CRL.REV.P./262/2016 of ANOOP SINGH Vs STATE

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved On: 03.12.2016Judgment Pronounced On: 12.05.2017

CRL.REV.P. 262/2016ANOOP SINGH..... PetitionerversusSTATE..... RespondentCRL.REV.P. 263/2016D. V. MALHOTRA..... PetitionerversusSTATE..... RespondentCRL.REV.P. 264/2016GOPAL ANSAL..... PetitionerversusSTATE..... RespondentCRL.REV.P. 265/2016SUSHIL ANSAL..... PetitionerversusSTATE..... Respondent

Advocates who appeared in the cases:

For the Petitioners:Mr. Puneet Mittal, Advocate with Ms. Arushi Tangri, Advocate,for Mr. Anoop Singh in CRL.REV.P.262/2016.for Mr. Anoop Singh in CRL.REV.P.262/2016.

Mr. Pawan Narang, Advocate with Ms. Vasundhara Chauhan andMr. Karan Jain, Advocates, for Mr. D.V. Malhotra in CRL.REV.P. 263/2016

Mr. Vijay Kumar Aggarwal, Advocate with Mr. Neeraj KumarJha, Advocate for Mr. Gopal Ansal in CRL.REV.P.264/2016.Jha, Advocate for Mr. Gopal Ansal in CRL.REV.P.264/2016.

Ms. Rebecca M. John, Sr. Advocate with Mr. Gurpreet Singh,Mr. Vishal Gosain, Mr. Harsh Bora, Mr. Kushdeep Gaur and Ms.NicyPaulson,Advocates,forMr.SushilAnsalinCRL.REV.P.265/2016.

For the Respondents:Mr. Dayan Krishnan, Sr. Advocate with Mr. Trideep Pais, Ms.Aakashi Lodha and Ms. Deeksha Gujral, Advocates, for State.Aakashi Lodha and Ms. Deeksha Gujral, Advocates, for State.

Mr. Vikas Pahwa, Sr. Advocate with Ms. Kinnore Ghosh and Mr.Tushar Sharma, Advocates, for AVUT.Tushar Sharma, Advocates, for AVUT.

CORAM:HON’BLE MR JUSTICE SIDDHARTH MRIDUL

J U M N T

SIDDHARTH MRIDUL, J.

1.The present batch of criminal revision petitions, instituted under theprovisions of section 397 of the Code of Criminal Procedure, 1973(hereinafter referred to as ‘CrPC’), seeks to assail the order framing charges,dated 31.05.2014, rendered by the Court of Learned Chief MetropolitanMagistrate, Patiala House Courts, New Delhi, in the case titled as 'State v.Dinesh Chand Sharma & Ors.', arising out of the FIR bearing No. 207/2006,registered at Police Station, Tilak Marg (Crime Branch), New Delhi.

2.At the outset, it would be relevant to state that by way of theimpugnedorderdated31.05.2014,theLearnedChiefMetropolitanMagistrate has framed charges against the following persons, for theoffences punishable under the provisions of sections 120-B, 109, 201 and409 of the Indian Penal Code, 1860 (hereinafter referred to ‘IPC’):

i.Mr. Sushil Ansal

ii.Mr. Gopal Ansal

iii.Mr. Har Swarup Panwar (Mr. H.S. Panwar)

iv.Mr. Dinesh Chand Sharma

v.Mr. Dharam Vir Malhotra (Mr. D.V. Malhotra)

vi.Mr. Prem Prakash Batra (Mr. P.P. Batra)

vii.Mr. Anoop Singh

3.The impugned order dated 31.05.2014 has been sought to be assailedbefore this Court by, Mr. Sushil Ansal by way of Criminal Revision PetitionNo. 265 of 2016; Mr. Gopal Ansal by way of Criminal Revision PetitionNo. 264 of 2016; Mr. D.V. Malhotra by way of Criminal Revision PetitionNo. 263 of 2016; and Mr. Anoop Singh by way of Criminal RevisionPetition No. 262 of 2016.

4.In view of the circumstance that, the charges against all therevisionists before this Court have been framed by way of common orderdated 31.05.2014; and since common questions of fact & law arise in thepresent batch of revision petitions, the same is being disposed of by way of acommon judgment.

FACTUAL MATRIX:

5.Exposition of the background facts with essential details is imperative,in order to appreciate the controversy in the present case in the properperspective.

6.The backdrop of the present case, as per the impugned order, is that itis an offshoot of the trial proceedings conducted in relation to devastatingfire that occurred in Uphaar Theatres, New Delhi; what is commonlyreferred to as, in the realm of the media, the 'Uphaar Cinema Fire Tragedy'.

7.The facts as are necessary for the adjudication of the present batch ofpetitions are adumbrated as follows:

a)The Uphaar Cinema Fire Tragedy that occurred on 13.06.1997, led tothe filing of case RC3(S)/97/SIC.IV/CBI/ND under sections 304, 304-A and 337 of the IPC and section 14 of the Cinematograph Act, 1952,culminating into trial (hereinafter referred to as ‘Main Uphaar Trial’).the filing of case RC3(S)/97/SIC.IV/CBI/ND under sections 304, 304-A and 337 of the IPC and section 14 of the Cinematograph Act, 1952,culminating into trial (hereinafter referred to as ‘Main Uphaar Trial’).b)InvestigationwasconductedinthesaidcaseRC3(S)/97/SIC.IV/CBI/NDand charge sheet was filed before theconcerned Trial Court, arraying 16 persons, including, but not limitedto, Mr. Sushil Ansal, Mr. Gopal Ansal and Mr. H.S. Panwar, asaccused.RC3(S)/97/SIC.IV/CBI/NDand charge sheet was filed before theconcerned Trial Court, arraying 16 persons, including, but not limitedto, Mr. Sushil Ansal, Mr. Gopal Ansal and Mr. H.S. Panwar, asaccused.

c)A letter dated 28.11.1996 written by Mr. V.K. Nagpal, Vice President,Ansal Properties & Industries Limited to the Delhi Fire Services, wasfound half-torn, from the judicial file/record, at the time when theexamination of PW-33, Mr. T.S. Sharma, ADO, Delhi Fire Service,was being recorded on 20.07.2002, before the Court of Ld. AdditionalSessions Judge, Patiala House Courts, New Delhi, in the Main UphaarTrial.Ansal Properties & Industries Limited to the Delhi Fire Services, wasfound half-torn, from the judicial file/record, at the time when theexamination of PW-33, Mr. T.S. Sharma, ADO, Delhi Fire Service,was being recorded on 20.07.2002, before the Court of Ld. AdditionalSessions Judge, Patiala House Courts, New Delhi, in the Main UphaarTrial.

d)Consequent thereto, the Ld. Public Prosecutor, on examining thejudicial record in the Main Uphaar Trial, found that several documentswere either torn, tampered with, or not readily available.judicial record in the Main Uphaar Trial, found that several documentswere either torn, tampered with, or not readily available.

e)An application dated 13.01.2003, was instituted by the Ld. PublicProsecutor, bringing to the knowledge of the Court of Ld. AdditionalSessions Judge the circumstance that several important documents thatwere seized by the investigating agency during the course of theinvestigation; and were filed along with the charge sheet; and formed apart of the judicial record in the Main Uphaar Trial, were missing,tampered, or mutilated by way of tearing portion thereof. Theapplication was opposed by Mr. H.S. Panwar, Mr. R.M. Puri (adirector in Uphaar Cinema at the relevant time), by way of filingreplies, on 15.01.2003 and by Mr. K.L. Malhotra (DGM, UphaarCinema at the relevant time) by way of filing reply, on 17.01.2003,respectively, to the said application.Prosecutor, bringing to the knowledge of the Court of Ld. AdditionalSessions Judge the circumstance that several important documents thatwere seized by the investigating agency during the course of theinvestigation; and were filed along with the charge sheet; and formed apart of the judicial record in the Main Uphaar Trial, were missing,tampered, or mutilated by way of tearing portion thereof. Theapplication was opposed by Mr. H.S. Panwar, Mr. R.M. Puri (adirector in Uphaar Cinema at the relevant time), by way of filingreplies, on 15.01.2003 and by Mr. K.L. Malhotra (DGM, UphaarCinema at the relevant time) by way of filing reply, on 17.01.2003,respectively, to the said application.f)Thereafter, an application dated 20.01.2003 came to be instituted bythe Ld. Public Prosecutor seeking permission to lead secondaryevidence regarding the documents which were either missing, torn ortampered with. On 31.01.2003 the Prosecution was granted permissionto lead secondary evidence. Further, the Ld. Additional Sessions Judgealso directed that letter be sent to the Ld. District Judge for initiatingan inquiry against Mr. Dinesh Chand Sharma, the Ahalmad in theCourt of Ld. Additional Sessions Judge, at the relevant time.Consequently, Secondary Evidence was led in the Main Uphaar Trial.the Ld. Public Prosecutor seeking permission to lead secondaryevidence regarding the documents which were either missing, torn ortampered with. On 31.01.2003 the Prosecution was granted permissionto lead secondary evidence. Further, the Ld. Additional Sessions Judgealso directed that letter be sent to the Ld. District Judge for initiatingan inquiry against Mr. Dinesh Chand Sharma, the Ahalmad in theCourt of Ld. Additional Sessions Judge, at the relevant time.Consequently, Secondary Evidence was led in the Main Uphaar Trial.

g)Subsequently, Departmental inquiry under the provisions of Rule 14of the Central Civil Services (Classification Control and Appeal)Rules, 1965 was conducted against Mr. Dinesh Chand Sharma, by theLd. Additional District and Sessions Judge/the Inquiry Officer. Byway of the report dated 30.04.2004, it was prima facie found that Mr.Dinesh Chand Sharma is guilty of negligence & carelessnessamounting to serious misconduct; responsible for the loss of and thetampering of the documents forming part of the judicial record in theMain Uphaar Trial. penalty of dismissal from service was imposedupon him by way of an order dated 25.06.2004.of the Central Civil Services (Classification Control and Appeal)Rules, 1965 was conducted against Mr. Dinesh Chand Sharma, by theLd. Additional District and Sessions Judge/the Inquiry Officer. Byway of the report dated 30.04.2004, it was prima facie found that Mr.Dinesh Chand Sharma is guilty of negligence & carelessnessamounting to serious misconduct; responsible for the loss of and thetampering of the documents forming part of the judicial record in theMain Uphaar Trial. penalty of dismissal from service was imposedupon him by way of an order dated 25.06.2004.

h)The Association of the Victims of the Uphaar Tragedy (hereinafterreferred to as ‘AVUT’) instituted an application dated 14.02.2003under the provisions of section 439(2) of the CrPC, before the TrialCourt, seeking cancellation of bail granted to the accused in the MainUphaar Trial, namely, Mr. Sushil Ansal, Mr. Gopal Ansal and Mr.H.S. Panwar; in light of the circumstance that certain documentsforming part of the judicial record in the Main Uphaar Trial weremissing, torn, or tampered with. The said application seekingcancellation of bail was dismissed by way of the order dated29.04.2003.referred to as ‘AVUT’) instituted an application dated 14.02.2003under the provisions of section 439(2) of the CrPC, before the TrialCourt, seeking cancellation of bail granted to the accused in the MainUphaar Trial, namely, Mr. Sushil Ansal, Mr. Gopal Ansal and Mr.H.S. Panwar; in light of the circumstance that certain documentsforming part of the judicial record in the Main Uphaar Trial weremissing, torn, or tampered with. The said application seekingcancellation of bail was dismissed by way of the order dated29.04.2003.

i)Thereafter, AVUT instituted Crl. M. (M) No. 2380 of 2003, before thisCourt, assailing the said order dated 29.04.2003. AVUT also filed aCrl. M. No. 2229 of 2006 under section 482 of the CrPC, in the saidCrl. M. (M.), praying for further directions seeking registration of acriminal case against persons responsible for tampering with theCourt, assailing the said order dated 29.04.2003. AVUT also filed aCrl. M. No. 2229 of 2006 under section 482 of the CrPC, in the saidCrl. M. (M.), praying for further directions seeking registration of acriminal case against persons responsible for tampering with the

documents that formed part of the judicial record in the Main UphaarTrial.

j)This Court by way of the order dated 05.05.2006, dismissed Crl. M.(M) No. 2380 of 2003. Further, this Court by way of the said orderdated 05.05.2006, in Crl. M. No. 2229 of 2006, directed the SpecialBranch of Delhi Police to register case under appropriate provisionsof law; and also directed that investigation be conducted by an officernot below the rank of Assistant Commissioner of Police; against suchpersons as are found to be guilty and involved in removal/mutilationand tampering of documents forming part of the judicial record of thecase, pending trial before the Ld. Additional Session Judge, PatialaHouse Courts, Delhi, titled as ‘State v. Sushil Ansal & ors.’; inRC3(S)/97/SIC.IV/CBI/ND under sections 304, 304-A and 337 of theIPC and section 14 of the Cinematograph Act, 1952 (the Main UphaarTrial). The said order dated 05.05.2006 was modified by way of theorder dated 25.05.2006 to the extent that instead of Special Branch ofDelhi Police, the Economic Offences Wing of the Delhi Police wasdirected to register case under appropriate provisions of law againstsuchpersonsasarefoundtobeguiltyandinvolvedinremoval/mutilation and tampering of documents forming part of thejudicial record of the Main Uphaar Trial.

k)Thereafter, pursuant to the directions issued by this Court by way ofthe said order dated 05.05.2006, rendered in the said CriminalMiscellaneous Application; an FIR bearing No. 207/2006, dated17.05.2006, was registered at Police Station, Tilak Marg, New Delhi,the said order dated 05.05.2006, rendered in the said CriminalMiscellaneous Application; an FIR bearing No. 207/2006, dated17.05.2006, was registered at Police Station, Tilak Marg, New Delhi,

for the offences punishable under the provisions of sections 109, 193,201, 218, 409 and 120-B of the IPC, subsequent to complaint dated13.05.2006 made by Mr. R. Krishnamurthy, General Secretary,AVUT.

l)Consequent upon the registration of the said FIR No. 207/2006,investigation was conducted and charge sheet dated 12.02.2007 wasfiled before the Court of Ld. Chief Metropolitan Magistrate, wherebyMr. Dinesh Chand Sharma was arrayed as an accused.

Subsequently, 1[st]Supplementary charge sheet dated 23.05.2007 cameto be filed whereby certain documents including the CFSL report,were filed in the Court.

Thereafter, 2[nd]Supplementary charge sheet dated 18.01.2008 came tobe filed, whereby the following persons were also arrayed as accused:

i.Mr. Sushil Ansal

ii.Mr. Gopal Ansal

iii.Mr. H.S. Panwar

iv.Mr. P.P. Batra

v.Mr. D.V. Malhotra

vi.Mr. Anoop Singh

o)Summons were issued by the Ld. ACMM, Patiala House Courts, Delhion 15.02.2008. The summoning order was assailed before this Court,by way of revision petition being Criminal Revision Petition No. 224of 2008 alongwith Criminal Main No. 4800 of 2008, instituted by Mr.Sushil Ansal; Criminal Miscellaneous No. 1332 of 2008 & CriminalMiscellaneous Application No. 5036 of 2008, instituted by Mr. D.V.on 15.02.2008. The summoning order was assailed before this Court,by way of revision petition being Criminal Revision Petition No. 224of 2008 alongwith Criminal Main No. 4800 of 2008, instituted by Mr.Sushil Ansal; Criminal Miscellaneous No. 1332 of 2008 & CriminalMiscellaneous Application No. 5036 of 2008, instituted by Mr. D.V.

Malhotra; Criminal Main No. 1334 of 2008 & Criminal MiscellaneousApplication No. 5038 of 2008, instituted by Mr. Gopal Ansal;Criminal Main No. 1378 of 2008 & Criminal MiscellaneousApplication No. 5177 of 2008, instituted by Mr. P.P. Batra. Theaforementioned matters were dismissed by this Court with costs ofRs.25,000/- each, by way of order dated 03.09.2009.

p)Thereafter, at the stage of rebuttal of arguments on charge addressedby the Prosecution before the Ld. Trial Court, permission was soughtby the Ld. Public Prosecutor to file additional documents.q)Consequently, 3[rd]Supplementary charge sheet dated 17.02.2014 cameto be filed alongwith fresh documents.

r)After hearing detailed arguments on charge, the Court of Ld. ChiefMetropolitan Magistrate, by way of the impugned order dated31.05.2014, was pleased to render an order framing charges againstMr. Dinesh Chand Sharma, Mr. Sushil Ansal, Mr. Gopal Ansal, Mr.H.S. Panwar, Mr. P.P. Batra, Mr. D.V. Malhotra and Mr. AnoopSingh, for the offences punishable under the provisions of sections120-B, 109, 201 and 409 of the IPC.

CASE OF THE PROSECUTION

8.Mr. Sushil Ansal and Mr. Gopal Ansal, who exercised control over theday-to-day functioning of the Uphaar Cinema; alongwith Mr. H.S. Panwar,the Fire Officer of the Delhi Fire Services, who issued an NOC to UphaarCinema for fire safety and fabricated proforma inspection report without,in fact, conducting an inspection, were facing trial that was culmination ofthe Uphaar Cinema Fire Tragedy.

9.The substratum of the case of the prosecution is that Mr. Sushil Ansal,Mr. Gopal Ansal and Mr. H.S. Panwar, colluded to scuttle the process of lawand escape the legal consequences of their misdeeds and conspiracy washatched between these three persons and Mr. Dinesh Chand Sharma (theAhalmad in the Court where the Main Uphaar Trial was ongoing), throughMr. P.P. Batra (stenographer in the legal cell at Ansal Properties andInfrastructure Limited).

10.Mr. P.P. Batra, who acted as link between Mr. Sushil Ansal, Mr.Gopal Ansal and Mr. H.S. Panwar, on one hand and Mr. Dinesh ChandSharma, on the other; established contact with Mr. Dinesh Chand Sharma, inorder to further the object of the conspiracy.

11.In furtherance of the conspiracy, documents from the judicial file inthe Main Uphaar Trial were destroyed (some documents went missing; somewere mutilated, torn; and ink was spread over some of the documents).

12.When the fact of destruction of documents was brought to theknowledge of the Court, and after his dismissal from service, Mr. DineshChand Sharma contacted Mr. P.P. Batra to secure employment.

13.Thereafter, at the behest of Mr. Sushil Ansal & Mr. Gopal Ansal,through Mr. P.P. Batra, Mr. Dinesh Chand Sharma was provided with jobat A-Plus Security Agency, upon the recommendation of Mr. D.V. Malhotra.He was paid salary through Mr. D.V. Malhotra, in cash, at rate higher thanthe usual rate at A-Plus Security for work of similar nature (Rs.15,000/-was paid to Mr. Dinesh Chand Sharma as against Rs.7,500/- paid to otherField Officers in the firm).

14.Mr. Anoop Singh, Chairman of A-Plus Security Agency provided thesaid job to Mr. Dinesh Chand Sharma upon the recommendation of Mr. D.V.Malhotra. Mr. Anoop Singh applied fluid on the name of Mr. Dinesh ChandSharma in the firm’s wages’ register and wrote fictitious name, in order toscuttle the process of law when he came to know about the investigation inthe present case.

15.The documents which were destroyed from the judicial file arecollated hereinbelow:

I.SEIZURE MEMO DATED 18.07.1997

This memo is regarding the seizure of documents from Mr. S.S. Gupta,Company Secretary of Ansal Properties & Industries Limited. By way of thesaid seizure memo, the following documents were seized:

i.RegisterofDirectorsofGreenParkTheatreandAssociates Pvt. Ltd.Associates Pvt. Ltd.

ii.Register of Members.

iii.Register of Contract under section 301, Companies Act,1956.1956.

iv.Register of Directors and shareholdings & shareholders.v.Register of Share transfers.v.Register of Share transfers.

vi.Share Capital Ledger.

vii.Original Letter with respect to Sh. Pranav Ansal.

viii.Original Resignation letter of Mr. Vijay Agrawal.

ix.3 pages of minutes of meetings of directors ofAnsalTheatre & Clubotels Pvt Ltd dated 02.06.1997.Theatre & Clubotels Pvt Ltd dated 02.06.1997.

It is stated that the lower left portion of the second page of the saidseizure memo is partly torn.seizure memo is partly torn.

It is further stated that the documents seized by way of the torn seizurememo establish that Mr. Sushil Ansal and Mr. Gopal Ansal were incontrol of the company which was running Uphaar Theatres. Thisfactual position has been denied by Mr. Sushil Ansal and Mr. GopalAnsal.It is further stated that the documents seized by way of the torn seizurememo establish that Mr. Sushil Ansal and Mr. Gopal Ansal were incontrol of the company which was running Uphaar Theatres. Thisfactual position has been denied by Mr. Sushil Ansal and Mr. GopalAnsal.

II.PAGE NO. 123 OF THE FILE OF DELHI FIRE SERVICES

The document is regarding Uphaar Cinema, containing letter dated28.11.1996 from Ansal Properties & Industries Limited written by the Mr.Vimal Nagpal, Vice President (services) to the Divisional Officer, Delhi FireServices, intimating the removal of the defects pointed by the Delhi FireServices vide their inspection report dated 18.11.1996.

The said Letter is half torn from the lower portion; and

The signature of Mr. H.S. Panwar has been torn off.

It is stated that the lower portion of the said page has the address ofAnsal Properties and Industries Limited, which is the same as theaddress of Star Estate Management Limited (SEML), of which Mr.D.V. Malhotra was the General Manager.It is stated that the lower portion of the said page has the address ofAnsal Properties and Industries Limited, which is the same as theaddress of Star Estate Management Limited (SEML), of which Mr.D.V. Malhotra was the General Manager.

It is stated that this letter proves that Ansal Properties and IndustriesLimited, of which Mr. Sushil Ansal was the chairman, had directcontrol over the functioning of Uphaar cinema. Further, it is stated thatthe object behind the tampering of this document was also to not let adocument linking Ansal Properties & Industries Limited to AnsalIt is stated that this letter proves that Ansal Properties and IndustriesLimited, of which Mr. Sushil Ansal was the chairman, had directcontrol over the functioning of Uphaar cinema. Further, it is stated thatthe object behind the tampering of this document was also to not let adocument linking Ansal Properties & Industries Limited to Ansal

Theatres and Clubotels Limited (ATCL) from being exhibited inCourt.

III.SEIZURE MEMO DATED 27.08.1997 ALONGWITH CHEQUENO. 955725 DATED 26.06.1995 FOR Rs.50 LACS

The said cheque has been signed by Mr. Sushil Ansal, as the authorizedsignatory of Green Park Theatre Associated Pvt. Ltd. in his own favour.

It is stated that the said cheque earlier went missing, but was latermagically produced by Mr. Dinesh Chand Sharma on 10.06.2003, atthe time, when the applications for cancellation of bail were pendingbefore this Court and permission to travel was sought by Mr. GopalAnsal.magically produced by Mr. Dinesh Chand Sharma on 10.06.2003, atthe time, when the applications for cancellation of bail were pendingbefore this Court and permission to travel was sought by Mr. GopalAnsal.

