In the High Court of Jharkhand at Ranchi
Cr. M. P. No.143 of 2004
Prabhunath Singh ................................ .Petitioner
VERSUS
State of Jharkhand and another....Opposite Parties
CORAM: HON'BLE MR. JUSTICE R.R.PRASAD
For the Petitioner : M/s.Abhoy Kumar Singh and Nilesh Kumar
For the State :A.P.P
For the Opposite party no.2: Mr.K.P.Choudhary
Reserved on 22.5.2009 Pronounced on 5 .9.2009
28. 5.9.09
. This application was initially filed for quashing the charge
sheet no.83 of 1996 dated 21.6.1996 submitted in connection with
Mashrakh P.S. case no.110 of 1991, corresponding to
supplementary U.T.No.62 of 1998, pending before the Chief
Judicial Magistrate, Hazaribagh whereby the petitioner was sent up
for trial for offences under section 364, 302, 201 and 120B of the
Indian penal Code. Subsequently, by way of amendment petition,
entire criminal proceeding of Mashrakh P.S. case no.110 of 1991
has been sought to be quashed.
The facts giving rise this application are that on 23.6.1991
the informant Awadh Kumar Singh proceeded to village Dhanauti
along with Manokamana Singh (the deceased) to bring one Jai
Prakash, the servant of Ashok Singh. When they met with Jai
Prakash, they asked him to go on his bi-cycle whereas the
informant Awadh Kumar Singh along with Manokamana Singh (the
deceased) proceeded on a motor cycle. When they reached near
Dhanauti bridge, they came across with the accused Dina Singh,
Nageshwar Singh, Pankaj Singh, Ajay Singh @ Engineer and Om
Prakash Singh who had come over there on their motor cycles and
some of them were having rifles with them. The accused persons
having over powered them made Manokamana Singh to sit forcibly
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in the motor cycle of Dina Singh and then they proceeded towards
Mashrakh. In the way some members of a Barat party saw accused
persons taking Manokamana Singh. Thereafter Awadh Kumar
Singh lodged a case which was instituted as Mashrakh P.S. case
no.110 of 1991 under sections 363 and 364 of the Indian Penal
Code. Subsequently when Manokamana Singh was found dead,
section 302 of the Indian Penal Code was added in the first
information report. Thereafter the case was taken up for
investigation. The Investigating Officer submitted first charge
sheet no.71 of 1991 on 20.9.1991 against Om Prakash Singh only
and the investigation was kept open for rest of the accused
persons. After some time second charge sheet, bearing no.8 of
1992 was submitted on 7.9.1992 against the accused Dina Nath
Singh and Nageshwar Singh. Subsequently, investigation of the
case was taken over by the CID, who submitted charge sheet,
bearing no.83 of 1996 on 21.5.1996 against the petitioner and one
Ajay Singh under sections 302, 201 and 120(B) of the Indian Penal
Code. Thereafter under the order of the Hon’ble Supreme Court,
the case was transferred from Bihar to Jharkhand at Hazaribagh,
which was registered as T.R.No.509 of 2003 and when the case
was committed to the court of sessions, it was registered as
Sessions Trial No.22 of 2004 but as the petitioner was shown
absconder, his case was separated and was numbered as
T.R.No.381 of 2004 and warrant of arrest was issued.
However, when the charge sheet was submitted against this
petitioner, the petitioner moved this Court for quashing of the
charge sheet.
Learned counsel appearing for the petitioner submitted that
the case was registered in the year 1991 against the named
accused persons against whom charge sheets were submitted in
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two phases but the name of the petitioner never figured in those
charge sheets. However, when the investigation was taken over by
the CID, charge sheet was submitted under the influence of the
ruling party against the petitioner, who at the relevant point of time
was a member of legislative assembly, though there was absolutely
no material showing legal evidence of the involvement of the
petitioner in the alleged offence.
Learned counsel in this respect further submitted that the
only material which was collected by the investigating agency is
that the car which was used in the commission of the alleged
offence belonged to the petitioner and that the motor cycle used
was having registration number as that of the motor cycle
belonging to the petitioner and that when one of the witnesses
came to the house of the petitioner, he saw the accused persons
present over there and saw blood mark over the shirt of one of the
co-accused. Only on these materials which were never sufficient to
show the culpability of the petitioner, charge sheet was submitted.
Therefore, under this circumstance, the entire criminal proceeding
is fit to be quashed so far the petitioner is concerned.
Learned counsel further submitted that subsequent to filing
of this application, a development having much bearing on this
case, took place whereby all the four named accused persons, who
had been put on trial in Sessions Trial No.22 of 2004 have been
acquitted by the 1st Additional Sessions Judge, Hazaribagh and as
such, the petitioner who has been sought to be tried with the aid of
section 120(B) cannot be held guilty for the alleged offence.
