Holding

A joint trial under Section 223 CrPC is impermissible where the cases involve contradictory versions and the accused did not raise the objection at the earliest stage; the cases must be tried separately by the same judge.

Summary

The appellant Balbir was convicted of murder under Section 302 IPC based on a private complaint, while a separate police‑filed case led to the acquittal of another accused, Guria, for the same killing. Both cases were tried before the same Sessions Judge but were not consolidated, and the appellant did not raise any objection to a joint trial at the commencement of the trial. The Supreme Court held that a contention for a joint trial under Section 223 of the CrPC must be made at the earliest stage and cannot be raised later, and that where the two cases present diametrically opposite versions with no common factual nexus, they must be tried separately by the same judge. The Court further emphasized that conviction on a private complaint requires the court to be absolutely certain that the police version is false and fabricated. Accordingly, the appeal was allowed, the conviction set aside and the appellant acquitted.

Issues considered

The propriety of ordering a joint trial under Section 223 CrPC when one case arises from a police report and the other from a private complaint with contradictory versions.
Whether an accused may raise a contention for separate trial at a later stage after the trial has already commenced.
Whether the court must be absolutely certain of the falsity of the police version before convicting on a private complaint.
Whether the two cases should be consolidated or tried separately by the same Sessions Judge.

Legislation cited

Code of Criminal Procedure, 1973s. 220(1), s. 223, s. 311, s. 319
Indian Penal Code, 1860s. 302

Subjects

joint trialconsolidationSection 223 CrPCprivate complaintpolice reportseparate trialprocedural fairnessmurder

Judgment

A BALBIR •
v.
STATE OF HARYANA AND ANR.

OCTOBER 26, 1999
)

B [K.T. THOMAS, A.P. MISHRA AND
SYED SHAH MOHAMMED QUADRI, JJ.]

Criminal Procedure Code, 1973, Section 223 :

C Joint trial-Two cases-One instituted on private complaint and the
other on police report-Accused did not raise a contention before tria•I court
that joint trial of both the cases be ordered-Effect-Held: Such a contention
cannot be raised at any later stage-Criminal Trial.

Joint trial-Decision on-Duty of court-Procedure-Two cases-One
D instituted on private complaint and the other on police report-Two
diametrically divergent versions without anything in common except that the
murdered person was the same-Held: The two trials should be separately
conducted one after the other by the same court before the same Judge-
Judge should take care to confine his judgment in one case only to the
E evidence adduced in that particular case-If more than one public prosecutor
are available in the same station, the prosecutor who prosecutes ofl'e case
should avoid prosecuting the other case-Penal Code, 1860, S. 302-
Criminal Trial.

Joint trial-Scope of- "Committed in the course of the same
F transaction"-Meaning of-Two cases-One instituted on private complaint
and the other on police report-Clubbing and consolidation a/-
Permissibility of-Held: Impermissible-In such a situation the two cases
should be tried by the same Judge but not consolidated
Penal code, 1860:
G Section 302-Two cases-Before same court-One instituted on private
complaint and the other on police report-Allegation of criminal compiracy
to rescue the real culprits-Private complaint case approved by court but
police case rejected-Accused arraigned by police acquitted-Val.idity-
Held: Court should be absolutely certain that the police version is false,
H fabricated and accentuated by sinister motive-Court should also be
120
BALBIR v. STA TE OF HAR YANA 121
absolutely certain that the police officials and the real culprits entered into A
a criminal conspiracy to rescue the mur<ierer-Unless such a degree of
satisfaction is reached, a criminal court cannot conclude that prosecution
:-;,~.
initiated on a private complaint has succeeded in proving the guilt of the
accused beyond all reasonable doubt-In the circumstances of the case,
accused in private complaint acquitted
B
Words and Phrases:

"Committed in the course of the same transaction "-Meaning of-In
the context of S.223 (d) of the Criminal Procedure Code, 1973.

