IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE P.B.BAJANTHRI WRIT PETITION No.33974/2018 (GM-RES) BETWEEN:
SRI OBALARAJU, SON OF LATE OBALAIAH, AGED ABOUT 53 YEARS, OCCUPATION:ASISTANT DIRECTOR IN SMALL SAVINGS AND PENSION DEPARTMENT, V.V.TOWERS, VIDHANA VEEDHI, BENGALURU-560 001. PRESENTLY R/AT NO.21, 3RD CROSS, SRIRAMAPURAM, BENGALURU-5600021. ... PETITIONER (BY SRI.HASHMATH PASHA AND ASSOCIATES, FOR SRI RANJAN KUMAR P. ADVOCATE) AND:
1. STATE OF KARNATAKA BY THE SECRETARY, DEPARTMENT OF HOME, VIDHANA SOUDHA, BENGALURU-560 001.
2. STATE OF KARNATAKA BY MALLESWARAM POLICE, BENGALURU CITY-560 010.
3. DEPUTY SUPERINTENDENT OF POLICE, CRIMINAL INVESTIGATION DEPARTMENT, OFFICE OF THE CID, PALACE ROAD, BANGALORE-560 001. ... RESPONDENTS (BY SRI.ASHOK N.NAIK, SPL. SPP FOR R1 TO R3) THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO CHARGESHEET PENDING IN SPL. CC No.417/2016 VIDE ANNEXURE-B ON THE FILE OF HON’BLE PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, AS AN ABUSE OF PROCESS OF LAW AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP AND THE SAME HAVING BEEN HEARD AND RESERVED ON 14.11.2019, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER This writ petition is filed seeking a writ of certiorari or any other writ, order or direction of appropriate nature quashing the charge-sheet pending in Spl. C.C.No.417/2016, Annexure-B on the file of the Principal City Civil and Sessions Judge, Bengaluru City and to quash the order dated 10.05.2018 passed in Spl. CC No.417/2016, Annexure-J on the file of the Principal City Civil and Sessions Judge, Bengaluru, in so far as directing the petitioner to face charge for the offences punishable under Sections 120-B, 119 and 411 of IPC and consequently discharge the petitioner from the case.
2. Heard the learned counsel for the petitioner, Sri Hashmath Pasha and the learned Special State Public Prosecutor, Sri Ashok N.Naik, appointed in the present case on behalf of the respondents. Perused the records.
3. In the instant petition, petitioner (for short ‘accused No.11’) has assailed the order dated 10.05.2018 passed in Spl. CC No.417/2016, on the application dated 05.09.2017 filed by accused No.11 under Section 227 of the Cr.P.C. seeking discharge, which is allowed in part. The accused No.11 is discharged for the offence under Section 115 read with Section 23 of the Karnataka Education Act wherein it was ordered that materials are there to frame the charges against accused No.11 for the offences punishable under Section 120-B, 119 and 411 of IPC. Further, an application dated 13.03.2018 filed by accused No.11 is allowed in part and he is discharged for the offences punishable under Sections 3 (2) of the Karnataka Control of Organized Crimes Act (for short ‘KCOC Act’) for want of valid sanction. In other words, what is challenged in the present petition is relating to rejection of discharge application of accused No.11 for the offences punishable under Sections 120-B, 119 and 411 of the IPC and further ordering for framing of charge.
4. Accused No.11 is in the cadre of Assistant Director in Small Savings and Pension Department, Government of Karnataka. His son by name Gourav was studying in 12th standard. Gourav was attending special tuition classes in the residence of Accused No.10 as his daughter namely Kum.Harshita was also studying II year PUC. Both Gourav and Harshita were classmates right from 1st standard upto 10th standard in Poornapragna Education Centre and also in PUC in Vidya Mandir PU College, Malleshwaram, Bengaluru. Accused No.11 was dropping his son Gourav to the residence of Accused No.10 oftenly. In this backdrop, both Gourav and Harshita were to write II year PUC examination like Biology on 10.03.2016, Mathematics on 13.03.2016, Physics on 16.03.2016 and Chemistry on 20.03.2016 whereas examinations for II year PUC had commenced on 08.03.2016. Accused No.4 who was working as a Second Division Assistant in the office of the Hangal Sub- Treasury, where the question papers of the II year PUC was stationed as a security measure. Accused No.1 alleged to have taken photo/picture of question paper through his mobile phone. Later on, he is alleged to have prepared copies from laptop and printer and transmitted the same to the other accused. The other version is one Kumaraswamy @ Kiran who were co-accused managed to bring question paper and in collusion with other co- accused like one Anil were distributing to the parents of the students like accused Nos.10, 11, 13 and 14 etc.
