 Good evening, one and all, and though we had initially thought that discharge and discharge sessions could be over in eight sessions, but as just as Ram Kumar takes things in a simplified manner, we said that sessions could be more, but we should make the people understand better. And that's the way to take things forward. And in fact, section 221 itself what we will be discussing today along with 221 it says where is doubtful what the fence is committed. So we thought that we shouldn't create some doubts in the mind of the audience, watch us live or subsequently that what could be the gamut within the section 221 and 223. And as we are approaching the weekend and same time the favour of Christmas is also approaching. So we thought, let's take the sessions accordingly. And I would request just as Viram Kumar, who has his own style of, I can say he is creating an audiobook for all of us, we can watch it anytime point of time. And that too, creating of an impact if one wants to watch it video also or the thing. Without taking much time, we will request just as Viram Kumar to take things and explain the manner. Good evening and thank you because now last time we discussed sections 219 and 220. And we also discussed a few problems on those sections. Now, before we come to section 221 and 223, you must have noticed that I omitted 222 because section 222 is not an exception to section 218-1. We saw that under section 218-1, there are four exceptions. 218-1 says all offenses shall be separately tried, all distinct offenses shall be separately tried. We saw four exceptions, 219, 220, 221 and then 223. 222 is not an exception. That is why I have omitted section 222 in today's webinar. So today we are going to discuss the last of the four exceptions. Before that, let us have a quick recap into the topics already covered during the previous session. Friends, we noted that in the case of the offenses of criminal breach of trust and dishonest misappropriation of property, joint trial of two or more cases, two or more offenses is permitted only when the specific dates of the offense and the specific amounts covered by each offense are not available. In which case, section 212 clause 2 CRPC allows the lumping up of the total amount and the statement of the outer dates of the offenses in the court charge because the specific amounts covered by each offense is not available. The dates on which each offense was committed was also not available. So we follow the rule under section 212 clause 2 wherein you can lump up the entire amount and give the outer dates, the starting date and the last date that is permitted. Where such details of each offense are on the contrary available, then separate trial is the rule. If all the details regarding each offense and each day and the amount involved in each offense is separately available, then go by the rule under section 218 clause 1 separate trial. Otherwise, joint trial has permitted under section 212 where 212 clause 2 where you can lump up the entire amount and give the outer dates, the initial first date and the last date. That is what we examined in last session. Then it was noted that for the commission of plurality of facts constituting the same offense, there can only be one punishment as provided under section 71 of the Indian Penal Code. There were plurality of facts constituting the same offense. There can only be one punishment. Similarly, we noted that sections 219, 220, 221 and 223 are the exception to the rule of separate trial under section 218, 1 CRPD. We also noted that in the case of plurality of offenses, offenders, so far we were discussing on offenses. Now in the case of plurality of offenders, that is culprits accused and plurality of different offenses permitted during the course of the same transaction. Joint trial can be resorted to by recourse to section 223 clause D which we are going to discuss today and section 220 clause 1 which we discussed the other day. So, if it is plurality of offenses, 220 clause 1. If it is plurality of offenders, it is 223 clause 1D. I am saying 223D of CRPD. It was noted that while under section 219 clause 1 CRPD, three offenses of the same kind, not same offenses. Three offenses of the same kind committed within 12 months can be charged and tried at one trial under section 220 clause 1. Different offenses which need not necessarily be the same kind as defined under section 219 clause 2 can be tried at one trial provided they constitute part of the same transaction. Three offenses of the same kind means they have different offenses. But how do you find out whether they are offenses of the same kind? The punishment should be the same. The punishment for those offenses would be the same. We can call them offenses of the same kind, but not same offenses. Same offenses means same offenses. So, they are different offenses, but same punishment. Therefore, that is the explanation given under section 219 clause 2. Then it was further seen that even if a case falls under any of the four exceptions to the rule of separate trial under section 218 once CRPD. Joint trial is not a mandatory requirement and separate trial held in those cases will not be illegal. That is the rule under section 218 clause 1 is separate trial for each distinct offense. But then there are four exceptions 219, 220, 221 and 223. If the case falls under any of those exceptions, then it is an enabling portion allowing joint trial. But even in those cases, if instead of joint trial, separate trial, that is the main rule under 281 is resorted to... Courts have taken to view that you can't call it illegal because you have resorted to the main rule separate trial. That means the exceptions are not for the purpose of mandatorily conducting joint trial. They are the only