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.
11
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.
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