HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL REVISION CASE No.251 of 2011 ORDER:- The petitioner herein is the accused in S.C.No.653 of 2010 on the file of the Court of V Metropolitan Sessions Judge – cum - Mahila Court, Hyderabad (trial Court). He has been charge sheeted by the Inspector of Police, WCO- Team I, CCS, Hyderabad for offences punishable under Ss.376, 354, 506 and 201 IPC. The said case arises out of Crime No.173/ 2010 of Central Crime Station Police Station, Hyderabad. The petitioner is reported to be in judicial custody. 2. The point raised in this revision is whether or not the petitioner can be tried for the offences under S.376 IPC (Rape) and S.354 IPC (Outraging the modesty of a woman) in the circumstances of this case in a single trial or separate trial are necessary or desirable. 3. The trial Court by the impugned order held that a single trial is maintainable whereas the petitioner says that a single trial would cause prejudice to him as both the said offences are distinct offences committed in the course of different transactions and therefore there should be separate trials for the said offences. The petitioner did not raise any objection for a single trial of the other offences along with S.376 IPC. 4. The point arises in the following circumstances. According to the charge sheet the petitioner at the relevant time was director of a co-education school called Parkwood School situated in MLA colony, Road No.12, Banjara Hills, Hyderabad. The victim of the offence under S.376 IPC i.e. the offence of rape is stated to be a girl referred to as MSAS (cited as listed witness No.1 and complainant in the charge sheet) a student of that school whereas the victim of the offence under S.354 IPC i.e., outraging the modesty of a woman is stated to be another girl referred to as one MLJR also a student of that school and cited as listed witness No.6 in the charge sheet. 5. It is not necessary to state the prosecution case at length for the purpose of this petition. It would be sufficient to note that the allegations in the charge sheet are that being director of the aforesaid school he raped the alleged victim of S.376 IPC several times during the period from March 2010 upto some date in July 2010 and he also outraged the modesty of the victim of the offence under S.354 IPC on the night of 1st July 2010. Both the offences and the other offences mentioned in the charge sheet are alleged to have been committed by the petitioner in his school premises. It is stated by the prosecution that the case was registered on the report of the victim of S.376 IPC and in the course of investigation the offence committed on the victim of S.354 IPC also came to light as the said victim disclosed the same to the investigating officer. After the completion of investigation the concerned investigating officer filed the charge sheet for the aforesaid two offences and also the other offences mentioned supra. 6. The paper book filed by the petitioner’s counsel shows that on 20.01.2010 the trial Court framed four charges i.e. for offences under Ss.376, 354, 506 and 201 IPC against the petitioner indicating that he is going to be put on a single trial for all the aforesaid four offences. It is seen that the petitioner has thereafter filed Crl.M.P.No.46/2011 requesting the trial Court to separate the offence under S.354 IPC and conduct a separate trial for it on the ground that a single trial of the said offence along with the offence under S.376 IPC and the other offences would prejudice him as both the said offences are distinct. Elaborating on this plea he urged before the trial Court that the said two offences are distinct and of different kind and the victims are also different and clubbing of the same for a single trial would prejudice him in his defence. The prosecution opposed the said petition. 7. After hearing both sides the trial Court by its order dated 02.02.2011 held that the offences under S.376 IPC and S.354 IPC are of the same kind and since they were committed within a space of twelve months they can be tried together in view of S.219 Cr.P.C. It is challenging that order this revision is filed. 8. Sri C.Padmanabha Reddy, the learned senior counsel appearing for the advocate on record for the petitioner pointed out that both the offences under Ss.376 and 354 IPC are altogether different and they are not of the same kind and further the victims are also different and they were allegedly committed on different dates and consequently separate trials are necessary and S.219 Cr.P.C has no application. He also argued that having regard to the evidence proposed to be let in to prove the said charges there should be separate trials as otherwise the petitioner would be prejudiced in his defence. On the other hand the learned public prosecutor argued that S.219 Cr.P.C is applicable and the impugned order does not suffer from any infirmity or illegality and therefore it need not be disturbed. Both sides have not cited any case law. The point is now taken up. 9. The circumstances which gave rise to the point and the respective contentions of the both sides have already been set out supra. A perusal of the impugned order would show that the trial Court in holding that both the above offences against the petitioner can be tried in a single trial totally relied upon S.219 Cr.P.C. In my opinion, the view of the trial Court that S.219 Cr.P.C has application to this case cannot be said to be correct for the following reasons. 