enabling provision where under the court will be justified in conducting joint trial. But if the court conducts separate trial, you can call it illegal because you are resorting to the main rule. Then you also saw that even in a case which falls under section 218 where separate trial is the rule and distinct offenses are there. They cannot be jointly tried. The accused can make a written application under the proviso to section 218.1 requesting the court that I may be tried jointly. If there is a written application, court can try the accused jointly. Then we noted that a solitary act directed against two or more persons will be treated as a single offense. And not two offenses because two victims are involved. If the act is a solitary act, you are treated as a single offense and not two offenses of the same kind within the meaning of section 219 plus 1. Offense, act is a single act, though victims are two. We also saw that a repetition of the offenses against the same person in the same occurrence will call for only one punishment as mandated by section 71 of the Indian Penal Code. For example, that illustration is beautifully elucidated. That is 50 strokes, a person is beaten 50 times. Each of the offenses is 323 or 324. And for each of the offenses, if imprisonment is given, then he can be imprisoned for 50 years. The illustration beautifully says that he can be imprisoned only once because repetition of the offense in the same occurrence against the same person calls for only one punishment as provided under section 71 of the Indian Penal Code. We examined with the scope of section 220 clause 1, 220 clause 2, 220 clause 3 and 220 clause 4 and 220 clause 5. We saw the meaning of the same transaction in 220 clause 1. What do you mean by same transaction? We saw the accused can be jointly tried for different offenses committed in the same transaction under two or more statute. The accused can be IPC, residential corruption act or some other statute. If the facts constituting the offense need not necessarily be the same. Two or more offenses can be tried together if they are committed as part of the same transaction. Then we saw that if the facts constituting the offense amount to the offense under same or two or more statute, the accused can be charged, tried and convicted at one trial, single trial for each of those offenses, but only one punishment as mandated by section 26 of the General Clauses Act 1897. These were the points which we discussed the other day. Now we pass on to section 221 which is the third exception to the rule of separate trial under section 218 clause 1. Can anyone read section 221? Sir, we will ask Mr. Rao since he joined after three weeks that he will read it. Mr. Rao, you will have to KVJ Rao. You have to be unmuted. Can he unmute? Yeah. Can he himself unmute? Yes, he unmuted some things. You have that section 221? Yeah, I have. Yeah, section 221. The first question. If a single act, not series of acts. Sorry, Mr. Rao. Section 221. We will go through the section first. Then we will try to understand the section. Section 221 itself. You will get it there. Okay. Question on section 221, yeah. What is the scope of section 221? I will read it. Section 221. Section itself. What offence has been committed? If a single act or series of act is of such nature that it is doubtful which of the several offences, the facts which can be proved will constitute the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once. Or he may be charged in the alternative with having committed some one of the said offences. If such a case, the accused is charged with one offence and it appears in evidence that he committed a different offence for which he might have charged under the provisions of subsection 1. He may be convicted of the offence which he is shown to have committed although he was not charged with it. Do I read the illustration also, sir? No, no, no. You cannot skip the illustration. Yeah. Now you can read question number one. Okay. Now Mr. Rao will read it. He's gone. What is the scope of section 221 CRPC corresponding to the old section 326 and 227? See, section 2212 as we just now read enables a court to convict an accused person for an offence with which he has not been charged since it was doubtful as to whether the particular offence was committed or not. You may refer to a fourth judges ruling a year 1960 Supreme Court 400 a year 1960 Supreme Court 400 rendered by Justice S.J. Imam that is G.D. Sharma versus state of UP a year 1960 Supreme Court 400 then held that the court charged for the offence under section 467 IPC that is fourth area of a valuable security for making fictitious entry in the transport permits could also fall under the lateral part of section 477 capital A IPC that is 467 is a fourth area of a valuable security and the lateral part of section 477 A that is falsification of account Supreme Court strained a bit to say that even the transport permits could fall under the expression accounts and to hold that same offence may fall under the lateral part of section 477 A also. So the court is in a doubt at the time of framing the charge the court is in a doubt as to whether 467 IPC should be the charge or 477 A IPC should be the charge. Now the rule is under section 221 once you are busy if there is a doubt as to which of the several offenses have been committed the court may frame charge either for all the offenses or for any of the offenses in the alternative either all the offenses or any of the offenses under section 221 2 if in a case falling under section 221 1 the accused was charged with one offense but the evidence reveals that he committed a different offense but for which he could have been charged under section 221 1 then even if he is not charged even if