Full Judgment Text
2024 INSC 522
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 2395 of 2023
(@ SLP (Crl.) No. 6687 of 2023
Ram Prakash Chadha …Appellant
Versus
The State of Uttar Pradesh …Respondent
J U D G M E N T
C.T. RAVIKUMAR, J.
1. The dismissal of application under Section 482,
No.21739 of 2007, essentially, filed under Section 482 of
the Code of Criminal Procedure, 1973 (for short, ‘the
Cr.PC’) against dismissal of an application for discharge
by the appellant herein under Section 227 Cr.PC, as per
order dated 21.04.2023 by the High Court of Judicature
at Allahabad is under challenge in this appeal. The
appellant moved the said application for discharge in
Crime No.371/1993, the charge in essence there is about
custodial death of one Ram Kishore who happened to be
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cashier/accountant of the appellant, which in fact was
registered based on the complaint of the appellant.
2. Heard, learned senior counsel Siddharth Dave
appearing for the appellant and Shri Ardhendumauli
Kumar Prasad, Additional Advocate General appearing
for the State of Uttar Pradesh.
Facts leading to the case:
3. Before narrating the facts, we should bear in mind
that exercise of power under Section 227, Cr.PC, is
legally permissible only by considering ‘the record of
the case and the documents submitted therewith’.
Therefore, necessarily, the question is what is the
meaning of the expression ‘the record of the case and
documents submitted therewith’? According to us, it
refers only to the materials produced by the prosecution
and not by the accused. A three-Judge Bench of this
Court considered this question in State of Orissa v.
1
Debendra Nath Padhi . It was held that the said
expression as postulated in Section 227, Cr.PC, relate to
the case and the documents referred to under Section
209, Cr.PC. Section 209, Cr.PC, reads thus:-
1
(2005) 1 SCC 568
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“ 209. Commitment of case to Court of Session
when offence is triable exclusively by it. —
When in a case instituted on a police report or
otherwise, the accused appears or is brought
before the Magistrate and it appears to the
Magistrate that the offence is triable exclusively
by the Court of Session, he shall —
(a) commit, after complying with the
provisions of section 207 or section 208, as the
case may be, the case to the Court of Session,
and subject to the provisions of this Code
relating to bail, remand the accused to
custody until such commitment has been
made;
(b) subject to the provisions of this Code
relating to bail, remand the accused to
custody during, and until the conclusion of,
the trial;
(c) send to that Court the record of the case
and the documents and articles, if any, which
are to be produced in evidence;
(d) notify the Public Prosecutor of the
commitment of the case to the Court of
Session.”
In view of Section 209, Cr.PC, as extracted above,
to know what exactly are the documents falling within the
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said expression Sections 207 and 208, Cr.PC, are also to
be looked into.
4. We referred to the provisions under Section 227
and the decision in Debendra Nath Padhi’s case ( supra )
only to conclude that even for the purpose of referring to
the facts leading to the case, as also for consideration of
the contentions for the purpose of Section 227, Cr.PC, we
cannot refer to the grounds carrying or referring to the
case of the appellant-accused, in view of the aforesaid
provisions of law and position of law, requiring to confine
such consideration only with reference to the materials
produced by the prosecution.
5. Now, we will refer to the facts leading to the case,
as per the prosecution and as per the materials falling
within the purview of Section 227, Cr.PC.
6.
The appellant, who is the owner of Goodwill
Enterprises dealing with wood, registered Case Crime
No.351 of 1993 under Section 392 of the Indian Penal
Code, 1860 (for short ‘ the IPC’ ) at Police Station Modi
Nagar, District Ghaziabad, alleging that his
cashier/accountant-Ram Kishore and one Pappu Yadav
went for collecting his business proceeds from shops at
Meerut and Modi Nagar in the morning of 15.07.1993. On
their way back from Meerut, after collecting such
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business proceeds, they stopped the car in front of Ginni
Devi School in Modi Nagar and Ram Kishore went to
Poonam Sales for collection and Pappu Yadav remain
seated in the car with the bag containing the collection
and some documents. Soon, two persons came and
snatched the said bag from Pappu Yadav after putting
him at gun point and escaped on a motorcycle. The
appellant was given such information over phone. Later,
on that day itself the appellant got registered the above-
mentioned FIR about robbery and asked for
investigation and appropriate legal action, in the
incident.
