# Awadhesh Agarwal v. State of U.P. & Anr

- **Citation:** (2024) 9 ILRA 1176
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-09-20
- **Case number:** Application U/S 482 No. 21392 of 2022
- **Bench:** Samit Gopal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadhesh-agarwal-v-state-of-u-p-anr-52528
- **Pages:** 43

## Headnote

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Section
307 - Attempt to murder, Section 34 -
Common
Intention,
Section
120-B
-
Criminal Conspiracy, The Code of criminal
procedure, 1973 - Section 161,164 - a
few bits here and a few bits there on
which the prosecution proposes to rely are
woefully inadequate for connecting the
accused with the crime. (Para - 11)

(B) Criminal Law - Indian Penal Code,
1860 - law relating to conspiracy under
Section 120-B - importance of evidence
and
judicial
scrutiny
in
establishing
criminal conspiracy - High Court has the
power to assess the weight of material on
9 All. Awadhesh Agarwal Vs. State of U.P. & Anr.
1177
record to determine if charges can be
framed
against
the
accused
-
an
agreement between persons to do an
illegal act or legal act by illegal means is
essential for criminal conspiracy - motive
alone cannot prove conspiracy and that
direct evidence or circumstantial evidence
is needed. (Para - 8)

(C) Criminal Law - The Code of criminal
procedure, 1973 - Powers of discharge
under Section 227 Cr.P.C. - Judge to
discharge an accused person if there's
insufficient ground to proceed with the
case key principles - Consideration of
Record and Documents - Threshold of
Scrutiny - Prima Facie Case - Sifting
Evidence - Strong Suspicion - Judicial
Mind - Discharge Obligation - Pre-Battle
Protection - No Mere Post Office. (Para -8)

(D) Criminal Law - The Code of criminal
procedure, 1973 - The UP Gangsters and
Anti-Social Activities (Prevention) Act,
1986 - Section 2/3 - If the predicate
offence is quashed, proceedings under
Gangsters Act cannot survive - Quashing
of the predicate offence renders the
foundation for prosecution under the
Gangsters Act non-existent - Continued
prosecution in such cases amounts to
abuse of court process. (Para -7)

Two petitions/applications of same applicant/
accused - common features of origin in
themselves - applicant not named in FIR -
implication came later through a subsequent
application by first informant - only casts
suspicion on applicant - suspicion based on
enmity between applicant & injured party - no
evidence of a meeting of minds between
accused persons to conspire and commit offense
- No concrete or credible evidence links the
applicant to the crime - Involvement in criminal
and illegal activities as members of a gang - if
predicate offense quashed - then proceedings
under Gangsters Act invalid - trial court rejected
discharge plea of accused-applicant - hence
application.(Para -1,2,11)

HELD: - Prosecution failed to bring in credible
and substantial evidence against the accused
applicant. Court discharged applicant due to
insufficient
evidence.
Mere
suspicion
is
inadequate
to
link
them
to
the
crime.
Prosecution failed to establish a prima facie
case. Court quashed the proceedings under
Gangsters Act against the accused applicant
since they've been discharged of the predicate
offence
in
a
connected
case.
(Para
-
15,16,17,11)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:

## Text

_Characters 0–39,918 of 100,007. This is a partial read: ask again with offset=39918 for what follows._

1176 INDIAN LAW REPORTS ALLAHABAD SERIES
established to monitor complaints under the
SC/ST Act, investigating patterns of misuse
and providing recommendations for action.
Finally, public awareness campaigns should
be launched to educate communities about
the Act's purpose and the consequences of
filing false claims, thereby fostering a
culture of integrity and accountability.
These measures would not only help
safeguard the Act's integrity but also
support genuine victims in receiving the
justice they deserve.

23. In view of the statement given
by opposite party no.2 before this Court,
the proceeding of charge sheet dated
22.05.2022 as well as S.T. No.130 of 2022
(State vs. Vihari & Others), arising out of
Case Crime No.101/2022, under Sections
504, 506, 323 I.P.C. and Sections 3(1)da,
3(1)dha S.C./S.T. Act, Police Station- Kaila
Devi, District- Sambhal, pending before the
learned Additional District & Session
Judge/Special
Judge
(S.C./S.T.
Act),
Sambhal
at
Chandausi,
are
hereby
quashed.

24. The application is, accordingly,
allowed. There shall be no order as to
costs.

25. This order be placed before the
Registrar General of this Court for its
circulation
to
all
District
Courts
highlighting
the
observations,
made
hereinabove, who will pass orders, in such
cases, taking into consideration the reports
submitted by Investigating Officers under
Section 173(2) Cr.P.C., in accordance with
law and also keeping in mind the
provisions of Section 182 I.P.C.

26. A copy of this order be
communicated to learned Government
Advocate, High Court, Allahabad, who
shall send it to the Director General of
Police, U.P., for issuance of necessary
circular to the Police Authorities of the
Districts to consider the observations of the
Court with regard to invocation of the
provisions of Section 182 I.P.C. (now 217
of B.N.S. 2023).
----------
(2024) 9 ILRA 1176
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2024

BEFORE

THE HON'BLE SAMIT GOPAL, J.