there is no charge he can be convicted for that offense revealing for example we examine 477 467 and the lateral part of 477 A same facts constituting an offense under 467 and 477 A supposing at the time the doubt should be at the time of framing charge at the time of framing charge the court is in a doubt whether 467 is the appropriate section or 477 capital A IPC is the appropriate section supposing the court frames only under 467 and during the evidence it is revealed that 477 A is the appropriate section then that is a section which could have been charged while framing charge so it squarely falls under section 221 and 222 clause 2 the illustrations to section in fact illustration A is a beautiful illustration A A is accused of an act which may amount to theft or receiving stolen property or criminal breach of trust or cheating he may be charged with theft receiving stolen property criminal breach of trust and cheating or he may be charged with having committed theft or receiving stolen property or criminal breach of trust or cheating either all or any of them but if any of the other offenses mentioned therein have been revealed in the evidence nothing wrong in the court convicting him for that offense because that is an offense for which court could have charged him under section 221 that is the guiding principle we pass on to question number 2 sir what is the primary condition for the application of section 221 CRPC the primary condition is the court should have felt doubt at this time of framing charge the time of framing charge the court should have felt a doubt as to which of the acts or theories of acts alleged against the accused will constitute the offense in such a case section 221 clause 2 permit the court to convict the accused of the offense which is which he is shown to have committed though he was not charged with it but he could have been charged under 221 what beautifully stated by the Supreme Court by Justice Katie Thomas in Shaman Shahib v. Multani Shaman Shahib Multani v. Karnataka 2001 Vol. 2 SCC 577 2001 Vol. 2 SCC 577 again there is a Privy Council ruling also Thakur Shah v. Emperor a year 1943 Privy Council 192 1943 a year 1943 Privy Council 192 again Bijoy Chand Patra v. State a year 1952 Supreme Court 105 the author of the judgment is Justice Saeed Fazal Ali there are any number of rulings on that the doubt must be as to the inference to be deduced from the above facts thus making it doubtful which of the several offenses the facts which can be proved will constitute if that doubt is there court can either frame a charge against all the offenses or any one of the offenses and can convict the offender for any of the other offenses for which charge could have been framed again a year 1988 Supreme Court 129 by Justice AP Sen a year 1989 Supreme Court 129 this is the principle question number 3 in a charge for offenses punishable under section 498 a and 304 b IPC against the accused for subjecting his deceased wife to such cruelty and harassment as to driver to commit suicide is it permissible for the court to convict the accused without a specific charge for an offense punishable under section 306 IPC abetting the commission of suicide by drawing the presumption under section 113 A of the evidence act along with or instead of section 498 a IPC in a case where the offense under section 304 b has not been proved so matrimonial cruelty along with the dowry death is attributed now dowry death is not voted the prosecutor is not able to prove dowry death then the question is whether the court will be justified in committing convicting the accused for an offense under section 306 abetting the commission of suicide falling under section 498 a in a way falling under 498 a the answer to this question was in the affirmative court said it was it is possible in fact there is no direct rolling on this point it is possible but then one in fact 498 a in fact I will slightly make a digression on this 498 a there seem to be some confusion see in a in in fact in a a mofusil advocate a mofusil lawyer once once called me and said that sir my client is the husband he at a vague weak moment he slapped his wife on her face in a heated argument between the that is all he only slapped the wife on her face then she straight away went to the police and lodged a complaint for 498 a cruelty matrimonial cruelty now can I have I got any any room to escape he asked me to read section 498 a in fact it was the lady viewers on this platform may kindly please understand me the idea came from the advocate himself he asked me to read the section again and the explanation see the explanation you read the explanation 498 a what the legislature has explained for the purpose of this section because any person any person any husband or relative the husband if he commits cruelty again the wife for a term which may extend to 3 years and also liable to find now what is cruelty for the purpose of this section cruelty means any willful conduct which is of such a nature as is likely to drive the woman to commit suicide the willful conduct on the part of the husband should be of such a nature as to drive the woman to commit suicide or cause grave injury or danger to life limb or health whatever mental or physical of the woman therefore the husband's willful conduct should drive the woman to commit something to cause harm to herself so taking the cue from the lawyer himself I said that I only gave wings to his imagination by painting an article which was published in the Kerala High Court cases and relying on that article he got an acquittal he told me so because I told him that you are right merely slapping the wife you are committing an offense under 323 it is not as if you are not committing any offense you are committing an offense