Allahabad High Court
Awadhesh Agarwal vs State Of U.P. And Another on 20 September, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:153730
AFR
Judgment reserved on 03.09.2024
Judgment delivered on 20.09.2024
Court No. - 64
Case :- APPLICATION U/S 482 No. - 21392 of 2022
Applicant :- Awadhesh Agarwal
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Aditya Prakash Singh, Sushil Shukla
Counsel for Opposite Party :- Anil Kumar Srivastava (Senior Adv.), G.A., Namit Srivastava, Ram Bahadur, Vikas Srivastava
With
Case :- APPLICATION U/S 482 No. - 37671 of 2022
Applicant :- Awadhesh Agarwal
Opposite Party :- State of U.P.
Counsel for Applicant :- Aditya Prakash Singh, Sushil Shukla
Counsel for Opposite Party :- G.A.,Vikas Srivastava
Hon'ble Samit Gopal, J.
A. These two petitions/applications under Section 482 Cr.P.C. are connected together vide order dated 20.01.2023 passed by a co-ordinate Bench of this Court as they are of the same applicant/accused and have common features of origin in themselves and as such are decided by a common order.
B. Criminal Misc. 482 Cr.P.C. Application No. 21392 of 2022
1. Heard Sri Sushil Shukla, learned counsel for the applicant, Sri Anil Srivastava, learned Senior Advocate assisted by Sri Vikas Srivastava and Sri Namit Srivastava, learned counsels for the opposite party no.2, Sri Ajay Singh, learned A.G.A-I for the State and perused the records.
2. The present application under Section 482 Cr.P.C. has been filed by the applicant Awadhesh Agarwal with the following prayers:-
"It is, therefore most respectfully prayed that this Hon'ble Court may be pleased to allow this application and quash the impugned order dated 30.06.2022 as passed by the trial court rejecting discharge plea of the accused-applicant in terms of S. 227 CrPC as well as entire criminal proceedings of Session Trial No. 541 of 2018 (arising out of Case Crime No. 256 of 2015) u/s 307, 34, 120-B IPC, P.S. MM Gate, District Agra (State Vs. Vishal and others) pending currently in the court of Ld. Addl. District and Session Judge, Court No. 23, Agra qua him since the continuation of such proceedings as against him amounts to a clear abuse of the process of the court.
It is further prayed that this Hon'ble Court may also be pleased to quash the impugned order dated 12.10.2022 passed by aforesaid Ld. Trial court whereby and where under the charges u/s 307 IPC r/w S. 34 and 120-B IPC have been framed/drawn against the accused-applicant.
And by way of interim measure and during pendency of present application before this Hon'ble Court, it is further prayed that this Hon'ble Court may be pleased to stay further the impugned criminal proceedings of Session Trial No. 541 of 2018 (arising out of Case Crime No. 256 of 2015) u/s 307, 34, 120-B IPC, P.S. MM Gate, District Agra (State Vs. Vishal and others) pending currently in the court of Ld. Addl. District and Session Judge, Court No. 23, Agra pending as against the accused-applicant only, otherwise he shall suffer irreparable loss."
3. The present case started on a FIR which was lodged by Nem Kumar Jain on 22.11.2015 at 23:00 hours under Sections 307/34 IPC in connection with an incident which took place on the same day i.e. 22.11.2015 at about 21.45 hours against unknown persons alleging therein that he has a shop in the name of C.V. Chain's Ltd. at Joota Ram Phatak, Kinari Bazar, Police Station Kotwali and is permanent resident of Mukhani Gali, Gud Ki Mandi, Police Station M.M.Gate and his elder brother Dhan Kumar Jain sits with him in the shop. On 22.11.2015 at about 9.30 p.m. his elder brother after closing the shop left from there on a Swift Car and was coming to the house by passing Sidhi Bazar and when he reached Mukhani Gali at his house then his gunner Kushal Kumar opened the door of the car and his brother Dhan Kumar Jain came out from car at about 9.45 p.m. and at that time 4-5 unknown persons on two motorcycles came from Phulatti Bazar side and in front of the house of his brother shot him with an intention to murder him. While firing they ran towards gud ki mandi. He immediately took his brother on the car to G.G. Nursing Home and got him admitted where his treatment is going on. He suspects that due to his work of jewellery the persons who have been attacking them since last two years are involved in the present incident in which 4-5 persons have fired upon jewellers and for their share they have tried to murder his brother. A report be lodged against unknown persons and they be punished.
4. The police on investigating the matter apprehended one person Yogesh Gautam on 24.11.2015 who gave his statement that Dhan Kumar was shot by Pramod S/o Devi Singh and at that time private gunner of Dhan Kumar had also fired which hit the left thigh of Pramod Kumar who is also getting his treatment done in Agra.
5. An application dated 26.11.2015 was given by Nem Kumar Jain of which Vikas Jain was the scribe to the police alleging therein that on 26.11.2015 his brother Dhan Kumar Jain was attacked by unknown persons regarding which he had got a FIR lodged. His family members saw the CCTV footage of the camera installed at police station Kotwali which covers the Phavvara Tiraha of Kinari Bazar of the date and time of the incident in which accused involved in the incident can be seen since the same accused are also seen in the CCTV recording of the camera installed at his house. From the CCTV footage it can be seen that along with the accused persons, Vishal Agarwal is also present. He has old enmity with Vishal Agarwal. Some of his known persons informed him that along with Vishal Agarwal, Awadhesh Agarwal, Narendra Kumar Goyal @ Lala and Ravi @ Tamatar and 5-6 other miscreants are involved. He has an old enmity with Awadhesh Agarwal. Thus legal action be taken against the said persons.
6. The investigation concluded and charge sheet dated 27.12.2015 was submitted against Ravi @ Tamatar, Vishal Agarwal, Narendra Goyal @ Lala, Awadhesh Agarwal and Suneel Verma for offences under Sections 307/34, 120-B IPC.
