Joint Trial
The
scheduled offence of the Ain and offences defined in the Penal Code can be
tried jointly by the Tribunal: The words, “ট্রাইব্যুনাল একটি দায়রা আদালত বলিয়া গণ্য হইবে এবং এই আইনের অধীন যে কোন অপরাধ বা তদনুসারে অন্য কোন অপরাধ বিচারের ক্ষেত্রে দায়রা আদালতের সকল ক্ষমতা প্রয়োগ করিতে পারিবে।” of Section 25(1) of the Ain are significant.
Those words clearly indicate that the Ain authorises the Tribunal to try both
scheduled offence of the Ain and non-scheduled offence together and in such
circumstances the Tribunal shall exercise all the powers of a Court of
Sessions. Sub Sections (2), (3) and (4) of Section 26 of the Ain relate to the
appointment of the Judge of the Tribunal which provide that Judge of the
Tribunal should be appointed from the District and Sessions Judges. The
Government may give responsibility to the District and Sessions Judge to act as
Judge of the Tribunal in addition to his charge if it feels necessary. It is
also provided that Additional District and Sessions Judges are also to be
included as District and Sessions Judge. Sub-section 3 of Section 27 of the Ain
authorises Tribunal to try scheduled and non-scheduled offences jointly for the
interest of justice following the provisions of the Ain. In view of the
discussions made above we have no hesitation to hold that the scheduled offence
of the Ain and offences defined in the Penal Code can be tried jointly by the
Tribunal. (Para 11)
Section
25 of the Nari-O-Shishu Nirjatan Daman Ain, 2000: Under the Ain, the tribunal
will enjoy all powers which a Court of Sessions enjoys save and except the ones
specifically denied: The Nari-O-Shishu Nirjatan Daman Tribunal is also a Court
of Sessions of original jurisdiction as per provision of section 25 of the Ain
since it has been specifically said in the Ain that the Tribunal shall be
deemed to be a Court of Sessions. The words “ট্রাইব্যুনাল একটি দায়রা আদালত বলিয়া গণ্য হইবে ” in legislation clearly expressed the intention of the Legislature
that the Tribunal is to be act as Court of Sessions which is deeming provisions
and are to strictly limited to the statutory purpose they are created for. It
is our duty to ascertain the purpose for which such fiction is created. A
deeming provision must be construed contextually and in relation to the
legislative purpose. Section 25 of the Ain must lead to the inescapable
conclusion that the statutory fiction laid down in it must be resorted to and
full effect must be given to the language employed. Such deeming provision has
been introduced to mean that the tribunal shall be deemed to be the Court of
Sessions of original jurisdiction. That is, the Tribunal is a Court of original
criminal jurisdiction and to make it functionally oriented some powers were
conferred by the Ain setting it up and except those specifically conferred and
specifically denied it has to function as a Court of original criminal
jurisdiction not being hide bound by the terminological status or description
of a Court of Sessions. Under the Ain, it will enjoy all powers which a Court
of Sessions enjoys save and except the ones specifically denied. (Para 12)
In the
instant case charge was framed for the commission of offence that the
respondent had killed his wife demanding dowry, but it is proved that he had
killed his wife but demand of dowry has not been proved. Since the Tribunal has
authority to try scheduled and non-scheduled offence together and it is
authorized to act as Court of Sessions, we do not find any jurisdictional error
if the accused is convicted and sentenced for the charge of killing wife. Such
analogy is also applicable for the Appellate Court as well. (Para 15)
Section
25 of the Nari-O-Shishu Nirjatan Daman Ain, 2000 and 227 of the Code of
Criminal Procedure, 1898: The laws of procedure are devised for advancing
justice and not impeding the same. The main object and purpose of enacting
procedural laws is to see that justice is done to the parties. The Ain contains
no provision relating to framing of charge. Hence, in view of Section 25(1),
the provisions of the Code which relate to framing of charge are applicable to
the Ain. Section 227 of the Code clearly mentions that Any Court may alter or
add to any charge at any time before judgment is pronounced. In view of this
section it becomes very clear that the High Court Division as the appellate
authority in the present case has the power to alter the charge framed by the
Tribunal and convict the accused on the same. (Para 18)
Section
11(Ka)/30 of the Nari-O-Shishu Nirjatan Daman Ain, 2000; Section 302 of Penal
Code and Section 238 of the Code of Criminal Procedure, 1898: In section 238 of
the Code, it has been provided that when a person is charged with an offence
consisting of several particulars, a combination of some only of which
constitute a complete minor offence, and such combination is proved, he may be
convicted of the minor offence though he was not charged with it. The section
further provides that when a person is charged with an offence, and facts are
proved which reduce it to a minor offence, he may be convicted for commission
of minor offence, although he is not charged with it. In the present case
although the accused were charged with the offence of murder for dowry under
Sections 11(Ka)/30 of the Ain, on the proven facts they were convicted for the
offence of murder only under section 302/34 of the Penal Code. In terms of
punishment, it is very much clear that an offence under Section 11(Ka) of the
Act is graver than an offence punishable under section 302 of the Penal Code.
