JUDGMENT
M.S.A. Siddiqui, J.
1. The present revision petitions are directed against the order dated 1.8.1997 passed by Shri V.B. Gupta, Special Judge, Delhi in C.C. No. 44/96 directing to frame charges under Section 120-B, IPC and under Sections 7/11/12/13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against the petitioners. By this order, I propose to dispose of these revision petitions.
2. A short conspectus of the case is that during the years 1988 to 1991, three brothers namely the accused S.K. Jain, B.R. Jain and N.K. Jain entered into a criminal conspiracy among themselves, the object of which was to receive unaccounted money and to disburse the same to their companies, friends, close relatives, highly placed officials and prominent political leaders of the country. In pursuance of the said, conspiracy, the accused S.K. Jain, allured certain influential public servants, political leaders of high status including some Ministers and Government organisations in the power and steel sectors of the Government of India to award contracts to different foreign bidders with the motive of getting illegal kickbacks from them. During the aforesaid period, the accused S.K. Jain, B.R. Jain and N.K. Jain received huge amounts, major portion of which came from foreign countries through Hawala channels as kickbacks. An account of receipts and disbursements of the tainted monies was maintained by the accused J.K. Jain in the diaries. The accused J.K. Jain was an employee of the said Jain brothers. On 3.5.1991, the CBI searched the premises of J.K. Jain at G-36, Saket, New Delhi in connection with the investigation R.C. Case No. 5(S)/91, SIU (B)/CBI/New Delhi and recovered besides other articles and documents, two diaries,
two small note books and two files containing details of receipts of various amounts from different sources recorded in abbreviated forms of digits and initials and details of payment to various persons recorded in similar fashion. According to the prosecution case, the Jain brothers and their employee J.K. Jain had acted as middlemen in the award of certain big projects in the power and steel sectors of the Government of India to different bidders; that they had surreptitious dealings with politicians and influential public servants whose names were recorded in the diaries and the files and that some of them had accepted illegal gratification from Jains brothers as reward for giving them and the companies they own and manage various contracts. The petitioner Shri Sharad Yadav, who was a member of Lok Sabha and Rajya Sabha from 5.7.1986 to 13.3.1991 and a Union Minister from 6.12.1989 to 10.11.1990, also received Rs. 5 lacs from Jain brothers by way of illegal gratification. On such revelation, the CBI registered a case R.C-1(A)/25-4 CU (vi). Investigation pursuant to the said FIR culminated into submission of a charge-sheet under Section 120-B, IPC read with Sections 7/11/12/13(2)/13(1)(d) of the Prevention of Corruption Act against the petitioners.
3. On consideration of the material collected by the CBI, and after hearing the submissions of the parties, the learned Special Judge directed framing of charges under Sections 7/11/12/13(2)/13(1)(d) of the Prevention of Corruption Act read with Section 120-B, IPC against the petitioners vide orders dated 1.8.1997. Feeling aggrieved by the said order, the petitioners have come up in revision before this Court.
4. At the outset, I must make it clear that framing of a charge in a criminal case is a serious matter as it substantially affects the person’s liberty. Therefore, a charge cannot be framed as a matter of course. Reference may, in this context, be made to the following observations of their lordships of the Supreme Court in Century Spinning & Manufacturing Co. Ltd. v. The State of Maharashtra, :
“………..The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused is not supportable either on the plain language of the section or on its judicial interpretation or on any other recognised principle of law. The order framing the charges does substantially affect the person’s liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution.”
5. In Union of India. Prafulla Kumar, , the Supreme Court has laid down the following principles for framing charge in a criminal case :
1. That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
2. Where the materials placed before the Court disclose grave suspicion
against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
3. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
4. That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post-Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
6. I shall now apply the principles enunciated above to the present case in order to find out whether or not the learned Special Judge was legally justified in directing to frame charges against the petitioners under Section 120-B, IPC read with Sections 7, 11, 12, 13(2) and 13(1)(d) of the Prevention of Corruption Act. As against the petitioner Shri Sharad Yadav, the specific allegation in the charge-sheet is that during the period 1989 to March, 1990, when he was a Member of Parliament and for sometime a Cabinet Minister of the Central Government, he received Rs. 5 lacs from Jain brothers. The learned Special Judge, relying upon the entry made at page 8 of the file MR-72/91 and the extra judicial confession alleged to have been made by Shri Sharad Yadav during interviews given to Shri Rajat Sharma of ZEE T.V. and Shri Vikram Aditya Chandra, came to the conclusion that a prima facie case had been made out against Shri Sharad Yadav.
