IMPORTANT POINT
Section 223, Criminal Procedure Code, gives to the Magistrate a discretion to amalgamate cases and when the main offences under the Prevention of Corruption Act in each case is in respect of the alleged transaction in that case and as conspiracy is only an allied offence it cannot be said that the alleged overt acts are in the course of the same transaction.

Headnote:(i) Criminal Procedure Code, 1973 -Section 223-Prevention of Corruption Act-Sections 13(1)(c) and 13(1)(d)-Indian Penal Code, 1860-Section 120B-Amalgamation of cases-Appellants accused of charges under Prevention of Corruption Act and of offence of conspiracy to defraud Government exchequer of large sums of money-A large number of complaints have been filed-Cases being prosecuted by CBI before various Special Courts both in State of Jharkhand as well as State of Bihar-6 such cases pending before Special Courts in State of Jharkhand-All the cases have not reached stage of framing of charges-Three of cases are still at appearance stage-Apart from appellants there are a large number of other accused persons-Most of other accused persons have not applied for joint trial-Main offences under Prevention of Corruption Act in each case is in respect of alleged transaction in that case-It cannot be said that alleged overt acts are in course of same transaction-Application for amalgamation rightly rejected.
       Held : That irrespective of the applicability of clauses (a) to (g), Section 223 gives to the Magistrate a discretion to amalgamate cases. The Magistrate has to be satisfied that persons would not be prejudicially affected and that it is expedient to amalgamate cases. As has been set out hereinabove, on a prior occasion the application for amalgamation has been rejected by the Special Judge. The High Court has also rejected the Appeal. Under the circumstances, a fresh application for the same relief would not normally lie. Faced with this situation it had been submitted that the present application for amalgamation had been made as the High Court had already held that there was a single conspiracy and had given liberty to apply for amalgamation at a later stage. (Para 9)
       The High Court has not concluded that there was a single conspiracy. The High Court has correctly held that this question can be decided only when the other cases are also ready and reach the stage of framing of the charges. As has been indicated above all the cases have not reached the stage of framing of the charges. Three of the cases are still at the appearance stage. Two of the cases are at the stage of framing of charge. Thus in any case the application was premature. Moreover, the present attempt is likely to result in delay in trial of Case No. 20(A) 96 - Patna which has progressed considerably. The High Court has also correctly held that it is the trial court which would have to consider the stand of other accused persons who have not prayed for joint trial. It is to be seen that apart from the Appellants there are a large number of other accused persons. Most of the other accused persons have not applied for joint trial. This Court does not know what their stand is. When this was pointed out to Counsel for the Appellants it was stated that affidavit of consent, for joint trial, by all the accused in all the cases would be filed before this Court. In our view this is not the stage where such affidavits could be filed. The consent had to be obtained before the application for amalgamation was made. It was for the Special Judge to consider whether it was expedient and in interest of justice that all accused persons, in all the cases, be tried jointly. It is neither expedient nor proper that the Appellants be permitted to bypass the trial court in this manner. (Para 9)
       The cases are before the Special Judges because the main offences are under the Prevention of Corruption Act. The main offences under the Prevention of Corruption Act in each case is in respect of the alleged transaction in that case. As conspiracy is only an allied offence it cannot be said that the alleged overt acts are in the course of the same transaction. We are bound by this decision. In any case we see no reason to take a different view. As it has already been held that the charge of conspiracy is only an allied charge and that the main charges (under the Prevention of Corruption Act) are in respect of separate and distinct acts i.e. monies siphoned out of different Treasuries at different times, we fail to see as to how these cases could be amalgamated. (Para 10)
       (ii) Criminal Procedure Code, 1973 -Section 407-Transfer of cases to one Court-All Special Courts in Jharkhand housed in one building-All Courts functioning smoothly and fairly-Cases being disposed of very expeditiously-Transfer to one Court may prejudicially affect other accused persons-Prayer for transfer of cases rightly dismissed. (Para 11)

JUDGMENT

S.N. Variava, J.-Leave granted.

Heard parties.

2. All these Appeals can be disposed of by this common Order even though the prayer made in Dr. Jagannath Mishra s case is only for transfer whilst in the other Appeals the prayer is for amalgamation of trials.

3. Briefly stated the facts are as follows:

Dr. Jagannath Mishra and Laloo Prasad Yadav are Ex Chief Ministers of the State of Bihar. They and the other Appellants have been accused of charges under the Prevention of Corruption Act and of the offence of conspiracy to defraud the Government exchequer of large sums of money. A large number of complaints have been filed and the cases are being prosecuted by CBI before various Special Courts both in the State of Jharkhand as well as the State of Bihar. We are concerned with 6 such cases which are pending before Special Courts in the State of Jharkhand.

4. It must be mentioned that earlier the cases were before the Special Judge at Patna. However pursuant to a Judgment of this Court in the case of CBI v. Braj Bhushan Prasad report in 2001 (9) SCC 432 these cases have been transferred to the Courts of Special Judges, Jharkhand. When two of these cases namely RC. 20 (A)/96 and RC 64 (A)/96 were pending before the Special Judge at Patna, an application was made for joint trial of these cases. This was rejected by the Special Judge. The High Court rejected the Criminal Appeal which was filed against the order of rejection. This Judgment is reported in 2000(3) Patna Law Journal Reports 357.

5. Thereafter Writ Petitions (Criminal) and a Criminal Misc. Petition were filed before the High Court of Jharkhand at Ranchi for amalgamation of 5 cases. Dr. Jagannath Mishra, by his Transfer Petition applied for transfer of 5 cases to one Court. Dr. Jagannath Mishra s Petition was dismissed by the impugned Order dated 6th August, 2002. The other Writ Petitions and Crl. Misc. Petitions were dismissed by the impugned Order dated 10th September, 2002. Hence these Appeals. Before us all are applying for amalgamation of 6 cases.

6. It was submitted, on behalf of the Appellants, that even though the Appeals were dismissed by Patna High Court it has been held that there was a single conspiracy. It was submitted that the application for amalgamation was filed pursuant to the liberty granted by the Patna High Court while dismissing the Appeals. It was submitted that, according to the prosecution, there was a large conspiracy involving the then Chief Ministers and other officers of the Animal Husbandry Department. It was submitted that according to the prosecution the object of the conspiracy was to withdraw/siphon out government monies from various Treasuries which were earlier in the State of Bihar and now fall in the State of Jharkhand. It was submitted that the overt acts are alleged to have been committed in pursuance of this large conspiracy. It was submitted that in the overt acts there would be local people who are not part of the larger conspiracy. It was submitted that offences committed in pursuance of one conspiracy are offences committed in the course of the same transaction. It was submitted that the main accused namely the Appellants have been charged only on the basis of the large conspiracy. It was submitted that in all the cases, as against the Appellants, there would be same witnesses and same documents. It was submitted that there are 58 witnesses who would be common in all the 6 cases. It was submitted that there are approximately 100 documents which are also common in all the 6 cases. It was submitted that the prosecution had admitted, in paragraphs 10 to 12 of the affidavit in reply filed before the Special Judge, that there was a single conspiracy and that the abovementioned witnesses and documents were common. It was submitted that if these witnesses have to depose separately in all the 6 cases, there was a strong possibility of their evidence being different and of their being conflict of decisions. It was submitted that the A

Click Here to Read the rest of this document

2003 Supreme(SC) 802

Cases Referred (7)