7. The court concerned vide its order dated 19.1.2016 took cognizance against Vishal Agarwal, Narendra Goyal @ Lala, Ravi @ Tamatar and Suneel Verma. The said order was challenged by the applicant before this Court by filing Criminal Misc. Application U/S 482 No. 21184 of 2016 (Awadhesh Agarwal Vs. State of U.P. and another) in which a coordinate Bench of this Court vide order dated 20.7.2016 while refusing to quash the proceedings of the said case permitted the applicant to file discharge application before court concerned which was directed to be considered by the court concerned in accordance with law. The applicant then filed an application for discharge dated 11.11.2021 under Section 227 Cr.P.C. with the prayer that the same be allowed and he be discharged for offences under Section 120-B IPC read with 307 IPC. The said discharge application stands rejected vide order dated 30.6.2022 passed by Addl. District and Sessions Judge, Court No.23, Agra which was numbered as Application No.33-Kha in the records of the trial court. During the pendency of the present application under Section 482 Cr.P.C., the court of the Additional Sessions Judge, Court No. 30, Agra vide order dated 12.10.2022 framed charges against the applicant and four other co-accused persons under Sections 307 readwith 34 IPC and 120-B IPC, subsequent to which an amendment application dated 29.03.2023 was filed on behalf of the accused applicant with the prayer to allow the same and permit adding the subsequent development which was allowed vide order dated 04.07.2024 by this Court and an amended petition was also filed and place by the office through its report dated 05.08.2024. The learned counsels for the opposite party No. 1 / State of U.P. and opposite party No. 2 / first informant submitted that they do not intend to file any rebuttal to the amendment/amended petition and the same is recorded in the order dated 06.08.2024 of this Court. The present application under Section 482 Cr.P.C. has thus been filed before this Court with the prayers as aforesaid.
8. Learned counsel for the applicant submitted as under:-
(I). The FIR is lodged against unknown persons and the applicant is not named therein.
(II). The implication of the applicant in the present case is subsequently on the basis of an application dated 26.11.2015 moved after four days of lodging of the FIR and even therein his naming is on the basis of suspicion only by stating that he has an old enmity with the informant.
(III). There is nothing on record to show that the applicant is involved in the present matter.
(IV). The applicant is being implicated in the present matter only on the basis of suspicion of conspiring with other accused persons to commit the said offence.
(V). The alleged witnesses in the present matter namely Nem Kumar Jain/first informant, Dhan Kumar Jain/alleged injured, Smt. Shalini Jain/wife of the injured, Tribhuwan Nath Chaturvedi, Vipin Bansal, Pradeep Bansal, Anil Goyal and Abhishek Jain do not in any manner implicate the applicant in the present matter. In so far as Tribhuwan Nath, Vipin Bansal, Pradeep Bansal and Abhishek Jain are concerned, their evidence is hearsay only.
(VI). The statement of Anil Kumar although was recorded under Section 164 Cr.P.C. also but he only states of the fact that there were some strained relations between Dhan Kumar Jain and the applicant due to business in which he had mediated but the matter could not be settled. He had told the applicant Awadhesh Agarwal that Dhan Kumar Jain does not want to give material to him on which Awadhesh Agarwal had said that he will look to it.
(VII). On behalf of the applicant the following of the Apex Court have been relied upon:-
A.- For law relating to conspiracy under Section 120-B IPC
(i) State of Karnataka v. L. Muniswamy : (1977) 2 SCC 699 "7. The second limb of Mr Mookerjee's argument is that in any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents. So long as there is some material on the record to connect the accused with the crime, says the learned counsel, the case must go on and the High Court has no jurisdiction to put a precipitate or premature end to the proceedings on the belief that the prosecution is not likely to succeed. This, in our opinion, is too broad a proposition to accept. Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that:
"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."
This section is contained in Chapter 18 called "Trial Before a Court of Session". It is clear from the provision that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of the New Code, which corresponds to Section 561-A of the Code of 1898, provides that:
"Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or other wise to secure the ends of justice."
In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.
8. Let us then turn to the facts of the case to see whether the High Court was justified in holding that the proceedings against the respondents ought to be quashed in order to prevent abuse of the process of the court and in order to secure the ends of justice. We asked the State counsel time and again to point out any data or material on the basis of which a reasonable likelihood of the respondents being convicted of any offence in connection with the attempted murder of the complainant could be predicated. A few bits here and a few bits there on which the prosecution proposes to rely are woefully inadequate for connecting the respondents with the crime, howsoever skilfully one may attempt to weave those bits into a presentable whole. There is no material on the record on which any tribunal could reasonably convict the respondents for any offence connected with the assault on the complainant. It is undisputed that the respondents were nowhere near the scene of offence at the time of the assault. What is alleged against them is that they had conspired to commit that assault. This, we think, is one of those cases in which a charge of conspiracy is hit upon for the mere reason that evidence of direct involvement of the accused is lacking. We have been taken through the statements recorded by the police during the course of investigation and the other material. The worst that can be said against the respondents on the basis thereof is that they used to meet one another frequently after the dismissal of Accused 1 and prior to the commission of the assault on the complainant. Why they met, what they said, and whether they held any deliberations at all, are matters on which no witness has said a word. In the circumstances, it would be a sheer waste of public time and money to permit the proceedings to continue against the respondents. The High Court was therefore justified in holding that for meeting the ends of justice the proceedings against the respondents ought to be quashed.
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10. On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D.D. Ghadigaonkar [AIR 1960 SC 1113 : 1960 Cri LJ 1499 : 62 Bom LR 915] and Century Spinning & Manufacturing Co. v. State of Maharashra [AIR 1972 SC 545 : 1972 Cri LJ 3291972 SCC (Cri) 495] show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial. In Vadilal Panchal case, Section 203 of the old Code was under consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in his judgment no sufficient ground for proceeding with the case. To an extent Section 327 of the new Code contains an analogous power which is conferred on the Sessions Court. It was held by this Court, while considering the true scope of Section 203 of the old Code that the Magistrate was not bound to accept the result of an enquiry or investigation and that he must apply his judicial mind to the material on which he had to form his judgment. These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible.
