Mr. G. Raju vs The State Of Telangana
2025 Latest Caselaw 2337 Tel

Telangana High Court

Mr. G. Raju vs The State Of Telangana on 19 February, 2025

     THE HON'BLE SHRI JUSTICE ANIL KUMAR JUKANTI

          CRIMINAL PETITION No.866 OF 2025

ORDER:

This Criminal Petition is filed under Section 528 of

the Bharatiya Nagarik Suraksha Sanhita (for short 'BNSS')

by petitioners/accused Nos.2 to 6 to call for the records

relating to the order dated 28.11.2024 in Crl.M.P.No.567 of

2024 in SC POCSO No.54 of 2024 on the file of the Special

Court for the Trial of Protection of Children From Sexual

Offences (POCSO) Act Cases, HACA Bhavan at Hyderabad,

and quash the same by conducting separate trial of

petitioners/accused Nos.2 to 6 under Section 218 of the

Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.').

2. Heard Ms. Parimala Parigi, learned counsel for

petitioners/accused Nos.2 to 6, and Ms. S.Madhavi,

learned Assistant Public Prosecutor for respondent- State.

3. Crl.M.P.No.567 of 2024 in SC POCSO No.54 of 2024

is filed under Section 218 Cr.P.C., before the Fast Track

Special Court for the Trial of Protection of Children From

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Sexual Offences (POCSO) Act Cases, Haca Bhavan,

Hyderabad, by petitioners/accused Nos.2 to 6. By order

dated 28.11.2024, the Special Court, passed the following

order:

"... On a perusal of the provision of law u/Sec.218 of Cr.P.C. (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 the opinion that such person is not likely to be prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person.

So, the Section of Law u/Sec.218 Cr.P.C., comes under the purview of Magistrate Court but not Sessions Court. The petition filed by the counsel for accused is not maintainable and it is devoid of merits. Hence, this petition is dismissed."

4. Learned counsel for petitioners/accused Nos.2 to 6

submitted that separate trial of accused Nos.2 to 6 be

conducted under Section 218 Cr.P.C., and as such the

order passed by the trial Court is not in accordance with

law. That this Court can direct the trial Court to take the

case under its purview and pass appropriate orders.

Learned counsel also contended that the trial Court has

erroneously come to a conclusion that Section 218 Cr.P.C.,

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comes under the purview of Magistrate, but not under the

purview of Sessions Judge. It is further submitted that the

Sections charged against the petitioners/accused Nos.2 to

6, as seen, are to be tried separately.

5. Learned Assistant Public Prosecutor for respondent-

State placed reliance on a judgment of the High Court of

Judicature at Madras in G. Rajagopal v. State, rep., by

the Inspector of Police (Crl.R.C.No.1003 of 2022 and

Crl.M.P.No.10437 of 2022, dated 06.09.2022) and

contended that a Criminal Petition is not maintainable and

the petitioners/accused Nos.2 to 6 have to prefer Criminal

Revision before the appropriate Court. It is further

submitted that petitioner(s) has to invoke the jurisdiction

after framing of charges, that in the present case,

petitioner(s) invoked Section 218 Cr.P.C., before the stage

of framing of charges and hence, Crl.M.P.No.567 of 2024 in

SC POCSO No.54 of 2024 is a premature petition and is

liable to be dismissed on this ground too.

6. Heard learned counsels, perused the record and

considered the rival submissions.

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7. Petitioners/accused Nos.2 to 6 filed Crl.M.P.No.567 of

Cr.P.C., praying to try each charge separately. The trial

Court by order dated 28.11.2024 held that the issue is to

be decided by the Magistrate Court, but not by Sessions

Court and dismissed the petition filed by

petitioners/accused Nos.2 to 6, as not maintainable and

devoid of merits. This order dated 28.11.2024 is under

challenge in the present Criminal Petition.

8. A learned Single Judge of the High Court of

Judicature at Madras in G. Rajagopal (supra), while

dealing with the issue of invoking Section 218 Cr.P.C., in

Crl.R.C.No.1003 of 2022, held as follows:

"6. Admittedly, the petitioner was charged for the offences under Sections 11(i)(ii)(iii)(iv) r/w 12 of The Protection of Children from Sexual Offences Act, 2012 and Sections 354(A) and 509 IPC and Sections 67 and 67(A) of Information and Technology Act, 2000. After investigation, the respondent/Police laid a charge sheet before the Court below. The Court below is yet to hear the prosecution and to frame the charges. Even before hearing the prosecution, the petitioner, with so https://www.mhc.tn.gov.in/judis much anxiety, has filed the above petition by invoking Section 218 Cr.P.C. and the trial Judge went through the

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materials and referred several judgments and also invoked Section and has dismissed the petition.

7. On a careful perusal of the records, this Court finds that by invoking Section 218 Cr.P.C by the petitioner is premature and the petitioner has not allowed the trial Court to apply its mind and frame charges and even after framing charges, if any, grievance is against that, and if the petitioner is prejudiced with regard to framing of charges, he can challenge the said order. Even the petitioner has not filed the petition to discharges him from the commission of particular offence. The only grievance of the petitioner is that the charges have to be framed separately for the distinct offences. Without allowing the trial Court to apply its mind to frame the charges and that there are no materials to show to testify the order of the trial Court, that what would be the stand taken by the trial Court and this Court finds that by invoking Section 218 https://www.mhc.tn.gov.in/judis Cr.P.C by the trial Court is a premature and though the learned counsel for the petitioner submitted that there are 8 counts in the POCSO Act offence and from the order passed by the trial Court, the materials do not show the cause of action for each count, whether it is beyond one year or beyond the period of limitation. So without materials this Court cannot club together or show that all the charges would be framed by the trial Court.

8. Under these circumstances, this Court finds that by invoking Section 218 Cr.P.C., the petitioner has filed the petition before the trial Court which is unnecessary and unwarranted at the stage of pending cases for framing charges. However, whatever the grievance, the trial Court is directed to give opportunity to all the parties and both the counsel before framing charges in accordance with law."

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9. Section 218 Cr.P.C., is as follows:

"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 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."

10. On perusal of the order of the learned Single Judge of

the High Court of Judicature at Madras in G. Rajagopal

(supra), this Court is of the opinion that the order passed

by the High Court of Judicature at Madras is in accordance

with Section 218 Cr.P.C., and this Court is not inclined to

take a different view. It is also noticed from the order that

the appropriate legal remedy to challenge an order passed

under Section 218 Cr.P.C., is to file a Criminal Revision

and not invoking the jurisdiction of Section 482 Cr.P.C., by

way of a Criminal Petition. This is also the contention of

the learned Assistant Public Prosecutor.

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11. The Criminal Petition filed is not maintainable and is

liable to be dismissed and accordingly dismissed. However,

petitioners/accused Nos.2 to 6 are at liberty to avail the

remedies available under law.

Miscellaneous applications pending, if any, shall

stand closed.

___________________________ ANIL KUMAR JUKANTI, J Date:19.02.2025 KH