Jaydip Dineshchandra Joshi vs State Of Gujarat
2021 Latest Caselaw 3249 Guj

     R/SCR.A/8052/2019                                    CAV JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CRIMINAL APPLICATION NO. 8052 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE B.N. KARIA

==========================================================

1 Whether Reporters of Local Papers may be allowed NO to see the judgment ?

2   To be referred to the Reporter or not ?                           NO

3   Whether their Lordships wish to see the fair copy                 NO
    of the judgment ?

4   Whether this case involves a substantial question                 NO

of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== JAYDIP DINESHCHANDRA JOSHI Versus STATE OF GUJARAT ========================================================== Appearance:

MR. ANSHIN H. DESAI, SENIOR ADVOCATE WITH MR. JAY M

MR. MITESH AMIN, PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1 ==========================================================

CORAM: HONOURABLE MR. JUSTICE B.N. KARIA

Date : 25/02/2021

CAV JUDGMENT

By way of present application, petitioner has challenged

the order dated 19.02.2018 passed below an application Exh.

46 in Criminal Case No. 1188 of 2010 by the Ld. Chief Judicial

Magistrate, Kutch at Bhuj, whereby the application preferred

by the petitioner u/s. 227 of Code of Criminal Procedure

praying for discharge is rejected as well as the order dated

10.12.2018 passed by Ld. Additional Sessions Judge, Kutch at

Bhuj dismissing Criminal Revision Application No.28 of 2018.

The brief facts of the present case are as under:

That petitioner joined his service of State Government as

Deputy Collector. On 26.01.2001, there was an earthquake

experienced in the State of Gujarat, whereby, the epicenter

was located at Bhuj, wherein, a lot of destruction in terms of

life and property had occurred and therefore, Government had

decided to rehabilitate the affected persons and passed number

of resolutions to that effect. To classify the damage, G.1 to G.5

categories were made and category certificates were issued by

different authorities like Mamlatdar, City Survey

Superintendent, Chief Officer & Deputy Collector. It is

submitted that the grain market of Bhuj was totally affected by

the earthquake and all the affected persons, who were having

their shops, were required to be rehabilitated and accordingly

one of the trusts was granted 17 acres of lands by the

Government with various conditions, one of which as that the

trust has to obtain Collector's certificate about allottee being

earthquake affected. The Land was allotted at the market rate,

which was prevailing at that point of time vide Resolution

dated 03.09.2002. On 04.12.2003 the Collector, Bhuj, by way

of a reasoned order with various conditions, allotted land

bearing Survey No.363 paiki situated at Bhuj on paying market

value in five different installments & then possession of the

land was handed over to the trust. That, the said order was

passed by imposing number of conditions, which were binding

to the trust. That, the allotment of land was already done in

the year 2003 vide order passed by the Collector, Bhuj on

04.12.2003. That on 08.07.2005 petitioner came to be

transferred from Panchmahal to Bhuj and had joined the

posting when almost all land related process including

possession of land was already completed. That after two years

of the said transfer of the petitioner, the Collector, Bhuj wrote

a letter to the Deputy Collector, Bhuj, directing to carry out a

detailed inquiry with regard to the irregularities committed by

the trust and after carrying out the inquiry, a detailed report

was submitted by the Deputy Collector, Bhuj i.e. the petitioner.

That in pursuance to the said detailed inquiry, the Deputy

Collector, Bhuj, i.e. the petitioner submitted the first report,

wherein, the entire situation was described in detail. In the

first report itself it was clearly written that trust has not

obtained Collector's certificates & pointed out many

irregularities of the trust & suggested if someone has wrongly

sought any aid, police complaint should be filed against him.