Learned counsel in support of his submission has referred to
a decision rendered in a case of Yogesh alias Sachin Jagdish
Joshi vs. State of Maharashtra[(2008) 10 SCC 394].
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In the aforesaid circumstances, it was submitted that when
there has been no sufficient material showing involvement of the
petitioner in the alleged offence nor the petitioner could be found
guilty for the offence of conspiracy, in view of the fact that other
accused persons have already been acquitted, there would be
abuse of the process of law, if the petitioner is relegated to face
the trial and hence, the entire criminal proceeding is fit to be set
aside.
As against this, learned counsel appearing for the informant
submitted that in course of investigation, motor cycle as well as car
used in the commission of crime has been found to have belonged
to this petitioner, in whose house the other accused, who was
related to the petitioner was found present just after the
occurrence and hence, the petitioner’s involvement of hatching
conspiracy in the commission of offence cannot be ruled out and
under this circumstance, the court would be very loath in quashing
the entire criminal proceeding so far this petitioner is concerned.
Having heard learned counsel appearing for the parties and
on perusal of the record, I do find that admittedly there has been
no whisper about the involvement of the petitioner in the first
information report and that after the investigation, when two
charge sheets were placed before the court against the named
accused persons, petitioner’s name never figured in those charge
sheets. However, when the investigation was taken over by the
CID, it submitted charge sheet against the petitioner and one other
accused person under sections 302, 201 and 120(B) of the Indian
Penal Code after lapse of five years from the date of occurrence for
the reason that in course of investigation, it transpired that the
motor cycle as well as car used in the commission of the crime,
belonged to this petitioner and that when one of the witnesses
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came to the house of this petitioner just after the occurrence, she
found that the accused persons present over there and one of the
accused was having blood mark on his shirt.
I am afraid in absence of any other circumstances
whatsoever whether these materials would be sufficient to hold the
petitioner guilty. At this stage, it would be apt to refer to a case of
R.P.Kapur vs. State of Punjab (AIR 1960 SC 866) whereby
the Hon’ble Supreme Court summarized some categories of cases
which are fit to be quashed by the High Court in exercise of its
inherent power. They are as follows:
(i) where it manifestly appears that there is a legal
bar against the institution or continuance e.g, want of
sanction;
(ii) where the allegations in the first information
report or complaint taken at its face value and
accepted in their entirely do not constitute the
offence alleged;
(iii) where the allegations constitute an offence, but
there is no legal evidence adduced or the evidence
adduced clearly or manifestly fails to prove the
charge.
The circumstances, which are sought to be used against
the petitioner even if are taken to be true, it would hardly prove
the charge particularly when other named accused persons with
whom the petitioner is said to have hatched criminal conspiracy for
committing the offence of murder has been acquitted.
At this stage, one needs to take notice of the essential
features of the offence of conspiracy as enshrined under section
120 A of the Indian Penal Code reads as follows:
“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.
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Explanation – It is immaterial whether the illegal act
is the ultimate object of such agreement, or is merely
incidental to that object”
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 criminal conspiracy.
Since other named accused persons with whom the
petitioner is said to have hatched conspiracy for committing offence
has already been acquitted, sufficient ground be hardly there to
proceed against the petitioner with an aid of section 120B of the
Indian Penal Code. Therefore, any continuance of the proceeding
would amount to abuse of the process of law.
Having come to such conclusion still the question would be
as to whether the court in exercise of jurisdiction under section 482
of the Code of Criminal Procedure would go into the matter of
sufficiency or insufficiency of the materials or to relegate to the
petitioner to stage where he can plead for his discharge on account
of insufficiency of the material. This question has been answered
by the Hon’ble Supreme Court rendered in a case of Ashok
Chaturvedi and others vs. Shitul H. Chanchani and another
[(1998) 7 SCC 698] holding therein that merely because the
accused has right to plead at the time of framing of charges that
there is no material for framing of charges he is not debarred from
invoking the inherent jurisdiction of the court at the earliest point
of time when the Magistrate has taken cognizance.
Earlier also the Hon’ble Supreme Court had expressed the
same view in a case of State of Karnataka vs. L. Muniswamy
and others [(1977) 2 SCC 699].
Thus, in the facts and circumstances as stated above, when
no sufficient ground is there to proceed against the petitioner,
there would be abuse of the process of law, if the petitioner is
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allowed to face rigour of the trial and hence, the entire criminal
proceeding of Mashrakh P.S. case no.110 of 1991, corresponding to
supplementary U.T no.62 of 1998, pending in the court of Chief
Judicial Magistrate, Hazaribagh is hereby quashed.
In the result, this application is allowed.
( R. R. Prasad, J. )
ND/