7. The materials on record and the counter affidavit
filed in this appeal on behalf of the respondent based on
such materials would reveal that the initial investigation
in Case Crime No.351/1993 (hereinafter referred to as
‘the robbery case’) found it to be false. However, the
Supervising Officer concerned viz., the Commanding
Officer, Modi Nagar stopped the closure report and
entrusted the case for investigation to another officer.
Thereafter, on 17.07.1993, the appellant called Ram
Kishore from his house through one of his employees
viz., Jagannath and took him to the Modi Nagar Police
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Station for inquiry. It is only appropriate to extract from
the chargesheet dated 21.02.2000 filed by CBCID,
Lucknow, U.P., in FIR No. 371/1993 of Police Station,
Modi Nagar, registered in connection with the custodial
death of Ram Kishore unfolding further the case of the
prosecution instead of narrating it. It in so far as relevant
reads thus:-
“…Ram Kishore was illegally kept in the police
station by Inspector of Police R.D. Pathak and
Sub-Inspector of Police Jawahar Lal from
17.07.1993 to 23.07.1993 night and by
subjecting him to the torture he was kept being
interrogated about the said incident. In the night
of date 23.07.1993 on Ram Kishore felling ill he
was taken to M.M.G. Hospital Ghaziabad by
Inspector R.D. Pathak through staffs and Jeep
where on 3:20 in the morning he died. He was
admitted by the police in the Hospital in the
name of unknown. After death of the young man
Ram Kishore on date 24.07.1993, a complaint
regarding death was submitted by the
complainant to the Circle Inspector Modi Nagar
raising suspicion about death of Shri Ram
Kishore having been caused by the Inspector of
Modi Nagar by beating him on which Crime
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Case No.371/1993 was registered illegible. As
per the post mortem report dated 24.07.1993
ante mortem redics cut incision were found on
his both the buttocks and because of the cause
of death not having been ascertained his internal
organs were preserved which was examined on
date 03.01.1995 poison etc. were ruled out. …”
8. In the chargesheet dated 21.02.2000 filed in Crime
No.371/1993, the aforesaid Rameshwar Dayal Pathak,
the then Inspector of Police and Jawahar Lal, the then
Sub-Inspector of Police and the appellant were made
accused Nos. 1 to 3 respectively, for commission of
offences under Sections 302, 343, 217, 218, 330, 120B
and 34, IPC. It is seeking discharge under Section 227,
Cr.PC, in the aforesaid case viz., Crime No.371/1993
that appellant herein approached the court of
Additional Sessions Judge/Special Judge, Ghaziabad
by filing application dated 04.04.2007 contending
absolute absence any ground to proceed against him.
The said application for discharge under Section 227,
Cr.PC, was rejected by the court of Additional Sessions
Judge/Special Judge (CBI), as per order dated
19.04.2007. The impugned order dated 21.04.2023 was
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passed by the High Court in the petition filed under
Section 482, Cr.PC, against the said order dated
19.04.2007.
Rival contentions:
9. The learned senior counsel appearing for the
appellant would contend that the very charge filed by
the CBCID dated 21.02.2000 in the custodial death case
viz., FIR No. 371/2023 would reveal that the appellant
herein is the informant. It is also submitted that the final
report filed in the ‘custodial death case’, dated
21.02.2000 would further show that he was witness No.1
and also as accused No.3. The Learned Senior Counsel
would further submit that there is absolute absence of
any material to arraign the appellant herein as an
accused with the aid of either Section 120B, IPC or
Section 34, IPC. The next submission was that even if
the statements of the witnesses recorded under Section
161, Cr.PC, including the witnesses related to the
deceased Ram Kishore like Smt. Santosh, Shri Promod
Kumar and Shri Bhim Singh, who are respectively the
widow, son and brother of deceased Ram Kishore are
taken as correct, they would not reveal anything to base
an allegation of criminal conspiracy or sharing of
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common intention against the appellant. It is the further
submission that virtually, the appellant’s application for
discharge was dismissed by the Court of the Additional
Sessions Judge taking two circumstances as suspicious
circumstances (i) that it was he who had taken accused
Ram Kishore to Police Station in connection with the
investigation in Crime No.351/1993 (the robbery case)
(ii) that immediately on the death of Ram Kishore from
the hospital he filed the complaint which culminated in
the registration of FIR No.371/1993 in connection with
the murder of Ram Kishore, alleging that Inspector,
Modi Nagar and 3-4 other police personnel had taken
Ram Kishore with them for interrogation and
apprehending the cause of his death due to torture by
police personnel. It is submitted neither the statements
of witnesses or the chargesheet carry any such
accusation or insinuation and that suspicion was made
only by the court in the order dated 19.04.2007 while
rejecting the appellant’s application for discharge. In
short, the contention is that neither the trial court nor the
High Court considered the application for discharge in
the manner required under law.