Application U/S 482 No. 21392 of 2022
With
Application U/S 482 No. 37671 of 2022

Awadhesh Agarwal ...Applicant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Applicant:
Sri Aditya Prakash Singh, Sri Sushil Shukla

Counsel for the Respondents:
Sri Anil Kumar Srivastava (Sr. Adv.), G.A., Sri
Namit Srivastava, Sri Ram Bahadur, Sri Vikas
Srivastava

(A) Criminal Law - The Code of criminal
procedure, 1973 - Section 482 - Inherent
power, Indian Penal Code, 1860 - Section
307 - Attempt to murder, Section 34 -
Common
Intention,
Section
120-B
-
Criminal Conspiracy, The Code of criminal
procedure, 1973 - Section 161,164 - a
few bits here and a few bits there on
which the prosecution proposes to rely are
woefully inadequate for connecting the
accused with the crime. (Para - 11)

(B) Criminal Law - Indian Penal Code,
1860 - law relating to conspiracy under
Section 120-B - importance of evidence
and
judicial
scrutiny
in
establishing
criminal conspiracy - High Court has the
power to assess the weight of material on
9 All. Awadhesh Agarwal Vs. State of U.P. & Anr.
1177
record to determine if charges can be
framed
against
the
accused
-
an
agreement between persons to do an
illegal act or legal act by illegal means is
essential for criminal conspiracy - motive
alone cannot prove conspiracy and that
direct evidence or circumstantial evidence
is needed. (Para - 8)

(C) Criminal Law - The Code of criminal
procedure, 1973 - Powers of discharge
under Section 227 Cr.P.C. - Judge to
discharge an accused person if there's
insufficient ground to proceed with the
case key principles - Consideration of
Record and Documents - Threshold of
Scrutiny - Prima Facie Case - Sifting
Evidence - Strong Suspicion - Judicial
Mind - Discharge Obligation - Pre-Battle
Protection - No Mere Post Office. (Para -8)

(D) Criminal Law - The Code of criminal
procedure, 1973 - The UP Gangsters and
Anti-Social Activities (Prevention) Act,
1986 - Section 2/3 - If the predicate
offence is quashed, proceedings under
Gangsters Act cannot survive - Quashing
of the predicate offence renders the
foundation for prosecution under the
Gangsters Act non-existent - Continued
prosecution in such cases amounts to
abuse of court process. (Para -7)

Two petitions/applications of same applicant/
accused - common features of origin in
themselves - applicant not named in FIR -
implication came later through a subsequent
application by first informant - only casts
suspicion on applicant - suspicion based on
enmity between applicant & injured party - no
evidence of a meeting of minds between
accused persons to conspire and commit offense
- No concrete or credible evidence links the
applicant to the crime - Involvement in criminal
and illegal activities as members of a gang - if
predicate offense quashed - then proceedings
under Gangsters Act invalid - trial court rejected
discharge plea of accused-applicant - hence
application.(Para -1,2,11)

HELD: - Prosecution failed to bring in credible
and substantial evidence against the accused
applicant. Court discharged applicant due to
insufficient
evidence.
Mere
suspicion
is
inadequate
to
link
them
to
the
crime.
Prosecution failed to establish a prima facie
case. Court quashed the proceedings under
Gangsters Act against the accused applicant
since they've been discharged of the predicate
offence
in
a
connected
case.
(Para
-
15,16,17,11)

Application u/s 482 Cr.P.C. allowed. (E-7)

List of Cases cited:
1. St. of Karn. Vs L. Muniswamy, (1977) 2 SCC
699
2. Vadilal Panchal Vs D.D. Ghadigaonkar, AIR
1960 SC 1113
3. Century Spinning & Manufacturing Co. Vs St.
of Maha., AIR 1972 SC 545
4. CBI Vs K. Narayana Rao: (2012) 9 SCC 512
5. Yogesh @ Sachin Jagdish Joshi Vs St. of
Maha., (2008) 10 SCC 394
6. Shivnarayan Laxminarayan Joshi Vs St. of
Maha., (1980) 2 SCC 465
7. Saju Vs St. of Kerala: (2001) 1 SCC 378
8. Kanchan Kumar Vs St. of Bihar: (2022) 9 SCC
577
9. U.O.I. Vs Prafulla Kumar Samal, (1979) 3 SCC
4
10. Sajjan Kumar Vs CBI, (2010) 9 SCC 368
11. Dipakbhai Jagdishchandra Patel Vs St. of
Guj., (2019) 16 SCC 547
12. Ram Prakash Chadha Vs St. of U.P.,2024
SCC OnLine SC 1709
13. R. Venkatakrishnan Vs C.B.I., (2009) 11 SCC
737
14. Stree Atyachar Virodhi Parishad Vs Dilip
Nathumal Chordia, (1989) 1 SCC 715
1178 INDIAN LAW REPORTS ALLAHABAD SERIES
15. St. of Orissa VS Debendra Nath Padhi,
(2005) 1 SCC 568
16. St. of Guj. Vs Dilipsinh Kishorsinh Rao , 2023
(252) AIC 47
17. St. of Maha. Vs Som Nath Thapa, (1996) 4
SCC 659
18. St. of M.P. Vs Mohan Lal Soni, (2000) 6 SCC
338
19. Sanuj Bansal Vs St. of U.P & anr., SLP (Crl.)
10536 of 2023
20. M/S Karn. Emta Coal Mines Ltd. & anr. Vs
C.B.I., 2024 SCC OnLine SC 2250
21. Rajiv Thapar Vs Madan Lal Kapoor, (2013) 3
SCC 330
22. St. of Orissa Vs Debendra Nath Padhi,
(2005) 1 SCC 568
23. Rukmini Narvekar Vs Vijaya Satardekar,
(2008) 14 SCC 1
24. Anand Kumar Mohatta Vs St. (NCT of Delhi),
Dept. of Home, (2019) 11 SCC 706
25. G. Sagar Suri Vs St. of U.P., (2000) 2 SCC
636
26. Umesh Kumar Vs St. of A.P., (2013) 10 SCC
591
27. St. of Haryana Vs Bhajan Lal, 1992 Supp (1)
SCC 335
28. St. of Karn. Vs L. Munniswamy, (1977) 2
SCC 699
29. Farhana Vs St. of U.P., 2024 SCC OnLine SC
159

