Madhya Pradesh High Court
Lalan Singh vs The State Of Madhya Pradesh on 13 November, 2017
1 M.Cr.C. No.8499/2017
(Lalan Singh Vs. The State of M.P. And another)
Jabalpur : 13/11/2017
Shri Pushparaj Singh Gaharwar, Counsel for the
applicant.
Shri Ajay Tamrakar, Panel Lawyer for
respondents/State.
Heard on the question of admission. This application under Section 482 of Cr.P.C. has been filed for quashing the F.I.R. in crime No.167/2016 registered at police station Pali, Distt. Umaria, for offence under Sections 420/34 and 120B of I.P.C. as well as the criminal proceedings pending against the applicant in the Court of J.M.F.C. Pali, Distt. Umaria in Criminal Case No.246/2017.
The necessary facts for the disposal of the present application in short are that one Akhilesh Kumar Dubey filed an application for appointment on compassionate ground after the death of his father. Although the mother and brother were already in Govt. job and the aspirant, namely, Akhilesh Kumar Dubey was not entitled for appointment on compassionate ground, but still the application was forwarded by the applicant, who was working on the post of Principal.
It is submitted by the Counsel for the applicant that the application for appointment on compassionate ground was returned by the Superior Officers with a direction to submit additional documents and thereafter, the application was submitted in the office of Asstt. Commissioner directly and thus, there was no conspiracy between the applicant and the co-accused Akhilesh Dubey.
2 M.Cr.C. No.8499/2017(Lalan Singh Vs. The State of M.P. And another) Per contra, it is submitted by the Counsel for the State that the allegations against the applicant is that of hatching conspiracy with the main accused Akhilesh Dubey. The father of Akhilesh Dubey died in harness and since, the mother and brother of Akhilesh Dubey were already in Govt. job, therefore, as per the existing policy, he was not entitled for appointment on compassionate ground, but still the application was forwarded and ultimately Akhilesh Dubey succeeded in securing the Govt. job dehors the policy. The conspiracy is a disputed question of fact which can be proved by leading evidence. Further, it is well established principle of law that generally there cannot be a direct evidence to establish conspiracy and only the circumstances speak for themselves and in the present case, forwarding an application of a person, who is otherwise not eligible for appointment on compassionate ground, is sufficient to warrant prosecution of the applicant.
Heard the learned Counsel for the parties. The Supreme Court in the case of State of Karnataka Vs. J. Jayalalitha reported in (2017) 6 SCC 263 has held as under :
168. While dwelling on the concept of conspiracy, this Court in Mohd. Husain Umar Kochra v. K.S. Dalipsinghji (SCC pp. 435-36, para 15) held that in conspiracy, agreement is the gist of the offence and a common design and common intention in furtherance of the common scheme is necessary. Each 3 M.Cr.C. No.8499/2017 (Lalan Singh Vs. The State of M.P. And another) conspirator plays his separate part in one integrated and united effort to achieve the common purpose. It was enounced that conspiracy may develop in successive stages and new techniques may be invented and new means may be devised, and a general conspiracy may be a sum up of separate conspiracies having a similar general purpose, the essential elements being collaboration, connivance, jointness in severalty and coordination.
(emphasis supplied)
169. Noor Mohammad Mohd. Yusuf Momin (SCC pp. 699-700, para 7), encountered a fact situation witnessing a clash between the neighbours on a very trivial incident of a cow blocking a passage.
Murderous assaults followed in which the appellant along with 4/5 associates were involved. The appellant along with others were found guilty under Sections 302/34 IPC. This Court held that participation is the gravamen of common intention but under Section 109, abetment can be attracted even if the abettor is not present. Qua conspiracy, it was exposited that it postulates an agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. It was elucidated that conspiracy is of wider amplitude than abetment though there is a close association between the two. It was ruled that conspiracy can be proved by circumstantial evidence and proof thereof is largely inferential, founded on facts and this is because of the difficulty in securing direct evidence of criminal conspiracy. It was explicated that once a reasonable ground is shown to suggest that two or more persons have conspired, then anything done by one 4 M.Cr.C. No.8499/2017 (Lalan Singh Vs. The State of M.P. And another) of them in reference to their common intention becomes relevant in proving the conspiracy and the offences committed pursuant thereto.
(emphasis supplied)
170. In Saju v. State of Kerala (SCC p. 383, para 7), it was propounded that to attract Section 120-B IPC, it is to be proved that all the accused had the intention and they had agreed to commit the crime. It was assumed that conspiracy is hatched in private and in secrecy, for which direct evidence would not be readily available. It was ruled that it is not necessary that each member to a conspiracy must know all the details of all the conspiracy.
(emphasis supplied)
171. This Court recalled its observations in Yash Pal Mittal v. State of Punjab (SCC p. 543, para 9) that there may be so many devices and techniques adopted to achieve the common goal of the conspiracy, and there may be division of performances in the chain of actions with one object to achieve the real end, of which every collaborator need not be aware but in which each one of them would be interested. There must be a unity of object or purpose but there may be plurality of means, sometimes even unknown to one another, amongst the conspirators. The only relevant factor is that all means adopted and illegal acts done must be to fulfil the object of the conspiracy. Even if some steps are resorted to by one or two of the conspirators without the knowledge of the others, it will not affect the culpability of those others when they are associated with the object of the conspiracy.