7. It is significant to mention that so far as the entry made at page 8 (MR-72/91) of Rs. 5 lacs to Shri Sharad Yadav is concerned, facts of the present case are in pari materia with the case instituted against Shri L.K. Advani. The specific allegations in the charge sheet filed against Shri L.K. Advani and Jain brothers were that he received a sum of Rs. 25 lacs from Jain brothers during his tenure as a Member of Parliament (besides a sum of Rs. 35 lacs which was received by him while he was not a Member of Parliament). The entry about payment of Rs. 25 lacs to Shri L.K. Advani was made at page 8 of MR-72/91. Allegations were also made in the charge-sheet that during the years 1988 to 1991, Jain brothers entered into a criminal conspiracy among themselves, the object of which was to receive unaccounted money and to disburse the same to their companies, friends and other persons including influential public servants and political leaders; that in pursuance of the said conspiracy, S.K. Jain lobbied with various public servants, Union Ministers and influential politicians to persuade them to award contracts to different foreign bidders with the motive of getting illegal kickbacks from them; that during the aforesaid period, the Jain brothers received Rs. 59,12,11,685/- major portion of which came from foreign countries through Hawala channels as kickbacks from the foreign bidders of certain projects of power sector undertakings and the balance within the country. On these allegations, learned Special Judge framed charges under Section
120-B, IPC and Sections 7/12/13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against Shri L.K. Advani and Jain brothers including J.K. Jain.
8. Assailing the above order/charges, Shri L.K. Advani and others moved this Court by filing petitions under Section 482, Cr.P.C., which were allowed and the charges were quashed vide decision reported in LJC. Advani v. CBI, 1997 (41) DR 274. While quashing the said charges, my learned Brother Shamim J. held that : (1) the documents seized in the case were neither books of accounts not kept in the regular course of business and even if they were admissible under Section 34 of the Evidence Act, they were not, in view of the plain language of the section, sufficient enough to fasten the liability on the person, against whom they were sought to be used; (ii) besides the alleged entries in the diaries and the loose sheets there was no other evidence and so the entries would not further the case of the prosecution; (iii) the materials collected during investigation did not raise a reasonable ground to believe that a conspiracy existed and Shri L.K. Advani and Jain brothers were parties thereto and, therefore, those documents would not be admissible under Section 10 of the Evidence Act; (iv) the documents seized in the case, if admitted under Section 17 of the Evidence Act, could be used against Jain brothers only and not against Shri L.K. Advani and Shri V.C. Shukla; (v) the production and proof of the documents by themselves would not furnish evidence of the truth of their contents; and (vi) during investigation CBI did not examine any witness or collect materials to prove the contents of the said documents. On these premises, Shamim, J. quashed the charges and discharged Shri L.K. Advani and Shri V.C. Shukla. The CBI unsuccessfully challenged the said order of discharge before the Supreme Court. (See C.B.I. v. V.C. Shukla and Ors., . Upholding the order of discharge, their Lordships of the Supreme Court held that the entry in one of the loose sheets (sheet No. 8-MR-72/91) about the alleged payment of money to Shri L.K. Advani cannot be pressed into service to frame charge against Shri L.K. Advani. I may usefully excerpt the following observations of their Lordships :
“A conspectus of the above decisions makes it evident that even correct and authentic entries in books of account cannot without independent evidence of their trustworthiness, fix a liability upon a person. Keeping in view the above principles’ even if we proceed on the assumption that the entries made in MR 71 / 91 are correct and the entries in the other books and loose sheets (which we have already found to be not admissible in evidence under Section 34) are admissible under Section 9 of the Act to support an inference about the formers’ correctness still those entries would not be sufficient to charge Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of independent evidence in support thereof. In that view of the matter we need not discuss, delve into or decide upon the contention raised by Mr. Altaf Ahmed in this regard. Suffice it to say that the statements of the four witnesses, who have admitted receipts of the payments as shown against them in MR 71/91, can at best be proof of reliability of the entries so far they are concerned and not others. In other words, the statements of the above witnesses cannot be independent evidence under Section 34 as against the above two respondents. So far as Shri Advani is concerned Section 34 would not come in aid of the prosecution for another reason also. According to the prosecution case itself his name finds place only in one of
the loose sheets (Sheet No. 8) and not in MR 71/91. Resultantly, in view of our earlier discussion, Section 34 cannot at all be pressed into service against him.”
9. In the instant case, name of Shri Sharad Yadav (in coded abbreviation) finds place only in one of the loose sheets (sheet No. 8 — MR. 72/91 and not in MR-71/91 or in any other documents seized by the police. In view of the decision of the Supreme Court in the case of CBI v. Shukla and Ors. (supra), entry of MR-72/91 about the alleged payment of Rs. 5 lacs to Shri Sharad Yadav cannot be pressed into service for framing charges against him.
