2024 INSC 522

Page 1 of 31

Criminal Appeal No. 2395 of 2023

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. 2395 of 2023

(@ SLP (Crl.) No. 6687 of 2023

Ram Prakash Chadha …Appellant

Versus

The State of Uttar Pradesh …Respondent

J U D G M E N T

C.T. RAVIKUMAR, J.

1. The dismissal of application under Section 482,

No.21739 of 2007, essentially, filed under Section 482 of

the Code of Criminal Procedure, 1973 (for short, ‘the

Cr.PC’) against dismissal of an application for discharge

by the appellant herein under Section 227 Cr.PC, as per

order dated 21.04.2023 by the High Court of Judicature

at Allahabad is under challenge in this appeal. The

appellant moved the said application for discharge in

Crime No.371/1993, the charge in essence there is about

custodial death of one Ram Kishore who happened to be

Page 2 of 31

Criminal Appeal No. 2395 of 2023

cashier/accountant of the appellant, which in fact was

registered based on the complaint of the 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

1

. 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:-

1

(2005) 1 SCC 568

Page 3 of 31

Criminal Appeal No. 2395 of 2023

“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 appears to the

Magistrate that the offence is triable exclusively

by the Court of Session, he shall —

(a) commit, after complying with the

provisions of section 207 or section 208, as the

case may be, the case to the Court of Session,

and subject to the provisions of this Code

relating to bail, remand the accused to

custody until such commitment has been

made;

(b) subject to the provisions of this Code

relating to bail, remand the accused to

custody during, and until the conclusion of,

the trial;

(c) send to that Court the record of the case

and the documents and articles, if any, which

are to be produced in evidence;

(d) notify the Public Prosecutor of the

commitment of the case to the Court of

Session.”

In view of Section 209, Cr.PC, as extracted above,

to know what exactly are the documents falling within the

Page 4 of 31

Criminal Appeal No. 2395 of 2023

said expression Sections 207 and 208, Cr.PC, are also to

be looked into.

4. We referred to the provisions under Section 227

and the decision in Debendra Nath Padhi’s case (supra)

only to conclude that even for the purpose of referring to

the facts leading to the case, as also for consideration of

the contentions for the purpose of Section 227, Cr.PC, we

cannot refer to the grounds carrying or referring to the

case of the appellant-accused, in view of the aforesaid

provisions of law and position of law, requiring to confine

such consideration only with reference to the materials

produced by the prosecution.

5. Now, we will refer to the facts leading to the case,

as per the prosecution and as per the materials falling

within the purview of Section 227, Cr.PC.

6. The appellant, who is the owner of Goodwill

Enterprises dealing with wood, registered Case Crime

No.351 of 1993 under Section 392 of the Indian Penal

Code, 1860 (for short ‘the IPC’) at Police Station Modi

Nagar, District Ghaziabad, alleging that his

cashier/accountant-Ram Kishore and one Pappu Yadav

went for collecting his business proceeds from shops at

Meerut and Modi Nagar in the morning of 15.07.1993. On

their way back from Meerut, after collecting such

Page 5 of 31

Criminal Appeal No. 2395 of 2023

business proceeds, they stopped the car in front of Ginni

Devi School in Modi Nagar and Ram Kishore went to

Poonam Sales for collection and Pappu Yadav remain

seated in the car with the bag containing the collection

and some documents. Soon, two persons came and

snatched the said bag from Pappu Yadav after putting

him at gun point and escaped on a motorcycle. The

appellant was given such information over phone. Later,

on that day itself the appellant got registered the above-

mentioned 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

Page 6 of 31

Criminal Appeal No. 2395 of 2023

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

reads thus:-

“…Ram Kishore was illegally kept in the police

station by Inspector of Police R.D. Pathak and

Sub-Inspector of Police Jawahar Lal from

17.07.1993 to 23.07.1993 night and by

subjecting him to the torture he was kept being

interrogated about the said incident. In the night

of date 23.07.1993 on Ram Kishore felling ill he

was taken to M.M.G. Hospital Ghaziabad by

Inspector R.D. Pathak through staffs and Jeep

where on 3:20 in the morning he died. He was

admitted by the police in the Hospital in the

name of unknown. After death of the young man

Ram Kishore on date 24.07.1993, a complaint

regarding death was submitted by the

complainant to the Circle Inspector Modi Nagar

raising suspicion about death of Shri Ram

Kishore having been caused by the Inspector of

Modi Nagar by beating him on which Crime

Page 7 of 31

Criminal Appeal No. 2395 of 2023

Case No.371/1993 was registered illegible. As

per the post mortem report dated 24.07.1993

ante mortem redics cut incision were found on

his both the buttocks and because of the cause

of death not having been ascertained his internal

organs were preserved which was examined on

date 03.01.1995 poison etc. were ruled out. …”

