Bombay High Court
Dr. Chetan S/O. Gajanan Khutemate vs State Of Maharashtra Thr. Its ... on 3 February, 2021
Bench: Z.A. Haq, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 805 OF 2018
Dr. Chetan S/o Shri Gajanan Khutemate,
Aged about 46 years,
Occ. Opthalmologist,
R/o. Civil Lines, Chandrapur,
Tah. & Dist. Chandrapur (MS). . . . . APPLICANT
. . .VERSUS . . .
1. State of Maharashtra
Through its Principal Secretary (Home),
Mantralaya, Madam Cama Road,
Hutatma Rajguru Chowk,
Nariman Point, Churchgate,
Mumbai, Maharashtra-400032.
2. The Superintendent of Police,
Supdt. Of Police Office,
Near Bus Stand,
Dist. Chandrapur (Maharashtra)
3. Mr. Sushil Kumar Nayak-S.D.P.O.-
Investigating Officer of Crime No.
672/2017, U/s. 120-B, 302 IPC,
Supdt. Of Police Office,
Near Bus Stand,
Dist. Chandrapur (Maharashtra).
4. Dr. Manish Omdeo Musale,
(Complainant of impugned FIR/
Crime No. 672/2017, U/s. 120-B,
302 IPC) Authorized Representative
of-Dr. Yogita Musale,
R/o. Urjanagar, Opposite Durgapur
Bus Stand, Police Station-Durgapur,
Tadoba Road, Chandrapur,
Dist. Chandrapur (Maharashtra).
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5. The Investigation Officer,
Police Station, Ramnagar,
Dist. Chandrapur. . . NON-APPLICANTS
---------------------------------------------------------------------------------------------
Shri A. S. Mardikar, Senior Advocate a/w. Shri A. R. Wagh,
Advocate for applicant.
Shri T. A. Mirza, A.P.P. for non-applicants/State.
Shri Avinash Gupta, Senior Advocate a/w. Shri A. A. Gupta,
Advocate and Shri Akshaya Pandya, Advocate for non-applicant
no. 4.
CORAM: Z.A. HAQ & AMIT B. BORKAR, JJ.
DATED : 03/02/2021.
ORAL JUDGMENT : (PER AMIT B. BORKAR, J.)
1. This is an application under Section 482 of the
Code of Criminal Procedure challenging the Charge-sheet No.190
of 2018 dated 21.08.2018 filed before the Judicial Magistrate First
Class-7, Chandrapur, under Section 120-B read with Section 302
of the Indian Penal Code, arising out of Crime No.672 of 2017
dated 12.4.2017.
2. The First Information Report came to be registered
against the applicant with the accusations that the applicant
married with sister (Non-Applicant No. 5) of the non-applicant
no.4 in the year 2004. It is alleged that the applicant is addicted to
vices. It is further alleged that the non-applicant no.5 was
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physically and mentally harassed by the applicant and with the
result, the non-applicant no.5 started residing with her mother
and father. It is further alleged that the non-applicant no.5 filed
Complaint under Section 498-A and for other offences under the
Indian Penal Code against the applicant. It is further alleged that
when the custody of son of the non-applicant no.5 and the
applicant was handed over to the non-applicant no.5, the
applicant threatened the non-applicant no.4 that he will kill the
non-applicant no.4 and the non-applicant no.5. It is further alleged
that when the applicant was in Saudi Arab in January 2017, his
friend Anurag Dakhane on 13.1.2017 sent a WhatsApp message to
the non-applicant no.4 that the non-applicant no.4 should call
Anurag Dakhane to discuss about some serious issue. It is alleged
that when the non-applicant no.4 called Anurag, he told the non-
applicant no.4 that the applicant had given contract to kill the
non-applicant no.4 for an amount of rupees one crore. It is alleged
that the contract to kill the non-applicant no.4 was to be executed
through Gajanan Pal and Sinu Anna, who were friends of Anurag
Dakhane. It is alleged that the non-applicant no.4 told to Anurag
Dakhane to remain in contact with Sinu Anna. It is further alleged
that when the non-applicant no.4 returned to India, he met Sinu
Anna through Anurag Dakhane and Sinu Anna apprised the
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non-applicant no.4 of plan of the applicant and Gajanan Pal to
kill the non-applicant no.4. It is further alleged that the non-
applicant no.4 requested Sinu Anna to remain in touch with
Gajanan Pal and to record their conversation. It is further alleged
that Sinu Anna recorded voice calls between the applicant and
Gajanan Pal, which was in respect of contract to kill the non-
applicant no.4 by accepting the amount. It is alleged that from the
recording of call between the applicant and Gajanan Pal, it
becomes clear that the applicant and Gajanan Pal had engaged
the services of Sinu Anna to kill the non-applicant no.4.