(Delivered by Hon'ble Samit Gopal, J.)

A. These two petitions/applications
under Section 482 Cr.P.C. are connected
together vide order dated 20.01.2023
passed by a co-ordinate Bench of this Court
as they are of the same applicant/accused
and have common features of origin in
themselves and as such are decided by a
common order.

B. Criminal Misc. 482 Cr.P.C.
Application No. 21392 of 2022

1. Heard Sri Sushil Shukla, learned
counsel
for
the
applicant,
Sri Anil
Srivastava,
learned
Senior
Advocate
assisted by Sri Vikas Srivastava and Sri
Namit Srivastava, learned counsels for the
opposite party no.2, Sri Ajay Singh, learned
A.G.A-I for the State and perused the
records.

2. The present application under
Section 482 Cr.P.C. has been filed by the
applicant Awadhesh Agarwal with the
following prayers:-

"It
is,
therefore
most
respectfully
prayed
that
this
Hon'ble Court may be pleased to
allow this application and quash the
impugned order dated 30.06.2022
as passed by the trial court rejecting
discharge plea of the accusedapplicant in terms of S. 227 CrPC
as
well
as
entire
criminal
proceedings of Session Trial No.
541 of 2018 (arising out of Case
Crime No. 256 of 2015) u/s 307,
34, 120-B IPC, P.S. MM Gate,
District Agra (State Vs. Vishal and
others) pending currently in the
court of Ld. Addl. District and
Session Judge, Court No. 23, Agra
qua him since the continuation of
such proceedings as against him
amounts to a clear abuse of the
process of the court.
9 All. Awadhesh Agarwal Vs. State of U.P. & Anr.
1179
It is further prayed that this
Hon'ble Court may also be pleased
to quash the impugned order dated
12.10.2022 passed by aforesaid Ld.
Trial court whereby and where
under the charges u/s 307 IPC r/w
S. 34 and 120-B IPC have been
framed/drawn against the accusedapplicant.
And by way of interim
measure and during pendency of
present application before this
Hon'ble Court, it is further prayed
that this Hon'ble Court may be
pleased
to
stay
further
the
impugned criminal proceedings of
Session Trial No. 541 of 2018
(arising out of Case Crime No. 256
of 2015) u/s 307, 34, 120-B IPC,
P.S. MM Gate, District Agra (State
Vs. Vishal and others) pending
currently in the court of Ld. Addl.
District and Session Judge, Court
No. 23, Agra pending as against the
accused-applicant only, otherwise
he shall suffer irreparable loss."

3. The present case started on a
FIR which was lodged by Nem Kumar Jain
on 22.11.2015 at 23:00 hours under
Sections 307/34 IPC in connection with an
incident which took place on the same day
i.e. 22.11.2015 at about 21.45 hours against
unknown persons alleging therein that he
has a shop in the name of C.V. Chain's Ltd.
at Joota Ram Phatak, Kinari Bazar, Police
Station Kotwali and is permanent resident
of Mukhani Gali, Gud Ki Mandi, Police
Station M.M.Gate and his elder brother
Dhan Kumar Jain sits with him in the shop.
On 22.11.2015 at about 9.30 p.m. his elder
brother after closing the shop left from
there on a Swift Car and was coming to the
house by passing Sidhi Bazar and when he
reached Mukhani Gali at his house then his
gunner Kushal Kumar opened the door of
the car and his brother Dhan Kumar Jain
came out from car at about 9.45 p.m. and at
that time 4-5 unknown persons on two
motorcycles came from Phulatti Bazar side
and in front of the house of his brother shot
him with an intention to murder him. While
firing they ran towards gud ki mandi. He
immediately took his brother on the car to
G.G. Nursing Home and got him admitted
where his treatment is going on. He
suspects that due to his work of jewellery
the persons who have been attacking them
since last two years are involved in the
present incident in which 4-5 persons have
fired upon jewellers and for their share they
have tried to murder his brother. A report be
lodged against unknown persons and they
be punished.

4. The police on investigating the
matter apprehended one person Yogesh
Gautam on 24.11.2015 who gave his
statement that Dhan Kumar was shot by
Pramod S/o Devi Singh and at that time
private gunner of Dhan Kumar had also
fired which hit the left thigh of Pramod
Kumar who is also getting his treatment
done in Agra.

