ANU/KE/0082/1963 Equivalent Citation: AIR1963Ker346, 1963CriLJ627, 1963(7)KLJ257 IN THE HIGH COURT OF KERALA Criminal Revn. Petn. No.

218 of 1962 Decided On: 21.02.1963 Appellants: Variath Rappai and Ors. Vs. Respondent: State of Kerala Hon'ble Judges/Coram: Anna Chandy and P. Govinda Menon, JJ. Counsels: For Appellant/Petitioner/Plaintiff: M.M. Abdulkhader, Adv. For Respondents/Defendant: State Prosecutor Subject: Criminal Catch Words Mentioned IN Acts/Rules/Orders: Code of Criminal Procedure, 1898 - Section 494 Cases Referred: In re: Billa Masthan, AIR 1955 Andh 33; In re: Velayudha Mudali, AIR 1949 Mad 508; The State v. Sohan Lal, AIR 1960 Raj 44; Akhil Bandhn Ray v. Emperor, AIR 1938 Cal 258 Citing Reference: Discussed 4

Case Note:

Criminal splitting of case - Section 494 of Criminal Procedure Code, 1898 petition filed challenging Order by which petitioner's case was split into three separate cases petitioner convicted for collecting lime shells and removing same in three different boats without license case of petitioner disclosed one transaction only of removing lime shells without license no matter whether shells were carried away in one boat or three different boats Order of splitting charges and registering fresh cases accordingly liable to be set aside petition allowed.

JUDGMENT Govinda Menon, J. 1. This is a petition filed by the accused in Calendar case 74 of 1962 on the file of the Additional First Class Magistrate of Shertallai against the order of the learned First Class Magistrate splitting the charges and registering three separate cases. The charge against the accused was that on 7-3-1962 they jointly collected lime shells and removed the same in three boats without a licence in contravention of Section 3 of the Kerala Lime Shells (Control) Act XVIII of 1958 an offence punishable under Section 10 of the Act. 2. The Assistant Public Prosecutor in charge of the case filed a petition before the Magistrate that as the case involved three different transactions for which three separate trials have to be conducted, the Court might split up the charge and proceed with the trial of the accused in three separate cases. The learned Magistrate allowed the petition and split up the case and directed that the accused be proceeded against in three separate cases C. C. Nos. 224, 225 and 226. The accused challenges the correctness of this order in this revision petition. In view of the importance of the question of law involved, the case has been referred for decision to the Bench. 3. Learned counsel for the accused argues that where after the charge has been framed in a warrant case or the plea has been recorded in a summons case, as in this case, the trial can culminate either in a conviction or In art acquittal and the petition by the Public Prosecutor in thia case virtually amounts to a withdrawal of the case and when the petition is allowed the accused must be deemed to have been acquitted of the original charge and he cannot be proceeded against in the three cases as ordered by the Magistrate. In support of the argument strong reliance was placed on the decision in In re Billa Masthan (S) AIR 1955 Andh 33. In that case the accused was charged with two distinct offences, one for offence under Section 408 I. P. C., and another for an offence under Section 477A I. P. C. The Assistant Public Prosecutor in that case presented a petition to the Court that as the two offences were distinct and should not be tried together fresh proceedings be permitted to be started against the accused in respect ot the offence under Section 408 I. P. C. The learned Magistrate accepted the prayer and ordered separate cases to he registered against the accused for the offence under Section 477A. A further petition was filed that as the charge under Section 477A had been separated the charge already framed by the Court be amended. That prayer was also allowed.

The case finally ended in conviction and when the matter was taken up to the High Court it was contended that the application made to the Magistrate for the separation of the trial on the two charges was to all intents and purposes an application for the withdrawal of the case as contemplated under S. 494 Cr. P. C. and if the withdrawal was effected it would operate as an order of acquittal under clause 12) of Section 494 Cr. P. C. The High Court held that there was no power in the Criminal Procedure Code permitting the withdrawal of a case with permission 4o file a fresh complaint and that the withdrawal of the charge under Section 477 would amount to an order of acquittal. In arriving at this decision reliance was Placed on a decision of the Madras High Court in In re Velayudha Mudali AIR 1949 Mad 508. That decision is clearly distinguishable on the facts inasmuch as an application had been made avowedly under Section 494 Cr. p. c. That case cannot have any bearing on the case before us, where no application for withdrawal has been made or proposed to be made and what was asked for was only for the splitting of the charges. 4. The crux of the question is whether an application of the kind made by the Public Prosecutor properly falls within the ambit of Section 494 Cr. P. C. We are clearly of opinion that it does not. What Section 494 lays down is that any Public Prosecutor may with the consent of the Court before the judgment is pronounced, withdraw from the prosecution and upon such withdrawal the accused will be discharged if withdrawal is made before the charge has been framed and acquitted if the withdrawal is made after the charge has been framed. There is hardly any occasion to say that the Public Prosecutor wanted to withdraw from the prosecution either generally or in respect of any offences for which the accused is being tried when he says there is no such intention and what he wants is to continue the case in a different form. in a case coming under Section 494 the Public Prosecutor has to say that he does not want to prosecute the accused for the offence charged. We are not prepared to go so far as to say that in an application made for splitting the charges to avoid, probably, misjoinder of charges and for separate trial it would amount 10 withdrawal from the prosecution within the meaning of Section 494. With great respect we find ourselves unable to agree with the reasoning and conclusions in the case in (S) AIR 1955 Andh 33 (cited supra). 5. We are unable to agree with the argument of the learned counsel that in a warrant case after the charge is framed or in a summons case after the sub- stance of the accusation has been read over to the accused and his plea recorded the case can only end in an Acquittal or conviction and that the Court cannot pass any other order like the amendment of the charges or a sepa- rate trial after splitting up the charges. We cannot accede to the contention that when the Court is satisfied that a trial is illegal on account of a misjoinder of charges and that It may work hardship and prejudice to the accused the only course open to him is to acquit the accused and not to amend the charge and proceed with the case. Merely because there is no express provision in the Cri minal Procedure Code for the splitting of the charges 19 to reason to hold that it Is prohibited. 6. A similar question arose in the case in The State v. Sohan Lal, MANU/RH/0010/1960 : AIR 1960 Raj 44 where the accused was charged for embezzlement of monies entrusted to him, It seems to have been later realised by the prosecution that this charge was faulty and if the trial was allowed to proceed, the entire trial would be bad. Consequently an application was moved on behalf of the State wherein it was prayed that the charge be amended so that it be confined to

the 'defalcations committed in the course of one year and it was also submitted that separate challans were proposed to be presented against the accused for the remaining years. The learned Magistrate directed the amendment of the charge whereby he limited it to the defalcation committed by the accused during one year, but ordered that so far as the other defalcations alleged to have been committed by the accused during the other vuars, there was no other course open to him except to acquit the accused. The State took up the matter to the High Court. Their lordships after an exhaustive review of the case law held: An application made for splitting up the charges which had all been unlawfully joined together and for separate trials is not tantamount to an application for withdrawal from the prosecution within the meaning of Section 494 and a prayer in the application that separate challans would be presented against the accused so far as the other alleged offences were concerned does not amount to a request for withdrawal from the prosecution for the remaining offences within the four walls of Section 494. Such application is really an application for amendment of the charge under Section 227. Criminal Courts have extensive powers to order the splitting up of the charges where such a charge is called for in the interests of justice. It is not necessary that before such power can be or should have been exercised, there must have been an express provision in, the Act to enable this power to be exercised. In fact, this power can be properly deduced from the provision contained in Section 117 itself read with Sees. 118 and 119." we are in respectful agreement with this view. 7. We may also refer to the case in Akhil Bandhn Ray v. Emperor, MANU/WB/0233/1937 : AIR 1938 Cal 258 where an analogous question arose. There certain persons were charged with conspiracy to commit criminal breach of trust and cheating. After the prosecution evidence was over, the Magistrate fount) at the stage of framing of the charges that all the accused could not be tried together and the case should be split up in order to avoid misjoinder. The Magistrate thereupon split up the charges against the different set of accused. It was held that the Magistrate had acted rightly in the exercise of his inherent power in ordering a de novo trial of one of the groups of accused. The contention of the petitioners that on the order splitting up the charges they must be deemed to have been acquitted, therefore, cannot be accepted. 8. We are unable to understand why in this case the Assistant public Prosecutor wanted the case to be split bp. It has rightly been conceded both by the learned counsel for the accused and the Public Prosecutor that the allegations in this complaint disclose only one transaction removing lime shells without a licence, no matter whether they are carried away in one boat or in three different boats. The order of the learned Magistrate splitting the charges and registering fresh cases is, therefore, set aside. The records do not disclose as to what has happened to C. C. 74 of 1962. We direct the learned Magistrate to proceed with the trial of the original case C. C. 74 of 1962 and dispose of the same as expeditiously as possible. Manupatra Information Solutions Pvt. Ltd.