Celmant T.A. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 29TH DAY OF MARCH 2019 / 8TH CHAITHRA, 1941** ## **Crl.MC.No. 1594 of 2018** **AGAINST THE ORDER/JUDGMENT IN SC 949/2017 of ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) CRIME NO. 431/2016 OF MARADU POLICE STATION , Ernakulam** ## **PETITIONER/ACCUSED:** **CELMANT T.A. S/O, AUGUSTIN, AGED 46 YEARS, MUNDAMVELIDESOM, THOPPUMPADY VILLAGE,KOCHI TALUK, ERNAKULAM.** **BY ADV. SRI.SHERRY J. THOMAS** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY SHO MARADU POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 VICTIM 3 VICTIM BY ADVS. ADDL.DIRECTOR GENERAL OF PROSECUTION SMT.MINI.V.A.** ## **OTHER PRESENT:** **ADGP,SRI.SURESH BABU THOMAS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.09.2019, THE COURT ON 29/3/2019 PASSED THE FOLLOWING:** Crl.M.C.No.1594/2018 2 ## **O R D E R** This Crl.M.C. arises from SC No.949/2017 of the Additional District and Sessions Judge, Ernakulam for offences punishable under sections 376(2)(i)(n), 506(1) IPC and section 3, read with 4, section 6 read with section 5 (1) section 8 read with section 7, section 10, read with section 9 (1) section 12 read with section 11 (I) of POCSO Act and section 75 of Juvenile Justice Act. 2. The petitioner is the accused in the session case which arises from Crime No. 827/2016, 3. The second and third respondents are minors. They were living with their mother at a house. Petitioner herein is stated to be the paramour of the mother. Prosecution allegation is that, while petitioner was living with the children and their mother, he, during the period from 2[nd] May 2014 to 19/6/2016, committed aggravated sexual offence on both the children on various dates. When this was revealed by the victims, they were threatened with dire consequences. Pursuant to the complaint laid, crime was registered and after investigation final report was laid. According to the petitioner, he received summons in SC No. 949/2017, whereupon he understood that another Sessions Case has been registered as SC No.486/2017 for offences punishable under Section 3B read with section 5 various provisions of POCSO. Crl.M.C.No.1594/2018 3 4. Grievance of the petitioner herein is that, pursuant to the crime registered as Crime No. 827/2016, investigation was conducted and final report was laid. 5. The specific contention of the learned counsel for the petitioner is that, though as per the allegation against him a single crime was registered as Crime No.827/2016, two separate sessions cases have been registered on the basis of the final report as SC Nos. 949/2017 and SC No.486/2019. The contention is that, allegation against him constitutes a composite offence which has been split up and two separate sessions cases have been registered which causes substantial prejudice to him. It was further contended that, perusal of the version given by the victims and the mother only discloses commission of offence during a specified period. It was also contended that no specific date of offence was alleged against him and the entire allegations constitute a single offence. 6. Evidently, section 218 of Cr.P.C.provides that for every distinct offence of which any person is accused of, there shall be a separate charge and every such charge shall be tried separately. Evidently, if it is violated, it may constitute misjoinder of charges which is held to be irregularity under sections 464 and 465 Cr.P.C. Section imposes duty on the court to frame charge for every distinct offence and separate charges are liable to be framed. However, section 219 Cr.P.C.provides that three offences of same kind within a year may be charged together. When a person is accused of more offence than one of the same kind committed within the space of twelve months from the first to the last of Crl.M.C.No.1594/2018 4 such offences, whether in respect of the same person or not, be may be charged with, and tried at one trial for, any number of them not exceeding three. Section 219(2) provides that offences are of the same kind when they are punishable with the same amount of punishment under the same section of the IPC. Sections 220, 234, 235, 236 and 239 constitute an exception to the above rule under section 218 Cr.P.C. 7. In the above circumstances, it has to be considered whether allegation against the petitioner constitutes single offence in relation to that specific act or whether each incident has to be treated as a separate offence. 