It is stated that the said cheque establishes that Mr. Sushil Ansal hadfinancial control over Uphaar Cinema post the year 1988, contrary tohis statements and protestations denying the same.It is stated that the said cheque establishes that Mr. Sushil Ansal hadfinancial control over Uphaar Cinema post the year 1988, contrary tohis statements and protestations denying the same.

IV.SEIZURE MEMO DATED 18.08.1997 ALONGWITH CHEQUENO. 805578 DATED 30.11.1996 FOR Rs.1.50 LACSNO. 805578 DATED 30.11.1996 FOR Rs.1.50 LACS

The said cheque is signed by Mr. Gopal Ansal as the authorized signatory ofAnsal Theatre and Clubotels Limited, in the favour of Music Shop as well ascheque No. 805590 dated 20.02.1997 for Rs.2,96,550/- signed by Mr. GopalAnsal as the authorized signatory of Ansal Theatre and Clubotels Limited, inthe favour of M/s Chancellor Club.

It is stated that the said cheque also went missing but was laterproduced by Mr. Dinesh Chand Sharma at the time when applicationsfor cancellation of bail were pending before this Court and permissionto travel was sought by Mr. Gopal Ansal.It is stated that the said cheque also went missing but was laterproduced by Mr. Dinesh Chand Sharma at the time when applicationsfor cancellation of bail were pending before this Court and permissionto travel was sought by Mr. Gopal Ansal.

It is stated that this cheque establishes that Mr. Gopal Ansal hadfinancial control over Uphaar Cinema post the year 1988, contrary tohis contention denying the same.It is stated that this cheque establishes that Mr. Gopal Ansal hadfinancial control over Uphaar Cinema post the year 1988, contrary tohis contention denying the same.

It is stated that the sudden re-appearance of the cheques at the timewhen AVUT filed an application for cancellation of bail clearly showsa link between Mr. Sushil Ansal & Mr. Gopal Ansal and Mr. DineshChand Sharma.It is stated that the sudden re-appearance of the cheques at the timewhen AVUT filed an application for cancellation of bail clearly showsa link between Mr. Sushil Ansal & Mr. Gopal Ansal and Mr. DineshChand Sharma.

V.SEIZURE MEMO DATED 27.08.1997 ALONGWITH CHEQUENO. 183618 DATED 23.05.1996 FOR Rs.9,711

The said cheque is signed by Mr. Gopal Ansal, as authorized signatory ofGreen Park Theatre Association Pvt. Ltd, in the favour of Chief Engineer,Water, drawn on Syndicate Bank.

It is stated that this cheque went missing.

The said Cheque was issued from Green Park Theatre Association Pvt.Ltd., which had ceased to exist since 10.03.1996, on which date itsname was changed to Ansal Theatres and Clubotels Limited. Thecheque was therefore issued by defunct company.The said Cheque was issued from Green Park Theatre Association Pvt.Ltd., which had ceased to exist since 10.03.1996, on which date itsname was changed to Ansal Theatres and Clubotels Limited. Thecheque was therefore issued by defunct company.

Further, it is stated that this cheque establishes that Mr. Gopal Ansalhad complete financial control over Uphaar Cinema.Further, it is stated that this cheque establishes that Mr. Gopal Ansalhad complete financial control over Uphaar Cinema.

VI.FILE CONTAINING MINUTES OF MD’S CONFERENCE OFUPHAAR GRAND

This piece of evidence containing 40 pages, whereof, Pages 1, 9, 12,14, 18 and 19 are missing.This piece of evidence containing 40 pages, whereof, Pages 1, 9, 12,14, 18 and 19 are missing.

The said missing documents are the covering letters for the ManagingDirector’s conference held on 07.05.1997, 02.04.1997 and 01.05.1997.The covering letters had named Mr. Gopal Ansal as the ManagingDirector (MD). The minutes, which are not missing, referred only to‘MD’. The said 'MD' could not have been identified without thecovering letters.

It is stated that these letters, therefore unequivocally establish who theMD referred to in the minutes, was. Further, the Covering lettersauthenticate the minutes, as the bare minutes do not bear anysignatures.

All these meetings were proximate to the date of the Uphaar CinemaFire Tragedy and the last two meetings were in held May, 1997, barelyone month before the said fire tragedy occurred on 13.06.1997.

It is stated that, read alongwith the Covering Letters, the minutes makeit clear that the management and day-to-day functioning of UphaarGrand, were held under the chairmanship of Mr. Gopal Ansal as MDand also that Mr. Gopal Ansal was involved in the day-to-dayfunctioning of the Cinema.

VII.ONEREGISTERI.E.OCCURRENCEBOOKOFTHECONTROLROOMHEADQUARTERS,DELHIFIRESERVICES

Pages 363 to 400 of this piece of evidence are missing.Pages 363 to 400 of this piece of evidence are missing.

The relevant page is stated to be page 379, which pertains to thedeparture of Mr. H.S. Panwar, Fire Officer, for inspection of UphaarCinema on 12.05.1997.The relevant page is stated to be page 379, which pertains to thedeparture of Mr. H.S. Panwar, Fire Officer, for inspection of UphaarCinema on 12.05.1997.

The inspection on 12.05.1997 was conducted one month prior to thefire tragedy in Uphaar Cinema, and Mr. H.S. Panwar issued aproforma inspection report on the basis of which an NOC was given.The inspection on 12.05.1997 was conducted one month prior to thefire tragedy in Uphaar Cinema, and Mr. H.S. Panwar issued aproforma inspection report on the basis of which an NOC was given.It is stated that this shows the collusion between Mr. H.S. Panwar andMr. Sushil Ansal & Mr. Gopal Ansal, and the apparent failure of Mr.H.S. Panwar to perform his duties.Mr. Sushil Ansal & Mr. Gopal Ansal, and the apparent failure of Mr.H.S. Panwar to perform his duties.

VIII. OCCURRENCEBOOKREGISTEROFBHIKAJICAMAPLACE FIRE STATION, NEW DELHI

This documentary evidence containing pages 1 to 400, of which (i)Pages 95 to 104 are missing; (ii) Ink has been spread over Pages 109to 116; and (iii) Pages 96 to 113 thereof contain the movement of fireofficers to attend the fire calls and conduct inspections from21.12.1996 to 23.12.1996.This documentary evidence containing pages 1 to 400, of which (i)Pages 95 to 104 are missing; (ii) Ink has been spread over Pages 109to 116; and (iii) Pages 96 to 113 thereof contain the movement of fireofficers to attend the fire calls and conduct inspections from21.12.1996 to 23.12.1996.

It is stated that no movement has been shown for Mr. H.S. Panwar toinspect Uphaar Cinema, but there is proforma inspection report withhis signature dated 22.12.1996.inspect Uphaar Cinema, but there is proforma inspection report withhis signature dated 22.12.1996.

This is stated to be indicative of the collusion between Mr. H.S.Panwar and Mr. Sushil Ansal & Mr. Gopal Ansal.Panwar and Mr. Sushil Ansal & Mr. Gopal Ansal.

IX.CASUAL LEAVE REGISTER MAINTAINED IN DELHI FIRESERVICES HEADQUARTERS FOR THE PERIOD 1995-1996AND SEIZURE MEMO FOR THE SAME

Pages 45 to 50 are missing from this documentary evidence.Pages 45 to 50 are missing from this documentary evidence.

Page 50 thereof shows that Mr. H.S. Panwar was on leave on22.12.1996 (the date of the said proforma inspection report).Page 50 thereof shows that Mr. H.S. Panwar was on leave on22.12.1996 (the date of the said proforma inspection report).

This is stated to indicate the collusion between Mr. H.S. Panwar andMr. Sushil Ansal & Mr. Gopal Ansal.

ARGUMENTS ADVANCED ON BEHALF OF THE PARTIES

16.Ms. Rebecca M. John, learned senior advocate, appearing on behalf ofMr. Sushil Ansal, would, vehemently canvass that the impugned order is badin law since it is rendered on the basis of surmises and conjectures. In otherwords, it is the submission of revisionists that the impugned order deservesto be set aside on the ground that the charges framed against the revisionistsare unsupported by any fact or circumstance brought on record before theLd. Trial Court.

17.Ms. John would also urge that the prosecution has admitted to theweakness of its own case. In this behalf, the attention of this Court would bedrawn to the chargesheet dated 12.02.2007, to urge that the entire case of theprosecution, admittedly, has been based on possibilities and suspicion.

18.It would also be contended by Ms. John that the impugned orderdeserves to be set aside, in view of the settled legal principle that when twoviews are possible at the stage of framing charges, the view favouring theaccused must be adopted by the Court. In this behalf, reliance would beplaced on the decisions in Ashok Kumar Nayyar v. State, reported as 2007Cri LJ 3065; Dr. Anup Kumar Srivastava v. State through CBI, in Crl. MC4360/2012; and Dilawar Balu Kurane v. State of Maharashtra, reported as(2002) 2 SCC 135.

19.The next ground for challenge to the impugned order would be that theLd. Trial Court has failed to elaborate the particulars of the offences and therole attributed to every accused person. Therefore, it would be submitted thatthe impugned order is unsustainable in law, inasmuch as, the same has notbeen rendered in accordance with the mandate of the relevant provisions ofthe CrPC. In order to buttress this submission, reliance would be placed onthe decision in Neelu Chopra & anr. v. Bharti, reported as 2009 (4) JCC3021.

20.Mr. Aggarwal, Ld. Counsel appearing on behalf of Mr. Gopal Ansal,would seek to assail the impugned order on the ground that charges havebeen framed without adhering to the mandate of the provisions undersections 212, 213, 218, 221 of the CrPC. In order to supplement thissubmission, reliance would be placed on the decisions in Ramesan & ors. v.State of Kerala, reported as 2007 Cri LJ 1637; Muniswamy v. State, reportedas AIR 1954 Mysore 81; Kishan Lal Gupta v. King Emperor, reported as 47Cri LJ 1946; State of West Bengal v. Laisal Haque & ors., reported as (1989)3 SCC 166; Jatinder Kumar v. State, reported as 1992 Cri LJ 1482;Banwarilal Jhunjhunwala v. Union of India & anr., reported as AIR 1963SCC 1620.

21.Mr. Narang, learned counsel, appearing on behalf of Mr. D.V.Malhotra, would also urge that the impugned order has been rendered whilstbypassing the mandate of the provisions under sections 227, 228 of theCrPC. In order to fortify this argument, reliance would be placed on thedecisions in Union of India v. Prafulla Kumar Samal & anr., reported as(1979) 3 SCC 4; Ashok Kumar Nayyar v. State, (supra).

22.Next, Ms. John, Ld. Senior advocate and Mr. Pawan Narang, learnedcounsel, would seek to assail the charge framed against the revisionists forthe commission of the offence of conspiracy under the IPC. It would beurged that the Ld. Trial Court has erroneously held that the allegedconspiracy, to destroy the documents in the Main Uphaar Trial, continued topersist even after the factum of the missing documents in the Main UphaarTrial was brought to the knowledge of the concerned Court. In this behalf, itwould be further argued that there is nothing on record to support of thefinding that the conspiracy persisted till the time Mr. Dinesh Chand Sharmawas provided job at A-Plus Security Agency.

In order to buttress this submission, strong reliance would be placed on thedecisions of the Hon’ble Supreme Court in Leo Roy Frey v. Superintendent,District Jail, Amritsar & anr., reported as AIR 1958 SC 119; State of Keralav. P. Sugathan & anr., reported in (2000) 8 SCC 203; FirozuddinBasheeruddin & ors. v. State of Kerala, reported as 2001 SCC (Crl.) 1341;and State v. Nalini, reported as (1999) 5 SCC 253.

23.It would further be urged, that the Ld. Trial Court has proceeded toframe the charge of conspiracy against the revisionists based on suspicion,assumptions and presumptions, and by connecting few bits here, and fewbits there; and that the same is contrary to the settled principles of criminaljurisprudence. In order to buttress this submission, reliance would be placedon the decisions in State of Kerala v. P. Sugathan & anr., (supra); P.K.Narayanan v. State, reported as (1995) 1 SCC 142; CBI v. K. Narayana Rao,reported as (2012) 9 SCC 512; V.C. Shukla v. State (Delhi Administration),reported as (1980) 2 SCC 665; Sanjay Singh v. State of Uttar Pradesh,

reported as 1994 Supp (2) SCC 707; Kehar Singh v. Delhi Administration,reported as (1988) 3 SCC 609; Subramanian Swamy v. A.Raja, reported as(2012) 9 SCC 257; State of Maharashtra & ors. v. Som Nath Thapa,reported as (1996) 4 SCC 659; State (NCT of Delhi) v. Navjot Sandhu,reported as (2005) 11 SCC 600; Emperor v. Pir Miundin Adbul Rehman &anr., reported as AIR 1944 Sind 225; Amritlal v. Emperor, reported as AIR1916 Cal. 188; State of Karnataka v. Muniswamy & ors., reported as (1977)2 SCC 699; K. R. Purushothaman v. State of Kerala, reported as (2005) 12SCC 631.

24.It would also be the contention of the learned counsel appearing onbehalf of the revisionists that the revisionists have played no role in thealleged conspiracy. The arguments, in this regard, are as follows:

i.Ms. Rebecca M. John, learned senior advocate, appearing on behalf ofMr. Sushil Ansal, would argue that only three out of all the documentswhich were found to be torn, tampered with, or which went missing,pertained to Mr. Sushil Ansal. Ms. John would then canvass that, theSeizure memo dated 18.07.1997, and Cheque no. 955725 dated26.06.1995 for sum of Rs.50,00,000/- signed by him, already stoodadmitted by Mr. Sushil Ansal at the stage of charge on 27.02.2001,during the Main Uphaar Trial. Further, that the said Cheque no.955725 was later located by the Court staff in the Main Uphaar Trial.Furthermore, there is nothing on record to support the case of theprosecution that Mr. Sushil Ansal could have benefitted/did in factbenefit, from the alleged mutilation or destruction of the above saidMr. Sushil Ansal, would argue that only three out of all the documentswhich were found to be torn, tampered with, or which went missing,pertained to Mr. Sushil Ansal. Ms. John would then canvass that, theSeizure memo dated 18.07.1997, and Cheque no. 955725 dated26.06.1995 for sum of Rs.50,00,000/- signed by him, already stoodadmitted by Mr. Sushil Ansal at the stage of charge on 27.02.2001,during the Main Uphaar Trial. Further, that the said Cheque no.955725 was later located by the Court staff in the Main Uphaar Trial.Furthermore, there is nothing on record to support the case of theprosecution that Mr. Sushil Ansal could have benefitted/did in factbenefit, from the alleged mutilation or destruction of the above saidii.

iii.

two documents and the Page no. 123 of the file of Delhi Fire Servicesregarding Uphaar Cinema, Green Park, New Delhi.

It would then be canvassed that the Ld. Trial Court erroneously cameto conclusion that Mr. Sushil Ansal controlled the day-to-dayfunctioning of the Uphaar Cinema. Further, that there is no material onrecord to show that the alleged communication between Mr. P.P. Batraand Mr. Dinesh Chand Sharma was established at the behest of Mr.Sushil Ansal. Furthermore, it would be the case of Mr. Sushil Ansalthat he had nothing to do with the job secured to Mr. Dinesh ChandSharma at A-Plus Security Agency.

Mr. Pawan Narang, learned counsel appearing on behalf of Mr. D.V.Malhotra, would contend that the mere act of recommending Mr.Dinesh Chand Sharma for job at A-Plus Security Agency, would notmake the former liable to be prosecuted for the alleged offences. Itwould further be vehemently urged that all the allegation of theprosecution against Mr. D.V. Malhotra, with respect to payment to ahigher amount of salary in cash, to Mr. Dinesh Chand Sharma, isunsupported by any material on record.

Mr. Mittal, learned counsel appearing on behalf of Mr. Anoop Singhwould urge firstly, that since the latter was neither witness, nor anaccused in the Main Uphaar Trial, he could not have benefitted fromthe alleged conspiracy in any manner whatsoever. Secondly, it wouldbe argued that charges framed against Mr. Anoop Singh ought to bequashed since the allegations against him only are acts of commissionand omission after the object of conspiracy already stood achieved.

25.Ms. John and Mr. Aggarwal, learned counsel, would then contend thatthe charge of conspiracy does not hold water, inasmuch as, no mens rea hasbeen found in the acts committed by Mr. Dinesh Chand Sharma, who isallegedly the main actor in the conspiracy, by the inquiry officer conductinga departmental inquiry against him. In this behalf, it would be asseveratedthat the Ld. Trial Court has failed to appreciate the findings in the inquiryreport dated 30.04.2004 of Mr. S.C. Malik, Ld. Additional Sessions Judge,whereby no criminality has been attributed to the acts committed by Mr.Dinesh Chand Sharma; and that Mr. Dinesh Chand Sharma has in fact, onlybeen indicted for dereliction of duty as an act of high carelessness andnegligence amounting to serious misconduct.

26.Ms. John would then urge that, inasmuch as, the allegations ofmutilation, tearing and destroying of documents have been made against therevisionists solely based on inferences unsupported by any material broughton record before the Ld. Trial Court; the charge framed under section 109IPC cannot be sustained in law. In order to supplement this argument,reliance would be placed on the decisions in Saju v. State of Kerala, reportedas (2001) 1 SCC 378; Ganga Devi v. State, reported as 1985 (9) DRJ 158;and Kulwant Singh v. State of Bihar, reported as (2007) 15 SC 670.

27.Mr. Narang would then canvass that the charge framed under section201, IPC is misfounded in law and thus, ought to be quashed.

28.Challenge to the charge framed for the offence under section 409 IPC,would sought to be made by Mr. Aggarwal. It would be contended by Mr.Aggarwal that the ingredients of the offence punishable under section 409IPC are not made out. Further, in this regard, it would be urged that contrary

to what has been found by the Ld. Trial Court, the documents in relation towhich the offences have been committed, would fall under the category of‘evidence’ and not ‘property’. In this behalf, reliance would be placed on thedecisions in Varsha Heera v. State, rendered in Crl. Rev. Pet. 174/2008;Sardar Singh v. State of Haryana, reported as 1977 Crl LJ 1158; S.Narasimha Kumar & ors. v. State of A.P., reported as 2003 Crl LJ 3188.

29.Challenge to the impugned order would also sought to be made by Ms.John on the ground that the facts & circumstances and material of the MainUphaar Trial has been relied upon by the Ld. Trial Court to pass theimpugned order, which is impermissible in law. In order to amplify thissubmission, reliance would be placed on the decision in Mithulal & anr. v.State of Madhya Pradesh, reported as (1975) 3 SCC 529.

30.The impugned order would also be assailed on the ground that thedisclosure statement of Mr. Dinesh Chand Sharma ought not to be reliedupon to pass the impugned order, inasmuch as, the reliance placed upon thedisclosure statement, at the stage of framing of charges, is contrary to theprinciples of criminal jurisprudence. In order to amplify this submission,reliance would be placed on the decisions in Amit Pratap & anr. v. State,reported as 2012 (1) JCC 86; Kapil Kumar v. State, reported as 1996 1 AD(Delhi) 86; and Mahabir Mandal v. State of Bihar, reported as (1972) 1 SCC748.

31.It would also be urged by Ms. John and Mr. Narang, learned counsel,that the invocation of the principles of section 10 of the Indian Evidence Act,1872, (hereinafter referred to as 'the Evidence Act') is misplaced, inasmuchas, the charge of conspiracy itself is misfounded. In this behalf, reliance

would be placed on the decisions in Natwarlal Sakarlal Mody v. State ofBombay, reported as (1963) 65 BLR 660 (SC); Emperor v. Manchankhan,reported as 34 Bom LR 1087 ; and Prakash Chand v.State (DelhiAdministration), reported as 1979 (3) SCC 90.

32.Mr. Narang would also make an asseveration that the proceedingsbefore the Ld. Trial Court would stand vitiated, inasmuch as, prior sanctionunder the provisions of section 196 CrPC, for the prosecution of Mr. D.V.Malhotra, has not been obtained. In order to fortify this submission, reliancewould be placed on the decision in Jugeshwar Singh & ors. v. Emperor,reported as AIR 1936 Pat 346; Rewati Raman Singh v. State, reported as2012 (127) DRJ 176; Md. Batchal Abdullah v. Emperor, reported as AIR1934 Sind 4.

33.Mr. Aggarwal would also make an asseveration that the Ld. TrialCourt ought not to have proceeded to frame charges against the accusedpersons, without there being sanction for prosecution of Mr. Dinesh ChandSharma. In order to buttress this submission, reliance would be placed on thedecisions in Ashok Kumar Aggarwal v. CBI & ors., rendered in W.P. (Crl)1401/2002; and Prof. N.K. Ganguly v. CBI, reported as (2016) 2 SCC 143.34.Mr. Aggarwal would vehemently assert that, contrary to what has beenfound by the Ld. Trial Court, the proceedings in the Main Uphaar Trial werenot hampered by any acts of commission or omission on the part of therevisionists, inasmuch as, the prosecution proceeded to in fact, leadsecondary evidence qua the documents which went missing; were torn,tampered with; or destroyed. In order to buttress this submission, reliancewould be placed on the decisions in State of NCT of Delhi v. Shiv Charan

Bansal, reported as 2009 (3) JCC 2202; State of U.P. v. Dr. Sanjay Singh &anr., reported as 1994 Supp (2) SCC 707.

35.Mr. Aggarwal would also urge that the reliance by the Ld. Trial Court,upon the statements of Mr. Anokhe Lal and Mr. Shiv Raj Singh, under theprovisions of section 161 CrPC, is misplaced, inasmuch as, there are evidentcontradictions in the said statements. In order to buttress this submission,reliance would be placed on the decision in Ashok Kumar Nayyar v. State(supra).

36.Mr. Aggarwal would then contend that the Ld. Trial also erred inrelying upon the statements of Mr. Anokhe Lal and Mr. Shiv Raj Singh,under the provisions of section 161 CrPC, inasmuch as, the said persons areunpardoned accomplices and thus, their statements cannot be considered bythe Court for framing of charges against the accused persons.

37.Mr.AggarwalwouldassertthatthisCourt,inCriminalMiscellaneous Main No. 2380 of 2006 by way of order dated 05.05.2006,had directed the Economic Offences Wing of the Delhi Police to register acase under appropriate provisions of law with regard to the incident ofremoval/tampering with/mutilation of documents from the judicial record ofthe Ld. Trial Court. In this behalf, it would thus be contended that the act ofthe prosecution to register an FIR on the complaint of specific person, isnon est in the eyes of law. In this behalf, reliance would be placed on thedictum of the Hon’ble Supreme Court in State of Punjab v. Davinder PalSingh Bhullar & ors., reported as (2011) 14 SCC 770.

38.It would also be urged that as opposed to the case of the prosecution,there is no material on record to show that the documents that were tampered

with and those that went missing, were vital in nature, for the proceedings inthe Main Uphaar Trial.