That the said report was filed subject to further inquiry. That a

second interim report was submitted by the Deputy Collector,

Bhuj i.e. the petitioner to the Collector, Bhuj in furtherance to

the earlier report dated 15.09.2007. In the said report also the

petitioner has clearly mentioned that as per the order dated

04.12.2003 passed by the Collector and as mentioned in

condition of the said order, the certificates were to be issued at

that relevant point of time, however, the same were not done

till date. That, the said task can be carried out by a team

headed by the Deputy Collector and it can be ensured that only

those persons, who are granted certificates by the Collector are

entitled for the benefits and otherwise, the benefits already

entailed by the persons, who are not having such certificates,

can be again procured by the Government. Till then, the

further inquiry was kept pending. That final report in

furtherance of the earlier reports was submitted to the

Collector, Bhuj point wise showing breach of trust reiterating

the facts that Collector has not given certificate to the trust and

if the beneficiaries have wrongly obtained the allotment,

without fail, a police complaint is required to be filed in that

regard. So it cannot be said that the report filed by the

petitioner is for the benefit of the other accused persons. That

petitioner came to be transferred from Bhuj to Ahmedabad.

Thereafter Collector, along with the consideration of the

reports, himself issued notice to beneficiaries for the breach of

conditions to the trust wherein the trust was asked to explain

the allegations about the breach of conditions. During the said

process, the reports filed by the petitioner were also considered

by the Collector and pursuant thereto, the Collector, ordered,

that the allotment of the plots to the 317 beneficiaries are

proper and legal & the allotment of plots for 60 was cancelled.

Final report submitted by the petitioner was even considered

by the Superior Officer and at no point of time, doubt was

created with regard to the reports of the present petitioner as

the same were not challenged, by any authority. That pursuant

to the order passed by the Collector, Bhuj, a private complaint

came to be registered by a private complainant Henry James

Chako being Criminal Inquiry Case No.26 of 2007 for the

offences punishable under Section 200, 203, 217, 465, 466,

467, 471, 472, 474, 475, 485, 406, 409 and 120(B) of the IPC.

Ld. Magistrate was pleased to pass an order of investigation

u/s. 156(3) of Cr.P.C. to C.I.D. Crime Bhuj, and thereafter, the

FIR came to be registered as M. Case No. 1 of 2008. Present

petitioner was not named in the FIR nor there were any

allegations leveled against the petitioner in the entire FIR.

Thereafter, during the course of investigation, the petitioner

came to be arrested. In the meantime, the investigation came

to be concluded and charge sheet came to be filed being

charge sheet No.2 of 2010, wherein, the petitioner was

arraigned as accused no.6. In the entire papers of the charge

sheet as per the say of the petitioner only cursory allegation

was made against the petitioner that the reports prepared by

the petitioner were inappropriate. The petitioner approached

the Ld. Sessions Judge praying for regular bail. However, the

same came to be rejected. Thereafter, the petitioner

approached this Hon'ble Court by way of filing Criminal Misc.

Application No. 6783 of 2010 and this Court, was pleased to

release the petitioner on regular bail by recording findings that

the petitioner had joined the post on 08.07.2005 as Deputy

Collector, Bhuj and therefore, there was no question of any

conspiracy with any other accused. A further findings was

recorded in the order by this Court that the only allegations

against the petitioner was regarding the inquiry made by the

petitioner and the report submitted, which was also considered

by the Superior Officer and no grievance was made at that

point of time. It was further observed that there is no direct or

indirect involvement of the petitioner in the present offence.

Then petitioner had approached the Ld. Chief Judicial

Magistrate, Kutch at Bhuj by way of an application below Exh.

46 inter alia praying for discharging him from the Criminal

Case No.1188 of 2010 and the same came to be rejected by

way of a non­speaking order. Being aggrieved and dissatisfied

by the order, petitioner preferred Criminal Revision

Application No.24 of 2016 before the learned Additional

Sessions Judge, Kutch at Bhuj and same came to be rejected

again by way of a non­speaking order. The petitioner was

constrained to approach this Court by way of filing Special

Criminal Application No. 9982 of 2017 challenging both the

orders of the Ld. Magistrate as well as the Ld. Sessions Judge.

