Tuesday, 28 June 2022

How To Decide If Two Or More Acts Form "Same Transaction" For Joint Trial?

This Court, while expounding on Sections 177 and 220 CrPC, observed and laid down as under: -

“4.......Section 177 of the Code of Criminal Procedure on which Mr Mishra relies, uses the expression “ordinarily”. The use of the word “ordinarily” indicates that the provision is a general one and must be read subject to the special provisions contained in the Criminal Procedure Code. That apart, this Court has taken the view that the exceptions implied by the word “ordinarily” need not be limited to those specially provided for by the law and exceptions may be provided by law on considerations of convenience or may be implied from other provisions of law permitting joint trial of offences by the same court....... It may be noticed that under Section 220 of the Code of Criminal Procedure, offences more than one committed by the same persons could be tried at one trial, if they can be held to be in one series of acts, so as to form the same transaction. The expression “same transaction” from its very nature is incapable of an exact definition. It is not intended to be interpreted in any artificial or technical sense. Common sense and the ordinary use of language must decide whether on the facts of a particular case, it can be held to be in one transaction. It is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. But the circumstances of a given case indicating proximity of time, unity or proximity of place, continuity of action and community of purpose or design are the factors for deciding whether certain acts form parts of the same transaction or not. Therefore a series of acts whether are so connected together as to form the same transaction is purely a question of fact to be decided on the aforesaid criteria.”

(emphasis supplied)






Author: Dinesh Maheshwari, J.

Dated: JUNE 16, 2022

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Whether principles of natural justice violated if an enquiry report is not given to a delinquent employee?

 As stated above, Annexure – A8 enquiry report and PR

minutes were given to the applicant only along with Annexure – A7 show cause notice after the Government accepted the findings in the enquiry report and provisionally decided to impose a penalty. It is pertinent to note that the enquiry officer and the disciplinary authority in the instant case were not one and the same. This is in violation of the principles of natural justice and the same cannot be condoned at all, as held in B. Karunakar's Case (supra)