39.Per contra, Mr. Dayan Krishnan, learned senior advocate, appearingon behalf of the State, would, firstly refer to the law elucidating the scope ofrevisional jurisdiction of the Court. In this behalf, the attention of this Courtwould be drawn to the decisions in Sheonandan Paswan v. State of Bihar,reported as (1987) 1 SCC 288; Ashish Chadha v. Asha Kumari, reported as(2012) 1 SCC 680; Amit Kapoor v. Ramesh Chander, reported as (2012) 9SCC 460; and State of Tamil Nadu v. Mariya Anton Vijay, reported as (2015)9 SCC 294.

40.Next, the attention of this Court would be drawn to the law withregard to framing of charges. Reference would be made to the decisions inSuperintendent & Remembrancer of Legal Affairs, West Bengal v. AnilKumar Bhunja, reported as (1979) 4 SCC 274; Palwinder Singh v.Balwinder Singh, reported as (2008) 14 SCC 504; Om Wati v. State thr.Delhi Administration, reported as (2001) 4 SCC 333; State of M.P. v. S.B.Johari, reported as (2000) 2 SCC 57; and State of Tamil Nadu v. MariyaAnton Vijay (supra).

41.With regard to the charge of conspiracy, Mr. Dayan Krishnan wouldseek to refer to the decisions in Baliya v. State of Madhya Pradesh, reportedas (2012) 9 SCC 696; Hardeo Singh v. State of Bihar, reported as (2000) 5SCC 623; State of M.P. v. S.B. Johari (supra); State v. Nalini (supra); andYakub Abdul Razak Memon v. State of Maharashtra, reported as (2013) 13SCC 1.

42.Whilst further arguing on the correctness of the charge of conspiracyagainst the revisionists, it would be submitted by Mr. Krishnan that theobject of the conspiracy was to aid the accused persons, namely, Mr. SushilAnsal, Mr. Gopal Ansal and Mr. H.S. Panwar, in the Main Uphaar Trial. Itwould further be submitted in this behalf, that the conspiracy, in fact,continued till Mr. Dinesh Chand Sharma was provided job at A-PlusSecurity Agency.

In order to fortify this submission, reliance would be placed on the decisionsin Leo Roy Frey v. Superintendent, District Jail, Amritsar (supra); YakubAbdul Razak Memon v. State of Maharashtra (supra); and State v. Nalini(supra).

43.Further, it would be urged on behalf of the State that the material,facts and circumstances from the Main Uphaar Trial can be used in the trialin the present case, in accordance with the principles of law governing theprovisions of sections 5, 80, 145, 155 and 157 of the Indian Evidence Act,1872. In order to amplify this submission, reliance would be placed on thedecision in State of Kerala v. Babu, reported as (1999) 4 SCC 621.

44.Next,Mr.DayanKrishnanwouldvehementlycontrovertthesubmissions challenging the correctness of the impugned order, on the anvilof the mandate of the provisions governing framing of charges, under therelevant provisions of the CrPC, by placing reliance on the principles laiddown in Kanti Bhadra Shah v. State of West Bengal, reported as (2000) 1SCC 722.

45.It would then be urged on behalf of the State that in accordance withthe provision of section 27 of the Indian Evidence Act, 1872, the disclosure

statement of Mr. Dinesh Chand Sharma can be relied upon by theprosecution to the extent of, (i) the information therein which leads todiscovery of facts; and (ii) for the factum regarding the contact establishedbetween Mr. Dinesh Chand Sharma and Mr. P.P. Batra, which can be provedby the call data records available with the prosecution.

In order to buttress this submission, Mr. Dayan Krishnan would seek to placereliance on the decisions in Pulukuri Kottaya v. King Emperor, reported asAIR 1947 PC 67; and State (NCT of Delhi) v. Navjot Sandhu (supra).

46.Next, it would be urged on behalf of the State, that the prosecutionfaced grave difficulties whilst leading secondary evidence in the MainUphaar Trial, not merely because the documents, which went missing, weredestroyed, or tampered with, had to be reconstructed; but further because theapplication instituted seeking permission to lead secondary evidence wasvehemently opposed, directly and indirectly, by Mr. Sushil Ansal, Mr. GopalAnsal and Mr. H.S. Panwar.

47.It would lastly be submitted on behalf of the State that there is norequirement of sanction of prosecution as against Mr. D.V. Malhotra andMr. Dinesh Chand Sharma.

48.Mr. Vikas Pahwa, learned senior counsel appearing on behalf ofAVUT, the complainant, would firstly contend that the phrase ‘other person’under the provisions of section 401(2) also includes the complainant in thepresent case, and therefore, the AVUT can be granted the right to be heard ina criminal revision petition.

49.It would be then urged that the contentions of the revisionists are ill-founded and ought to be rejected in toto.

50.With regard to the offence of conspiracy, it would be submitted thatthe objective of the conspiracy in the present case has been to sabotage theMain Uphaar Trial and to seek acquittal of the accused persons in the MainUphaar Trial, namely, Mr. Sushil Ansal, Mr. Gopal Ansal, Mr. H.S. Panwar;and the said object was sought to be achieved by the removal/destruction ofvital documents from judicial record of the proceedings in the Main UphaarTrial. In order to buttress this submission, reliance has been placed on thedecision by the Hon’ble High Court of Bombay at Nagpur, in Sarika v. Stateof Maharashtra in Criminal Application No. 1964/2007 dated 07.03.2008.

51.It would then be urged that the impugned order ought to be upheld inits entirety, inasmuch as, the beneficiaries of conspiracy need notnecessarily do an overt act to be charged with the offence of conspiracy.Reliance in this behalf would be placed on the decisions in Kehar Singh(supra); Yash Pal Mittal (supra); Ajay Aggarwal v. Union of India reportedas AIR 1993 SC 1637; and Ram Narain Popli v. Central Bureau ofInvestigation reported as (2003) 3 SCC 641.

52.It would be urged lastly that, the grant of permission for leadingsecondary evidence was opposed by inter alia the accused persons, namely,Mr. Gopal Ansal and Mr. H.S. Panwar. It would also be urged that, thesmooth conduct of the trial proceedings in the Main Uphaar Trial washampered by the revisionists, firstly, by destroying primary evidence andthereafter by opposing to the grant of permission to lead secondary evidence.53.I have heard the learned counsel appearing on behalf of the parties andperused the entire material and case-record.

54.The issues that arise for consideration in the present batch of petitionsfall within narrow compass. The same are as follows:

(i)Whether sanctions for prosecution of Mr. Dinesh Chand Sharma andMr. D.V. Malhotra, were required to be obtained before proceedingagainst them.Mr. D.V. Malhotra, were required to be obtained before proceedingagainst them.

(ii)Whether there exist any circumstances for this Court to interfere withthe impugned order framing charge, on account of there being nostrong suspicion & prima facie case against the accused persons,borne out from the material on record.the impugned order framing charge, on account of there being nostrong suspicion & prima facie case against the accused persons,borne out from the material on record.

55.For the determination of the first issue, it would be relevant to refer tothe following statutory provisions:

I.Section 197(1), CrPC:

“197. Prosecution of Judges and public servants.

(1) When any person who is or was Judge or Magistrate or publicservant not removable from his office save by or with the sanction of theGovernment is accused of any offence alleged to have been committedby him while acting or purporting to act in the discharge of his officialduty, no Court shall take cognizance of such offence except with theprevious sanction:servant not removable from his office save by or with the sanction of theGovernment is accused of any offence alleged to have been committedby him while acting or purporting to act in the discharge of his officialduty, no Court shall take cognizance of such offence except with theprevious sanction:

(a) in the case of person who is employed or, as the case may be, was atthe time of commission of the alleged offence employed, in connectionwith the affairs of the Union, of the Central Government;the time of commission of the alleged offence employed, in connectionwith the affairs of the Union, of the Central Government;

(b) in the case of person who is employed or, as the case may be, was atthe time of commission of the alleged offence employed, in connectionwith the affairs of State, of the State Government: Provided that wherethe alleged offence was committed by person referred to in clause (b)during the period while Proclamation issued under clause (1) of article356 of the Constitution was in force in State, clause (b) will apply as iffor the expression" State Government" occurring therein, the expression"Central Government" were substituted.”the time of commission of the alleged offence employed, in connectionwith the affairs of State, of the State Government: Provided that wherethe alleged offence was committed by person referred to in clause (b)during the period while Proclamation issued under clause (1) of article356 of the Constitution was in force in State, clause (b) will apply as iffor the expression" State Government" occurring therein, the expression"Central Government" were substituted.”

56.A plain reading of the above extracted provision of section 197(1),CrPC, would reveal that the requirement of sanction for prosecution undersection 197(1), CrPC, is attracted only against public servant who isremovable from his office by an order of the Government.

II.Section 196, CrPC:

“196. Prosecution for offences against the State and for criminalconspiracy to commit such offence.conspiracy to commit such offence.

(1) No Court shall take cognizance of-

(a) any offence punishable under Chapter VI or under section 153A, ofIndian Penal Code, or Section 295 or sub section (1) of section 505 ofthe Indian Penal Code (45 of 1860) orIndian Penal Code, or Section 295 or sub section (1) of section 505 ofthe Indian Penal Code (45 of 1860) or

(b) criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in section 108A of the IndianPenal Code (45 of 1860), except with the previous sanction of the CentralGovernment or of the State Government.Penal Code (45 of 1860), except with the previous sanction of the CentralGovernment or of the State Government.

(1A) No Court shall take cognizance of-

(a) any offence punishable under section 153B or sub- section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860 ), orsection (3) of section 505 of the Indian Penal Code (45 of 1860 ), or

(b) criminal conspiracy to commit such offence, except with theprevious sanction of the Central Government or of the State Governmentor of the District Magistrate.previous sanction of the Central Government or of the State Governmentor of the District Magistrate.

(2) No Court shall take cognizance of the offence of any criminalconspiracy punishable under section 120B of the Indian Penal code (45of 1860), other than criminal conspiracy to commit an offencepunishable with death, imprisonment for life or rigorous imprisonmentfor term of two years or upwards, unless the State Government or theDistrict Magistrate has consented in writing to the initiation of theproceedings:conspiracy punishable under section 120B of the Indian Penal code (45of 1860), other than criminal conspiracy to commit an offencepunishable with death, imprisonment for life or rigorous imprisonmentfor term of two years or upwards, unless the State Government or theDistrict Magistrate has consented in writing to the initiation of theproceedings:

Provided that where the criminal conspiracy is one to which theprovisions of section 195 apply, no such consent shall be necessary.”provisions of section 195 apply, no such consent shall be necessary.”

57.Section 196(1) and (1A) enumerates the specific offences for whichsanction for prosecution is required to be obtained. Section 196(2) of theCrPC clearly mandates that sanction for prosecution ought to be taken, inter

alia, for criminal conspiracy entered into for the commission of offencesother thanthe offences punishable with death, life imprisonment, or rigorousimprisonment for term of two years or upwards.

58.The argument that has been advanced by the revisionists is in the teethof the provisions of section 196 and section 197(1) of the CrPC. It has beenurged that proceedings in the instant case would stand vitiated since sanctionis precursory sacrosanct step and sine qua non for prosecution of publicservants, namely, Mr. Dinesh Chand Sharma (ahalmad of the Court wherethe Main Uphaar Trial was being conducted) and Mr. D.V. Malhotra(Retired Brigadier, working as General Manager of SEML).

59.The foregoing argument is fallacious and devoid of merit for thefollowing reasons:

(i)Sections 109, 201, 409, 120-B, IPC are not included in the specific listof offences specified under the Provisions of section 196(1) and (1A).of offences specified under the Provisions of section 196(1) and (1A).(ii)The provision of section 196(2) provides that sanction for prosecutionof public servants is required to be obtained for the offence of criminalconspiracy for the commission of offences other than the offencespunishable with death, life imprisonment or rigorous imprisonment fora term of 02 years or above. In the instant case, charges have beenframed for the offences punishable under sections 109, 201, 409 and120-B of the IPC. Allegedly, the conspiracy in the instant case hasbeen hatched to commit the offences under sections 409, 201, IPC,which offences are punishable with life imprisonment or rigorousimprisonment for term of 02 years or above. In view thereof theof public servants is required to be obtained for the offence of criminalconspiracy for the commission of offences other than the offencespunishable with death, life imprisonment or rigorous imprisonment fora term of 02 years or above. In the instant case, charges have beenframed for the offences punishable under sections 109, 201, 409 and120-B of the IPC. Allegedly, the conspiracy in the instant case hasbeen hatched to commit the offences under sections 409, 201, IPC,which offences are punishable with life imprisonment or rigorousimprisonment for term of 02 years or above. In view thereof the

provision of section 196(2) is not attracted to the facts of the instantcase.

(iii)The provision of section 197(1) provides that sanction for prosecutionis required to be obtained in case of public servant who is removablefrom his office by the Government. The term ‘Government’ has beendefined under section 17 of the IPC to mean the Central Governmentand the State Government. In the present case, however, Mr. DineshChand Sharma was removable from his office by an order of theDistrict and Sessions Judge. Therefore, the provision is not attracted asagainst Mr. Dinesh Chand Sharma.

Furthermore, the Hon’ble Supreme Court and this Court, have heldthat the protective umbrella of the provisions of section 197, CrPC, isavailable only when direct connection or inseparable link with one’sofficial duty as public servant are clearly demonstrated. At the most,one’s official status might have furnished him with an opportunity oroccasion to commit the alleged criminal act. [Ref: B. Saha v. M.S.Kochhar reported as (1979) 4 SCC 177; Devinder Singh & ors v. Stateof Punjab thr. CBI reported as (2016) 12 SCC 87; Rekha Sharma v.CBI, reported as (2015) 218 DLT 1.]

In light of the aforesaid legal position, it is evident that the acts ofcommission and omission by Mr. Dinesh Chand Sharma, cannot besaid to have been committed whilst in discharge of his official dutiesas court ahalmad. Furthermore, Mr. D.V. Malhotra, is alleged tohave committed the offences in his capacity as the General Managerof SEML and not as public servant.

(v)Moreover, even otherwise, the Hon’ble Supreme Court has also heldin number of decisions that sanction under Section 197, CrPC forprosecution for an offence under Section 409, IPC is not necessary.[Ref: Om Prakash Gupta v. State of U.P. reported as AIR 1967 SC458; Baijnath v. State of M.P., reported as AIR 1966 SC 220and Harihar Prasad v. State of Bihar, reported as (1972) 3 SCC 89]in number of decisions that sanction under Section 197, CrPC forprosecution for an offence under Section 409, IPC is not necessary.[Ref: Om Prakash Gupta v. State of U.P. reported as AIR 1967 SC458; Baijnath v. State of M.P., reported as AIR 1966 SC 220and Harihar Prasad v. State of Bihar, reported as (1972) 3 SCC 89]60.In view of the aforesaid reasons, the first issue that arose forconsideration is answered in the negative and against the revisionists.consideration is answered in the negative and against the revisionists.

61.For the determination of the second issue, at the outset, it would bepertinent to first refer to the statutory provisions that are applicable in thepresent gamut of facts and circumstances.

I.Section 227 CrPC:

“Section 227. Discharge.

If, upon consideration of the record of the case and the documents submittedtherewith, and after hearing the submissions of the accused and the prosecution inthis behalf, the Judge considers that there is not sufficient ground for proceedingagainst the accused, he shall discharge the accused and record his reasons for sodoing.”therewith, and after hearing the submissions of the accused and the prosecution inthis behalf, the Judge considers that there is not sufficient ground for proceedingagainst the accused, he shall discharge the accused and record his reasons for sodoing.”

II.Section 228 CrPC:

“Section 228. Framing of charge.

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinionthat there is ground for presuming that the accused has committed an offencewhich-

(a) is not exclusively triable by the Court of Session, he may, frame acharge against the accused and, by order, transfer the case for trial to theChief Judicial Magistrate, and thereupon the Chief Judicial Magistrateshall try the offence in accordance with the procedure for the trial ofwarrant- cases instituted on police report;charge against the accused and, by order, transfer the case for trial to theChief Judicial Magistrate, and thereupon the Chief Judicial Magistrateshall try the offence in accordance with the procedure for the trial ofwarrant- cases instituted on police report;

(b) is exclusively triable by the Court, he shall frame in writing chargeagainst the accused.against the accused.

(2) Where the Judge frames any charge under clause (b) of sub- section (1), thecharge shall be read and explained to the accused and the accused shall be askedwhether he pleads guilty of the offence charged or claims to be tried.”

62.A bare reading of the above provisions, in the context of the case athand, makes the following abundantly clear:hand, makes the following abundantly clear:

(i)The Court, at the stage of framing of charges, has to consider thematerial on record and hear the submissions of the prosecution andaccused persons in that behalf.material on record and hear the submissions of the prosecution andaccused persons in that behalf.

(ii)Thereafter, if the Court is of the opinion that there are no sufficientgrounds for proceeding against the accused, the accused may bedischarged, after recording reasons in that behalf.grounds for proceeding against the accused, the accused may bedischarged, after recording reasons in that behalf.

(iii)However, if there exists sufficient ground for proceeding against theaccused, charge shall be framed against him, in writing.accused, charge shall be framed against him, in writing.

III.Section 211, CrPC:

“211. Contents of charge.

(1) Every charge under this Code shall state the offence with which theaccused is charged.

(2) If the law which creates the offence gives it any specific- name, theoffence may be described in the charge by that name only.

(3) If the law which creates the offence does not give it any specific name,so much of the definition of the offence must be stated as to give theaccused notice of the matter with which he is charged.

(4) The law and section of the law against which the offence is said tohave been committed shall be mentioned in the charge.

(5) The fact that the charge is made is equivalent to statement that everylegal condition required by law to constitute the offence charged wasfulfilled in the particular case.

(6) The charge shall be written in the language of the Court.

(7) If the accused, having been previously convicted of any offence, isliable, by reason of such previous conviction, to enhanced punishment, orto punishment of different kind, for subsequent offence, and it isintended to prove such previous conviction for the purpose of affecting thepunishment which the Court may think fit to award for the subsequentoffence, the fact, date and place of the previous conviction shall be statedin the charge; and if such statement has been omitted, the Court may add itat any time before sentence is passed.”

IV.Section 212, CrPC:

“212. Particulars as to time, place and person.

(1) The charge shall contain such particulars as to the time and place of thealleged offence, and the person (if any) against whom, or the thing (if any)in respect of which, it was committed, as are reasonably sufficient to givethe accused notice of the matter with which he is charged.

(2) When the accused is charged with criminal breach of trust or dishonestmisappropriation of money or other movable property, It shall be sufficientto specify the gross sum or, as the case may be, describe the movableproperty in respect of which the offence is alleged to have beencommitted, and the dates between which the offence is alleged to havebeen committed, without specifying particular items or exact dates, and thecharge so framed shall be deemed to be charge of one offence within themeaning of section 219; Provided that the time included between the firstand last of such dates shall not exceed one year.”

V.Section 213, CrPC:

“213. When manner of committing offence must be stated.

When the nature of the case is such that the particulars mentioned insections 211 and 212 do not give the accused sufficient notice of thematter with which he is charged, the charge shall also contain suchparticulars of the manner in which the alleged offence was committed aswill be sufficient for that purpose.”

63.The object of sections 211 to 213 of the CrPC is evidently to provide afair idea to the accused persons of the offence with which they are beingcharged with.

VI.Section 27, the Evidence Act:

“27. How much of information received from accused may be—proved.

Provided that, when any fact is deposed to as discovered inconsequence of information received from person accused of anyoffence, in the custody of police officer, so much of suchinformation, whether it amounts to confession or not, as relatesdistinctly to the fact thereby discovered, may be proved.”

64.Starting with proviso, this provision lifts the ban against theadmissibility of the confession/statement made to the police to the limitedextent by allowing proof of information of specified nature furnished bythe accused in police custody. In this sense Section 27 is considered to be anexception to the principles embodied in Sections 25 and 26 of the Evidence

Act.

VII.Section 5, Evidence Act:

“5. Evidence may be given of facts in issue and relevant facts.

Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafterdeclared to be relevant, and of no others.

Explanation-

This section shall not enable any person to give evidence of fact whichhe is disentitled to prove by any provision of the law for the time being inforce relating to Civil Procedure.

Illustrations-

(a) is tried for the murder of by beating him with club with theintention of causing his death. At A’s trial the following facts are inissue:— A’s beating with the club; A’s causing B’s death by suchbeating; A’s intention to cause B’s death.

(b) suitor does not bring with him, and have in readiness for productionat the first hearing of the case, bond on which he relies. This section doesnot enable him to produce the bond or prove its contents at subsequentstage of the proceedings, otherwise than in accordance with the conditionsprescribed by the Code of Civil Procedure.”

VIII.Section 80, Evidence Act:

“80. Presumption as to documents produced as record of evidence.

Whenever any document is produced before any Court, purporting to be arecord or memorandum of the evidence, or of any part of the evidence,given by witness in judicial proceeding or before any officer authorizedby law to take such evidence, or to be statement or confession by anyprisoner or accused person, taken in accordance with law, and purportingto be signed by any Judge or Magistrate, or by any such officer asaforesaid, the Court shall presume—

That the document is genuine; that any statements as to the circumstancesunder which it was taken, purporting to be made by the person signing it,are true, and that such evidence, statement or confession was duly taken.”

IX.Section 145, Evidence Act:

“145. Cross-examination as to previous statements in writing.

witness may be cross-examined as to previous statements made by himin writing or reduced into writing, and relevant to matters in question,without such writing being shown to him, or being proved; but, if it is

intended to contradict him by the writing, his attention must, before thewriting can be proved, be called to those parts of it which are to be usedfor the purpose of contradicting him.”

X.Section 155, Evidence Act:

“Impeaching credit of witness:

The credit of witness may be impeached in the following ways by theadverse party, or with the consent of the Court, by the party who calls him:

(1) By the evidence of persons who testify that they, from their knowledgeof the witness believe him to be unworthy of credit;

(2) By proof that the witness has been bribed, or has accepted the offer of abribe, or has received any other corrupt inducement to give his evidence;

(3) By proof of former statements inconsistent with any part of hisevidence which is liable to be contradicted;

Explanation:A witness declaring another witness to be unworthy of credit may not,upon his examination-in-chief, give reasons for his belief, but he may beasked his reasons in cross-examination, and the answers which he givescannot be contradicted, though, if they are false, he may afterwards becharged with giving false evidence.Illustrations:(a) sues В for the price of goods sold and delivered to B. С says that he delivered the goods to B. Evidence is offered to show that, on previous occasion, he said that hehad not delivered the goods to B.The evidence is admissible.(b) is indicted for the murder of B.С says the B, when dying, declared that had given В the wound of which he died. Evidence is offered to show that, on previous occasion, С said that the wound was not given by or in his presence.The evidence is admissible.”

XI.Section 157, Evidence Act:

“157. Former statements of witness may be proved to corroborate latertestimony as to same fact.—In order to corroborate the testimony of awitness, any former statement made by such witness relating to the samefact, at or about the time when the fact took place, or before any authoritylegally competent to investigate the fact, may be proved.”

XII.Section 201, IPC:

“201. Causing disappearance of evidence of offence, or giving falseinformation to screen offender.