8. A perusal of the final report shows that in SC No. 949/2017 charge relates to acts committed during the period 16/6/2015. As evident from Annexure A4, acts done by the petitioner covers the period from May 2014 to March 2015. in which case accused allegedly abused the victim on several unspecified dates. However, under the second charge an unspecified date of last week of March 2015 and another incident on the first week of April 2015 have been alleged. This constitute the factual premise on which charge is framed in the above session case. On the other hand, Annexure A shows that charge in SC No. 486/2017 relates to the period 16/6/2015 to 19/6/2016. The incidents have taken place in yet another building than the building referred in SC No.949/2017. That covers the period from 16/6/2015 to 19/6/2016. The charges in both the crimes covers two separate periods committed at two different places, though the acts alleged to have been committed by the petitioner remain to be common and the victims are Crl.M.C.No.1594/2018 5 also common. 9. In the above factual background, it has to be ascertained whether the allegation against the petitioner constitutes a single offence or not. Both sides relied on a catena of decisions to substantiate their contentions. ## 10. In **Emperor v. Ibrahim Khan ( ILR Volume XXXIII at page** **36)** , one person was charged with offence under section 409 IPC for having embezzled an aggregate sum on various dates. When this was challenged, Allahabad High Court held that, if the accused embezzled more than three separate specific items on specified dates, in the same capacity within the period of twelve months, he could under section 284 Cr.P.C(old) be tried at one trial with respect to only three of such items. ## 11. In **Becharam Mukherji v. Emperor and Anr. (AIR 1944** **Cal.224)** , the issue was in relation to an allegation that accused played fraud on the defacto complainant, withdrew cash from her account on various dates and removed gold from her locker. The contention set up by the accused was that, theft of different things on different dates separated by considerable period can be treated as one theft on the analogy of successive blows constituting one assault. Repelling this, it was held that if different charges for other offences could also be lumped up as a Rule, there would have been no necessity for making any special provisions in respect of criminal breach of trust or dishonest misappropriation. It was held that various thefts or misappropriation were infact isolated and independent crimes, that success in one crime Crl.M.C.No.1594/2018 6 led the accused to commit another. So each constituted a separate offence. ## 12. In **Bawarilal Jhunhunwala and others and V.A.Thomson** **v. Union of India and another (AIR 1963 Supreme Court 1620),** the Hon'ble Apex Court held that under section 223 Cr.P.C.1898, for every distinct offence should have a different content from the expression 'every offence' or 'each offence. A separate charge was liable to be framed for every distinct offence and not necessarily for each separate offence. It was held that distinct means “not identical”. It stress characteristics that distinguish, while the word 'separate' would stress the two things not being the same. It was clarified that two offences would be distinct if they be not in any way inter-related. It was a case wherein falsification of accounts and supply of inferior quality of goods. The accused embezzled huge amount by separate delivery of items on different dates. Constituting the whole incident as a single offence, it was held that cheating done was in pursuance of the conspiracy entered into between the various accused. In pursuant to the conspiracy, specified items were supplied over different period and the object of conspiracy was to obtain the full contract price from the Government on supplying material inferior in quality on different dates. On this factual premise, it was concluded that the offence of cheating contemplated by the conspirator was one single offence. ## 13. In **Bhagat Singh v. The state and another(AIR 1952** **Supreme Court 45)** explaining the factual matrix in that case, it was held that firing of single shot at two person constitute only one offence. Crl.M.C.No.1594/2018 7 14. In **D.K.Chandra v. The State(AIR 1952 Bom.177)** , the question that arose was regarding criminal breach of trust in relation to a specified amount. The appellant was charged with four separate offences. Explaining the legal position, it was held that each of the transaction was separate, distinct and the four offences alleged against him did not arise within the same transaction. ## 15. In **State of W.B. v . Laisal Haque and another(AIR 1989** **Supreme Court 129),** the Supreme Court reiterated that section 218 Cr.P.C.embodies the general rule as to the trial of accused person which provides for separate trial of each accused persons for every distinct offence and was based on the fundamental principle of criminal law that the accused person must have notice of the charge which he has to meet. It was held that there must not be any doubt as to ' single act or series of acts' which constitutes the transaction, that is to say, there must not be any doubt as to the facts. ## 16. In **K.Manoj Reddy v. Commissioner of Police and Ors.