5. An application dated 26.11.2015
was given by Nem Kumar Jain of which
Vikas Jain was the scribe to the police
alleging therein that on 26.11.2015 his
brother Dhan Kumar Jain was attacked by
unknown persons regarding which he had
got a FIR lodged. His family members saw
the CCTV footage of the camera installed
at police station Kotwali which covers the
Phavvara Tiraha of Kinari Bazar of the date
and time of the incident in which accused
involved in the incident can be seen since
the same
accused are also seen in the CCTV
recording of the camera installed at his
1180 INDIAN LAW REPORTS ALLAHABAD SERIES
house. From the CCTV footage it can be
seen that along with the accused persons,
Vishal Agarwal is also present. He has old
enmity with Vishal Agarwal. Some of his
known persons informed him that along
with Vishal Agarwal, Awadhesh Agarwal,
Narendra Kumar Goyal @ Lala and Ravi
@ Tamatar and 5-6 other miscreants are
involved. He has an old enmity with
Awadhesh Agarwal. Thus legal action be
taken against the said persons.

6. The investigation concluded and
charge
sheet
dated
27.12.2015
was
submitted against Ravi @ Tamatar, Vishal
Agarwal,
Narendra
Goyal
@
Lala,
Awadhesh Agarwal and Suneel Verma for
offences under Sections 307/34, 120-B
IPC.

7. The court concerned vide its
order dated 19.1.2016 took cognizance
against Vishal Agarwal, Narendra Goyal @
Lala, Ravi @ Tamatar and Suneel Verma.
The said order was challenged by the
applicant before this Court by filing
Criminal Misc. Application U/S 482 No.
21184 of 2016 (Awadhesh Agarwal Vs.
State of U.P. and another) in which a
coordinate Bench of this Court vide order
dated 20.7.2016 while refusing to quash the
proceedings of the said case permitted the
applicant to file discharge application
before court concerned which was directed
to be considered by the court concerned in
accordance with law. The applicant then
filed an application for discharge dated
11.11.2021 under Section 227 Cr.P.C. with
the prayer that the same be allowed and he
be discharged for offences under Section
120-B IPC read with 307 IPC. The said
discharge application stands rejected vide
order dated 30.6.2022 passed by Addl.
District and Sessions Judge, Court No.23,
Agra which was numbered as Application
No.33-Kha in the records of the trial court.
During the pendency of the present
application under Section 482 Cr.P.C., the
court of the Additional Sessions Judge,
Court No. 30, Agra vide order dated
12.10.2022 framed charges against the
applicant and four other co-accused persons
under Sections 307 readwith 34 IPC and
120-B IPC, subsequent to which an
amendment application dated 29.03.2023
was filed on behalf of the accused applicant
with the prayer to allow the same and
permit adding the subsequent development
which was allowed vide order dated
04.07.2024 by this Court and an amended
petition was also filed and place by the
office through its report dated 05.08.2024.
The learned counsels for the opposite party
No. 1 / State of U.P. and opposite party No.
2 / first informant submitted that they do
not intend to file any rebuttal to the
amendment/amended petition and the same
is recorded in the order dated 06.08.2024 of
this Court. The present application under
Section 482 Cr.P.C. has thus been filed
before this Court with the prayers as
aforesaid.

8. Learned counsel for the
applicant submitted as under:-

(I). The FIR is lodged
against unknown persons and the
applicant is not named therein.