Whoever, knowing or having reason to believe that an offence hasbeen committed, causes any evidence of the commission of thatoffence to disappear, with the intention of screening the offender fromlegal punishment, or with that intention gives any informationrespecting the offence which he knows or believes to be false; if acapital offence.—shall, if the offence which he knows or believes tohave been committed is punishable with death, be punished withimprisonment of either description for term which may extend toseven years, and shall also be liable to fine; if punishable withimprisonment for life.—and if the offence is punishable withimprisonment for life, or with imprisonment which may extend to tenyears, shall be punished with imprisonment of either description for aterm which may extend to three years, and shall also be liable to fine;if punishable with less than ten years’ imprisonment.—and if theoffence is punishable with imprisonment for any term not extending toten years, shall be punished with imprisonment of the descriptionprovided for the offence, for term which may extend to one-fourthpart of the longest term of the imprisonment provided for the offence,or with fine, or with both.Illustration: A, knowing that has murdered Z, assists to hide thebody with the intention of screening from punishment. is liable toimprisonment of either description for seven years, and also to fine.”

65.A bare reading of the above extracted provision makes it clear that themain ingredients to constitute an offence under this section are as follows:

a) that an offence has been committed;

b) that the accused knew or had reason to believe the commission of suchan offence;an offence;

c) that with such knowledge or belief, he: (i) caused any evidence of thecommission of that offence to disappear, or (ii) gave any informationrelating to that offence which he then knew or believed to be false;commission of that offence to disappear, or (ii) gave any informationrelating to that offence which he then knew or believed to be false;

d) that he did so as aforesaid with the intention of screening the offenderfrom legal punishment; andfrom legal punishment; and

e) if the charge be of an aggravated form, it must be further proved thatthe offence in respect of which the accused did as above mentioned,was punishable with death or imprisonment for life or imprisonmentextending to 10 years.the offence in respect of which the accused did as above mentioned,was punishable with death or imprisonment for life or imprisonmentextending to 10 years.

XIII.Section 409, IPC:“409. Criminal breach of trust by public servant, or by banker, merchantor agent.“409. Criminal breach of trust by public servant, or by banker, merchantor agent.

Whoever, being in any manner entrusted with property, or with anydominion over property in his capacity of public servant or in the wayof his business as banker, merchant, factor, broker, attorney or agent,commits criminal breach of trust in respect of that property, shall bepunished with 1[imprisonment for life], or with imprisonment of eitherdescription for term which may extend to ten years, and shall also beliable to fine.”dominion over property in his capacity of public servant or in the wayof his business as banker, merchant, factor, broker, attorney or agent,commits criminal breach of trust in respect of that property, shall bepunished with 1[imprisonment for life], or with imprisonment of eitherdescription for term which may extend to ten years, and shall also beliable to fine.”

66.For bringing home charge under this section, firstly, it is essentialthat the prosecution proves that the accused person was entrusted with theproperty or with any dominion or power over it. Secondly, it has to beestablished that in respect of the property so entrusted, there was commissionof criminal breach of trust.

67.Criminal breach of trust, as provided under section 405 of the IPC,consists of any of the positive acts, namely, misappropriation, conversion,

use, or even the disposal of property in violation of the mandate of lawprescribing the mode in which the entrustment is to be discharged.

XIV.Section 109, IPC:

“109. Punishment of abetment if the act abetted is committed inconsequenceandwherenoexpressprovisionismadeforitspunishment.—Whoever abets any offence shall, if the act abetted iscommitted in consequence of the abetment, and no express provision ismade by this Code for the punishment of such abetment, be punished withthe punishment provided for the offence. Explanation.—An act or offenceis said to be committed in consequence of abetment, when it is committedin consequence of the instigation, or in pursuance of the conspiracy, orwith the aid which constitutes the abetment. Illustrationsconsequenceandwherenoexpressprovisionismadeforitspunishment.—Whoever abets any offence shall, if the act abetted iscommitted in consequence of the abetment, and no express provision ismade by this Code for the punishment of such abetment, be punished withthe punishment provided for the offence. Explanation.—An act or offenceis said to be committed in consequence of abetment, when it is committedin consequence of the instigation, or in pursuance of the conspiracy, orwith the aid which constitutes the abetment. Illustrations

(a) offers bribe to B, public servant, as reward for showing somefavour in the exercise of B’s official functions. accepts the bribe. hasabetted the offence defined in section 161.favour in the exercise of B’s official functions. accepts the bribe. hasabetted the offence defined in section 161.

(b) instigates to give false evidence. B, in consequence of theinstigation, commits that offence. is guilty of abetting that offence, andis liable to the same punishment as B.

(c) and conspire to poison Z. in pursuance of the conspiracy,procures the poison and delivers it to in order that he may administer itto Z. B, in pursuance of the conspiracy, administers the poison to Z in A’sabsence and thereby causes Z’s death. Here is guilty of murder. isguilty of abetting that offence by conspiracy, and is liable to thepunishment for murder.CLASSIFICATION OF OFFENCEprocures the poison and delivers it to in order that he may administer itto Z. B, in pursuance of the conspiracy, administers the poison to Z in A’sabsence and thereby causes Z’s death. Here is guilty of murder. isguilty of abetting that offence by conspiracy, and is liable to thepunishment for murder.CLASSIFICATION OF OFFENCE

Punishment—Same as for offence abetted—According as offence abettedis cognizable or non-cognizable—According as offence abetted is bailableor non-bailable—Triable by court by which offence abetted is triable—Non-compoundable.”is cognizable or non-cognizable—According as offence abetted is bailableor non-bailable—Triable by court by which offence abetted is triable—Non-compoundable.”

68.A plain reading of the above provision makes it clear that followingare the essentials for bringing home charge under section 109, IPC:

a)Abetment of an offence, either by instigation, conspiracy oraiding;aiding;

CRL.REV.P. 262/2016, CRL.REV.P. 263/2016, CRL.REV.P. 264/2016 & CRL.REV.P. 265/2016

b)The commission of the act abetted, in consequence of abetment;

c)There must not be any express provision, in the Indian Penal

Code for the punishment of such abetment.

XV.Sections 120-A, & 120-B, IPC:

“120A. Definition of criminal conspiracy.

When two or more persons agree to do, or cause to be done,—

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agree-ment isdesignated criminal conspiracy: Provided that no agreement except anagreement to commit an offence shall amount to criminal conspiracyunless some act besides the agreement is done by one or more parties tosuch agreement in pursuance thereof. Explanation.—It is immaterialwhether the illegal act is the ultimate object of such agreement, or ismerely incidental to that object.

—120B. Punishment of criminal conspiracy.

(1) Whoever is party to criminal conspiracy to commit an offencepunishable with death, imprisonment for life or rigorous imprisonment fora term of two years or upwards, shall, where no express provision is madein this Code for the punishment of such conspiracy, be punished in thesame manner as if he had abetted such offence.(2) Whoever is party to criminal conspiracy other than criminalconspiracy to commit an offence punishable as aforesaid shall be punishedwith imprisonment of either description for term not exceeding sixmonths, or with fine or with both.”

XVI.Section 397, CrPC:

“Section 397. Calling for records to exercise powers of revision.

(1) The High Court or any Sessions Judge may call for and examine therecord of any proceeding before any inferior Criminal Court situate withinits or his local jurisdiction for the purpose of satisfying itself or himself asto the correctness, legality or propriety of any finding, sentence or order,-recorded or passed, and as to the regularity of any proceedings of suchinferior Court, and may, when calling for such record, direct that theexecution of any sentence or order be suspended, and if the accused is in

confinement, that he be released on bail or on his own bond pending theexamination of the record.

Explanation.- All Magistrates whether Executive or Judicial, and whetherexercising original or appellate jurisdiction, shall be deemed to be inferiorto the Sessions Judge for the purposes of this sub- section and of section398.

(2) The powers of revision conferred by sub- section (1) shall not beexercised in relation to any interlocutory order passed in any appeal,inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person eitherto the High Court or to the Sessions Judge, no further application by thesame person shall be entertained by the other of them.”

69.A plain reading of the above-extracted provision reveals that the CrPChas vested this Court with ample powers to satisfy itself of, (a) thecorrectness; or (b) legality; or (c) propriety, of an order recorded or passedby an inferior Court and, as to the regularity of any proceedings of aninferior Court.

70.The dominant idea being conveyed by the incorporation of theexpressions, ‘to satisfy itself’, is that the revisional power of the Court underthis provision is essentially power of superintendence.

Revisional jurisdiction of this Court whilst dealing with an order framingcharge

71.For the effective adjudication of the present issue, it would now berelevant to refer to the case law on the framing of charge; revisionaljurisdiction of the Court while dealing with an order on charge; and theoffence of conspiracy.

72.In Superintendent & Remembrancer of Legal Affairs, West Bengal v.Anil Kumar Bhunja (supra), the Hon’ble Supreme Court whilst relying on

the dictum in State of Bihar v. Ramesh Singh reported as (1977) 2 SCC 194,upheld the order on charges; and observed that the positive and negativefacts, in conjunction with other subsidiary facts, appearing, expressly or byimplication, from the materials which were before the Magistrate at thatinitial stage, were sufficient to show that there were grounds for presumingthat the accused-respondents had committed offences under the relevantprovisions of the Arms Act, 1959.

73.In Union of India v. Prafulla Kumar Samal, (supra), the Hon’bleSupreme Court adverting to the conditions enumerated in Sections 227 and228 of the CrPC, enunciated the following principles:

“(1) That the Judge while considering the question of framing the chargesunder Section 227 of the Code has the undoubted power to sift and weighthe evidence for the limited purpose of finding out whether or not primafacie case against the accused has been made out.

(2) Where the materials placed before the Court disclose grave suspicionagainst the accused which has not been properly explained the Court willbe fully justified in framing charge and proceeding with the trial.

(3) The test to determine prima facie case would naturally depend uponthe facts of each case and it is difficult to lay down rule of universalapplication. By and large however if two views are equally possible andthe Judge is satisfied that the evidence produced before him while givingrise to some suspicion but not grave suspicion against the accused, he willbe fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under Section 227 of the Code theJudge which under the present Code is senior and experienced courtcannot act merely as Post Office or mouthpiece of the prosecution, buthas to consider the broad probabilities of the case, the total effect of theevidence and the documents produced before the Court, any basicinfirmities appearing in the case and so on. This however does not meanthat the Judge should make roving enquiry into the pros and cons of thematter and weigh the evidence as if he was conducting trial.”

74.In State of Maharashtra v. Som Nath Thapa, (supra) it has beenobserved as follows:

“30. In Antulay case [R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 716 :1986 SCC (Cri) 256] Bhagwati, C.J., opined, after noting thedifference in the language of the three pairs of sections, that despitethe difference there is no scope for doubt that at the stage at which thecourt is required to consider the question of framing of charge, thetest of ‘prima facie’ case has to be applied. According to ShriJethmalani, prima facie case can be said to have been made outwhen the evidence, unless rebutted, would make the accused liable toconviction. In our view, better and clearer statement of law wouldbe that if there is ground for presuming that the accused hascommitted the offence, court can justifiably say that prima faciecase against him exists, and so, frame charge against him forcommitting that offence.

31. Let us note the meaning of the word ‘presume’. In Black's LawDictionary it has been defined to mean ‘to believe or acceptupon probable evidence’. In Shorter Oxford English Dictionary it hasbeen mentioned that in law ‘presume’ means ‘to take as proved untilevidencetothecontraryisforthcoming’, Stroud'sLegalDictionary has quoted in this context certain judgment according towhich ‘A presumption is probable consequence drawn from facts(either certain, or proved by direct testimony) as to the truth of factalleged.’ In Law Lexicon by P. Ramanatha Aiyar the same quotationfinds place at p. 1007 of 1987 Edn.32. The aforesaid shows that if on the basis of materials on record, acourt could come to the conclusion that commission of the offence isa probable consequence, case for framing of charge exists. To put itdifferently, if the court were to think that the accused mighthave committed the offence it can frame the charge, though forconvictiontheconclusionisrequiredtobethattheaccused has committed the offence.It is apparent that at the stage offraming of charge, probative value of the materials on record cannotbe gone into; the materials brought on record by the prosecution hasto be accepted as true at that stage.”

(emphasis in original. Emphasis also supplied herein by underlining.)

75.In State of M.P. v. S.B. Johari (supra), the Hon’ble Supreme Courtrendered the following observations:

“4. In our view, it is apparent that the entire approach of the HighCourt is illegal and erroneous. From the reasons recorded by the HighCourt, it appears that instead of considering the prima facie case, theHigh Court has appreciated and weighed the materials on record forcoming to the conclusion that charge against the respondents couldnot have been framed. It is settled law that at the stage of framing thecharge, the court has to prima facie consider whether there issufficient ground for proceeding against the accused. The court is notrequired to appreciate the evidence and arrive at the conclusion thatthe materials produced are sufficient or not for convicting theaccused. If the court is satisfied that prima facie case is made outfor proceeding further then charge has to be framed.The charge canbe quashed if the evidence which the prosecutor proposes to adduceto prove the guilt of the accused, even if fully accepted before it ischallenged by cross-examination or rebutted by defence evidence, ifany, cannot show that the accused committed the particular offence.In such case, there would be no sufficient ground for proceeding withthe trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra BhimrajBijjayya[(1990) 4 SCC 76 : 1991 SCC (Cri) 47] after considering theprovisions of Sections 227 and 228 CrPC, the Court posed question,whether at the stage of framing the charge, the trial court shouldmarshal the materials on the record of the case as he would do on theconclusion of the trial. The Court held that at the stage of framing thecharge inquiry must necessarily be limited to deciding if the factsemerging from such materials constitute the offence with which theaccused could be charged. The court may peruse the records for thatlimited purpose, but it is not required to marshal it with view todecide the reliability thereof. The Court referred to earlier decisionsin State of Bihar v. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri)533] , Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 :1979 SCC (Cri) 609] and Supdt. & Remembrancer of Legal Affairs,W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274 : 1979 SCC (Cri)1038] and held thus: (SCC p. 85, para 7)

“From the above discussion it seems well settled thatat the Sections 227-228 stage the court is required to

evaluate the material and documents on record with aview to finding out if the facts emerging therefrom takenat their face value disclose the existence of all theingredients constituting the alleged offence. The courtmay for this limited purpose sift the evidence as it cannotbe expected even at the initial stage to accept all thattheprosecution states as gospel truth even if it is opposed tocommon sense or the broad probabilities of the case.”

(emphasis supplied)

6. In our view the aforesaid exercise of appreciating the materialsproduced by the prosecution at the stage of framing of the charge iswholly unjustified. The entire approach of the High Court appears tobe as if the Court was deciding the case as to whether the accused areguilty or not. It was done without considering the allegations ofconspiracy relating to the charge under Section 120-B. In most of thecases, it is only from the available circumstantial evidence aninference of conspiracy is to be drawn. Further, the High Court failedto consider that medicines are normally sold at fixed price and inany set of circumstances, it was for the prosecution to lead necessaryevidence at the time of trial to establish its case that purchase ofmedicines for the Cancer Hospital at Indore was at much higher-price than the prevailing market rate. Further again nonjoining of thetwo remaining members to the Purchase Committee cannot be aground for quashing the charge. After framing the charge andrecording the evidence, if the Court finds that other members of thePurchase Committee were also involved, it is open to the Court toexercise its power under Section 319 of the Criminal Procedure Code.Not only that, the Court erroneously considered the alleged statementof the manufacturing company that quotations given by M/s AlliedMedicine Agency, Indore were genuine without there being anycross-examination. The High Court ignored the allegation that manyof the items have not been purchased and the amount is paid on bogusvouchers. Hence, there was no justifiable reason for the High Court toquash the charge framed by the trial court.”(emphasis supplied.)76.In Om Wati v. State thr. Delhi Administration (supra), the Hon’bleSupreme Court, whilst placing reliance on the decisions in Anil KumarBhunja (supra), State of Bihar v. Ramesh Singh (supra) and Kanti Bhadra

Shah (supra), upheld the order of the Trial Court for framing charges andrendered the following observations:

“7. Section 227 of the Code provides that if upon consideration ofrecord of the case and the documents submitted therewith, the Judgeconsiders that there is no sufficient ground for proceeding against theaccused, he shall discharge the accused for which he is required torecord his reasons for so doing. No reasons are required to berecorded when the charges are framed against the accused persons.This Court in Kanti Bhadra Shah v. State of W.B. [(2000) 1 SCC 722: 2000 SCC (Cri) 303] held that there is no legal requirement that thetrial court should write an order showing the reasons for framing acharge. Taking note of the burden of the pending cases on the courts,it was held: (SCC pp. 725-26, paras 11-12)

“11. Even in cases instituted otherwise than on apolice report the Magistrate is required to write an ordershowing the reasons only if he is to discharge theaccused. This is clear from Section 245. As per the firstsub-section of Section 245, if Magistrate, after taking allthe evidence considers that no case against the accusedhas been made out which if unrebutted would warrant hisconviction, he shall discharge the accused. As per sub-section (2) the Magistrate is empowered to discharge theaccused at any previous stage of the case if he considersthe charge to be groundless. Under both sub-sections he isobliged to record his reasons for doing so. In this contextit is pertinent to point out that even in trial before aCourt of Session, the Judge is required to record reasonsonly if he decides to discharge the accused (vide Section227 of the Code). But if he is to frame the charge he maydo so without recording his reasons for showing why heframed the charge.

12. If there is no legal requirement that the trial courtshould write an order showing the reasons for framing acharge, why should the already burdened trial courts befurther burdened with such an extra work. The time hasreached to adopt all possible measures to expedite thecourt procedures and to chalk out measures to avert allcharge, why should the already burdened trial courts befurther burdened with such an extra work. The time hasreached to adopt all possible measures to expedite thecourt procedures and to chalk out measures to avert all

roadblocks causing avoidable delays. If Magistrate is towrite detailed orders at different stages merely becausethe counsel would address arguments at all stages, thesnail-paced progress of proceedings in trial courts wouldfurtherbesloweddown.Wearecomingacrossinterlocutory orders of Magistrates and Sessions Judgesrunning into several pages. We can appreciate if such adetailed order has been passed for culminating theproceedings before them. But it is quite unnecessary towrite detailed orders at this stage, such as issuing process,remanding the accused to custody, framing of charges,passing over to next stages in the trial.It is salutaryguideline that when orders rejecting or granting bail arepassed, the court should avoid expressing one way or theother on contentious issues, except in cases such as thosefalling within Section 37 of the Narcotic Drugs andPsychotropic Substances Act, 1985.”8.At the stage of passing the order in terms of Section 227 of theCode, the court has merely to peruse the evidence in order to find outwhether or not there is sufficient ground for proceeding against theaccused. If upon consideration, the court is satisfied that prima faciecase is made out against the accused, the Judge must proceed toframe charge in terms of Section 228 of the Code. Only in casewhere it is shown that the evidence which the prosecution proposes toadduce to prove the guilt of the accused, even if fully accepted before-it is challenged in crossexamination or rebutted by defence evidencecannot show that the accused committed the crime, then and thenalone the court can discharge the accused. The court is not required toenter into meticulous consideration of evidence and material placedbefore it at this stage.This Court inStree Atyachar VirodhiParishad v. Dilip Nathumal Chordia [(1989) 1 SCC 715 : 1989 SCC(Cri) 285] cautioned the High Courts to be loath in interfering at thestage of framing the charges against the accused. Self-restraint on thepart of the High Court should be the rule unless there is glaringinjustice staring the court in the face. The opinion on many matterscan differ depending upon the person who views it. There may be asmany opinions on particular point, as there are courts but that would

not justify the High Court to interdict the trial. Generally, it would beappropriate for the High Court to allow the trial to proceed.

9. Dealing with the scope of Sections 227 and 228 of the Codeand the limitations imposed upon the court at the initial stage offramingthecharge,thisCourtin StateofBihar v. RameshSingh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : AIR 1977 SC 2018]held: (SCC pp. 41-42, para 4)

“Reading the two provisions together in juxtaposition,as they have got to be, it would be clear that at thebeginning and the initial stage of the trial the truth,veracity and effect of the evidence which the Prosecutorproposes to adduce are not to be meticulously judged. Noris any weight to be attached to the probable defence of theaccused. It is not obligatory for the Judge at that stage ofthe trial to consider in any detail and weigh in sensitivebalancewhetherthefacts,ifproved,wouldbeincompatible with the innocence of the accused or not.The standard of test and judgment which is to be finallyapplied before recording finding regarding the guilt orotherwise of the accused is not exactly to be applied at thestage of deciding the matter under Section 227 or Section228 of the Code.At that stage the court is not to seewhether there is sufficient ground for conviction of theaccused or whether the trial is sure to end in hisconviction. Strong suspicion against the accused, if thematter remains in the region of suspicion, cannot take theplace of proof of his guilt at the conclusion of the trial.But at the initial stage if there is strong suspicion whichleads the court to think that there is ground for presumingthat the accused has committed an offence then it is notopen to the court to say that there is no sufficient groundfor proceeding against the accused.The presumption ofthe guilt of the accused which is to be drawn at the initialstage is not in the sense of the law governing the trial ofcriminal cases in France where the accused is presumedto be guilty unless the contrary is proved. But it is onlyfor the purpose of deciding prima facie whether the courtshould proceed with the trial or not. If the evidence which

the Prosecutor proposes to adduce to prove the guilt of theaccused even if fully accepted before it is challenged incross-examination or rebutted by the defence, if any,cannot show that the accused committed the offence, thenthere will be no sufficient ground for proceeding with thetrial.An exhaustive list of the circumstances to indicate asto what will lead to one conclusion or the other is neitherpossible nor advisable. We may just illustrate thedifference of the law by one more example. If the scalesof pan as to the guilt or innocence of the accused aresomething like even at the conclusion of the trial, then, onthe theory of benefit of doubt the case is to end in hisacquittal. But if, on the other hand, it is so at the initialstage ofmaking an order under Section 227 or Section228, then in such situation ordinarily and generally theorder which will have to be made will be one underSection 228 and not under Section 227.”10. three-Judge Bench of this Court in Supdt. & Remembrancer ofLegal Affairs, W.B. v. Anil Kumar Bhunja [(1979) 4 SCC 274 : 1979SCC (Cri) 1038 : AIR 1980 SC 52] reminded the courts that at theinitial stage of framing of charges, the prosecution evidence does notcommence. The court has, therefore, to consider the question offraming the charges on general considerations of the material placedbefore it by the investigating agency. At this stage, the truth, veracityand effect of the judgment which the prosecution proposes to adduceare not to be meticulously judged. The standard of test, proof andjudgment which is to be applied finally before finding an accusedguilty or otherwise is not exactly to be applied at the stage of framingthe charge. Even on the basis of strong suspicion founded onmaterials before it, the court can form presumptive opinionregarding the existence of factual ingredients constituting the offencealleged and in that event be justified in framing the charges againstthe accused in respect of the commission of the offence alleged tohave been committed by them. Relying upon its earlier judgmentsin Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : AIR 1977SC 2018] and Anil Kumar Bhunja cases [(1979) 4 SCC 274 : 1979SCC (Cri) 1038 : AIR 1980 SC 52] this Court again in Satish

Mehra v. Delhi Admn. [(1996) 9 SCC 766 : 1996 SCC (Cri) 1104]reiterated: (SCC pp. 769-70, para 9)

“9. Considerations which should weigh with theSessions Court at this stage have been well designed byParliament through Section 227 of the Code of CriminalProcedure (for short ‘the Code’) which reads thus:

‘227. Discharge.—If, upon consideration of the recordof the case and the documents submitted therewith, andafter hearing the submissions of the accused and theprosecution in this behalf, the Judge considers that there isnot sufficient ground for proceeding against the accused, heshall discharge the accused and record his reasons for sodoing.’

