This column is based on talk delivered by Bharat at the National Police Academy to a batch of 132 IPS officers/probationers, currently on training, with the very able assistance of Abhijay Srekanth (4th year, Jindal Global Law School.)

**

Multiple FIRs, Chargesheets, Joinder of Charges and Accused and Splitting of Trials is an area of procedural law fraught with great confusion for the investigators. In this column, we seek to address the following questions that an investigator often puts to herself: 

1. When do I need to register separate FIRs & file separate charge-sheet? 
2. In what cases can I club different accused persons and different charges in one FIR and one charge-sheet? 
3. Can there be multiple FIRs and challans after registration of first FIR? 
4. What happens in cases where there are rival versions of fact; as in cases of cross/counter complaints? Accused in one case (Complaint No.1)– complainant in the other (Complaint No.2). 
5. What if some of the accused are absconding? Can police report/challan still be filed?  
6. In what cases request for splitting of trial can be made? 

But – first:

The broad stages | From FIR to Framing of Charges. 

Unfortunately, the CrPC provides guidance on joinder of charges only at the last stage (where the court is to frame charges) and doesn’t really help the investigator in deciding in what cases to register one FIR or Multiple FIRs or file a single or multiple charge-sheets. Having said that, the principles applicable on a court (framing a charge) may also guide the investigator in make an appropriate decision w.r.t joinder.

We’ll dig deeper into these shortly but – first, a brief discussion of the basic principles governing ‘charge’ in the CrPC:

Basics of Charge

• A charge, simply put, is an accusation on the accused framed by the court with a view to give the accused an opportunity to contest the case. 
• To be distinguished from charge-sheet.  (or more appropriately, police report u/s 173 CrPC which is for the investigator to file.)
• Important from Natural Justice standpoint. To give the accused an opportunity to understand and respond and put up an adequate defence. 
• Even God didn’t banish Adam and Eve before giving them an opportunity.  
• Section 211 lists out what must be present in a charge: 
  • The offence committed; 
  • The name of the offence and how it was committed; date, time, names of victims, etc. 
  • The name of the law broken and the section;
• The charge must be written in the language of the court. 
• Chapter 17 of CrPC– which deals with charge framing – kicks-in only at the time of charge framing by court. 

Filing of Police Report (Charge-sheet) 

Upon completion of an investigation, the police must submit a final report with their conclusion. This report is also known as the police-report and is to be filed under Section 173, CrPC and it must contain: 

The names of the parties;

(b) The nature of the information;

(c) The names of the persons who appear to be acquainted with the circumstances; 

(d) Whether any offence appears to have been committed and, if so, by whom;

(e) Whether the accused has been arrested;

(f) Whether he has been released on his bond and, if so, whether with or without sureties;

(g) Whether he has been forwarded in custody under section 170.

(h) Medical Examination of victim of sexual assault. 

173(5) – a Police Report should have relevant documents and statements of witnesses. 

Joinder of Charges | Basic Principles. 

Chapter 17 of the CrPC lists out the various circumstances where a joinder may be permissible. The general rule as per section 218 of the CrPC is that : each  distinct offence must be tried separately. Here, understanding the difference between the terms ‘distinct’ and ‘separate’ is essential, as two offences committed may be separate, but not necessarily distinct. 

For instance, if A were to steal a bag from B and assault C in order to escape & get away, these offences would be ‘separate offences’ under the Indian Penal Code, but not ‘distinct’ as they are joined by the circumstance in which they occurred. The offences here can be joined together since they form part of the ‘same transaction’ (more on that later!). However, two distinct incidents of theft committed on two different people by the same person are distinct and can’t be investigated or tried together.

Good news is that the basic principle of : ‘distinct offences, separate trials’ is not absolute, and a joinder of charges or accused is permissible if : (i) the case falls within the statutory exceptions provided under sections 219, 220, 221 and 223 of the CrPC, or if the accused herself moves an application for the offences to be tried together.

