2016 (2) TMI 1289 - HC - Indian Laws

Clubbing the two charge sheets - holding of one trial for both the charge sheets - conspiracy to obtain and operate a benami locker - HELD THAT - The broad test for ascertaining whether offences charged form part of the same transaction is whether the other set of offences, even though distinct and separate, have been committed for facilitating the commission of the main offence. If the offences alleged involve similar system or persons and there is a hint of continuity of action, it is then part of the same transaction. If the substratum of the series of acts is common, then those acts do constitute same transaction. The allegation in the FIR No. RC/AC-1/2011/A0001 is that reliable information was received that B.L. Bajaj was acting as a middleman for obtaining bribe money from respondent Nos. 5, 6 7 for providing them undue favours through Mr.A.K. Srivastava, Chairman cum Managing Director, NALCO and then converting such bribe money into tangible form of gold for facilitating its delivery; for which bank account was opened with locker facilities by impersonating and using fake documents. The only purpose for impersonation and using of forged documents could be to provide a safe cover for A.K. Srivastava and Chandni Srivastava in accepting bribe money. Thus, the modus operandi appears to have been decided between four of the accused persons including the petitioner, rendering the two offences in two charge sheets being part of the same transaction. It matters not if respondent Nos. 5, 6 7 were not involved in opening of the bank locker by impersonation and using fake documents but one cannot lose sight of the fact that the account and the locker were opened for the purposes of depositing gold bars which were purchased out of the bribe money, allegedly given by the respondent Nos. 5, 6 7. Thus even if the respondent Nos. 5, 6 7 have not played any active role in opening of the bank account and the locker, nonetheless the offence would form part of the same transaction for which four of the accused persons including the petitioner ought to be tried in one trial and not in two different trials - If two trials are held, it would only cause miscarriage of justice. Respondent Nos. 5, 6 7, it is made clear, would not lose on any count as they would be tried with respect to the respective charges framed against them. Thus it would only be in consonance with the procedural propriety that the two charge sheets be tried together by amalgamating the same before the Special Judge. The Court below was not justified in holding that the offences delineated in charge sheet No. 4/2011 was not part of the same transaction and on which premise, the prayer of the petitioner for clubbing the two charge sheets and consolidating the same for the purposes of one trial was rejected - Petition allowed.

Summary

Issues Involved:
1. Clubbing of two charge sheets for a joint trial.
2. Prejudice to accused persons not common in both charge sheets.
3. Applicability of Sections 218 to 223 of the Code of Criminal Procedure (Cr.P.C.).
4. Determination of "same transaction" under Cr.P.C.

Issue-wise Detailed Analysis:

1. Clubbing of Two Charge Sheets for a Joint Trial:
The petitioner challenged the order rejecting the prayer to club two charge sheets (No. 3/2011 and No. 4/2011) for a single trial. The petitioner argued that both charge sheets were the result of the investigation of the same FIR and involved common witnesses and documents, thus necessitating a joint trial to avoid conflicting judgments and ensure procedural propriety.

2. Prejudice to Accused Persons Not Common in Both Charge Sheets:
The opposition argued that the two charge sheets involved different sets of allegations and separate accused persons, which would prejudice those not common in both charge sheets. Specifically, respondents 5, 6, and 7 would lose their right to appeal before the Sessions Court if the charge sheets were amalgamated. However, the court found that their right to appeal would not be curtailed as they could still approach a superior court.

3. Applicability of Sections 218 to 223 of the Code of Criminal Procedure (Cr.P.C.):
The court referred to Sections 218 to 223 of the Cr.P.C., which provide exceptions to the rule of separate trials for distinct offences. Section 220 permits one trial for multiple offences if they form part of the same transaction. Section 223 allows joint trials for persons accused of different offences committed in the course of the same transaction. The court emphasized that these provisions aim to avoid multiplicity of proceedings and conflicting judgments.

4. Determination of "Same Transaction" Under Cr.P.C.:
The court examined whether the offences in the two charge sheets formed part of the "same transaction." It noted that the locker was opened as part of a conspiracy to stash bribe money converted into gold, which was part of the same transaction as the bribe-taking. The court cited precedents, including the Supreme Court's interpretation in State of A.P vs. Cheemalapati Ganeswara Rao and Anr., and Mohan Baitha vs. State of Bihar, which emphasized the need for a unity of purpose, continuity of action, and a common substratum of facts to determine the same transaction.

Conclusion:
The court concluded that the offences in the two charge sheets were part of the same transaction, as they involved a common conspiracy and continuity of action. It held that separate trials could lead to conflicting judgments and miscarriage of justice. Therefore, the court set aside the impugned order and directed the Special Court to proceed with a joint trial after clubbing the two charge sheets.

Final Orders:
The impugned order dated 02.02.2013 was set aside. The Special Court was directed to club the two charge sheets and conduct a joint trial. The petition was allowed, and the related applications were disposed of as infructuous.