Mohan Singh Chatha vs State Of Rajasthan
2023 Latest Caselaw 4726 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
                 S.B. Criminal Misc(Pet.) No. 3361/2021

Mohan Singh Chatha S/o Shri Gurucharan Singh, Aged About 39
Years, B/c Jat Sikh, R/o 34 G.g. Padampur, District Sri
Ganganagar
                                                                         ----Petitioner
                                      Versus
1.        State Of Rajasthan, Through Pp
2.        Onkar Singh S/o Shri Ranjeet Singh, B/c Jat Sikh, R/o 34
          G.g. , P.s. Chunawad, District Sri Ganganagar.
                                                                    ----Respondents


For Petitioner(s)           :     Mr. Ravi Bhansali Sr. Adv. Assisted by
                                  Mr. D.L. Rawla
For Respondent(s)           :     Mr. Mukhtiyar Khan, PP
                                  Mr. Dhirendra Singh, Sr. Advocate
                                  assisted by Mr. Umesh Kant Vyas
Present in person           :     Mr. Bhanwar Lal, Dy.S.P. C.O.
                                  Sri Ganganagar (Rural)



                 HON'BLE MR. JUSTICE FARJAND ALI

                                       Order

Pronounced On                             :::                        17/05/2023
Reserved on                               :::                        16/05/2023


BY THE COURT:-

1. The instant miscellaneous petition was filed by the

petitioner- Mohan Singh Chatha S/o Shri Gurucharan Singh under

Section 482 Cr.P.C. seeking quashing of FIR No.165/2018

registered at Police Station Chunawad, District Sri Ganganagar for

the offences under Sections 436 & 457 of the IPC and all

subsequent proceedings arising thereof qua the petitioner.

(2 of 16) [CRLMP-3361/2021]

2. The concise facts that gave rise to the lodging of the FIR in

the present matter are that the complainant approached the police

on 06.09.2018 in order to initiate criminal proceedings against five

named and 10-12 unnamed persons alleging that when he and his

family were fast asleep, they heard noises of crackers being burst

at around 02.00 a.m. He came out of his house and saw that the

Bolero Car bearing vehicle No. RJ-13 UA 0269 which was parked

in the garage was on fire. He and his family members tried to

douse the fire but the car had burnt completely by then. When

they stepped outside the gate of their house, they found a bucket

filled with petrol fuel along with a cloth soaked with petrol. A

jerrican cap which was reeking of petrol was also lying nearby and

two empty bottles of beer were also found lying on the opposite

side of the main gate of the house. Another empty beer bottle was

found lying behind the burnt vehicle. It is further alleged that

there were deep footprints of some people who would have

entered the house by climbing over the wall. It is further

expressed in the FIR that the complainant's younger brother was

married to one Sarvjeet Kaur; they got a divorce and his brother

married some one else on 03.09.2018. On the same day, i.e.

03.09.2018, it is alleged that some suspicious people came on two

vehicles and fired two shots near their house, thus, the

complainant felt that enraged by the marriage, the sons of

Sarvjeet Kaur and their companions set his vehicle on fire. An FIR

came to be lodged for commission of offences under Sections 457

and 436 of IPC. During investigation, the police reached to the

conclusion that the petitioner was the person behind the

conspiracy and instigated the other co-accused persons to commit

(3 of 16) [CRLMP-3361/2021]

the crime as his sister was involved in a matrimonial fallout with

the brother of the complainant, thus, the police made a case

against the petitioner under Section 457, 436 and 120-B of IPC.

3. Shri Ravi Bhansali, learned Senior Counsel assisted by Shri

D.L. Rawla, learned counsel appearing for the petitioner,

submitted that although the name of the petitioner does not find

place in the FIR and the matter came to be lodged in the year

2018 but subsequently, due to inimical relationship and acting

with an ulterior object to spite the petitioner, an endeavour has

been made by the complainant party in connivance with the police

to drag the name of the petitioner in this matter unnecessarily.

Learned Senior Counsel further submitted that the petitioner is a

Canadian citizen and has been residing there since 1996. At the

relevant point of time, the petitioner was in Canada and did not

visit India. The petitioner visited the country twice, once between

26.05.2018 & 14.06.2018 and another time, he visited India

between 30.03.2019 to 11.04.2019 but nothing came up in the

investigation against the petitioner till then. His arrival from

Canada and departure from India for Canada is found in the

government record.