“The findings or recommended punishment by the

enquiry officer are likely to affect the mind of the

disciplinary authority in his concluding the guilt or

penalty to be imposed. The delinquent is, therefore,

entitled to meet the reasoning, controvert the

conclusions reached by the enquiry officer or is entitled

to explain the effect of the evidence recorded. Unless

the copy of the report is supplied to him, he would be in

dark to know the findings, the reasons in support

thereof or nature of the recommendation on penalty. He

would point out all the factual or legal errors committed

by the enquiry officer. He may also persuade the

disciplinary authority that the finding is based on no

evidence or the relevant material evidence was not

considered or overlooked by the enquiry officer in

coming to the conclusions, with a view to persuade the

disciplinary authority to disagree with the enquiry

officer and to consider his innocence of the charge, or

even that the guilt as to the misconduct has not been

established on the evidence on records or disabuse the

initial impression formed in the minds of the

disciplinary authority on consideration of the enquiry

report. Even if the disciplinary authority comes to the

conclusion that charge or charges is/are proved, the case

may not warrant imposition of any, penalty. He may

plead mitigating or extenuating circumstances to impose

no punishment or a lesser punishment. For this purpose

the delinquent needs reasonable opportunity or fair play

in action. The supply of the copy of the report is neither

an empty formality, nor a ritual, but aims to digress the

direction of the disciplinary authority from his

derivative conclusions from the report to the palliative

path of fair consideration. The denial of the supply of

the copy, therefore, causes to the delinquent a grave

prejudice and avoidable injustice which cannot be cured

or mitigated in appeal or at a challenge under Art. 226

of the Constitution or S.19 of the Tribunal Act or other

relevant provisions. Ex post facto opportunity does not

efface the past impression formed by the disciplinary

authority against the delinquent, however, professedly

to be fair to the delinquent. The lurking suspicion

always lingers in the mind of the delinquent that the

disciplinary authority was not objective and he was

treated unfairly. To alleviate such an impression and to

prevent injustice or miscarriage of justice at the

threshold, the disciplinary authority should supply the

copy of the report, consider objectively the records, the

evidence, the report and the explanation offered by the

delinquent and make up his mind on proof of the charge

or the nature of the penalty. The supply of the copy of

the report is thus, a sine qua non for a valid, fair, just

and proper procedure to defend the delinquent himself

effectively and efficaciously. The denial thereof is

offending not only Art.311(2) but also violates Arts. 14

and 21 of the Constitution. {Para 7}

8. The argument on the side of the Government before the

Tribunal that there is no specific rule in the Kerala Police

Departmental Inquiries, Punishment and Appeal Rules to give enquiry report at the stage of drawing up of the same to the delinquent cannot be accepted at all. The right to receive the report is considered as the essential part of reasonable opportunity to be extended to the person affected by the report and a refusal to furnish the report amounts to denial of the right to defend himself and to prove his innocence in the disciplinary proceedings. Even if such right is not explicitly stated in the regulations or statute, that right being a fundamental and essential part of the natural justice, must be read into every regulation or rules. There is nothing in the rules aforesaid

which excludes the operation of the principle of natural justice

entitling the delinquent to be served with a copy of the enquiry

report before accepting the report or proposing a punishment. It is trite that the principles of natural justice must be read into the

unoccupied interstices of the statute/rules or regulations unless there is a clear mandate to the contrary.


OP (KAT) No. 130 of 2022






Author: Mohammed Nias.C.P., J.

Dated: 16th day of June, 2022

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Saturday, 25 June 2022

Can the court recall the prosecution witness if he has given a different statement in another case?

Code of Criminal Procedure 1973; Section 311 - Merely because a different statement given by the same prosecution witness in another case that itself would not be a reason for recalling the witness.



 Special Leave to Appeal (Crl.) No(s). 5647/2022;

Dated: 21-06-2022 


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Can the court strike off the defence for non-compliance of the order of payment of pendente lite maintenance?

 Section 28(2) of the DV Act provides that the court can

formulate its own procedure for disposal of an application under

Sections 12 or 23(2) of the DV Act. The flexibility has been given

to the court as the proceedings under Sections 12 and 18 to 23

provide civil remedies whereas S.31 provides a criminal offence.

The Apex Court in Kunapareddy (supra) considered the nature

of proceedings under the DV Act and held that S.28(2) empowers

the court to lay down its own procedure and the Magistrate

dealing with the DV Act is empowered to allow the amendment of the application. Thus, it is clear that even though S.28(1) of the

DV Act provides that all proceedings under Ss.12 and 18 to 23

and for the offence under Section 31 shall be governed by the

provisions of Cr.P.C., the court can still lay down its own

procedure while dealing with the applications under sub-section

(1) of Section 12 or while considering the grant of interim or ex

parte ad interim relief orders under sub-section (2) of Section 23.

In view of the nature of the proceedings under the DV Act and the procedural flexibility provided under sub-section (2) of Section 28 in deciding the applications under Sections 12 or 23(2), it cannot be said that Court is bound to strictly abide by the provisions of Cr.P.C in all cases. In appropriate cases, it would be open to the court to formulate its own procedure as may be found necessary in the interest of justice, in which event, the court may not have to rely upon Cr.P.C. Thus, the court below went wrong in holding that it has no power to strike off the defence for the reason that the procedure to be followed in the proceedings under Sections 12 and 18 to 23 is that provided under Cr.P.C. {Para 11}

12. The Apex Court in Rajnesh v. Neha and Another

(2020 (6) KHC 1) referring to the judgments of the High Court on the point upheld the power of the court to strike off the defence if

there was non-compliance with the order of payment of

maintenance. It was, however, held that striking off the defence

is an order which ought to be passed in the last resort, if the

court finds default to be wilful and contumacious, particularly to a

dependent unemployed wife and minor child. The Division Bench

of this Court recently in Shyju v. Nadeera (2021(5) KLT 693) has

held that the Family Court can strike off the defence on failure to

pay interim maintenance ordered by the court where the default

is found to be wilful. For all these reasons, I hold that in a

proceeding under the DV Act, the defence can be struck off for

non-compliance with an order of payment of pendente lite

maintenance if the default is found to be deliberate and wilful.

However, such an order ought to be passed only as a last resort

as held in Rajnesh (supra).




 OP(CRL.) NO. 226 OF 2022


Dated this the 16th day of June, 2022

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