10. Per Contra , the learned Additional Advocate
General appearing for the State would submit the
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materials on record produced along with the
chargesheet would prima facie show that it was the
appellant who lodged the complaint resulting in
registration of Crime No.351/1993, and that it was in
connection with the investigation of the said crime that
the appellant himself produced the deceased Ram
Kishore before the Police Station after calling him from
his house through another employee and as such his
very action in filing another complaint leading to the
registration of Crime No.371/1993 against the first
accused, the then SHO, Police Station, Modi Nagar, for
the death of Ram Kishore immediately on coming to
know about the death of Ram Kishore, is sufficient to
create a strong suspicion against the appellant. When
such a strong suspicion is there, in the light of the
statements made by the other witnesses under Section
161, Cr.PC, the concurrent finding resulted in dismissal
of application for discharge filed by the appellant
invites no interference, according to the learned
Additional Advocate General.
11. For appreciating the aforesaid contentions, we are
of the considered view that it is only appropriate to
refer to the position of law with respect to the scope of
exercise of power under Section 227, Cr.PC, as also the
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ingredients to attract Section 120B, IPC. Section 227,
Cr.PC, reads thus:
“ 227. Discharge .—If, upon consideration of the
record of the case and the documents submitted
therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the
Judge considers that there is not sufficient ground
for proceeding against the accused, he shall
discharge the accused and record his reasons for
so doing.”
12. We have already considered the meaning of the
expression “the record of the case and the documents
submitted therewith” relying on the decision in
Debendra Nath Padhi’s case ( supra ) only to re-assure
as to what are the materials falling under the said
expression and thus, available for consideration of an
application filed for discharge under Section 227,
Cr.PC. In the light of the same, there cannot be any
doubt with respect to the position that at the stage of
consideration of such an application for discharge,
defence case or material, if produced at all by the
accused, cannot be looked at all. Once “the record of
the case and the documents submitted therewith” are
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before the Court they alone can be looked into for
considering the application for discharge and
thereafter if it considers that there is no sufficient
ground for proceeding against the accused concerned
then he shall be discharged after recording reasons
therefor. In that regard, it is only appropriate to
consider the authorities dealing with the question as to
what exactly is the scope of consideration and what
should be the manner of consideration while exercising
such power.
13. The decision in Yogesh alias Sachin Jagadish
2
Joshi v. State of Maharashtra this Court held that the
words “not sufficient ground for proceeding against the
accused” appearing in Section 227, Cr.PC, postulate
exercise of judicial mind on the part of the Judge to the
facts of the case revealed from the materials brought on
record by the prosecution in order to determine
whether a case for trial has been made out. In the
decision in State of Tamil Nadu v. N Suresh Rajan &
3
Ors. this Court held that at a stage of consideration of
an application for discharge, the Court has to proceed
with an assumption that the materials brought on record
2
AIR 2008 SC 2991
3
(2014) 11 SCC 709
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by the prosecution are true, and evaluate the materials
to find out whether the facts taken at their face value
disclose the existence of the ingredients constituting
the offence. At this stage, only the probative value of
the materials has to be gone into and the court is not
expected to go deep into the matter to hold a mini-trial.
4
14. In the decision in BK Sharma v. State of UP , the
High Court of judicature at Allahabad held that the
standard of test and judgment which is finally applied
before recording a finding of conviction against an
accused is not to be applied at the stage of framing the
charge. It is just a very strong suspicion, based on the
material on record, and would be sufficient to frame a
charge.