3. During the course of investigation, the
Investigating Officer recorded the statements of the non-applicant
no.4, Anurag Dakhane and Sinu Anna. The Investigating Officer
also seized WhatsApp messages between Anurag Dakhane and the
non-applicant no.4, call recording details of conversation between
Sinu Anna and Gajanan Pal as well as seized mobile and sim-card
of the applicant and the accused. The seized record of WhatsApp
messages and call recording details, were sent to forensic analysis
and the report of Forensic Analyst is awaited.
4. The Investigating Agency filed charge-sheet against
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the applicant on 21.8.2018 bearing Charge-sheet No.190 of 2018
under Section 120-B read with Section 302 of the Indian Penal
Code, in pursuance of Crime no.672 of 2017 dated 12.4.2017. The
applicant has, therefore, filed the present application challenging
Charge-sheet No.190 of 2018.
5. This Court on 31.08.2018, issued notice making it
returnable on 26.09.2018.
6. The non-applicant no.2 filed affidavit-in-reply on
16-12-2019 and it is stated that Crime No.672/2017 for offences
punishable under Section 120-B read with Section 302 of the
Indian Penal Code was registered against the applicant and
Gajanan Balaji Pal on the information of the non-applicant no.4. It
is alleged that the applicant had threatened to kill the non-
applicant nos.4 and 5 due to grant of custody of son of the
applicant and the non-applicant no.5 to the non-applicant no.5
and due to filing of complaint to the Income Tax Department
against the applicant and also due to filing Complaint in respect of
the alleged unauthorised construction of the house of parents of
the applicant. It is further stated in reply that the applicant
alongwith co-accused Gajanan Pal had hatched criminal conspiracy
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to eliminate the informant (Non-Applicant No.4) with the help of
Sinu Anna. It is further stated that the informant met Sinu Anna
and at that time, it was disclosed that the applicant had given
contract to kill the informant(non-applicant no.4). There is voice
recording regarding contract given by the applicant and Gajanan
Pal to Sinu Anna. The Investigating Officer had recorded
statement of Sinu Anna, who stated that the applicant and
Gajanan Pal talked with him regarding killing of the informant
(non-applicant no.4). It is further stated that the Investigating
Officer had seized WhatsApp messages between Anurag Dakhane
and the informant. The Investigating Officer also seized mobile
and sim-card of Sinu Anna; call recording details of conversation
between Sinu Anna and Gajanan Pal. It is stated that the
Investigating Officer had seized an amount of rupees seven
thousand given to Sinu Anna as an advance against the contract to
kill the informant/non-applicant no.4. The Investigating Officer
had also seized voice recording of Sinu Anna, which contains
conversations between Sinu Anna and the applicant regarding
contract to kill the non-applicant no.4. It is further stated that
there is sufficient material available with the Investigating Agency
to implicate the applicant under Section 120-B read with Section
302 of the Indian Penal Code. It is further stated that the
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ingredients of offence of criminal conspiracy have been fulfilled.
7. We have heard the learned Senior Advocates and
learned APP for the respective parties.