172. It was noted that as an exception to the settled position of law, an act or action of one of the accused cannot be used as evidence 5 M.Cr.C. No.8499/2017 (Lalan Singh Vs. The State of M.P. And another) against another, Section 10 of the Evidence Act provided otherwise. To attract the applicability of Section 10, the Court must have reasonable ground to believe that two or more persons had conspired together for committing an offence and then the evidence of action or statement made by one of the accused could be used as evidence against the other.
(emphasis supplied)
173. In Ram Narayan Popli v. CBI, the executives of Maruti Udyog Ltd. were charged with criminal conspiracy to siphon off its funds in favour of A-5 and were prosecuted under Sections 13(1)(c) and 13(2) of the 1988 Act along with Sections 120-B, 420, 409, 467 and 471 IPC. This Court reiterated (SCC pp. 778- 79, paras 342 & 343) that the essence of a criminal conspiracy, is unlawful combination and ordinarily the offence is complete when the combination is framed and that the law making conspiracy a crime, is designed to curb the immoderate power to do mischief which is gained by combination of the means. It was held that the offence of criminal conspiracy has its foundation in an agreement to commit an offence. A conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act by unlawful means. The agreement which is the quintessence of criminal conspiracy can be proved either by direct or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available.
174. The following excerpt from Halsbury's Laws of England, 4th Edn., Vol. 11, p. 44, para 58 was relied upon: (Ram Narayan case, SCC p. 779, para 344) 6 M.Cr.C. No.8499/2017 (Lalan Singh Vs. The State of M.P. And another) "344. ... '58. Meaning of conspiracy.-- ... The conspiracy arises and the offence is committed as soon as the agreement is made; 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. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or at the same place. It is necessary to show the meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with each other.' "
175. Reference was made to R. v. Murphy, where Coleridge, J., was of the view (ER p.
508) that although common design is the root of the charge, it is not necessary to prove that these two parties had come together and actually agreed in terms to have the common design and to pursue it by common means and so to carry it into execution, as in many cases of established conspiracy, there are no ways of proving any such thing. If it is found that these two persons pursued by their acts, the same object, often by the same means, one performing one part of an act and the other another part of the same act so as to complete it, with a view to attain the object which they are pursuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object.
(emphasis supplied)
176. The overwhelming judicial opinion thus is that a conspiracy can be proved by 7 M.Cr.C. No.8499/2017 (Lalan Singh Vs. The State of M.P. And another) circumstantial evidence as mostly having regard to the nature of the offending act, no direct evidence can be expected.
177. In Firozuddin Basheeruddin v. State of Kerala (SCC pp. 607-08, paras 26 & 27), it was ruled that loosened standards prevail in a conspiracy trial regarding admissibility of evidence. Contrary to the usual rule, in conspiracy prosecution, any declaration by one conspirator, made in furtherance of a conspiracy and during its pendency, is admissible against each co-conspirator. Despite the unreliability of hearsay evidence, it is admissible in conspiracy prosecutions. It was observed that thus the conspirators are liable on an agency theory for statements of co-conspirators just as they are for the overt acts and crimes committed in their confederates.
(emphasis supplied)
178. In Mir Nagvi Askari v. CBI (SCC pp. 665-66, para 62), it was enounced that courts in deciding on the existence or otherwise, of an offence of conspiracy must bear in mind that it is hatched in secrecy and that it is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons had taken part are relevant. To prove that the propounders had expressly agreed to commit the illegal act or had caused it to be done, may be proved by adducing circumstantial evidence and/or by necessary implications.
(emphasis supplied)
179. The following extract from Russell on Crimes, 12th Edn., Vol. 1 was quoted with approval: (Mir Nagvi case, SCC p. 666, para
63) 8 M.Cr.C. No.8499/2017 (Lalan Singh Vs. The State of M.P. And another) "63. ... 'The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough.' "
(emphasis in original)
180. It recalled its conclusions in Kehar Singh v. State (Delhi Admn.), that to establish the offence of criminal conspiracy, it is not required that a single agreement should be entered into by all the conspirators at one time. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or means by which the common purpose is to be accomplished. On the touchstone of the above adumbrated legal postulations, the evidence on records would have to be assayed to derive the deduction as logically permissible.
Thus, it is clear that each conspirator plays a specific and separate role and, therefore, the entire allegations are to be considered as a whole and thereafter it has to be considered that whether the person had hatched conspiracy with others or not? It is a complex disputed question of fact. The role of an individual cannot be considered in isolation with the allegations made against the other persons.
Thus, this Court is of the considered opinion that when 9 M.Cr.C. No.8499/2017 (Lalan Singh Vs. The State of M.P. And another) there is a charge under Section 120B of I.P.C., then the role played by the applicant cannot be considered in isolation with the allegations levelled against the other co-accused persons. Whether there was meeting or not and whether the accused persons had acted in furtherance of that design or not, cannot be decided while exercising power under Section 482 of Cr.P.C.
Considering the allegations made against the applicant, this Court is of the considered view that the complex disputed question of fact can be decided only after the evidence is recorded.
At this stage, it cannot be said that there is no evidence against the applicant. Thus, the F.I.R. As well as the criminal proceedings pending in the Court of J.M.F.C. Pali, Distt. Umaria in Criminal Case No.246/2017 cannot be quashed.
Hence, this application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge Arun*