This Court, was pleased to quash both the orders passed by the

Courts below and was further pleased to remand the discharge

application of the petitioner to the Ld. Magistrate to decide it

afresh. Thereafter, the Ld. Chief Judicial Magistrate was

pleased to rehear the discharge application of the petitioner

filed below Exh. 46 and was pleased to reject the discharge

application of the petitioner. The petitioner, thereafter,

challenged the order passed by the Ld. Chief Judicial

Magistrate before the Ld. Sessions Judge by way of filing

Criminal Revision Application No.28 of 2018 but the said

revision application was rejected by the Ld. Session Judge. The

petitioner was under suspension almost about nine years due

to pendency of criminal case against him, petitioner

approached this Court by way of filing Special Civil Application

No. 18344 of 2015, wherein this Court rejected the said

petition. Then petitioner filed Letters Patent Appeal

No.972/2016, wherein this Court was pleased to deliberate

upon the situation and was pleased to direct the competent

authority to consider the possibility of allowing the petitioner

to perform duties by revoking the order of suspension before

the next review and to give him a suitable posting subject to

final outcome of the said appeal. Petitioner being aggrieved

and dissatisfied by vide order dated 19.02.2018 passed by

learned Magistrate rejecting his application discharge as well

as order dated 10.12.2018 passed by learned Sessions Court

confirming the order of ld. Magistrate, he has approached this

Court.

Heard learned advocate for the petitioner and learned

Public Prosecutor for the respondent­state.

Learned advocate for the petitioner submits that orders

passed by the Courts below are illegal, erroneous and against

the provisions of law. That courts below committed a grave

error of law and facts by passing the impugned orders without

appreciating the fact that the petitioner had prepared the

reports as per the order of the Collector and had submitted the

said reports to the Superior Officer. That Superior Officer

never took any objections of the said reports. That even if all

the reports are perused, it clearly transpires that the reports

are dealing with each any every conditions of Resolution of the

Government, wherein also, the petitioner has categorically

stated that number of beneficiaries were yet to obtain

certificate from the Collector. That petitioner had given an

opportunity to all the beneficiaries of hearing as well as

producing all the evidences in support of their claim to be the

beneficiaries as per the Resolution passed by the Government.

Accordingly, the petitioner had forwarded not less than 365

files along with the documentary evidences produced by the

beneficiaries alongwith the final report dated 25.04.2008. That

when the petitioner has performed his official duty and has

also submitted the reports along with documentary evidences,

it cannot be termed that the reports filed by the petitioner are

"Hollow or Shallow" much less being a part of conspiracy,

which is hatched by the co­accused persons. That considering

the entire papers of the charge­sheet, there is no iota of

evidence suggesting that the petitioner has conspired with the

main accused persons. That earthquake had taken place on

26.01.2001 and till June 2005, petitioner was not holding his

office as Deputy Collector, Bhuj. Hence there was no question

of any conspiracy with any of the accused as the petitioner had

joined as Deputy Collector at Bhuj on 08.07.2005. It is further

argued that there was no sufficient material with regard to

conspiracy against the present petitioner. That the entire

offence along with the hatching of conspiracy was over prior to

06.10.2005 and it is not the case of the prosecution that

petitioner had played any role in commission of main offences

as alleged in the FIR. That since the date of the FIR, i.e. almost

about 9 years, the petitioner was placed under suspension due

to the pendency of the criminal case against him. Hence, it was

requested by learned advocate for the petitioner to allow the

present application. In support of his arguments Ld. Advocate

for the petitioner has relied upon the following judgments

referred in:

(1)2018 (1) GLR 159;

(2)2010 (2) SCC 398;

(3) 2019(2) GLR 1058;

(4) 2019 (3) SCC 330;