Exception 1- Three offences of the same kind in the same year

Section 219 of the CrPC allows for a joinder of three offences ‘of the same kind’ committed by a single accused within a span of twelve months. Offences are termed to be of the same kind when they warrant the same period of punishment and under the same section.  These ‘same offences’ need not be committed in the course of the’ same transaction’ to be tried together.

Ex: Three thefts committed by the same person within one year may be tried at one trial.

This section deals with separate offences which are not connected to one another. 

But what happens when the offences are part of the ‘Same transaction’?

“Transaction” was defined by Sir James Stephen as “a group of facts so connected together as to be referred to by a single name, as a crime, a contract, a wrong or any other subject of enquiry which may be in issue”. 

There has to be a real connection between different offences to constitute ‘offences committed in the same transaction’. A unity of purpose and objective. This is a very circumstantial and fact-intensive test.

For instance: Robbery and causing hurt (IPC) by using an unlicensed revolver in the commission of the robbery (Arms Act) & intimidating witnesses present on the spot not to report the matter to police (Criminal Intimidation u/ IPC).

It would be absurd in this case to be trying these charges separately as they are all committed in the same transaction and in the same continuity of things, which is what brings us to the second exception: 

Exception 2- Multiple Offences in the same transaction

Section 220(1) of the CrPC allows for the offences of a singular accused to be joined when committed in the same transaction. This is without any maximum limit of the number of offences. Unlike section 219, the offences may not be of the ‘same kind’ and may span across multiple legislations and the offences may be totally different.

As discussed earlier, a transaction refers to a group of closely related facts. The courts usually examine time, unity or proximity of place, continuity of action, community of purpose or design when ascertaining whether an offence falls within the same transaction.^[2] 

For instance, if an accused, who was part of a riot, causes grievous hurt to an official, charges under section 142 and 325 of the Indian Penal Code may be joined in the same charge-sheet, they having been committed in the course of the ‘same transaction’^[3]

Applicability in cases involving issuance of various licenses.

In Chaman Lal Sankhla vs State Of Haryana, the Court had to deal with an accused who had issued 177 licenses in violation of the Motor Vehicles Act.^[4] The Court held that each issuance was a separate transaction, even though the offence under question was the same as far as nature of the offence and modus operandi was concerned. It did, however, remark that sets of three offences may be joined as per section 219, but that’s something that the court has to do – it being a purely judicial function.

Applicability in investor/fraud/ponzi scheme cases where there are multiple complaints

The Delhi High Court dealt with the applicability of section 220(1) when dealing with investor frauds/scams.^{[5] State vs Khimji Bhai Jadeja} Here – the accused allegedly floated a fraudulent investment scheme and allegedly scammed 46.40 Cr. out of 1850 investors. The Court had to decide whether each complaint would mandate a separate FIR and charge-sheet. The Court held that: since each person was induced on different dates and times for different amounts, each instance would amount to a separate transaction and need a separate FIR/charge-sheet. The judgement has currently been stayed by the Supreme Court as it hears the accused’s SLP, however, the earlier SC judgments that Delhi High Court relied on, i.e :  State of Punjab & Anr. V. Rajesh Syal, AIR 2002 SC 3687 & Narinderjit Singh Sahni vs. Union of India & Ors still stand and may be pressed to argue for seperate FIRs and Seperate Chargesheets. Though this view may pose logistical/administrative difficulties for the investigators but it goes a long way to ensure that each victim is heard seperately and has certain rights vis-a-vis the trial. Any other view would reduce all the victims (except the first one who files the complaint and is characterised as informant) to mere witnesses. Further, a common chargesheet and a common trial may seriously incapacitate the court in granting appropriate sentence in each case.

Exception 3- Offences of Criminal breach of trust, Missappropriation of Money and Falsification of accounts may be tried at one trial

Section 220(2) quite simply allows for offences of criminal breach of trust and/or misappropriation of property to be joined with one or more falsification of accounts offences that were committed to aid or conceal the above in the same charge-sheet. 

