Section 220(1) provides that if one series of acts is 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. Section 220(1) is extracted hereunder :
“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.”
Section 221(1) is applicable where it is doubtful what offence has been committed. When 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 would constitute, the accused may be charged with having committed all or any of such offences and such charges can be tried together.
Supreme Court in Natwar Lal Sakar Lal Mody v. The State of Bombay 26 (1984) DLT 64 considered the question of joint trial of persons and offences for conspiracy as per provisions contained in section 239(d) of the old Cr.PC. Supreme Court has laid down that separate trial is the rule and joint trial is an exception. Joint trial would be an irregular exercise of discretion if a court allows innumerable offences spread over a long period of time and committed by a large number of persons to be under the protecting wings of an all-embracing conspiracy, and if each or some of the offences can be separately tried, it would be appropriate and lawful.
Joint trial prolongs the trial and causes waste of judicial time and complicates the matter which might otherwise be simple, and it would confuse the accused and cause prejudice to them. Court should not be overzealous to provide a cover of conspiracy for a number of offences unless it is satisfied that the persons who committed separate offences were parties to the conspiracy and committed the separate acts pursuant to conspiracy. Supreme Court has laid down thus :
“11. This discussion leads us to the following legal position. Separate trial is the rule and joint trial is an exception. While section 239 of the Code of Criminal Procedure allows a joint trial of person and offences within defined limits, it is within the discretion of the Court to permit such a joint trial or not, having regard to the circumstances of each case. It would certainly be an irregular exercise of discretion if a Court allows an innumerable number of offences spread over a long period of time and committed by a large number of persons under the protecting wing of all-embracing conspiracy, if each or some of the offences can legitimately and properly form the subject-matter of a separate trial; such a joint trial would undoubtedly prolong the trial and would be a cause of unnecessary waste of judicial time.
It would complicate matters which might otherwise be simple; it would confuse accused and cause prejudice to them, for more often than not accused who have taken part in one of the minor offences might have not only to undergo the long strain of protracted trial, but there might also be the likelihood of the impact of the evidence adduced in respect of other accused on the evidence adduced against him working to his detriment.
Nor can it be said that such an omnibus charge or charges would always be in favour of the prosecution for the confusion introduced in the charges and consequently in the evidence may ultimately benefit some of the accused, as a clear case against one or other of the accused may be complicated or confused by the attempt to put it in a proper place in a larger setting.
A Court should not be overzealous to provide a cover of conspiracy for a number of offences unless it is clearly satisfied on the material placed before it that there is evidence to prove prima facie that the persons who committed separate offences were parties to the conspiracy and they committed the separate acts attributed to them pursuant to the object of the said conspiracy.”
Supreme Court in Ranchhod Lal v. State of Madhya Pradesh AIR 1965 Supreme Court 1248 has also considered the question of joint trial in the case of criminal breach of trust. It has been observed that normal rule is that there should be a charge for each distinct offence. Court is authorized to lump up the various items with respect to which criminal breach of trust was committed and to mention the total amount misappropriated within a year in the charge. When so done, the charge is deemed to be the charge of one offence. Supreme Court has laid down that a separate trial with respect to each distinct offence of criminal breach of trust with respect to an individual item is the correct mode of proceeding with the trial of an offence of criminal breach of trust. Supreme Court has laid down thus :
“(14.) Section 222, Cr. P.C. reads :
“(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of Section 234:
Provided that the time included between the first and last of such dates shall not exceed one year.”
Sub-section (2) is an exception to meet a certain contingency and is not the normal rule with respect of framing of a charge in cases of criminal breach of trust. The normal rule is that there should be a charge for each distinct offence as provided in Section 233 of the Code. Section 222 mentions what the contents of the charge should be. It is only when it may not be possible to specify exactly particular items with respect to which criminal breach of trust took place or the exact date on which the individual items were misappropriated or in some similar contingency, that the Court is authorised to lump up the various items with respect to which criminal breach of trust was committed and to mention the total amount misappropriated with a year in the charge. When so done, the charge is deemed to be the charge of one offence.
If several distinct items with respect to which criminal breach of trust has been committed are not so lumped together, no illegality is committed in the trial of those offences. In fact a separate trial with respect to each distinct offence of criminal breach of trust with respect to an individual item is the correct mode of proceeding with the trial of an offence of criminal breach of trust.
(15.) Learned counsel for the appellant also relied on section 234, Code of Criminal Procedure and urged that three offences of criminal breach of trust could have been tried at one trial as section 234 provides that 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. This again is an enabling provision and is an exception to section 233, Code of Criminal Procedure. If each of the several offences is tried separately, there is nothing illegal about it. It may also be mentioned that the total number of items charged in the four cases exceeded three.