10. At this juncture, learned Counsel appearing on behalf of C.B.I. submitted that the statements made by Shri Jacob Mathai, Danial P. Rambal P. Ghoshal and Ejaz Limi during investigation have lent material corroboration to the entry made in MR-72/91 regarding payment of Rs. 5 lacs to Shri Sharad Yadav. As regards the proof of authorship of the said entry, he has invited my attention to the statements of Pawan Jain, A.V. Pathak and D.K. Guha, who have stated that the entries in MR-68/91, 70/91, 71/ 91 & 72/91 were made by J.K. Jain and that Jain brothers had put their signatures against some of these entries in token of verification thereof. Similar arguments were advanced before the Supreme Court in the case of CBI v. V.C. Shukla and Ors. (supra). Rejecting the said contentions, their Lordships of the Supreme Court observed that :
“…………Suffice it to say that the statements of the four witnesses, who have admitted receipts of the payments as shown against them in MR 71/91, can at best be proof of reliability of the entries so far they are concerned and not others……,”
10. Thus the statements of the aforesaid witnesses are wholly insufficient to prove that Rs. 5 lacs were paid to Shri Sharad Yadav in accordance with the entry made in sheet No. 8 (MR-72/91).
11. Learned Special Judge has also relied upon the extra judicial confession alleged to have been made by Shri Sharad Yadav before the media persons, namely, Shri Rajat Sharma and Shri Vikram Aditya Chandra. On 20.8.1994, Shri Rajat Sharma, the then Director Programming of ZEE T.V., recorded the interview of Shri Sharad Yadav, which was telecasted on 28.8.1994. In the said interview Shri Sharad Yadav had admitted having received a sum of Rs. 3 lacs from one Jain. Similarly, on 19.2.1995, Shri Sharad Yadav had also admitted the said fact in an interview recorded by Shri Vikram Aditya Chandra, Special Correspondence New Delhi Television. The said interview was also telecasted on Doordarshan in its programme ‘Tonighf on 18.1.1996.
12. The interview of Shri Sharad Yadav in the form of a mock trial was recorded on 20.8.1994 in Hindi by Shri Rajat Sharma. The said mock trial of Shri Sharad Yadav was telecasted on ZEE TV in its programme titled as APP KI ADALAT. English transcript of the relevant portion of the interview is as under :
“Q. Do your know that C.B.I. has registered a case of Hawala which was published in Press also and some Ministers of your Government are named in Hawala and Rs. 5 lacs are shown against your name.
Ans. Yes, Yes, question is this that I have received Rs. 3 lacs not 5 lacs and I do not know that man who came to my house with Chiman Bhai Patel at the time when Janta Dal Government was supposed to form and people used to give money and during those days about 11 to 12 lacs received on account of party donation account of which was written in the handwriting of my wife, 3 lacs rupees are written against from some Jain but I do not know who is that Jain.
It means during the election period we received donation and others received 1 crore and we received 50,000/-, 1,00,000/- or 10 rupees, so, you have said the right thing.
Q. But when it came to knowledge that those persons are involved in anti-national activities and used to pay money to JKLF. Ans. Definitely, I am saying that I do not know about him who came to me and signature of my wife is there and if I have done any wrong then I will not feel any difficulty in facing the punishment and I apologise for the same. Now it is time to pronounce the judgment by the Judge Nina Choudhary. Order To day Sharad Yadav has strongly defended himself and real picture of Sharad Yadav has come before you. He has said that he want to change the heart of the public to end the castes but his party is also utilising politics of vote Bank. In 1974 Sharad Yadav came forward as an alternative stone of politics but to-day there is no sign of that politics and I am recalling the lines of Filmy song. "Ai Kahan aa gay Hum" I wish that Sharad Jee will consider this" 13. Similarly, Shri Vikram Aditya Chandra stated in his case diary statement that on 184.1996, Shri Sharad Yadav in an interview recorded in Hindi, had admitted having received a sum of Rs. 3 lac from one Jain and the said interview was telecasted on Doordarshan after due editing. Hindi version of said interview has been produced before the Court, which is as under : "MUJHE CHMMAN BHAI PATEL KE SAATH EK JAIN AIYA THA USNE TEEN LAKH RUPEEYE DIYE HAIN AUR WOH TEEN LAKH RUPEEYE JO CHANDE KE AIYE HAIN WOH MAIN NE KISKO DIYE HAIN PARTY KI TARAF SE WOH BHI LIKHA HUWA HAL" 14. The question is as to whether the said statements of Shri Sharad Yadav can be construed as extra-judicial confessions suggesting the inference that he committed the alleged offence. What is the confession was laid down by the Privy Council in Narayana Swami v. Emperor in these words :
“……..& confession must either admit in terms the offence, or at any rate substantially all the facts which constitutes the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession, e.g. an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no explanation of any other man’s possession. Some confusion appears to have been caused by the definition of confession in Article 22 of the Stephen’s “Digest of the Law of Evidence” as an admission made at any time by a person charged with a crime stating or’ suggesting the interference that he committed that crime.”