5. Accused No.11 had taken his son Gourav for tuition to the house of Accused No.10-Narayana and his daughter Kum.Harshita who was also appearing for II year PUC examination. Chemistry subject examination was to be held on 21.03.2016. On the allegation that Chemistry question paper was alleged to have pilferaged, thus on 21.03.2016 itself, the then Joint Director (Exam) of Pre- University Board had registered a complaint before the Malleshwaram police/2nd respondent to take up investigation and further to take appropriate action against the persons who were all involved. Thus, FIR in Cr.No.37/2016 for offences under Sections 115 and 23 of the Karnataka Education Act read with Sections 418, 420, and 381 of IPC. The State Government took a decision to transmit the investigation to CID police by means of an order. Consequently, CID police have taken over the investigation.
6. The Chemistry examination which was held on 21.03.2016 was cancelled and re-scheduled on 30.03.2016. On 30.03.2016 also, there was a rumour that question paper was once again pilferaged. Consequently, Joint Director (Exam) registered one more complaint and registered FIR in Cr.No.48/2016 and this case was also taken over by the CID Police, Bengaluru. In this backdrop, accused No.11 was arrested on 04.04.2016 and later on he was released on bail.
7. On 20.04.2016, the Additional Director General of Police, CID, Bengaluru, had granted approval for invocation of provisions of KCOC Act. Thus, a report was submitted to the Principal City and Sessions Judge, Bengaluru, as a designated Court under KCOC Act.
8. Accused No.11 filed Writ Petition No.28987/2016 questioning the validity of invocation of provisions of KCOC Act. This Court stayed the invocation of provisions of KCOC Act against accused No.11 while permitting investigating authority to continue the investigation on 16.05.2016.
9. The CID police filed charge-sheet after completion of investigation against 18 accused persons for the offences punishable under Sections 411, 454, 457, 380, 461, 166, 120-B, 201 read with Section 109 of IPC and under Sections 115 and 23 of the Karnataka Education Act and under Sections 3 (1) (ii), 3 (2) and 3(4) of the KCOC Act and against accused No.11 only for the offences punishable under Sections 120-B, 119, 411 of IPC and under Sections 115 and 23 of the Karnataka Education Act but no charge-sheet was filed for the offences punishable under KCOC Act against petitioner since the interim order was operating in W.P.No.28987/2016.
10. On 20.11.2017, discharge application of accused No.13, accused No.14 and accused No.11 (petitioner herein) was heard wherein accused Nos.13 and 14 were discharged whereas discharge application of accused No.11 was kept in abeyance/deferred. This Court on 08.12.2017 directed accused No.11 to reapply for discharge before the trial Court.
11. Writ Petition No.28987/2016 was disposed off on 12.12.2017 and there was no order of stay, the respondent-police filed additional charge-sheet against accused No.11 under Section 3 (2) of the KCOC Act and Sections 115 and 23 of the Karnataka Education Act and under Sections 120-B, 119 and 411 of the IPC.
12. Being aggrieved by the filing of charge-sheet under the provisions of KCOC Act, accused No.11 filed Writ Petition No.3971/2018. This Court while disposing W.P.No.3971/2018 on 07.02.2018 directed accused No.11 to file fresh application for discharge before the trial Court. In this backdrop, accused No.11 filed a fresh application for discharge under Section 227 of the Cr.P.C. before the trial Court on 13.03.2018. The trial Court passed an order on discharge application while allowing in part to the extent of discharging accused No.11 for the offences punishable under Sections 3 (2) of the KCOC Act and also under Sections 115 and 23 of the Karnataka Education Act with an observation that there are materials to frame charge against accused No.11 for the offences punishable under Sections 120-B, 119 and 411 of the IPC.
