Important points:
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 also common

ORDER :

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 2nd 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.

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 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 Apri