High Court of KeralaSingle Judge2016-07-20Petition disposed of with observations; committ...

Crl.M.C. No. 2039 of 2016

Case / Petition Number:Crl.M.C. No. 2039 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: RAJA VIJAYARAGHAVAN V.
Judgment Date: 2016-07-20
Court Decision / Holding: The petition is disposed of with observations; the committal orders of the 2nd petitioner in CP No. 81/2014 on the file of the Judicial Magistrate of First Class-II, Kannur, shall be subject to the orders to be passed by the learned Sessions Judge after hearing the State and the petitioners.
Final Disposition: Petition disposed of with observations; committal orders to be subject to the Session Judge's orders after hearing both sides.

Parties to the Case

Appellants / Petitioners

Sajid K.R.
A. Anas Shaduli
Gafoor A.P.

Respondents

State of Kerala, represented by Public Prosecutor, High Court of Kerala, Ernakulam-682 031
Station House Officer, Irikkur Police Station, Kannur District, represented by Public Prosecutor, High Court of Kerala, Ernakulam-682 031

Legal Representation & Advocates

Counsels for Petitioners

• Sri. C.K. Sreejith

Counsels for Respondents

• Public Prosecutor Sri. Roy Thomas

Case Synopsis & Summary

This criminal miscellaneous case (Crl.M.C. No. 2039 of 2016) challenges the legality of joining accused Nos. 3–5 with accused Nos. 1–2 in Crime No. 63 of 2014 of Irikkur Police Station, Kannur. The petitioners (accused Nos. 3–5) face charges under IPC sections 332, 307, 427 read with sections 132 and 179, as well as under Sections 184 and 227(i)(m) read with Section 177 of the Motor Vehicles Act, and under Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. The case concerns an incident on 7.2.2014 when a tipper lorry, unregistered, was pursued by police; the lorry rammed into a police car, allegedly at the behest of accused Nos. 1–2. It is further alleged that, prior to this incident, on 7.2.2014 at 9 p.m., the petitioners had loaded river sand into the same lorry. The petitioners submit that their act is a separate transaction and cannot be joined in a single trial with accused Nos. 1–2; the State contends that joinder is permissible where acts are connected by same transaction or circumstances. The High Court considers CrPC Section 223 and its clauses, along with the concept of ‘in the course of the same transaction’ and the interpretation from State of Kerala v. Wolf Hang Kannad Finert, emphasizing continuity in action as the test. It holds that the petitioners’ sand-loading cannot be said to be in the same transaction for the 307 IPC charge, though River Banks Act provisions may apply. The petition is disposed of with observations; committal orders of the 2nd petitioner shall be subject to the Session Judge’s orders after hearing the parties.

Provisions of Law Cited

IPC: Sections 332, 307, 427 read with Sections 132 and 179Motor Vehicles Act: Sections 184, 227(i)(m) read with Section 177Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001: Sections 20 and 21CrPC: Section 223 and its clauses (219, 220, 221(1), 222(1)); proviso to Section 223

Legal Doctrines & Maxims

Continuity in action is an important test for determining 'in the course of the same transaction'
Transaction defined as a group of facts connected to a crime, contract, wrong, or inquiry per Sir James Stephen
Joinder rules: every distinct offence should normally form the subject of a separate charge; Clauses (a)–(g) of Section 223 CrPC provide exceptions; Proviso enabling joint trials if written application and prejudice is not caused (i) and (ii)

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for petitioners argued that the incident involving the 1st and 2nd accused is separate from the loading of river sand by petitioners, and there is no causal connection or continuity in action linking the sand-loading to the later ramming incident. They contended that the petitioners could not be charged and tried together with accused Nos. 1 and 2 for the alleged offences under IPC and the River Banks Act, and that compulsory joint trial would prejudice the petitioners. They urged the court to recognize the distinct transaction and to allow trial of petitioners separately or to set aside improper committal order if any.