10. It may be noted that regarding trial of offences S.218 Cr.P.C lays down the main rule. It says that for every distinct offence of which any person is accused there should be a separate charge and every such charge should be tried separately. It is not necessary to discuss the Proviso to S.218(1) Cr.P.C for the purpose of this revision. The other sections namely Secs.219 to 223 Cr.P.C specify the cases in which the above main rule can be deviated and they are in the form of exceptions to the rule or principle enacted in S.218 Cr.P.C. It is not necessary to discuss all the said provisions also. 11. Now coming to S.219 Cr.P.C., it is true that it says that three offences of the same kind committed within a space of twelve months of which any person is charged may be tried for all the said offences in a single trial. S.219(2) Cr.P.C is more important. It explains the expression “offences of the same kind”. It says that offences can be said to be of same kind when they are punishable with the same amount of punishment under the same Section of the Indian Penal Code. Now a look at the offences punishable under S.376 IPC (Rape of a woman) and S.354 IPC (Outraging the modesty of a woman) would on the face of them show that they do not fall under same section of IPC and punishments for both the said offences are also different. Thus this circumstance alone is sufficient to hold that the trial Court committed an error in holding that S.219 Cr.P.C applies to the present case here. 12. The reasoning given by the trial Court is that since both the offences i.e. under S.376 IPC and S.354 IPC can be committed only against a woman/ female and since the offence under S.376 IPC is of a more aggravated form both the offences can be said to be of same kind as they are committed within a space of twelve months. This interpretation is not permissible by the language of S.219 Cr.P.C. The learned public prosecutor relied upon the Proviso to S.219(2) Cr.P.C and argued that the above two offences can be said to be of same kind. The said Proviso says that for the purposes of S.219 Cr.P.C the offence under S.379 IPC (Theft) and the offence under S.380 IPC (Theft in a dwelling house) can be treated as offences of same kind but the legislature has provided for this exception to overcome the rule laid down in S.219(2) Cr.P.C and that Proviso cannot help the prosecution. By reason of the nature of the above two offences i.e. under S.379 and S.380 IPC the said Proviso says that though both the said offences do not fall under the same section they can still be treated as offences of same kind. Hence this argument of the learned public prosecutor cannot be of any help to sustain the impugned order. It therefore follows that it has to be set aside and the point is accordingly decided. 13. However at the time of arguments having regard to the allegations in the charge sheet it has been considered by this Court whether the case can be brought under S.220(1) Cr.P.C on the premise that both the above offences can be said to have been committed in the course of a single transaction to conclude that a single trial is permissible. It may however be noted that in the charge sheet the prosecution has not specifically pleaded that the above two offences under S.376 and S.354 IPC can be said to have been committed in the course of the same transaction. Added to this the impugned order of the trial Court would also show that the prosecution did not take any alternative plea also before it to contend that the aforesaid two offences can be brought under S.220(1) Cr.P.C. Hence as there is no material or plea in that behalf the said aspect is not considered. 14. It should however be noted that the victim of S.376 IPC is different from the victim of the offence under S.354 IPC. Similarly the dates of both the said offences also are different. The only common factor is that both the victims are the students of the school of which the petitioner was said to be the director and the petitioner as such director is said to have misused his position and committed the above two offences. In these circumstances and for the reasons aforesaid which show that S.219 Cr.P.C is not applicable, it would be in the interests of justice to order separate trials. Hence it is not necessary to discuss about the applicability of S.220(1) Cr.P.C also. 15. It should be noted here that way back in 1956 in CHHUTANNI vs. THE STATE OF UP[1] their lordships of the Supreme Court laid down that there can be no irregularity or illegality in holding separate trials of the same accused persons in cases where a single trial could have been permissible under the Cr.P.C then in force. That was a case relating to two murders but the offences were committed at different places though it could be said that they could have been committed in the same transaction. The learned Sessions Judge in that case by way of abundant caution held separate trials in respect of the two murders to obviate any objections that might have been taken for a joint trial on the ground that the two murders had taken place at different places. The same principle can be applied here even though this is a case of two offences against the same accused. 16. In the present case the two offences i.e. under S.376 IPC and S.354 IPC are said to have been committed on different dates and at different places in the School. Thus by way of caution here also it would be in the interests of justice to order separate trials for both the said offences to avoid future complications. The impugned order of the trial Court is set aside and the point is accordingly decided. The petitioner has not raised any objection with regard to the other offences which are said to have been committed against the victim of S.376 IPC. 17. Accordingly for the aforesaid reasons this revision is allowed and the trial Court is ordered to hold a separate trial in respect of the offence under S.354 IPC alleged to have been committed against the other school girl. The concerned police/prosecution are directed to file a separate charge sheet in respect of that offence. The trial Court shall take up both the cases simultaneously and dispose them of as expeditiously as possible as the petitioner is reported to be in judicial custody. ______________________ N. RAVI SHANKAR, J 26th April 2011 CVRK [1] AIR 1956 SC 407