11. We are therefore in agreement with the view of the High Court that the material on which the prosecution proposes to rely against the respondents is wholly inadequate to sustain the charge that they are in any manner connected with the assault on the complainant. We would, however, like to observe that nothing in our judgment or in the judgment of the High Court should be taken as detracting from the case of the prosecution, to which we have not applied our mind, as against Accused 1 to 9. The case against those accused must take its due and lawful course."
(ii) CBI v. K. Narayana Rao : (2012) 9 SCC 512 "24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.
25. In the earlier part of our order, first we have noted that the respondent was not named in the FIR and then we extracted the relevant portions from the charge-sheet about his alleged role. Though statements of several witnesses have been enclosed along with the charge-sheet, they speak volumes about others. However, there is no specific reference to the role of the present respondent along with the main conspirators.
26. The High Court while quashing the criminal proceedings in respect of the respondent herein has gone into the allegations in the charge-sheet and the materials placed for his scrutiny and arrived at a conclusion that the same do not disclose any criminal offence committed by him. It also concluded that there is no material to show that the respondent herein joined hands with A-1 to A-3 for giving false opinion. In the absence of direct material, he cannot be implicated as one of the conspirators of the offences punishable under Section 420 read with Section 109 IPC. The High Court has also opined that even after critically examining the entire material, it does not disclose any criminal offence committed by him. Though as pointed out earlier, a roving enquiry is not needed, however, it is the duty of the Court to find out whether there is any prima facie material available against the person who has been charged with an offence under Section 420 read with Section 109 IPC."
(iii) Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra : (2008) 10 SCC 394 "17. In the light of the aforenoted principles, we may now consider whether or not in the present case the High Court was justified in declining to discharge the appellant. However, before adverting to the circumstances relied upon by the prosecution in support of its primary charge that a conspiracy had been hatched to eliminate Kunal, the essential features of the offence of conspiracy need to be noticed.
18. Section 120-A IPC defines criminal conspiracy. The section reads as under:
"120-A. 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."
19. Section 120-B IPC provides for punishment for an offence of criminal conspiracy.
20. The basic 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. Yet, as observed by this Court in Shivnarayan Laxminarayan Joshi v. State of Maharashtra [(1980) 2 SCC 465 : 1980 SCC (Cri) 493] a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the common intention of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible.
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25. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable, even if an offence does not take place pursuant to the illegal agreement.
26. Bearing in mind the essential features of the offence of criminal conspiracy enumerated above, we may advert to the facts of the instant case. The relevant portion of the charge-sheet filed against all the accused reads as follows:
"... Though son of the complainant, Kunal Parihar got married with Accused 4 Hema Joshi, his family again arranged for another marriage with one Meenal of Baroda on 24-2-2001. Engagement ceremony took place and date of marriage was fixed as 30-11-2001. This fact came to the knowledge of Accused 1, 2, 3, 4, 5, 11 and 12. Therefore, in order to teach a lesson to the complainant they hatched a conspiracy to kill his only son Kunal. Accordingly, Accused 1 contacted Accused 6, Suresh Jhajara and further informed him that the complainant and his son should be taught a lesson as Kunal Parihar betrayed him and hence, should be taught a lesson and further asked him to carry out future plan.
Accused 6 contacted Accused 7 and included him in the aforesaid conspiracy. Accused 1 to 4 contacted Accused 16 through Accused 6 and 7. Accused 16 (sic) is a notorious criminal. Criminal cases are pending against him in the District Court of Pune. In the offence regarding body, Accused 7 contacted him through witness Atul Lohar in order to carry out the aforesaid plan. Accused 1 gave Rs 80,000 to Accused 7 via Accused 6. Accused 16 in order to cause hurt to Kunal introduced Accused 8, 9, 10, 13, 14 and 15 to Accused 7. Accused 7 asked Accused 8, 9, 10, 13, 14 and 15 to join the aforesaid conspiracy and in order to carry out the aforesaid conspiracy successfully, Accused 7 purchased one Maruti Car No. MH 14 D 3027 from witness Afzal Khan Ibrahim Khan, resident of Dehu Road, and also Motorcycle No. MH 14 M 5786. By using the aforesaid vehicles Accused 7 to 10 and 13 to 15 have committed the ghastly murder of Kunal. In order to carry out the aforesaid conspiracy successfully Accused 7 has used revolver, khukri, sickle, sword and iron bar and supplied it to Accused 8 to 10 and from 13 to 15. By using the aforesaid weapons, the aforesaid persons have assaulted Kunal Parihar due to which he sustained grave injuries and ultimately died. Hence, Accused 1, 2, 3, 4, 5, 6, 7, 11 and 12 have been charged under Sections 302 and 120-B IPC and Accused 7, 8, 9, 10, 13, 14, 15 and 16 have been charged under Section 302 read with Section 120-B IPC and under Sections 3 and 25 of the Arms Act."
(emphasis supplied) Thus, according to the prosecution version, when Accused A-1 to A-5, A-11 and A-12 learnt about the marriage of Kunal with some other girl, they hatched a conspiracy to teach a lesson to the father of Kunal, the deceased. In furtherance thereof, Accused A-1 contacted one of the assassins to kill Kunal. It is alleged that Accused A-1 to A-4 also contacted Accused A-16, a notorious criminal. In other words, the gravamen of the accusation by the prosecution is that it is Accused A-1 to A-5, A-11 and A-12 who had hatched the conspiracy; acted in concert to give effect to their plan to get Kunal murdered and in pursuance of the aforesaid criminal conspiracy, the other accused facilitated commission of the said crime. It is common ground that the case of the prosecution is based on circumstantial evidence, namely, threatening calls from the side of the accused to the complainant, his family and the earlier relationship between the deceased and Accused 4.