Exception 4- Same act falling under different offences

Section 220(3) deals with the situation where an act/series of acts may be defined under different offenses. An accused in such a case may be jointly charged under some or all of the offences that the act is deemed to amount to. Therefore, when A grievously assaults B, he may be charged under both sections 323 and 325 IPC.^[6]  

Another example may be when A exposes her child to danger knowing it is likely to kill her child. The mother may be charged jointly with offences under 317 and 304 IPC.

Also, for offences such as data theft, an accused may be charged under both the IT Act as well as the IPC. Similarly, for a murder committed by making the brakes on a driver-less car go fail, may be charged both under the IT Act (hacking) and IPC (murder).

Exception 5- Constituent offences forming a separate offence together

Section 220(4) takes into account situations where a series of acts in a transaction may constitute offences independently, which when looked at as a whole constitute an entirely different offence.

In such a case, the accused may be charged with the constituent offences as well as the umbrella offence.

For example, when A forcefully breaks into B’s house and steals property and in doing so assaults him, he may be charged with offences under sections 323, 392 and 395 of the IPC. In other words, section 323 + section 392 = 394. All may clubbed and tried together.

Exception 6- Where there is doubt regarding the offence committed

The CrPC recognises situations where there may be confusion as to what offence has been committed. Section 221(1) allows the police to charge the accused of alternate offences only in these cases, as alternate charges are generally prohibited under section 218.

What needs to be kept in mind however is that for this exception to kick-in, only the law must be uncertain; there cannot be any uncertainty around the facts from which the act emerged.^[7]

Furthermore, the alternate offences cannot be altogether distinct. For instance, charges of abetment to suicide (s. 306 IPC) cannot be framed in the alternative to murder (s. 302 IPC), as the ingredients are completely different.^[8]

Section 221(2) complements the above exception and allows the Court to convict an accused of an offence not charged, as long as the evidence clearly establishes such commission, and a conviction does not prejudice the accused’s defence.

However, for this exception to kick-in, the offence charged and the offence that is inferred on evidence to have been committed must be cognate offences.^[9]

Exception 4- where multiple accused may be joined

Section 223 allows for accused to be charged together if they meet any of the following critetion,

• same offence in same transaction;
• Persons accused of main offence and persons accused of attempt/abetment of that offence; 
• of more than one offence of the same kind (same kind having the meaning in section 219, CrPC) committed by them jointly within the period of twelve months;
• different offences in same transaction;
• persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and those who are accused of receiving, retaining, assisting with disposing or concealing such property; as well as abetting or attempting to commit such offences. 

The Court adjudges multiple accused to have jointly involved in the commission of the ‘same kind of offence’ by looking at using the “continuity of action’ and ‘unity of purpose’ test.^[11] 

The courts explored this test when determining whether two individuals accused of offences under the NDPS act could be tried together.^[12] 

The facts were as follows:

• The bags of two foreign officials are searched.
• A was found to have 87 grams of hashish and B is found to have 136 grams of hashish. 
• Can they be tried together under section 223, CrPC for offences under the NDPS Act?
• It must be shown that an offence was committed by the two accused in the same transaction.
• Mere illegal possession of hashish by two distinct people who happen to be sitting close to each other and staying in the same hotel does not automatically meet the tests in section 223 of CrPC. 
• The State was directed to prosecute the two accused independently. 
• Facts are based on State of Kerala v Wolf Hang Kannad Fivert, 1995 (3) Crimes 384 (Ker)

Proximity of time, place, etc., may be present, but community and continuity of action are paramount in proving that the offences were in the same transaction for a joinder under section 223, CrPC.^[13] 

Furthermore, the Law Commission in its 41^st Report on the CrPC stated that principle implicit in section 223(1) is whether separate charges/trials lead to an incomplete comprehension of the totality of the crime or conflicting verdicts.^[14] This principle is the acid test in determining whether two or more accused should be jointly charged.

Where continuity in action is shown, the goals towards the accused work towards is irrelevant.^[15] 

Say A picks the lock of B’s flat to let C in to rob him. A does this due to some personal enmity with C, and C robs B simply to enrich himself.

The purposes motivating their actions are irrelevant. As they acted in the same transaction, they can be jointly charge-sheeted.

