Ajit Kumar Das Mazumdar vs State

A.K. De, J.—The Petitioner is the accused in six Special Court cases Nos. 5 to 10 of 1972 in the Court of the Additional Special Judge, Hooghly. The offence he is accused of in each of those cases is u/s 409 of the Indian Penal Code. He is a registration clerk in Uttarpara Post Office. On different dates during the period of two months from January to February, 1970, he, as such clerk, is alleged to have entered six insured letters, each registered by a different person and addressed also to a different person, in a volume of registration journal other than the one then in use. In that way, he made it possible for himself to dishonestly misappropriate the contents of those six insured letters of different persons not entering those in the current journals of the post office. Police after investigation submitted charge-sheets. The Government allotted six cases, one for each insured letter, by six separate notifications to the Judge, Additional Special Court, Hooghly. Upon six complaints the learned Judge had taken cognizance of the offence giving rise to six cases. He fixed six different dates for evidence in those six cases with the same prayer that "there may be one trial for all those cases". The learned Judge, by his order No. 6 dated August 28, 1972, had rejected the prayer in each case with the observation "as the offences are distinct and separate and they did not arise out of the same transaction, there cannot be any joint trial. Petition is rejected". Mr. Kishore Mukherjee, learned Advocate appearing for the Petitioner, submitted relying on Section 235 of the Code of Criminal Procedure that these six acts giving rise to the six cases are one series of acts so connected together as to form one transaction and the learned Special Judge should have ordered a joint trial with six separate charges, one for each case, particularly as the Petitioner, who is the accused, had prayed for it. Mr. (Khanna, Advocate appearing for the State, opposed the rule. He firstly submitted that Section 235 is not applicable on facts and secondly, that Section 235 is only an enabling provision.

The learned Special Judge fell into error in holding that the offences in the six cases "did not arise out of the same transaction" as the offences are distinct and separate. The expression "same transaction" used in Section 235 of the Code of Criminal Procedure has not been defined in the Code and is not capable of exact definition. The vinculum juris which interlinks a series of acts so intimately, as to form the same transaction is different in each case. It may be proximity of time and place, or continuity of action, or community of purpose and design, or relation of cause and effect, or that of principal and subsidiary. Proximity of time and unity of place are not essential though they furnish good evidence of what unites several acts. Continuity, of action is an important test in the matter. If several offences are so connected together, they are related together in the point of purpose, they form one transaction. Separate and distinct offences may be a series of acts so connected as to form one transaction. The several acts in these cases are a continuous operation, though on different dates, leading to the same end. The evidence in these cases will be almost the same in greater part except probably as to the insurer and the payee. The acts alleged against the Petitioner appear to have been committed for the same purpose and within a short period of time employing the said modus operandi. In these circumstances, the learned Special Judge should not have rejected the prayer for joint trial on the ground as stated in his order.

Section 235 is an enabling provision. If separate trials are held, disclosure of defence by the accused in the first of those six cases may prejudice him in the subsequent trials even if held one after the other. In considering the prayer, particularly when it is made by the accused for a joint trial under an enabling provision, the question of prejudice has to be considered. If it be found that the accused is likely to be prejudiced by separate trials, that will be an appropriate case for directing joint trial. It appears to us that it is one of those cases where the prayer of the accused for joint trial should have been granted.

Some evidence has already been taken before the charge in some of these cases. In the joint trial that we are going to direct,, that evidence will be treated as evidence in the trial subject to this that the prosecution shall have the liberty to recall all or any of those witnesses for further examination-in-chief and to examine other witnesses before framing of charges.

In the result, we make the rule absolute, set aside the learned Special Judge's related orders in each of the six Special Court cases Nos. 5 to 10 of 1972 dated August 28, 1972 and direct that a joint trial be held in accordance with law and the direction in the preceding paragraph, with one set of charge or charges in each case, if on taking evidence any charge or charges may be framed and be necessary in the cases.

Let the records go down as quickly as possible.

R. Bhattacharya J.

I agree.