27. From the material on record, it is manifestly clear that it was the family members of the appellant, one of their employees and a friend who had all allegedly entered into an agreement to eliminate the deceased. However, as noted above, Accused A-1, A-2, A-4, A-11 and A-12 already stand discharged from the charges framed against them under Sections 120-B and 302 IPC vide orders dated 7-7-2006 and 14-5-2007, passed by the High Court and the Sessions Judge respectively. While discharging the said accused, both the courts have come to the conclusion that there is no material on record to show that they had hatched a conspiracy to commit murder of Kunal. Thus, the stand of the prosecution to the effect that the parents, sister and friends of the appellant had entered into a criminal conspiracy stands rejected by virtue of the said orders of discharge. Furthermore, in its order dated 7-7-2006, the High Court has opined that the circumstances, relied upon by the prosecution, even if accepted in their entirety, only create a suspicion of motive, which is not sufficient to bring home an offence of murder. As noted above, the State's petition for special leave against the said judgment has already been dismissed."
(iv) Saju v. State of Kerala : (2001) 1 SCC 378 "12. Regarding the circumstance relating to the existence of motive, PW 9 who is the sister of Ms Jameela deposed that the deceased had told her that the pregnancy conceived by her was through the appellant. According to her the appellant admitted the paternity of the conceived child in the initial stage but denied the paternity attributed to him six months thereafter. The trial court found that "in the answers elicited in the further cross-examination also it would appear that her version about the first source of knowledge about the pregnancy of Jameela was inconsistent and unnatural".
Dealing with her statement, the trial court observed that PW 9 had no occasion to meet Jameela as she was not visiting her mother's house and also because the second accused had consented for the marriage. The only evidence regarding the appellant being responsible for the conception of the child is the testimony of Nabeesa (PW 6), the mother of the deceased. She had stated that she came to know about the pregnancy of Jameela only when she tried to fix her marriage with some person and Jameela told her that she was in love with the appellant. It is not discerned from the testimony of PW 6 that Jameela had conceived the child from the appellant. What the witness stated was only that Jameela and the appellant were in love and they knew each other for a period of two years before the death of Jameela. According to her the marriage between the deceased and the appellant could not be solemnised as they belonged to different religions. She never saw the deceased and the appellant talking as according to her they used to talk only in her absence. The appellant is stated to have visited the house of the aforesaid witness on 15-5-1991 and assaulted the deceased regarding which report Exhibit P-4 was lodged. According to her Jameela was killed while returning from the hospital where she had gone for a check-up. Nowhere in her testimony Nabeesa (PW 6) stated that the appellant wanted the child, conceived by Jameela, to be aborted. There is no positive evidence proving or suggesting that the appellant was responsible for the pregnancy of the deceased. In the absence of evidence regarding the circumstance attributing the pregnancy of the deceased to the appellant and his insistence for abortion of the child, the important circumstance of motive cannot be held to have been proved. The trial court, therefore, rightly did not rely upon the testimony of PW 9 Amina with respect to the existence of the said circumstance. The testimony of PW 18 Meharban who is the sister-in-law of the deceased also does not inspire confidence to link the appellant with the pregnancy of the deceased. PW 2 who is the neighbour of the deceased stated that she had known about the pregnancy from Jameela herself. According to her the appellant had quarrelled with Jameela in connection with the pregnancy. Despite denial of the appellant Jameela was stated to have asserted that she did not have sexual intercourse with anyone other than the appellant. In her cross-examination the witnesses stated that the appellant never threatened Jameela. She admitted that the appellant had apparently told Jameela that he was not the father of the child in her womb. The witness conceded that she had no direct knowledge about the relationship of the deceased with the appellant. PW 3 who is a neighbour and husband of PW 2 was declared hostile as he did not support the case of the prosecution. It was deposed by him that he was not aware that Jameela had requested the appellant to marry her. PW 2 stated that the appellant had categorically stated that he was not responsible for the pregnancy as someone else was responsible for it. The courts below, therefore, were not justified in holding this circumstance proved for the existence of criminal conspiracy to commit the crime of murder of the deceased. In the absence of any evidence suggesting the existence of a circumstance of insistence by the appellant for abortion, an important link in the chain of circumstances attributed against him is missing. Even otherwise, motive by itself cannot be a proof of conspiracy. In Girja Shankar Misra v. State of U.P. [1994 Supp (1) SCC 26 : 1994 SCC (Cri) 214 : AIR 1993 SC 2618] though it was found that there were serious misunderstandings between the deceased and the appellant because of the illicit relationship between the appellant and the wife of the deceased, yet the Court held that despite the fact that the appellant had a motive, he could not be held responsible for hatching a conspiracy.
13. The other important circumstance relied on by the prosecution and believed both by the trial court and the High Court is the presence of the appellant in the company of Accused 1 near or about the place of occurrence on the date of incident. It is true that a number of witnesses have deposed that they had seen both the accused together on the date of occurrence but it is equally true that such meeting was not unusual as admittedly they were working together in the plantation. Mere meeting would by itself not be sufficient to infer the existence of a criminal conspiracy. There is no suggestion, much less legal evidence to the effect that both the accused were so intimate which would have compelled Accused 1 to agree to be a conspirator for the killing of the deceased at the instance of the appellant. Accused 1 is also not stated to be a habitual criminal. There is no suggestion of Accused 1 being hired for the purpose of killing the deceased."
B.- Powers of discharge under Section 227 Cr.P.C.
(i) Kanchan Kumar v. State of Bihar : (2022) 9 SCC 577 "Legal provision and precedents
12. Section 227CrPC relating to discharge is as under:
"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
13. The threshold of scrutiny required to adjudicate an application under Section 227CrPC, is to consider the broad probabilities of the case and the total effect of the material on record, including examination of any infirmities appearing in the case. In Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] it was noted that : (SCC p. 9, para 10) "10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
(emphasis supplied)
14. In Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371], the Court cautioned against accepting every document produced by the prosecution on face value, and noted that it was important to sift the evidence produced before the Court. It observed that : (SCC pp. 376-77, para 21) "21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
***
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."
(emphasis supplied)
15. Summarising the principles on discharge under Section 227 CrPC, in Dipakbhai Jagdishchandra Patel v. State of Gujarat [Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547 : (2020) 2 SCC (Cri) 361], this Court recapitulated : (SCC p. 561, para 23) "23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence."