13. Learned counsel for the petitioner/accused No.11 vehemently contended that the alleged incident is from the date of commencement of examination namely 08.03.2016. The alleged petitioner’s involvement in the matter was with reference to the date of Chemistry examination on 21.03.2016. Having regard to the alleged incident of taking out picture of the question paper through mobile by the co-accused on 08.03.2016, Section 120-B of IPC is not attracted in so far as petitioner is concerned, that apart accused-Manjunath and Anil, others were handlers of question papers and the allegations are that the kids of accused No.10-Narayana and accused No.11-petitioner have utilized such leaked question paper. In this regard, he has relied on a reported decision namely in the case of LEO ROY FREY AND ANOTHER VS. SUPERINTENDENT, DISTRICT JAIL, AMRITSAR AND ANOTHER reported in [AIR 1958 SCC 119] (paragraph No.4) and K.R.PURUSHOTHAMAN VS. STATE OF KERALA reported in [(2005) 12 SCC 631] (paragraph No.13). It was also contended that no material is seized from the petitioner. Section 411 of IPC is not attracted since stolen document has not been received by the petitioner. Stealing material like taking picture of a question paper illegally would attract Information and Technology Act, 2000.
14. Learned counsel for the petitioner relied on the decision rendered in the case of STATE OF MAHARASHTRA Vs. PRIYA SHARAN MAHARAJ AND OTHERS reported in [1997 SCC (Cri) 584] (paragraphs 7 and 8) wherein it has been held that Sections 227 and 228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. It was also contended that the co-accused like accused Nos.13 and 14 have been discharged. Learned counsel for the petitioner vehemently contended that Section 119 of IPC relates to public servant concealing design to commit offence which it is his duty to prevent. The said provision is not at all attracted for the reasons that accused No.11 was an Assistant Director in the Small Savings and Pension Department in the capacity of public servant and he is not alleged to have committed any offence so as to attract Section 119 of IPC where the subject matter is of the Education Department and accused No.11 was not entrusted with examination duty. Therefore, there is non-application of mind. In view of these facts and circumstances, three provisions i.e., Sections 119, 120-B and 411 of IPC are not at all attracted so as to frame charges and proceed against the petitioner, for the reasons that alleged incident took place on 08.03.2016 at Hangal Sub-Treasury, whereas allegation leveled against accused No.11 is that on 21.03.2016, accused No.11 and his son shared the pilferage question paper of Chemistry. In this backdrop, Section 120-B is not attracted. That apart, no material has been seized from the petitioner so as to invoke Section 411 of IPC to the extent that accused No.11 is in receipt of stolen articles/material.
15. Per contra, learned counsel for the respondent supported the order of the trial Court passed on the application for discharge of accused No.11. It was vehemently contended that accused No.11 in collusion with the co-accused utilized the stolen material of Chemistry examination question paper which was scheduled on 21.03.2016. He has pointed out from the discharge book read with the Additional Charge-Sheet, the role of accused No.11 and accused No.10 sharing the stolen material relating to question paper of the Chemistry subject. Insofar as discrimination in discharging the co- accused namely accused Nos.13 and 14 is concerned, it was pointed out the role played by each individuals in committing the offences. Accused No.11 being a Government Servant, he has himself indulged in the offence under Section 411 of IPC with a conspiracy to help his son in writing the examination. Thus, accused No.11 has not made out the case so as to interfere with the order dated 10.05.2018.
16. Heard the learned counsel for the parties.
17. The Special Court framed the following points for consideration:
“Point No.1: Whether the accused No.11 is entitled for discharge for offence under Section 3 (2) of KCOC Act?
Point No.2: Whether the accused No.11 is entitled for discharge for offences under Sections 120B, 119, 411 of IPC?
Point No.3: Whether the accused No.11 is entitled for discharge for offence under Section 115 r/w Section 23 of Karnataka Education Act?
Point No.4: What order?
and the above points were answered as under: Point No.1: Partly in the affirmative, Point No.2 In the negative, Point No.3:In the affirmative.
Point No.4: As per the final order.
18. Before adverting as to whether petitioner is entitled to discharge for offences punishable under Sections 120B, 119 and 411 of IPC, it is necessary to examine the word ‘crime’.
ESSENTIAL ELEMENTS OF CRIME:
It is general principle of criminal law that a person may not be convicted of a crime unless the prosecution has proved beyond reasonable doubt:
a) He has committed a criminal act, or incurred a responsibility to be attributed to him for the existence of a certain state of affair, which is forbidden by criminal law;
b) He had defined state of mind in relation to the causing of the event or the existence of the state of affairs.
Thus, a crime essentially consists of two elements; namely actus reus and mens rea.