8. In the chargesheet dated 21.02.2000 filed in Crime

No.371/1993, the aforesaid Rameshwar Dayal Pathak,

the then Inspector of Police and Jawahar Lal, the then

Sub-Inspector of Police and the appellant were made

accused Nos. 1 to 3 respectively, for commission of

offences under Sections 302, 343, 217, 218, 330, 120B

and 34, IPC. It is seeking discharge under Section 227,

Cr.PC, in the aforesaid case viz., Crime No.371/1993

that appellant herein approached the court of

Additional Sessions Judge/Special Judge, Ghaziabad

by filing application dated 04.04.2007 contending

absolute absence any ground to proceed against him.

The said application for discharge under Section 227,

Cr.PC, was rejected by the court of Additional Sessions

Judge/Special Judge (CBI), as per order dated

19.04.2007. The impugned order dated 21.04.2023 was

Page 8 of 31

Criminal Appeal No. 2395 of 2023

passed by the High Court in the petition filed under

Section 482, Cr.PC, against the said order dated

19.04.2007.

Rival contentions:

9. The learned senior counsel appearing for the

appellant would contend that the very charge filed by

the CBCID dated 21.02.2000 in the custodial death case

viz., FIR No. 371/2023 would reveal that the appellant

herein is the informant. It is also submitted 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

Page 9 of 31

Criminal Appeal No. 2395 of 2023

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 of Ram Kishore from

the hospital he filed the complaint which culminated in

the registration of FIR No.371/1993 in connection with

the murder of Ram Kishore, alleging that Inspector,

Modi Nagar and 3-4 other police personnel had taken

Ram Kishore with them for interrogation and

apprehending the cause of his death due to torture by

police personnel. It is submitted neither the statements

of witnesses or the chargesheet carry any such

accusation or insinuation and that suspicion was made

only by the court in the order dated 19.04.2007 while

rejecting the appellant’s application for discharge. In

short, the contention is that neither the trial court nor the

High Court considered the application for discharge in

the manner required under law.

10. Per Contra, the learned Additional Advocate

General appearing for the State would submit the

Page 10 of 31

Criminal Appeal No. 2395 of 2023

materials on record produced along with the

chargesheet would prima facie show that it was the

appellant who lodged the complaint resulting in

registration of Crime No.351/1993, and that it was in

connection with the investigation of the said crime that

the appellant himself produced the deceased Ram

Kishore before the Police Station after calling him from

his house through another employee and as such his

very action in filing another complaint leading to the

registration of Crime No.371/1993 against the first

accused, the then SHO, Police Station, Modi Nagar, for

the death of Ram Kishore immediately on coming to

know about the death of Ram Kishore, is sufficient to

create a strong suspicion against the appellant. When

such a strong suspicion is there, in the light of the

statements made by the other witnesses under Section

161, Cr.PC, the concurrent finding resulted in dismissal

of application for discharge filed by the appellant

invites no interference, according to the learned

Additional Advocate General.

11. For appreciating the aforesaid contentions, we are

of the considered view that it is only appropriate to

refer to the position of law with respect to the scope of

exercise of power under Section 227, Cr.PC, as also the

Page 11 of 31

Criminal Appeal No. 2395 of 2023

ingredients to attract Section 120B, IPC. Section 227,

Cr.PC, reads thus:

“227. Discharge.—If, upon consideration of the

record of the case and the documents submitted

therewith, and after hearing the submissions of the

accused and the prosecution in this behalf, the

Judge considers that there is not sufficient ground

for proceeding against the accused, he shall

discharge the accused and record his reasons for

so doing.”

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

Page 12 of 31

Criminal Appeal No. 2395 of 2023

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 exactly is the scope of consideration and what

should be the manner of consideration while exercising

such power.

13. The decision in Yogesh alias Sachin Jagadish

Joshi v. State of Maharashtra

2 this Court held that the

words “not sufficient ground for proceeding against the

accused” appearing in Section 227, Cr.PC, postulate

exercise of judicial mind on the part of the Judge to the

facts of the case revealed from the materials brought on

record by the prosecution in order to determine

whether a case for trial has been made out. In the

decision in State of Tamil Nadu v. N Suresh Rajan &

Ors.