(emphasis supplied)"
(ii) Ram Prakash Chadha v. State of U.P. : 2024 SCC OnLine SC 1709 "22. In cases, where it appears that the said offence(s) is one triable exclusively by the Court of Session, the Magistrate shall have to commit the case to the Court of Session concerned following the prescribed procedures under Cr. P.C. In such cases, though it carries an accusation as aforementioned still legislature thought it appropriate to provide an inviolable right as a precious safeguard for the accused, a pre-battle protection under Section 227, Cr. P.C. Though, this provision is couched in negative it obligated the court concerned to unfailingly consider the record of the case and document submitted therewith and also to hear the submissions of the accused and the prosecution in that behalf to arrive at a conclusion as to whether or not sufficient ground for proceeding against the accused is available thereunder. Certainly, if the answer of such consideration is in the negative, the court is bound to discharge the accused and to record reasons therefor. The corollary is that the question of framing the charge would arise only in a case where the court upon such exercise satisfies itself about the prima facie case revealing from "the record of the case and the documents submitted therewith" against the accused concerned. In short, it can be said in that view of the matter that the intention embedded is to ensure that an accused will be made to stand the ordeal of trial only if 'the record of the case and the documents submitted therewith' discloses ground for proceeding against him. When that be so, in a case where an application is filed for discharge under Section 227, Cr. P.C., it is an irrecusable duty and obligation of the Court to apply its mind and answer to it regarding the existence of or otherwise, of ground for proceeding against the accused, by confining such consideration based only on the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf. To wit, such conclusion on existence or otherwise of ground to proceed against the accused concerned should not be and could not be based on mere suppositions or suspicions or conjectures, especially not founded upon material available before the Court. We are not oblivious of the fact that normally, the Court is to record his reasons only for discharging an accused at the stage of Section 227, Cr. P.C. However, when an application for discharge is filed under Section 227, Cr. P.C., the Court concerned is bound to disclose the reason(s), though, not in detail, for finding sufficient ground for rejecting the application or in other words, for finding prima facie case, as it will enable the superior Court to examine the challenge against the order of rejection.
**********************
24. From the above extracted portion, it is evident that the implication of the appellant in the crime is with the aid of Section 120B and Section 34 IPC. Apart from using the expression "criminal conspiracy" there is absolute absence of anything whatsoever in the said final report as also in the statement of any of the witnesses, suggesting that the appellant herein conspired with the other accused or what exactly is the criminal conspiracy.
25. This Court in the decision in R. Venkatakrishnan v. CBI, (2009) 11 SCC 737 held that criminal conspiracy, in terms of Section 120B, IPC, is an independent offence and its ingredients are:
(i) an agreement between two or more persons;
(ii) the agreement must relate to doing or causing to be done either -
(a) an illegal act;
(b) an act which is not illegal in itself but is also done by illegal means.
26. An important facet of law of conspiracy is that apart from it being a distinct offence, all conspirators are liable for the acts of each other of the crime or crimes which have been committed as a result of conspiracy. A careful scanning of the provisions under Sections 120A and 120B, IPC, would reveal that the sine qua non for an offence of criminal conspiracy is an agreement to commit an offence. It consists of agreement between two or more persons to commit the criminal offence, irrespective of the further consideration whether or not the offence is actually committed as the very fact of conspiracy constitutes the offence (See the decision in K.S. Narayanan v. G Gopinathan, 1982 Cri LJ 1611 (Madras))."
(VIII). It is submitted that the present case is such in which there is absolutely no evidence to show that there has been prior meeting of mind to execute the alleged offence.
9. Per contra, learned counsel for the opposite party no.2 as well as learned counsel for the state opposed the prayer as aforesaid.
Learned counsel for the opposite party no.2 argued as under:-
(I). The occurrence in the present matter is of 22.11.2015 at 9.30 p.m. of which the FIR was lodged immediately by Nem Kumar Jain on the same day at 11 p.m. against unknown persons giving the true and actual version of the incident.
(II). Subsequently an application dated 26.11.2015 was given by Nem Kumar Jain after coming to know about the assailants of his brother and on seeing the CCTV Footage of the police station covering Phavvara Tiraha of Kinari Bazar and Seb Ka Bazar and also seeing the CCTV Footage of his house by stating that along with accused persons he had fired upon his brother Vishal Agarwal was also seen. Some of his known persons told him that along with Vishal Agarwal, Awadhesh Agarwal (the present applicant), Narendra Kumar Goyal @ Lala, Ravi @ Tamatar and 5-6 other miscreants were involved in the matter. Awadhesh Agarwal has an old enmity with him which is continuing.
(III). The first informant in his first statement recorded under Section 161 Cr.P.C. stated about the prosecution version as stated by him in the FIR.
(IV). The second statement of the first informant was recorded under Section 161 Cr.P.C. in which he has stated about the version given by him in his application dated 26.11.2015 naming the accused persons therein.
(V). Dhan Kumar Jain, the injured has stated about the CCTV Footage and then has stated that Awadhesh Agarwal used to do the work of his jewellery in Bihar since many years and he was removed from the work due to which he had enmity with him and some time before Anil Goyal, a close friend had told him that Awadhesh Agarwal has stated that he has been insulted by Dhan Kumar Jain and he would not leave him and then with his paid persons namely Narendra Kumar Goyal and other miscreants tried to commit his murder.
(VI). While placing the statement of Tribhuvan Nath Chaturvedi and Vipin Bansal, it is apparent that the said persons have stated about Awadhesh Agarwal entering in a conspiracy with other accused persons for murdering the injured.
(VII). Pradeep Kumar and Anil Goyal have been interrogated who have stated about the motive of Awadhesh Agarwal for the incident since he was ousted from the work of Bihar.
(VIII). The statement of Shubham Jain who is the nephew of co-accused Vishal and elder son of Pradeep Kumar Jain @ Babbey (the brother of the injured) has stated about the enmity between Vishal Agarwal and the injured.
