Monday, August 1, 2016

Manoj Ranjan Nayak v. Purna Chandra Das

Few More Tags : - elements of criminal conspiracy, Section 245 (2)/482/226/227/239 Cr PC, , duty of the court at the stage of framing of charge, Suspicion alone, taking cognizance vis-a-vis framing charge; 

Even if such allegation is taken on its face value, statement of the co- accused cannot form the basis of framing of charge. It was argued that statement of the co-accused cannot be converted or translated into evidence in course of trial.

However, it was argued that in the suit the complainant seeks to enforce his civil rights with regard to disputed land which he purchased in the year 1989 whereas the complaint petition has been filed seeking penal action for commission of offences by the accused persons. Therefore, non-reference of pendency of civil suit does not amount to suppression and is, therefore, not material. 

It is well settled that 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. Intention to do criminal conspiracy has its foundation in an agreement to commit an offence.

"22. In Ram Narayan Popli v. Central Bureau of Investigation, while dealing with the conspiracy the majority opinion laid down that the elements of a criminal conspiracy have been stated to be : (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish that object, (c) an agreement or understanding between two or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by an effectual means, and (d) in the jurisdiction where the statute required an overt act. It has been further opined that the essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. No overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished, in order to constitute an indictable offence. Law making conspiracy a crime is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effect, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. The two-Judge Bench proceeded to state that for an offence punishable under Section 120-B, the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. 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."

In course of hearing, learned Senior Advocate appearing for the petitioner cited the decision of Indian Oil Corporation vs. NEPC India Ltd. and others: (2006) 6 Supreme Court Cases 736 wherein Hon'ble Supreme Court has taken note of and deprecated the current practice of misuse of criminal process to put undue pressure in civil disputes.

Order of taking of cognizance of commission of offence is different from order of framing of charge against an accused for commission of offence. A court takes cognizance of commission of offence whereas charge is framed against an accused for commission of offence. At the stage of taking of cognizance, court is required to find out as to whether there is material to prima facie indicate commission of offence. On the other hand, while framing charge, court is to find out as to whether materials on record to indicate grave or strong suspicion against the accused person to have committed the alleged offence.
9. Though there is difference in the language employed in Section 227 of the Cr.P.C. which contemplates discharge of the accused by the Court of Session in cases triable by it, Section 239 of the Cr.P.C. in cases instituted upon the police report and Section 245 of the Cr.P.C. in case instituted otherwise on a police report, as has been pointed out by Hon'ble Supreme Court in State of Tamil Nadu -v- N.Suresh Ranjan and others: 2014 AIR SCW 942, placing reliance on R.S.Nayak -v- A.R.Antulay : AIR 1986 SC 2045, notwithstanding this difference and, which ever provision may be applicable, Court is required at the stage of framing of charge to see that there is prima facie case for proceeding against the accused. Factors which are required to be considered by a court to frame charge or to discharge an accused, and the scope of jurisdiction of the court to determine whether there is sufficient ground for proceeding against an accused, have been elaborately pointed out by the Hon'ble Supreme Court in State of Karnataka -vrs. - L.Muniswamy State of Kerala and Another: AIR 1977 SC 1489 at paragraph 10 as follows:
"On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D.D. Ghadigaonkar, AIR 1960 SC 1113 and Century Spinning & Manufacturing Co. v. State of Maharashtra, AIR 1972 SC 545 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's 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 S.227 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 S.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."
10. In P. Vijayan -vrs. - State of Kerala and Another: AIR 2010 SC 663, it has been pointed out by the Hon'ble Supreme Court at paragraph 10 as follows:
"If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."
11. It has further been observed by the Hon'ble Supreme Court at paragraph 14 as follows:
"Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials therefor. Suspicion alone, without anything more, cannot form the basis therefor or held to be sufficient for framing charge."
12. In Shri Satish Mehra -vrs.- Delhi Administration and another : JT 1996 (7) S.C. 6, it has been observed:
"11. In Union of India v. Profullakumar - 1979 Cr.L.J. 154, this Court has observed that the Judge while considering the question of framing the charge has "the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether a prima facie case against the accused has been made out". However, their Lordships pointed out that 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 gives rise to some suspicion but not grave suspicion, the Judge would be fully within his right to discharge the accused". At the same time the Court cautioned that a roving enquiry into the pros and cons of the case by weighing the evidence as if he was conducting the trial is not expected even warranted at this stage.
12. An incidental question was emerges in this context is whether the Sessions Judge can look into any material other than those produced by the prosecution. Section 226 of the Code obliges the prosecution to describe the charge brought against the accused and to state by what evidence the guilt of the accused would be proved. The next provision enjoins on the Sessions Judge to decide whether there is sufficient ground to proceed against the accused. In so deciding the Judge has to consider (1) the record of the case and (2) the documents produced therewith. He has then to hear the submissions of the accused as well as prosecution on the limited question whether there is sufficient ground to proceed. What is the scope of hearing submissions? Should it be confine hearing oral arguments alone?
13. Similar situation arises under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to afford the prosecution and the accused an opportunity of being heard besides considering the police report and the documents sent therewith. At these two stages the code enjoins on the court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the Court at that stage. Here the "ground" may be any valid ground including insufficiency of evidence to prove charge.
14. The object of providing such an opportunity as is envisaged in Section 227 of the code is to enable the Court to decide whether it is necessary to proceed to conduct the trial. If the case ends there it gains a lot of time of the Court and saves much human efforts and cost. If the materials produced by the accused even at that early stage would clinch the issue, why should the Court shut it out saying that such documents need be produced only after wasting a lot more time in the name of trial proceedings. Hence, we are of the view that Sessions Judge would be within his powers to consider even materials which the accused may produce at the stage contemplated in Section 227 of the Code.
15. But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that 12 most of the sessions courts in India are under heavy pressure of work load. If the Sessions Judge is almost certain that the trial would only be an exercise in futility or a sheer waste of time it is advisable to truncate or nip the proceedings at the stage of Section 227 of the Code itself."

14. Thus, save and except vague statement that co- accused gave out that they were engaged in demolishing the boundary wall on being instructed by the petitioner, there is no material to implicate the petitioner with the alleged occurrence. It is well settled that statement of co-accused is not admissible in evidence against another co-accused. At the time of framing of charge, court has to consider the material which has been collected during investigation or enquiry in order to satisfy as to whether there exists sufficient ground to proceed against an accused. It has been pointed out by the Hon'ble Supreme Court in Suresh Budharmal Kalani alias Pappu Kalani vs. State of Maharashtra: (1998) 7 Supreme Court Cases 337 that at the stage of framing of charge, the court is required to confine its attention to only those materials collected during investigation or enquiry which can be legally translated into evidence and not upon further evidence (dehors those materials) that the prosecution may adduce in the trial which would commence only after the charges are framed and the accused denies the charges

No comments: