CR.RA/493/2008 1/30 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 493 of 2008 WITH CRIMINAL REVISION APPLICATION No. 498 of 2008 WITH CRIMINAL REVISION APPLICATION No. 508 of 2008 WITH CRIMINAL REVISION APPLICATION No. 515 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE H.B.ANTANI ================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment? YES 2 To be referred to the Reporter or not? YES 3 Whether Their Lordships wish to see the fair copy of the judgment? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any Order made thereunder? NO 5 Whether it is to be circulated to the Civil Judge? NO ================================================== ASHWIN CHATURBHAI PARMAR AND ANOTHER - Applicants Versus STATE OF GUJARAT - Respondent ================================================== Appearance : CRIMINAL REVISION APPLICATION NO. 493 OF 2008 MR AY KOGJE for the Applicants. MS SHILPA R SHAH for the Complainant. CRIMINAL REVISION APPLICATION NO. 498 OF 2008 MR DHARMESH BHATT for the Applicant. MS SHILPA R SHAH for Respondent No. 2. CRIMINAL REVISION APPLICATION NO. 508 OF 2008 MR PB BAROT for the Applicant. CRIMINAL REVISION APPLICATION NO. 515 OF 2008 MR MK PATEL for the Applicant. CRIMINAL REVISION APPLICATION NOS. 493, 498, 508 and 515 OF 2008 MS MANISHA L. SHAH, ADDITIONAL PUBLIC PROSECUTOR for the Respondent-State. ================================================== CORAM : HONOURABLE MR.JUSTICE H.B.ANTANI Date : 31/07/2008 CR.RA/493/2008 2/30 JUDGMENT ORAL JUDGMENT 1. RULE. Learned Additional Public Prosecutor Ms. Manisha L. Shah waives service of Rule on behalf of the respondent-State and learned Advocate Ms. Shilpa R. Shah waives service of Rule for the respondent-complainant. In the facts and circumstances of the case, the matter is taken up for hearing today. 2. As common question of law is involved in all the three Revision Applications, they are heard together and disposed of by this common judgment. 3. These applications are preferred under Section 397 of the Code of Criminal Procedure, 1973 (“the Code”, for short) read with Section 401 of the Code in connection with Special Case No. 22 of 2008 pending before the Special Judge, Fast Track Court No. 1 at Patan. The petitioners are aggrieved by the order passed by the learned Additional Sessions Judge and Presiding Officer, Fast Tract Court, Patan, below Exhs. 53 and 54 by which the application preferred by the accused for framing of the separate charge was dismissed. 4. The main contention in all the Revision Applications preferred by the petitioners is that as the learned Judge has committed gross error in not appreciating the fact that the charge framed against the petitioners is against the provisions of law inasmuch as Section 218 of the Code mandates that the separate charge is required to be framed for distinct offences. The learned Judge has also erred in not correctly applying CR.RA/493/2008 3/30 JUDGMENT Section 223 to the facts of the present case. On perusal of Section 223 of the Code, it becomes clear that Section 223 provides for categories of the persons who may be charged jointly. The facts of the present case do not attract any of the said categories as enumerated in sub-sections (a) to (g) of Section 223 so as to enable the learned Judge to charge the petitioners and accused jointly. It is submitted that the learned Judge has not considered the proviso to Section 223 of the Code. The proviso enables the Court to try all the persons charged with separate offences. However, it is the liberty of such accused persons to make the application for joint trial. The learned Judge ought to have considered the factual aspect of the case because as per the prosecution case, 5 different incidents of rape are alleged to have taken place against 6 accused persons. The first incident took place on 11-09-2007 at the PTC College wherein accused Nos. 1 to 3 were involved. The second incident took place on 28-09-2007 at the PTC College wherein accused Nos. 2, 3 and 4 are also alleged to have been involved. The third incident at PTC College took place on 01-01-2008 wherein accused Nos. 2, 4 and 5 are alleged to have been involved. The fourth incident took place on 11-01-2008 at Village: Kimbuva wherein accused Nos. 2, 4 and 5 are alleged to have been involved and the fifth incident took place on 25-01-2008 at PTC College wherein accused No. 6 is alleged to have been involved. On perusal of the aforesaid dates, it becomes clear that all the accused were not involved in all the incidents. This fact was overlooked by the learned Judge while framing the charge vide Exh. 29 on 13-06-2008. It is submitted that even the learned Special Judge has not taken into consideration the case of the prosecution in the charge- sheet. Even though the prosecution did not think it fit to CR.RA/493/2008 4/30 JUDGMENT invoke Section 120B of the Indian Penal Code (“IPC”, for short) in the charge-sheet as there was no element of conspiracy or meeting of minds so as to attract Section 107 of IPC. However, the learned Judge proceeded to add Section 120B of IPC in the charge framed vide Exh. 29 to the present case. The learned Judge has also erred in interpreting the phrase “in the course of the same transaction”. While considering the aforesaid aspect, the learned Judge has considered all the five independent incidents to be part of one common transaction. Even though there was no evidence to that effect, it was held that there was commonality of purpose and design and, therefore, there was a continuous effect. The learned Judge has overlooked the fact that even the complainant had not stated in the complaint or in the further statement and not alleged that the accused had the common intention, and in support of each other to achieve the common goal in collusion / conspiracy with each other, they jointly committed the offences. Thus, the learned Judge has committed error in coming to the conclusion that all the incidents can be said to have arisen from the same transaction. It is submitted that the expression “same transaction” means different incidents which are interwoven in such a manner that one transaction is dependent upon the other and thereby make one transaction, and in the present case, for each of the alleged instances separate and independent complaints could have been filed and there was no reason for the complainant to wait till the incident dated 25-01-2008 because there was no connection between the first incident and last incident and likewise the incidents in between which were alleged to have happened between the first incident and the last incident and, therefore, the framing of the joint charge and joint trial itself is defective. CR.RA/493/2008 5/30 JUDGMENT 5. It is further submitted that the reasoning given by the learned Judge in the order vide Exhs. 54 and 55 is not just and proper in the facts and circumstances of the case and, therefore, the order passed by the learned Judge deserves to be set aside. It is submitted that the charge framed vide Exh. 29 is prejudicial to all the petitioners and it will deprive the petitioners of their fundamental right of free and fair trial and, therefore, it requires to be quashed and set aside. So far as original accused No. 4 is concerned, it is submitted that that provisions of Section 376 (g) cannot be made applicable to the said petitioner-accused No. 4, as he was not directly involved in the commission of rape, and, at the most the petitioner can be charged for the offences punishable under Section 377 of the IPC. It is submitted on behalf of original accused Nos. 1 and 3 that even if the charge is not framed separately and in a distinct manner against each accused, the offences against each accused may be mentioned separately in the same charge. As regards accused No. 6, it is submitted that the petitioner has been falsely implicated in the commission of offences. On the date of the incident, the petitioner was working as a Computer Teacher and not as a regular teacher or teaching staff and, therefore, he cannot be roped in along with other petitioners for the offences enumerated in the charge. 6. It is submitted that Chapter XVII of the Code deals with the framing of the charge. Section 211 is with regard to the contents of the charge. It is stated that every charge under this Code shall state the offence with which the accused is charged. Section 212 deals with the particulars as to time, place and person against whom offence is committed. It is CR.RA/493/2008 6/30 JUDGMENT stated in sub-section (1) that 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 manner with which he is charged. While Section 216 is with regard to alteration in the charge, the Court may alter or add any charge at any time before the judgment is pronounced. It is further mentioned in the said Section that every such alteration or addition shall be read and explained to the accused. While Section 218 deals with separate charges for distinct offences, sub-section (1) of Section 218 makes it clear 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. The proviso is also made wherein it is stated 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 while sub-section (2) says that nothing in sub-section (1) shall affect the operation of the provisions of Sections 219, 220, 221 and 223. Section 219 provides that three offences of same kind within a year may be charged together. Section 220 provides for trial for more than one offence. Section 223 is with regard to the persons who may be charged jointly. It is stated therein that 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) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence; CR.RA/493/2008 7/30 JUDGMENT (c) persons accused of more than one offence of the same kind, withing 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; (g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) 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 or Court of Session may, if such persons by an application in writing, so desire, and if he or it is satisfied that such persons would not be prejudically affected thereby, and it is expedient so to do, try all such persons together. It is submitted on behalf of the petitioners that considering Section 218 of the Code, separate charge ought to have been framed by the learned Judge against each of the CR.RA/493/2008 8/30 JUDGMENT accused as they were involved in distinct offences and, therefore, the order passed by the learned Judge deserves to be quashed and set aside. The provisions, as contained in Section 223 of the Code, more particularly, clause (a) - “persons accused of the same offence committed in the course of the same transaction” and clause (d) - “persons accused of different offences committed in the course of the same transaction” would not apply to the facts of the present case. Thus, it is submitted that considering the clear provision of law as provided under Section 218 of the Code, the learned Judge ought to have framed separate charge against the accused persons. 7. The learned Advocates for the petitioners-accused relied upon the following citations in support of the submission that prayer, as set out, in the applications requires to be granted and the order passed by the learned Judge below Exhs. 54 and 55 be quashed and set aside: (i) Lalu Prasad Alias Lalu Prasad Yadav Vs. State Through CBI (A.H.D.), Ranchi, Jharkhand, (2003) 11 SCC 786. In this case, the Apex Court considered the powers of the Magistrate to amalgamate the cases. It was held that powers conferred under Section 223 of the Code is discretionary in nature. The Magistrate has to be satisfied that the persons would not be prejudicially affected and it is also expedient to amalgamate the cases. In the matter before the Apex Court, amalgamation of 6 cases were sought by the appellants on the plea that there was one conspiracy. The CR.RA/493/2008 9/30 JUDGMENT charges were under the Prevention of Corruption Act and of the offence of conspiracy to defraud the Government exchequer of large sums of money. There was no finding by the High Court that there was a single conspiracy. The High Court rightly held that the said question could not be decided unless all the cases reach the stage of framing of charges. Out of 6 cases, 3 cases were at the appearance stage. Further, the accused in all the said cases did not apply for the joint trial. That apart, the charge of conspiracy was only an alleged charge. The main charges (under the Prevention of Corruption Act) were in respect of separate and distinct acts i.e. monies siphoned out of different treasuries at different times. In view of the aforesaid reasoning, it was held that the said cases could not be amalgamated. (ii) Om Prakash Vs. Delhi Administration and Another, (1976) SCC 637. In this case, the Apex Court considered the provisions of Sections 7 and 16 of the Prevention of Food Adulteration Act, 1954. In the case before the Apex Court, more than one sample of the same item of food was taken from different receptacles. It was held that each sample was a separate sale and each such sale constituted a distinct and separate offence if such sample is found adulterated. Whether the act of storing was a single act or separate acts, it was held immaterial in the absence of another charge of storing adulterated food for sale. (iii) State of West Bengal Vs. Mohd. Abu Bakar Siddique Molla, AIR 1989 SC 129. CR.RA/493/2008 10/30 JUDGMENT In this judgment, the Apex Court considered the provisions of Sections 221 and 454 of the Code and held that in judging the question of prejudice, as of the guilt, the Court must act with broad vision. Looking to the substance and not to the technicalities and their main concern should be to see whether he knew as to what was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself. While dealing with Section 218 of the Code, the Apex Court held that Section 218 embodies the general rule as to the trial of accused persons which provides for separate trial for each accused person for every distinct offence and is based on fundamental principal of criminal law that each person must have notice of the charge which he has to meet. Section 221 which is an exception to Section 218 applies to a case only when from the evidence led by prosecution, it is doubtful which of several offences has been committed by the accused person. There must not be any doubt as to 'single act or series of acts' which constitute the transaction i.e. to say there must not be any doubt as to the facts. The doubt must be as to the inference to be deduced from these facts, thus making it 'doubtful' which of the several offences the facts which can be proved will constitute. (iv) Somabhai Shamabhai Patel and Others Vs. State of Gujarat, 1986 GLH 857. The judgment is rendered by our High Curt wherein the provisions of Sections 218 and 223 of the Code were CR.RA/493/2008 11/30 JUDGMENT considered. Sections 218 to 223 which deal with the joinder of charges should be read together and not in isolation insomuch as they deal with same subject-matter and set out different aspects of it. It is true that general rule is that for every distinct offence of which any person is accused, there shall be separate charge and every such charge shall be tried separately and joint trial is an exception. It appears that the object of Section 218 in requiring that there shall be separate trial for every charge is two-fold, firstly, to giving the accused notice of charges and secondly to see that he is not embarrassed by having to meet charges in no way connected with one another. It is further held that right from Sections 219 to 220, certain exceptions to above rule have been carved out. (v) Priya Sharan Maharaj alias Yadavendra Parashar And Others Vs. State of Maharashtra, 1995 Criminal Law Journal 3683. In this judgment, our Bombay High Court considered the provisions of Section 218 of the Code with regard to the framing of the charge and held that