Hence, an offence under section 302 of the Penal Code can be considered as a
minor offence than that of an offence under Section 11(Ka) of the Ain and
therefore, framing of charge was not required for conviction. (Para 19 and 20)
Alternation
of charge from 11(Ka) of the Nari-O-Shishu Nirjatan Daman Ain, 2000 to Section
302 of the Penal Code will not cause prejudice to the accused: In order to
convict a person under minor offence, though charged under major offence, the
ingredients constituting the offence under the minor offence should be common
as that of the ingredients constituting major offence and to convict him, some
of the ingredients of the major offence could be absent. Since the offence
under Sections 11(Ka)/30 of the Ain is a graver offence wherein the charge as
to killing of the wife has been framed along with charge of demanding dowry
than that of the case under Section 302/34 where the charge of killing of any
person is usually be brought against accused, we are of the view that the
alternation of charge from 11(Ka) of the Ain to Section 302 of the Penal Code
will not cause prejudice to the accused. (Para 22)
Even if
the facts proved are slightly different from those alleged in the charge, a
conviction based on the facts proved would be legal: Joint trial of different
offences under different enactments does not vitiate proceedings in the absence
of prejudice to the accused, particularly when the special enactment authorizes
the Court to try different offences jointly where a charge is framed for one
offence but offence committed is found to be some other than the one charged,
provided, the same facts can sustain a charge for the latter offence, the
accused can be convicted for such an offence. Even if the facts proved are
slightly different from those alleged in the charge, a conviction based on the
facts proved would be legal. (Para 24)
The
Appellate Court’s jurisdiction is co-extensive with that of the trial court:
The Appellate Court’s jurisdiction is co-extensive with that of the trial court
in the matter of assessment, appraisal and appreciation of the evidence and
also to determine the disputed issues. (Para 25) In the larger interest of
justice the Court may overlook a mere irregularity or a trivial breach in the
observance of any procedural law: Depending on the facts and circumstances of a
particular case in the larger interest of justice the Court may overlook a mere
irregularity or a trivial breach in the observance of any procedural law for
doing real and substantial justice to the parties and the Court may pass any
appropriate order which will serve the interest of justice best. Procedure has
always been viewed as the handmaid of justice and not meant to hamper the cause
of justice or sanctify miscarriage of justice. It is intended to achieve the
ends of justice and normally, not to shut the doors of justice for the parties
at the very threshold. (Para 26)
The High Court Division as an Appellate Court has the jurisdiction to convert the conviction under Section 11(Ka)/30 of the Ain to one under Sections 302/34 of the Penal Code as appeal is the continuation of an original case: Our final conclusion is that the High Court Division as an Appellate Court has the jurisdiction to convert the conviction under Section 11(Ka)/30 of the Ain to one under Sections 302/34 of the Penal Code as appeal is the continuation of an original case. An Appellate Court has the same power as that of the trial Court i.e. the Tribunal and therefore, as an Appellate Court the High Court Division in the present case is competent to convert the conviction to secure the ends of justice. Undoubtedly such an Act of the High Court Division shall in no way prejudice the accused and State; otherwise order of remand shall entail unnecessary time, money and energy due to fruitless or useless prosecution and defence. Similarly, the Tribunal which is created under the Ain shall be deemed to be the Court of Sessions of original jurisdiction and, is entitled to alter/amend the charge framed under Section 11(Ka) of the Ain to one under Section 302 of the Penal Code and to dispose of the case finally in accordance with law if the accused is not otherwise prejudiced. (Para 28) [18 SCOB [2023] AD 1]
Separate charge for every distinct offence. The general rule of trial under sec. 218 is that for every distinct offence, there shall be a separate charge and every such charge shall be tried separately except in certain specified cases referred to in secs. 219, 220, 221 and 223- Jodhpur Woollen Mills v State 1995 Cr LJ 769 (Raj).
