Amit Kumar @ Amit Dubey vs State Of U.P. & Anr.

"223.

What persons may be charged jointly. - 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;

(c)

persons accused of more than one offence of the same kind, within the meaning of section 242 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 sub-sections (2) and (5) of section 317 of the Bharatiya Nyaya Sanhita, 2023 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 X of the Bharatiya Nyaya Sanhita, 2023 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 prejudicially affected thereby, and it is expedient so to do, try all such persons together."

"8.

Another legal point which may be noticed here is that according to the report of the Inquiry Committee there are 346 such persons who have obtained arms licences in a fraudulent manner. These persons are different people living in different areas of the city or villages in the District of Allahabad and most of them have no connection of any kind whatsoever with each other. As per the prosecution case, they either singly or collectively in a group entered into a criminal conspiracy with the then arms clerk and by procuring forged entries in the Arms Register managed forged arms licences in their favour. The arms licences purport to have been issued on different dates over a period of several years. At any rate this is certain that all the 346 persons did not jointly enter into a conspiracy with the arms clerk and procured arms licences at one point of time or Within quick succession and within such period which may form one transaction. Section 223, Cr.P.C. enumerates the category of persons who may be charged and tried together. Sub-section (a) thereof mentions persons accused of the same offence committed in the course of same transaction and Sub-section (d) thereof mentions persons accused of different offences committed in the course of same transaction. Sub-section (2) of Section 219, Cr.P.C. provides that offences are of the same kind when they are punishable with same amount of punishment under the same section of the Indian Penal Code or of any special or Local law. Sub-section (1) of Section 220, Cr.P.C. provides that if in one series of acts so connected together as to form the san 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. The illustrations to this sub-section mentioned in the Code throw light as to when a series of acts will form the same transaction. Sections 220 and 223 of the Code of Criminal Procedure, 1973, are similar to Sections 235 and 239 of the Old Code of 1898. In State of A.P. v. Cheemalapati Ganeswara Rao AIR 1963 SC 1850, it was held that the expression "same transaction" occurring in Clauses (a) and (d) of Section 239 as well as that occurring in Section 235(i) ought to be given the same meaning according to the normal rule of construction of Statutes. Though the investigation is yet to be completed but from the contention advanced by the learned State Counsel it appears to us that different persons whose names are mentioned in the list while procuring the allegedly forged arm licences cannot be said to have committed the crime in the course of the same transaction. The crime would have been committed by them in conspiracy with the then arms clerk and other persons in the concerned office at different time and on different dates. Prima facie, it appears to us that in view of the provisions of the Code of Criminal Procedure all these 346 persons cannot be charged or tried together."

"11.

According to Shri D.D. Thakur the case against the appellant and the case against Guria should have been consolidated together for a joint trial. He made on endeavour to show that two cases in respect of the murder of one person could be brought within the ambit of Section 223 of the Code (which corresponds to Section 239 of the old Code of 1898). As per that provision, all persons falling under any one of the seven categories enumerated therein can be charged and tried together. Out of those seven categories enumerated in the section we need not even advert to those categories indicated with placitum (b), (c), (d), (e), (f) of the Section as they are not relevant in this context. We would, therefore, extract clauses (a) and (d) in Section 223 as under:

"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;

(d)

persons accused of different offences committed in the course of the same transaction."

In both the aforesaid clauses the primary condition is that persons should have been accused either of the same offence or of different offences "committed in the course of the same transaction". The expression advisedly used is "in the course of the same transaction". That expression is not akin to saying "in respect of the same subject matter" It is pertinent to point out that the same expression is employed in Section 220(1) of the Code also (corresponding to Section 235(1) of the old Code). The meaning of the expression "in the course of the same transaction" used in Section 223 is not materially different from that expression used in Section 223(1). It is so understood by this Court in State of Andhra Pradesh v. Cheemalapati Ganeswara Rao & Anr., [1964] 3 SCR, 297. The following observation in the said judgment is contextually quotable:

"The series of acts which constitute a transaction must of necessity be connected with one another and if some of them stand out independently, they would not form part the same transaction but would constitute a different transaction or transactions. Therefore, even if the expression "same transaction" alone had been used in S.235 (1) it would have meant a transaction consisting either of a single act or of a series of connected acts. The expression `same transaction' occurring in cls. (a), (c) and (d) of S.239 as well as that occurring in S,235(l) ought to be given the same meaning according to the normal rule of construction of statutes."