If the surrounding articles are examined it will be apparent that the learned author, after
dealing with admissions generally, is applying himself to admissions in criminal cases, and for this purpose defines confessions so as to cover all such admissions, in order to have a general term for use in the three following articles, confession secured by inducement, made upon oath, made under a promise of secrecy. The definition is not contained in the Evidence Act, 1872, and in that Act it would not be consistent with the natural use of language to construe confession as a statement by an accused ‘suggesting the inference that he committed the crime’.”
15. The same view was also reiterated by the Supreme Court in Palvinder Kaur v. State of Punjab, AIR 1954 SC 354; Om Parkash v. State of U.P., and CBI v. V.C. Shukla and Ors., (supra). It has long been established that the prosecution cannot selectively use only those parts of a confession which most obviously prejudice the accused. There can be no “editing” of exculpatory passages that detract from those parts. As Lord Widgrey, C.J. explained in R. v. Pearce, (1979) 69 Cr. App. R. 365 at page 369 :
“A statement that is not itself an admission is admissible if it is made in the same context as an admission. ……… it would be unfair to admit only the statements against interest while excluding part of the same interview or series of interviews. It is the duty of the prosecution to present the case fairly to the jury. To exclude answers which are favourable to the accused whilst admitting those unfavourable would be misleading.”
16. It is likely in many cases that such editing of a confession will distort the true sense of the confession and unfairly accentuate those parts that incriminate the maker himself. This was recognised in R. v. Gunewardene, (1951) 2 K.B. 600, where Lord Goddard, C.J. said :
“It not infrequently happens that (an accused) in making a statement, though admitting his guilt upto a certain extent, puts greater blame on the (co-accused) ………… In such a case the accused would have a right to have the whole statement read and could, with good reason, complain if the prosecution picked out certain passages and left out others.”
17. Bearing in mind the said principles I have to examine these two video recorded interviews of Shri Sharad Yadav to see whether the requirements there described are satisfied. As noted earlier, the gravamen of the charge against Shri Sharad Yadav is that he received Rs. 5 lacs from Jain brothers as illegal gratification. It is pertinent to mention that there is no proof of the payment of the said amount to Shri Sharad Yadav or why it was paid, aliunde in the case. The question that falls for consideration is whether Shri Sharad Yadav admitted having received any amount as bribe from Jain brother. It needs to be highlighted that in both the interviews, Shri Sharad Yadav has nowhere stated that he had received any amount from Jain brothers or from J.K. Jain, towards bribe. He had simply admitted having received a sum of Rs. 3 lacs from one Jain as donation to the party fund. In both the interviews he had stated that he did not know who that Jain was and he had come alongwith Chimmanbhai Patel. Editing the said statements of Shri Sharad Yadav so as to exclude the reference to receipt of Rs. 3 lacs as donation to the party fund from one Jain whom he did not know would utterly distort the true sense of both the statements. In view of the dicta of the Privy Council and the Supreme Court, no inference of a criminal intention in receiving the amount of Rs. 3 lacs by Shri Sharad Yadav as donation to the party fund can arise. In the case of Om Prakash (supra), their
Lordships of the Supreme Court have laid down that unless there be a plenary admission of guilt, the facts must be interpreted reasonably and an admission of all the facts which constitute the offence should be present. Tested on the touchstone of the principles of law enunciated by their Lordships of the Privy Council and the Supreme Court, the aforesaid video recorded interviews of Shri Sharad Yadav do not amount to confessions and cannot, therefore, be used to complete the offence, with which Shri Sharad Yadav was charged.
18. Eliminating the aforesaid interviews of Shri Sharad Yadav, there remains nothing on record to connect Shri Sharad Yadav with the alleged crime. It has to be borne in mind that a criminal trial is not like a fairy tale where one is free to give flight to one’s imagination and phantasy. I am, therefore, of opinion that the impugned order directing to frame charges under Section 120-B, IPC read with Sections 7, 11, 12, 13(2) & 13(1)(d) of the Prevention of Corruption Act against Shri Sharad Yadav in the present case on its facts, cannot be sustained.