Section 228 contemplates the stage after the case survivesthe stage envisaged in the former section. When the court isof opinion that there is ground to presume that the accusedhas committed an offence the procedure laid down thereinhas to be adopted. When those two sections are put injuxtaposition with each other the test to be adoptedbecomesdiscernible:Istheresufficientgroundforproceeding against the accused? It is axiomatic that thestandard of proof normally adhered to at the final stage isnot to be applied at the stage where the scope ofconsideration is where there is ‘sufficient ground for’”proceeding.

12. We allow this appeal by setting aside the order of the High Courtand upholding the order of the trial court. We would again remind theHigh Courts of their statutory obligation to not to interfere at theinitial stage of framing the charges merely on hypothesis, imaginationand far-fetched reasons which in law amount to interdicting the trialagainst the accused persons. Unscrupulous litigants should bediscouraged from protracting the trial and preventing culmination of-the criminal cases by having resort to uncalledfor and unjustified”litigation under the cloak of technicalities of law.

(emphasis supplied.)

77.In State of Orissa v. Debendra Nath Pandhi, reported as (2005) 1 SCC568, the Hon’ble Supreme Court considered the question whether the trialCourt, at the time of framing of charges, can consider material filed by theaccused. The question was answered in the negative by the Hon’ble SupremeCourt in the following words:

“18. We are unable to accept the aforesaid contention. The reliance onArticles 14 and 21 is misplaced...Further, at the stage of framing of chargeroving and fishing inquiry is impermissible. If the contention of theaccused is accepted, there would be mini trial at the stage of framing ofcharge. That would defeat the object of the Code.It is well-settled that atthe stage of framing of charge the defence of the accused cannot be putforth. The acceptance of the contention of the learned counsel for theaccused would mean permitting the accused to adduce his defence at thestage of framing of charge and for examination thereof at that stage whichis against the criminal jurisprudence. By way of illustration, it may benoted that the plea of alibi taken by the accused may have to be examinedat the stage of framing of charge if the contention of the accused isaccepted despite the well settled proposition that it is for the accused tolead evidence at the trial to sustain such plea. The accused would beentitled to produce materials and documents in proof of such plea at thestage of framing of the charge, in case we accept the contention put forthon behalf of the accused. That has never been the intention of the law wellsettled for over one hundred years now. It is in this light that the provisionabout hearing the submissions of the accused as postulated by Section227 is to be understood. It only means hearing the submissions of theaccused on the record of the case as filed by the prosecution anddocuments submitted therewith and nothing more. The expression'hearing the submissions of the accused' cannot mean opportunity to filematerial to be granted to the accused and thereby changing the settledlaw. At the state of framing of charge hearing the submissions of theaccused has to be confined to the material produced by the police.23. As result of aforesaid discussion, in our view, clearly the law is that at thetime of framing charge or taking cognizance the accused has no right to produceany material. …”

(emphasis supplied.)

78.Whilst dealing with an order on charge, the Hon’ble Supreme Courtin Soma Chakravarty v. State through CBI, reported as (2007) 5 SCC 403,relied upon the principles laid down in Union of India v. Major J.S. Khanna,reported as (1972) 3 SCC 873; State of Maharashtra v. Som Nath Thapa,(supra); and L. Chandraiah v. State of A.P., reported as (2003) 12 SCC 670and held as follows on the scope of powers of the Court whilst framingcharges:

“10. The settled legal position is that if on the basis of material on recordthe Court could form an opinion that the accused might have committedoffence it can frame the charge, though for conviction the conclusion isrequired to be proved beyond reasonable doubt that the accused hascommitted the offence. At the time of framing of the charges the probativevalueofthematerialonrecordcannotbegoneinto,andthematerial brought on record by the prosecution has to be accepted as true…Before framing charge the court must apply its judicial mind on thematerial placed on record and must be satisfied that the commission ofoffence by the accused was possible. Whether, in fact, the accusedcommitted the offence, can only be decided in the trial.*****the Court could form an opinion that the accused might have committedoffence it can frame the charge, though for conviction the conclusion isrequired to be proved beyond reasonable doubt that the accused hascommitted the offence. At the time of framing of the charges the probativevalueofthematerialonrecordcannotbegoneinto,andthematerial brought on record by the prosecution has to be accepted as true…Before framing charge the court must apply its judicial mind on thematerial placed on record and must be satisfied that the commission ofoffence by the accused was possible. Whether, in fact, the accusedcommitted the offence, can only be decided in the trial.*****

19. Charge may although be directed to be framed when there exists astrong suspicion but it is also trite that the Court must come to primafacie finding that there exist some materials therefor.Suspicion alone,without anything more, cannot form the basis therefor or held to besufficient for framing charge.”strong suspicion but it is also trite that the Court must come to primafacie finding that there exist some materials therefor.Suspicion alone,without anything more, cannot form the basis therefor or held to besufficient for framing charge.”

(emphasis supplied.)

79.In Sheoraj Singh Ahlawat & ors. v. State of Uttar Pradesh reported as(2013) 11 SCC 476, the Hon’ble Supreme Court discussed the legal positionwith respect to framing of charges as hereunder:(2013) 11 SCC 476, the Hon’ble Supreme Court discussed the legal positionwith respect to framing of charges as hereunder:

“15. …This Court explained the legal position and the approach to beadopted by the Court at the stage of framing of charges or directingdischarge in the following words: (Onkar Nath Mishra v. State (NCT) ofDelhi, (2008) 2 SCC 561)adopted by the Court at the stage of framing of charges or directingdischarge in the following words: (Onkar Nath Mishra v. State (NCT) ofDelhi, (2008) 2 SCC 561)

“11. It is trite that at the stage of framing of charge the courtis required to evaluate the material and documents on recordwith view to finding out if the facts emerging therefrom,taken at their face value, disclosed the existence of all theingredients constituting the alleged offence.At that stage, thecourt is notexpected to go deep into the probative value ofthe material on record.What needs to be considered iswhether there is ground for presuming that the offence hasbeen committed and not ground for convicting the accusedhas been made out. At that stage, even strong suspicionfounded on material which leads the court to form apresumptive opinion as to the existence of the factualingredients constituting the offence alleged would justify theframing of charge against the accused in respect of thecommission of that offence.”(emphasis supplied)16. Support for the above view was drawn by this Court from earlierdecisions rendered in State of Karnataka v. L. Muniswamy 1977 Cri.LJ1125, State of Maharashtra & Ors. v. Som Nath Thapa and Ors. 1996Cri.LJ 2448 and State of M.P. v. Mohanlal Soni 2000 Cri.LJ 3504. In SomNath’s case (supra) the legal position was summed up as under:

“32. …if on the basis of materials on record, court could cometo the conclusion that commission of the offence is probableconsequence, case for framing of charge exists. To put itdifferently, if the court were to think that the accused mighthave* committed the offence it can frame the charge, though forconviction the conclusion is required to be that the accused has*committed the offence. It is apparent that at the stage offraming of charge, probative value of the materials on recordcannot be gone into; the materials brought on record by theprosecution has to be accepted as true at that stage.” (emphasissupplied)

17. So also in Mohanlal case (supra) this Court referred to severalprevious decisions and held that the judicial opinion regarding theapproach to be adopted for framing of charge is that such charges shouldbe framed if the Court prima facie finds that there is sufficient ground forproceeding against the accused. The Court is not required to appreciate

evidence as if to determine whether the material produced was sufficient toconvict the accused. The following passage from the decision in Mohanlalcase (supra) is in this regard apposite:

“8. The crystallized judicial view is that at the stage of framingcharge, the court has to prima facie consider whether there issufficient ground for proceeding against the accused. The courtis not required to appreciate evidence to conclude whether thematerials produced are sufficient or not for convicting theaccused.””charge, the court has to prima facie consider whether there issufficient ground for proceeding against the accused. The courtis not required to appreciate evidence to conclude whether thematerials produced are sufficient or not for convicting theaccused.””

(emphasis supplied.)

80.The Hon’ble Supreme Court in Duli Chand v. Delhi Administrationreported as (1975) 4 SCC 649, observed as hereunder:

“4. … Now the jurisdiction of the High Court in criminal revision4. … Now the jurisdiction of the High Court in criminal revisionapplication is severely restricted and it cannot embark upon areappreciation of the evidence,but even so, the learned Single Judgeof the High Court who heard the revision application, examined theevidence afresh at the instance of the appellant.This was, however, ofno avail, as the learned Single Judge found that the conclusionreached by the lower courts that the appellant was guilty of grossnegligence, was correct and there was no reason to interfere with theconviction of the appellant. The learned Single Judge accordinglyconfirmed the conviction and sentence recorded against the appellantand dismissed the revision application. Hence the present appeal byspecial leave obtained from this Court.reappreciation of the evidence,but even so, the learned Single Judgeof the High Court who heard the revision application, examined theevidence afresh at the instance of the appellant.This was, however, ofno avail, as the learned Single Judge found that the conclusionreached by the lower courts that the appellant was guilty of grossnegligence, was correct and there was no reason to interfere with theconviction of the appellant. The learned Single Judge accordinglyconfirmed the conviction and sentence recorded against the appellantand dismissed the revision application. Hence the present appeal byspecial leave obtained from this Court.5. Now it is obvious that the question of whether the appellant wasguilty of negligence in driving the bus and the death of the deceasedwas caused on account of his negligent driving is question of factwhich depends for its determination on an appreciation of theevidence. Both the learned Magistrate trying the case at the originalstage and the learned Additional Sessions Judge hearing the appealarrived, on an assessment of the evidence, at concurrent finding offact that the death of the deceased was caused by negligent driving ofthe bus by the appellant. The High Court in revision was exercisingsupervisory jurisdiction of restricted nature and, therefore, it wouldguilty of negligence in driving the bus and the death of the deceasedwas caused on account of his negligent driving is question of factwhich depends for its determination on an appreciation of theevidence. Both the learned Magistrate trying the case at the originalstage and the learned Additional Sessions Judge hearing the appealarrived, on an assessment of the evidence, at concurrent finding offact that the death of the deceased was caused by negligent driving ofthe bus by the appellant. The High Court in revision was exercisingsupervisory jurisdiction of restricted nature and, therefore, it would

have been justified in refusing to reappreciate the evidence for thepurposes of determining whether the concurrent finding of factreached by the learned Magistrate and the learned AdditionalSessions Judge was correct. But even so, the High Court reviewed theevidence presumably for the purpose of satisfying itself that there wasevidence in support of the finding of fact reached by the twosubordinate courts and that the finding of fact was not unreasonableor perverse.The High Court came to the conclusion that the evidenceclearly established that the death of the deceased was caused onaccount of the negligent driving of the bus by the appellant. Whenthree courts have, on an appreciation of the evidence, arrived at aconcurrent finding of fact in regard to the guilt of the appellant, it isdifficult to see how this Court can, in the exercise of its extraordinaryjurisdiction under Article 136 of the Constitution, interfere with suchfinding of fact. We have had occasion to say before and we mayemphasise it once again, that this Court is not regular court ofappeal to which every judgment of the High Court in criminal casemay be brought up for scrutinising its correctness. It is not thepractice of this Court to reappreciate the evidence for the purpose ofexamining whether the finding of fact concurrently arrived at by theHigh Court and the subordinate courts is correct or not. It is only inrare and exceptional cases where there is some manifest illegality orgrave and serious miscarriage of justice that this Court wouldinterfere with such finding of fact. Here, not only is the appreciationof the oral evidence by the learned Magistrate, the learned AdditionalSessions Judge and the High Court eminently correct, but there arecertain tell-tale circumstances which clearly support the finding offact reached by them.”

(emphasis supplied.)

81.In Sheonandan Paswan v. State of Bihar, (supra) the Hon’bleSupreme Court opined that the provisions of section 397 of the CrPC givethe High Court jurisdiction to consider the correctness, legality or proprietyof any finding, sentence or order and as to the regularity of the proceedingsof any inferior court. This jurisdiction ought to be exercised, normally,

without dwelling at length upon the facts and evidence of the case. TheCourt in revision ought to consider the materials only to satisfy itself aboutthe correctness, legality and propriety of the findings, sentence or order andrefrain from substituting its own conclusion on an elaborate consideration ofevidence.

82.In Munna Devi v. State of Rajasthan, reported as (2001) 9 SCC 631, itwas observed as follows:

“3. We find substance in the submission made on behalf of theappellant. The revision power under the Code of Criminal Procedurecannot be exercised in routine and casual manner. While exercisingsuch powers the High Court has no authority to appreciate theevidence in the manner as the trial and the appellate courts arerequired to do. Revisional powers could be exercised only when it isshown that there is legal bar against the continuance of the criminalproceedings or the framing of charge or the facts as stated in the firstinformation report even if they are taken at the face value andaccepted in their entirety do not constitute the offence for which theaccused has been charged.”cannot be exercised in routine and casual manner. While exercisingsuch powers the High Court has no authority to appreciate theevidence in the manner as the trial and the appellate courts arerequired to do. Revisional powers could be exercised only when it isshown that there is legal bar against the continuance of the criminalproceedings or the framing of charge or the facts as stated in the firstinformation report even if they are taken at the face value andaccepted in their entirety do not constitute the offence for which theaccused has been charged.”

(emphasis supplied.)

83.This Court, in an unreported decision in Veena Ajmani v. State & ors.rendered in Criminal Revision Petition No. 281 of 2012; and CriminalRevision Petition No. 282 of 2012, where final orders on charge had beenassailed, observed as hereunder:

“28. The Supreme Court in P. Vijayan vs State of Kerala andAnother, reported at (2010) 2 SCC 398 has held that the considerationof the court at the stage of framing of charges is for the limitedpurpose of ascertaining whether or not there is sufficient ground forproceeding against the accused. Whether the material in the hands ofthe prosecution is sufficient or not are matters of trial. Moreover, theissue whether the trial will end in conviction or acquittal is alsoimmaterial.The relevant portion of the decision is as reproducedbelow:Another, reported at (2010) 2 SCC 398 has held that the considerationof the court at the stage of framing of charges is for the limitedpurpose of ascertaining whether or not there is sufficient ground forproceeding against the accused. Whether the material in the hands ofthe prosecution is sufficient or not are matters of trial. Moreover, theissue whether the trial will end in conviction or acquittal is alsoimmaterial.The relevant portion of the decision is as reproducedbelow:

12. …This Court has thus held that whereas strong suspicionmay not take the place of the proof at the trial stage, yet it maybe sufficient for the satisfaction of the Trial Judge in order toframe charge against the accused.

25. As discussed earlier, Section 227 in the new Code confersspecial power on the Judge to discharge an accused at thethreshold if upon consideration of the records and documents,he find that "there is not sufficient ground" for proceedingagainst the accused. In other words, his consideration of therecord and document at that stage is for the limited purpose ofascertaining whether or not there is sufficient ground forproceeding against the accused. If the Judge comes to aconclusion that there is sufficient ground to proceed, he willframe charge under Section 228, if not, he will discharge theaccused. This provision was introduced in the Code to avoidwastage of public time when prima facie case was notdisclosed and to save the accused from avoidable harassmentand expenditure.

26. In the case on hand, though, the learned Trial Judge has notassigned detailed reasons for dismissing the discharge petitionfiled under Section 227, it is clear from his order that afterconsideration of the relevant materials charge had been framedfor offence under Section 302 read with Section 34 IPC andbecause of the same, he dismissed the discharge petition. Afterevaluating the materials produced by the prosecution and afterconsidering the probability of the case, the Judge being satisfiedby the existence of sufficient grounds against the appellant andanother accused framed charge. Whether the materials at thehands of the prosecution are sufficient or not are matters fortrial. At this stage, it cannot be claimed that there is nosufficient ground for proceeding against the appellant anddischarge is the only remedy. Further, whether the trial will endin conviction or acquittal is also immaterial. All these relevantaspects have been carefully considered by the High Court and itrightly affirmed the order passed by the Trial Judge dismissingthe discharge petition filed by A3-appellant herein. We fullyagree with the said conclusion.””

(Emphasis supplied.)

84.The Hon’ble Supreme Court in Ashish Chadha v. Asha Kumari(supra) upheld the order on charge; and held that the High Court oversteppedits revisional jurisdiction by appraising the evidence in the case. In thisregard, it was further observed as follows:

“20. … It is the trial court which has to decide whether evidence onrecord is sufficient to make out prima facie case against the accusedso as to frame charge against him. Pertinently, even the trial courtcannot conduct roving and fishing inquiry into the evidence. It hasonly to consider whether the evidence collected by the prosecutiondiscloses prima facie case against the accused or not.”record is sufficient to make out prima facie case against the accusedso as to frame charge against him. Pertinently, even the trial courtcannot conduct roving and fishing inquiry into the evidence. It hasonly to consider whether the evidence collected by the prosecutiondiscloses prima facie case against the accused or not.”

85.In State of Tamil Nadu v. Mariya Anton Vijay (supra) the Hon’bleSupreme Court, whilst setting aside the order of the High Court, observedthat the approach of the High Court, in exercise of its inherent powers andunder section 397 of CrPC, was wholly unwarranted and illegal. It wasfurther observed that the order had been rendered by overlooking theprinciples laid down by the Hon’ble Supreme Court in State of M.P. v. S.B.Johari (supra), inasmuch as by way of its order, the High Court went intothe questions of fact, appreciated the materials produced in support of thecharge-sheet, drew inference on reading the statements of the accused, andapplied the law, which according to the High Court, had application to thefacts of the case; and then came to conclusion that no prima facie case hadbeen made out against any of the accused for their prosecution.86.The Hon’ble Supreme Court in Palwinder Singh v. Balwinder Singh(supra), dealt with the decision of the High Court in revision application,observed that, (i) the High Court committed serious error in rendering thedecision, insofar as it entered into the realm of appreciation of evidence at

the stage of the framing of the charges itself; (ii) the jurisdiction of thelearned Sessions Judge while exercising power under Section 227 of theCrPC is limited; (iii) charges can be framed on the basis of strong suspicion;and (iv) marshalling and appreciation of evidence is not in the domain of theCourt at that point of time.

87.The Hon’ble Supreme Court in Amit Kapoor v. Ramesh Chander &anr. (supra), on the question of the powers of the High Court in exercise ofits revisional and inherent jurisdiction, whilst dealing with challenge to anorder framing charges, was pleased to lay down the following legalprinciples:

“25. Having examined the interrelationship of these two very significantprovisions of the Code, let us now examine the scope of interference underany of these provisions in relation to quashing the charge. We have alreadyindicated above that framing of charge is the first major step in criminaltrial where the court is expected to apply its mind to the entire record anddocuments placed therewith before the court. Taking cognizance of anoffence has been stated to necessitate an application of mind by the courtbut framing of charge is major event where the court considers thepossibility of discharging the accused of the offence with which he ischarged or requiring the accused to face trial.There are differentcategories of cases where the court may not proceed with the trial and maydischarge the accused or pass such other orders as may be necessarykeeping in view the facts of given case. In case where, uponconsidering the record of the case and documents submitted before it, thecourt finds that no offence is made out or there is legal bar to suchprosecution under the provisions of the Code or any other law for the timebeing in force and there is bar and there exists no ground to proceedagainst the accused, the court may discharge the accused. There can becases where such record reveals the matter to be so predominantly of acivil nature that it neither leaves any scope for an element of criminalitynor does it satisfy the ingredients of criminal offence with which the

accused is charged. In such cases, the court may discharge him or quashthe proceedings in exercise of its powers under these two provisions.

26. This further raises question as to the wrongs which becomeactionable in accordance with law. It may be purely civil wrong or purelya criminal offence or civil wrong as also criminal offence constitutingboth on the same set of facts. But if the records disclose commission of acriminal offence and the ingredients of the offence are satisfied, then suchcriminal proceedings cannot be quashed merely because civil wrong hasalso been committed. The power cannot be invoked to stifle or scuttle alegitimate prosecution. The factual foundation and ingredients of anoffence being satisfied, the court will not either dismiss complaint orquash such proceedings in exercise of its inherent or original jurisdiction.In Indian Oil Corpn. v. NEPC India Ltd. [(2006) 6 SCC 736 : (2006) 3SCC (Cri) 188] this Court took the similar view and upheld the order ofthe High Court declining to quash the criminal proceedings because civilcontract between the parties was pending.27. Having discussed the scope of jurisdiction under these twoprovisions i.e. Section 397 and Section 482 of the Code and the fine line ofjurisdictional distinction, now it will be appropriate for us to enlist theprinciples with reference to which the courts should exercise suchjurisdiction. However, it is not only difficult but is inherently impossible tostate with precision such principles. At best and upon objective analysis ofvarious judgments of this Court, we are able to cull out some of theprinciples to be considered for proper exercise of jurisdiction, particularly,with regard to quashing of charge either in exercise of jurisdiction underSection 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 underSection 482 of the Code but the more the power, the more due care andcaution is to be exercised in invoking these powers. The power ofquashing criminal proceedings, particularly, the charge framed in terms ofSection 228 of the Code should be exercised very sparingly and withcircumspection and that too in the rarest of rare cases.

27.2.The Court should apply the test as to whether the uncontrovertedallegations as made from the record of the case and the documentssubmitted therewith prima facie establish the offence or not. If theallegations are so patently absurd and inherently improbable that noprudent person can ever reach such conclusion and where the basic

ingredients of criminal offence are not satisfied then the Court mayinterfere.

27.3. The High Court should not unduly interfere. No meticulousexamination of the evidence is needed for considering whether the casewould end in conviction or not at the stage of framing of charge orquashing of charge.

27.4. Where the exercise of such power is absolutely essential toprevent patent miscarriage of justice and for correcting some grave errorthat might be committed by the subordinate courts even in such cases, theHigh Court should be loath to interfere, at the threshold, to throttle theprosecution in exercise of its inherent powers.

27.5.Where there is an express legal bar enacted in any of theprovisions of the Code or any specific law in force to the very initiation orinstitution and continuance of such criminal proceedings, such bar isintended to provide specific protection to an accused.

27.6. The Court has duty to balance the freedom of person and theright of the complainant or prosecution to investigate and prosecute theoffender.

27.7. The process of the court cannot be permitted to be used for an

oblique or ultimate/ulterior purpose.

27.8.Where the allegations made and as they appeared from the recordand documents annexed therewith to predominantly give rise andconstitute “civil wrong” with no “element of criminality” and does notsatisfy the basic ingredients of criminal offence, the court may bejustified in quashing the charge. Even in such cases, the court would notembark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe isthat it cannot examine the facts, evidence and materials on record todetermine whether there is sufficient material on the basis of which thecase would end in conviction; the court is concerned primarily with theallegations taken as whole whether they will constitute an offence and, ifso, is it an abuse of the process of court leading to injustice.