One 0 was shot dead at the bus stand and PW-4 (nephew of the deceased) c
lodged a complaint at the police station accusing the appellant and his brother
as the persons who shot at the deceased. During the investigation it was found
that the appellant was not the culprit and instead one G was discovered to
have shot at the deceased. G was accordingly charge-sheeted and the case
-f
was committed to the Court of Sessions.
D
In the meanwhile, PW-4 filed a private complaint before the Magistrate
alleging that the real culprits were the appellant and his brother and that the
police investigation was totally misdirected at the influence of the real culprits.
The Magistrate, on receipt of the complaint, committed that case also to the
court of Sessions. E
The trial against G and the appellant and his brother were conducted
as two separate Sessions cases before the same Sessions Judge. The appellant
did not raise any contention before the Sessions Court that a joint trial of
both the cases must be ordered. The Sessions Judge pronounced separate
judgments iii both the cases, acquitting G and convicting the appellant under F
Section 302 of the Penal Code, 1860. The High Court confirmed the conviction
of the accused. Hence this appeal

On behalf of the appellant-accused it was contended that the cases
against the appellant and G should have been consolidated together for a joint
trial under Section 223 of the Criminal Procedure Code, 1973, G
Allowing the appeal, the Court

HELD: 1. When the trial in the case began before the Sessions Court
the appellant did not make any contention that a joint trial of both the cases
must be ordered. Having not done so the appellant cannot raise such a H
122 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A contention on that score at any later stage. (126"8] ,
2. The two versions of the cases-one instituted on a police report and
the other instituted on a private complaint~are diametrically divergent without
anything in common except that the murdered person was the same. In such
cases the most appropriate procedure to be followed by a Sessions Judge
B should be the same as followed in the present case, i.e., the two trials should
be separately conducted one after the other by the same court before the same
Judge and judgments in both the cases should be separately pronounced on
the same day. No doubt the Sessions Judge should take care that he should
confine his judgment in one case only to the evidence adduced in that particular
C case. However, if more than one Public Prosecutor are available at the same
station it is advisable that the Public Prosecutor who prosecuted one case
should avoid prosecuting the other case. [128-H; 129-A-B)

Harjinder Singh v. State of Punjab, [1985) l SCC 422, relied on.

3.1. In both Clauses (a) and (d) of Section 223 of the Crimina1l Procedure
D Code, 1973 the primary condition is that persons should have been accused
either of the same offence or of different offences "committed in the course
of the same transaction". The expression advisedly used is "in the course of
the same transaction". That expression is not akin to saying: "in respect of
the same subject matter". It is pertinent to point out that the sam1e expression
E is employed in Section 220(1) of the Code also. The meaning of the expression
"in the course of the same transaction" used in Section 223 is not materially
different from that expression used in Section 220(1). (126-H; 127-A-B]

State ofA.P. v. Cheemalapati Ganeswara Rao, [1964] 3 SCC 297, relied
on.
F 3.2 For several offences to be part of the same transaction, the test which
has to be applied is whether they 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. Thus, where there is commonality of purpose or
design, where there is continuity of action, then all those persons involved
G can be accused of the same or different offences "committed in the course of
the same transaction". (127-E]

3.3. But if in one case the accused is alleged to have ki111ed a person
without any junction with the accused in the other case, then it cannot be
treated as the same offence or even different offence "committed in the course
H of the same transaction". If such two diametrically opposite versions were
BAlBIR v. STATE OF HARYANA [THOMAS, J.) 123
put to joint trial the confusion which it can cause in the trial would be no A
scope for a fair trial. It would then be a mess and then to bring the two cases
under the umbrella of Section 223 of the Code has only to be foiled as
untenable. (127-G]

4. Thus, to support the police version names of independent witnesses
were cited in the challan but to support the private complainant's version only B
the evidence of those who are admittedly ill disposed to the appellant's family
is available. If the police version were the true story then it would be
disastrous to convict the appellant for the murder of the deceased. The court
should have been absolutely certain that the police version was false, fabricated
and accentuated by sinister motive in order to dumb a thoroughly innocent C
teenager to the very serious criminal charge of murder. At any rate, the court
should have been absolutely certain that the police officials and the real
culprits have entered into a criminal conspiracy to rescue the real murderer.
Unless the court reaches such a degree of satisfaction a criminal court cannot
afford to conclude that the prosecution instituted on a private complaint as
succeeded in proving beyond all reasonable doubts that it was the appellant D
who had committed the murder of the deceased. (130-G-H; 131-A]

CRIMINAL APPEL LA TE JURISDICTION: Criminal Appeal No.
333 of 1987.