8. Shri A. S. Mardikar, learned Senior Advocate
alongwith Shri A.R.Wagh, learned Advocate for the applicant
submitted that the material collected by the prosecution contained
in the charge-sheet is not sufficient to implicate the applicant. It is
submitted that the essential ingredients of the offence of criminal
conspiracy are not fulfilled, even if the entire material collected by
the prosecution in the charge-sheet is taken to be true. He
submitted that the essential ingredient of meeting of minds is
absent. He further submitted that the proof or otherwise of
conspiracy is generally a matter of inference and there is no
material to establish vital link with the crime or meeting of minds
amongst the accused to commit murder of the non-applicant no.4.
He invited our attention to the judgment of the Apex Court in the
case of Baliya Alias Bal Kisan Vs State of Madhya Pradesh ,
reported in (2012) 9 SCC 696, and Kehar Singh and others Vs.
State (Delihi Administration reported in (1989) 3 SCC 609, in
support of his submissions that the prosecution needs to prove the
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essential ingredients of Section 120-B of the Indian Penal Code,
such as meeting of minds or agreement between the accused to
commit murder of the non-applicant no.4.
9. Shri Avinash Gupta, learned Senior Advocate
alongwith Shri A.A. Gupta, learned Advocate for the non applicant
no.4 and Shri T.A.Mirza, learned APP for the State, submitted
that there is sufficient material collected by the prosecution in the
form of WhatsApp messages between Anurag Dakhane and the
informant as regards the contract given by the applicant to kill the
informant through Sinu Anna and Gajanan Pal. They also
submitted that there are conversations between Sinu Anna and
the applicant regarding contract to kill the applicant. They further
submitted that in view of transcriptions between Sinu Anna,
Gajanan Pal and the applicant, the essential ingredients of Section
120-B of the Indian Penal Code are fulfilled.
10. The scope and reach of the powers of this Court
under Section 482 of the Code of Criminal Procedure in
entertaining the prayer for quashing criminal proceeding is well
defined. The fundamental test is to ascertain whether taking the
allegations in the complaint or the material in the charge sheet to
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be true, without adding or subtracting anything at the stage of
challenge to the maintainability of the proceedings, prima facie,
case for trial, had been made out. It is only on such examination,
the answer has to be in the negative and, then an interference in
exercise of power under Section 482 of the Code of Criminal
Procedure, for quashing the said proceedings is called for. The
High Court, at this juncture, is not called upon to invoke an
exercise to inquire into the truth or otherwise of the allegations
made. The limited scrutiny is, for being satisfied, whether the
allegations made in the FIR or the material in the charge sheet
disclose cognizable offence or not.
11. The Apex Court has repeatedly sounded note of caution
to the effect that the power of quashing criminal proceedings
should be exercised very sparingly and with circumspection that
too in the rarest of rare case. In emphatic words, it has been laid
down that the Court would not be justified in embarking on an
inquiry as to reliability, genuineness or otherwise of the
allegations made in the First Information Report and that the
inherent powers do not confer an arbitrary jurisdiction on the
Court to act according to its whims or caprice. The power can be
exercised only when the Court comes to the conclusion that there
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would be manifest injustice or there would be abuse of process of
the Court and not otherwise.
12. In the backdrop of position of law stated above, we have
carefully considered the material in the Charge-sheet. The
statement of Sinu Anna recorded by the Investigating Officer;
WhatsApp messages between Anurag and informant; call
recording details between Sinu Anna and Gajanan Pal; recording
of conversations between Sinu Anna and the applicant in the form
of transcriptions of call, prima facie, show meeting of minds and
the agreement between the applicant and Gajanan Pal with Sinu
Anna to kill the non-applicant no.4.
13. The voice samples, WhatsApp messages, voice
recording of mobile conversations between Sinu Anna and
Gajanan Pal, Sinu Anna and the applicant have been sent to
forensic analyst and the report is awaited.