So far as criminal liability, there must be a actus reus and mens rea, i.e., wrongful act and wrongful intention. Wrongful act in itself is not sufficient for punishment because there is a legal maxim namely actus non facit reum nisi mens sit rea i.e., act only does not constitute a crime unless the act is done with a guilty intention.
ACTUS REUS The actus reus, then is made up generally, but not always, of conduct and sometimes is the consequences and also the circumstances in which the conduct takes place, or which constitutes the state of affair, insofar as they are relevant. Sometimes, a particular state of mind on the part of victim is required for the definition of the crime. If so, that state of mind is a part of the actus reus.
MENS REA The second element of crime mens rea or guilty mind may comprise a number of different mental attitude including intention, recklessness and negligence etc., 19. The petitioner/accused No.11 has not hatched any conspiracy so as to steal the question papers pertaining to II year PUC examinations held on 10.03.2016, 13.03.2016, 16.03.2016 and 20.03.2016. On the other hand, accused Nos.1, 2 and 4 and others other than accused Nos.10, 11, 12 and 13 upto accused Nos.14 to 18 were not at all involved in the conspiracy for the reasons that accused Nos.1 to 4 hatched a conspiracy on 08.03.2016. Accused Nos.1 to 3 were Physical Instructors in the private and government schools. Physical Instructors in the Poornapragna School wherein Gaurav, son of accused No.11 and Harshitha, daughter of accused No.10 were studying, are stated to have approached accused No.11 relating to providing question papers of the II year PUC examination for which the petitioner blatantly refused. Later on through accused No.10, accused Nos.1 to 3-Physical Instructors, established contact to provide question papers. At this juncture, accused No.10 is stated to have enquired with the petitioner/accused No.11. Even at that stage, accused No.11 informed accused No.10 that he don’t have money and he is not interested. The son of accused No.11 was attending tuitions which were held in the residence of accused No.10 in which place co-accused are alleged to have brought question papers to provide them to the students who had assembled there. Thus, the role of the petitioner is limited to the extent of dropping his son, Gaurav to the residence of accused No.10. Moreover, no stolen material relating to question paper is stated to have been seized from accused No.11. Even though, petitioner/accused No.11 has narrated factual aspect of the matter before the Investigating Officer, such confessional statement made under Section 25 of the Indian Evidence Act is not admissible and the provisions of the KCOC Act is attracted insofar as petitioner’s role is concerned, whereas the Special Court has come to the conclusion that KCOC Act is not attracted and petitioner/accused No.11 had been discharged for the offences punishable under Sections 3(2) of the KCOC Act.
20. To examine as to whether petitioner has committed any offence punishable under Sections 120B, 119 and 411 of the IPC, it is relevant to read these provisions, which are as under:
“Section 120B-Punishment of criminal conspiracy.— (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] Section 11-Public servant concealing design to commit offence which it is his duty to prevent. — Whoever, being a public servant, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence which it is his duty as such public servant to prevent; 71 [voluntarily conceals by any act or omission or by the use of encryption or any other information hiding tool, the existence of a design] to commit such offence, or makes any representation which he knows to be false respecting such design, [If offence be committed] shall, if the offence be committed, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of such imprisonment, or with such fine as is provided for that offence, or with both;
[If offence be punishable with death, etc]. or, if the offence be punishable with death or 72 [imprisonment for life], with imprisonment of either description for a term which may extend to ten years;
[If offence be not committed] or if the offence be not committed, shall be punished with imprisonment of any description provided for the offence for a term which may extend to one-fourth part of the longest term of such imprisonment or with such fine as is provided for the offence, or with both.
Section 411-Dishonestly receiving stolen property.—Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”
21. Prima facie, Section 120B of IPC is not attracted in view of the fact that conspiracy hatched by the co-accused was way back on 08.03.2016 to steal the question papers from the office of the Sub-Treasury, Hangal, Haveri District, whereas for the first time, accused Nos.6 to 9 and accused No.10 apprised the petitioner/accused No.11 in providing stolen question papers to his son in order to score higher marks was on 21.03.2016 and which was refused by the petitioner. Therefore, the ingredients of Section 120B has not been made out. The ingredients of offence punishable under Section 120A relating to definition of criminal conspiracy is the agreement to commit an offence. In other words, criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved. As is evident from the records, prima facie there is no material to reveal that there was a conspiracy among accused No.12 and main accused who were involved in stealing the question papers from the office of the Sub-Treasury, Hangal. Prima facie, offence punishable under Section 120B is not made out against accused No.11.