Provisions of sec. 218 is mandatory - Des Raj v State AIR 1958 Punj 254: 60 Punj LR 608: 1958 Cr LJ 948; see Suraj v State AIR 1955 SC 419: 1955 SCR 1332: 1955 Cr LJ 1004; W. Slaney v State AIR 1956 SC 116: (1955)2 SCR 1140: 1956 Cr LJ 291.
The framing of a specific and distinct charge in respect to every distinct head of criminal liability constituting an offence, is the foundation for a conviction and sentence therefor - Suraj v State AIR 1955 SC 419: 1955 SCR 1332: 1955 Cr LJ 1004.
'Distinct' means not identical. Two offences would be distinct, if they be not in any way inter-related. If there be some inter-relation, there would be no distinctness and it would depend on the circumstances of the case in which the offences were committed; whether there be separate charges for those offences or not Banwarilal v Union AIR 1963 SC 1620: 1963 Supp 2 SCR 338: (1963)2 Cr LJ 529.
This section applies not only to warrant cases, but also to summons cases, although it is not necessary to frame a charge in a summons case.
Distinct offences, what are. What are distinct offences are to be determined on the factual matrix of each individual case. A few examples in this regard would be helpful to understand what 'distinct offences' really mean.
Offences falling under different sections of the I.P.C., e.g. theft and escape from lawful custody Po Hla 4 Cr LJ assaulting the mother who demanded the boy 369: kidnapping a boy and -Chekutty ILR 261 Mad 454; theft and receiving stolen property-Karu ILR 28 Cal 10; receiving stolen property: and habitually dealing in stolen property - Uttom ILR 8 Cal 634; offences of theft or possession of stolen property; assault on a police officer - Alana 51 Cr LJ 1319 (Kutch); criminal misappropriation and cheating-Parameshwar 13 CWN 1089; offences under secs. 167 and 466, I.P.C. Sreenath ILR 8 Cal 450; offences under secs. 411 and 489, I.P.C. Mohendra ILR 20 Cal 387; offences under secs. 380 and 457, I.P.C.
Krishanji 33 Cr LJ 619; offences under secs. 182 and 500, I.P.C. Ram ILR 37 Cal 604; offences under secs. 352 and 504, I.P.C. - Krish- namurthi 26 Cr LJ 1618; offences under secs. 170 and 175, I.P.C.- Mathusami 34 Cr LJ 1183; theft in a dwelling house, and abetment of criminal breach of trust - Nikunj 5 CWN 294; abetment of falsification of document, and fraudulent destruction of document - Krishnaswami ILR 26 Mad 125; theft and receiving illegal gratification for the restoration of stolen property - Nga Tivet 7 Cr LJ 87; offences under secs. 411 and 458, I.P.C. Jagga 3 Cr LJ 76; simple hurt under sec. 323, I.P.C. and grievous hurt under sec. 325, I.P.C. Radhanath ILR 50 Cal 94; simple hurt to two different persons-Ram Subhag 19 CWN 972; offences under secs. 160 and 323, I.P.C. Ram Sukh ILR 47 All 284; embezzlement of money (sec. 409, I.P.C.) and falsification of accounts (sec. 477A, I.P.C.) covering items other than those embezzled - Kalka Prasad 16 Cr LJ 213. The offence of fabrication of false evidence relating to items partly or wholly unconnected with the charge of criminal breach of trust is undoubtedly a distinct offence - Ramchandra 40 Cr LJ 579.
Inclusion of two distinct offences in one charge. Under the man- date of sec. 218, there cannot be a single charge in respect of two distinct offences. The question is whether inclusion of two (or more) distinct of- fences in one charge is an irregularity or an illegality vitiating the trial. In a case Harries, CJ., of the Calcutta High Court, after discussing the rulings on the point as to whether the inclusion of two distinct offences in one charge constitutes an illegality which vitiates the whole trial, observed: On the present state of authorities-it is difficult for this Bench to hold that the failure to comply with the provisions of sec. 218 of the Code of Criminal Procedure is an illegality, though, as I have said, there are a number of cases which support that view. The more recent cases, how- ever, suggest that it is an irregularity' Kanal 52 CWN 636.
The joinder in one charge of two distinct offences in contravention of the provisions of sec. 218 is not an 'illegality' but is only an irregularity curable by sec. 464 - Abdul Rahman 27 Cr LJ 669. In such a case, the defect is one of 'duplicity', not of misjoinder. A trial under such a charge is not bad unless the accused has been prejudiced thereby Bachchu 28 Cr LJ 409. A failure to comply with the provisions of this section may or may not be fatal according to the circumstances of the case - Ramdin 38 Cr LJ 97.