CASE STUDY : Joinder of Accused in conspiracies-

The Court dealt with a case where the CMD of a PSU was accused of accepting bribes.^[16] The CBI sprung a trap and arrested and charged the CMD and his co accused. They also separately arrested and charged the CMD’s wife for conspiring to open a benami locker. The Court ruled that where a set of actions are committed to facilitate the commission of a main offence, or if they involve the same system and/or persons and there is a hint of continuity, the offences are in the same transaction, and can be charged jointly.

In contrast, in another case: An officer investigates two instances of corruption regarding leaking of the Constables’ recruitment exam. The officer arrests two accused who individually leaked the paper, one in one year, and one in the other. They are charge-sheeted together. Is this valid?

The Court held ‘No’. There is nothing to show that the two instances were in the same transaction. The accused committed the offenses independently of each other & on two separate occasions.

The joinder was therefore illegal as per section 218, CrPC as it does not fall under the exceptions.(Facts adapted from J. Duraimunusamy v State 2011 CIJ 341 ALJ)

Multiple FIRs 

You’d frequently face the situation of multiple complaints. There is already an FIR in place and some new information comes in. The question is should a separate/second FIR be registered? 

The SC in the case of Amitbhai Shah v CBI (2013) Cri.L.J. 2313 dealt with this. 

In this case,  investigation was transferred from the local police to the CBI following the death of X, a witness to the death/alleged encounter of A and his wife B (which was already subject matter of FIR and Chargesheet No.1)

The CBI filed fresh FIR and chargesheet in connection with alleged encounter of X once they began to investigate(FIR and Chargesheet No.2) 

Court disallowed this on the ground that the conspiracy alleged (encounter killing of 2 people) was covered in the first FIR itself and a supplementary chargesheet in the first case would suffice. The conspiracy and the transaction being the same. 

Therefore, multiple FIRs held to be not not permissible. Further, same principle applies when the new fact is a mere ‘consequence’ of the original act only – which need not merit a second/new FIR. 

However, this is not an absolute rule. When the instances and the corresponding offences are different in the second complaint, a new FIR may be registered and a fresh charge-sheet may be filed. 

The Court in Anju Chaudhary vs State Of U.P. & Anr(2013) 6 SCC 384 held so.  

Here the court was dealing with the Gorakhpur riots.

Pursuant to the riots, an FIR was registered against unnamed persons from a particular organization. (First FIR) 

Following this, another complaint was lodged w.r.t inflammatory speeches by head of that organization (Second FIR). 

The Court used the ‘sameness test’ to see whether the second FIR related to the incidents and occurrences in the first.

The second one would be valid as long as it was distinct. 

Court held: 

“these were two different FIRs relatable to different occurrences, investigation of one was no way dependent upon the other and they are neither inter-linked nor inter- dependent. They were lodged by different persons in relation to occurrences which are alleged to have occurred at different points of time against different people and for different offences. Requirement of proof in both cases was completely distinct and different. Thus, there was no similarity and the test of similarity would not be satisfied in the present case.” 

Anju Chaudhary vs State Of U.P. & Anr(2013) 6 SCC 384

The Court in Awadhesh Kumar Jha v State of Bihar (2016) 3 SCC 8 again engaged with the question of multiple FIRs. Brief Facts : 

• An FIR had been lodged against the Accused for offences under the Immoral Traffic (Prevention) Act, 1956.  A subsequent FIR for offences under 173 of the IPC was filed (giving wrong personal information). The accused approached the court claiming the second FIR was illegal. 
• The Court noted that normally multiple FIRs in the same transaction would be a violation of Article 21 of the Constitution, and additional FIRs cannot be registered. If if the first charge-sheet has been filed, the police has the option of further investigation u/section 173(8) CrPC and filing supplementary charge-sheet. 
• However, in the instant case, the transactions were different : one was illegal trafficking, and the other providing wrong information to the police. Therefore the two FIRs would not be illegal. 