** **(2008 Crl L.J.768),** allegation was that the accused with dishonest intention to cheat the customers collected deposits from several persons promising to register plots but failed to do so. It was held that each of the written complaint by each complainant constituted a distinct offence and the accused was answerable for separate charges. 17. Explaining the principle of separate charge for distinct offences and separate trial, in **Velayudhan Pillai v. State of Kerala(2001 (3) KLT 416),** it was held that section 218 Cr.P.C. provided that there must be separate charges for each distinct offence Crl.M.C.No.1594/2018 8 and there shall be separate trial for each charge, except in cases covered under sections 219 to 221 and 223 of Cr.P.C. It was held that the underlining principle behind the section was that accused should not be bewildered by facing many disconnected charges. ## 18. In **State of Bombay v. Umarsaheb Buransaheb Inamdar** **and others (AIR 1962 Supreme Court 1153)** , with reference to section 406 IPC, it was held that when the accused persons in pursuance of a criminal conspiracy committed breach of trust of a gross sum embezzled during each period, separate charge contravenes the proviso to section 222(2). ## 19. Bombay High Court in **Priya Shran Maharaj alias** ## **Yadavendra Parashar and others v. Stae of Maharashtra (1995** **KHC 3173)** held that in the case of accused who was charged with commission of five offences of rape, there was no proximity of time or place or unity for purpose and design or continuity of action and each act should be a different offence. The charge clubbing all the five acts of rape, was held to be illegal. 20. Applying the legal propositions mentioned above, it is clear that each of the incident of commission of rape which are unrelated each other, constitute each independent offence, otherwise not. In the facts of the present case, it is clear that allegation against the accused relates to the different instances of sexual abuse over a long period. Commission of each act is not specifically mentioned, but it covers specified period. In each of the Sessions Case, final report discloses Crl.M.C.No.1594/2018 9 commission of offence by the same accused on the victim at two different places and during different periods of time. To that extent, offences constitute separate and cannot be clubbed together. Applying this proposition, it is clear that there is no illegality in the charge framed by the court below and since each of the act committed in each of the charge being specifically disclosed, it cannot be said that the accused was prejudiced. Having appreciated the above facts, I find no reason to interfere in the framing of charge against the accused. The revision is without any merit and is accordingly dismissed. The sessions case is of the year 2017. Trial was about to commence when the revision was filed. Having considered this, I am inclined to direct the court below to try the case as expeditiously as possible at any rate within four months from the date of receipt of a copy of this judgment. The Registry shall not disclose the name of the victims in the judgment. **Sd/-** **SUNIL THOMAS** dpk **JUDGE** Crl.M.C.No.1594/2018 10 ## **APPENDIX OF Crl.MC 1594/2018** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 THE FIRST FINAL REPORT IN CRIME NO. 431/2016 OF MARADU POLICE STATION** **ANNEXURE A2 THE SECOND FINAL REPORT IN CRIME NO. 431/2016 OF MARADU POLICE STAION.** - **ANNEXURE A3 THE ORIGINAL SEALED COURT COPY OF COURT CHARGE IN S.C. NO. 486/2017 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, ERNAKULAM** - **ANNEXURE A3 A TRUE COPY OF THE A DIARY PROCEEDINGS SHEET IN SC NO. 486/2017 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, ERNAKULAM.** - **ANNEXURE A4 THE ORIGINAL SEALED COURT COPY OF COURT CHARGE IN S.C. NO. 949/2017 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, ERNAKULAM** **ANNEXURE A4A TRUE COPY OF THE A DIARY PROCEEDINGS SHEET IN SC NO. 949/2017 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE, ERNAKULAM.** Crl.M.C.No.1594/2018 11