under section 323 IPV by merely slapping the wife on the side but supposing a chicken hearted wife to bear the ignominy or to cut her veins or to hit her head against the wall there your willful conduct has driven her to commit those acts then only it becomes a cruelty under 498 your mere actor slapping is only 323 I penned an article in the Kerala High Court cases and he armed with that article he got an acquittal so that is 498 please bear in mind whenever there is a matrimonial cruelty allegation see that there is only a one sided act on the part of the husband that is not enough that act should drive her to commit something either suicide or cutting her veins or hitting her head against the wall or causing some harm to her she should do that then only the cruelty has defined under the explanation will be satisfied, will be attracted anyway for the question there are decisions that is 221 CRPC enables a court to convict a person in cases where there is a doubt at the time of framing charge as to which of the several offenses has been committed so court can either frame charge into alternative or can frame charge for all the offenses therefore in a given case if the court has framed charge for only one offense if the other offense for which court could have framed a charge is also revealed by the evidence nothing wrong in the court convicting the accused for that offense also K Prema S. Rao vs. Yadiya Srinivas Rao A.R. 2003 Supreme Court 11 A.R. 2003 Supreme Court 11 page 3 I am sorry 3 judges then Kira Lal vs. state government of entity of Delhi A.R. 2003 Supreme Court 2865 judges Arjeet Pasai then Narvinder Singh vs. state of Punjab 2011 volume 2 ACC 47 the judges Suryinder Singh Nijjar Suryinder Singh Nijjar the author of the judgment these are all the judgments which explain the Nijjar I am sorry proper now even if it is mispronounced you will excuse me so the all the decisions will throw light on the scope of section 221 clause 1 and clause 2 we pass on to question number 4 Sir where the accused are charged under section 302 read with section 149 IPC can they be convicted for section 302 with the aid of section 109 IPC without a specific charge under section 109 of IPC because when you charge a person for 302 radio section 149 you you admit that you are stating that he was a member of an unlawful assembly sharing the same common objective that assembly and in that capacity he committed this offence even if he is not physically he has not physically committed the offence if a member of the unlawful assembly has committed the offence he will be guilty for that even a non-performing offender will be guilty if he shared the same common objective that is the principle of vicarious liability under section 149 now abetment abetment is something at a distinct offence as in the case of section 149 without a charge for abetment you cannot invoke section 149 by relying on section 221 221 is not an enabling provision for the court to convict a person with the aid of section 109 abetment there should be a specific charge because abetment is a distinct offence as in the case of 149 criminal conferencing, 120 b, etc see vakil yadav v. state of vihar 2000 vol 10 sec 500 2000 vol 10 sec 500 justice punji and kurtukar then joseph kurian v. state of kerala aya 1995 supreme court 4 aya 1995 supreme 95 supreme court 4 by justice m m punji if at the time of framing charge there was no scope for any doubt as to whether there was abetment to commit the murder and punishable under section 109 IPC there cannot be any conviction under section 109 IPC even if the evidence discloses abetment even if the evidence discloses abetment without an independent charge under section 109 IPC it cannot be convicted it is not a provision falling under the scope of section 221 cross 1 or cross 2 but you must have seen that while discussing william slaney's case nana chand verses state of punjab aya 1955 supreme court 274 3 judges abetment by justice sj imam the charge was under section 302 reduce section 34 IPC and the trial court relying on carnail singh verses state of punjab aya 1954 supreme court 204 in 3 judges which held that conviction under section 302 reduce 149 could be converted into 302 reduce section 34 held that there could be no valid objection in converting a conviction under section 302 reduce section 34 into 100 section 302 alone because 34 as we have seen while discussing william slaney 34 is not a distinct offense you are invoking section 34 for the purpose of invoking the vicarious liability and once 34 is involved and the charges with the aid of section 34 participation in the offense is admitted that is how the argument of william slaney was met by justice vivian both speaking for the majority in william slaney's case participation is admitted and he cannot say that i was i have suffered prejudice because there was no charge unlike 149 but if the charges under section 149 you cannot convict him for 302 alone in the absence of an independent charge under section 302 because when you charge a person under 302 reduce section 149 you are telling him that look Mr. accused you were a member of an unlawful assembly and you shared the common object of that assembly common object of that assembly included an offense to commit murder therefore if any member of the unlawful assembly committed murder it is in the eye of law it is as if you also committed murder therefore you can be convicted for murder but once 149 becomes inapplicable once 149 becomes inapplicable either because the number of persons he becomes reduced to 4 or 3 less than 5 of some other reason then you cannot convict him under section 302 alone without an independent charge that is because that is the beautiful section 149 that situation is not available when a person is charged under section 302 reduce section 34 because in section 34 once it is invoked once it is charged is framed with the aid of section 34 participation in the offense and further the common intention these are all assumed therefore you cannot say that I did not participate I was only an onlooker there is there should be participation for the purpose of 34 whereas under section 149 even if you are an onlooker if you shared the common object of the assembly you can be convicted for any offense committed by any member of the assembly that the distinction now I will give you a small court charge by way of illustration so that those of you who are judges they may find it very very important how to frame charge I am going to give you an illustration on 11 2021 at about 6 p.m. the charge is framed there are 5 or more persons in a given case against every accused person the charge is framed in this fashion I am reading the court charge on 12 2021 at about 6 p.m. you are a member of an unlawful assembly the common object of which was to commit rioting rioting armed with deadly weapons criminal trespass wrongful confinement and murder and in prosecution of the said common object of that assembly the first accused among you inter alia inflicted a deep penetrating stab injury on the front left chest of Rajiv the victim and you have thereby committed offenses punishable under section 143, 147, 148, 147, 342 and 302 right to section 149, 18 this is the charge framed against all the 5 persons in the charge framed against all the 5 persons there is one extra statement that extra allegation is that you are all members of the unlawful assembly for the purpose of committing criminal trespass murder, deadly rioting armed with deadly weapons murder etc. and in the course of the time at the same time first accused among you inflicted a deep penetrating injury on the victim as a result of which victim died so you have committed all these offenses supposing in such a case the court ultimately finds that the 149 IPC is not attractive either for the want of sufficient number of accused persons less than 5 or for some other purpose 145 becomes in a 149 IPC becomes inapplicable then the accused the first accused will not be heard to say that in the absence of an independent charge against me under section 302 Simplicitor you cannot convict me for murder because in the charge itself there is a statement that out of these members of the unlawful assembly you the first accused inflicted the fatal injury on the disease therefore the act of framing charge is really an intelligent art if you are intelligent if the judges trial judge is intelligent enough to incorporate such an plea also in the charge then even if the 149 falls to the ground section 149 falls to the ground the accused may not be able to escape that is one you may kindly bear that in mind with that we pass on to section 223 which is the last of the 4 exceptions to the rule of separate trial under section 218 clause 1 please read section 223 223 what persons may be charged jointly the following persons may be charged and tried together namely persons accused of the same offense committed in the course of same transaction number 2 persons accused of an offense and persons accused of abetment of or abetment to commit such offense persons accused of more than one offense of the same kind within the meaning of section 219 committed by them jointly within the period of 12 months persons accused of different offenses committed in the course of the same transaction persons accused of an offense which includes theft extortion cheating or criminal misrepropriation and persons accused of receiving or retaining or assisting in the disposal or concealment of property possession of which is alleged to have been transferred by any such offense committed by the first persons or of abetment or attempted to commit any such last name defense persons accused of offenses under section 411 and 414 of Indian Penal Code or either of those sections in the stolen property the possession of which has been transferred by one offense persons accused of any offense under chapter 12 of Indian Penal Code relating to counterfeit coins and persons accused of any other offense under the said charge relating to the same point or of abetment or committing attempting to commit any such offense and the provisions contained in the former part of this chapter shall so far as may be applied all such charges provided that where number of persons are charged with separate offenses and such persons do not fall within the any of the categories specified in this section the magistrate of the court of sessions may if such persons by an application writing so desire and if he or it is satisfied that such persons would not be prejudicedly affected thereby and it is expedient to do prior all such offenses together yes now we will understand the section when we apply the same to the concrete fact situations we will discuss question number one please read question number one what is the scope of section 223 CRPC we have seen section 223 it has got six 6 clauses maybe EDEF now while section 218 219, 220, 221 and 222 CRPC deal with offenses section 223 deal with offenders it refers to persons all other sections which we have already discussed deal with offenses more than one offense can be tried together more than even if there are more offenses they have to be separately tried all these rules we have applied in respect of offenses now we come to section 223 which deal with which deals with offenders now A A is persons accused of the same offense committed in the course of the same transaction can be charged and tried together under section 223 clause A this clause corresponds to section 220 clause 1 CRPC in the case of offenses 220 clause 1 we said more than one offense can be tried in the course of the same transaction here more than one person more than one offender can be tried so almost they correspond they are mutually now clause B persons accused of an offense and persons who either abetted the offense or attempted to commit the offense can also be charged and tried together under section 223 clause B so persons who committed accused of an offense and who are either abetted the offense or who attempted to commit the offense all those persons can be offenders can be charged and tried together with regard to the attempt this clause corresponds to section 222 clause 3 in the case of offenses which we are going to discuss in the next session 222 with regard to offenses we have got the corresponding portion under section 222 clause 3 now C clause C is persons accused of two or more offenses of the same kind by them jointly within 12 months can be charged and tried together under section 223 C this clause corresponds to section 291 regarding offenses under section 291 we said that offenses of the same kind can be tried together now here we see that offenders committing offenses of the same kind can be tried together same what is the offenses same kind they need not be the same offense they can be offenses for which same punishment is displayed then person clause D persons accused of different offenses committed in the course of the same transaction can be charged and tried together under section 223 clause B this clause also corresponds to section 220 clauses 1 and 3 regarding offenses we have seen 220 clause 1 and 220 clause 3 those clauses correspond to this 223 clause B regarding offenders now E persons accused of offenses including theft, extortion, cheating or criminal misappropriation and accused of receiving retaining or assisting in the disposal of or concealment of property the possession of which is alleged to have been transferred by any such offense committed by the first named person or person or or attempting to commit the said offense of receiving, retaining, assisting in the disposal of or concealment of this so said property can be charged and tried together under section 223 E this clause partly corresponds to the proviso to section 292 in the case of offenses where more than the attempt, abetment, etc. also the offense of attempt, abetment, etc. also can be tried along with the main offenses here the offender, main offender as well as the abetter, the person who attempted they also can be tried in the same trial F persons accused of offenses under section 411 that is dishonestly receiving stolen property then 414 IPC assisting in the concealment of stolen property or either of those sections in respect of stolen property the possession of which has been transferred by one offense can be charged and tried together under section 223 clause F this clause deals with stolen property he may be either the thief himself or he may be the receiver of stolen property or the person who assisted in concealing the stolen property all those persons are covered then G persons accused of any offense under chapter 12 of CR of IPC that is offenses relating to coin and government stamps relating to counterfeit of coin, abetment or attempt to commit any such offenses can be tried together under clause section 223 clause G provided that supposing there are numerous accused persons and all these offenses are from part of the same transaction as in the case of section 281 the accused persons also can make a request in writing that they can be jointly tried and in that case as in the case of the proviso to section 281 the court can jointly try them even though joint trial is specifically not contemplated by section 223 the RBB when there are more offenses and more accused persons because it may cause confusion it can cause rejoinder of parties, rejoinder of charges because 281 if it is violated we saw that it is about to rejoinder of charges but then even in such complicated situations if the accused make a request in writing court can try them jointly so that thereafter they cannot turn around and say that no we have suffered, rejoinder of charges no you will not be heard to say because you put in a return application then we pass on to question number 2 Sir is it not permissible for the accused to demand as of right his trial with co-accused under section 223 CRPC No an accused person cannot claim to be tried along with the co-accused under section 223 CRPC he say provision enabling joint trial of more than one offender joint trial of more than one offender but that does not mean that the accused can claim as of right to be tried along with a co-accused inside this beautiful situation was decided in A. R. Antule versus R. S. Naik seven judges constitution bench 88 Supreme Court 1531 1531 the judges were Sabyasaji Mukherjee the leading judgment Ranganath Mishra G. L. Ulza, B. C. Roy S. Nadirajan, M. N. Vengadalchalaya and S. Ranganathan now in this case the majority held that the sumo to transfer of transfer by a constitution bench of five judges in A 1984 to ACC 183 that is on 10 to 1984 of the corruption case of Mr. Abdul Rahman Antule the former chief minister of Maharashtra from the file of the special judge Greater Bombay exercising jurisdiction under the PC Act 1947 and criminal law amendment that 1952 to the Bombay High Court the case was transferred, sumo to transferred by the constitution bench five judges from the special judge under the PC Act to the Bombay High Court with a direction to the chief justice to assign the case to a sitting judge of the high court for trial that sumo to transfer was held to be illegal by this seven judges very rare situation Supreme Court itself sitting in virtually in review against its own judgment five judges judgment but in fact there was no application by either the party for transfer of the case from the special court to the Bombay High Court in fact that was sumo to done by the constitution bench seven judges majority held that no it was not legal when the statute has described particular forum for the trial of the case just because one of the accused is a big shot just because one of the accused is a former chief minister you cannot have the privilege of being tried by a judge of the high court very strange situation extraordinary situation question number three before we take the question what would be the reason for transfer for the common persons to understand he stated by the five judges bench after all he was a former chief minister of Maharashtra and court is yet to find him guilty so he is armed with the insulated by the presumption of innocence he is presumed to be innocent until upon guilty so he had occupied various positions in various post therefore such a person should receive a better forum reason given by the court in fact he did not request and the prosecution also did not request for transfer of the case case was pending before the greater Bombay special judge the court sumo to on its own accord said that he is a person who had occupied great positions including the chief ministership of Maharashtra so such a person the special judge who is only a district judge because law is not a respect of persons this is what the English judge said to Mahatma Gandhi did not law is not a respect of persons before the law every person is equal therefore the seven judges conclusion bench held that this transfer was illegal and void what happened was actually 57 accused persons 57 witnesses had been examined by the judges of the Bombay equal 57 witnesses were examined which is at that stage that the seven judges conclusion bench held that this transfer to be illegal and the case was sent back to the special judge for 15 over trial question number three sir is note clubbing and consolidation of two cases one on a police chilan and other on a complaint permissible if the prosecution versions in the two cases are materially different contradictory and mutually exclusive see there is one case which is investigated by the police there is another case where the accusers where the complainer defect the complainer has given a private complaint both cases are under investigation are going on then the question is whether they can be consolidated and jointly tried to 23 is a provision for consul for joint trial of more than one offender now the question is when the facts constituting the offense the facts constituting the offense in the in the two cases are materially different as stated in the problem then there cannot be a joint trial or consolidation they have to be tried separately but by the same court by the same court they have to be tried separately they cannot be amalgamated they cannot be jointly tried they can be tried only one after the other in quick succession and the evidence in one case cannot be read into the other case and the they have to be tried and disposed of simultaneously one after the other this is what the Supreme Court held in Harinder Singh versus Edo Punjab a year 1985 Supreme Court page 404 just is APCEN picking for the bench a year 1985 Supreme Court 404 then question number 4 question number 4 can persons accused of several offenses and persons accused of abetment of those offenses we tried together at one trial we have seen the section we saw in the section itself that they can be the offenders of the main offense and abetters and persons who attempted to commit the offense they can also all be tried in one single joint trial we may refer to the majority view in paragraph 1920 and 23 paragraphs 1920 and 23 for the majority view by S.J. Imam in case Atul Singh versus Edo Punjab 5 judges decision a year 1960 Supreme Court 2016 a year 1960 Supreme Court 2016 5 judges yes question number 5 shake are not the conviction and sentence recorded by the court in a joint trial amounting to misjointer of charges invalid no conviction and separate sentence recorded by court in a joint trial will not amount to misjointer of charges in the absence of any objection to the joint trial and proof showing that failure of judges at occasion the conviction and sentence in a joint trial cannot be invalid this is what the Supreme Court held in a year 1989 Supreme Court 937 a year 1989 Supreme Court 937 Premchand versus Tate of Haryana judgment by justice Deknavel Pandian justice Deknavel Pandian yes with that we have come to the course of section 223 CRP so we have now we have discussed all the four exceptions to the rule of separate trial under section 218 one CRPZ the exceptions are section 219, 220, 221 and 223 what remains to be discussed is section 222 which is really not an exception to the rule under section 218 one CRPC this is by Mr. Reddy under what circumstances section 220 sub clause B can be invoked in the absence of the accused being present in the place of incident I didn't get the question he says under what circumstances section 120 B can be invoked in the absence of the accused being present on the place of incident CRPC the CRP need not be present in fact all these CRP are done in extreme secrecy so he need not be present so if it is to be shown that he was among the persons who hatched the conspiracy or who who indulged in the conspiracy he can be roped in with the 8th of section 128, 120 B and we have already seen that even if the offenses for which they hatched the conspiracy have not been proved if conspiracy element has been proved they can be convicted for conspiracy which is an independent offense under section 120 B IPC in a final order can GMIC