4. It was submitted that the FIR came to be registered on

06.09.2018 at the Police Station Chunawad and the petitioner

visited India after six months of the alleged incident but no

attempt was made to interrogate him for the purpose of his

involvement in alleged commission of crime. He further submitted

that the FIR has been lodged on the basis of incorrect facts and

the complainant himself expressed doubt that the alleged incident

(4 of 16) [CRLMP-3361/2021]

was caused because of a matrimonial dispute between one Mastan

Singh and Sarvjeet Kaur, thus, the petitioner has been implicated

in this matter falsely by virtue of being their relative. Earlier, on

two occasions, a warrant under Section 37 of the Police Act was

sought by the police against the petitioner but the learned

Magistrate dismissed the prayer on both the occasions. a warrant

under Section 37 of the Police Act was sought for the third time

and the same was issued without there being any material change

in the circumstances of the case vide order dated 20.11.2020.

Despite that, the investigating agency, under the instructions of

the complainant, is hell-bent upon apprehending the petitioner

and malign his reputation. Thereafter, aggrieved by the same, the

petitioner preferred a petition under Section 482 CrPC and vide

order dated 27.01.2021, a co-ordinate bench of this Court

directed the petitioner to make a representation before the I.O.

Though the representation was made before the I.O. and he could

have interrogated the petitioner either virtually or on the basis of

the representation submitted before him but no proceedings were

conducted in pursuance of the order dated 27.01.2021, thus, in

such circumstances, the proceedings against the petitioner may be

quashed and set aside.

5. It was also submitted that a simple reading of the FIR No.

165/2018 (hereinafter referred to as the impugned FIR) reveals

that the story of the prosecution is completely based on

conjectures and surmises which was cooked up later as a second

thought with an underlying motive. It was further submitted that

the presence of the accused is a necessary requirement for

(5 of 16) [CRLMP-3361/2021]

commission of offences under Sections 436 and 457 IPC and it

cannot be established that the accused-petitioner was present in

the country at that point of time rather he was in Canada. The

ingredients required to establish commission of offence under

Section 120-B IPC are lacking in this case and thus, any further

proceedings in this matter would lead to injustice being caused to

the petitioner.

6. On the contrary, Shri Mukhtiyar Khan, learned Public

Prosecutor and Shri Dhirendra Singh, learned Senior Counsel,

assisted by Shri Uma Kant Vyas, submitted that the petitioner is

the key-conspirator of the incident. The allegation against the

petitioner is that he ignited the issue and incited the other co-

accused present in India to commit the offence.

7. Shri Bhanwar Lal, Dy.S.P. Sri Ganganagar, who had been

personally conducting investigation in the matter, admitted this

fact that at the relevant point of time, the petitioner was not in

India. He admitted that no call-data record, text messages,

conversation in any mode or on any platform are available with

the police.

8. Heard. Perused the material available on record.

9. It is an admitted and undisputed situation that the petitioner

was not in the country in the month of September, 2018 when the

alleged incident took place. The FIR has been lodged on the basis

of doubts and these doubts have been cast upon Jasveer Singh,

Narjeet Singh, Palvindra Singh Barad, Vicky Dhillon, Lali and

others and the name of the petitioner is not reflected therein. No

(6 of 16) [CRLMP-3361/2021]

doubt has been raised regarding his involvement in the incident.

The petitioner is a relative of the accused party. He has been

residing in Canada since a long time. There is no evidence, even in

the slightest, to show any direct or indirect nexus between the

petitioner and the alleged crime.

10. It is as plain as a pikestaff that for being booked for

committing house-trespass or house-breaking by the night as per

Section 457 IPC in order to commit an offence and for committing

mischief by fire or other explosive substance with an intent to

destroy property as per Section 436 IPC, the person against whom

such allegations have been levelled needs to be present at the

place of incident to commit both these crimes. When the petitioner

was clearly not present in the country, then it is out of question

that he was a participant in commission of offences as per

Sections 457 and 436 of IPC.

11. Moving on to the discussion regarding Section 120-B of IPC,

it is important to point out that in order to book a person with the

aid of Section 120-B of IPC, the ingredients essential to constitute

an offence of criminal conspiracy are that there must be an

agreement of mind between the two or more persons and that

must be in relation of committing an illegal act or an act done by

illegal means. Thus, having agreement is regarded as sine-qua-

non of criminal conspiracy. In the present case, it is very much

evident from the record that no such agreement between the

petitioner and the other accused persons has been found to exist.

In absence of any connecting evidence so as to establish the fact

of talks, conversation, letters, signatures etc. between the two, it

(7 of 16) [CRLMP-3361/2021]

cannot be presumed that the accused-petitioner was also involved

in commission of alleged incident.

12. Section 120-B of IPC prescribes the punishment for the

offence of criminal conspiracy. The offence of criminal conspiracy

is defined under Section 120-A of IPC as an agreement according

to which if two or more individuals agree to do or cause to be

done an illegal act or an act which is not illegal but is done by

employing the use of illegal means. Sections 120-A and 120-B of

IPC are reproduced below for easy reference:

120A. Definition of criminal conspiracy.-- When two or more persons agree to do, or cause to be done -

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

120B. Punishment of criminal conspiracy.-- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.

