Accused Has No Vested Right To Seek Joint Trial: Kerala High Court

The Kerala High Court recently held that an accused has no vested right to seek a joint trial under Section 220 of the Code of Criminal Procedure,1973. The Court observed that if the offences form part of the the same transaction, they can be tried together in a joint trial.

A single bench of Justice K Babu observed as follows about Section 220 (Trial for more than one offence) of the Cr.PC:

“The Section is an enabling provision. It permits the Court to try more than one offence in one trial. The Court may or may not try all the offences together in one trial. If the Court tries the offences separately, it does not commit any illegality. The accused in a case has no vested right to seek joinder of charges and trial of more offences in one trial.”

The Court was considering the plea of a petitioner, who had been arrayed as an accused in two different cases, and had approached the Court seeking a joint trial. The Court observed that it was vital to ascertain whether the series of acts in question formed part of the ‘same transaction’, to decide if a joint trial can be allowed.

“There cannot be a universal formula for the purpose of determining whether two or more acts constitute the same transaction. The commonality of purpose or design and continuity of action manifest that the same or different offences were committed in the course of the same transaction. The proximity of time, unity of place, unity or community of purpose or design and continuity of action make the series of acts alleged against the person to constitute the same transaction.”

The Court relied on the decisions of the Apex Court in Mohan Baitha v. State of Bihar [(2001) 4 SCC 350] and Anju Chaudhary v. State of U.P. [(2013) 6 SCC 384], to reiterate that the test to be applied is whether the acts are so related to one another in point of purpose or of cause and effect, or as principal and subsidiary, so as to result in one continuous action, to be held to be part of the same transaction.

The petitioner in this case was facing charges under Section 305 of IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989 before the Sessions Court, Thalassery and under Sections 450 and 376(2)(n) of IPC, Section 4 read with Section 3(a), Section 6 read with Section 5(l), Section 12 read with Sections 11(iv), 11(v) and 11(vi) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Section 67-B of the Information Technology Act, 2000 and Sections 3(1)(w)(i) & 3(2)(v) of SC/ST (POA) Act before the Additional District and Sessions Court-I, Thalassery.

The counsel for the Petitioner argued that the alleged acts form part of the same transaction and hence should be tried together. The Public Prosecutor contended that under the facts and circumstances of the case, the alleged acts are distinct and different and do not form part of the same transaction.

The Court examined the facts of the case and noted that the alleged acts of criminal trespass, rape, sexual assault and sexual harassment in one case were committed between 18.12.2020 and 19.12.2020, and between 13.02.2021 and 14.02.2021. The acts alleged in the second crime including threatening to leak the victim’s nude photos, causing mental stress leading to her suicide were committed between 08.06.2021 and 09.06.2021.

The Court held that the two series of acts do not form part of the same transaction and a joint trial cannot be allowed:

“The acts in question were not proximate in time. They were not of continuity either. It is difficult to find continuity of the actions and the community of purpose or design in the acts leading to two different sets of transactions, one of sexual exploitation of a minor girl by entering into her residence leading to the offences of house-trespass, rape, aggravated penetrative sexual assault (under Sections 450 and 376(2)(n) of IPC, Section 4 r/w Section 3(a), Section 6 r/w Section 5(l), Section 12 r/w Section 11(iv), 11(v) and 11(vi) of the POCSO Act), and another of abetment to commit suicide (under Section 305 of IPC).”

Case Title: Jithin P V State of Kerala

Citation: 2023 LiveLaw (Ker) 262

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