(16.) Lastly, reference was made, on behalf of the appellant to section 235, Code of Criminal Procedure and it was urged that all these offences were committed in the course of the same transaction, and therefore, they should have been tried at one trial. Assuming, without deciding, that these offences could be said to have been committed in the course of the same transaction, the separate trial of the appellant for certain specific offences is not illegal. This section too is an enabling section.”
In R. v. Griffith 1965 (2) AER 448 it has been laid down that a conspiracy should be tried separately to substantive counts. The Court of Appeal in England has laid down thus :
“9. The practice of adding what may be called a rolled up conspiracy charge to a number of counts of substantive offences has become common. We express the very strong hope that this practice will now cease and that the courts will never again have to struggle with this type of case, where it becomes almost impossible to explain to a jury that evidence inadmissible against the accused on the substantive count may be admissible against him on the conspiracy count once he is shown to be a conspirator. We do no believe that most juries can ever really understand the subtleties of the situation. In our judgment, except in simple cases, a conspiracy count (if one is needed at all) should be tried separately to substantive counts.”
In State of A P v. Cheemalapti Ganeswara Rao & Anr. (1964) 3 SCR 297 Supreme Court dealt with misjoinder of parties under Section 239 of the old Cr.P.C. Supreme Court with respect to ‘same transaction’ has observed thus :
“10. Whether a transaction can be regarded as the same would necessarily depend upon the particular facts of each case and it seems to us to be a difficult task to undertake a definition of that which the Legislature has deliberately left undefined. We have not come across a single decision of any Court which the Legislature has embarked upon the difficult task of defining the expression. But it is generally thought that where there is proximity of time or place or unity of purpose and design or continuity of action in respect of a series of acts, it may be possible to infer that they form part of the same transaction. It is, however, not necessary that every one of these elements should co-exist for a transaction to be regarded as the same.”
Further, it was held that:
“Where, however, several offences are alleged to have been committed by several accused persons it may be more reasonable to follow the normal rule of separate trials. But here, again, if those offences are alleged not be wholly unconnected but as forming part of the same transaction the only consideration that will justify separate trials would be the embarrassment or difficulty caused to the accused persons in defending themselves.”
When several offences are alleged to have been committed by several accused persons Supreme Court has laid down that normal rule is of separate trials.
In Sardar Sardul Singh Caveeshar v. State of Maharashtra (1964) 2 SCR 378, Supreme Court considered the question of conspiracy in a case where the accused had first defrauded one Jupiter company and thereafter another company called Empire. Argument was raised that once having been convicted of conspiracy qua the Jupiter case, he could not be convicted qua company called Empire. Supreme Court relying upon judgment in State of Bombay v. S.L. Apte (1961) 3 SCR 107 has laid down thus :
“In the present case, applying the test laid down by Supreme Court, the two conspiracies are not the same offence: the Jupiter conspiracy came to an end when its funds were misappropriated. The Empire conspiracy was hatched subsequently, though its object had an intimate connection with the Jupiter in that the fraud of the Empire was conceived and executed to cover up the fraud of the Jupiter. The two conspiracies are distinct offences. It cannot even be said that some of the ingredients of both the conspiracies are the same.
The facts constituting the Jupiter conspiracy are not the ingredients of the offence of the Empire conspiracy, but only afford a motive for the latter offence. Motive is not an ingredient of an offence. The proof of motive helps a Court in coming to a correct conclusion when there is no direct evidence. Where there is direct offence for implicating an accused in an offence, the absence of proof of motive is not material. The ingredients of both the offences are totally different and they do not form the same offence within the meaning of Article 20(2) of the Constitution and, therefore, that Article has no relevance to the present case.”
In Gopal Prasad Sinha v. State of Bihar (1970) 2 SCC 905 offence was committed between two different periods when the accused was working as Cashier. On the basis of acquittal in the first offence, plea of issue estoppel was raised for the second period during trial. Supreme Court had rejected the submission thus :
“7. In our opinion, the High Court came to the correct conclusion. The basic principle underlying the rule of issue-estoppel is that the same issue of fact and law must have been determined in the previous litigation. The question then arises: Was it the same issue of fact which was determined in the earlier case? A person may be acting as a cashier at one period and may not be acting as a cashier at another period, especially as in this case it was found that the appellant had never been appointed as a cashier.
He was a temporary senior accounts clerk who was alleged to be doing the work of a cashier. If there is any likelihood of facts or conditions changing during the two periods which are under consideration then it is difficult to say that the prosecution would be bound by the finding in a previous trial on a similar issue of fact. It seems to us that the later finding must necessarily be in contradiction of the previous determination. There can be no such contradiction if the periods are different and the facts relating to the carrying on of the duties of a cashier are different.”
It is pertinent to mention here that Supreme Court in this very case has negatived the contention of joint trials and amalgamation of trials in the aforesaid decisions. When parties are different, issue of estoppel would not arise. The substantive offence is that of defalcation. Conspiracy was an allied offence to the substantive offence.
Reference
State of Jharkhand v. Lalu Prasad Yadav (2017)