(IX). The statement of Abhishek Jain has been placed for the purpose to demonstrate that he has stated that after the incident Narendra Goyal came and took Vishal with him and they were talking that Dhan Kumar Jain after being shot has survived due to which Awadhesh will become anger as to how he has survived and is stating of giving the payment of contract later on.
(X). Learned counsel submitted that the Court should not form an opinion on the material available on record at the stage and should leave it to be considered in the trial. Since exercising inherent jurisdiction has to be in only cases where there is no sufficient ground to proceed but in the present case there is sufficient ground including the statement of the applicant to implicate him in the matter and as such prima-facie it reveals that there is material against the applicant and thus the Court should not interfere in the matter. Further, it is argued that the Court at the stage of discharge is to only see the material produced by the Investigating Agency and is not expected to go deep into probative value of the material on record. It is submitted that the defence of the accused cannot be seen at this stage.
To buttress his submissions, he has relied upon the following judgements of the Apex Court:
(i) Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia : (1989) 1 SCC 715, para 19. The same reads as under:
"19. We wish to add a word regarding interference by the High Court against a charge framed by the Sessions Court. Section 227 which confers power to discharge an accused was designed to prevent harassment to an innocent person by the arduous trial or the ordeal of prosecution. How that intention is to be achieved is reasonably clear in the section itself. The power has been entrusted to the Sessions Judge who brings to bear his knowledge and experience in criminal trials. Besides, he has the assistance of counsel for the accused and Public Prosecutor. He is required to hear both sides before framing any charge against the accused or for discharging him. If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own course. Self-restraint on the part of the High Court should be the rule unless there is a glaring injustice which stares the court in the face. The opinion on any matter may differ depending upon the person who views it. There may be as many opinions on a particular matter as there are courts but it is no ground for the High Court to interdict the trial. It would be better for the High Court to allow the trial to proceed.
(emphasis supplied)"
(ii) State of Orissa V. Debendra Nath Padhi : (2005) 1 SCC 568, para 8, the same reads as under:
"8. What is the meaning of the expression "the record of the case" as used in Section 227 of the Code. Though the word "case" is not defined in the Code but Section 209 throws light on the interpretation to be placed on the said word. Section 209 which deals with the commitment of case to the Court of Session when offence is triable exclusively by it, inter alia, provides that when it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall commit "the case" to the Court of Session and send to that court "the record of the case" and the document and articles, if any, which are to be produced in evidence and notify the Public Prosecutor of the commitment of the case to the Court of Session. It is evident that the record of the case and documents submitted therewith as postulated in Section 227 relate to the case and the documents referred in Section 209. That is the plain meaning of Section 227 read with Section 209 of the Code. No provision in the Code grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial.
(emphasis supplied)"
(iii) State of Gujarat Vs. Dilipsinh Kishorsinh Rao : 2023 (252) AIC 47, para 7, 8, 10, 11, 12, 14 and 15. They read as under:
"7. It is trite law that application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed.
8. At the time of framing of the charge and taking cognizance the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only.
****************
10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu v. N. Suresh Rajan, (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held:
"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."
11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 Cr. P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency.
12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.
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14. This Court in the aforesaid judgment has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228 Cr. P.C. is sought for as under:
"27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie."
15. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge.
(emphasis supplied)"
(XI). While placing supplementary affidavit dated 24.8.2024 it is submitted that four persons namely Pushparaj Singh, Prabhakar Singh, Vinod Mudgal @ Dada and Sarvesh Shukla were arrested who were then interrogated by the police who stated that the applicant had given a contract for murder of the injured.
10. Learned counsel for the State submits as under:-
(I). The order impugned states that the present case appears to be a case of conspiracy.
(ii). There was suspicion on the applicant since before and as such his implication later on was having a basis for it.
(iii). The charges can be framed merely on the basis of suspicion only and in the present case there is suspicion against the applicant and as such the framing of charge against the applicant is a legal order.
(iv). The injured has in his statement during investigation stated that his friend had named the applicant as a person who had enmity with him and had stated to take revenge.
(v). There is strong suspicion against the applicant and thus charges can be framed.
(vi). The present petition is devoid of any merit and be dismissed.
11. In rejoinder, learned counsel for the applicant submitted that the statement of co-accused which is confessional in nature cannot be looked into as is inadmissible and cannot form part of the charge sheet and the same has to be ignored as has been held by the Apex Court in the case of Sanuj Bansal Vs. State of U.P and another : SLP (Crl.) 10536 of 2023, order dated 12.7.2024 wherein the Apex Court has held as under:-
"It is obvious that confessional statements recorded by the police officers which are part of the charge-sheet cannot remain a part thereof and the same must be ignored. The Trial Court to take note of this."
12. After having heard learned counsel for the parties, perusing the records, it is evident that the applicant is not named in the first information report. His naming and implication in the matter is during investigation in a subsequent application given by the first informant even in which he has only cast suspicion about the involvement of the applicant. The naming of the applicant at the subsequent stage is on the basis of a suspicion that he has enmity with the alleged injured. The suspicion is of the applicant conspiring with the other persons to commit the offence. There is nothing on record to show that there has been meeting of minds between the accused persons to commit the offence. A settled principle of law is that a few bits here and a few bits there on which the prosecution proposes to rely are woefully inadequate for connecting the accused with the crime. In the present case the situation is such. There is nothing concrete and credible to show the implication of the applicant and also to show that there has been meeting of minds between the accused persons to conspire to commit the offence.
13. The Apex Court in the case of M/S Karnataka Emta Coal Mines Limited and another Vs. Central Bureau of Investigation : 2024 SCC OnLine SC 2250 while reiterating the powers of High Court under Section 482 Cr.P.C. and also at the stage of Section 227 Cr.P.C. has held as under:
"18. INHERENT JURISDICTION OF THE HIGH COURT UNDER SECTION 482, Cr. P.C. 18.1. For seeking quashing of the chargesheet and the order framing charges, learned counsel for the appellants has cited decisions of this court that lay down the proposition of law relating to quashing of criminal proceedings by a High Court under Section 482, Cr. P.C. In Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330 this court held as under:
"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice."