To be noted : if there are two FIRs initially – for whatever reason – and the IO feels that it there are clearly part of one transaction – they can be clubbed together and one chargesheet can be filed.  (However, in the opinion of the author – this is not advisable and seperate FIRs should, for reasons procedural and otherwise, lead to seperate police reports).

C.Muniappan & Ors vs State Of Tamil Nadu, 2010 (9) SCC 567

Case Studies on Cross/Counter Complaints.

Cross complaints are confusing as the accused in one case is a complainant in the other, and the complainant in one case is the accused in the other. In other words – there are rival versions as to the facts and circumstances and as to what really happened. Both parties accused each other. 

What is to be done in such a case?

Should the classic principle of ‘no-multiple-FIRs’ as laid down in TT Antony (SC) and clarified in Amitbhai (supra) apply?

Well, in cases of cross/counter FIRs providing counter/rival narratives of the same incident, the answer broadly is ‘No’.

Surender Kaushik & Ors. vs. State of U.P. & Ors (2013) 5 SCC 148 is one such case where the accused filed a counter FIR against the complainant, as well as a third party. (Dispute relating to election of a management committee of an educational institution). 

The Court ruled that the principle of ‘No-Two-FIRs’would not apply here since the factual version was totally distinct and quite opposite to the original FIR. 

Also, only the original complainant is disallowed from filing a second FIR – this is crucial so as to prevent the complainant from improving upon his or her case. 

Rationale for allowing cross/counter FIR to be registered separately:,If there can be only one FIR w.r.t an incident, the real offender could easily pre-empt & file a false case himself to pre-empt and stop the affected party from filing an FIR. 

Similarly, in Uphar Singh v Ved Prakash AIR 2004 SC 4320, the complainant had filed a complaint accusing the respondent of offences u/sections 452 and 307 IPC. The Accused attempted to lodge a counter-complaint accusing the complaint of offences u/sections 506 and 307 IPC. 

The Court held that in the case of rival contentions on the same offence, both would have to be investigated, as the true purpose of investigation is to find out who has in fact committed the alleged crime.

The police would, therefore, were directed to register the accused’s complaint as well – separately. 

Splitting of A Trial 

We’ve talked about cases: 

• Where there has to be one FIR and one chargesheet;
• Where there has to be multiple FIRs and multiple chargesheets;
• Now we look into splitting of cases/trials. 
  • Classic case where splitting will be needed: if one of the accused, for instance, is absconding and the trial of others is held up because of that.

Let’s take a hypothetical:

• FIR registered against A,B,C and D. 
• A,B and C caught during investigation. 
• D remains absconding. 
• 60/90 days running out and there’s pressure to file police report/challan 
• Investigation vis-à-vis D not complete because he was never interrogated.
• In such a case, police report may still be filed mentioning that D is absconding. 

Section 299 of the CrPC

In such a scenario, Section 299 of the CrPC provides in cases where an accused person has absconded and there is no immediate prospect of his arrest, court can go ahead and record evidence in his absence, and the evidence recorded in the absence of the accused may be used against him – once she is apprehended and trial resumes– provided that the witnesses are dead, or otherwise unavailable. S.299 (2) similarly provides for similar proceedings where accused is unknown. 

It is to be noted however that CrPC does not provide for a trial in absentia and only for recording of evidence in absentia. 

Another power of splitting of trial: Section 317(2) of the CrPC

 Section 317(2) states that an accused trial may be adjourned or separated from the other accused in two situations : Where the accused is not represented by a pleader or where the personal attendance of an accused is deemed necessary by the court and he is not so present. 

Intrinsic power to Separate Trials

 It may be useful to be reminded that the power to join charges is only an enabling power.  The Court has the option but no obligation to conduct joint trial. Separate trial (of charges and accused) is the rule and joinder of charges and accused is an exception.  

Power may be exercised in cases, for instance :

where summons on a particular accused (who’s outside India) remain unserved (because of non-cooperation of foreign country) and trial of Indian accused is unduly held up because of that; in such cases, power to separate may be exercised to go ahead vis-à-vis the accused before the the court and seperate trial of the accused whose appearance cannot be procured.