(II). The implication of the
applicant in the present case is
subsequently on the basis of an
application
dated
26.11.2015
moved after four days of lodging of
the FIR and even therein his
naming is on the basis of suspicion
only by stating that he has an old
enmity with the informant.
9 All. Awadhesh Agarwal Vs. State of U.P. & Anr.
1181
(III). There is nothing on
record to show that the applicant is
involved in the present matter.
(IV). The applicant is being
implicated in the present matter
only on the basis of suspicion of
conspiring
with
other
accused
persons to commit the said offence.
(V). The alleged witnesses
in the present matter namely Nem
Kumar Jain/first informant, Dhan
Kumar Jain/alleged injured, Smt.
Shalini Jain/wife of the injured,
Tribhuwan Nath Chaturvedi, Vipin
Bansal, Pradeep Bansal, Anil Goyal
and Abhishek Jain do not in any
manner implicate the applicant in
the present matter. In so far as
Tribhuwan Nath, Vipin Bansal,
Pradeep Bansal and Abhishek Jain
are concerned, their evidence is
hearsay only.
(VI). The statement of Anil
Kumar although was recorded
under Section 164 Cr.P.C. also but
he only states of the fact that there
were
some
strained
relations
between Dhan Kumar Jain and the
applicant due to business in which
he had mediated but the matter
could not be settled. He had told
the applicant Awadhesh Agarwal
that Dhan Kumar Jain does not
want to give material to him on
which Awadhesh Agarwal had said
that he will look to it.
(VII). On behalf of the
applicant the following of the Apex
Court have been relied upon:-
A.- For law relating to
conspiracy under Section 120-B
IPC
(i) State of Karnataka v.
L. Muniswamy : (1977) 2 SCC
699
"7. The second limb of Mr
Mookerjee's argument is that in any
event the High Court could not take
upon itself the task of assessing or
appreciating the weight of material
on the record in order to find
whether any charges could be
legitimately framed against the
respondents. So long as there is
some material on the record to
connect the accused with the crime,
says the learned counsel, the case
must go on and the High Court has
no jurisdiction to put a precipitate
or
premature
end
to
the
proceedings on the belief that the
prosecution is not likely to succeed.
This, in our opinion, is too broad a
proposition to accept. Section 227
of the Code of Criminal Procedure,
2 of 1974, provides that:
"If, upon consideration of
the record of the case and the
documents
submitted
therewith,
and after hearing the submissions
of the accused and the prosecution
in this behalf, the Judge considers
that there is not sufficient ground
for proceeding against the accused,
he shall discharge the accused and
record his reasons for so doing."
This section is contained in
Chapter 18 called "Trial Before a
Court of Session". It is clear from
the provision that the Sessions
Court has the power to discharge an
accused if after perusing the record
and hearing the parties he comes to
the conclusion, for reasons to be
recorded, that there is not sufficient
ground for proceeding against the
accused.
The
object
of
the
provision
which
requires
the
Sessions Judge to record his
reasons is to enable the superior
1182 INDIAN LAW REPORTS ALLAHABAD SERIES
court to examine the correctness of
the reasons for which the Sessions
Judge has held that there is or is not
sufficient ground for proceeding
against the accused. The High
Court therefore is entitled to go into
the reasons given by the Sessions
Judge in support of his order and to
determine for itself whether the
order is justified by the facts and
circumstances of the case. Section
482 of the New Code, which
corresponds to Section 561-A of
the Code of 1898, provides that:
"Nothing in this Code shall
be deemed to limit or affect the
inherent powers of the High Court
to make such orders as may be
necessary to give effect to any
order under this Code or to prevent
abuse of the process of any Court
or other wise to secure the ends of
justice."
In the exercise of this
wholesome power, the High Court
is entitled to quash a proceeding if
it comes to the conclusion that
allowing the proceeding to continue
would be an abuse of the process of
the Court or that the ends of justice
require that the proceeding ought to
be quashed. The saving of the High
Court's inherent powers, both in
civil and criminal matters, is
designed to achieve a salutary
public purpose which is that a court
proceeding
ought
not
to
be
permitted to degenerate into a
weapon
of
harassment
or
persecution. In a criminal case, the
veiled
object
behind
a
lame
prosecution, the very nature of the
material on which the structure of
the prosecution rests and the like
would justify the High Court in
quashing the proceeding in the
interest of justice. The ends of
justice are higher than the ends of
mere law though justice has got to
be administered according to laws
made by the legislature. The
compelling necessity for making
these observations is that without a
proper realisation of the object and
purpose of the provision which
seeks to save the inherent powers
of the High Court to do justice,
between the State and its subjects,
it
would
be
impossible
to
appreciate the width and contours
of that salient jurisdiction.
8. Let us then turn to the
facts of the case to see whether the
High Court was justified in holding
that the proceedings against the
respondents ought to be quashed in
order to prevent abuse of the
process of the court and in order to
secure the ends of justice. We asked
the State counsel time and again to
point out any data or material on
the basis of which a reasonable
likelihood of the respondents being
convicted
of
any
offence
in
connection with the attempted
murder of the complainant could be
predicated. A few bits here and a
few bits there on which the
prosecution proposes to rely are
woefully inadequate for connecting
the respondents with the crime,
howsoever
skilfully
one
may
attempt to weave those bits into a
presentable whole. There is no
material on the record on which
any
tribunal
could
reasonably
convict the respondents for any
offence connected with the assault
on the complainant. It is undisputed