From the Judgment and Order dated 6.10.86 of the Punjab and Haryana E
High Court in Crl. A. No. 475-DB of 1985.

D.D. Thakur, Ranjit Kumar, Ms. Anu Mohla, C.N. Sree Kumar and
P. Sureshan, (Neeraj Jain) for Ms. Arnita Gupta for the appearing parties.

NEMO for the respondent No. I. F
The Judgment of the Court was delivered by

THOMAS, J. Seldom would the courts have come across such a weird
scenario as the present case has presented. In respect of one victim in one
murder episode two diametrically divergent stories were put to test in two G
different trials before the same Sessions Court and both were prosecuted by
the same Public Prosecutor. pie Sessions Court rejected the story, which the
police had propounded, after a full-fledged investigation, as untJ11e but the
same trial court approved the other divergent version as the true story.
Resultantly, the man whom the investigating agency found to be the real
murderer was shown his escape route while the man whom the other side H
124 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A· dubbed as the culprit stands convicted and sentenced to imprisonment for
life.

The convicted person did not succeed in getting himself extricated from
the murder charge even in appeal as the High Court confirmed his conviction
and sentence. This court has once dismissed the appeal filed by the appellant
B by special leave (on 17.2.1997) but on a legal point, pertaining to the procedure
to be followed in such two cases, this court reopened it and annulled the said
judgment of this court and put the appeal back for disposal afresh. The: said
legal point has been formulated by this court as follows:

"The, question of law which has arisen for determination rests in
c discovering the course to be steered by a Court of Session when two
commitments are made before it pertaining to the same offence and
pertaining to the same victim, one giving one version against one
accused, and the other giving another ?gainst a different accused. In
what manner should the Court of1Session proceed when taking
D cognisance of the offence is the subject matter of debate in this
appeal. Added thereto is the quest for fairness of trial and avoidance
of prejudice to the accused."

For dealing with the aforesaid legal point a brief sketch of the facts has
to be stated. The backdrop of the murder (the subject matter of this case) is
E the following: The name of the person murdered in this case is Om Prakash.
His father Harpat and appellant's father Bagravat were primogenitors of the
two different families which engaged in annihilating each other. In 1972 the
said Harpat was murdered for which Bagravat (father of appellant) was,
indicted by the police, and in 1978 Bagravat was murdered for which Harpat's
son Manphool was challaned by the police. Normally the retaliating cycle
F should have completed one circle of its rotation, but it seems to have continued
to rotate.

On the afternoon of 11.1.1983 Om Prakash son of Harpat was shot dead
at the bus stand of Bhuna (Fathehabad). He was removed in the injured
G condition to the hospital by his nephew (PW-4 Jagdish) and his uncle (PW-
5 Laxmi Narain). The doctor (PW-I) examined him and pronounced him dead.
PW-4 Jagdish· then proceeded to the police station and lodged the complaint
accusing the present appellant Balbir and his brother Rajinder as the persons
who shot the deceased. The police registered FIR on the strength of that
complaint against the above two persons as accused. PW-7 Assistant Sub-
H Inspector of Police held the inquest on the dead body of Om Prakash on the
BALBIR v. STATE OF HARYANA [THOMAS, J.] 125
same day. A
During the investigation conducted by sub-inspector Ganga Ram a
volte-face happened when appellant was found to be not the culprit and
instead one 19 year old youngster Guria son of Kirpa Ram was discovered
to have shot at the deceased. The said Guria was arrested on 28.1.1983 and
on the strength of a statement elicited from him a country made pistol, a used B
cartridge and a live cartridge were recovered from beneath the heap of fodder
grain stalked in his house. Guria was finally charge-sheeted by the police and
eventually that case was committed to the Court of Sessions.