13. Hon'ble the Supreme Court had discussed the provisions

relating to criminal conspiracy in detail in the landmark case of

(8 of 16) [CRLMP-3361/2021]

Kehar Singh and Ors. Vs. State (Delhi Administration)

reported in AIR 1988 SC 1883 and it was held therein that

agreement by two or more individuals to do an illegal act or a

legal act by illegal means is quintessential to constitute the

offence of criminal conspiracy. The acts of the parties need to

reflect clear concurrence between the parties and irrelevant,

isolated acts, even if placed strategically, cannot be understood to

be in coherence if they are not conspicuous enough or lack clarity

or do not form a complete chain so as to prove the offence of

conspiracy against the accused person.

14. In the matter of Rajiv Kumar and Ors. Vs. State of U.P.

and Ors. reported in (2017) 8 SCC 791, Hon'ble the Supreme

Court has discussed the essential ingredients to constitute the

offence of criminal conspiracy. The relevant paragraph of the

above-mentioned judgment is as follows:

44. The essential ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself.

15. In a recent ruling passed by Hon'ble the Apex Court in

Parveen @ Sonu Vs. State of Haryana (Criminal Appeal No.

1571 of 2021), it was not found safe to convict the accused for the

(9 of 16) [CRLMP-3361/2021]

offence of criminal conspiracy when there was no evidence

available on record except confessional statements of co-accused

unaccompanied by any other corroborative evidence. In this

matter, the Hon'ble Division Bench acquitted the accused vide

judgment dated 07.12.2021 and it was held that the existence of

agreement between the parties for the purpose of committing an

unlawful act has to be present to prove the charge of conspiracy

within the scope of Section 120-B IPC. The relevant paragraph of

the afore-said judgment is as follows:

"12. It is fairly well settled, to prove the charge of conspiracy, within the ambit of Section 120-B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. At the same time, it is to be noted that it is difficult to establish conspiracy by direct evidence at all, but at the same time, in absence of any evidence to show meeting of minds between the conspirators for the intended object of committing an illegal act, it is not safe to hold a person guilty for offences under Section 120-B of IPC. A few bits here and a few bits there on which prosecution relies, cannot be held to be adequate for connecting the accused with the commission of crime of criminal conspiracy. Even the alleged confessional statements of the co-accused, in absence of other acceptable corroborative evidence, is not safe to convict the accused. ..."

16. It is apparent from the reading and interpretation of the

statutory stipulation under Section 120-B IPC as well as from the

various judicial pronouncements of the top Court, some of which

have been discussed above, that firstly, the principal constituent

or element required to constitute the offence of criminal

conspiracy under Section 120-B of IPC is agreement between the

parties or meeting of minds of the parties to the offence to

execute an evil design. Next, such meeting of minds or existence

of agreement needs to be proved by direct or circumstantial

(10 of 16) [CRLMP-3361/2021]

evidence. It is indeed true that it is difficult to find direct evidence

in cases pertaining to conspiracy, however, there needs to be

substantial evidence physically manifested to implicate the

accused for committing the crime of conspiracy.

17. If the offence of criminal conspiracy is being established by

way of relying on circumstantial evidence, then the fundamental

principle of circumstantial evidence which provides that the chain

of evidence needs to be so complete that no other inference other

than complicity of the accused can be drawn and a few bits here

and a few bits there cannot be considered as circumstantial

evidence to prove commission of offence of criminal conspiracy is

required to be followed. The same was reiterated in State of

Kerala Vs. P. Sugathan and Ors. reported in (2000) 8 SCC 203

wherein it was held by Hon'ble the Supreme Court that

unconnected bits and pieces scattered all over the place are not

sufficient enough to connect the accused with the crime of

criminal conspiracy. The relevant paragraphs of the afore-

mentioned judgment are as follows:

"12. We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of purpose in common between the conspirators. This Court in V.C. Shukla v. State held that to prove criminal conspiracy there must be evidence direct or circumstantial to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances giving rise to a conclusive or irresistible inference of an agreement between the two or more persons to commit an offence. As in all

(11 of 16) [CRLMP-3361/2021]

other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of the minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.

13. In Kehar Singh v. State, it was noticed that Section 120A and Section 120B IPC have brought the Law of Conspiracy in India in line with English Law by making an overt act inessential when the conspiracy is to commit any punishable offence. The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In case where criminal conspiracy is alleged, the court must enquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not to be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whether any one of the conspirators does an act or series of acts, he would be held guilty under Section 120B of the Indian Penal Code."