22. Section 119 of IPC relates to public servant concealing design to commit offence which it is his duty to prevent. Accused No.11 has not prima facie made out any design to commit offence. The alleged offence is stated to have committed by the co-accused who have taken out photo copy of the question papers from their mobile in the office of the Sub-Treasury, Hangal or stolen question papers. Thereafter, said co-accused have communicated the same to the other accused who were in Bengaluru. At no point of time, co-accused have handed over question paper to accused No.11. That apart, accused No.11 has not designed to commit offence in respect of theft of question paper of II year PUC so as to enable his son and other students to write the exam and score higher marks. Accordingly, the prosecution has not made out prima facie case against accused No.11 in proposing to the jurisdiction Court to frame charge under Section 119 of the IPC.
23. Section 411 of IPC relates to dishonestly receiving stolen property. The ingredients of Section 411 of IPC are (a) the property should be in possession of the accused (b) such property should be ‘stolen property’ i.e., it should have been transferred by theft, extortion or robbery, or which has been criminally misappropriated and (c) the accused have received the same knowing or having reason to believe the same to be stolen property. As against accused No.11, no material has been placed on record relating to passing on the alleged question papers which were stolen from the Sub-Treasury, Hangal, by the co-accused and accused No.11 was in receipt of such stolen question paper. Thus, ingredients relating to offence punishable under Section 411 of IPC is not attracted for the reasons that at no point of time, accused No.11 was in receipt of stolen property. Thus, prosecution has not made out a prima facie case against accused No.11 for the alleged triable offences punishable under Sections 120B, 119 and 411 of IPC.
24. The learned counsel for the petitioner has cited the aforesaid decisions wherein it has been held as under:
i) LEO ROY FREY AND ANOTHER VS. SUPERINTENDENT, DISTRICT JAIL, AMRITSAR AND ANOTHER reported in [AIR 1958 SCC 119] (paragraph No.4) “4. In ordinary circumstances the production of the order or warrant for the apprehension and detention of an undertrial prisoner would be a good return to a writ of habeas corpus. But the petitioners contend that in this case there has been a violation of their fundamental right under Art. 20(2) of the Constitution. Relying on the observations in the decision of the Calcutta High Court in Assistant Collector v. Soorajmal, (56 Cal WN 452: (AIR 1952 Cal 656) (A), and in the decision of the Madras High Court in Collector of Customs v. A. H. A. Rahiman:
(S) AIR 1957 Mad. 496 (B), it is contended that in making the order of confiscation and penalty under S. 167(8) of the Sea Customs Act, the Collector was acting judicially and therefore the petitioners have already been proceeded with and punished for the offence of importation and attempted exportation of goods, the importation or exportation of which is for the time being prohibited or restricted by or under chap. IV of the Sea Customs Act, and consequently they cannot again be prosecuted and punished for the same offence. The argument is that the pending proceedings before the Additional District Magistrate offend against the protection given to the petitioners by Art.20(2) of the Constitution. That in imposing confiscation and penalties the Collector acts judicially has been held by this Court in its judgment pronounced on May 16, 1957, in F. N. Roy v. Collector of Customs Ptn. No. 438 of 1955: ( (S) AIR 195 SC 648) (C). No question has been raised as to the maximum amount of penalty that can be imposed under S.167(8) and we are not called upon to express any opinion on that point. But the fact that the Collector of Customs acted judicially is not decisive and does not necessarily attract the protection guaranteed by Art. 20(2) and the question still remains whether the petitioners' case comes within the provisions of Art.