27.10. It is neither necessary nor is the court called upon to hold full-fledged enquiry or to appreciate evidence collected by the investigatingagencies to find out whether it is case of acquittal or conviction.

27.11. Where allegations give rise to civil claim and also amount toan offence, merely because civil claim is maintainable, does not meanthat criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or underSection 482, the Court cannot take into consideration external materialsgiven by an accused for reaching the conclusion that no offence wasdisclosed or that there was possibility of his acquittal. The Court has toconsider the record and documents annexed therewith by the prosecution.

27.13.Quashing of charge is an exception to the rule of continuousprosecution. Where the offence is even broadly satisfied, the Court shouldbe more inclined to permit continuation of prosecution rather than itsquashing at that initial stage. The Court is not expected to marshal therecords with view to decide admissibility and reliability of thedocuments or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of theCode, suffers from fundamental legal defects, the Court may be wellwithin its jurisdiction to frame charge.

27.15.Coupled with any or all of the above, where the Court finds thatit would amount to abuse of process of the Code or that the interest ofjustice favours, otherwise it may quash the charge. The power is to beexercised ex debito justitiae i.e. to do real and substantial justice foradministration of which alone, the courts exist.

[Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982SCC(Cri)283:AIR1982SC949]; MadhavraoJiwajiraoScindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988SCC (Cri) 234] ; Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993SCC (Cri) 36 : AIR 1993 SC 892] ; Rupan Deol Bajaj v. Kanwar PalSingh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059] ; G. SagarSuri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513] ; AjayMitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703] ; PepsiFoods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC(Cri) 1400 : AIR 1998 SC 128] ; State of U.P. v. O.P. Sharma [(1996) 7SCC 705 : 1996 SCC (Cri) 497] ; Ganesh Narayan Hegde v. S.Bangarappa [(1995)4SCC41:1995SCC(Cri)634]; ZanduPharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 :2005 SCC (Cri) 283] ; Medchl Chemicals & Pharma (P) Ltd. v. BiologicalE. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1

SCC (Cri) 1412] ; V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234: (2009) 3 SCC (Cri) 356] ; Chunduru Siva Ram Krishna v. PeddiRavindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297]; Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC(Cri) 82] ; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992SCC (Cri) 192 : AIR 1991 SC 1260] ; Lalmuni Devi v. State ofBihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275] ; M. Krishnan v. VijaySingh[(2001) 8 SCC 645 : 2002 SCC (Cri) 19] ; Savita v. State ofRajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M.Datta v. State of Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001SCC (L&S) 1201] .]

27.16. These are the principles which individually and preferablycumulatively (one or more) be taken into consideration as precepts toexercise of extraordinary and wide plenitude and jurisdiction underSection 482 of the Code by the High Court. Where the factual foundationfor an offence has been laid down, the courts should be reluctant andshould not hasten to quash the proceedings even on the premise that one ortwo ingredients have not been stated or do not appear to be satisfied ifthere is substantial compliance with the requirements of the offence.”

(Emphasis supplied.)

88.Considering the conspectus of the decisions discussed hereinabove,the following legal position emerges with regard to the law on charge; therevisional jurisdiction of the High Court; and the powers exercisable by theHigh Court in revisional jurisdiction whilst dealing with an order on charge:

(i)The jurisdiction of the Trial Court whilst exercisingpower under Section 227 of the CrPC is limited.power under Section 227 of the CrPC is limited.

(ii)At the stage of charge, the Trial Court has to merelyperuse the evidence in order to find out whether there is asufficient ground for proceeding against the accused ornot.peruse the evidence in order to find out whether there is asufficient ground for proceeding against the accused ornot.

(iii)If upon consideration of the material placed before it, theTrial Court is satisfied that prima facie case is made outagainst the accused, it must proceed to frame charge interms of Section 228 of the CrPC.Trial Court is satisfied that prima facie case is made outagainst the accused, it must proceed to frame charge interms of Section 228 of the CrPC.

(iv)The Trial Court cannot conduct roving and fishinginquiry into the evidence or meticulous considerationthereof at this stage. Marshalling and appreciation ofevidence, and going into the probative value of thematerial on record, is not in the domain of the Court atthe time of framing of charges.inquiry into the evidence or meticulous considerationthereof at this stage. Marshalling and appreciation ofevidence, and going into the probative value of thematerial on record, is not in the domain of the Court atthe time of framing of charges.

(v)In other words, at the beginning and the initial stage ofthe trial, the truth, veracity and effect of the evidencewhich the prosecution proposes to adduce are not to bemeticulously judged, and nor is any weight to be attachedto the probable defence of the accused. Thus, ‘minitrial’ is not to be conducted.the trial, the truth, veracity and effect of the evidencewhich the prosecution proposes to adduce are not to bemeticulously judged, and nor is any weight to be attachedto the probable defence of the accused. Thus, ‘minitrial’ is not to be conducted.

(vi)It is not obligatory for the Trial Court at the time offraming of charges, to consider in any detail and weigh ina sensitive balance whether the facts, if proved, would beincompatible with the innocence of the accused or not.The standard of test and judgment which is to be finallyapplied before recording finding regarding the guilt orotherwise of the accused is not exactly to be applied atthe stage of deciding the matter under Section 227 orSection 228 of the CrPC.framing of charges, to consider in any detail and weigh ina sensitive balance whether the facts, if proved, would beincompatible with the innocence of the accused or not.The standard of test and judgment which is to be finallyapplied before recording finding regarding the guilt orotherwise of the accused is not exactly to be applied atthe stage of deciding the matter under Section 227 orSection 228 of the CrPC.(vii)Thus, it is axiomatic that at the initial stage if there is astrong/grave suspicion which leads the Court to think thatthere is ground for presuming that the accused hascommitted an offence, then it is not open to the court tosay that there is no sufficient ground for proceedingagainst the accused.strong/grave suspicion which leads the Court to think thatthere is ground for presuming that the accused hascommitted an offence, then it is not open to the court tosay that there is no sufficient ground for proceedingagainst the accused.

(viii) The Trial Court may sift the evidence to determinewhether the facts emerging therefrom taken at their facevalue disclose the existence of all the ingredientsconstituting the alleged offence or not.whether the facts emerging therefrom taken at their facevalue disclose the existence of all the ingredientsconstituting the alleged offence or not.

(ix)Detailed orders are not necessary whilst framing chargesand contentious issues are not required to be answered bythe Trial Court at the stage of framing of charges.and contentious issues are not required to be answered bythe Trial Court at the stage of framing of charges.

(x)Only in case where it is shown that the evidence whichthe prosecution proposes to adduce to prove the guilt ofthe accused, even if fully accepted before it is challengedin cross-examination or rebutted by defence evidencecannot show that the accused committed the crime, thenand then alone the Court can discharge the accused.the prosecution proposes to adduce to prove the guilt ofthe accused, even if fully accepted before it is challengedin cross-examination or rebutted by defence evidencecannot show that the accused committed the crime, thenand then alone the Court can discharge the accused.

(xi)Further, if the scales of pan as to the guilt or innocence ofthe accused are something like even at the initial stage ofmaking an order under Section 227 or Section 228, then,in such situation, ordinarily and generally, the orderwhich will have to be made will be one under Section 228and not under Section 227 of the CrPC.the accused are something like even at the initial stage ofmaking an order under Section 227 or Section 228, then,in such situation, ordinarily and generally, the orderwhich will have to be made will be one under Section 228and not under Section 227 of the CrPC.

(xii)The provisions of section 397 of the CrPC empower theHigh Court with supervisory jurisdiction to consider thecorrectness, legality or propriety of any finding, sentenceor order and as to the regularity of the proceedings of anyinferior court.High Court with supervisory jurisdiction to consider thecorrectness, legality or propriety of any finding, sentenceor order and as to the regularity of the proceedings of anyinferior court.

(xiii) Revisional jurisdiction is severely restricted, and oughtnot to be exercised in routine and casual manner. It hasto be exercised, normally, without dwelling at lengthupon the facts and appraising the evidence of the case.not to be exercised in routine and casual manner. It hasto be exercised, normally, without dwelling at lengthupon the facts and appraising the evidence of the case.

(xiv) Further, the Court in revision ought to refrain fromsubstitutingitsownconclusiononanelaborateconsideration of evidence.substitutingitsownconclusiononanelaborateconsideration of evidence.

(xv)Whilst in revisional jurisdiction, the High Court cannotenter into the realm of appreciation of evidence at thestage of the framing of the charges itself.enter into the realm of appreciation of evidence at thestage of the framing of the charges itself.

(xvi) The High Court, under statutory obligation, ought to beloath in interfering at the stage of framing the chargesagainst the accused, merely on hypothesis, imaginationandfar-fetchedreasonswhichinlawamounttointerdicting the trial against the accused person. Thus,self-restraint on the part of the High Court should be therule unless there is glaring injustice staring the Court inthe face.loath in interfering at the stage of framing the chargesagainst the accused, merely on hypothesis, imaginationandfar-fetchedreasonswhichinlawamounttointerdicting the trial against the accused person. Thus,self-restraint on the part of the High Court should be therule unless there is glaring injustice staring the Court inthe face.

(xvii) Revisional powers could be exercised only when it isshown that, (a) there is legal bar against theshown that, (a) there is legal bar against the

continuance of the criminal proceedings; (b) theframing of charge or the facts as stated in the firstinformation report even if they are taken at the facevalue and accepted in their entirety do not constitutethe offence for which the accused has been charged;(c) where the exercise of revisional power is absolutelyessential to prevent patent miscarriage of justice andfor correcting some grave error that might becommitted by the subordinate courts.

(xviii)Quashing of charge is an exception to the rule ofcontinuous prosecution. Where the offence is evenbroadly satisfied, the Court should be more inclined topermit continuation of prosecution rather than itsquashing at that initial stage. The Court is not expectedto marshal the records with view to decide admissibilityand reliability of the documents or records but is anopinion formed prima facie.

89.The law in relation to the offence of conspiracy has been discussed ina catena of judgments by the the Hon’ble Supreme Court and various HighCourts.

90.As far back as in 1837, in Regina v. Murphy, (1837) 173 ER 502,Coleridge, J., observed that although common design is the root of thecharge for the offence of conspiracy, it is not necessary to prove that the twoparties had come together and actually agreed in terms to have the commondesign and to pursue it by common means and so as to carry it into

execution, as in many cases of established conspiracy, there are no ways ofproving any such thing. If it is found that these two persons pursued by theiracts, the same object, often by the same means, one performing one part ofan act and the other another part of the same act so as to complete it, with aview to attain the object which they are pursuing, then in this event, theCourts will be at liberty to draw the conclusion that they have been engagedin conspiracy to effect that object.

91.Mirza, J., in Emperor v. Ring, reported as 1929 Bom 296, observedthat where the main charge is of conspiracy, it is not possible to always haveproof of direct meeting, of combination or that the parties have been broughtinto each other’s presence. In order to establish charge of conspiracy, theagreement is very often to be inferred from circumstances raising apresumption of common concerted plan to carry out the unlawful design.92.In Bhola Nath v. Emperor, reported as 1939 ALL 567, it has beenobserved by Richpal Singh, J., that there may be cases in which conspiracymay be proved by evidence of surrounding circumstances and by theantecedent and subsequent conduct of the accused persons.

93.Further, with regard to the offence of conspiracy, the Hon’bleSupreme Court in Leo Roy Frey (supra), observed as hereunder:

“4. …The offences with which the petitioners are now chargedinclude an offence under Section 120-B of the Indian Penal Code.Criminal conspiracy is an offence created and made punishable by theIndian Penal Code. It is not an offence under the Sea Customs Act.The offence of conspiracy to commit crime is different offencefrom the crime that is the object of the conspiracy because theconspiracy precedes the commission of the crime and is completebefore the crime is attempted or completed, equally the crimeattempted or completed does not require the element of conspiracy asone of its ingredients. They are, therefore, quite separate offences.include an offence under Section 120-B of the Indian Penal Code.Criminal conspiracy is an offence created and made punishable by theIndian Penal Code. It is not an offence under the Sea Customs Act.The offence of conspiracy to commit crime is different offencefrom the crime that is the object of the conspiracy because theconspiracy precedes the commission of the crime and is completebefore the crime is attempted or completed, equally the crimeattempted or completed does not require the element of conspiracy asone of its ingredients. They are, therefore, quite separate offences.

This is also the view expressed by the United States Supreme Courtin United States v. Rabinowich [(1915) 238 US 78].”

(emphasis supplied.)

94.The decision in Hardeo Singh v. State of Bihar (supra) makes it clearthat the Court at the stage of charge has to see whether some suspicion isbeing raised; whether some factor and some connecting link are in existence.A natural inference has to be drawn and when there exists some connectingfactor/link between the accused persons, then charge ought to be framed. Therelevant paragraphs thereof have been reproduced hereunder:

“As matter of fact some connecting link or connecting factorsomewhere would be good enough for framing of charge since framingof charge and to establish the charge of conspiracy cannot possibly beplaced at par. To establish the charge of conspiracy, there is requiredcogent evidence of meeting of two minds in the matter of commission ofan offence-in the absence of which the charge cannot be sustained. Thisis however not so, in the matter of framing of charge since the incidenceof the offence shall have to be investigated.”

95.In P. Sugathan (supra), the Hon’ble Supreme Court has observed thatthe circumstances relied on for the purposes of drawing an inference ofconspiracy should be prior in time than the actual commission of the offencein furtherance of the alleged conspiracy. Further, it has been observed that aconspiracy is continuing offence which continues to subsist till it isexecuted or rescinded or frustrated by choice of necessity. During thesubsistence of conspiracy, whenever any one of the conspirators does an actor series of acts, he would be held guilty under section 120-B, IPC.

96.In Mir Nagvi Askari v. Central Bureau of Investigation, (2009) 15SCC 643, it was enunciated that courts in deciding on the existence or

otherwise, of an offence of conspiracy, must bear in mind that it is hatched insecrecy and that it is difficult, if not impossible to obtain direct evidence toestablish the same. The manner and circumstances in which the offenceshave been committed and the accused persons had taken part are relevant. Toprove that the propounders had expressly agreed to commit the illegal act orhad caused it to be done, may be proved by adducing circumstantial evidenceand or by necessary implications.

97.The Hon’ble Supreme Court in State of Karnataka v. Selvi J.Jayalalitha, in Criminal Appeal Nos. 300-303 of 2017 [Arising out of SLP(Crl.) Nos. 6117-6120 of 2015], reported as 2017 SCC OnLine SC 134,observed as follows:

“179. Theagreementwhichisthequintessenceofcriminalconspiracy can be proved either by direct or by circumstantialevidence or by both and it is matter of common experience thatdirect evidence to prove conspiracy is rarely available.”

98.The Hon’ble Supreme in Yakub Abdul Razak Memon v. State ofMaharashtra, (supra), had the occasion of dealing with catena ofjudgments, on the offence of conspiracy. The relevant portions of the reportare reproduced hereinbelow:

“129. The proposition that the mere agreement constitutes the offencehas been accepted by this Court in several judgments. Reference maybe made to Major E.G. Barsay v. State of Bombay [Major E.G.Barsay v. State of Bombay, AIR 1961 SC 1762 : (1961) 2 Cri LJ 828 :(1962) 2 SCR 195] wherein this Court held that the gist of the offenceis an agreement to break the law. The parties to such an agreement willbe guilty of criminal conspiracy, though the illegal act agreed to bedone has not been done. It is not an ingredient of the offence that allthe parties should agree to do single illegal act. It may comprise the

commission of number of acts. The Court in Barsay case [MajorE.G. Barsay v. State of Bombay, AIR 1961 SC 1762 : (1961) 2 Cri LJ828 : (1962) 2 SCR 195] has held as under: (AIR p. 1778, para 31)“31. … Section 120-A of the Penal Code, 1860 defines‘criminal conspiracy’ and under that definition,

‘When two or more persons agree to do, or cause to be done,an illegal act, or an act which is not illegal by illegal means,such an agreement is designated criminal conspiracy’.

The gist of the offence is an agreement to break the law. Theparties to such an agreement will be guilty of criminalconspiracy, though the illegal act agreed to be done has notbeen done. So too, it is not an ingredient of the offence thatall the parties should agree to do single illegal act. It maycomprise the commission of number of acts. Under Section

43 of the Penal Code, 1860 an act would be illegal if it is anoffence or if it is prohibited by law.Under the first chargethe accused are charged with having conspired to do threecategories of illegal acts, and the mere fact that all of themcould not be convicted separately in respect of each of theoffences has no relevancy in considering the questionwhether the offence of conspiracy has been committed. Theyare all guilty of the offence of conspiracy to do illegal acts,though for individual offences all of them may not beliable.”

131. Each conspirator can be attributed each other's actions in aconspiracy. The theory of agency applies and this rule existed evenprior to the amendment of the Penal Code in India.This is reflected inthe rule of evidence under Section 10 of the Evidence Act, 1872.Conspiracy is punishable independent of its fruition. The principle ofagency as rule of liability and not merely rule of evidence has beenaccepted both by the Privy Council as well as by this Court.The

following judgments are relevant for this proposition:

131.4. In Nalini [State v. Nalini, (1999) 5 SCC 253 : 1999 SCC (Cri)691] , this Court explained that conspiracy results in jointresponsibility and everything said, written or done in furtherance of thecommon purpose is deemed to have been done by each of them. TheCourt held: (SCC pp. 515-18, para 583)

“583. Some of the broad principles governing the law ofconspiracy may be summarised though, as the name implies,a summary cannot be exhaustive of the principles.

(1) Under Section 120-A IPC offence of criminalconspiracy is committed when two or more persons agree todo or cause to be done an illegal act or legal act by illegalmeans. When it is legal act by illegal means overt act isnecessary. Offence of criminal conspiracy is an exception tothe general law where intent alone does not constitute crime.It is intention to commit crime and joining hands withpersons having the same intention. Not only the intention butthere has to be agreement to carry out the object of theintention,whichisanoffence.Thequestionforconsideration in case is did all the accused have theintention and did they agree that the crime be committed. Itwould not be enough for the offence of conspiracy whensome of the accused merely entertained wish, howsoeverhorrendous it may be, that offence be committed.

(2) Acts subsequent to the achieving of the object ofconspiracy may tend to prove that particular accused wasparty to the conspiracy.Once the object of conspiracy hasbeen achieved, any subsequent act, which may be unlawful,would not make the accused part of the conspiracy likegiving shelter to an absconder.

(3) Conspiracy is hatched in private or in secrecy. It israrely possible to establish conspiracy by direct evidence.Usually, both the existence of the conspiracy and its objectshave to be inferred from the circumstances and the conductof the accused.

(4) Conspirators may for example, be enrolled in achain—A enrolling B, enrolling C, and so on; and all willbe members of single conspiracy if they so intend andagree, even though each member knows only the person whoenrolled him and the person whom he enrols. There may be akind of umbrella-spoke enrolment, where single person atthe centre does the enrolling and all the other members areunknown to each other, though they know that there are tobe other members.These are theories and in practice it may

be difficult to tell which conspiracy in particular case fallsinto which category. It may however, even overlap. But thenthere has to be present mutual interest. Persons may bemembers of single conspiracy even though each is ignorantof the identity of many others who may have diverse roles toplay. It is not part of the crime of conspiracy that all theconspirators need to agree to play the same or an active role.

(5) When two or more persons agree to commit crimeof conspiracy, then regardless of making or considering anyplans for its commission, and despite the fact that no step istaken by any such person to carry out their common purpose,a crime is committed by each and everyone who joins in theagreement. There have thus to be two conspirators and theremay be more than that. To prove the charge of conspiracy itis not necessary that intended crime was committed or not. Ifcommitted it may further help prosecution to prove thecharge of conspiracy.

(6) It is not necessary that all conspirators should agreeto the common purpose at the same time. They may joinwith other conspirators at any time before the consummationof the intended objective, and all are equally responsible.What part each conspirator is to play may not be known toeveryone or the fact as to when conspirator joined theconspiracy and when he left.

(7) charge of conspiracy may prejudice the accusedbecause it forces them into joint trial and the court mayconsider the entire mass of evidence against every accused.Prosecution has to produce evidence not only to show thateach of the accused has knowledge of the object ofconspiracy but also of the agreement. In the charge ofconspiracy the court has to guard itself against the danger ofunfairness to the accused. Introduction of evidence againstsome may result in the conviction of all, which is to beavoided. By means of evidence in conspiracy, which isotherwise inadmissible in the trial of any other substantiveoffence prosecution tries to implicate the accused not only inthe conspiracy itself but also in the substantive crime of thealleged conspirators. There is always difficulty in tracing the

precise contribution of each member of the conspiracy butthen there has to be cogent and convincing evidence againsteach one of the accused charged with the offence ofconspiracy.As observed by Judge Learned Hand ‘thisdistinction is important today when many prosecutors seekto sweep within the dragnet of conspiracy all those who havebeen associated in any degree whatever with the mainoffenders’ [United States v. Falcone, 109 2d 579 (2d Cir1940)] .

(8) As stated above it is the unlawful agreement and notits accomplishment, which is the gist or essence of the crimeof conspiracy. Offence of criminal conspiracy is completeeven though there is no agreement as to the means by whichthe purpose is to be accomplished. It is the unlawfulagreement which is the gravamen of the crime of conspiracy.The unlawful agreement which amounts to conspiracyneed not be formal or express, but may be inherent in andinferred from the circumstances, especially declarations, actsand conduct of the conspirators. The agreement need not beentered into by all the parties to it at the same time, but maybe reached by successive actions evidencing their joining ofthe conspiracy.

(9) It has been said that criminal conspiracy is apartnership in crime, and that there is in each conspiracy ajoint or mutual agency for the prosecution of commonplan.Thus, if two or more persons enter into conspiracy,any act done by any of them pursuant to the agreement is, incontemplation of law, the act of each of them and they arejointly responsible therefor. This means that everything said,written or done by any of the conspirators in execution orfurtherance of the common purpose is deemed to have beensaid, done or written by each of them. And this jointresponsibility extends not only to what is done by any of theconspirators pursuant to the original agreement but also tocollateral acts incidental to and growing out of the originalpurpose. conspirator is not responsible, however, for actsdone by co-conspirator after termination of the conspiracy.The joinder of conspiracy by new member does not

create new conspiracy nor does it change the status of theother conspirators, and the mere fact that conspiratorsindividually or in groups perform different tasks to acommon end does not split up conspiracy into severaldifferent conspiracies.

(10) man may join conspiracy by word or by deed.However, criminal responsibility for conspiracy requiresmore than merely passive attitude towards an existingconspiracy. One who commits an overt act with knowledgeof the conspiracy is guilty. And one who tacitly consents tothe object of conspiracy and goes along with otherconspirators, actually standing by while the others put theconspiracy into effect, is guilty though he intends to take noactive part in the crime.”

133. Since conspiracy is hatched in secrecy, to bring home the chargeof conspiracy, it is relevant to decide conclusively the object behind itfrom the charges levelled against the accused and the facts of the case.The object behind it is the ultimate aim of the conspiracy. Further,many means might have been adopted to achieve this ultimate object.The means may even constitute different offences by themselves, butas long as they are adopted to achieve the ultimate object of theconspiracy, they are also acts of conspiracy.