PW-4 Jagdish complained to the Superintendent of Police that the
investigation was not directed into the allegation against the appellant and C
his brother. As he did not get any response he filed a complaint before the
magistrate on the allegation that the real culprits of Om Prakash's murder were
the appellant and his brother Rajinder, and that the police investigation was
totally misdirected at . the influi:nce of the real culprits. The magistrate, on
receipt of the complaint, proceeded therewith and eventually committed that D
case also to the Court of Sessions.

The trial against Guria was conducted as Sessions Ca~e Nq. 7 of 1985
before the court of Additional Sessions Judge (Sri BL Qultai~. The trial
against the appellant and his brother was held before the siµne Court as the
Sessions Case No. 54 of 1985. The aforesaid Sessions JJdgi< pronounced E
separate judgments in both cases on 4.11.1985, acquitting Guria and
convicting the appellant under Section 302, IPC (appellant's brother Rajinder
was, however, acquitted). No appeal was filecl. against the acquittal of Guria,
and hence the Division Bench of the Punjab and Haryana High Court heard
the appeal filed by the appellant alone. The Bench confirmed the conviction F
and sentence passed on him and dismissed his appeal. Hence, the present
appeal by Special Leave.

The first point sought to be considered is whether the two session's
cases should have been tried separately (as is done in the present case) or
whether they should have been jointly tried. No doubt, it is too late in the G
day for the appellant to raise a contention that the procedure of the trial
should have been different from the one which was followed in this case.
Approval of that contention, at this state, whole cause the switch board to
be turned fifteen years backwards for a new trial.
I

'
It must be pointed out that when the trial in the case began before the H
126 SUPREME COURT REPORTS [1999] SUPP. 4 S.C.R.

A Sessions ·~ourt the appellant did not make any contention that a joint trial of
both cas~s must be ordered. Having not done so he cannot raise such a
contentioh on I that
·.,
score at any later stage.

Shri D.J?. Thakur, leaned senior counsel who argued for the appellants
pointed out that appellant and his brother Rajinder were in fact arrayed!
B initially along with Guria in Sessions Case No. 7of1985 pursuant to an order
passed by the trial court under Section 319 of the Code of Criminal Procedure
(for short 'the Code'). But later, the appellant and his brother were delinkecl
from that case in order to facilitate the trial in SC 54 of 1985. Appellant did
raise objections at that stage and on its basis learned senior counsel contended
C that such objections should be treated as the objection taken up at the:
earliest stage. Be that as it may, we would consider whether the procedure:
adopted by the trial court is proper, if not whether it had resulted in miscarriage
of justice.

According to Shri D.D. Thakur the case against the appellant and the
D case against Guria should have been consolidated together for a joint trial.
He made on endeavour to show that two cases in respect of the murder of
one person could be brought within the. ambit of Section 223 of the Code
(which corresponds to Section 239 of the old Code of 1898). As per that
provision, all persons falling under any one of the seven categories enumerated
E therein can be charged and tried together. Out of those seven categories
enumerated in the section we need not even advert to those categories
indicated with placitum (b), (c), (d), (e), (f) of the Section as they are not
relevant in this context. We would, therefore, extract clauses (a) and (d) in
Section 223 as under:

F "The following persons may be charged and tried together, namely:-

(a) persons accused of the same offence committed in the course of
the same transaction;

(d) persons accused of different offences committed in the course of
the same transaction."
G
In both the aforesaid clauses the primary condition is that persons should
have been accused either of the same offence or of different offences
"committed in the course of the same transaction". The expression advisedly
used is "in the course of the same transaction". That expression is not akin
H to saying "in respect of the same subject matter" It is pertinent to point out
BALBIR v. STATE OF HARYANA [THOMAS, J.] 127

that the same expression is employed in Section 220(1) of the Code alsn A
(corresponding to Section 235(1) of the old Code). The meaning of the
expression "in the course of the same transaction" used in Section 223 is not
materially different from that expression used in Section 223(1). It is so
understood by this Court in State of Andhra Pradesh v. Cheemalapati
Ganeswara Rao & Anr., (1964] 3 SCR, 297. The following observation in the B
said judgment is contextually quotable:

"The series of acts which constitute a transaction must of necessity
be connected with one another and if some of them stand out
independently, they would not form part the same transaction· but
would constitute a different transaction or transactions. Therefore, C
even if the expression "same transaction" alone had been used in
S.235 (1) it would have meant a transaction consisting either of a
single act or of a series of connected acts. The expression 'same
transaction' occurring in els. (a), (c) and (d) of S.239 as well as that
occurring in S.235(1) ought to be given the same meaning according D
to the normal rule of construction of statutes."