20(2). That article protects a person from being “prosecuted and punished for the same offence more than once". The question has to be answered as to whether the petitioners had previously been prosecuted and punished for the same offence for which they are now being prosecuted before the Additional District Magistrate. The proceedings before the Customs authorities were under S. 167(8) of the Sea Customs Act. Under S.186 of that Act, the award of any confiscation, penalty or increased rate of duty under that Act by an officer of Customs does not prevent the infliction of any punishment to which the person affected therefore by is liable under any other law. The offences with which the petitioners are now charged include an offence under S.120-B, Indian Penal Code. Criminal conspiracy is an offence created and made punishable by the Indian Penal Code. It is not an offence under the Sea Customs Act. The offence of a conspiracy to commit a crime is a different offence from the crime that is the object of the conspiracy because the conspiracy precedes the commission of the crime and is complete before the crime is attempted or completed, equally the crime attempted or completed does not require the element of conspiracy as one of its ingredients. They are, therefore, quite separate offences. This is also the view expressed by the United States Supreme Court in United States v. Rabinowich, (1915) 238 US 78 (D). The offence of criminal conspiracy was not the subject matter of the proceedings before the Collector of Customs and therefore it cannot be said that the petitioners have already been prosecuted and punished for the "same offence". It is true that the Collector of Customs has used the words " punishment " and " conspiracy ", but those words were used in order to bring out that each of the two petitioners was guilty of the offence under S. 167(8) of the Sea Customs Act. The petitioners were not and could never be charged with criminal conspiracy before the Collector of Customs and therefore Art. 20(2) cannot be invoked. In this view of the matter it is not necessary for us, on the present occasion, to refer to the case of Maqbool Hussain v. The State of Bombay, 1953 SCR 730: (AIR 1953 SC 325) (E) and to discuss whether the words used in Art. 20 do or do not contemplate only proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal as ordinarily understood. In our opinion, Art.20 has no application to the facts of the present case. No other points having been urged before us, these applications must be dismissed.
Applications dismissed.”
ii) K.R.PURUSHOTHAMAN VS. STATE OF KERALA reported in [(2005) 12 SCC 631] (paragraph No.13) “13. To constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. The existence of conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the well-known rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. The criminal conspiracy is an independent offence in the Penal Code. The unlawful agreement is sine quo non for constituting offence under the Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.”
iii) STATE OF MAHARASHTRA VS. PRIYA SHARAN MAHARAJ AND OTHERS reported in [1997 SCC (Cri) 584) (paragraph 7) “7. The learned counsel for the appellant contended that the High Court far exceeded the limits of consideration at Section 227 stage and that has led to failure of justice. It committed an error of sifting and weighing the material placed before the Court by applying the standard of test and proof which is to be applied finally for deciding whether the accused is guilty or not. What was required to be considered at that stage was whether the material placed before the Court disclosed a strong suspicion against the accused. On the other hand, relying upon the judgments of this Court in Union of India vs. Prafulla Kumar Samal (1979) 2 SCR 229 and Niranjan Singh Karam Singh Punjabi vs. Jitendra Bhimraj Bijjaya, (AIR 1990 SC 1962), the learned counsel for the respondents submitted that while considering an application for discharge, if there is no sufficient ground for proceeding against the accused, the Court 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 is made out. The material placed before the Court must disclose grave suspicion against the accused. When two views are equally possible and if the Court finds that the material produced before it while giving rise to some suspicion does not give rise to grave suspicion against the accused, it will be fully within its right to discharge the accused. He also submitted that at Section 227 stage the Judge 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 is what the learned Additional Sessions Judge failed to do and the High court has done. He has thus supported the judgment passed by the High Court.”
25. Learned Special Public Prosecutor appearing for the State relied on the following decisions:
i) BIRLA CORPORATION LIMITED VS. ADVENTZ INVESTMENTS AND HOLDINGS LIMITED AND OTHERS reported in AIR 2019 SC 2390 (paragraphs 25 and 89), “25. The following questions arise for consideration in these appeals:-
(i) Whether the allegations in the complaint and the statement of the complainant and other materials before the Magistrate were sufficient to constitute prima facie case to justify the satisfaction of the Magistrate in issuing process against the respondents?
(ii) Whether the respondents are right in contending that in taking cognizance of the offences under Sections 380, 411 and 120-B IPC and ordering issuance of process against the respondents is vitiated due to non- application of mind?
(iii) Whether the High Court was right in quashing the criminal proceedings qua documents No.1 to 28 on the ground that mere information contained in the documents cannot be considered as “moveable property” and cannot be the subject of the offence of theft or receipt of stolen property?
(iv) Whether filing of the documents in question in the petition before the Company Law Board to substantiate their case of oppression and mismanagement and document No.1 in the civil suits challenging revocation of the trust deeds would amount to theft justifying taking cognizance of the offences?
(v) Whether there is dishonest moving of documents causing wrongful loss to the appellants and wrongful gain to the respondents?
(vi) Whether filing of documents in the judicial proceedings can be termed as an act of theft causing wrongful gain to oneself and wrongful loss to the opponent so as to attract the ingredients of Section 378 IPC?