134. In Ajay Aggarwal v. Union of India [(1993) 3 SCC 609 : 1993SCC (Cri) 961 : AIR 1993 SC 1637] , this Court rejected thesubmission of the accused that as he was staying in Dubai and theconspiracy was initially hatched in Chandigarh and he did not play anactive part in the commission of the acts which ultimately lead to theincident, thus, could not be liable for any offence, observing: (SCC pp.616-17, para 8)

“8. … Section 120-A IPC defines ‘conspiracy’ to meanthat when two or more persons agree to do, or cause to bedone an illegal act, or an act which is not illegal by illegalmeans, such an agreement is designated as ‘criminalconspiracy’. No agreement except an agreement to commitan offence shall amount to criminal conspiracy, unlesssome act besides the agreement is done by one or moreparties to such agreement in furtherance thereof. Section120-B IPC prescribes punishment for criminal conspiracy.

It is not necessary that each conspirator must know all thedetails of the scheme nor be participant at every stage. Itis necessary that they should agree for design or object ofthe conspiracy. Conspiracy is conceived as having threeelements: (1) agreement (2) between two or more personsby whom the agreement is effected; and (3) criminalobject, which may be either the ultimate aim of theagreement, or may constitute the means, or one of themeans by which that aim is to be accomplished.It isimmaterial whether this is found in the ultimate objects.The common law definition of ‘criminal conspiracy’ wasstated first by Lord Denman in Jones case [R. v. Jones,(1832) 4 & Ad 345 : 110 ER 485] that an indictment forconspiracy must ‘charge conspiracy to do an unlawful actby unlawful means’….”

The Court, thus, held that an agreement between two ormore persons to do an illegal act or legal act by illegalmeans is criminal conspiracy. Conspiracy itself is asubstantive offence and is distinct from the offence to becommitted, for which the conspiracy was entered into. Aconspiracy is continuing offence and continues to subsistand is committed wherever one of the conspirators does anact or series of acts. So long as its performance continues,it is continuing offence till it is executed or rescinded orfrustrated by choice or necessity. crime is complete assoon as the agreement is made, but it is not thing of themoment. It does not end with the making of the agreement.It will continue so long as there are two or more parties toit intending to carry into effect the design.(Vide SudhirShantilal Mehta v. CBI [(2009) 8 SCC 1 : (2009) 3 SCC(Cri) 646] .)135. In Yash Pal Mittal v. State of Punjab [(1977) 4 SCC 540 : 1978SCC (Cri) 5] the rule was laid down as follows: (SCC p. 543, para 9)“9. … The very agreement, concert or league is theingredient of the offence. It is not necessary that all theconspirators must know each and every detail of theconspiracy as long as they are co-participators in the mainobject of the conspiracy. There may be so many devices and

techniques adopted to achieve the common goal of theconspiracy and there may be division of performances in thechain of actions with one object to achieve the real end ofwhich every collaborator must be aware and in which eachone of them must be interested.There must be unity ofobject or purpose but there may be plurality of meanssometimes even unknown to one another, amongst theconspirators. In achieving the goal, several offences may becommitted by some of the conspirators even unknown to theothers. The only relevant factor is that all means adopted andillegal acts done must be and purported to be in furtheranceof the object of the conspiracy even though there may besometimesmisfireorovershootingbysomeofthe”conspirators.

136. For an offence under Section 120-B IPC, the prosecution need notnecessarily prove that the conspirators expressly agreed to do or causeto be done the illegal act, the agreement may be proved by necessaryimplication. It is not necessary that each member of the conspiracymust know all the details of the conspiracy. The offence can be provedlargely from the inferences drawn from the acts or illegal omissionscommitted by the conspirators in pursuance of common design.Being continuing offence, if any acts or omissions which constitutean offence are done in India or outside its territory, the conspiratorscontinuing to be the parties to the conspiracy and since part of the actswere done in India, they would obviate the need to obtain the sanctionof the Central Government. All of them need not be present in Indianor continue to remain in India. The entire agreement must be viewedas whole and it has to be ascertained as to what in fact theconspirators intended to do or the object they wanted to achieve.(Vide R.K. Dalmia v. Delhi Admn. [AIR 1962 SC 1821 : (1962) 2 CriLJ 805] , Lennart Schussler v. Director of Enforcement [(1970) 1 SCC152 : 1970 SCC (Cri) 73] , Shivnarayan Laxminarayan Joshi v. Stateof Maharashtra [(1980) 2 SCC 465 : 1980 SCC (Cri) 493] and Mohd.Usman Mohammad Hussain Maniyar v. State of Maharashtra [(1981)2 SCC 443 : 1981 SCC (Cri) 477 : AIR 1981 SC 1062] .)

137. In Yogesh v. State of Maharashtra [(2008) 10 SCC 394 : (2009) 1SCC (Cri) 51] this Court held: (SCC p. 402, para 25)

“25. Thus, it is manifest that the meeting of minds of twoor more persons for doing an illegal act or an act by illegalmeans is sine qua non of the criminal conspiracy but it maynot be possible to prove the agreement between them bydirect proof. Nevertheless, existence of the conspiracy anditsobjectivecanbeinferredfromthesurroundingcircumstances and the conduct of the accused. But theincriminating circumstances must form chain of eventsfrom which conclusion about the guilt of the accused couldbe drawn.It is well settled that an offence of conspiracy is asubstantive offence and renders the mere agreement tocommit an offence punishable, even if an offence does nottake place pursuant to the illegal agreement.”

138. In Nirmal Singh Kahlon v. State of Punjab [(2009) 1 SCC 441 :(2009) 1 SCC (Cri) 523 : AIR 2009 SC 984] , this Courtfollowing Ram Lal Narang v. State (Delhi Admn.) [(1979) 2 SCC 322 :1979 SCC (Cri) 479 : AIR 1979 SC 1791] , held that conspiracy maybe general one and separate one, meaning thereby, largerconspiracy and smaller one which may develop in successive stages.139. In K.R. Purushothaman v. State of Kerala [(2005) 12 SCC 631 :(2006) 1 SCC (Cri) 686] this Court held: (SCC pp. 636-37, paras 11 &13)

“11. Section 120-A IPC defines ‘criminal conspiracy’.According to this section when two or more persons agree todo, or cause to be done (i) an illegal act, or (ii) an act whichis not illegal by illegal means, such an agreement isdesignated criminal conspiracy.

13. … The existence of conspiracy and its objects areusually deduced from the circumstances of the case and theconduct of the accused involved in the conspiracy.”

140. In State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC 659 :1996 SCC (Cri) 820 : AIR 1996 SC 1744] , this Court held: (SCC p.668, para 24)

“24.…toestablishachargeof

conspiracy knowledge about indulgence in either an illegalact or legal act by illegal means is necessary.In somecases, intent of unlawful use being made of the goods or

services in question may be inferred from the knowledgeitself. This apart, the prosecution has not to establish thata particular unlawful use was intended … the ultimateoffence consists of chain of actions, it would not benecessary for the prosecution to establish, to bring homethe charge of conspiracy, that each of the conspirators hadthe knowledge of what the collaborator would do, so longas it is known that the collaborator would put the goods orservice to an unlawful use.”

(emphasis in original)

142. In Firozuddin Basheeruddin v. State of Kerala [(2001) 7 SCC 596: 2001 SCC (Cri) 1341] , this Court held: (SCC pp. 606-08, paras 23 &25-27)

“23. Like most crimes, conspiracy requires an act (actusreus) and an accompanying mental state (mens rea). Theagreement constitutes the act, and the intention to achievethe unlawful objective of that agreement constitutes therequired mental state. … the law punishes conduct thatthreatens to produce the harm, as well as conduct that hasactually produced it. Contrary to the usual rule that anattempt to commit crime merges with the completedoffence, conspirators may be tried and punished for both theconspiracy and the completed crime. The rationale ofconspiracy is that the required objective manifestation ofdispositiontocriminality isprovidedby theactofagreement. Conspiracy is clandestine activity. Personsgenerally do not form illegal covenants openly. In theinterests of security, person may carry out his part of aconspiracy without even being informed of the identity ofhis co-conspirators.

25. Conspiracy is not only substantive crime, it alsoserves as basis for holding one person liable for the crimesof others in cases where application of the usual doctrines ofcomplicity would not render that person liable. Thus, onewho enters into conspiratorial relationship is liable forevery reasonably foreseeable crime committed by everyother member of the conspiracy in furtherance of its

objectives, whether or not he knew of the crimes or aided intheir commission. The rationale is that criminal acts done infurtherance of conspiracy may be sufficiently dependentupon the encouragement and support of the group as wholeto warrant treating each member as causal agent to eachact. Under this view, which of the conspirators committedthesubstantiveoffencewouldbelesssignificantindetermining the defendant's liability than the fact that thecrime was performed as part of larger division of labourto which the accused had also contributed his efforts.

26.Regardingadmissibilityofevidence,loosenedstandards prevail in conspiracy trial. Contrary to the usualrule, in conspiracy prosecutions, any declaration by oneconspirator, made in furtherance of conspiracy and during-its pendency, is admissible against each coconspirator.Despite the unreliability of hearsay evidence, it is admissiblein conspiracy prosecutions.…

27. Thus conspirators are liable on an agency theory forstatements of co-conspirators, just as they are for the overtacts and crimes committed by their confréres.”

[See also State (NCT of Delhi) v. Navjot Sandhu [State (NCT ofDelhi) v. Navjot Sandhu, (2005) 11 SCC 600 : 2005 SCC (Cri) 1715].]

143. In Ram Narayan Popli v. CBI [(2003) 3 SCC 641 : 2003 SCC(Cri) 869] this Court held: (SCC p. 778, para 342)

“342. … The elements of criminal conspiracy havebeen stated to be: (a) an object to be accomplished, (b) aplan or scheme embodying means to accomplish that object,(c) an agreement or understanding between two or more ofthe accused persons whereby, they become definitelycommitted to cooperate for the accomplishment of the objectby the means embodied in the agreement, or by any effectualmeans, and (d) in the jurisdiction where the statute requiredan overt act. The essence of criminal conspiracy is theunlawful combination and ordinarily the offence is completewhen the combination is framed. From this, it necessarilyfollows that unless the statute so requires, no overt act needbe done in furtherance of the conspiracy, and that the object

of the combination need not be accomplished, in order toconstitute an indictable offence. The law making conspiracya crime is designed to curb immoderate power to do mischiefwhich is gained by combination of the means. Theencouragement and support which co-conspirators give toone another rendering enterprises possible which, if left toindividual effort, would have been impossible, furnish theground for visiting conspirators and abettors with condignpunishment. The conspiracy is held to be continued andrenewed as to all its members wherever and whenever anymember of the conspiracy acts in furtherance of the common”design.

144. In Mohd. Khalid v. State of W.B. [(2002) 7 SCC 334 : 2002 SCC(Cri) 1734] this Court held: (SCC p. 356, para 27)

“27. Where trustworthy evidence establishing all links ofcircumstantial evidence is available the confession of co-accusedastoconspiracyevenwithoutcorroborativeevidence can be taken into consideration.”

150. The law on the issue emerges to the effect that conspiracy is anagreement between two or more persons to do an illegal act or an actwhich is not illegal by illegal means. The object behind theconspiracy is to achieve the ultimate aim of conspiracy. In order toachieve the ultimate object, parties may adopt many means. Suchmeans may constitute different offences by themselves, but so long asthey are adopted to achieve the ultimate object of the conspiracy, theyare also acts of conspiracy. For an offence of conspiracy, it is notnecessary for the prosecution to prove that conspirators expresslyagreed to do an illegal act, the agreement may be proved by necessaryimplication. It is also not necessary that each member of theconspiracy should know all the details of the conspiracy. Conspiracyis continuing offence. Thus, if any act or omission which constitutesan offence is done in India or outside its territory, the conspiratorscontinue to be the parties to the conspiracy. The conspiracy may be ageneral one and smaller one which may develop in successivestages. It is an unlawful agreement and not its accomplishment, whichis the gist/essence of the crime of conspiracy. In order to determinewhether the conspiracy was hatched, the court is required to view the

entire agreement and to find out as to in fact what the conspiratorsintended to do.”

(emphasis supplied by underlining.)

99.From conspectus of the above decisions, the legal position thatemerges, is collated as follows:

i.The offence of Conspiracy has two elements, viz. (1) an agreementbetween two or more persons by whom the agreement is effected; and(2) criminal object, which may be either the ultimate aim of theagreement, or may constitute the means, or one of the means by whichthat aim is to be accomplished. The gist of the offence of conspiracy isan agreement to break the law.

ii.Since it is the unlawful agreement which is the gravamen of the crimeof conspiracy, the offence of criminal conspiracy is an exception to thegeneral law where intent alone does not constitute crime.

iii.Conspiracy itself is substantive offence and is distinct from theoffence to be committed, for which the conspiracy was entered into.Therefore, the crime is complete as soon as the agreement is made.

iv.It thus, also follows that the offence of criminal conspiracy is completeeven though there might be no agreement as to the means by which thepurpose is to be accomplished.even though there might be no agreement as to the means by which thepurpose is to be accomplished.

v.However, the offence might not end with the making of the agreementin certain cases.in certain cases.

It thus follows that conspiracy is continuing offence and continues tosubsist wherever one of the conspirators does an act or series of acts, infurtherance of the object of the conspiracy. So long as its performance

vii.

viii.

continues, it is continuing offence till it is executed or rescinded orfrustrated by choice or necessity.

Therefore, it follows from the above propositions that the offence of

conspiracy is punishable independent of its fruition. The parties toan agreement will be guilty of criminal conspiracy, even in thecircumstance that the illegal act agreed to be done might not actuallyhave been done. In other words, to prove the charge of conspiracy, it isnot necessary that intended crime was committed. If the crime iscommitted, it may further help prosecution to prove the charge ofconspiracy.

Since conspiracy is hatched in private or in secrecy, it is rarelypossible to establish conspiracy by direct evidence. The unlawfulagreement which amounts to conspiracy need not be formal orexpress, but may be inherent in and inferred from the circumstances,especially declarations, acts and conduct of the conspirators.

Usually, both the existence of the conspiracy and its objects, have tobe inferred from the circumstances and the conduct of the accused.But the incriminating circumstances must form chain of events fromwhich conclusion about the guilt of the accused could be drawn.Conspiracy may comprise the commission of number of acts.

Further, there may be many devices and techniques adopted to achievethe common goal of the conspiracy and there may be division ofperformances in the chain of actions with one object to achieve the realend of which every collaborator must be aware and in which each oneof them must be interested.

xi.There, however, must be unity of object or purpose but there may beplurality of means sometimes even unknown to one another, amongstthe conspirators.plurality of means sometimes even unknown to one another, amongstthe conspirators.

xii.Further, in achieving the goal, several offences may be committed bysome of the conspirators even unknown to the others. The only relevantfactor is that all means adopted and illegal acts done must be andpurported to be in furtherance of the object of the conspiracy eventhough there may be sometimes misfire or overshooting by some of theconspirators. The means may even constitute different offences bythemselves, but as long as they are adopted to achieve the ultimateobject of the conspiracy, they are also acts forming part of theconspiracy.some of the conspirators even unknown to the others. The only relevantfactor is that all means adopted and illegal acts done must be andpurported to be in furtherance of the object of the conspiracy eventhough there may be sometimes misfire or overshooting by some of theconspirators. The means may even constitute different offences bythemselves, but as long as they are adopted to achieve the ultimateobject of the conspiracy, they are also acts forming part of theconspiracy.

xiii.All accused persons are guilty of the offence of conspiracy to do illegalacts, though for individual offences all of them may not be liable. Inother words, criminal conspiracy is partnership in crime, andthere is in each conspiracy, joint or mutual agency for the prosecutionof common plan. Each conspirator can be attributed each other'sactions in conspiracy by virtue of the application of the theory ofagency.acts, though for individual offences all of them may not be liable. Inother words, criminal conspiracy is partnership in crime, andthere is in each conspiracy, joint or mutual agency for the prosecutionof common plan. Each conspirator can be attributed each other'sactions in conspiracy by virtue of the application of the theory ofagency.

xiv.Conspirators may, be enrolled in chain; or there may be kind ofumbrella-spoke enrolment, where single person at the centre does theenrolling and all the other members are unknown to each other, thoughthey know that there are to be other members. It may however be thatboth the theories overlap in given case. But then there has to bepresent mutual interest.umbrella-spoke enrolment, where single person at the centre does theenrolling and all the other members are unknown to each other, thoughthey know that there are to be other members. It may however be thatboth the theories overlap in given case. But then there has to bepresent mutual interest.

xv.A man may join conspiracy by word or by deed. However, criminalresponsibility for conspiracy requires more than merely passiveattitude towards an existing conspiracy. One who commits an overt actwith knowledge of the conspiracy is guilty. And one who tacitlyconsents to the object of conspiracy and goes along with otherconspirators, actually standing by while the others put the conspiracyinto effect, is also guilty though he intends to take no active part in thecrime.responsibility for conspiracy requires more than merely passiveattitude towards an existing conspiracy. One who commits an overt actwith knowledge of the conspiracy is guilty. And one who tacitlyconsents to the object of conspiracy and goes along with otherconspirators, actually standing by while the others put the conspiracyinto effect, is also guilty though he intends to take no active part in thecrime.

xvi.Persons may be members of single conspiracy even though each isignorant of the identity of many others who may have diverse roles toplay. It is not part of the crime of conspiracy that all the conspiratorsneed to agree to play the same or an active role. It is not necessary thatall conspirators should agree to the common purpose at the same time.They may join with other conspirators at any time before theconsummationoftheintendedobjective,andallareequallyresponsible. What part each conspirator is to play may not be known toeveryone or the fact as to when conspirator joined the conspiracy andwhen he left.ignorant of the identity of many others who may have diverse roles toplay. It is not part of the crime of conspiracy that all the conspiratorsneed to agree to play the same or an active role. It is not necessary thatall conspirators should agree to the common purpose at the same time.They may join with other conspirators at any time before theconsummationoftheintendedobjective,andallareequallyresponsible. What part each conspirator is to play may not be known toeveryone or the fact as to when conspirator joined the conspiracy andwhen he left.

xvii.There is always difficulty in tracing the precise contribution of eachmember of the conspiracy but then there has to be cogent andconvincing evidence against each one of the accused charged with theoffence of conspiracy.

xviii.The agreement need not be entered into by all the parties to it at thesame time, but may be reached by successive actions evidencing theirjoining of the conspiracy. Acts subsequent to the achieving of the object

of conspiracy may tend to prove that particular accused was party tothe conspiracy.

xix.The joinder of conspiracy by new member does not create new

conspiracy nor does it change the status of the other conspirators,and the mere fact that conspirators individually or in groups performdifferent tasks to common end does not split up conspiracy intoseveral different conspiracies. The conspiracy is held to be continuedand renewed as to all its members wherever and whenever any memberof the conspiracy acts in furtherance of the common design.

xx.To establish charge of conspiracy knowledge about indulgence ineither an illegal act or legal act by illegal means is necessary.either an illegal act or legal act by illegal means is necessary.

xxi.Regarding admissibility of evidence, loosened standards prevail in aconspiracy trial. Contrary to the usual rule, in conspiracy prosecutions,any declaration by one conspirator, made in furtherance of conspiracyand during its pendency, is admissible against each co-conspirator.Despite the unreliability of hearsay evidence, it is admissible inconspiracy prosecutions.conspiracy trial. Contrary to the usual rule, in conspiracy prosecutions,any declaration by one conspirator, made in furtherance of conspiracyand during its pendency, is admissible against each co-conspirator.Despite the unreliability of hearsay evidence, it is admissible inconspiracy prosecutions.

100.Having discussed the statutory provisions and the position of law withregard to the same, I would now proceed to deal with the submissions madeon behalf of the parties with respect to the second issue.

101.In this behalf, it would be profitable to note the material that has beenrelied upon by the Ld. Trial Court, to conclude that there exists prima faciecase and strong suspicion against the accused persons, in order to framecharges against them. The same are as culled out hereinbelow:

(i)Mr. Sushil Ansal, Mr. Gopal Ansal (who were allegedly in financialcontrol & control over the day-to-day functioning of the UphaarCinema, at the relevant time) and Mr. H.S. Panwar (Fire Officer at theDelhi Fire Services) were facing prosecution in the Main UphaarTrial.control & control over the day-to-day functioning of the UphaarCinema, at the relevant time) and Mr. H.S. Panwar (Fire Officer at theDelhi Fire Services) were facing prosecution in the Main UphaarTrial.

(ii)Documents forming part of the judicial file in the Main Uphaar Trialwere destroyed.were destroyed.

(iii)Mr. Dinesh Chand Sharma, the Ahalmad in the Court where the MainUphaar Trial was being conducted, was proceeded against by way of adepartmental inquiry. He was found guilty of carelessness andnegligence amounting to serious misconduct and responsible for thedestruction of documents forming part of the judicial file in the MainUphaar Trial. Subsequently, he was dismissed from service.Uphaar Trial was being conducted, was proceeded against by way of adepartmental inquiry. He was found guilty of carelessness andnegligence amounting to serious misconduct and responsible for thedestruction of documents forming part of the judicial file in the MainUphaar Trial. Subsequently, he was dismissed from service.

(iv)Duringinvestigationinthepresent case,thefollowingwereundertaken:undertaken:

a)Call Data Records of Mr. P.P. Batra (stenographer in the legalcell at Ansal Properties & Infrastructure Limited) and Mr.Dinesh Chand Sharma were obtained.cell at Ansal Properties & Infrastructure Limited) and Mr.Dinesh Chand Sharma were obtained.

b)Disclosure statement of Mr. Dinesh Chand Sharma wasrecorded.recorded.

c)Statements of Mr. Anoop Singh, Mr. Anokhe Lal and Mr. ShivRaj Singh were recorded.Raj Singh were recorded.

d)Wages’ Register of A-Plus Security agency seized.e)GEQD Report was obtained.e)GEQD Report was obtained.