3 this Court held that at a stage of consideration of

an application for discharge, the Court has to proceed

with an assumption that the materials brought on record

2

AIR 2008 SC 2991

3

(2014) 11 SCC 709

Page 13 of 31

Criminal Appeal No. 2395 of 2023

by the prosecution are true, and evaluate the materials

to find out whether the facts taken at their face value

disclose the existence of the ingredients constituting

the offence. At this stage, only the probative value of

the materials has to be gone into and the court is not

expected to go deep into the matter to hold a mini-trial.

14. In the decision in BK Sharma v. State of UP

4, the

High Court of judicature at Allahabad held that the

standard of test and judgment which is finally applied

before recording a finding of conviction against an

accused is not to be applied at the stage of framing the

charge. It is just a very strong suspicion, based on the

material on record, and would be sufficient to frame a

charge.

15. We are in agreement with the said view taken by

the High Court. At the same time, we would add that the

strong suspicion in order to be sufficient to frame a

charge should be based on the material brought on

record by the prosecution and should not be based on

supposition, suspicions and conjectures. In other

words, in order to be a basis to frame charge the strong

4

1987 SCC OnLine ALL 314

Page 14 of 31

Criminal Appeal No. 2395 of 2023

suspicion should be the one emerging from the

materials on record brought by the prosecution.

16. In the decision in Stree Atyachar Virodhi Parishad

v. Dilip Nathumal Chordia & Anr.

5, this Court held that

the word ‘ground’ in Section 227, Cr.PC, did not mean

a ground for conviction, but a ground for putting the

accused on trial.

17. In P. Vijayan v. State of Kerala and Anr.

6, after

extracting Section 227, Cr.PC, this Court in paragraph

No.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

5

(1989) 1 SCC 715

6

(2010) 2 SCC 398

Page 15 of 31

Criminal Appeal No. 2395 of 2023

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 the documents produced

before the court which ex facie disclose that there are

suspicious circumstances against the accused so as to

frame a charge against him.”

18. In paragraph 13 in P. Vijayan’s case (supra), this

Court took note of the principles enunciated earlier by

this Court in Union of India v. Prafulla Kumar Samal

7

which reads thus: -

“10….

(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

7

(1979) 3 SCC 4

Page 16 of 31

Criminal Appeal No. 2395 of 2023

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

Page 17 of 31

Criminal Appeal No. 2395 of 2023

should make a roving enquiry into the pros and cons

of the matter and weigh the evidence as if he was

conducting a trial.”

19. In the light of the decisions referred supra, it is thus

obvious that it will be within the jurisdiction of the Court

concerned to sift and weigh the evidence for the limited

purpose of finding out whether or not a prima facie case

against the accused concerned has been made out. We

are of the considered view that a caution has to be

sounded for the reason that the chances of going

beyond the permissible jurisdiction under Section 227,

Cr.PC, and entering into the scope of power under

Section 232, Cr.PC, cannot be ruled out as such

instances are aplenty. In this context, it is relevant to

refer to a decision of this Court in Om Parkash Sharma

v. CBI

8. 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

8

(2000) 5 SCC 679

Page 18 of 31

Criminal Appeal No. 2395 of 2023

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

amounting to exercise of the power coupled with

obligation under Section 232, Cr.PC, available only

after taking the evidence for the prosecution and

examining the accused.

20. Even after referring to the aforesaid decisions, we

think it absolutely appropriate to refer to a decision of

the Madhya Pradesh High Court in Kaushalya Devi v.

State of MP

9. It was held in the said case that if there is

no legal evidence, then framing of charge would be

9

2003 SCC OnLine MP 672

Page 19 of 31

Criminal Appeal No. 2395 of 2023

groundless and compelling the accused to face the trial

is contrary to the procedure offending Article 21 of the

Constitution of India. While agreeing with the view, we

make it clear that the expression ‘legal evidence’ has to

be construed only as evidence disclosing prima facie

case, ‘the record of the case and the documents

submitted therewith’.

21. The stage of Section 227, Cr.PC, is equally crucial

and determinative to both the prosecution and the

accused, we will dilate the issue further. In this context,

certain other aspects also require consideration. It

cannot be said that Section 227, Cr.PC, is couched in

negative terminology without a purpose. Charge

sheet is a misnomer for the final report filed under

Section 173 (2), Cr.PC, which is not a negative report

and one that carries an accusation against the accused

concerned of having committed the offence (s)

mentioned therein.