For several offences to be part of the same transaction, the test which
has to be applied is whether they are so related to one another in point of
purpose or of cause and effect, or as principal and subsidiary, rn as to result
in one continuous action. Thus, where there is commonality of purpose or E
design, where there is continuity of action, then all those persons involved
can be accused of the same or different offences "committed in the course
of the same transaction."

But if in one case the accused is alleged to have killed a person without
any junction with the accused in the other case, then it cannot be treated as F
the same offence or even different offences "committed in the course of the
same transaction". If such two diametrically opposite versions are put to joint
trial the confusion which it can cause in the trial would be incalculable. It
would then be a mess and then there would be no scope for a fair trial. Hence
the attempt to bring the two cases under the umbrella of Section 223 of the G
Code has only to be foiled as untenable.

In Harjinder Singh v. State of Punjab and Ors., [1985] l SCC, 422 a two
Judge Bench of this Court has held that clubbing and consolidation of two
cases, one instituted on police report and the other instituted on private
complaint (when both were triable by the Sessions Court) is impermissible. It H
.,
·,
128 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R.

A was0 directed that the two cases in such a situation should be tri~d by the
same judge but not consolidated. The following direction was given in that
case:

"The evidence should be recorded separately in both the eases, one
after the other, except to· the extent that the witnesses for the
B prosecution who are common to both the cases must be examined in
one case and their evidence be read as evidence in the other. The
Sessions Judge should after recording the evidence of the prosecution
witnesses in one case, withhold his judgment and then proceed to
record the evidence of the prosecution in the other case. Thereafter
c he will proceed to simultaneously dispose of the cases by two separate
judgmentS, taking care that the judgment in one case is not based on
the evidence recorded in the other case."

Shri D.D. Thakur, learned senior counsel made a plea for reconsideration
of the ratio laid down in the aforesaid decision. To meet the said plea we feel
D it necessary to make a brief reference to the facts of that case. There were
5 deceased who were. murdered in that case; police charge-sheeted three
accused and the case was committed to the court of sessions. One of the
injured filed a private complaint alleging that the murders of 5 persons were
committed by 9 persons, including the above 3 accused persons. Tue details
E of the occurrence presented in the private complaint were much different from
what the police charge-sheet described. The following passage in the judgment
shows the reason for disallowing the joint trial as for the aforesaid two cases:

"We have set out these allegations only for the purpose of showing
the nature of the case against the accused in the police challan case.
F The complaint presentS a different picture altogether. The prosecution
case as set out in the complaint is at complete variance with that in
the police challan. In our judgment, it is not permissible for 1the Court
under Section 223 of the Code to club and consolidate the case on
a police challan and the case on a complaint where the prosecution
versions in the police challan case and the complaint case are materially
G different, contradictory and mutually exclusive."

. We are afraid, in the present case even that much which was directed
in Harjinder Singh's case (supra) cannot be permitted, for, both versions here
are diametrically divergent without anything in common except that the
H murdered person was the same. In such cases the most appropriate procedure
BALBIR v. STATE OF HARYANA [THOMAS, J.] 129
- to be followed by a Sessions Judge should be the same as followed in the
present case, i.e., the two trials were separately conducted one after the other
A
by the same court before the same judge and judgments in both cases were
separately pronounced on the same day: No. doubt the Sessions Judge
should take care that he would confine his judgment in one case only to the
evidence adduced in that particular case. We may add, if more than one Public
Prosecutor are available at the same station it is advisable that the Public
B
Prosecutor who prosecuted one case should avoid prosecuting the other
case.