Does a technical impediment w.r.t some of the charges vitiate the whole trial?

Case study:

• The Deputy Superintendent of Police issues a prohibitory order against processions. 
• A few days after the said order, the Chief Minister of the state is sentenced to undergo one year imprisonment. Despite the prohibitory order, members of a political party take out Dharnas and compel the shopkeepers to close their shops.
• The protests turn violent and case for offences such as Sections 147, 148, 149, 341, 342, 307 read with Sections 302, 114 IPC and Sections 3 and 4 Tamil Nadu Property (Prevention of Damage & Loss) Act, 1992 were registered.
• The accused were also  charged with Section 188 of IPC. 
• For the court to take cognizance w.r.t offence u/s 188 IPC, the public servant needs to file a complaint (public servant whose order is violated).
• For the other sections – you don’t need a complaint and an FIR followed by chargesheet is enough. 
• In such a case, the absence of a complaint under Section 195(1)(a) of CrPC will not result in falsifying the entire case of the prosecution, though case insofar as it concerns 188 IPC must fail. Other charges may still be sustained.
• Facts adapted from C. Muniappan & Ors vs State Of Tamil Nadu, 2010 (9) SCC 567

Parting words

Adherence to the above principles may go a long way in ensuring that there are no misjoinders and trials are conducted in a way that ensures : there is no needless multiplicity of proceedings, a complete comprehension of the totality of the crime, while at the same time – ensuring no prejudice to the accused and the victim.

^[1] Pandian v The Inspector of Police, 2005 (1) Crimes 268 (277)

^[2] Queen Empress v Vajiram, (1892) 16 Bom 414

^[3] Code of Criminal Procedure, section 220 illustration g

^[4] Chaman Lal Sankhla v State of Haryana 2008 CriLJ 2640 https://indiankanoon.org/doc/902618/

^[5] State v Khimji Bhai Jadeja 2019 (3) Crimes 1 (Del.) https://indiankanoon.org/doc/143857109/

^[6] Code of Criminal Procedure, section 220 illustration i

^[7] Eusof Shaikh, (1945) 2 Cal 470

^[8] Jatinder Kumar v State (Delhi Admn.) Delhi, 1992 Cr LJ 1482 https://indiankanoon.org/doc/1422198/

^[9] Ramajirav Jivbajirav, (1875) 12 BHCR 1

^[10] Salinder Kumar vs State Of Punjab 2008 CriLJ 602 https://indiankanoon.org/doc/1639887/

^[11]  Kushai Malik v. Emperor, AIR 1924 Cal 389 https://indiankanoon.org/doc/681239/

^[12] State of Kerala v Wolf Hang Kannad Fivert, 1995 (3) Crimes 384 (Ker)https://www.casemine.com/judgement/in/56b4964b607dba348f017bf2

^[13] Balbir v State of Haryana, AIR 2000 SC 11 https://www.casemine.com/judgement/in/5609ad58e4b0149711411214

^[14] Law Commission Report No. 41, Code of Criminal Procedure, 1989 Vol. I

^[15] Supra 13 https://www.casemine.com/judgement/in/5609ad58e4b0149711411214

^[16] Chandini Srivastava vs CBI and Ors., 2018 (3) JCC 1847 https://indiankanoon.org/doc/68999818/

^[17] Amitbhai Shah v CBI (2013) Cri.L.J. 2313 https://indiankanoon.org/doc/161365352/

^[18] C. Muniappan & Ors vs State Of Tamil Nadu, 2010 (9) SCC 567 https://indiankanoon.org/doc/1438332/

^[19] Anju Chaudhary vs State Of U.P. & Anr (2013) 6 SCC 384 https://indiankanoon.org/doc/116653184/

^[20] Surender Kaushik & Ors. vs. State of U.P. & Ors (2013) 5 SCC 148 https://indiankanoon.org/doc/165687909/

^[21] Upkar Singh v Ved Prakash AIR 2004 SC 4320 https://indiankanoon.org/doc/1054183/

^[22] Id.