that the respondents were nowhere
9 All. Awadhesh Agarwal Vs. State of U.P. & Anr.
1183
near the scene of offence at the
time of the assault. What is alleged
against them is that they had
conspired to commit that assault.
This, we think, is one of those
cases in which a charge of
conspiracy is hit upon for the mere
reason that evidence of direct
involvement of the accused is
lacking. We have been taken
through the statements recorded by
the police during the course of
investigation
and
the
other
material. The worst that can be said
against the respondents on the basis
thereof is that they used to meet
one another frequently after the
dismissal of Accused 1 and prior to
the commission of the assault on
the complainant. Why they met,
what they said, and whether they
held any deliberations at all, are
matters on which no witness has
said a word. In the circumstances, it
would be a sheer waste of public
time and money to permit the
proceedings to continue against the
respondents. The High Court was
therefore justified in holding that
for meeting the ends of justice the
proceedings
against
the
respondents ought to be quashed.
**********************
10. On the other hand, the
decisions cited by learned counsel
for the respondents in Vadilal
Panchal v. D.D. Ghadigaonkar
[AIR 1960 SC 1113 : 1960 Cri LJ
1499 : 62 Bom LR 915] and
Century Spinning & Manufacturing
Co. v. State of Maharashra [AIR
1972 SC 545 : 1972 Cri LJ
3291972 SCC (Cri) 495] show that
it is wrong to say that at the stage
of framing charges the court cannot
apply its judicial mind to the
consideration whether or not there
is any ground for presuming the
commission of the offence by the
accused. As observed in the latter
case, the order framing a charge
affects
a
person's
liberty
substantially and therefore it is the
duty of the court to consider
judicially whether the material
warrants the framing of the charge.
It
cannot
blindly
accept
the
decision of the prosecution that the
accused be asked to face a trial. In
Vadilal Panchal case, Section 203
of the old Code was under
consideration, which provided that
the Magistrate could dismiss a
complaint
if
after
considering
certain matters mentioned in the
section there was in his judgment
no sufficient ground for proceeding
with the case. To an extent Section
327 of the new Code contains an
analogous
power
which
is
conferred on the Sessions Court. It
was held by this Court, while
considering the true scope of
Section 203 of the old Code that
the Magistrate was not bound to
accept the result of an enquiry or
investigation and that he must
apply his judicial mind to the
material on which he had to form
his judgment. These decisions
show that for the purpose of
determining
whether
there
is
sufficient ground for proceeding
against
an
accused
the
court
possesses a comparatively wider
discretion in the exercise of which
it can determine the question
whether the material on the record,
if unrebutted, is such on the basis
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
of which a conviction can be said
reasonably to be possible.
11. We are therefore in
agreement with the view of the
High Court that the material on
which the prosecution proposes to
rely against the respondents is
wholly inadequate to sustain the
charge that they are in any manner
connected with the assault on the
complainant. We would, however,
like to observe that nothing in our
judgment or in the judgment of the
High Court should be taken as
detracting from the case of the
prosecution, to which we have not
applied our mind, as against
Accused 1 to 9. The case against
those accused must take its due and
lawful course."
(ii) CBI v. K. Narayana
Rao : (2012) 9 SCC 512
"24. The ingredients of the
offence of criminal conspiracy are
that there should be an agreement
between the persons who are
alleged to conspire and the said
agreement should be for doing of
an illegal act or for doing, by illegal
means, an act which by itself may
not be illegal. In other words, the
essence of criminal conspiracy is
an agreement to do an illegal act
and such an agreement can be
proved either by direct evidence or
by circumstantial evidence or by
both and in a matter of common
experience that direct evidence to
prove
conspiracy
is
rarely
available.
Accordingly,
the
circumstances proved before and
after the occurrence have to be
considered to decide about the
complicity of the accused. Even if
some acts are proved to have been
committed, it must be clear that
they
were
so
committed
in
pursuance of an agreement made
between the accused persons who
were
parties
to
the
alleged
conspiracy. Inferences from such
proved circumstances regarding the
guilt may be drawn only when such
circumstances are incapable of any
other reasonable explanation. In
other
words,
an
offence
of
conspiracy cannot be deemed to
have been established on mere
suspicion and surmises or inference
which are not supported by cogent
and acceptable evidence.
25. In the earlier part of our
order, first we have noted that the
respondent was not named in the
FIR and then we extracted the
relevant portions from the chargesheet
about
his
alleged
role.
Though
statements
of
several
witnesses have been enclosed along
with the charge-sheet, they speak
volumes about others. However,
there is no specific reference to the
role of the present respondent along
with the main conspirators.
26. The High Court while
quashing the criminal proceedings
in respect of the respondent herein
has gone into the allegations in the
charge-sheet and the materials
placed for his scrutiny and arrived
at a conclusion that the same do not
disclose
any
criminal
offence
committed
by
him.
It
also
concluded that there is no material
to show that the respondent herein
joined hands with A-1 to A-3 for
giving false opinion. In the absence
of direct material, he cannot be
implicated
as
one
of
the
conspirators
of
the
offences
9 All. Awadhesh Agarwal Vs. State of U.P. & Anr.
1185
punishable under Section 420 read
with Section 109 IPC. The High
Court has also opined that even
after critically examining the entire
material, it does not disclose any
criminal offence committed by
