Dhurvasalu Naidu vs State

Maheswaran, J.—This application is one u/s 482 of the Code of Criminal Procedure invoking the inherent powers of the High Court to

direct the Additional Special Judge, Dharmapuri to try C. C. Nos. 1, 2 and 3 of 1978 together as one case and hold a joint trial of these three

cases.

The facts: The petitioner herein was a Forest Range Officer at Harur and is the first accused in the three cases, C. C. Nos. 1, 2 and 3 of 1978,

on the file of the Court of Additional Special Judge. Dharmapuri. The other accused are other Forest Officers and contractors who have taken

licence for cutting trees from various coupes in the reserve forests in Harur and Athur, The Deputy Superintendent of Police, Central Range,

Vigilance and Anti-Corruption, registered a case against the petitioner and fourteen other persons under Sections 120B, 379, 420 and 166 read

with Section 109 I.P.C. and u/s 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. The allegation against them was that accused

1 to 8 along with accused 9 to 15 and others entered into a criminal conspiracy to commit theft of valuable timber from the reserve forest area of

Harur Range by taking advantage of the permit for transporting fuel from the panchayat forest and in furtherance of the said conspiracy, one or the

other of the accused committed'' acts resulting in pecuniary loss to Government. The petitioner states that the entire investigation proceeded on the

footing that there was one conspiracy among the forest officers including the senior officers and the contractors. Sanction was obtained for

prosecution of the officers of lower rank and there was delay in obtaining sanction for prosecution of one of two senior officers. Three charge-

sheets were filed before the Additional Special Judge, Dharmapuri, who took cognizance of the cases and numbered them as C. C. Nos. l/78,

2/78 and 3/78 against different sets of accused with the petitioner common in all the cases. The petitioner states that as the alleged offences relate

to one and the same transaction they should be tried together in order to avoid multiplicity of proceedings and conflict of daclsions. The Special

Judge to whom an application was made declined to try all the cases jointly. A-I, A-II, A-18 in C. C. No. 1/78, A-3 to A-5 in C. C. No. 2/78.

A-2, and A-5 to A-7 in C. C. No. 3 of 1978 have no objection for the joint trial. But all others including the Special Prosecutor objected. The

learned Additional Special Judge held that the contractors in three cases are different, that the period of conspiracy is also different and that if a

joint trial is ordered, it would prejudice the accused, and in the end dismissed the application praying for such joint trial.

In the first instance, it is not disputed that a common F.I.R., is filed in these cases. A reading of the F.I.R. and other records shows that there is

only one conspiracy. The object of the Criminal conspiracy is to commit theft of valuable timber from the reserve forest of Harur and Athur Ranges

and to transport them by dishonestly using the permits obtained for purposes other then cutting and removing of trees, and to share the profits

arising out of that act.

There appears to be only one object of the conspiracy, namely, to sell the trees so illegally cut and appropriate the sale proceeds. Several

instances of theft of timber may have taken place in pursuance of that conspiracy and that fact itself will not change the conspiracy, nor could it split

a single conspiracy into several conspiracies. Further, it is pointed out by the learned Counsel appearing for the petitioner that the three

conspiracies alleged are not distinct offences, but only one offence. Section 218 of the Code of Criminal Procedure reads:

Separate Charges for Distinct Offences.-(1) For every distinct offence of which any person is accused there shall be a separate charge, and

every such charge shall be tried separately.

Provided that where the accused person, by an application in writing, so desires and the Magistrate is of opinion that such person is not likely to be

prejudiced thereby, the Magistrate may try together all or any number of the charges framed against such person.

(2) Nothing in Sub-section (1) shall affect the operation of the provisions of Sections. 219, 220, 221 and 223.

The question as to what is ""distinct offence"" came up for discussion in Banwari Lal Jhunjhunwala v. Union of India (1963)Supp.(2)SCR 338 :

1963 2 Cri LJ 529. their lordships of the Supreme Court observed:

Two offences would be distinct if they be not in any way inter-related. If there be some inter-relation, there would be no distinctness and it would

depend on the circumstances of the case in which the offences were committed whether there be separate charges for those offences or not,

The relevant portion of the charge-sheet relating to the main charge of conspiracy against the accused in each of the three cases runs thus:

C. C. 1 of 1978.

Firstly, that you A-l to A-29, A-l to A-20 being public servants who were employed in the Forest Department at Dharmapuri and Salem Districts,

A-28 being the former Karnam of Chitheri village and A-29 being the former President of the Chitheri Panchayat, between June 1971 and July