89. We summarise our conclusions as under:-
“ By the order of the Magistrate dated 08.10.2010, cognizance was taken against respondents No.1 to 16 for commission of the offences under Sections 380, 411 and 120B IPC. There are no averments in the complaint nor are there allegations in the statement of the complainant or the witness P.B. Dinesh as to when and how the theft was committed and the order of the Magistrate dated 08.10.2010 taking cognizance of the criminal case against respondents No.1 to 16 qua documents No.1 to 54 is liable to be set aside.
It is held that the “document” as defined in Section 29 IPC is a “moveable property” within the meaning of Section 22 IPC which can be the subject matter of theft. The information contained thereon in the documents would also fall within the purview of the “corporeal property” and can be the subject matter of the theft. The findings of the High Court is modified to that extent.
In the facts and circumstances of the present case, use of documents No.1 to 28 and documents No.29 to 54 by the respondents in judicial proceedings is to substantiate their case namely, “oppression and mismanagement” of the administration of appellant- Company and their plea in other pending proceedings and such use of the documents in the litigations pending between the parties would not amount to theft. No “dishonest intention” or “wrongful gain” could be attributed to the respondents and there is no “wrongful loss” to the appellant so as to attract the ingredients of Sections 378 and 380 IPC.
Considering the facts and circumstances of the present case and the number of litigations pending between the parties, in our considered view, continuation of the criminal proceedings would be an abuse of the process of the court. The order of the Magistrate dated 08.10.2010 taking cognizance of the offences and the issuance of summons to respondents No.1 to 16 and the criminal proceedings thereon are liable to be quashed.”
ii) K.R.PURUSHOTHAMAN VS. STATE OF KERALA reported in [(2005) 12 SCC 631], (paragraphs 13 and 14) “13. To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy and its object are usually deducted (deduced?) from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the well-known rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn, and no other hypothesis against the guilt is possible. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine quo non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the Plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
14. The suspicion cannot take the place of a legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence.
It is held in Noor Mohd. v. State of Maharashtra, AIR (1971) SC 885, that:
"…. in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material."
iii) MARIAKUTTY @ THANGAM VS. STATE OF TAMIL NADU (Criminal Appeal Nos.62 and 64 of 1992 decided on 07.06.2002) (High Court of Madras).
26. The cited decision on the part of the prosecution counsel do not assist the prosecution case having regard to the factual aspect of the matter and the role of the accused No.11 in respect of alleged to have utilized the stolen question paper. Accused No.11 as a public servant has not concealed any plan to commit the offence and there were no material. Therefore, Section 119 of the IPC is not attracted against accused No.11.
Similarly, Section 411 of the IPC relates to receipt of the stolen property in a dishonest manner. There is no material to show that accused No.11 was in receipt of stolen property and seizure of such stolen property was made from accused No.11. But, the appreciation of the materials on record would reveal that there is no dishonest receipt or retention of stolen materials on the part of the petitioner. That apart accused Nos.13 and 14 have been discharged whereas the Court below has not appreciated the role of accused No.11. Infact role of the petitioner is also almost similar to that of accused 13 and 14. Trial court has not analized the factual aspects appropriately to the extent of role played by the petitioner- accused No.11 and accused Nos.13 and 14. Thus, there is discrimination in discharging co-accused whereas the petitioner has made out a prima facie case for his discharge under Section 227 of the Cr.P.C. for the offences punishable under Sections 120B, 119 and 411 of IPC. At the best, petitioner-accused No.11 could have been cited as one of the witness among other witnesses, depending on each individuals role in the alleged offences, since large number of parents of the students who alleged to have utilized the question paper materials have been cited as witness like CW-13, CW-15 and CW-16, CW-36, CW-38, CW-39 and CW-40, CW-45 to CW-49 and CW-57.
27. For the foregoing discussions, this Court is unable to appreciate the findings given by the learned trial Judge and the said findings are liable to be interfered with as there is no ingredients so as to attract offence under Section 120-B, 119 and 411 of IPC to sustain the case of prosecution.
28. In the result:
i) The order dated 10.05.2018 passed by the Principal City Civil and Sessions Judge, Bengaluru, in Spl. CC No.417/2016, Annexure-J is set aside, ii) The petitioner is discharged for the offences punishable under Sections 120B, 119 and 411 of IPC, in Spl. CC No.417/2016. Consequently, connected miscellaneous petitions, if any pending, stands closed.
iii) Petition stands allowed.
Sd/- JUDGE Jm/-