15. We are in agreement with the said view taken by
the High Court. At the same time, we would add that the
strong suspicion in order to be sufficient to frame a
charge should be based on the material brought on
record by the prosecution and should not be based on
supposition, suspicions and conjectures. In other
words, in order to be a basis to frame charge the strong
4
1987 SCC OnLine ALL 314
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suspicion should be the one emerging from the
materials on record brought by the prosecution.
16. In the decision in Stree Atyachar Virodhi Parishad
5
v. Dilip Nathumal Chordia & Anr. , this Court held that
the word ‘ground’ in Section 227, Cr.PC, did not mean
a ground for conviction, but a ground for putting the
accused on trial.
6
17. In P. Vijayan v. State of Kerala and Anr. , after
extracting Section 227, Cr.PC, this Court in paragraph
No.10 and 11 held thus: -
“10.
…….If two views are possible and one of them gives
rise to suspicion only, as distinguished from grave
suspicion, the trial Judge will be empowered to
discharge the accused and at this stage he is not to
see whether the trial will end in conviction or
acquittal. Further, the words “not sufficient ground
for proceeding against the accused” clearly show
that the Judge is not a mere post office to frame the
charge at the behest of the prosecution, but has to
exercise his judicial mind to the facts of the case in
order to determine whether a case for trial has been
5
(1989) 1 SCC 715
6
(2010) 2 SCC 398
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made out by the prosecution. In assessing this fact, it
is not necessary for the court to enter into the pros
and cons of the matter or into a weighing and
balancing of evidence and probabilities which is
really the function of the court, after the trial starts.
11. At the stage of Section 227, the Judge has merely
to sift the evidence in order to find out whether or not
there is sufficient ground for proceeding against the
accused. In other words, the sufficiency of ground
would take within its fold the nature of the evidence
recorded by the police or the documents produced
before the court which ex facie disclose that there are
suspicious circumstances against the accused so as to
frame a charge against him.”
18. In paragraph 13 in P. Vijayan’s case ( supra ), this
Court took note of the principles enunciated earlier by
7
this Court in Union of India v. Prafulla Kumar Samal
which reads thus: -
“10….
(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code
has the undoubted power to sift and weigh the
7
(1979) 3 SCC 4
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evidence for the limited purpose of finding out
whether or not a prima facie case against the accused
has been made out.
(2) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained the Court will be
fully justified in framing a charge and proceeding
with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large however if two views are equally possible
and the Judge is satisfied that the evidence produced
before him while giving rise to some suspicion but not
grave suspicion against the accused, he will be fully
within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section
227 of the Code the Judge which under the present
Code is a senior and experienced court cannot act
merely as a post office or a mouthpiece of the
prosecution, but has to consider the broad
probabilities of the case, the total effect of the
evidence and the documents produced before the
Court, any basic infirmities appearing in the case and
so on. This however does not mean that the Judge
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should make a roving enquiry into the pros and cons
of the matter and weigh the evidence as if he was
conducting a trial.”
19. In the light of the decisions referred supra , it is thus
obvious that it will be within the jurisdiction of the Court
concerned to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused concerned has been made out. We
are of the considered view that a caution has to be
sounded for the reason that the chances of going
beyond the permissible jurisdiction under Section 227,
Cr.PC, and entering into the scope of power under
Section 232, Cr.PC, cannot be ruled out as such
instances are aplenty. In this context, it is relevant to
refer to a decision of this Court in Om Parkash Sharma
8
v. CBI . Taking note of the language of Section 227,
Cr.PC, is in negative terminology and that the language
in Section 232, Cr.PC, is in the positive terminology and
considering this distinction between the two, this Court
held that it would not be open to the Court while
considering an application under Section 227, Cr.PC, to
weigh the pros and cons of the evidence alleged
8
(2000) 5 SCC 679
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improbability and then proceed to discharge the
accused holding that the statements existing in the case
therein are unreliable. It is held that doing so would be
practically acting under Section 232, Cr.PC, even
though the said stage has not reached. In short, though
it is permissible to sift and weigh the materials for the
limited purpose of finding out whether or not a prima
facie case is made out against the accused, on
appreciation of the admissibility and the evidentiary
value such materials brought on record by the
prosecution is impermissible as it would amount to
denial of opportunity to the prosecution to prove them
appropriately at the appropriate stage besides
amounting to exercise of the power coupled with
obligation under Section 232, Cr.PC, available only
after taking the evidence for the prosecution and
examining the accused.