1972 along with A-21 to A-27 and also along with Karamani, (approver) forest-guard who has since been tendered pardon and Thiru Ellappa

Naidu, Forest-Guard (since deceased), at Harur, Attur and other places in Dharmapuri and Salem Districts, agreed to commit illegal acts, to wit,

by you A-1 to A-20 and A-28 along with the said Karamani (approver) and the deceased Ellapa Naidu by corrupt or illegal means or otherwise

abusing your official positions as public servants, obtained pecuniary advantage for yourselves and for you A-22 to A-27 contractors, obtained

gratification other then legal remuneration as a motive or reward for doing or abstaining from doing official acts, disobey law, commit theft of trees

from the Reserve Forests of Harur and Attur Ranges in Dharmapuri and Salem Divisions respectively and belonging to the Government of Tamil

Nadu, fraudulently or dishonestly using the permits obtained for purpose other then cutting and removing trees from the concerned Reserve Forests

for transporting the trees so illegally cut and remove them to Salem and other places, dispose them of in open market as firewood, realise the

proceeds thereof so illegally obtained resulting in a loss of about Rs. 4,18,000/- (approximately) and abet each other in the commission of such

illegal acts and that in furtherance of the said agreement and conspiracy one or other of you along with approver Thiru Karamani and the deceased

Ellappan committed the abovesaid illegal acts, viz, by you public servants A-l to A-20 and A-28 Thiru Karamani (approver) and the deceased

Ellappan, obtained gratification other then legal remuneration as motive or reward for doing or abstaining from doing official acts by allowing the

contractors A-21 to A-27 amongst you to dishonestly cut and remove the trees so cut from the Reserve Forests of Harur and Attur Ranges, by

abusing the permits issued by the appropriate authority to Salem and other placets, dispose them of as firewood, realise the proceeds thereof,

resulting in a loss to the Government to a tune of Rs. 4,18,000 (approximately) and abetted each other in the commission of such illegal acts as

aforesaid and that you thereby committed an offence punishable u/s 120-B, I.P.C. read with Sections 379, 161, 166, 165, I.P.C. (Central Act

XLV of 1860), Section 21(e) of Tamil Nadu Forest Act, 1882, R. 11 of the Timber Transit Rules and Section 5(2) read with Section 5(1)(d) of

the Prevention of Corruption Act (Central Act II of 1947) and Section 109 I.P.C. and within my cognizance.

C. C. No. 2 of 1978:

Firstly, that you A-l to A-12, A-l to A-9 being public servants who were employed in the Forest Department at Harur Range in Dharmapuri

District, between April 1972 and July 1972 (both months inclusive) at Harur and other places in Dharmapuri district agreed to commit illegal acts

to wit by you A-l to A-9 by corrupt or illegal means or otherwise abusing your official positions as public servants, obtained pecuniary advantage

for yourselves and for you A-10 to A-12 the contractors obtained gratification other then legal remuneration as a motive or reward for doing or

abstaining from doing official acts, disobey law, commit theft of trees from the Reserve Forests of Harur Range in Dharmapuri Division and

belonging to the Government of Tamil Nadu, fraudulently or dishonestly using the permits obtained for purposes other then cutting and removing

trees from the concerned reserve forests, transporting the trees so illegally cut and removing the same to Salem and other places, dispose them of

in open market as firewood, realise the proceeds thereof so illegally obtained resulting in a loss of Rs. 35,750/- (approximately) to the Government

of Tamil Nadu and abet each other in the commission of such illegal cut and that in furtherance of the said agreement and conspiracy one or other

of you committed the abovesaid illegal acts, viz., (by) you public servants A-l to A-9 obtained gratification other then legal remuneration as motive

or reward from the contractors A-10 to A-12 amongst you for doing or abstaining from doing official acts by allowing the contractors A-10 to A-

12 to dishonestly cut trees in Dombakkal Reserve Forest of Harur Range and remove the trees so cut from the Reserve Forest of Dombak-Jcal in

Harur Range, by abusing the permits issued by the appropriate authorities to Salem and other places and dispose them of as firewood and realise

the proceeds thereof resulting in a loss of Rs, 35,750 (approximately) and abetted each other in the commission of such illegal acts as aforesaid

and that thereby committed an offence punishable u/s 120-B I.P.C. read with Sections 379, 1161, 166, 165-A of the I.P.C. (Central Act XLV of

1860), Section 21(e) of the Tamil Nadu Forest Act, 1882, Rule 11 of the Timber Transit Rules and Section 5(2) read with Section 5(1)(d) of the

Prevention of Corruption Act (Central Act II of 1947) and Section 109 I.P.C. and within my cognizance.