22. In cases, where it appears that the said offence(s)

is one triable exclusively by the Court of Session, the

Magistrate shall have to commit the case to the Court of

Session concerned following the prescribed

procedures under Cr.PC. In such cases, though it

carries an accusation as aforementioned still legislature

Page 20 of 31

Criminal Appeal No. 2395 of 2023

thought it appropriate to provide an inviolable right as

a precious safeguard for the accused, a pre-battle

protection under Section 227, Cr.PC. Though, this

provision is couched in negative it obligated the court

concerned to unfailingly consider the record of the case

and document submitted therewith and also to hear the

submissions of the accused and the prosecution in that

behalf to arrive at a conclusion as to whether or not

sufficient ground for proceeding against the accused is

available thereunder. Certainly, if the answer of such

consideration is in the negative, the court is bound to

discharge the accused and to record reasons therefor.

The corollary is that the question of framing the charge

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

Page 21 of 31

Criminal Appeal No. 2395 of 2023

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. We are not

oblivious of the fact that normally, the Court is to record

his reasons only for discharging an accused at the stage

of Section 227, Cr.PC. However, when an application

for discharge is filed under Section 227, Cr.PC, the

Court concerned is bound to disclose the reason(s),

though, not in detail, for finding sufficient ground for

rejecting the application or in other words, for finding

prima facie case, as it will enable the superior Court to

examine the challenge against the order of rejection.

23. By applying the laws enunciated and the principles

laid, we will proceed to consider the case on hand. In

the final report filed in FIR No.371 of 1993 viz., in the

Page 22 of 31

Criminal Appeal No. 2395 of 2023

custodial death case, the afore-extracted portion from it

revealed that the essence of the accusation is

commission of custodial death owing to the torture to

which Ram Kishore was subjected to, from 17.07.1993 to

23.07.1993. It reveals that going by the same, he was

illegally kept in the Police Station by accused Nos.1 and

2. A scanning of the charge as also the other materials

including the statements of the witnesses recorded

under Section 161, Cr.PC, would reveal that there is

absolute absence of any accusation or even an

insinuation that the appellant had played any role in

torturing Ram Kishore. Therefore, the question is how

he is arraigned as third accused in the aforesaid crime.

In that regard, it is apposite to refer again to the final

report dated 21.02.2000 filed in Crime No.371/1993.

The relevant portion in the final report in this regard,

reads thus: -

“…In this manner from this investigation, it was found

that deceased Ram Kishore was kept in the Police

Station from dated 17.07.1993 to 23.07.1993 in the

Police Station under the criminal Conspiracy of the

accused persons mentioned in the column no.3

during which he was tortured and interrogated

regarding the incident of loot and knowingly with the

Page 23 of 31

Criminal Appeal No. 2395 of 2023

intention of saving their skins no entry of the same was

made in the records of the Police Station nor was the

same mentioned by the complainant in its report.

Charge under Section 341/217/218/201/330/34

/120B Indian Penal Code, 1860 was found to have

been made out against all the accused persons. …”

24. From the above extracted portion, it is evident that

the implication of the appellant in the crime is with the

aid of Section 120B and Section 34, IPC. Apart 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

10

, 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 –

10

(2009) 11 SCC 737

Page 24 of 31

Criminal Appeal No. 2395 of 2023

(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,

irrespective of the further consideration whether or not

the offence is actually committed as the very fact of

conspiracy constitutes the offence (See the decision in

K.S. Narayanan & Ors. v. G Gopinathan

11

).

27. There can be no doubt that conspiracy is hatched

in privacy and not in secrecy, and such it would rarely

be possible to establish conspiracy by direct evidence.

A few bits here and a few bits there, on which the

prosecution may rely, are not sufficient to connect an

accused with the commission of the crime of criminal

11

1982 CriLJ 1611 (Madras)

Page 25 of 31

Criminal Appeal No. 2395 of 2023

conspiracy. To constitute even an accusation of

criminal conspiracy, first and foremost, there must at

least be an accusation of meeting of minds of two or

more persons for doing an illegal act or an act, which is

not illegal in itself, by illegal means.

28. In Ajay Aggarwal v. Union of India & Ors.

12, this

Court characterized the offence of criminal conspiracy

as an agreement between two or more persons to do an

illegal act or a legal through illegal means.

Furthermore, it was held that commission of the offence

would be complete as soon as, there is consensus ad

idem and it would be immaterial whether or not the

offence is actually committed. It is also held therein that

necessarily there must be agreement between the

conspirators on the design or object of the conspiracy.

As held in R. Venkatakrishnan case (supra), the

quintessential ingredient to attract the offence of

criminal conspiracy is agreement between two or more

persons. Therefore, the question is whether it spelt in

the final report dated 21.02.2000 or in any of the records

of the case and documents submitted therewith, so as to

find a prima facie case of commission of criminal

12

(1993) 3 SCC 609

Page 26 of 31

Criminal Appeal No. 2395 of 2023

conspiracy against the appellant. True that an

agreement referred to in Section 120A, IPC may be

expressed or implied or in part express and in part

implied. However, no record of the case or documents

submitted therewith carry such an

allegation/accusation against the appellant.

