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1997 Supreme(Bom) 94
IN THE HIGH COURT OF BOMBAY
A.V. Savant S.S. Parkar, JJ.
The State of Maharashtra ..... Petitioner.
Versus
Anjanabai wife of Mohan Dahale others ...... Respondents.
Criminal Writ Petition No. 114 of 1997, decided on 19-2-1997.
Advocates appeared :
V.T. Tulpule, Public Prosecutor with U.D. Nikam, Special Public Prosecutor, for the State.
N.V. Gangal, for respondent No. 4.
Headnote:Sections 178, 179, 220 and 223-Single trial for offences committed at different places-It Is feasible-Members of a family conspired to commit various offences including even killing of children C.J.M. of view that different offence, committed at different places cannot be tried in a single trial-Held, since the conspiracy was single and offences were committed in pursuance of it-Single trial will be proper.-Chapter XIII of the Code of Criminal Procedure. 1973. deals with the jurisdiction of the Criminal Courts in inquiries and trials. Section 177 dealing with ordinary place of inquiry and trial provides that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. Section 178 deals with the place of inquiry or trial. Clause (a) deals with the situation when it is uncertain in which of several local areas an offences was committed. Clause (b) deals with a situation where an offence is committed partly in one local area and partly in another. Clause © deals with a situation where an offence is a continuing one, and continues to be committed in more local areas than one and Clause (d) deals with. A situation where the offence consists of several acts done in different local areas. After providing for these four situations, the concluding portion of Section 178 says that it may be inquired into or tried by a Court having jurisdiction over any of such legal areas. Section 220 which occurs in Chapter XVII dealing with the charge deals with the question of trial for more than one offence. Sub-section (1) provides that 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. Sub-section (4) of Section 220 provides that if several acts, of which one or more than one would by itself or themselves constitute an offence constitute when combined a different offence the person accused of them may be charged with and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by anyone or more of such acts.
In the case of Emperor v. Datto Hanmant. 7 Bom LR 633 : 2 Cri W 578. the question arose under Section 239 of the 1898 Code of Criminal Procedure. Two accused Datto Hanmant and Ganesh waman were entrusted with certain moneys belonging to the Swami of Chafal. The first as Karbhari and the second as cashier. They were accused of committing breach of trust in respect of those moneys on different dates. They were tried together and were convicted. In the Revision Application before the High Court. Two objection were raised
(i) various offences exceed three in number and were not all committed within one year and
(ii) that Datto Hanmant has been charged for totally distinct offence from those with which Ganesh Waman was charged and, therefore the two accused could not be tried together under Section 239 of the 1898 Code. Both contention were rejected, while we are, not concerned with the first contention in respect of the second contention the Division Bench observed at page 635 of the Bombay Law Reporter as under :"It suffices for the purpose of justifying a joint trial that the accusation alleges the offences committed by each accused to have been committed in the same transaction, within the meaning of Section 239, it is not necessary that the charge should contain the statement as to the transaction being one and the same. It is the tenor of the accusation and not the wording of the charge that be considered as the test",
The Court then considered the etymological and dictionary meaning of the word "transaction" and observed at pages 635 and 636 of the 7 BLR as under :-
"According to its etymological and dictionary meaning the word "transaction" means "carrying through" and suggests we think not necessarily proximity in time so much as continuity of action and purpose. The same metaphor implied by that word is continued in the illustrations where the phrase used is "in the course of the same transaction". In Section 215, the phrase is used in connection which implies that there may be a series indicates that the successive acts may be separated by an interval of time and that the essential is the progressive action all pointing to the same object. In Section 239, therefore, a series of acts separated by intervals of time are not we think, excluded provided that those jointly tried have throughout been directed to one and the same objective. If the accused started for same goal this suffice to justify the joint trial even if incidentally one of those jointly tried has done an act for which the other may not be responsible vide, Section 239, Illustration (b).
The opening portion of the 5th column of the charge-sheet clearly states that a conspiracy was hatched by the respondents accused and pursuant to the said conspiracy as part of the same transaction, a series of offences were committed between 1990 and 1996 which are the subject matter of as many as 9 Crimes elaborated above. Held, that the ratio of the decision in Datto Hanmants cast 7 Bom LR 633 clearly supports the petitioners contention.
Section 223-Code of Criminal Procedure. 1898. Section 226 and 239-Feasiblllty of different offences in a single trial-Being a single conspiracy can different offences committed at different place be tried in a single trial-Contention that provisions of Sections 235(1), 236 of old Code of 189S-Central provisions of Section 239 (present Section 223) -Held. not-tenable-Series of acts which constitute transactions must be connected to each other-Those not connected will not be a part of it-Present case involves a crimes having a single transactions-Even if offences are spread over 7 years, It does not after the fact that conspiracy was a single one.
2.This is a writ petition filed by the State of Maharashtra, challenging the two orders; one dated 18th January 1997 which is passed below Exhibit "B" to this writ petition and the other dated 20th January 1997 which is passed below Exhibit C" to this writ petition. In substance, the learned Chief Judicial Magistrate, Kolhapur, has rejected the application of the State for permission to file a single charge-sheet in respect of several offences which are alleged to have been committed by the respondents-accused in the course of the same transaction in what has been referred to as "Bal Hatya Kand", which means children's massacre. The facts which emerge from the single charge-sheet that was submitted before the learned Magistrate are as under.
3.Four accused viz. respondent No. 1 Anjanabai and her two daughters; respondent No. 2 Renuka and respondent No. 3 Seema, and the fourth respondent Kiran Shinde, who is husband of respondent No. 2 Renuka, had entered into a conspiracy to commit the offences of theft, including chain-snatching and pick-pocketing at crowded places such as State Transport Bus Stands, Railway Stations, Temples and Market places. Their conspiracy was further to the effect that in the event of their being caught while committing the offences, if they had small children with them, it might help arousing public sympathy in their favour and help prove their innocence and, therefore, they should kidnap children of tender age and use them during the course of committing the offences of theft, chain-snatching and pick-pocketing etc. The further conspiracy that has been alleged is to the effect that in the event of the continued presence of the children with them becoming inconvenient, the said children should be done away with by killing them. All the four accused, who are related inter se, as stated above, were alleged to be staying in the house belonging to one, Saste in Survey No. 19, at Gondhale Nagar, Hadapsar, Pune, where the conspiracy is alleged to have been hatched in the month of August, 1990. Pursuant to the above conspiracy, several offences have been committed by the four respondents accused, the details of which are mentioned in the single charge-sheet submitted to the Magistrate.
4.We may summarise the details of the said offences alleged to have been committed in the course of the same transaction as under :-
(i) Santosh, aged about 1-1/2 year was kidnapped from the S.T. Stand, at Karad, in Satara District in August, 1990. He was in the custody of the respondents for over four months and his dead body was found on 15th January 1991 at the Kolhapur S.T. Stand, in respect of which C.R. 112/91 has been registered with the Shahupuri Police Station, Kolhapur, for the offences punishable under sections 302, 201, 120-B read with section 34 of the Indian Penal Code.
(ii) Naresh, aged 9 months, was kidnapped from the Thane S.T. Stand in March 1992. He was with the respondents for about five months and he was abandoned at Panchavati, Nasik, on the Ghats of the river Godavari on 28th August, 1992. In respect of this child Naresh, which is alive, C.R. No. 319/1996 has been registered with the Panchavati Police Station, Nasik, for the offences punishable under sections 363, 364, 468, 120-B read with section 34 I.P.C.
(iii) Bunty, a boy aged one year, was kidnapped from the Kalyan Railway Station in April, 1993. He was with the respondents for about three months and his dead body was found on the Bombay Pune Highway, near Khopoli, on 30th June, 1993. In respect of this crime, C.R. No. 101/93 has been registered with the Khopoli Police Station for the offences punishable under sections 363, 364, 302, 201, 120-B read with section 34 I.P.C.
(iv) Guddu, aged 1-1/2 year was kidnapped from the V.T. Railway Station, Bombay, in May, 1993. He was in the custody of the accused or about a month or so. His dead body was found near Khopoli on the Bombay - Pune Highway, in