14. Insofar as the ratio laid down by the Hon'ble Apex
Court in the case of Baliya Kishan (supra) is concerned, we have
no doubt that it is necessary for the prosecution to prove
agreement between two or more persons to cooperate for
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accomplishment/performance of illegal act or an act, which is
illegal itself, through illegal means. There is no dispute about the
ratio laid down by the Hon'ble Apex Court in paragraph 17 of the
judgment of Baliya Kishan, which reads as under:
"17. The offence of criminal conspiracy has its
foundation in an agreement to commit an offence
or to achieve a lawful object through unlawful
means. Such a conspiracy would rarely be
hatched in the open and, therefore, direct
evidence to establish the same may not be always
forthcoming. Proof or otherwise of such
conspiracy is a matter of inference and the court
in drawing such an inference must consider
whether the basic facts i.e. circumstances from
which the inference is to be drawn have been
proved beyond all reasonable doubt, and
thereafter, whether from such proved and
established circumstances no other conclusion
except that the accused had agreed to commit an
offence can be drawn. Naturally in evaluating the
proved circumstances for the purposes of
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drawing any inference adverse to the accused,
the benefit of any doubt that may creep in must
go to the accused".
15. We are also bound by the ratio of the Apex Court in
the case of Kehar Singh and others (supra). The Apex Court in
paragraph no 260 has held as under:
"260. The concept of criminal conspiracy will be
dealt with in detail a little later. For the present, it
may be sufficient to state that the gist of the
offence of criminal conspiracy created under
Section 120-A is a bare agreement to commit an
offence. It has been made punishable under
Section 120-B. The offence of abetment created
under the second clause of section 107 requires
that there must be something more than a mere
conspiracy. There must be some act or illegal
omission in pursuance of that conspiracy. That
would be evident by the wordings of Section 107
(Secondly): "engages in any conspiracy .......for
the doing of that thing, if an act or illegal omission
13 J-APL-805.18.odt
takes place in pursuance of that conspiracy ......"
The punishment for these two categories of crimes
or also quite different. Section 109 IPC is
concerned with the punishment of abetments for
which no express provision is made under the
Indian Penal Code. A charge under Section 109
should, therefore, be along with some other
substantive offence committed in consequence of
abetment. The offence of criminal conspiracy is, on
the other hand, an independent offence. It is made
punishable under section 120-B for which a charge
under section 109 IPC is unnecessary and indeed,
inappropriate. The following observation of Das, J.,
in Pramatha Nath Taluqdur v. Saroj Ranjan Sarkar.
[1962] (Supp) 2 SCR 297 at 320 also supports my
view:
"Put very briefly, the distinction between the
offence of abetment under the second clause of
Section 107 and that of criminal conspiracy under
section 120-A is this. In the former offence a mere
combination of persons or agreement between
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them is not enough. An act or illegal omission must
take place in pursuance of the conspiracy and in
order to the doing of the thing conspired for; in the
latter offence the mere agreement is enough, if the
agreement is to commit an offence.
So far as abetment by conspiracy is concerned the
abettor will be liable to punishment under varying
circumstances detailed in sections 108 to 117. It is
unnecessary to detail those circumstances for the
present case. For the offence of criminal conspiracy
it is punishable under section 120-B."
16. In the light of the above judgments of the Apex
Court , we are satisfied that there is prima facie material in the
charge-sheet in the form of WhatsApp messages between Anurag
Dakhane and the non-applicant no.4, transcription of voice
recording of conversations between Sinu Anna and the applicant
and transcriptions of mobile conversations between Sinu Anna
and Gajanan Pal, which prima facie show the involvement of the
applicant and the veracity of the accusations cannot be examined
under Section 482 of the Code of Criminal Procedure.
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Considering the nature of the allegations and the material
produced by the prosecution in the form of the Charge-sheet, this
is not a case where Charge-sheet can be quashed, at this stage.
The report of Forensic Analyst is yet to be received. It is for the
prosecution to prove its case against the applicant in the full-
fledged trial. We are, therefore, satisfied that there is prima facie
material against the applicant in the charge-sheet, which prima
facie shows essential ingredients of offence under Section 120-B of
Indian Penal Code. We find no merit in the application.
Criminal Application is, therefore, dismissed.
17. It is made clear that the observations made in this
order are only for the purpose of deciding legality of the
charge-sheet filed against the applicant. The Trial Court shall
decide proceedings against the applicant on its own merits
without being influenced by any of the observations made in this
judgment.
JUDGE JUDGE
Ambulkar