29. What is the common plan or the common intention?

This aspect is also conspicuously absent in the materials

produced by the prosecution. In regard to all such

aspects, referred above, none of the witnesses has

spoken while giving statements under Section 161,

Cr.PC. In this context it is also to be noted that

according to the Trial Court, a very strong suspicion

lingers on account 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

Page 27 of 31

Criminal Appeal No. 2395 of 2023

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 the Trial Court, it is to be noted that it

is nobody’s case that the appellant was in the Police

Station or informed of the sufferance from chest pain.

As relates the second suspicion, it is to be noted that the

very Trial Court itself, in the very order dated

19.04.2007 itself, stated that in Crime No.351/1993

under Section 392, IPC the deceased Ram Kishore was

only a witness and that the amount in cash and the draft

involved was that of the appellant. It is also the case of

Page 28 of 31

Criminal Appeal No. 2395 of 2023

the prosecution that the said case was registered, at the

instance of the appellant against unknown persons.

Hence, when the appellant who lost the money went to

Police Station along with the witness thereof, how can it

be presumed by the Court as a strong case for suspicion

for commission of the offence of criminal conspiracy,

especially taking note of the very case of the

prosecution that causative incident for the case

occurred when Ram Kishore was returning after

collecting the business proceeds of the appellant and

that the appellant was informed of it over telephone by

Ram Kishore. When there is no case for the prosecution

that the appellant pointed the fingers at Ram Kishore

how the lodging of the complaint, apprehending

custodial death of Ram Kishore who was appellant’s

clerk for about 13 years, which caused the registration

of custodial death case under FIR No.371/1993 can be

taken as a ground for framing charge against the

appellant for the offences punishable under Section

302, IPC, 120-B with the aid of Section 34, IPC.

31. These aspects were not at all considered by the

High Court. To say the least, there was no consideration

of the matter by the High Court in the manner required

Page 29 of 31

Criminal Appeal No. 2395 of 2023

under law, in the given facts and circumstances of the

case.

32. We are at a loss to understand, how in the absence

of ground for a prima facie case revealed from the

materials produced by the prosecution a person who

lost his money and lodged a complaint based on the

information furnished by his employee can be

implicated in an offence, that too a grave allegation of

commission of an offence of custodial death amounting

to murder, merely because he caused the presence of

the person concerned before the Police Station unless

the ingredients to attract criminal conspiracy to commit

any specific offence in relation to Ram Kishore is

available. If the case of the prosecution and the

materials produced along with the charge are taken as

true, they would only suggest that Ram Kishore was

under the control of the police in the Police Station. In

fact, that exactly is the prosecution case revealed from

the final report dated 21.02.2000 filed in Crime

No.371/1993.

33. The aforesaid being the position revealed from the

materials produced by the prosecution, the mere fact

that rejection of the application of the appellant for

discharge is concurrent cannot be a reason for

Page 30 of 31

Criminal Appeal No. 2395 of 2023

confirming the impugned order of the High Court

confirming the order of the Trial Court. Since the

diallage on the matter constrain us to come to the

concrete conclusion of absence of ground for

proceeding against the appellant based on final report

dated 21.02.2000 in Crime No.371/1993 of CBCID, U.P.

Lucknow, this appeal must succeed.

34. We clarify that the observations made in this

judgment are made qua the appellant for the purpose

of disposal of this appeal and we make it clear that we

have not made any observation touching the merits of

the case against the other accused in Crime

No.371/1993 of CBCID, U.P. Lucknow.

35. For the reasons given as above, this appeal is

allowed. Consequently, the order and judgment dated

21.04.2023 passed by the High Court of Judicature at

Allahabad in application No.21739 of 2007 filed under

Section 482, Cr.PC, and the order dated 19.04.2007

passed by the Additional Sessions Judge/Special Judge

(CBI) are set aside. As a necessary sequel, the

application filed by the appellant under Section 227,

Cr.PC, dated 04.04.2007 for discharge in Crime

No.351/1993 filed in Sessions Trial No.1532/2005

before Additional Sessions Judge/Special Judge (CBI),

Page 31 of 31

Criminal Appeal No. 2395 of 2023

Prevention of Corruption Act U.P., East Ghaziabad is

allowed and the appellant stands discharged.

36. Pending application(s), if any, shall stand disposed

of.

……………………, J.

(C.T. Ravikumar)

……………………, J.

(Sudhanshu Dhulia)

New Delhi;

July 15, 2024