20. Even after referring to the aforesaid decisions, we
think it absolutely appropriate to refer to a decision of
the Madhya Pradesh High Court in Kaushalya Devi v.
9
State of MP . It was held in the said case that if there is
no legal evidence, then framing of charge would be
9
2003 SCC OnLine MP 672
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groundless and compelling the accused to face the trial
is contrary to the procedure offending Article 21 of the
Constitution of India. While agreeing with the view, we
make it clear that the expression ‘legal evidence’ has to
be construed only as evidence disclosing prima facie
case, ‘the record of the case and the documents
submitted therewith’ .
21. The stage of Section 227, Cr.PC, is equally crucial
and determinative to both the prosecution and the
accused, we will dilate the issue further. In this context,
certain other aspects also require consideration. It
cannot be said that Section 227, Cr.PC, is couched in
negative terminology without a purpose. Charge
sheet is a misnomer for the final report filed under
Section 173 (2), Cr.PC, which is not a negative report
and one that carries an accusation against the accused
concerned of having committed the offence (s)
mentioned therein.
22.
In cases, where it appears that the said offence(s)
is one triable exclusively by the Court of Session, the
Magistrate shall have to commit the case to the Court of
Session concerned following the prescribed
procedures under Cr.PC. In such cases, though it
carries an accusation as aforementioned still legislature
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thought it appropriate to provide an inviolable right as
a precious safeguard for the accused, a pre-battle
protection under Section 227, Cr.PC. Though, this
provision is couched in negative it obligated the court
concerned to unfailingly consider the record of the case
and document submitted therewith and also to hear the
submissions of the accused and the prosecution in that
behalf to arrive at a conclusion as to whether or not
sufficient ground for proceeding against the accused is
available thereunder. Certainly, if the answer of such
consideration is in the negative, the court is bound to
discharge the accused and to record reasons therefor.
The corollary is that the question of framing the charge
would arise only in a case where the court upon such
exercise satisfies itself about the prima facie case
revealing from “the record of the case and the
documents submitted therewith” against the accused
concerned. In short, it can be said in that view of the
matter that the intention embedded is to ensure that an
accused will be made to stand the ordeal of trial only if
‘the record of the case and the documents submitted
therewith’ discloses ground for proceeding against him.
When that be so, in a case where an application is filed
for discharge under Section 227, Cr.PC, it is an
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irrecusable duty and obligation of the Court to apply its
mind and answer to it regarding the existence of or
otherwise, of ground for proceeding against the
accused, by confining such consideration based only
on the record of the case and the documents submitted
therewith and after hearing the submissions of the
accused and the prosecution in that behalf. To wit, such
conclusion on existence or otherwise of ground to
proceed against the accused concerned should not be
and could not be based on mere suppositions or
suspicions or conjectures, especially not founded upon
material available before the Court. We are not
oblivious of the fact that normally, the Court is to record
his reasons only for discharging an accused at the stage
of Section 227, Cr.PC. However, when an application
for discharge is filed under Section 227, Cr.PC, the
Court concerned is bound to disclose the reason(s),
though, not in detail, for finding sufficient ground for
rejecting the application or in other words, for finding
prima facie case, as it will enable the superior Court to
examine the challenge against the order of rejection.
23. By applying the laws enunciated and the principles
laid, we will proceed to consider the case on hand. In
the final report filed in FIR No.371 of 1993 viz., in the
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custodial death case, the afore-extracted portion from it
revealed that the essence of the accusation is
commission of custodial death owing to the torture to
which Ram Kishore was subjected to, from 17.07.1993 to
23.07.1993. It reveals that going by the same, he was
illegally kept in the Police Station by accused Nos.1 and
2. A scanning of the charge as also the other materials
including the statements of the witnesses recorded
under Section 161, Cr.PC, would reveal that there is
absolute absence of any accusation or even an
insinuation that the appellant had played any role in
torturing Ram Kishore. Therefore, the question is how
he is arraigned as third accused in the aforesaid crime.
In that regard, it is apposite to refer again to the final
report dated 21.02.2000 filed in Crime No.371/1993.