the accused therein was charged with the commission of five offences of rape. There was no proximity of time or place or unity for purpose, design or continuity of action. The Court held that each of the offences would be a different offence and, therefore, the clubbing all the five offences of rape in one was illegal. (vi) Kershi Pirozsha Bhavnagar Vs. State of Gujarat, 2007 (3) GLR 2508. In this judgment, our High Court considered the CR.RA/493/2008 12/30 JUDGMENT provisions of Section 138 of the Negotiable Instruments Act, 1973 as well as Sections 218 and 219 of the Code and dealt with the question of joint trial of three offences of the same kind and held that dishonour of each cheque is a separate offence and the contention which was raised by the accused that all the offences of dishonour of different cheques was given as a part of the same transaction can be tried together was negatived. (vii) D. K. Chandra Vs. The State, AIR 1952 Bombay 177 In this judgment, the Full Bench of the Bombay High Court considered the provisions of Sections 233, 234, 235 and 236 of the Code and held that joinder of the four charges did not fall within any of the three exceptions laid down in Section 233 and, therefore, was contrary to law. Although the accused was charged with having committed only two acts, in respect of those two acts he was charged with having committed four offences, not of the same kind and, therefore, there was clear contravention of Section 234 (1). The two acts in respect of which the charges were framed being separate and distinct, the joinder was not justified under Section 235 (1). (viii) Sakshi Vs. Union of India And Others, (2004) 5 SCC 518. This judgment is cited on behalf of accused No. 4 in support of the submission that considering the facts of the case, accused No. 4 could have been booked under Section 377 of IPC. CR.RA/493/2008 13/30 JUDGMENT 8. The learned Additional Public Prosecutor representing the respondent-State submitted that as per the prosecution case, all the accused persons were working as a lecturers and teaching at the PTC College, Distict Patan. In connivance with each other, they abused their power and position in the capacity as Government servants and sexually abused and harassed the students residing at the said Institute and studying under them. They particularly singled out the victim who belonged to Schedule Caste and committed gang- rape at different times and different campus locations during the semester system. All the accused were aware that the prosecutrix belonged to the Scheduled Caste. Therefore, exploiting their position of authority and by putting her under serious threat of life, they committed serious crime of gang- rape on prosecutrix. 9. It is submitted by the learned Additional Public Prosecutor that the charge-sheet against the accused came to be submitted by the prosecution. Thereafter, accused Nos. 1, 2 and 3 preferred application for discharge under Section 227 of the Code. All the applications subsequently were withdrawn. Thereafter, the charge was proposed on behalf of the prosecution and the copy of the same was also given to the respective Advocates of the accused. It was argued on behalf of the accused that charge under Section 3 (1) (5) of the Schedule Caste and Schedule Tribes (Prevention of Atrocities) Act was not made out and hence be deleted and ultimately, the charge came to be framed on 13-06-2008 for the offences punishable under Sections 342, 354, 376 (2), (b), (c) and (g), 377, 292 (2) (A), 506 (2) and 120B of IPC as well as under CR.RA/493/2008 14/30 JUDGMENT Sections 3 (1) (12) of the Schedule Castes and Schedule Tribe (Prevention of Atrocities) Act. The applications were preferred on behalf of the accused after nearly one month to quash the charge when the trial was about to commence and the prosecutrix was in the witness box only with a view to delay the trial. It is submitted by the learned Additional Public Prosecutor that if separate trial is held then it would seriously prejudice the case of the prosecution as the evidence to be led by the prosecution consists of all the same witnesses. Considering the traumatized condition of the prosecutrix coupled with the fact that large number of female students studying under the accused are to be examined along with the commonality of the evidence to be adduced to establish the charge of Sections 342, 354, 376 (2), (b), (c) and (g), 377, 292 (2) (A), 506 (2) and 120B of IPC as well as under Sections 3 (1) (12) of the Schedule Castes and Schedule Tribe (Prevention of Atrocities) Act, 5 separate trials for the gang-rape of prosecutrix would prove lethal to the prosecution case. 10. The learned Additional Public Prosecutor submitted that whether all the accused, as stated in the charge, conspired with each other to sexually harass the students of PTC Institute by demanding sexual favours for the internal marks by passing lewd comments and by exploiting their position of power and authority over the prosecutrix studying under them and repeatedly committed the offences is required to be considered by the Trial Court by proper appreciation of evidence. It has been urged on behalf of the petitioners that the provisions of Section 120B cannot be invoked along with Sections 342, 354, 376 (2), (b), (c) and (g), 377, 292 (2) (A), 506