Learned Public Prosecutor for the respondent­State has

strongly objected the submissions made by learned advocate

for the petitioner and submitted that after thorough

investigation, charge­sheet was filed by the Investigating

Officer against the petitioner. That during the investigation, it

was clearly found that present petitioner had hatched criminal

conspiracy along with other co­accused persons. That it cannot

be a ground for discharge as the name of the present petitioner

was not shown in the FIR and was arraigned an accused during

the investigation. That evidence clearly shows about

involvement of the present petitioner and learned JMFC Court

as well as learned Sessions Court have rightly discussed and

appreciate the same in their orders respectively. That

investigating agency has also revealed prima facie involvement

of the present petitioner as he being a Deputy Collector of the

State Government, who has hatched criminal conspiracy with

other co­accused persons. That charge­sheet was filed along

with the statements of the witnesses and documents clearly

satisfy the charges under Sections 200, 205, 217, 465, 466,

467, 471, 472, 474, 475, 485, 406, 409 and 120(B) of the

Indian Penal Code. Learned Public Prosecutor has

distinguished judgments relied upon by the learned advocate

for the petitioner, arguing that they are not applicable to the

present case. It is further argued by Ld. Public Prosecutor that

complaint was filed by the third party against earthquake

affected Bhuj Bajar Navnirman Charitable Trust. That

prosecution has never permitted/directed to any government

officer to register the FIR. That accused No.1 had also

preferred a quashing petition with a request to quash the

impugned complaint and charge­sheet. That petition preferred

by the accused No.1 was rejected by this Court. That thereafter

accused No.1 challenged the order passed by this Court

rejecting his quashing petition before the Hon'ble Apex Court

by preferring SLP No.895 of 2010.That it is high time to

proceed with the file as it is pending since last more than 10

years. That in an order passed below Exh.46, learned

Magistrate has observed his satisfaction about possibility of

accused might have committed the offence. That further

scrutiny of the evince is not required to be made by this court.

That subsequently charge­sheet has been filed which clearly

shows the part of the conspiracy. That revision application

preferred by the petitioner being Criminal Revision Application

No. 24 of 2016 was also dismissed by the learned Additional

Sessions Judge, Kutchh at Bhuj on 10.12.2018 and now this is

a third round of this litigation. That High Court will not re

­appreciate the material placed on record. No patent error of

jurisdiction made by the learned Trial Court in dismissing the

application for discharge, which was filed by the present

petitioner. That this was the independent offence committed

by the present petitioner. That yet charge is not framed by the

concerned Trial Court. Hence, it was requested by learned

Public Prosecutor to confirm the orders passed by the learned

Trial Courts below and dismiss present application.

Having considered the facts of the case, arguments

advanced by learned advocate for the petitioner as well as

learned Public Prosecutor for the respondent­State and charge­

sheet papers produced on record, it appears that on account of

earthquake experienced in the State of Gujarat on 26.01.2001,

lots of destruction in terms of life and property had occurred

including the City of Bhuj. As a part of rehabilitation, the

affected persons were given certain benefits by Government

issuing several notifications. One of the trust namely Bhuj

Bajar Navnirman Charitable Trust was granted 17 acres of

lands by the Government with various conditions, one of which

was a trust has to obtain Collector's certificate about allottee

being earthquake affected by an order of collector, Bhuj dated

04.12.2003, land bearing Survey No.363 paiki situated at Bhuj

was alloted to the trust imposing various conditions and on

paying market value in five different installments. The

petitioner thereafter came to be transferred from panchmahal

to Bhuj and joined his new posting on 08.07.2005 when almost

all land related process including possession of land was

already completed. It appears that after two years of the said

transfer of the petitioner, Collector, Bhuj wrote a letter to the

Deputy Collector, Bhuj on 08.09.2007 directing him to carry

out a detail inquiry in respect of the irregularities committed

by the trust. The Deputy Collector i.e. present petitioner, after

carrying out the inquiry, submitted detail report on

15.09.2007. In the said report, entire situation was described

that trust has not obtained certificate from the Collector &

pointed out main irregularities of the trust. In the report it was

suggested that if someone has wrongly sought any aid, police

complaint should be filed against him. The said report was

filed subject to the further inquiry. It appears from the record

that thereafter the second interim report was submitted by the

present petitioner in a capacity of Deputy Collector, Bhuj on

29.10.2007 to the Collector Bhuj in connection with the

previous report dated 15.09.2007. In the second report, it was

mentioned that as per the order dated 04.12.2003 passed by

the Collector, as per the condition No.8, certificates were to be

issued at that relevant point of time. However, the same were

not done till date. It was further pointed out that the said task

can be carried out by the team headed by the Deputy Collector

and it can be ensured that only those persons, who are granted

certificates by the Collector, were entitled for the benefits and

otherwise, the benefits already entailed by the persons, who

were not having such certificates, can be again procured by the

Government. It also appears from the record that on

25.04.2008, final report in furtherance of the earlier reports

was submitted by the petitioner to the Collector, Bhuj. In the

final report it was pointed out the breach of trust, reiterating

the facts that Collector has not given certificate to the trust and

if the beneficiaries have wrongly obtained the certificate, a

police complaint is required to be filed. Thereafter it also

appears that petitioner was transferred from Bhuj to

Ahmedabad on 23.06.2008. The Collector, after considering of

the reports submitted by the petitioner, issued notice to

beneficiaries for the breach of conditions to the trust and

sought explanation. The Collector, Bhuj, then passed an order

on 25.03.2009, stating that allotment of the plots to the 317

beneficiaries were proper and allotment of plots for 60

beneficiaries were cancelled. It also appears that reports

submitted by the petitioner was considered by the Superior

Officers and at no point of time, any doubt was created in

respect of the reports, nor it was challenged. It also appears

that pursuant to the order dated 25.03.2009 passed by the

Collector, Bhuj, a private complaint was registered by a private

complainant namely Henry James Chako being Criminal

Inquiry Case No.26 of 2007 for the offence punishable under

Sections 200, 203, 217, 465, 466, 467, 471, 472, 474 ,475,

485, 406, 409 and 120(B) of the IPC. It also appears that

learned Magistrate was pleased to pass an order of

investigation u/s. 156(3) of Cr.P.C. to C.I.D. Crime Bhuj, and

thereafter, the FIR came to be registered as M. Case No. 1 of

2008 before the C.I.D. Crime, Bhuj Branch, Rajkot Zone. It

appears that petitioner was not named in the FIR nor any

allegations were leveled against him in the entire FIR. It also

appears that during the course of investigation, petitioner was

arrested on 24.02.2010 and meanwhile, investigation was

concluded and charge sheet was filed being charge sheet No.2

of 2010 wherein petitioner was arraigned as an accused no.6

and only cursory allegations were made against the petitioner.

That the reports prepared by the petitioner were inappropriate.

Thereafter petitioner prayed for his release on bail by

preferring Criminal Misc. Application No. 6783 of 2010 before

this Court, which was allowed by this Court vide order dated

02.08.2010. Thereafter the petitioner filed an application

Exh.46 before the learned Chief Judicial Magistrate, Kutch at

Bhuj with a request to discharge him from Criminal Case

No.1188 of 2010 but the said application was rejected by order

dated 30.01.2016 by the learned Chief Judicial Magistrate.

Being dissatisfied with the order, a criminal Revision

Application No.24 of 2016 was preferred by the present

petitioner before the court of learned Additional Sessions

Judge, Kutch at Bhuj which was also rejected by order dated

30.11.2017. Thereafter, the petitioner approached this Court

by filing Special Criminal Application No. 9982 of 2017

challenging both the orders of Ld. Magistrate as well as the Ld.

Sessions Judge. This Court vide order dated 18.01.2018 was

pleased to quash both the orders passed by the Courts below

and was pleased to remand the discharge application of the

petitioner to the Ld. Magistrate to decide it afresh. Thereafter,

the Ld. Chief Judicial Magistrate was pleased to rehear the

discharge application of the petitioner.

It appears from the submissions made by learned

advocate for the petitioner and learned Public Prosecutor for

the respondent­State that the reports submitted by the

petitioner were never challenged before any of the authorities

on the ground as alleged by the prosecution in the case.

