TaxTMI 
TaxTMI 
TaxTMI 
2024 (7) TMI 1669
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....he appellant. 2. Heard, learned senior counsel Siddharth Dave appearing for the appellant and Shri Ardhendumauli Kumar Prasad, Additional Advocate General appearing for the State of Uttar Pradesh. Facts leading to the case: 3. Before narrating the facts, we should bear in mind that exercise of power under Section 227, Cr.PC, is legally permissible only by considering 'the record of the case and the documents submitted therewith'. Therefore, necessarily, the question is what is the meaning of the expression 'the record of the case and documents submitted therewith'? According to us, it refers only to the materials produced by the prosecution and not by the accused. A three-Judge Bench of this Court considered this question in State of Orissa v. Debendra Nath Padhi [(2005) 1 SCC 568]. It was held that the said expression as postulated in Section 227, Cr.PC, relate to the case and the documents referred to under Section 209, Cr.PC. Section 209, Cr.PC, reads thus:- "209. Commitment of case to Court of Session when offence is triable exclusively by it. - When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appear....
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....n point and escaped on a motorcycle. The appellant was given such information over phone. Later, on that day itself the appellant got registered the abovementioned FIR about robbery and asked for investigation and appropriate legal action, in the incident. 7. The materials on record and the counter affidavit filed in this appeal on behalf of the respondent based on such materials would reveal that the initial investigation in Case Crime No. 351/1993 (hereinafter referred to as 'the robbery case') found it to be false. However, the Supervising Officer concerned viz., the Commanding Officer, Modi Nagar stopped the closure report and entrusted the case for investigation to another officer. Thereafter, on 17.07.1993, the appellant called Ram Kishore from his house through one of his employees viz., Jagannath and took him to the Modi Nagar Police Station for inquiry. It is only appropriate to extract from the chargesheet dated 21.02.2000 filed by CBCID, Lucknow, U.P., in FIR No. 371/1993 of Police Station, Modi Nagar, registered in connection with the custodial death of Ram Kishore unfolding further the case of the prosecution instead of narrating it. It in so far as relevant....
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....itted that the final report filed in the 'custodial death case', dated 21.02.2000 would further show that he was witness No. 1 and also as accused No. 3. The Learned Senior Counsel would further submit that there is absolute absence of any material to arraign the appellant herein as an accused with the aid of either Section 120B, IPC or Section 34, IPC. The next submission was that even if the statements of the witnesses recorded under Section 161, Cr.PC, including the witnesses related to the deceased Ram Kishore like Smt. Santosh, Shri Promod Kumar and Shri Bhim Singh, who are respectively the widow, son and brother of deceased Ram Kishore are taken as correct, they would not reveal anything to base an allegation of criminal conspiracy or sharing of common intention against the appellant. It is the further submission that virtually, the appellant's application for discharge was dismissed by the Court of the Additional Sessions Judge taking two circumstances as suspicious circumstances (i) that it was he who had taken accused Ram Kishore to Police Station in connection with the investigation in Crime No. 351/1993 (the robbery case) (ii) that immediately on the death....
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....s that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing." 12. We have already considered the meaning of the expression "the record of the case and the documents submitted therewith" relying on the decision in Debendra Nath Padhi's case (supra) only to re-assure as to what are the materials falling under the said expression and thus, available for consideration of an application filed for discharge under Section 227, Cr.PC. In the light of the same, there cannot be any doubt with respect to the position that at the stage of consideration of such an application for discharge, defence case or material, if produced at all by the accused, cannot be looked at all. Once "the record of the case and the documents submitted therewith" are before the Court they alone can be looked into for considering the application for discharge and thereafter if it considers that there is no sufficient ground for proceeding against the accused concerned then he shall be discharged after recording reasons therefor. In that regard, it is only appropriate to consider the authorities dealing with the question as to what exac....
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....o. 10 and 11 held thus: - "10. **** **** **** **** .......If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or th....
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.... such instances are aplenty. In this context, it is relevant to refer to a decision of this Court in Om Parkash Sharma v. CBI [(2000) 5 SCC 679]. Taking note of the language of Section 227, Cr.PC, is in negative terminology and that the language in Section 232, Cr.PC, is in the positive terminology and considering this distinction between the two, this Court held that it would not be open to the Court while considering an application under Section 227, Cr.PC, to weigh the pros and cons of the evidence alleged improbability and then proceed to discharge the accused holding that the statements existing in the case therein are unreliable. It is held that doing so would be practically acting under Section 232, Cr.PC, even though the said stage has not reached. In short, though it is permissible to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case is made out against the accused, on appreciation of the admissibility and the evidentiary value such materials brought on record by the prosecution is impermissible as it would amount to denial of opportunity to the prosecution to prove them appropriately at the appropriate stage besides amou....
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.... would arise only in a case where the court upon such exercise satisfies itself about the prima facie case revealing from "the record of the case and the documents submitted therewith" against the accused concerned. In short, it can be said in that view of the matter that the intention embedded is to ensure that an accused will be made to stand the ordeal of trial only if 'the record of the case and the documents submitted therewith' discloses ground for proceeding against him. When that be so, in a case where an application is filed for discharge under Section 227, Cr.PC, it is an irrecusable duty and obligation of the Court to apply its mind and answer to it regarding the existence of or otherwise, of ground for proceeding against the accused, by confining such consideration based only on the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf. To wit, such conclusion on existence or otherwise of ground to proceed against the accused concerned should not be and could not be based on mere suppositions or suspicions or conjectures, especially not founded upon material available before the Court....
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....art from using the expression "criminal conspiracy" there is absolute absence of anything whatsoever in the said final report as also in the statement of any of the witnesses, suggesting that the appellant herein conspired with the other accused or what exactly is the criminal conspiracy. 25. This Court in the decision in R. Venkatakrishnan v. CBI [(2009) 11 SCC 737], held that criminal conspiracy, in terms of Section 120B, IPC, is an independent offence and its ingredients are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either - (a) an illegal act; (b) an act which is not illegal in itself but is also done by illegal means. 26. An important facet of law of conspiracy is that apart from it being a distinct offence, all conspirators are liable for the acts of each other of the crime or crimes which have been committed as a result of conspiracy. A careful scanning of the provisions under Sections 120A and 120B, IPC, would reveal that the sine qua non for an offence of criminal conspiracy is an agreement to commit an offence. It consists of agreement between two or more persons to commit the criminal offence, i....
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....ount of twin circumstances. In the order dated 19.04.2007, the Trial Court in this regard observed and held thus: - "The learned Assistant District Government Counsel (Criminal) has argued that if the accused persons says that he had fell ill in the night and he was complaining of having pain in the chest then why his family members were not informed. The said condition is also very much suspicious. Besides these, the accused was handed over to the police by the accused Ram Prakash Chaddha himself and in the next day morning the report was lodged by him only. Keeping in view the abovementioned entire facts and circumstances sufficient evidences are available on the record for the framing of charge against the accused persons Rameshwar Dayal Pathak and Jawahar Lal and Ram Prakash Chaddha." 30. In the light of the records of the case and the documents submitted therewith, it can only be found that the said finding of the Trial Court on the ground to proceed against the appellant is based on suppositions and suspicions, having no foundational support from the materials produced by the prosecution. With respect to the first part of the above-extracted recital from the order of th....