in application under section 156, 3 for offense under section 466, 467 and 420 while dismissing the complaint can mention that even forgery of original complaint does not affect the complainant in any way he can now bring preliminary evidence I think he means that the magistrate while rejecting the application said application means complaint complaint under section 156, 3 153 it is forwarding to the police 153 the complaint is forwarded to the police for investigation he rejected the 156, 3 application by saying that even though there is forgery in the original complaint you are not affected by it that should not be the consideration of the learned magistrate but he has taken that into consideration it would be wrong on his part if he is going to take cognizance of the offense he may say that I am not going to forward it to the police I am taking cognizance of the offense on the complaint then what could be the prejudice of what could be the heartburn for the complainant that option is also there for the magistrate magistrate has got the option either to take cognizance or to forward the complaint to the police under 153 or he can ultimately reject the complaint dismiss the complaint after taking cognizance dismiss the complaint under section 203 CRPC can only be at the post cognizance stage not before cognizance before cognizance we discussed that it can only be rejected my view got virtually affirmed by the Supreme Court in another case 2015 Supreme Court that was my view in 2009-2008 I had taken the view that if the complaint on the face of it does not reveal the offense then the magistrate need not undergo the ordeal of taking cognizance of examining the complainant down both and the witnesses then proceeding to 203 under which at that stage alone he can dismiss the complaint but if the complaint on the face of it does not make out any offense he does have the power to reject the complaint you can't call it dismissal dismissal is under section 203 after cognizance but even before cognizance at the threshold complaint does not make out any offense does not allege the ingredients of the offense he can reject the complaint which view taken by me 2008-2009 got the approval of the Supreme Court in another case in 2015 Supreme Court also took the same view there can be a rejection those CRPC silent about rejection this is by Arun Pratap if same offense is committed during 2 years then separate charge for 1 year and separate charge for 2nd year has to be framed or not yes and then he says this is by Aditya Reddy a joint trial of several persons permissible joint trial of? several persons permissible yes 223 that is the provision enabling provision for trial of more than one offender plurality of offender is 223 plurality of offender is 282 and then it says by Kamal Madhukar does an order under section 91 in the Magistrate Court is intermediate order or interlockary order section 91 he says it is an intermediate order or interlockary order you mean for issuing summons for production of documents it can only be an interlockary order because it does not affect the progress of the case sit down does not affect the progress of the case if it does not affect the progress of the case it can only be an interlockary order which is not reversible but of course 482 can be invoked before the high court power under 482 is always there the order is not reversible due to the fact that it is an interlockary order the power of the high court under section 482 is always there the court can examine that the 482 itself starts by saying that nothing in this court will curtail the power of the high court inherent power of the high court other provisions in the court will not act as a fetter on the power of the inherent power of the court under section 482 CRP even if the order is not reversible due to the fact that it is an interlockary order 482 power can be invoked Edison Ganraj though I believe that he had to reframe the question properly but still I will read what he has posted A is accused of theft on one occasion and causing previous hurt on another occasion two offenses were included in one charge and were tried together in a single trial by the magistrate A was convicted is that the validity is the conviction valid if he did not raise any objection he should have taken exception to the joint trial because they are not part of the same transaction they are part of two different transactions and distinct often one rule, rule of separate trial under section 281 should prevail and the joint trial is permissible there only if he makes a written request therefore it may be possible for him to say that the trial of both the offenses is illegal Jitya Reddy has posted many questions but I will read one question because some more of an informative rather than question without and before deciding the crucial question no consolidation of charge should have been directed under section 2 he is trying to answer what the question was there he is right we are happy that people are participating the more the activity in the YouTube we come to know what type of sessions people want and we would rather appreciate if somebody posts on the link what type of sessions and questions they would like to ask I am trying to answer within my limited knowledge of criminal law which is an ocean but your knowledge is as vast as 482 or 226 thank you, thank you sir we will take the sex session forward next time on 222 what remains is 222 thank you everyone stay safe, stay stay blessed and on 10th we will be having slightly different we are launching a book there is a different book, different aspects of military law being discussed of the march of military law pan world, so do stay connected with us on Friday 5.30pm everyone stay safe, stay blessed thank you