Contentions of Respondents

The State contended that CrPC Section 223 permits joinder when accused are implicated in acts connected by the same transaction; it argued that the petitioners were part of a single sequence of events tied to the same objective and thus could be tried together with accused Nos. 1 and 2. The State noted that the petitioners’ act, even if separate in time, forms part of the same overall criminal episode and that the river sand loading brings elements under the River Banks Act as well. It urged the court to reject the petitioners’ challenge to joinder and permit trial with the others or, at least, leave the question to the trial court to decide after considering admissible evidence.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
State of Kerala v. Wolf Hang Kannad Finert	1995(1) KLT 72	Positive	The Court cites and applies the principle from this earlier decision to interpret the phrase 'in the course of the same transaction' and the test of continuity in action.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938** ## **Crl.MC.No. 2039 of 2016 ()** **--------------------------CP.NO. 81/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, KANNUR CRIME NO. 63/2014 OF IRIKKUR POLICE STATION , KANNUR DISTRICT SC.NO.43/2016 OF ADDITIONAL DISTRICT & SESSIONS COURT, THALASSERY** **---------------------** ## **PETITIONER(S)/ACCUSED NOS. 3, 4 & 5:** **------------------------------------------------------------** ## **1. SAJID K.R.,** **AGED 30 YEARS, S/O.MAYAN, KUNNUMPURATH HOUSE, RAHATH MANZIL, IRIKKUR P.O, VAYAKKAMKODU, PAISAYI.** **2. A.T.ANAS SHADULI, ITTANDI PUTHIYAPURAYIL, IRIKKUR P.O, KANNUR DT.** ## **3. GAFOOR A.P.,** **AGED 30 YEARS, S/O.MOIDEEN, ITTANDI PUTHIYAPURAYIL, IRIKKUR P.O, PEDAYAMKODU, KANNUR DT.** ## **BY ADV. SRI.C.K.SREEJITH** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **-------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** ## **2. STATION HOUSE OFFICER,** - **IRIKKUR POLICE STATION, KANNUR DIST, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY PUBLIC PROSECUTOR SRI.ROY THOMAS** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 2039 of 2016 () ---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** ## **---------------------------------------------** **ANNEXURE A1 : THE TRUE COPY OF THE FIR IN CRIME NO.63/2014 ON THE FILE OF IRIKKUR POLICE STATION.** **ANNEXURE A2 : THE TRUE COPY OF THE STATEMENT GIVEN BY THE DEPUTY SUPERINTENDENT OF POLICE, P. SUKUMARAN. ANNEXURE A3 : THE TRUE COPY OF THE STATEMENT GIVEN BY THE MR.JENSON CPO 6360 AR CAMP, KANNUR. ANNEXURE A4 : THE TRUE COPY OF THE CHARGE.** **ANNEXURE A5 : THE TRUE COPY OF THE SUMMONS ISSUED IN CP NO.81/2014 ON THE FILE OF JFCM NO.II, KANNUR. ANNEXURE A6 : THE TRUE COPY OF THE SUMMONS ISSUED TO THE 3RD PETITIONER/5TH ACCUSED.** **RESPONDENT(S)' ANNEXURES: NIL -----------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2039 of 2016 - - - - - - - - - - - - - - - - Dated 20[th] July, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.The petitioners herein are arrayed as accused Nos. 3, 4 and 5 in crime No.63 of 2014 of Irikkur Police Station. They along with accused Nos. 1 and 2 in the aforesaid crime are charged for having committed offences punishable under Sections 332, 307, 427 read with Sections 132 and 179 of the IPC and Sections 184, 227 (i) - (m) read with Section 177 of the MV Act and also under Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001. - 2.A tipper lorry which was not sporting a registration plate was intercepted by the Deputy Superintendent of Police and his subordinate officers on 7.2.2014. The said vehicle was driven off by the driver who is the 1[st] accused in the aforesaid case. The police personnel gave hot chase and managed to over take the lorry. The prosecution Crl.M.C. No.2039 of 2016 -2- allegation is that with intent to murder and to deter the public servants from discharging their official duty the lorry was rammed on the car in which the police officials were travelling. Thereafter, the 1[st] accused is alleged to have taken to his heels. Prosecution further alleges that it was the 2[nd] accused who had given necessary instructions to the 1[st] accused to act as aforesaid. The allegation against the petitioners is that, much prior to the above incident, i.e., on 7.2.2014 at 9 p.m., they along with accused Nos. 1 and 2 had loaded river sand into the tipper lorry. 3.The learned counsel appearing for the petitioner submitted that the incident involving the 1[st] and 2[nd] accused is a distinct and separate transaction and it has no connection whatsoever with the loading of river sand into the tipper lorry by the petitioners. It is pointed out that the offence attracted against the petitioners is only one under Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2006, and even if Crl.M.C. No.2039 of 2016 -3- it is admitted that the entire prosecution case is true as such, the petitioners cannot be charged and tried together with the accused Nos. 1 and 2. - 4.The learned Public Prosecutor on the other hand submits that there is no merit in the contention of the petitioners. It is further submitted that the petitioners can raise all these contentions before the trial court itself and this Court will not be justified in interfering at this stage. - 5.I have considered the rival submissions and have considered the materials