12.

For several offences to be part of the same transaction, the test which has to be applied is whether they are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action. Thus, where there is commonality of purpose or design, where there is continuity of action, then all those persons involved can be accused of the same or different offences

"committed in the course of the same transaction,"

13.

But if in one case the accused is alleged to have killed a person without any junction with the accused in the other case, then it cannot be treated as the same offence or even different offences "committed in the course of the same transaction". If such two diametrically opposite versions are put to joint trial the confusion which it can cause in the trial would be incalculable. It would then be a mess and then there would be no scope for a fair trial. Hence the attempt to bring the two cases under the umbrella of Section 223 of the Code has only to be foiled as untenable."

"9.

The prosecution case proceeds on the basis of an overarching conspiracy said to involve all the accused persons. The charge sheet reflects a consolidated investigative approach, founded upon common evidence, such as call detail records, electronic communications, video footage, witness statements, and forensic reports. It is undisputed that the prosecution relies upon largely common witnesses and interlinked evidence against all the accused.

11.

In the present appeals, the challenge has been confined to the segregation of the appellant's trial. The appellant submits that the offences alleged against him arise out of the same transaction as those involving the co-accused, and hence, by virtue of Section 223 Cr.P.C., a joint trial ought to have been conducted. It is not the prosecution's case that the acts attributed to the appellant are distinct or severable. According to the appellant, conducting a separate trial would result in serious prejudice to him and impair his right to a fair trial. 11.1. On the other hand, the respondent contends that segregation was necessitated by the mandate of this Court in Ashwini Kumar Upadhyay (supra), which requires expeditious disposal of criminal cases involving elected representatives. It is further stated that the direction was purely procedural and intended to obviate delay caused by the abscondence of certain co-accused, while ensuring that the trial of the appellant proceeds in a timely manner.

13.

The statutory scheme under the Code of Criminal Procedure, 1973, is clear. Sections 218 to 223 lay down the framework governing the joinder and separation of charges and trials. Section 218 embodies the general rule that each distinct offence shall be tried separately. However, the Code carves out specific exceptions to this rule in Sections 219 to 223, where joint trials are permissible in the interests of justice.

13.1.

In particular, Section 223(d) provides that persons accused of different offences committed in the course of the same transaction may be charged and tried together. The legislative intent underlying these provisions is three-fold: (i) to prevent multiplicity of proceedings, (ii) to avoid the risk of conflicting judgments on the same evidence, and (iii) to promote judicial economy while ensuring fairness to the accused. For ease of reference, the relevant provisions are set out below:

"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.

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 laws: 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.

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).

221.

Where it is doubtful what offence has been committed – (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

222.

When offence proved included in offence charged – (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. (2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.

(3)

When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged. (4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.

223.

What persons may be charged jointly – 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;

(c)

Persons accused of more than one offence of the same kind, within 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 prejudicially affected thereby, and it is expedient so to do, try all such persons together.

22.

In the present case, the evidence against the appellant is identical to that against the co-accused. Separate trials would necessarily involve recalling the same witnesses, resulting in duplication, delay, and the risk of inconsistent findings. The High Court, in affirming the segregation order, failed to appreciate these consequences and confined itself to the discretionary language of section 223 Cr.P.C without evaluating whether the factual circumstances justified such segregation. Therefore, we hold that the segregation of the appellant's trial, without any legally recognized justification, is unsustainable in law and violative of the appellant's right to a fair trial under Article 21."

30.

The issue of application of the procedure pertaining to a complaint under the CrPC (now BNSS) to proceedings under the PMLA is no longer res integra, as has been elaborately dealt with by this Court in the decisions of Tarsem Lal (supra), Yash Tuteja (supra) and Kushal Kumar Agarwal (supra). Though we find that in the instant case the said issue has not been specifically raised either before the Trial Court or the High Court, we are willing to consider the same, being a pure question of law.