18. Criminal conspiracy is akin to a project of architecture where

the key-conspirator is the chief architect and the maker of the evil

design and under his instructions, the other person or persons

raise(s) the building by placing the building blocks, thus, it is

imperative to show the existence of such instructions being

relayed or communicated from the principal architect or

(12 of 16) [CRLMP-3361/2021]

conspirator to the other people who are in agreement/concur with

the architect.

19. The petitioner has been living abroad since a long time and he

was not present in the country at the time of incident as well.

There is no evidence, in any form, be it implied or explicit, direct

or indirect, oral or documentary, which can bring the accused-

petitioner under the scope of suspicion for commission of crime of

conspiracy. It cannot be established from any act of the petitioner

or from the surrounding circumstances that there was physical

manifestation of concurrence of minds of the petitioner and the

other accused persons.

20. It is apparent on the face of the record that there is possibility

of false implication and the same cannot be ruled out. No phone

connectivity, no exchange of conversation, no mail, no evidence of

exchange of conversation in any mode or manner have been

shown to exist between the accused-petitioner and the other

alleged conspirators. The allegations are manifestly tainted with

malice sans any material to corroborate, verify, substantiate,

verify or supplement the allegation, thus, the case does not fall in

the category where an offence of criminal conspiracy can be said

to be found proved. In absence of such material, the investigating

agency cannot be permitted to harass the petitioner against whom

they have no material as implication of a person in a criminal

proceeding certainly infringes his right to liberty which is

otherwise guaranteed by the Constitution of India.

21. The present facts and circumstances of the case make it one

which is squarely covered within the parameters propounded by

Hon'ble the Supreme Court in State of Haryana and Ors. Vs.

(13 of 16) [CRLMP-3361/2021]

Ch. Bhajan Lal reported in AIR 1992 SC 604. The celebrated

judgment passed by a Division Bench of Hon'ble the Apex Court in

Ch. Bhajan Lal (supra) is an authoritative precedent on the

inherent powers of High Court under Section 482 of CrPC and is

relevant till date. Hon'ble the Supreme Court held therein that

though no exhaustive list of the types of cases or set guidelines

can be formulated, however, such illustrations were listed down

after discussing the law enunciated in this context through judicial

as well as statutory authorities which would require exercise of

inherent jurisdiction by the High Court to secure the ends of

justice or prevent abuse of the process of law/any court. The

illustrations are as follows:

"105. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(14 of 16) [CRLMP-3361/2021]

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

106. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice."

22. The question that whether commission of a non-cognizable

offence is prima facie disclosed in the FIR or not can be answered

only by analysing the ingredients/requirements of the offences

alleged against the petitioner. The only test to be applied before

exercising power under Section 482 CrPC is that the High court

(15 of 16) [CRLMP-3361/2021]

has to proceed on the basis of the allegations levelled in the

complaint/FIR and the documents that have been presented

therewith and at the juncture, it is not expected from the High

Court to embark upon an enquiry to ascertain the truthfulness and

genuineness of the allegations levelled in the complaint/FIR. In

the present matter, the allegations levelled against the petitioner

do not disclose a prima facie case of commission of a non-

cognizable offence and this Court cannot permit to prosecute a

person simply on account of his personal perceptions and illusive

discernment/thoughts, thus, this Court is persuaded to quash the

proceedings against the petitioner.

23. Considering the submissions advanced by counsel for the

parties and after going through the record minutely while being

aptly guided by the principles of law enunciated by Hon'ble the

Supreme Court time and again, more particularly in the cases

referred above, this Court is of the considered view that there is

no incriminating material against the petitioner and it seems that

his name has been dragged into this matter just to chastise him.

24. In view of the above observations and taking into account

that no ingredients have been found proved to constitute the

offences alleged against the petitioner, this Court feels that

continuance of the investigation in impugned FIR would surely

amount to an abuse of process of law, therefore, to prevent the

same, the present miscellaneous petition is allowed and the

impugned FIR is quashed with respect to the petitioner.

25. Accordingly, the instant miscellaneous petition is allowed.

The FIR No.165/2018 registered at the Police Station Chunawad,

District Sriganganagar and all consequential proceedings initiated

(16 of 16) [CRLMP-3361/2021]

in pursuance thereof qua the petitioner only are quashed and set

aside. The SHO concerned is directed to prepare a closure report

and shall submit the same before the Magistrate concerned within

a period of thirty days from the date of receipt of this order.

26. That being so, the instant petition stands disposed of.

27. Stay petition also stands disposed of.

(FARJAND ALI),J mamta/-

Powered by TCPDF (www.tcpdf.org)