JUDGMENT : R.N. Misra, J. - Jaganath Misra (accused No. 12) is the Appellant in Criminal Appeal No. 100 of 1971, while D.B.M. Patnaik (accused No. 1) and Dinabandhu Samal (accused No. 10) are Appellants in Criminal Appeal No. 108 of 1971. These three accused persons along with 37 others were put on trial on a charge u/s 120-B of the Indian Penal Code for having conspired in a secret meeting held on 24.1-1969 at the residence of accused No. 1 and to have decided to commit dacoity by looting the property of the rich people of the locality. Several other accused persons were charged u/s 399 of the Indian Penal Code for having made preparations to commit dacoity and under Sections 25(1)(a) and 27 of the Arms Act for being in possession of arms without authority of law and accused Nos. 26 and 27 were further charged u/s 25(1)(c) of the Arms Act. The three Appellants were convicted u/s 120-B of the Indian Penal Code and each of them has been sentenced to 4? years of rigorous imprisonment. Some of the other accused persons were convicted u/s 25(1)(a) of the Arms Act while two others were also convicted u/s 25(1)(c) of the Arms Act and separate sentences of imprisonment were passed against them. The charge u/s 399 of the Indian Penal Code has failed, It has been stated that those other accused persons have not filed any appeals against their convictions. 2. The prosecution alleged that D.B.M. Patnaik (hereinafter referred to as "Patnaik" for brevity) was on Advocate practising at Gunupur within the district of Koraput. Previously he was a member of the Communist Party of India (Marxist) and was expelled from the party sometime in March, 1968, for his violent activities and contravention of the party ideologies. He along with his associate Nagbhusan, another Advocate, Dinabandhu Samal (accused, No. 10), Jaganath Misra (accused No. 12) and some others set up on independent organisation and with a view to training members of the new party in the use of arms and ammunitions and for the progress of Naxalite activities started holding meetings and organising the illegal Government. On 23rd of January, 1969, during the early hours of the night, a meeting was held at Patnaik?s house within Gunupur town which was attended by several others including Jaganath. On 23rd of January, 1969, during the early hours of the night, a meeting was held at Patnaik?s house within Gunupur town which was attended by several others including Jaganath. Therein, according to the prosecution, a decision was taken that the rich people of Gunupur locality should be looted and their properties should be distributed among the poor. Resistance should be met with adequate arms and ammunitions. The prosecution alleged that in furtherance of the conspiracy hatched at the meeting on 23-1-1969, several lootings, dacoities, murders, etcetera have taken place. Dinabandhu Samal attended a meeting on 26-1-1969 at village Amadengi and instigated the villagers to join the movement. It was further alleged that the three Appellants held further meetings in furtherance of the conspiracy. Information reached the police about these illegal activities and ultimately on 29th of January. 1969, the Officer-in-charge of Gunupur Police Station, registered P.S. Case No. 13 of 1969 on the basis of a first information report lodged by himself. A long drawn process of investigation followed and ultimately the accused persons were charge-sheeted in the manner already indicated. 3. All the accused persons denied the charges. Patnaik took the stand that the letters (Exts. 10 and 11) seized from accused Appalaswamy were forged and fabricated. He further stated that in December, 1969, he was expelled from the Communist Party of India (Marxist) and thereafter he is a member of the Communist Party of India (M.L) and Government of Orissa being apprehensive of Naxalite activities as have been carried on in the neighbouring areas of Andhra Pradesh has started the false case implicating him and his follows. Jaganath also took the same stand and stated that the police were after him from 1947, when he started his political career. Dinabandhu pleaded that he had been implicated without any justification. 4. Prosecution examined as many as 81 witnesses and exhibited 146 documents. A number of material objects were also marked for the prosecution. Defence led no oral evidence, but exhibited certain documents. Dinabandhu pleaded that he had been implicated without any justification. 4. Prosecution examined as many as 81 witnesses and exhibited 146 documents. A number of material objects were also marked for the prosecution. Defence led no oral evidence, but exhibited certain documents. 5 The learned Assistant Sessions Judge dealt with the case of the prosecution in general and thereafter referred to the evidence against each of the accused persons In paragraphs 12 to 26 of his judgment he has dealt with the case against Patnaik while in paragraphs 118 to 126 he has dealt with the case of Dinabandhu Samal and in paragraphs 67 to 69 he has dealt with the case of Jaganath Misra. 6. