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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.M. BADAR, J.
BALASAHEB @ SURYAKANT YASHWANTRAO MANE - APPLICANT
Vs.
THE STATE OF MAHARASHTRA - RESPONDENT
CRIMINAL REVISION APPLICATION NO.69 OF 2017
Decided On : 22-03-2017
The term "the same transaction" comprises all the act of all the persons concerned done in the cause of carrying through the affair in question and the prima facie test, as the words "in the course of" indicates, is continuity of action and continuity of purpose.
Criminal Procedure Code, 1973 - Section 223(d)-Scope of.-Provisions of Section 223(d) of Cr PC prescribes and permits joint trial of accused persons who committed different offences but in same transaction.
It is, thus, clear from clause (d) of Section 223 of Code of Criminal Procedure that, persons accused of different offences committed in the course of same transaction can be charged and tried together in a single trial. In the case in hand, after sustaining aggravated penetrative sexual assault on her by the cook working in the ashram school, the victim female child reported the incident to the present revision petitioner with a hope that he will act according to the law by reporting the incident to either the Special Juvenile Police Unit or the local police. Thereafter, the first informant and a relative of the victim female child also reported the incident to the revision petitioner/accused as seen from the record of the charge-sheet. However, instead of taking necessary action, the revision petitioner/accused had attempted for compromising the matter.
It is thus clear that the allegations against the main accused are for the offence punishable under Section 5 of the POCSO Act whereas allegations against the revision petitioner/accused are in respect of commission of offence punishable under Section 21(1) of the POCSO Act, but these different offences are certainly committed in the course of the same transaction and therefore the revision petitioner/accused can be charged and tried validly together with the main accused who is stated to have committed the principal offence. Clause (d) of Section 223 of the Code of Criminal Procedure in no unclear terms prescribes and permits joint trial of persons who have committed different offences but in the course of same transaction. The primary condition for such joint trial is that persons should have been accused either of the same offence or of different offences but committed in the course of the same transaction.
The meaning of the term "same transaction" can be found in sub- section (1) of Section 220. It implies one series of act so connected together as to form the same transaction. In other words, the term "the same transaction" comprises all the act of all the persons concerned done in the cause of carrying through the affair in question and the prima facie test, as the words "in the course of" indicates, is continuity of action and continuity of purpose (see Ravindra Pal Singh v. State of Punjab, 2004 Cri LJ 1332). In the case in hand the main act of commission of an aggravated penetrative sexual assault by the co-accused and non-reporting the same to the police by the revision petitioner despite knowledge depicts commission of different offences by them but in the course of the same transaction, warranting their joint charge and the consequent trial.
Protection of Children from Sexual Offences Act, 2012 - Sections 19 and 21-Indian Penal Code, 1860, Section 302- Criminal Procedure Code, 1973, Section 223-Joint trial for different offences under Act.-Accused persons committing different offences under Act in course of same transaction, can be charged and tried together in a single trial.
Allegations against the main accused are for the offence punishable under Section 5 of the POCSO Act whereas allegations against the revision petitioner/ accused are in respect of commission of offence punishable under Section 21(1) of the POCSO Act, but these different offences are certainly committed in the course of the same transaction and therefore the revision petitioner/accused can be charged and tried validly together with the main accused who is stated to have committed the principal offence.
1. By this revision petition, revision petitioner / original accused no.2 is challenging the charge framed by the learned Additional Sessions Judge, Waduj, on 7th January 2017, for offences punishable under Sections 19 read with Section 21 of the Protection of Children from Sexual Offences Act, 2012, (POCSO Act), Section 202 of the IPC and under Section 3(2)(vi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1988.
2. Heard Shri Rahul Kate, the learned advocate appearing for the revision petitioner / original accused no.2. By placing reliance on judgment in the matter of Kamal Prasad Patade vs. State of Chhattisgarh and Others, 2016 CRI.L.J. 3759, Shri Rahul Kate, the learned advocate appearing for the revision petitioner / original accused no.2 vehemently argued that initially the prosecution is obliged to prove the commission of the offence punishable under Section 5 of the POCSO Act against original accused no.1 Shahaji Anandrao Patole and then only the prosecution can file the charge-sheet against the present revision petitioner / original accused no.2 for the alleged offences under Section 19 read with Section 21 of the POCSO Act. Unless and until the principal offence is proved against the main accused, the co-accused cannot be charge-sheeted for the offence punishable under Section 19 read with Section 21 of the POCSO Act. The learned advocate further argued that in the case in hand, as yet, principal offence is not proved to have been committed by the accused no.1 Shahaji Patole and therefore, composite charge-sheet could not have been filed against the revision petitioner / original accused no.2 by arraigning him as an accused with principal accused Shahaji Patole. The learned advocate further argued that immediate superior officials in-charge of the ashram school are not made as an accused by the police and unnecessarily the revision petitioner /original accused no.2, who is Director of the Trust, is joined as an accused for the offence punishable under Section 19 read with Section 21 of the POCSO Act.
3. The learned APP opposed the revision petition by contending that objects of the POCSO Act are required to be kept in mind and there cannot be charge-sheet against accused persons in piecemeal – one of the substantive / principal offence and after result thereof, the another for the offence punishable under Section 19 read with Section 21 of the POCSO Act. The learned APP further argued that mandate of Section 33(5) of the POCSO Act is to the effect that the victim child should not be called repeatedly before the court for testifying against accused persons and if contention of the learned advocate for the revision petitioner is accepted, then that will amount to violation of provisions of Section 33(5) of the POCSO Act.
4. I have carefully considered the rival submissions and also perused the entire charge-sheet with the assistance of the learned advocate appearing for the revision petitioner / original accused no.2. The charge questioned in the instant revision petition is one punishable under Section 19 read with Section 21 of the POCSO Act. It is, therefore, necessary to quote relevant provisions of both these sections and they read thus :
“19. Reporting of offences :
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, any person (including the child), who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to.-
(a) the Special Juvenile Police Unit; or
(b) the local police.
(2) Every report given under sub-section (1) shall be —
(a) ascribed an entry number and recorded in writing;
(b) be read over to the informant;
(c) shall be entered in a book to be kept by the Police Unit.
"21. Punishment for failure to report or record a case :-
(1) Any person, who fails to report the commission of an offence under sub-section (1) of section 19 or section 20 or w
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