Mohini Kapoor, J.@mdashBoth parties have agreed that the petition may be disposed finally.
2. The Learned Additional Chief Judicial Magistrate No. 4 Jaipur City has by his order dated 2-8-1985 rejected the application of the accused petitioner for consolidating the five cases pending against him. Against this order the present petition has been moved.
3. The petitioner who is a conductor has been charged for the offences under Sections 420, 468, 471 IPC committed by him from 4-2-1975 to 29-10-75. However 15 items consolidating these offences have been broken up in five so that each case relate to three items. Being a conductor on a bus, he is said to have made alterations in the counterfoiles of the bus ticket so as to convert them into ticket so as to convert them into tickets for a lesser distance, at a lesser fare, than what was in the original and has there for cheated the employer. According to the accused petitioner it would be in his interest if the five case, are consolidated and tried together by recording one set of evidence in the case, but according to the learned Magistrate. Sections 218 Cr.PC comes in the way which provides for joining any number of offences, not exceeding three.
4. Section 218 Cr.PC is the main provision in his respect which provide for separate charge and separate trial for each distinct offence. How ever this is subject to exceptions provided in Section 21(2), Section 219, 220, 221 and 224 Cr.PC, and it may be added that the provise to Section 218(1) can also be taken to an exception to the main proviso.
5. u/s 212(2) Cr.PC where the charge relates to misappropriation of money, it shall be sufficient to specify the gross sum and the dates between which the offence is alleged to have been committed and the charge so, framed shall be deemed to be the charge with in the meaning of Section 219 Cr.PC thus in such cases the restriction on not joining more than 3 offences provided in Section 219 Cr.PC will not be attracked if the offence is to be treated as one offence. In the present case all the items of mis appropriation fall within a period of one year, and as such can be tried together.
6. Section 218 Cr.PC which is based on Section 223 of the old Code is an improvement upon the previous law, the proviso to this Sub-section is now. The reason for introducing the same are that where the accused himself wants a joint trial the court may allow the same not with standing the strict rules in other provisions. The only point counsidered relevant in this respect is that the accused should apply in writing and the Magistrate must be satisfied that the accused will not be prejudiced by a joint trial of all or some of the charge framed against him.
7. In 1977 Cri.LJ 105 joint trial of offences committed during a period of 1-1/2 month was not held to be misjoined of charges. In RLW 1970 375, accused was charged with more than three defalcations in respect of amount received during a year. It was held that the joint trial was not vitiated. It may be pointed that in a number of decisions on Sections 233, 234 of the old Code joint trial of offences committed during the course of one year, have been approved even through they were more than three in number. The guiding principle will which ordinarly regulate the departure from separate trial of distinct offences is to save the accused from the prejudice which an embarrasment of the kind is likely to cause to the defence (See: R.P Reddy v. Chand Mohd. ILR 22 616.
8. The Exceptions to Section 218 Cr.PC are to be interpreted in such a manner that any prejudice or embarranment which may be caused to the accused is avoided. Then under proviso to Section 218(1) the accused has himself applied in writing for joint trial then the prayer is to be accepted, unless the Magistrate is of the opinion that the accused person is likely to be prejudiced. This proviso clarifies that if both the conditions are satisfied then the Magistrate may by together, all or any number of the charges framed against him. Thus there is no limit placed on the number of charges and the only conditions to be fulfilled are:
(1) That the accused has applied in writing for a joint trial, and
(2) That the Magistrate is of opinion that it will not cause prejudice to the accused.
9. In the prevent case, clause No. 1 has been fulfilled. The Magistrate has not said any thing about clause No. 2 but has limited the joinder of more than three charges, his restriction is unwarranted.
10. In my opinion this is a case where the separate trial of the accused in respect of three items in each case would cause prejudice and embarrassment to the accused and a joint trial will be for convenience. No prejudice will be caused to him because of a joint trial.
11. In may also be mentioned here that Section 71, IPC can also be said to be relevant in this connection. It reads: "Where anything which is an offence is made up of parts, any of which parts is itself an offence the offender shall not be punished with punishment of more than one of the such of his offences, unless it be so expressly provided". In view of this provision it may be said that, the accused, if found guilty of the charges for which he is being tried, would be liable for one punisnment only even though each part is itself an offence, and therefore separate trials for offences which are to be trated as one offence is not desirable.
12. In view of my above opinion the petition is accepted and the order passed by the learned Magistrate is quashed. He is directed to hold a joint trial of all the charges in the five cases against the accused which are said to be branches of the same charge sheet.
