejected by the order

impugned.

5. Heard Mr. A.K.Behera, learned counsel for the

petitioner and Mr. S.K. Mishra, learned Additional

Standing Counsel for the State.

6. It is argued by Mr. A.K. Behera that since

allegations in both the cases are identical, they should

be tried together in the interest of accused as well as

the victim. Moreover hearing of the cases separately

would cause double jeopardy to the accused. It would

be rather helpful to the prosecution as only one set of

evidence would have to be adduced in support of its

cases Mr. Behera has relied upon a decision of the

Apex Court in the case of Nasib Singh vs. State of

Punjab and another, reported in 2022 2 SCC 89.

7. Per contra, Mr. S.K.Mishra, learned State

Counsel has argued that though similar yet both the

cases cannot be said to have arisen out of the same

occurrence so as to be tried together. He further

submits that Section 219 of Cr.P.C has no application

since trial has already commenced in one of the cases.

It would therefore cause serious prejudice to the

prosecution if both cases are heard are tried together.

8. The provision under Section 219 of Cr.P.C runs

as follows:-

"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 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 220 of Cr.P.C. runs as follows:-

"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 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 )."

9. Undoubtedly, law provides for trial of more

offences then one together under fulfillment of the

conditions stated above. Section 220 of Cr.P.C.

however, permits joint trial or one trial for more

offences than one committed by the same person if the

acts are connected together to form the same

transaction.

10. In the case of Nasib Singh (supra), the Apex

Court formulated inter alia the following principles:-

"51.1. Section 218 provides that separate trials shall be conducted for distinct offences alleged to be committed by a person. Section 219-221 provide exceptions to this general rule If person falls under these exceptions, then a joint trial for the offences which a person is charged with may be conducted. Similarly, under Section 223, a joint trial may be held for persons charged with different offences if any of the clauses in the provision are separately or on a combination satisfied.

51.2. while applying the principle enunciated in section 218-223 on conducting joint separate trials, the trial court should apply a two pronged test namely, (i) whether conducting a joint/separate trial will prejudice the defence of the accused; and/or (ii) whether conducting a joint/separate trial would cause judicial delay.

51.3. The possibility of conducting a joint trial will have to be determined at the beginning of the trial and not after the trial based on the result of the trial. The appellate court may determined the validity of the argument that there ought to have been a separately/joint trial only based on

whether the trial had prejudiced the right of accused of the prosecutrix.

51.4. Since the provisions which engraft an exception use the phrase "may" with reference to conducting a joint trial, a separate trial is usually not contrary to law even if a joint trial could be conducted, unless proven to cause a miscarriage of justice."

Thus, this Court is required to see firstly,

whether conducting a joint/separate trial will prejudice

the defence of the accused and secondly, whether it

would cause judicial delay.

11. There is no dispute that two separate FIRs were

lodged by two separate persons making similar

allegations against the petitioner. The victims in both

the cases are different. The prosecution has to

independently establish the charges in both the cases

by adducing appropriate evidence. The informants and

the victims are different. The accused has to put forth

his defence separately in each of the cases. It is