on record. - 6.It is evident from the records that the incident which involved the ramming of tipper lorry by the 1[st] accused against the car in which police personnel were travelling took place at 10.05 p.m. at the Iritty - Thaliparamba highway. The prosecution also has a case that it was at the behest of the 2[nd] accused that the accused had committed the offence. - 7.Insofar as the petitioners herein, who are accused 3 to 5 - are concerned, there is no allegation in the final report Crl.M.C. No.2039 of 2016 -4- that they had any role to play in the above incident. - 8.The question is whether the petitioners can also be charged and tried along with the accused Nos. 1 and 2 on the ground that they had committed the same offence in the course of the same transaction. - 9.Section 223 of the Code refers to the joinder of different accused at a single trial. The Section lays down as to the persons who may be charged and tried together and is in seven clauses. The general rule as contained in section 223 of the code is that every distinct offence shall be the subject matter of a separate charge, to be tried separately. The rule of joinder of charge, as contained in sections 219, 220, 221 (1) and 222 (1) of the code, are exceptions to the general rule. - 10.Though Section 223 has seven clauses, each clause is unconnected with, and independent of, the other clause. What is laid down by the section is that persons accused of the same offence committed in the course of the same transaction can be tried together (clause (a) ); persons Crl.M.C. No.2039 of 2016 -5- accused of an offence and those accused of its abetment to commit such offence can be tried together(clause (b) ); persons accused of more than one offence of the same kind committed by them jointly within 12 months can be tried together( clause (c)) ; persons accused of different offences committed in the course of the same transaction (clause (d)); persons accused of theft, cheating, extortion, misappropriation, etc and receivers of stolen property (clause (e)); joint trial of receivers of stolen property through one theft ( Clause (f); persons accused of Counterfeiting of coins ( clause (g)) . 11.However the proviso to the section enables persons not covered by any of these clauses being tried together provided that they themselves apply for the same in writing, and the magistrate is satisfied that – - (i) the accused would not be prejudicially affected by the joint trial; and - (ii) it is expedient to try them in the same trial. Each group consists of persons who are connected with one Crl.M.C. No.2039 of 2016 -6- another in some way; it is because of the connection that they are allowed to be tried together. 12.Thus, each clause mentions which persons can be tried together and the joint trial of more than one person in the same trial is limited by the provisions of clauses (a) to (g). In other words ,in order that persons may be liable to be tried together, it is essential that they are connected with one another in one of the ways described in the clauses. 13. This Court had occasion to interpret the phrase “in the course of same transaction” in **State of Kerala v. Wolf** - **Hang Kannad Finert** [1995(1) KLT 72]. It was held in ## paragraph 5 as follows: - “5. The phrase “in the course of the same transaction” has been interpreted to mean that the acts should have been committed during the period when the first act forming the series was committed and commission of the last act ended. “Transaction” was defined by Sir James Stephen as “a group of facts so connected together as to be referred to by a single name, as a crime, a contract, a wrong or any other subject of enquiry which may be in issue”. The test to be applied is therefore where the offences alleged are related to one another in point of Crl.M.C. No.2039 of 2016 -7- purpose so as to constitute a continuous action. In other words, continuity in action is an important test in the matter. Different persons accused of having committed offences of the same kind cannot be regarded as having committed those offences in the course of the same transaction unless there is an intimate connection between the different acts.” 14. I am of the view that insofar as the petitioners are concerned, it cannot be said that their act of loading sand on the lorry which occurred much prior to the incident involving the 1[st] accused and the police personnel can be said to have been committed “in the course of the same transaction”. There is merit in the submission of the learned counsel that gross prejudice will be caused if the petitioners are tried along with accused 1 and 2 for the offence under Section 307 of the IPC. However, the provisions of Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 will squarely be attracted against them. - 15.Having regard to the facts and circumstances, the learned Session Judge is directed to hear the petitioners Crl.M.C. No.2039 of 2016 -8- and the State and to pass appropriate orders taking note of the observations made above. The committal orders of the 2[nd] petitioner in C.P.No.81 of 2014 on the file of the Judicial Magistrate of First Class-II, Kannur, shall be subject to the orders to be passed by the learned Session Judge. This petition is disposed of with the above observations. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/-20.7.16