him. Though as pointed out earlier,
a roving enquiry is not needed,
however, it is the duty of the Court
to find out whether there is any
prima
facie
material
available
against the person who has been
charged with an offence under
Section 420 read with Section 109
IPC."
(iii) Yogesh @ Sachin
Jagdish
Joshi
v.
State
of
Maharashtra : (2008) 10 SCC
394
"17. In the light of the
aforenoted principles, we may now
consider whether or not in the
present case the High Court was
justified in declining to discharge
the appellant. However, before
adverting to the circumstances
relied upon by the prosecution in
support of its primary charge that a
conspiracy had been hatched to
eliminate
Kunal,
the
essential
features
of
the
offence
of
conspiracy need to be noticed.
18. Section 120-A IPC
defines criminal conspiracy. The
section reads as under:
"120-A. Definition
of criminal conspiracy.-
When two or more persons
agree to do, or cause to be
done,-
(1) an illegal act, or
(2) an act which is
not illegal by illegal means,
such
an
agreement
is
designated
a
criminal
conspiracy:
Provided that no
agreement
except
an
agreement to commit an
offence shall amount to a
criminal conspiracy unless
some
act
besides
the
agreement is done by one
or more parties to such
agreement
in
pursuance
thereof.
Explanation.-It is
immaterial
whether
the
illegal act is the ultimate
object of such agreement,
or is merely incidental to
that object."
19. Section 120-B
IPC
provides
for
punishment for an offence
of criminal conspiracy.
20.
The
basic
ingredients of the offence
of criminal conspiracy are :
(i) an agreement between
two or more persons; (ii)
the agreement must relate
to doing or causing to be
done either (a) an illegal
act; or (b) an act which is
not illegal in itself but is
done by illegal means. It is,
therefore,
plain
that
meeting of minds of two or
more persons for doing or
causing to be done an
illegal act or an act by
illegal means is sine qua
non of criminal conspiracy.
Yet, as observed by this
Court
in
Shivnarayan
Laxminarayan
Joshi
v.
State
of
Maharashtra
[(1980) 2 SCC 465 : 1980
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
SCC
(Cri)
493]
a
conspiracy
is
always
hatched in secrecy and it is
impossible to adduce direct
evidence of the common
intention
of
the
conspirators. Therefore, the
meeting of minds of the
conspirators can be inferred
from
the
circumstances
proved by the prosecution,
if
such
inference
is
possible.
***************
*******
25.
Thus,
it
is
manifest that the meeting of
minds of two or more
persons for doing an illegal
act or an act by illegal means
is sine qua non of the
criminal conspiracy but it
may not be possible to prove
the agreement between them
by direct proof. Nevertheless,
existence of the conspiracy
and its objective can be
inferred from the surrounding
circumstances
and
the
conduct of the accused. But
the
incriminating
circumstances must form a
chain of events from which a
conclusion about the guilt of
the accused could be drawn.
It is well settled that an
offence of conspiracy is a
substantive
offence
and
renders the mere agreement
to
commit
an
offence
punishable,
even
if
an
offence does not take place
pursuant
to
the
illegal
agreement.
26. Bearing in mind
the essential features of the
offence
of
criminal
conspiracy
enumerated
above, we may advert to the
facts of the instant case. The
relevant
portion
of
the
charge-sheet filed against all
the accused reads as follows:
"... Though son of
the
complainant,
Kunal
Parihar got married with
Accused 4 Hema Joshi, his
family again arranged for
another marriage with one
Meenal of Baroda on 24-22001.
Engagement
ceremony took place and
date of marriage was fixed
as 30-11-2001. This fact
came to the knowledge of
Accused 1, 2, 3, 4, 5, 11
and 12. Therefore, in order
to teach a lesson to the
complainant they hatched a
conspiracy to kill his only
son Kunal. Accordingly,
Accused
1
contacted
Accused 6, Suresh Jhajara
and further informed him
that the complainant and
his son should be taught a
lesson as Kunal Parihar
betrayed him and hence,
should be taught a lesson
and further asked him to
carry out future plan.
Accused
6
contacted Accused 7 and
included
him
in
the
aforesaid
conspiracy.
Accused 1 to 4 contacted
Accused
16
through
Accused 6 and 7. Accused
16 (sic) is a notorious
9 All. Awadhesh Agarwal Vs. State of U.P. & Anr.
1187
criminal. Criminal cases
are pending against him in
the District Court of Pune.
In the offence regarding
body, Accused 7 contacted
him through witness Atul
Lohar in order to carry out
the aforesaid plan. Accused
1
gave
Rs
80,000
to
Accused 7 via Accused 6.
Accused 16 in order to
cause
hurt
to
Kunal
introduced Accused 8, 9,
10, 13, 14 and 15 to
Accused 7. Accused 7
asked Accused 8, 9, 10, 13,
14 and 15 to join the
aforesaid conspiracy and in
order to carry out the
aforesaid
conspiracy
successfully,
Accused
7
purchased one Maruti Car
No. MH 14 D 3027 from
witness
Afzal
Khan
Ibrahim Khan, resident of
Dehu
Road,
and
also
Motorcycle No. MH 14 M
5786.
By
using
the
aforesaid vehicles Accused
7 to 10 and 13 to 15 have
committed
the
ghastly
murder of Kunal. In order
to carry out the aforesaid
conspiracy
successfully
Accused
7
has
used
revolver,
khukri,
sickle,
sword and iron bar and
supplied it to Accused 8 to
10 and from 13 to 15. By
using
the
aforesaid
weapons,
the
aforesaid
persons
have
assaulted
Kunal Parihar due to which
he sustained grave injuries
and ultimately died. Hence,
Accused 1, 2, 3, 4, 5, 6, 7,
11 and 12 have been
charged under Sections 302
and
120-B
IPC
and
Accused 7, 8, 9, 10, 13, 14,
15 and 16 have been
charged under Section 302
read with Section 120-B
IPC and under Sections 3
and 25 of the Arms Act."
(emphasis
supplied)
Thus, according to
the
prosecution
version,
when Accused A-1 to A-5,
A-11 and A-12 learnt about
the marriage of Kunal with
some
other
girl,
they
hatched a conspiracy to
teach a lesson to the father
of Kunal, the deceased. In
furtherance
thereof,
Accused A-1 contacted one
of the assassins to kill
Kunal. It is alleged that
Accused A-1 to A-4 also
contacted Accused A-16, a
notorious criminal. In other
words, the gravamen of the
accusation
