Shamusdheen and Others vs State of Kerala

Chettur Sankaran Nair J.

Courts below concurrently found petitioners guilty of the offence u/s 342 IPC, on a charge that at or about 11.30 p.m. on 1-5-85, they wrongfully, restrained PWs 1 & 2, police officers. There was a faction feud between two groups of persons belonging to a particular community, in the village. One group did not relish the idea of PW10 visiting the house of PW5 for performance of certain religious rites. He was counseled against doing that Despite that, PW10 went to the house of PW5 and upon this-it is said petitioners wrongfully confined PW10. In respect of this, S.T. 2358/85 arose. Getting information about the wrongful confinement of PW10, PWs 1 & 2 a police constable and Head Constable respectively proceeded to the place where PW10 was kept in wrongful confinement. They rescued PW10 from captivity by about 11.30 p.m. Incensed by this, petitioners are alleged to have kept PWs 1 & 2 in wrongful confinement till 1.30 a.m. in the morning until a police party rescued them. In respect of this, the present charge is made. Accepting the evidence of PWs 1 to 4, 12 & 13, courts below found the charge. Petitioners were sentenced to pay a fine of Rs. 1,000/- each, with a default sentence. This is challenged in Crl.R.P. 786/88.

In Crl.R.C. 127/88, notice was issued to petitioners to show cause why the sentence imposed on them should not be enhanced.

Learned counsel for petitioners challenged the conviction only on one ground. According to him, charges in S.T. 2358/85, and S.T. 2359/85 ought to have been tried under one charge, and two trials or two charges, has resulted in prejudice to petitioners, There is an incidental contention that in view of section 300 Cr.P.C., the trial in S.T. 2359/85 is bad. It eludes comprehension, how section 300 is attracted.

Counsel submitted that events giving rise to the charge in S.T. 2358 & 2359 of 1985 are the same, that two distinct charges should not have been made, it is not possible to say that both offences arise from the same facts. In a broad sense, the two events may be related to each other, but do not arise from the same facts Offence involved in S.T. 2358/85 was in respect of an event which took place at 9.30 p.m. on 1-5-85 and that related to wrongful confinement of PW10, which came to an end when PW10 was rescued from custody at 11.30 p.m. Probably, the end of one led to the beginning of the other. But they are distinct, incidents - in time and space.

Counsel could not support his contentions on principle or precedent. Reference may however be made to provisions of the Code. Section 218 envisions a separate charge for distinct offences. For every distinct offence, there shall be a separate charge and every such charge shall be tried separately. Sections 219 to 223 contain exceptions, to the rule in section 218 u/s 220, if in one series of acts, so connected 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. This is only an enabling provision. That apart, it refers in a fact situation where one series of acts are so connected, as to form the same transaction. That is not the case here. There are two distinct acts and they are not part of the same transaction. The finding in paragraph 27 of the judgment of the trial court is that the incident relating to PW10, came to an end and that thereafter a second incident took place.

A separate charge and a separate trial for each distinct offence is the rule. Exception in section 220 is no more than an enabling provision. Even departure from section 220, will not vitiate proceedings. Section 461, does not extend to such a situation. Illustration (h) to section 220 refers to a situation, similar to one in the case, on hand. In Ranchhodlal Vs. State of Madhya Pradesh, , the Supreme Court held that,

the provisions in question are only enabling provisions and these do not contain the normal rule.

The rule is contained in section 218. There is no merit in the submission that separate trials have led to prejudice or illegality. Conviction is therefore proper. I have heard counsel for petitioner on the question of sentence. According to him a sentence of fine would meet the ends of justice. The degree of defiance shown by petitioners to officers of law enforcement, cannot be condoned, except at pent to values fundamental to the existence of a system of government based on Rule of Law. Rule of Law postulates duties and not rights alone. Petitioners chose to be a law unto themselves and acted in a high handed manner, by keeping police officers in wrongful confinement. If such acts are viewed leniently that would erode the foundation of Government established by law. Might should not be allowed to subdue law. It is thus imperative that a deferent sentence should be imposed to the circumstances, the sentence imposed on petitioners is enhanced and each of the petitioners is sentenced to suffer S.I. for two months, in addition to the fine already imposed. Crl.R.P. is dismissed, and Crl.R.C. is disposed of as above.

I express appreciation of the help rendered by Shri P. Vijayabhanu as Amicus Curiae.