19. This brings me to the case against the Jain brothers and their employee J.K. Jain. The common allegations made in the charge sheet are that during the years 1988 to 1991, Jain brothers entered not a criminal conspiracy among themselves, the object of which was to receive money through Hawala channels and other sources and to distribute it as bribe to politicians and highly placed public servants to influence favourable decisions from them. By the impugned order, learned Special Judge directed framing of charges under Section 120-B, IPC read with Sections 7, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against Jain brothers and their employee J.K. Jain on the ground that the Jain brothers entered into an agreement with Shri Sharad Yadav, in terms of which they were to make certain payments to him as a gratification other than legal remuneration as a motive or reward for getting his favour while he was a public servant, and in pursuance of the said agreement, a sum of Rs. 5 lacs was paid to him. Thereby the Jain brothers and their employee J.K. Jain committed the offence of conspiracy under Section 120-B, IPC; and under Sections 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and in that they abetted the commission of the offence under Section 7 of the Prevention of Corruption Act by Shri Sharad Yadav.
20. Section 120-A, IPC defines conspiracy as an agreement to do an unlawful act or a lawful act by unlawful means. An agreement will amount to a statutory conspiracy only if carrying it out will necessarily amount to or involve the commission of an offence by one or more of the parties to the conspiracy. For purpose of analysis it is perhaps convenient to isolate the three clauses each of which must be taken as indicating an essential ingredient of the offence as follows :
(i) If a person agrees with any other person or persons that a course of conduct shall be pursued, (ii) which will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, (iii) if the agreement is carried out in accordance with their intentions. 21. Thus, the essential ingredient in the crime of conspiring to commit a specific offence or offences is that the accused should agree that a course of conduct be pursued which he knows must involve the commission by one or more of the parties to the agreement of that offence or offences. But, beyond the mere fact of agreement, the necessary mens rea of the crime is established if it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. (See R. v. Anderson, (1985) 2 All. E.R. 961). 22. In State through S.P. (CBI/STT v. Nalini and Ors.) , some of the broad principles governing the law of conspiracy have been summarised as under :
“1. Under Section 120A, IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means over act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.
2. Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to inferred from the circumstances and the conduct of the accused.
4. Conspirators may, for example, be enrolled in a chain – A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrella-spoke enrollent, where a single person at the centre doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common propose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.
6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.
7. A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the Court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy Court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself bat also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand that “this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders.
8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the braveman of the crime of conspiracy .’The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a co-conspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators and the mere fact that conspirators individually or in groups perform different tasks to a common and / does into split up a conspiracy into several different conspiracies.
10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes alongwith other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime.”
I shall now apply the aforesaid principles to the present case in order to find out whether or not the learned Special Judge was justified in directing to frame charges under Section 120-B, IPC, read with Sections 7, 11, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act against the remaining petitioners. It is significant to mention that the case the prosecution intended to project during the trial was not that there was a conspiracy amongst Jain brothers to offer illegal gratification to Shri Sharad Yadav and that pursuant thereto the latter accepted the same. On the contrary, the gravemen of the charges which were to be framed against Jain brothers pursuant to the impugned order is that they entered into an agreement with Shri Sharad Yadav in terms of which they were to make certain payment to him as an illegal gratification as a motive or reward for getting his favour while he was a public servant and in pursuance of the said agreement a sum of Rs. 5 lacs was paid to him. The entire edifice of the prosecution case is built on the diaries and files recovered from J.K. Jain. As noticed earlier, the material collected by the Prosecuting Agency does not make out any case against Shri Sharad Yadav. That being so, the conclusion is inescapable that the prosecution has failed to make out a prima facie case to prove that Shri Sharad Yadav was a party to the alleged conspiracy. Consequently, the charges of conspiracy, sought to be framed, cannot stand also against Jain brothers and their employee J.K. Jain, for the simple reason that in a case of conspiracy there must be two parties. It necessarily follows that the charge of abetment by conspiracy against the Jain brothers and J.K. Jain must also fall on the same ground. I have already held that no prima facie case has been made out against Shri Sharad Yadav of his having committed the offence punishable under Section 7 of the Prevention of Corruption Act, the question of Jains’ committing the offence under Sections 12, and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act does not arise. In my opinion, the case against Jain brothers and J.K. Jain is also squarely covered by the decision of the Supreme Court in Union of India v. V.C. Shukla and Ors. (supra).
23. In the result, therefore, the revisions will have to be allowed. The impugned order dated 1.8.1997 is set aside and the petitioners are discharged. Bail bonds to be cancelled.