C. C. No. 3 of 1978:

Firstly, that you A-l to A-17, Al to A9 being public servants who were employed in the Forest Department in Dharmapuri district between June

1971 and July 1972, along with Thiru K. Sanjeevi who has since been tendered pardon, at Harur and other places in Dharmapuri District, agreed

to commit illegal acts, to wit, by you A-l to A-9 along with the said K. Sanjeevi (approver) by corrupt or illegal means or otherwise abusing your

official positions as public servants, obtain pecuniary advantage for yourselves and for you A10 to A17, contractors, obtain gratification other then

legal remuneration as a motive or reward for doing or abstaining from doing official acts, disobey law, commit theft of trees from the Reserve

Forests of Harur Range in Dharmapuri Division and belonging to the Government of Tamil Nadu, fraudulently or dishonestly using the permits

obtained for purposes other then cutting and removing trees from the concerned Reserve Forests, for transporting the trees so illegally cut and

remove them to Salem and other places, dispose them of in open market as firewood, realize the proceeds thereof so illegally obtained, resulting in

a loss of about Rs. 4,17,300/- and abet each other in the commission of such illegal act and that in furtherance of the said agreement and

conspiracy one or other of you along with the approver Thiru K. Sanjeevi committed the abovesaid illegal acts viz., by you public servants Al to

A9 along with the approver Thiru Karamani obtained gratification other then legal remuneration as motive or reward for doing or abstaining from

doing official acts by allowing the contractors A1 to A9 (?) to dishonestly cut and remove the trees so cut from the Reserve Forests in Harur

Range and other places in Dharmapuri District, by abusing the permits issued by the appropriate authority to Salem and other places, disposed

them of as firewood, realised the proceeds thereof, resulting in a loss to the Government to a tune of Rs. 4,17,300/- (approximately) and abetted

each other in the commission of such illegal act as aforesaid and that you thereby committed an offence punishable u/s 120-B Indian Penal Code

read with Sections 379, 161, 166, 165-A, I.P.C. (Central Act XLV of 1860), Section 21(e) of Tamil Nadu Forest Act, 1882, R. 11 of the

Timber Transit Rules and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act (Central Act II of 1947) and Section 109

I.P.C. and within my cognizance.

A reading of the above extracts from the charge-sheets in the three cases shows that there was only one object of the conspiracy, namely, to cut

the trees clandestinely and to dishonestly use the permits obtained for purposes other then cutting and removing the trees from the reserve forests

and dispose them of in open market and to realise the proceeds thereof. The instances of cutting of trees illegally in the reserve forests of Attur and

Harur, but at various times, were in pursuance of that single conspiracy and therefore the fact that in course of some months, others joined in the

conspiracy did not change the conspiracy, nor could it split a single conspiracy into three conspiracies. Therefore, it cannot be said that there is no

inter-relation between the various acts of the accused and if there be some interrelation, there can be no distinctness.

The fact that some of the accused in the three cases are different will not change the nature and character of the conspiracy. It is also pointed out

by the learned Counsel for the petitioner that there is no question of misjoinder of charges as all the persons who are parties to the conspiracy and

who are also concerned in the specific offences thus committed can be tried lawfully in the same trial See Kadiri Kunhahammad Vs. The State of

Madras, . It should also be noted here that there are about 20 forest officials, 12 commercial tax officials and 5 police officials who are common

witnesses in C. C. Nos. 1 of 1978 and 3 of 1978 and that there are also 3 forest officials, 3 commercial tax officials and 8 police officials who are

common witnesses in C. C. Nos. 1 of 1978 and 2 of 1978. In C. C. Nos. 2 of 1978 and 3 of 1978, there are two forest officials, 6 commercial

tax officials and 5 police officials who are common witnesses in those cases. My attention was also invited to the fact that if there is one single

cross-examination in all the three cases (if tried together), there cannot be any scope for improving the case consequent on the evidence elicited in

cross-examination in one case and that would be a great advantage to the accused.

All these considered, I am of the view that a joint trial of all the cases will not prejudice the accused in any way, but would be to their advantage.

The petition is allowed. The order of the Additional Special Judge dismissing the petition for joint trial is set aside. The Additional Special Judge is

directed to try all the cases together and dispose them of expeditiously.