Petitioner was never subjected to any departmental inquiry in

respect of the aforesaid reports. It appears that petitioner was

proceeded under the footing that reports prepared by the

petitioner are "Hollow and Shallow". From the charge­sheet

papers, there is nothing on record that petitioner has joined his

hands with the other co­accused persons as there was no

material to that effect. From the record it also appears that

since almost about 9 years petitioner was placed under

suspension due to the pendecy of the criminal case against

him. Petitioner approached this Court by filing Special Civil

Application No.18344 of 2015 wherein this Court was pleased

to reject the said petition vide order dated 18.01.2016 against

which L.P.A. No.972 of 2016 was filed by the present

petitioner wherein vide order dated 01.05.2018, this Court was

pleased to direct the competent authority to consider the

possibility of allowing the petitioner to perform his duties, by

rejecting the order of suspension and to give him a suitable

posting subject to final outcome of the said appeal. It is fact

that as per the order of Collector, Bhuj, petitioner had

prepared a report and submitted to the Superior Officer and

Superior Officer has never raised any objection on the said

report.

If we go through the reports and peruse the same, it

appaers that each and every issues were dealt with stating that

number of beneficiaries were yet to obtain certificate from the

Collector. It was also stated that an opportunity to all the

beneficiaries of hearing as well as producing the evidence in

support of their case were given to the beneficiaries. Petitioner

has performed his duties and also submitted a report which

cannot be termed that reports filed by the petitioner are

"Hollow and Shallow" being a part of the conspiracy, which

has hatched by the co­accused persons. If we consider the

entire papers of charge­sheet, there is no iota of evidence

suggesting that petitioner is conspired with the main accused

persons. Earthquake had taken place on 26.01.2001 and till

June 2005, petitioner was not holding his office as Deputy

Collector, hence there was no question of any conspiracy with

any of the accused as the petitioner had joined as Deputy

Collector at Bhuj on 08.07.2005. The allegations as to

conspiracy cannot be attributed to the petitioner, prima facie,

as there cannot be any meeting of mind, a role of only

attributed regarding the inquiry made by the petitioner and

reports submitted, which have also been considered by the

Superior Officer and no grievance was made. Even as per the

case of the prosecution, the alleged conspiracy came to be

hatched prior to the entrustment of the inquiry to the

petitioner, and therefore, merely assuming the fact that the

petitioner has conspired with the other co­accused persons can

not become the basis to frame charge against him. The

essential ingredients of the offence of the "criminal conspiracy"

is the agreement between two and more persons to commit an

offence as enumerated and defined under Section 120(A) of

the Indian Penal Code. Requirement of the law would be that

there should be at least a proof to that effect that there was

such agreement in existence. If we go through the material

charge­sheet papers placed on record, there is no such

material against the present petitioner in support of the said

allegations.

The Hon'ble Supreme Court in the case of John Pandian

v. State, reported in 2010 (14) SCC 129 has observed in Para

55 as under:

Inspite of the concurrent judgment of the trial and the appellate Court in this case, more particularly, against accused Nos. 2 (Sivakumar), 4(Ubaiadulla), 5 (Yusuf), 6 (Abdul Kareem), and 7 (John Pandian) we had to consider the evidence afresh as we are not satisfied with the appreciation of the evidence at the trial and appellate stage. We find from the judgment that the Courts below have committed an error in first holding the existence of conspiracy and proceeding on that basis and then taking tit­bits in evidence to suggest that those tit­bits would connect the accused with the conspiracy as the conspirators. The law on conspiracy has been stated time and again by this Court. In Major E.G. Barsay v. State of Bombay reported in AIR 1961 SC 1762, Subba Rao, J. observed:

"The gist of the offence is an agreement to break

the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act."

In Halsbury's Laws of England the definition of conspiracy is as under:

"Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied or in part express and in part implied.. and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be".

In American Jurisprudence, 2nd Edn., Vol.16, Page 129, the following definition of conspiracy is given: "A conspiracy is said to be an agreement between two or more persons to accomplish together a criminal or unlawful act or to achieve by criminal or unlawful means an act not in itself criminal or unlawful ... The unlawful agreement and not its

accomplishment is the gist or essence of the crime of conspiracy

In another case The Hon'ble Supreme Court in the case

of Keharsingh v. State (Delhi Administration) reported in

AIR 1978 SC 1883 has observed as under:

271. It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to secs­120­A and 120­B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy.

272. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will of ten rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the

two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter is. It is however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to Prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand (Criminal Law Review I974, 297 at 299 explains the limited nature of this proposition:

"Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to PG NO 185 prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; there need never have been in express verbal agreement, it being sufficient that there was "a tacit understanding between conspirators as to what should be done."

It is undisputed fact that as per the case of the

prosecution, the entire offence alongwith hatching of

conspiracy was over prior to 06.10.2005. It is not the case of

the prosecution that petitioner had played any role in

commission of main offence as alleged in the FIR and in the

charge­sheet for the offence alleged under Sections 200, 203,

217, 465, 466, 467, 471, 472, 474, 475, 485, 406, 409 and

120(B) of the IPC.

In absence of any allegations in the entire papers of the

charge­sheet in relation to the said offence, petitioner cannot

be prosecuted for such offences. Considering the fact that,

material placed on record about conspiracy is not there against

the petitioner. It appears that there was no sufficient material

placed on record by the prosecution to involve the present

petitioner with the offence in question.

This Court would like to refer a judgment of Hon'ble

Apex Court in case of Union of India Vs. Prafulla Kumar

Samal & another reported in 1979 SCR(2) 229) dealing with

the similar question, Hon'ble Apex Court has observed as

under:

We might, state, to begin with, that so far as the present case (offences committed under the Prevention of Corruption Act) is concerned it is regulated by the procedure laid down by the Criminal Law Amendment Act under which the police has to submit, charge­sheet directly to the Special Judge and the question of commitment to the Court of Session does not arise, but the Sessions Judge has nevertheless to follow the procedure prescribed for trial of sessions cases and the consideration governing the interpretation of section 227 of the Code apply mutatis mutandis to these proceedings after the charge­sheet is submitted before the Special Judge.

Before interpreting and analysing the provisions of section 227 of the Code so far as pure sessions trials are concerned, two important facts may be mentioned. In the first place, the Code has introduced substantial and far reaching changes in the Code of 1898 as amended in 1955 in order to cut out delays and simplify the procedure, has dispersed with the procedure for commitment enquiries referred to m section 206 to 213 of the Code, of 1898 and has made commitment more or less a legal formality. Under the previous Code of 1898 the Magistrate was enjoined to take evidence of the

prosecution witnesses after giving opportunity to the accused to cross­examine the witnesses 2nd was then required to hear the parties and to commit the acceded to the Court of Session unless he chose to act under section 209 and found that there was no sufficient ground for committing the accused person for trial. Under the Code the Committing Magistrate has been authorised to peruse the evidence and the documents produced by the police and commit the case straightaway to the Sessions Court if the case is one which is exclusively triable by the Sessions Court. Thus, it would appear that the legislature while dispensing with the procedure for commitment enquiry under the Code of 1898 has conferred a dual responsibility on the Trial Judge who has first to examine the case on the basis of the statement of witnesses recorded by the police and the documents filed with a view to find out whether a prima facie case for trial has been made out and then if such a case is made out to proceed to try the same. In our view the legislature has adopted this course in order to avoid frivolous prosecutions and prevent the accused from being tried of an offence on materials which do not furnish a reasonable probability of conviction. In the instant case, as the offences alleged to have been committed by the respondents fall within the provisions

of the Act, the Special Judge has been substituted for the Sessions Judge, the procedure of the Sessions Court having been applied fully to the trial of such cases. Thus, it is manifest that the accused has not only one opportunity and that too before the Sessions Judge for showing that no case for trial had been made out. This was obviously done to expedite the disposal of the criminal cases.