It seems where the charge is in respect of serious offences, the irregularity or illegality (in which way one likes to describe it) is fatal; but in petty cases, it would not be fatal. In a petty case, the irregularity of the Magistrate in specifying three distinct offences in one head of the charge, instead of framing three separate charges, may be excused under sec. 537 of the old Act (now sec. 465) of this Code, where the accused had not been prejudiced Bachchu 28 Cr LJ 409.
Any defect or omission from the charge as actually framed would not be fatal unless it has occasioned a failure of justice Md. Yakub 33 Cr LJ 373.
Irregularities in a charge have no effect unless they have prejudiced the accused in their defence- Bawar Shah 37 Cr LJ 1039.
When there was a misjoinder of charge and there was neither separate charge nor trial for each distinct offence, offence, it would amount to an irregularity. it and not an illegality. As such, it is curable under secs. 464 and 465, provided no failure of justice is occasioned thereby - Kamalanath (2005)5 SCC 194: AIR 2005 SC 2132.
Joint trial. If the prosecution wishes to justify a trial in which char- ges are joined, it is for the prosecution strictly to establish that the joinder is permissible under secs. 219, 220 or 221. It is a well-known canon of construction that exceptions must be strictly construed. If a case falls under more than one exception, it must so fall that it must not infringe the provisions of any of these three sections. It is not permissible for the prosecution to com- bine and supplement the three sections in such a manner as to contravene the provisions of any of these sections-Per Chagla, CJ., in D.K. Chandra 1952 Cr LJ 779 (Bom) (FB). The accused can make request for the joint trial of all or any number of charges framed against him and if no prejudice is caused to him, the Magistrate may order joint trial provided those cases fall within the purview of secs. 219, 220, 221 and 223 - Jodhpur Woollen Mills v State 1995 Cr LJ 769 (Raj).
The question of trial of several persons committed to the sessions does not depend on the number of committal orders but on the provisions of secs. 218 to 223. If one trial can be justified under these provisions and there is no prejudice to the accused, the Sessions Judge can certainly consolidate the committal orders and try the accused at one trial. He may frame a fresh charge with appropriate counts against the accused. On the other hand, if the accused have been committed by one committal order along with respect to different offences which cannot be tried at one trial in accordance with these sections, their joint trial is illegal. AIR 1962 SC 1198.
See also sec. 223, notes under the heading: Joint trial'. 5. Objection to joint trial. Where objection to joint trial is not raised either at trial stage or at appellate stage or even before Supreme Court, finding of competent court cannot be set aside - Prem v State AIR 1989 SC 937: (1989)1 Crimes 398(2): 1989 Cr LJ 1246.
Where advocate for accused desires that the charge as framed should stand, it cannot be urged later that accused persons were prejudiced Kanta v Delhi Administration AIR 1958 SC 350: 1958 SCR 1218: 1958 Cr LJ 698.
Joinder of charges: Misjoinder of charges. In testing the validity of the joinder of charges, what is relevant is the accusation made by the prosecution and not the ultimate finding of the court - Kadiri v State AIR 1960 SC 661: 1960 Cr LJ 1013; C.N.K. Murthy v Abdul AIR 1965 Mys 128: (1965)1 Cr LJ 565.
Series of dacoity committed in four flats of same premises owned by different persons almost at the same time form same transaction-framing a rolled up charge without discussing each offence of dacoity separately demands retrial Sanatan v State 1988 Cr LJ 238 (Cal); see Kirtibas v State AIR 1960 Cal 269: 64 CWN 282: 1960 Cr LJ 469.
Sections 219-223 permit joinder of charges and trial of different offences against a single accused in the circumstances mentioned therein; and sec. 223 provides for joinder of charges and trial of several persons. If joinder of charges is made in contravention of the said provisions, it will be misjoinder of charges Birichh v State AIR 1963 SC 1120: 1963 Supp 2 SCR 328: (1963)2 Cr LJ 190. A misjoinder of charges includes misjoinder of offences or of accused Persons Ram Kishan v State AIR 1956 All 462: 1956 All LJ 748; Ahmad V State AIR 1958 All 443: 1958 All LJ 41: 1958 Cr LJ 720; Birichh v State AIR 1961 Pat 255: 1960 Pat LR 239: (1961)1 Cr LJ 837; Lachman, AIR 1966 MP 261: 1967 Jab LJ 181: 1966 Cr LJ 1012 (per Krishnan, J.).