(v)Pursuant to the investigation, inter alia the following facts andcircumstances came to light:circumstances came to light:

a)Contact was established between Mr. P.P. Batra and Mr. DineshChand Sharma during the proceedings in the Main Uphaar Trial.Chand Sharma during the proceedings in the Main Uphaar Trial.b)Documents forming part of the judicial file in the Main UphaarTrial were tampered with, mutilated, torn, went missing, etc.,and consequent thereto, upon departmental inquiry in thisbehalf, Mr. Dinesh Chand Sharma was dismissed from service.Trial were tampered with, mutilated, torn, went missing, etc.,and consequent thereto, upon departmental inquiry in thisbehalf, Mr. Dinesh Chand Sharma was dismissed from service.

c)Mr. Dinesh Chand Sharma contacted Mr. P.P. Batra for seekingemployment after the former’s dismissal from service.employment after the former’s dismissal from service.

d)Mr. Dinesh Chand Sharma was recommended for job at A-Plus Security Agency, by Mr. D.V. Malhotra at the behest ofMr. Sushil Ansal and Mr. Gopal Ansal.Plus Security Agency, by Mr. D.V. Malhotra at the behest ofMr. Sushil Ansal and Mr. Gopal Ansal.

e)Mr. D.V. Malhotra was the General Manager of SEML at therelevant time.relevant time.

f)90% of the shares of SEML were held in the names of Mr.Sushil Ansal and Mr. Gopal Ansal.Sushil Ansal and Mr. Gopal Ansal.

g)SEML had security services contract with A-Plus SecurityAgency to supply the latter with manpower.Agency to supply the latter with manpower.

h)Mr. Anoop Singh was the Chairman of A-Plus Security Agencyat the relevant time.at the relevant time.

i)Fluid was applied in the wages’ register of A-Plus SecurityAgency over the name and remuneration paid to Mr. DineshChand Sharma, and instead, fictitious name and lowerremuneration was written over the same, by Mr. Anoop Singh,Agency over the name and remuneration paid to Mr. DineshChand Sharma, and instead, fictitious name and lowerremuneration was written over the same, by Mr. Anoop Singh,

when he came to know about the investigation in the presentcase. The same is also revealed in the GEQD Report.case. The same is also revealed in the GEQD Report.

(vi)The documents that were destroyed were vital to the case of theprosecution in the Main Uphaar Trial, inasmuch as, the nature of thedocuments forming part of the judicial record, that were destroyedand of the destruction thereof, reveals as follows:prosecution in the Main Uphaar Trial, inasmuch as, the nature of thedocuments forming part of the judicial record, that were destroyedand of the destruction thereof, reveals as follows:

a)The documents demonstrate the control of Mr. Sushil Ansal andMr. Gopal Ansal over the day-to-day functioning and workingof the Uphaar Cinema and their complete financial control overthe same.Mr. Gopal Ansal over the day-to-day functioning and workingof the Uphaar Cinema and their complete financial control overthe same.

b)The documents show dereliction of duty on the part of Mr. H.S.Panwar as Fire Officer of the Delhi Fire Services.Panwar as Fire Officer of the Delhi Fire Services.

c)The documents demonstrate the collusion between Mr. SushilAnsal, Mr. Gopal Ansal and Mr. H.S. Panwar.Ansal, Mr. Gopal Ansal and Mr. H.S. Panwar.

d)The documents show that the address of Ansal Properties andIndustriesLimitedisdepictedsameasthatofSEML,demonstrating the connection between Mr. D.V. Malhotra andMr. Sushil Ansal and Mr. Gopal Ansal.IndustriesLimitedisdepictedsameasthatofSEML,demonstrating the connection between Mr. D.V. Malhotra andMr. Sushil Ansal and Mr. Gopal Ansal.

102.In view of the foregoing material before the Ld. Trial Court, it isabundantly clear that prima facie, the ingredients of the offence punishableunder section 201 are made out inasmuch as, (a) the actors of the allegedconspiracy were aware of the offences committed by Mr. Sushil Ansal, Mr.Gopal Ansal and Mr. H.S. Panwar and the prosecution against the latter byway of the Main Uphaar Trial; (b) disappearance of the evidence of thecommission of the offences that were being prosecuted in the Main Uphaar

Trial, was caused, with the intention of screening Mr. Sushil Ansal, Mr.Gopal Ansal and Mr. H.S. Panwar from the legal punishment thereof. [Ref:Palwinder Kaur v. State of Punjab, reported as AIR 1952 SC 354; RoshanLal & ors. v. State of Punjab, reported as AIR 1965 SC 1413]

103.Furthermore, contrary to what has been urged by the revisionists, theingredients of section 204, IPC would not be attracted to the facts of theinstant case, inasmuch as, in the present case, inter alia, the alleged act iscausing disappearance of evidence. However, under the provisions of section204, IPC, the punishable act is the destruction of document which is yet tobe produced as evidence before court of law.

104.Furthermore, in view of the material as elaborated in the precedingparagraphs, it has been established that prima facie the ingredients of theoffence punishable under section 409, IPC are made out, inasmuch as, (a)Mr. Dinesh Chand Sharma was entrusted with the dominion and physicalcustody of the judicial file in the Main Uphaar Trial. Allegedly, he receivedthe said file from his predecessor in intact and good condition, after properchecking of the judicial record; (b) the act of destruction of the documentsforming part of the said judicial file, is indicative of the fact that the disposalof the entrusted judicial file was in blatant violation of the mandate of law,thereby constituting criminal breach of trust. [Ref: Ram Narain Popli v. CBI(supra)]

105.Next, on bare reading of the material relied upon by the Ld. TrialCourt, it has also been prima facie established that with regard to the offencepunishable under section 109, IPC, all the essential ingredients are made outin the instant case, inasmuch as, (a) Mr. Sushil Ansal, Mr. Gopal Ansal and

Mr. H.S. Panwar, are alleged to have instigated each other as well as theother actors in the conspiracy to further the object of the conspiracy; (b) allthe actors in the conspiracy have committed offences in furtherance of theinstigation; (c) the acts of commission and omission by the actors are, in fact,offences punishable under the sections 201, 409 of the IPC.

106.Coming now to the offence of conspiracy. The argument of therevisionists that the conspiracy came to an end when the conspiracy wasfrustrated, i.e., when the fact of the destruction of documents was brought tothe knowledge of the concerned court, cannot be countenanced, inasmuch as,the object of the conspiracy was not the destruction of the documents, per se.107.It is in fact, evident from the material hereinabove elaborated, thatprima facie the object of conspiracy was to secure, favourable orders and theacquittal of Mr. Sushil Ansal, Mr. Gopal Ansal and Mr. H.S. Panwar, byemploying illegal means. Therefore, all acts of commission and omission,done in furtherance of the object of the conspiracy, can be considered toform part of the same offence of the alleged conspiracy. [Ref: State v.Nalini (supra)]

108.In this regard, it is also trite to observe that, it is not necessary that allthe actors in the conspiracy must have joined the offence from its veryinception. Conspiracy is continuing offence and the acts of the persons whojoin the conspiracy at later point in time, in furtherance of the objectthereof, form part of the same offence of conspiracy. [Ref: State v. Nalini(supra); Yakub Abdul Razak Memon v. State of Maharashtra (supra), LeoRoy Frey (supra)]

109.Therefore, it follows that the acts allegedly committed in furtheranceof the objective of the conspiracy include, (i) the act of destruction of thedocuments forming part of the judicial file, which were vital to the case ofthe prosecution in the Main Uphaar Trial as against Mr. Sushil Ansal, Mr.Gopal Ansal and Mr. H.S. Panwar; and (ii) providing job to Mr. DineshChand Sharma, in order to ‘take care’ of him in lieu of his role in theconspiracy.

110.In view of the foregoing, the argument of the revisionists that the actsof commission and omission by Mr. D.V. Malhotra and Mr. Anoop Singh,did not form part of the same alleged conspiracy, does not hold water andis thus, rejected.

111.Furthermore, in Yakub Abdul Razak Memon (supra), it has beenobserved that no direct communication may exist between the accused of aconspiracy and there might be intermediaries for facilitating the commissionof offences. Therefore, the submission advanced by the revisionists that nodirect contact existed between Mr. Sushil Ansal & Mr. Gopal Ansal and Mr.Dinesh Chand Sharma, is rendered nugatory, inasmuch as, allegedly, contactbetween Mr. Sushil Ansal & Mr. Gopal Ansal and Mr. Dinesh ChandSharma, was established through Mr. P.P. Batra.

112.It is thus pertinent to note that there is recognizable differencebetween the object of the alleged conspiracy and the means adopted torealise that object, as observed in the preceding paragraphs. It is notnecessary that all the acts committed in furtherance of the object of aconspiracy, be acts that are punishable offences under law. In the instantcase, the acts, of providing job to Mr. Dinesh Chand Sharma; and of paying

him higher sum as remuneration, are not acts that are offences inthemselves, yet the same are essential elements forming part of thecircumstantial evidence to prove the offence of conspiracy.

113.There are two branches of evidence in criminal case, direct evidenceand circumstantial evidence. In relation to the often-reviled circumstantialevidence, the American philosopher and author, Mr. Henry David Thoreau,[Journal, November 11, 1850] wrote as follows:

‘Some circumstantial evidence is very strong, as when you find troutin the milk.’

114.If we had lived in Thoreau’s time, when there were no healthdepartment regulations and consumer protection agencies to oversee thecontents of milk and when it was common practice by milk suppliers toincrease the volume of the milk by adding water, we would have wellunderstood that trout in our milk would strongly suggest that our milksupplier had added water from nearby stream. These are the naturalinferences which Courts are called upon to draw on the basis ofcircumstantial evidence. Cases of direct evidence, on the other hand, are asplain as the nose on one’s face. Whatever one perceives with any of hisphysical senses is direct evidence and every other piece of evidence iscircumstantial.

115.Conspiracy is an offence that is hatched in secrecy and more oftenthan not, it is proved by circumstantial evidence. The overwhelming judicialopinion is that conspiracy, as in the instant case, can be proved bycircumstantial evidence as mostly having regard to the nature of the

offending act, no direct evidence can be expected. [Ref: State of Karnatakav. Selvi J. Jayalalitha (supra)]

116.On the basis of the above discussion, in my view, prima facie, therewas sufficient ground for proceeding against the accused. Further, there isadequate material for presuming that the accused had committed the offencesfor which they have been charged. Therefore, the Ld. Trial Court cannot befaulted for forming presumptive opinion regarding the existence of thefactual ingredients constituting the offences alleged, and for the framing ofcharges on the basis of strong suspicion founded on the materialhereinbefore elaborated.

117.In this behalf, it is axiomatic to state that the standard of proofnormally adhered to at the final stage, is not to be applied at the stage offraming of charges. In my opinion, the probative value of the material onrecord could not be gone into at this stage. Whether, in fact, the accused hascommitted the offences, can only be decided in the trial.

118.Resultantly, the second issue that arose for determination is answeredin the negative and against the revisionists.

119.Before parting with this order, it would be necessary to deal with theother contentions made on behalf of the revisionists.

120.The Economic Offences Wing of the Delhi Police was directed by thisCourt vide order dated 05.05.2006, (modified by way of order dated25.05.2006) rendered in Crl. M.2229 of 2006, to register case underappropriateprovisionsoflawwithregardtotheincidentofremoval/tampering with/mutilation of documents from the judicial record ofthe Main Uphaar Trial. Consequently, FIR bearing no. 207/2006 was

registered on the basis of complaint made by Mr. Krishnamurthy, theGeneral Secretary of the AVUT.

121.The revisionists have challenged the legality and validity of the FIRNo. 207/2006 and the proceedings pursuant thereto, on the ground that thesame was registered on the basis of complaint made by the GeneralSecretary of the AVUT. The principle of law in State of Punjab v. DavinderPal Singh Bhullar & ors. (supra), sought to be relied upon in this behalf,does not come to the aid of the revisionists, inasmuch as, in that case, theorder of the High Court directing investigation to the CBI was declared to bea nullity on the grounds of, (i) judicial bias; (ii) want of jurisdiction by virtueof application of the provisions of Section 362 CrPC coupled with theprinciples of constructive res judicata; and (iii) the Bench had not beenassigned the roster to entertain the petitions under Section 482 CrPC.

122.Per contra, in the instant case, (i) neither the legality and validity ofthe order dated 05.05.2006 has been assailed on the ground of any judicialbias or, for an error or want of jurisdiction; and (ii) more importantly, norhas it been alleged that the investigation has not been conducted inaccordance with law. Therefore, baseless technical plea, qua theregistration of the FIR on the basis of complaint by specific person, doesnot amount to vitiating the FIR and the proceedings pursuant thereto.

123.Consequently, this bald contention made on behalf of the revisionistsis frivolous, devoid of any merit and thus, rejected.

124.The revisionists have sought to advance an untenable argument, that inorder to frame charges against the accused persons, the Ld. Trial Court oughtnot to place any reliance on the facts, circumstances and inferences from the

Main Uphaar Trial. In support thereof, the revisionists have relied upon thedecision in Mithulal & anr. v. State of Madhya Pradesh (supra). perusalof the said decision, would show that the same is not attracted to the instantcase, inasmuch as, in that case, the evidence recorded in so-called ‘cross-case’ was relied upon by the High Court to reach its decision. It is needlessto state that case is only an authority for what it actually decides, and not forwhat logically follows from it. (Ref: Lord Halsbury in Quinn v. Leathem,1901AC495).Thepresentfactualmatrixhowever,isstarklydistinguishable, inasmuch as, allegedly, the conspiracy was initiated intoaction at the time of the conduct of proceedings in the Main Uphaar Trialand, furthermore, with the motive to affect the lawful and fair decision to berendered therein.125.To controvert this argument, Mr. Dayan Krishnan, learned senioradvocate, has placed reliance on the decision in State of Kerala v. Babu(supra), wherein, it has been held that it is permissible for the Court to relyupon the statements forming part of the case diary of another case, in orderto contradict witness, subject however, to the bar operating under theprovisions of sections 162 of the CrPC and 145 of the Evidence Act.126.In respect to this argument canvassed on behalf of the revisionists, it isobserved that bare reading of the Evidence Act and in particular, sections5, 80, 145, 155 and 157 thereof as well as the rules governing the law ofevidence, clearly permit the evidence or statements recorded in the MainUphaar Trial to be exhibited as evidence during the course of the trial in thepresent case, and any objection thereto could be raised by the revisionists atthe appropriate stage.

127.It is noted that the prosecution proceeded to lead secondary evidencein the Main Uphaar Trial qua the documents which were destroyed from thejudicial record. In this regard, it would be relevant to observe that therevisionists cannot, for moment, be heard to say that since the prosecutioneventually led secondary evidence in the Main Uphaar Trial, qua thedocuments which were destroyed from the judicial record, the proceedingsthereof were not hampered by the destruction of the said documents. Thissubmission is specious, self-serving & cannot be countenanced, and is thus,outrightly rejected.

128.Challenge has also been made by the revisionists to the admissibilityof the disclosure statement of Mr. Dinesh Chand Sharma. However, thedecision rendered in Pulukuri Kottaya (supra), the locus classicus withregard to the interpretation of Section 27, Evidence Act would render thischallenge nugatory.

129.In Pulukuri Kottaya (supra) and in Navjot Sandhu (supra), which alsodiscusses the ratio enunciated in the former, the following principles of lawwith regard to section 27 of the Evidence Act were enunciated:

(i)The term ‘fact’, employed in section 27 of the Evidence Act, embraceswithin its fold, both the physical object as well as the mental elementin relation thereto.within its fold, both the physical object as well as the mental elementin relation thereto.

(ii)The important condition of the said provision is that only ‘so much ofthe information’ as relates distinctly to the fact thereby discovered isadmissible. The rest of the information has to be excluded.the information’ as relates distinctly to the fact thereby discovered isadmissible. The rest of the information has to be excluded.

(iii)The expressions ‘so much of the information’, as employed in the saidprovision, refer to that part of the information supplied by the accusedwhich is the direct and immediate cause of the discovery.provision, refer to that part of the information supplied by the accusedwhich is the direct and immediate cause of the discovery.

(iv)The extent of the information admissible must depend on the exactnature of the fact discovered to which such information is required torelate.nature of the fact discovered to which such information is required torelate.

(v)The reason behind this partial lifting of the ban against confessionsand statements made to the police, is that if fact is actuallydiscovered in consequence of the information given by the accused, itaffords some guarantee of truth of that part; and that part only, whichwas the clear, immediate and proximate cause of the discovery. Nosuch guarantee or assurance attaches to the rest of the statement whichmay be indirectly or remotely related to the fact discovered.and statements made to the police, is that if fact is actuallydiscovered in consequence of the information given by the accused, itaffords some guarantee of truth of that part; and that part only, whichwas the clear, immediate and proximate cause of the discovery. Nosuch guarantee or assurance attaches to the rest of the statement whichmay be indirectly or remotely related to the fact discovered.130.In light of the foregoing legal position, it is abundantly clear that thedisclosure statement of Mr. Dinesh Chand Sharma would prima facie at thisjuncture be considered to be admissible under the provisions of section 27 ofthe Evidence Act, to the extent of the information contained therein that hasled to the discovery of the facts, material to the instant case, as per the caseof the prosecution.disclosure statement of Mr. Dinesh Chand Sharma would prima facie at thisjuncture be considered to be admissible under the provisions of section 27 ofthe Evidence Act, to the extent of the information contained therein that hasled to the discovery of the facts, material to the instant case, as per the caseof the prosecution.

131.Furthermore, the revisionists have sought to urge that there existdiscrepancies in the statements by Mr. Anokhe Lal and Mr. Shiv Raj Singhrecorded under section 161, CrPC. The decision in Ashok Kumar Nayyar v.State (supra) has been relied upon in this behalf.

132.However, the decision in Ashok Kumar Nayyar, is not attracted to thefactual matrix of the present case, inasmuch as, in that case, the statements of

the informant and material witnesses gave two completely different picturesof the incident in question and hence this Court set aside the order on charge.133.Per contra, in the present case, the revisionists have failed todemonstrate how the alleged contradictions in the statements by Mr. AnokheLal and Mr. Shiv Raj Singh, would at this stage, belie the allegations levelledby the prosecution against the accused. That determination can only be madeat the ensuing trial.

134.In keeping with the principles of law laid down in Amit Kapoor v.Ramesh Chander (supra), as discussed in the preceding paragraphshereinabove, this is not the stage where this Court ought to delve into theprobative value of evidence. In view thereof, this unsubstantiated assertionmade on behalf of the revisionists cannot be accepted.

135.Next, it has been the contention of the revisionists that since Mr.Anokhe Lal and Mr. Shiv Raj Singh, are unpardoned accomplices, theirstatements could not have been considered in order to frame charges andfurther, that Mr. Anokhe Lal and Mr. Shiv Raj Singh also ought to be madeaccused in the present case.

136.It is needless to state that the prosecution has the right to examine anyperson, including an unpardoned co-accused, as witness.[Ref: LaxmipatChoraria v. State of Mahrashtra, reported as AIR 1968 SC 938]

137.Therefore, in the event this Court were to accept the argument of therevisionists that Mr. Anokhe Lal and Mr. Shiv Raj Singh are unpardonedaccomplices, an order to try these decoy witnesses along with the co-accused, will render the aforesaid right of the prosecution inconsequential.

138.Furthermore, non-joining of the persons is not ground for quashingthe charge. After framing the charge and recording the evidence, if the Courtfinds that other persons were also involved, it is always open to the Court toexercise its power under Section 319 of the CrPC. [Ref: State of M.P. v. S.B.Johari (supra)]

139.Therefore,inviewoftheforegoing,theargumentquatheimpermissibility of considering the statements of unpardoned accomplices aswitnesses, as well as the argument that they ought to be also made accused inthe present case, is misfounded at this juncture and accordingly, rejected.

140.The argument of the revisionists that no criminality has been attributedto the acts of Mr. Dinesh Chand Sharma in the inquiry report dated30.04.2004, is also misfounded in law, on account that the findings in adepartmental proceeding are not binding upon Court. The Court is vestedwith ample powers to go beyond the findings of departmental disciplinaryproceeding initiated against person. This Court in all its wisdom, owing tothe glaring fact of destruction of documents and evidence in the judicial fileof the Main Uphaar Trial, when the proceedings were ongoing, wascompelled to issue directions to the Economic Offences Wing of the DelhiPolice to investigate the matter.

141.Thus, the argument that since no mens rea was found in the saidinquiry report, the offence of conspiracy cannot be made out against theother co-accused persons herein, is frivolous and misfounded in law. It isthus rejected.

142.It has also been urged that the alleged destruction of documents didnot, in fact, benefit the accused persons, in any manner and therefore, the

object of conspiracy was not achieved. This submission is eminentlyuntenable and in the teeth of the well-settled position of law that the offenceof conspiracy is independent of its fruition, as discussed in the precedingparagraphs. [Ref: Yakub Abdul Razak Memon v. State of Maharashtra(supra)]

143.Challenge to the impugned order has also been made with regard tothe mandate of the provisions under section 211, 212, 213 of the CrPC. Aperusal of the impugned order reveals that the compliance with the mandateof the provisions under section 211, 212, 213 of the CrPC, has been made,inasmuch as:

a)The impugned order specifies the modus operandi and object of thealleged conspiracy between the six persons against whom chargeshave been framed.alleged conspiracy between the six persons against whom chargeshave been framed.

b)The time period with respect to hatching of the alleged conspiracy,and commission of the acts in furtherance of the object of theconspiracy have been elaborated in the impugned order.and commission of the acts in furtherance of the object of theconspiracy have been elaborated in the impugned order.

c)The impugned order clearly specifies the documents in respect ofwhich the charges for the offences punishable under section 409, 201,120-B, 109 of the IPC have been framed.which the charges for the offences punishable under section 409, 201,120-B, 109 of the IPC have been framed.

144.The decision in Neelu Chopra & anr. v. Bharti (supra) relied upon bythe revisionists in this behalf, does not come to their aid, inasmuch as, in thatcase, the Hon’ble Supreme Court found that the complaint was vague anddevoid of any particulars of the offences allegedly committed by the accusedpersons and also with respect to their role in the crime. In the present case,however, as is elaborated hereinabove, the offences alleged to have been

committed by the accused as well as their role in the crime alleged to havebeen committed, has been clearly spelt out in the impugned order.

145.In view of the foregoing, the submission of the revisionists that theimpugned order is unsustainable in law, inasmuch as, the same is renderedwithout compliance to the relevant provisions of the CrPC, is meritless andthus, rejected.

146.In Amit Kapoor v. Ramesh Chander (supra), the Hon’ble SupremeCourt clearly enunciated that the revisionial powers could be exercised onlywhen it was considered absolutely essential so to do, in order to preventpatent miscarriage of justice or to correct some grave error.It furtherpostulated that the High Court, whilst exercising revisional jurisdictionshould be loath to interfere at the threshold to throttle the prosecution inexercise of its powers. The High Courts were directed not to interfereunduly, or to determine whether there was sufficient material to concludethat the case would end in conviction. The Courts were further directed, atthe stage of framing of charges, to be concerned primarily with, whether theallegations taken as whole would constitute the commission of an offence.The Courts were also instructed to be more inclined to permit thecontinuation of prosecution, rather than venture into the realm of full-fledged appreciation of evidence.

147.For the reasons aforesaid, I am of the opinion that the Ld. Trial Courtproceeded correctly, in exercise of its powers, to frame charges against therevisionists. The material on record gives rise to strong suspicion that theaccused persons had committed the offences for which the charges wereframed against them by way of the impugned order.

148.Consequently, there exist no circumstances to warrant interferencewith the impugned order by this Court in exercise of its revisionaljurisdiction.

149.The present revision petitions are accordingly dismissed, with no orderas to costs.

150.The Ld. Trial Court is directed to proceed further with the trial, inaccordance with law.

151.The Trial Court Record be sent back, forthwith.

SIDDHARTH MRIDUL, JMAY 12, 2017dn/sb

CRL.REV.P. 262/2016, CRL.REV.P. 263/2016, CRL.REV.P. 264/2016 & CRL.REV.P. 265/2016