Secondly, it would appear that under section 209 of the Code of 1898 the question of discharge was to be considered by a Magistrate. This power has now been entrusted to a senior Judge, namely, the Sessions Judge who is to conduct the trial himself and who has to decide before commencing the trial as to whether or not charges should be framed in a particular case against the respondents The discretion, therefore, is to be exercised by a senior and more experienced Judge so as to exclude any abuse of power. In this view of the matter, it is manifest that if the Sessions Judge exercises his discretion in discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by the High Court or by this Court.

Section 227 of the Code runs thus:­

"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."

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 made out by the prosecution. In assessing this fact, it is not A 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 his function after the trial starts. 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. 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.:

The scope of section 227 of the Code was considered by a recent decision of this Court in the case of State of Bihar

v. Ramesh Singh(1) where Untwalia, J. speaking for the Court observed as follows:­

"Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor pro poses to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross­examination or rebut ted by the defence evidence; if any, cannot show that the accused committed the offence then there will be no sufficient ground for proceeding with the trial".

This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of ths Sessions

Judge in order to frame a charge against the accused. Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment to the Sessions Judge has been made out.

In the case of State of Bihar vs.Ramesh Singh reported

in (1978) 1 SCR 257, the Hon'ble Apex Court has observed as

under:

Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. if the evidence which the Prosecutor proposes to

adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross­examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.

In the case of Dilawar Balu Kurane v. State of

Maharashtra reported in (2002 (2) SCC­135), the Hon'ble

Apex Court has observed as under:

Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; 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; by and large 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 justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

In the entire charge­sheet, there is no specific role or

material attracted to the present petitioner to involve him in

the offence. There is no evidence on record to indicate that any

criminal conspiracy was hatched by the present petitioner

alongwith the accused persons. Only reports were prepared by

the petitioner as per order of the Collector, Bhuj and

thereafter, such reports were submitted. It appears that reports

submitted by the petitioner were never doubted by the

superior officer nor they were challenged, on the contrary,

under the reports submitted by the petitioner, necessary

actions were taken by the Collector, Bhuj after issuing

necessary orders.

Present petitioner was not posted at Bhuj upto

18.07.2005 till lodgment of offence was completed. Only role

played by the present petitioner was holding an inquiry as per

the directions issued by the Collector, Bhuj observing "Hollow

and Shallow" inquiry cannot made as a part of criminal

conspiracy as observed by the learned Judge below. There is

nothing on record or evidence available with the prosecution

about committing some illegal act and hatching conspiracy by

the present petitioner. Ingredients of offence of criminal

conspiracy are missing in the charge­sheet. To prove the

charge under Section 120(B) of the I.P.C. read with Section 10

of the Indian Evidence Act, prima facie, prosecution has to led

the evidence against the conspirators and to afford a

reasonable ground for the Court to believe that two or more

persons are members of conspiracy. To frame a charge of

conspiracy under Section 120B of the Indian Penal Code, read

with Section 10 of the Indian Evidence Act, 1872, there has to

be prima facie evidence against the conspirators. In the instant

case, no prima facie case is found against present petitioner

being conspirators to establish alleged conspiracy. The

evidence produced against the petitioner is neither admissible

against him nor does it show the petitioner to be a part of any

criminal conspiracy hatched with other co­accused persons.

The learned JMFC as well as learned Sessions Judge has

committed a grave error in rejecting the discharge application

without dealing with the admissibility of the same observing

"Hollow and Shallow" inquiry allegedly made by the

petitioner.

In view of the above discussions and observations,

present application deserved to be allowed and the same is

allowed accordingly.

The order dated 19.02.2018 passed in an application

below Exh. 46 in Criminal Case No. 1188 of 2010 by the Ld.

Chief Judicial Magistrate, Kutch at Bhuj as well as the order

dated 10.12.2018 passed by Ld. Additional Sessions Judge,

Kutch at Bhuj in Criminal Revision Application No.28 of 2018

stands quashed and set aside. An application Exh.46 shall be

allowed accordingly.

Rule is made absolute to the aforesaid extent. Registry is

directed to send a copy of this order to the concerned Court

through fax or email forthwith.

(B.N. KARIA, J) K. S. DARJI