The relevant portion in the final report in this regard,
reads thus: -
“…In this manner from this investigation, it was found
that deceased Ram Kishore was kept in the Police
Station from dated 17.07.1993 to 23.07.1993 in the
Police Station under the criminal Conspiracy of the
accused persons mentioned in the column no.3
during which he was tortured and interrogated
regarding the incident of loot and knowingly with the
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intention of saving their skins no entry of the same was
made in the records of the Police Station nor was the
same mentioned by the complainant in its report.
Charge under Section 341/217/218/201/330/34
/120B Indian Penal Code, 1860 was found to have
been made out against all the accused persons. …”
24. From the above extracted portion, it is evident that
the implication of the appellant in the crime is with the
aid of Section 120B and Section 34, IPC. Apart from
using the expression “criminal conspiracy” there is
absolute absence of anything whatsoever in the said
final report as also in the statement of any of the
witnesses, suggesting that the appellant herein
conspired with the other accused or what exactly is the
criminal conspiracy.
25. This Court in the decision in R. Venkatakrishnan v.
10
CBI , held that criminal conspiracy, in terms of Section
120B, IPC, is an independent offence and its ingredients
are:
(i) an agreement between two or more persons;
(ii) the agreement must relate to doing or causing
to be done either –
10
(2009) 11 SCC 737
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(a) an illegal act;
(b) an act which is not illegal in itself but is
also done by illegal means.
26.
An important facet of law of conspiracy is that apart
from it being a distinct offence, all conspirators are
liable for the acts of each other of the crime or crimes
which have been committed as a result of conspiracy.
A careful scanning of the provisions under Sections
120A and 120B, IPC, would reveal that the sine qua non
for an offence of criminal conspiracy is an agreement to
commit an offence. It consists of agreement between
two or more persons to commit the criminal offence,
irrespective of the further consideration whether or not
the offence is actually committed as the very fact of
conspiracy constitutes the offence (See the decision in
11
)
K.S. Narayanan & Ors. v. G Gopinathan .
27. There can be no doubt that conspiracy is hatched
in privacy and not in secrecy, and such it would rarely
be possible to establish conspiracy by direct evidence.
A few bits here and a few bits there, on which the
prosecution may rely, are not sufficient to connect an
accused with the commission of the crime of criminal
11
1982 CriLJ 1611 (Madras)
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conspiracy. To constitute even an accusation of
criminal conspiracy, first and foremost, there must at
least be an accusation of meeting of minds of two or
more persons for doing an illegal act or an act, which is
not illegal in itself, by illegal means.
12
28. In Ajay Aggarwal v. Union of India & Ors. , this
Court characterized the offence of criminal conspiracy
as an agreement between two or more persons to do an
illegal act or a legal through illegal means.
Furthermore, it was held that commission of the offence
would be complete as soon as, there is consensus ad
idem and it would be immaterial whether or not the
offence is actually committed. It is also held therein that
necessarily there must be agreement between the
conspirators on the design or object of the conspiracy.
As held in R. Venkatakrishnan case ( supra ), the
quintessential ingredient to attract the offence of
criminal conspiracy is agreement between two or more
persons. Therefore, the question is whether it spelt in
the final report dated 21.02.2000 or in any of the records
of the case and documents submitted therewith, so as to
find a prima facie case of commission of criminal
12
(1993) 3 SCC 609
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conspiracy against the appellant. True that an
agreement referred to in Section 120A, IPC may be
expressed or implied or in part express and in part
implied. However, no record of the case or documents
submitted therewith carry such an
allegation/accusation against the appellant.
29. What is the common plan or the common intention?
This aspect is also conspicuously absent in the materials
produced by the prosecution. In regard to all such
aspects, referred above, none of the witnesses has
spoken while giving statements under Section 161,
Cr.PC. In this context it is also to be noted that
according to the Trial Court, a very strong suspicion
lingers on account of twin circumstances. In the order
dated 19.04.2007, the Trial Court in this regard
observed and held thus: -
“ The learned Assistant District Government
Counsel (Criminal) has argued that if the
accused persons says that he had fell ill in the
night and he was complaining of having pain in
the chest then why his family members were not
informed. The said condition is also very much
suspicious. Besides these, the accused was
handed over to the police by the accused Ram
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Prakash Chaddha himself and in the next day
morning the report was lodged by him only.