[emphasis added] 18.2. In the captioned case, this court had further observed that the discretion vested in the High Court under Section 482 Cr. P.C. can be exercised suo moto to prevent abuse of the process of a Court, and/or to secure the ends of justice. After listing the factors that ought to weigh with the High Court to make a just and rightful choice, it was observed thus:
"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1. Step one : whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step two : whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three : whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four : whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
[emphasis added] 18.3. In State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 the powers of the High Court under Section 482, Cr.P.C. and Article 226 of the Constitution of India were highlighted and the court observed that:
"29. Regarding the argument of the accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426]."
[emphasis added] 18.4. In Rukmini Narvekar v. Vijaya Satardekar, (2008) 14 SCC 1, this Court has observed that the width of the powers of the High Court under Section 482, Cr. P.C. and under Article 226 of the Constitution of India are unlimited, that the High Court could make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In a concurring order passed in the very same case, it was observed in addition that in exercising jurisdiction under Section 482, Cr. P.C., the High Court is free to consider even material that may be produced on behalf of the accused to arrive at a decision whether charge as framed could be maintained.
18.5. In Anand Kumar Mohatta v. State (NCT of Delhi), Department of Home, (2019) 11 SCC 706 , referring to the provisions of Section 482, Cr. P.C., this Court held as follows:
16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000 SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237]. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court.
xxxxx
28. In State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426], this Court has set out the categories of cases in which the inherent power under Section 482 CrPC can be exercised. Para 102 of the judgment reads as follows : (SCC pp. 378-79) "102. 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 extraordinary 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 FIR 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.
(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 FIR 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 Act concerned (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 Act concerned, 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."
18.6. In State of Karnataka v. L. Munniswamy, (1977) 2 SCC 699, Y.V. Chandrachud, J. as he then was (speaking for a three Judge Bench) observed thus:
"7. ... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice."
[emphasis added] 18.7. As can be gathered from the above, Section 482 Cr. P.C. recognizes the inherent powers of the High Court to quash initiation of prosecution against the accused to pass such orders as may be considered necessary to give effect to any order under the Cr. P.C. or to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is a statutory power vested in the High Court to quash such criminal proceedings that would dislodge the charges levelled against the accused and based on the material produced, lead to a firm opinion that the assertions contained in the charges levelled by the prosecution deserve to be overruled.
18.8. While exercising the powers vested in the High Court under Section 482, Cr. P.C., whether at the stage of issuing process or at the stage of committal or even at the stage of framing of charges, which are all stages that are prior to commencement of the actual trial, the test to be applied is that the Court must be fully satisfied that the material produced by the accused would lead to a conclusion that their defence is based on sound, reasonable and indubitable facts. The material relied on by the accused should also be such that would persuade a reasonable person to dismiss the accusations levelled against them as false."
XXXXXXXXXXX "20. APPLICATION OF MIND AT THE STAGE OF SECTION 227, Cr. P.C. 20.1. We may note that there is no quarrel with the broad proposition canvassed by learned counsel for the respondent- CBI that at the stage of Section 227, Cr. P.C., the Special Judge, CBI had to sift the evidence to find out whether there was sufficient ground for proceedings against the appellants. That exercise would include taking a prima facie view on the nature of the evidence recorded by the CBI and the documents placed before the court so as to frame any charge. At the same time, one must be mindful of the language used in Section 227 of the Cr. P.C., which is extracted below:
"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
20.2. As observed in Prafulla Kumar Samal (supra) the expression "not sufficient ground for proceeding against the accused" clearly shows that the Judge is not a mere post office to frame the charge at the behest of the prosecution. The Judge must exercise the judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. The principles governing the scope of Section 227, Cr. P.C. have been succinctly summarized in the caption case as below:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
[emphasis added] 20.3. To the same effect is the view expressed in Niranjan Singh KS Punjabi (supra) where this court has observed as follows:
"5. Section 227, introduced for the first time in the new Code, confers a special power on the Judge to discharge an accused at the threshold if 'upon consideration' of the record and documents he considers 'that there is not sufficient ground' for proceeding against the accused. In other words his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for proceeding with the trial against the accused. If he comes to the conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not he will discharge the accused. It must be remembered that this section was introduced in the Code to avoid waste of public time over cases which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure.
6. The next question is what is the scope and ambit of the 'consideration' by the trial court at that stage. ........... It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution."
[emphasis Added] 20.4. In N. Suresh Rajan (supra), the following view was expressed as to the role of the trial Court at the time of considering an application for discharge.
"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has not to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."
[emphasis added] 20.5. The aforesaid parameters had to be kept in mind by the learned Special Judge, CBI at the time of considering the records/documents submitted by the respondent-CBI and the material produced by the appellants. In our view, the said consideration is lacking in the impugned orders for the reasons noticed above."
14. The argument of learned counsels for the opposite party no.2 mainly hinged on the premise on the material which has to be looked into while considering discharge of the accused. It is trite law that the defence of the accused cannot be looked into at this stage. With regards to the evidence collected during investigation and as demonstrated from it, learned counsel did not dispute the same but only argued that the same was sufficient to reject the discharge and put the accused applicant for trial since he was suspected to have been involved in conspiracy to commit the offence.
15. The material as collected during investigation on the face of it only suggests involvement of the applicant accused in conspiracy to commit the offence. The admissible material does not go to show and positive evidence against him regarding meeting of minds and thereby entering in a conspiracy with other accused persons to commit the offence.
16. In view of the discussions as above, this Court comes to a conclusion that on the material collected during investigation and admissible in nature, the prosecution has failed to bring in credible and substantial evidence against the accused applicant. There has been no effort on the part of the learned counsel for the applicant to plead and argue the defence of the applicant accused in the matter but has confined his submission only on the material collected during investigation.
17. The present application under section 482 Cr.P.C. thus succeeds and is allowed. The applicant is discharged of the offences in the above-mentioned case.