Delving into the facts of this case, the trial court and the High Court
seem to have been satisfied with the evidence of PW-4 Jagdish and PW-5
Laxmi Narain. It is unfortunate that the two courts did not consider the
c
impact of the non-examination of certain material witnesses in this case. It
must be remembered that the case was investigated by officers enjoined by
the Code to conduct such investigation and the final report was laid before
the court in accordance with the procedure prescribed under the Code itself.
If the Sessions Court is to repeal the conclusion arrived at by such D
investigating agency (~hich alone conducted the investigation as law
conferred on them such responsibility) the prosecution should have examined
the investigating officers. With the perrnission of the court the Public
Prosecutor could have put such questions to them as are needed to elicit
answers to support the allegation that the investigation had gone away and
wrong persons have been deliberately booked and arrayed at accused.
E

We make note of the fact that in the police challan three persons
(Mange Ram, Hanuman, and Kheru) were cited as eye witnesses to the
occurrence. If prosecution had deliberately avoided to examine such important
witnesses, the court should have exercised its powers under Section 311 of
the Code to know what their version is regarding the occurrence. Evidence
F
of PW-4 and PW-5 could never have been evaluated or appraised without the
aid of the evidence of those whom the investigating agency cited as the real
eye witnesses. The very approach for considering the truth of the testimony
of PW-4 Jagdish and PW5-Laxmi Narain cannot be divorced totally from the
broad reality that the statutory investigating agency had found their version G
unfounded as well as concocted, and in stead the agency found that the real

J culprit has Guria.

In this connection another significant feature cannot be gainsaid. In
June 1977 Guria's brother was murdered for which Om Prakash's brother
Manphool Singh was challaned by the police. The court finally acquitted H
130 SUPREME COURT REPORTS [1999) SUPP. 4 S.C.R.

A Manphool Singh before the occurrence in this case. If that be so the possibility
of Guria thirsting for the blood of the killers of his brother looms large.

Further again, prosecution in this case did not attempt to prove that
appellant had a firearm with him for shooting the deceased except the ipse
dixit of PW-4 and PW-5. On the contrary the police version was that a country
B made pistol, an empty cartridge and a live cartridge were disinterred from the
heap of fodder grain stalked in the house of Guria and that recovery was
facilitated by the confessional statement elicited from Guria. In this connection,
it is important to note that the ballistic expert examined the pellets collected
from the body of Om Prakash and found them to have been fired from the said
C empty cartridge by using said country made pistol.

In this case prosecution has deliberately avoided placing evidence
relating to the said ballistic tests and thus the court is deprived of the
opportunity to examine whether the deceased could possibly have suffered
the gunshot injury from a different firearm.
D
That apart, the incident happened at the bus stand. Prosecution did not
cite at least one of the shop-keepers of such a busy area to speak as to what
really happened. In this context we may point out that according to the police
version the incident was witnessed by three persons (Mange Ram, Hanuman
and Kheru). There is no explanation whatsoever for not examining any one
E ofthem.

We cannot forget that PW4- Jagdish and PW5- Laxmi Narain belong to
the family whose members had much scores to settle with appellant's family.
While it may be true that the said enmity could have provided the motive for
F the murder, it is as well capable of making false implication if PW4 and PW5
did not know at the first instance as to who would have shot Om Prakash.

Thus, to support the police version names of independent witnesses
were cited in the challan but to support the private complainant's version we
have only the evidence of those who are admittedly ill disposed to the
G appellant's family. If the police version is the true story then it would be
disastrous. to convict the appellant for the murder of Om Prakash. The court
should have been absolutely certain that the police version was false, fabricated
and accentuated by sinister motive in order to dumb a thoroughly innocent
teenager (Guria) to the very serious criminal charge of murder. At any rate,
the court should have been absolutely certain that the police officials and
c
H the real culprits have entered into a criminal conspiracy to rescue the real
BALBIR v. STATE OF HARYANA [THOMAS, J.] 131
• murderer. Unless the court reaches such a degree of satisfaction a criminal A
court cannot afford to conclude that the prosecution instituted on private
complaint has succeeded in proving beyond all reasonable doubt that it was
this accused who had committed the murder of Om Prakash.

For the aforesaid reasons we decline to confinn the conviction passed
on the appellant. We allow this appeal and set aside the judgment under B
challenge. We acquit the appellant and order that the bail-bond executed by
him will stand cancelled.

v.s.s. Appeal allowed.

7