Keeping in view the abovementioned
entire facts and circumstances sufficient
evidences are available on the record for the
framing of charge against the accused persons
Rameshwar Dayal Pathak and Jawahar Lal and
Ram Prakash Chaddha.”
30. In the light of the records of the case and the
documents submitted therewith, it can only be found
that the said finding of the Trial Court on the ground to
proceed against the appellant is based on suppositions
and suspicions, having no foundational support from
the materials produced by the prosecution. With
respect to the first part of the above-extracted recital
from the order of the Trial Court, it is to be noted that it
is nobody’s case that the appellant was in the Police
Station or informed of the sufferance from chest pain.
As relates the second suspicion, it is to be noted that the
very Trial Court itself, in the very order dated
19.04.2007 itself, stated that in Crime No.351/1993
under Section 392, IPC the deceased Ram Kishore was
only a witness and that the amount in cash and the draft
involved was that of the appellant. It is also the case of
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the prosecution that the said case was registered, at the
instance of the appellant against unknown persons.
Hence, when the appellant who lost the money went to
Police Station along with the witness thereof, how can it
be presumed by the Court as a strong case for suspicion
for commission of the offence of criminal conspiracy,
especially taking note of the very case of the
prosecution that causative incident for the case
occurred when Ram Kishore was returning after
collecting the business proceeds of the appellant and
that the appellant was informed of it over telephone by
Ram Kishore. When there is no case for the prosecution
that the appellant pointed the fingers at Ram Kishore
how the lodging of the complaint, apprehending
custodial death of Ram Kishore who was appellant’s
clerk for about 13 years, which caused the registration
of custodial death case under FIR No.371/1993 can be
taken as a ground for framing charge against the
appellant for the offences punishable under Section
302, IPC, 120-B with the aid of Section 34, IPC.
31. These aspects were not at all considered by the
High Court. To say the least, there was no consideration
of the matter by the High Court in the manner required
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under law, in the given facts and circumstances of the
case.
32. We are at a loss to understand, how in the absence
of ground for a prima facie case revealed from the
materials produced by the prosecution a person who
lost his money and lodged a complaint based on the
information furnished by his employee can be
implicated in an offence, that too a grave allegation of
commission of an offence of custodial death amounting
to murder, merely because he caused the presence of
the person concerned before the Police Station unless
the ingredients to attract criminal conspiracy to commit
any specific offence in relation to Ram Kishore is
available. If the case of the prosecution and the
materials produced along with the charge are taken as
true, they would only suggest that Ram Kishore was
under the control of the police in the Police Station. In
fact, that exactly is the prosecution case revealed from
the final report dated 21.02.2000 filed in Crime
No.371/1993.
33. The aforesaid being the position revealed from the
materials produced by the prosecution, the mere fact
that rejection of the application of the appellant for
discharge is concurrent cannot be a reason for
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confirming the impugned order of the High Court
confirming the order of the Trial Court. Since the
diallage on the matter constrain us to come to the
concrete conclusion of absence of ground for
proceeding against the appellant based on final report
dated 21.02.2000 in Crime No.371/1993 of CBCID, U.P.
Lucknow, this appeal must succeed.
34. We clarify that the observations made in this
judgment are made qua the appellant for the purpose
of disposal of this appeal and we make it clear that we
have not made any observation touching the merits of
the case against the other accused in Crime
No.371/1993 of CBCID, U.P. Lucknow.
35. For the reasons given as above, this appeal is
allowed. Consequently, the order and judgment dated
21.04.2023 passed by the High Court of Judicature at
Allahabad in application No.21739 of 2007 filed under
Section 482, Cr.PC, and the order dated 19.04.2007
passed by the Additional Sessions Judge/Special Judge
(CBI) are set aside. As a necessary sequel, the
application filed by the appellant under Section 227,
Cr.PC, dated 04.04.2007 for discharge in Crime
No.351/1993 filed in Sessions Trial No.1532/2005
before Additional Sessions Judge/Special Judge (CBI),
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Prevention of Corruption Act U.P., East Ghaziabad is
allowed and the appellant stands discharged.
36.
Pending application(s), if any, shall stand disposed
of.
……………………, J.
(C.T. Ravikumar)
……………………, J.
(Sudhanshu Dhulia)
New Delhi;
July 15, 2024
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