But see Lachman 1966 Cr LJ 1012 (misjoinder of charges can only be in respect of charges).
A misjoinder of charges includes misjoinder of offences or of accused persons - Ram Kishan v State AIR 1956 All 462: 1956 All LJ 748; Ahmad v State AIR 1958 All 443: 1958 All LJ 41: 1958 Cr LJ 720; Birichh v State AIR 1961 Pat 255: 1960 Pat LR 239: (1961)1 Cr LJ 837; Lachman AIR 1966 MP 261: 1967 Jab LJ 181: 1966 Cr LJ 1012.
The joint trial of charges as to distinct offences, not committed in the course of the same transaction, is an illegality not curable under sec. 465 Ganno 35 Cr LJ 1048. A different view seems to have been taken in the following rulings where stress has been laid upon the question of prejudice to the accused. Thus, it has been held that the illegality with regard to sec. 218 does not necessarily vitiate the trial as a whole - Dur Md. 35 Cr LJ 1337. In Raj Bahadur 35 Cr LJ 1696, a fresh trial was not ordered as the counsel of the accused did not desire it and no prejudice resulted to the accused on account of joint trial of two distinct offences of murder, the irregularity being condoned under sec. 464. Where accused persons are charged and tried in the same trial for different offences not committed in the course of the same transaction, the misjoinder renders the trial invalid, being a disregard of an express provision of law as to the mode of trial, and not a mere irregularity Subramania ILR 25 Mad 61 (PC). charges, what is relevant is In testing the validity of the joinder of the accusation made by the prosecution and not the ultimate finding of the court Kadiri v State AIR 1960 SC 661: 1960 Cr LJ 1013; C.N.K. Murthy v Abdul AIR 1965 Mys 128: (1965)1 Cr. LJ 565; see also Vijender v State (1997)6 SCC 171.
The case of Subramania 28 IA 257 (PC), no doubt, is an authority for the view that misjoinder of charges is an illegality not cured by the provisions of sec. 464, but more recently, this decision has been discarded in favour of the view that the error committed is cured by sec. 464 unless the accused has been prejudiced and this is the latest view of Their Lordships of the Privy Council - Abdul Rahman 54 IA 96. The question of applicability of sec. 464 was considered by the Supreme Court in W. Slaney (1955)2 SCR 1140, in which Bose, J. observed thus: The real question is not whether a matter is expressed positively or is stated in negative terms, but whether disregard of a particular provision amounts to substantial denial of a trial as contemplated by the Code and understood by the comprehensive expression "natural justice"."
Misjoinder of charges is not an illegality but tan an irreg irregularity curable under sec. 464 or sec. 465, provided no failure of justice had occasioned thereby Kamalakantha v State (2005)4 Supreme 501. Whether there was failure of justice or not is to be determined upon a consideration of various facts, such as, whether the accused had a fair trial; whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clear- ly, whether he was given a full and fair chance to defend himself-see Kamalakantha (2005)4 Supreme 501. If the results of the above considera- tions go against the accused, there cannot be either failure of justice or causing prejudice to the accused.
Counter cases. Each case must be decided on the evidence recorded in it. Evidence recorded in another case cannot be taken into account in arriving at a decision - Mitthulal v State 1975 Cr LJ 236: 1975 SCC (Cr) 93; see M.P. Srivastava v K.V. Vashist 1991 Cr LJ 12 (Del) (principle of res judicata is not applicable in criminal cases).
Counter cases exclusively triable by Court of Session, one instituted on police report under sec. 173 and the other initiated on complaint, arising out of same transaction, should be tried separately by the same court to avoid conflicting decisions - Kewal v Suraj AIR 1980 SC 1780: 1980 Supp SCC 499: 1981 SCC (Cr) 348: 1980 Cr LJ 1271. Where offences are distinct pertaining to different periods, evidence in each case should be recorded separately and lumping up and clubbing several cases should be avoided. Each case should be tried on its own merits and disposed of by a separate order H.S. Sardashiva v M.S. Muthappa 1992 Cr LJ 2424 (Kant) (DB). 8. Proviso: Magistrate's power to try "all or any number of charges", when not permissible". The proviso to sec. 218 would apply only in such a case where the distinct offences are being tried before the same Magistrate. Offences tried before different Magistrates cannot be ordered by any single Magistrate to be transferred before him State v Rajesh (2002)8 SCC 158: 2003 Cr LJ 60 (SC).