C.- Criminal Misc. 482 Cr.P.C. Application No. 37671 of 2022
1. Heard Sri Sushil Shukla, learned counsel for the applicant, Sri Anil Srivastava, learned Senior Advocate assisted by Sri Vikas Srivastava, learned counsels for the opposite party no.2, Sri Ajay Singh, learned A.G.A-I for the State and perused the records.
2. The present application under Section 482 Cr.P.C. has been filed by the applicant Awadhesh Agarwal with the following prayers:-
"It is, therefore most respectfully prayed that this Hon'ble Court may be pleased to allow this application and quash the impugned order-dated 25.7.2022 as passed by the trial court i.e. Ld Addl. Session Judge/Spl. Judge (Gangsters Act), Court No. 18 rejecting discharge plea of the accused-applicant in terms of S. 227 CrPC and directing framing of charge against him u/s 2/3 of the the UP Gangsters and Anti-Social Activities (Prevention) Act, 1986 as well as quash the entire impugned criminal proceedings of Gangsters Session Trial (GST) No. 77 of 2016 (arising out of Case Crime No. 48 of 2016) u/s 2/3 of the UP Gangsters and Anti-Social Activities (Prevention) Act, 1986, P.S. Madan Mohan Gate, District Agra (State Vs. Ravi @ Tamatar and others) pending currently in the aforesaid court as against the accused-applicant only since the continuation of such proceedings as against him amounts to a clear abuse of the process of the court.
And by way of interim measure and during pendency of present application before this Hon'ble Court, it is further prayed that this Hon'ble Court may be pleased to stay further the impugned criminal proceedings of Gangsters Session Trial (GST) No. 77 of 2016 (arising out of Case Crime No. 48 of 2016) u/s 2/3 of the UP Gangsters and Anti-Social Activities (Prevention) Act, 1986, P.S. Madan Mohan Gate, District Agra (State Vs. Ravi @ Tamatar and others) pending currently in the in the court of Ld Addl. Session Judge/Spl. Judge (Gangsters Act), Court No. 18, Agra pending as against the accused-applicant only, otherwise he shall suffer irreparable loss."
3. The facts of the case are a First Information Report was lodged on 22.04.2016 by Anuj Malik of Police station M.M.Gate, Agra as Case Crime No. 0048 if 2016 under Sections 2, 3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 against the applicant and eight other accused persons with the allegation that they are working in a gang and a leader/member of the said gang are indulged in criminal and illegal activities.
4. A gang chart dated 11.04.2016 was forwarded by the SHO, P.S. M.M.Gate, Agra which after being recommend by the Circle Officer - Kotwali, Agra on 11.04.2016, the Superintendent of Police (City), Agra on 14.04.2016, the Senior Superintendent of Police, Agra reached the District Magistrate, Agra which was the approved by him on 21.04.2016. The gang chart showed the applicant to be a member of gang and involved in one case being Case Crime No. 660 of 2015 under Sections 307/120-B/34 IPC, Police Station M.M.Gate, Agra with further description that a charge sheet No. 111/15 dated 27.12.2015 has been submitted against him.
5. The matter was investigated and a Chargesheet No. 32 dated 01.07.2016 was submitted against the applicant and seven other accused persons under Sections 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.
6. The court of the Additional Sessions Judge/ Special Judge (Gangsters Act), Court No. 18, Agra vide order dated 25.07.2022 framed charges against the applicant and other co-accused persons for offences under Sections 2/3 of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.
7. Learned counsel for the applicant while relying upon the judgment of the Apex Court in the case of Farhana Vs. State of Uttar Pradesh : 2024 SCC OnLine SC 159 and has submitted that if the predicate offence in the connected matter finds favour with the applicant accused, then the continuation of the proceedings of the present case are also bad in law. He has placed paras 13 to 16 to buttress his submission, which read as under:
"13. Needless to say that for framing a charge for the offence under the Gangsters Act and for continuing the prosecution of the accused under the above provisions, the prosecution would be required to clearly state that the appellants are being prosecuted for any one or more offences covered by anti-social activities as defined under Section 2(b).
14. There being no dispute that in the proceedings of the sole FIR registered against the appellants for the offences under Chapter XVII IPC being Crime Case No. 173 of 2019, the appellants stand exonerated with the quashing of the said FIR by the High Court of Judicature at Allahabad by exercising the powers under Section 482 of Criminal Procedure Code, 1973, vide order dated 3rd March, 2023 passed in Application No. 7228 of 2023.
15. Hence, the very foundation for continuing the prosecution of the appellants under the provisions of the Gangsters Act stands struck off and as a consequence, the continued prosecution of the appellants for the said offence is unjustified and tantamounts to abuse of the process of Court.
16. As a consequence of the discussion made herein above, the impugned orders dated 14th November, 2022 and 6th December, 2022 passed by the High Court of Judicature at Allahabad are quashed and set aside. Resultantly, the impugned FIR being Crime Case No. 424 of 2022 for offence punishable under Section 3(1) of the Gangsters Act, registered at Police Station-Bhognipur, District-Kanpur Dehat and all the proceedings sought to be taken thereunder against the appellants are hereby quashed."
8. It is further submitted that except for a single case, which is also under challenge in the connected matter, the applicant is not involved in any other criminal offence.
9. Learned counsels for the State/Opposite party No. 1 and original complainant/Opposite party No. 2 do not oppose the said submission and agree to the proposition of law as placed and argued.
10. The facts and law on the subject are clear and not in dispute. The challenge in the present matter is of proceedings under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 which have been initiated on the basis of a single case against the applicant, which is also under challenge in the connected petition being Criminal Misc. 482 Cr.P.C. Application No. 21392 of 2022 - Awadhesh Agarwal Vs. State of U.P. and another.
11. Since the connected petition of the accused applicant for the predicate offence has been allowed by this Court and he has been discharged of the offences in the said case, the proceedings against him in the present case also cannot survive. The proceedings against him are thus quashed. The present application under Section 482 Cr.P.C. is allowed.
(Samit Gopal, J.) Order Date :- 20.09.2024 Gaurav Kuls