by
the
prosecution is that it is
Accused A-1 to A-5, A-11
and A-12 who had hatched
the conspiracy; acted in
concert to give effect to
their plan to get Kunal
murdered and in pursuance
of the aforesaid criminal
conspiracy,
the
other
accused
facilitated
commission of the said
crime. It is common ground
that
the
case
of
the
prosecution is based on
circumstantial
evidence,
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
namely, threatening calls
from
the
side
of
the
accused to the complainant,
his family and the earlier
relationship between the
deceased and Accused 4.
27.
From
the
material on record, it is
manifestly clear that it was
the family members of the
appellant,
one
of
their
employees and a friend
who
had
all
allegedly
entered into an agreement
to eliminate the deceased.
However, as noted above,
Accused A-1, A-2, A-4, A11 and A-12 already stand
discharged
from
the
charges
framed
against
them under Sections 120-B
and 302 IPC vide orders
dated 7-7-2006 and 14-52007, passed by the High
Court and the Sessions
Judge respectively. While
discharging
the
said
accused, both the courts
have
come
to
the
conclusion that there is no
material on record to show
that they had hatched a
conspiracy
to
commit
murder of Kunal. Thus, the
stand of the prosecution to
the effect that the parents,
sister and friends of the
appellant had entered into a
criminal conspiracy stands
rejected by virtue of the
said orders of discharge.
Furthermore, in its order
dated 7-7-2006, the High
Court has opined that the
circumstances, relied upon
by the prosecution, even if
accepted in their entirety,
only create a suspicion of
motive,
which
is
not
sufficient to bring home an
offence of murder. As noted
above, the State's petition
for special leave against the
said judgment has already
been dismissed."
(iv) Saju v. State of
Kerala : (2001) 1 SCC 378
"12. Regarding the
circumstance relating to the
existence of motive, PW 9
who is the sister of Ms
Jameela deposed that the
deceased had told her that
the pregnancy conceived
by her was through the
appellant. According to her
the appellant admitted the
paternity of the conceived
child in the initial stage but
denied
the
paternity
attributed
to
him
six
months thereafter. The trial
court found that
"in
the
answers
elicited in the further crossexamination also it would
appear that her version
about the first source of
knowledge
about
the
pregnancy of Jameela was
inconsistent
and
unnatural".
Dealing with her
statement, the trial court
observed that PW 9 had no
occasion to meet Jameela
as she was not visiting her
mother's house and also
because the second accused
had
consented
for
the
9 All. Awadhesh Agarwal Vs. State of U.P. & Anr.
1189
marriage.
The
only
evidence
regarding
the
appellant being responsible
for the conception of the
child is the testimony of
Nabeesa
(PW
6),
the
mother of the deceased.
She had stated that she
came to know about the
pregnancy of Jameela only
when she tried to fix her
marriage with some person
and Jameela told her that
she was in love with the
appellant.
It
is
not
discerned
from
the
testimony of PW 6 that
Jameela had conceived the
child from the appellant.
What the witness stated
was only that Jameela and
the appellant were in love
and they knew each other
for a period of two years
before
the
death
of
Jameela. According to her
the marriage between the
deceased and the appellant
could not be solemnised as
they belonged to different
religions. She never saw
the
deceased
and
the
appellant
talking
as
according to her they used
to talk only in her absence.
The appellant is stated to
have visited the house of
the aforesaid witness on
15-5-1991 and assaulted
the
deceased
regarding
which report Exhibit P-4
was lodged. According to
her Jameela was killed
while returning from the
hospital where she had
gone
for
a
check-up.
Nowhere in her testimony
Nabeesa (PW 6) stated that
the appellant wanted the
child,
conceived
by
Jameela, to be aborted.
There
is
no
positive
evidence
proving
or
suggesting
that
the
appellant was responsible
for the pregnancy of the
deceased. In the absence of
evidence
regarding
the
circumstance attributing the
pregnancy of the deceased
to the appellant and his
insistence for abortion of
the child, the important
circumstance
of
motive
cannot be held to have been
proved. The trial court,
therefore, rightly did not
rely upon the testimony of
PW 9 Amina with respect
to the existence of the said
circumstance.
The
testimony
of
PW
18
Meharban who is the sisterin-law of the deceased also
does not inspire confidence
to link the appellant with
the
pregnancy
of
the
deceased. PW 2 who is the
neighbour of the deceased
stated that she had known
about the pregnancy from
Jameela herself. According
to her the appellant had
quarrelled with Jameela in
connection
with
the
pregnancy. Despite denial
of the appellant Jameela
was stated to have asserted
that she did not have sexual
intercourse with anyone
1190 INDIAN LAW REPORTS ALLAHABAD SERIES
other than the appellant. In
her cross-examination the
witnesses stated that the
appellant never threatened
Jameela. She admitted that
the
appellant
had
apparently
told
Jameela
that he was not the father of
the child in her womb. The
witness conceded that she
had no direct knowledge
about the relationship of
the
deceased
with
the
appellant. PW 3 who is a
neighbour and husband of
PW 2 was declared hostile
as he did not support the
case of the prosecution. It
was deposed by him that he
was not aware that Jameela
had requested the appellant
to marry her. PW 2 stated
that
the
appellant
had
categorically stated that he
was not responsible for the
pregnancy as someone else
was responsible for it. The
courts
below,
therefore,
were
not
justified
in
holding this circumstance
proved for the existence of
criminal
conspiracy
to
commit
the
crime
of
murder of the deceased. In
the
absence
of
any
evidence
suggesting
the
existence of a circumstance
of
insistence
by
the
appellant for abortion, an
important link in the chain
of circumstances attributed
against him is missing.
Even otherwise, motive by
itself cannot be a proof of
conspiracy.
In
Girja
Shankar Misra v. State of
U.P.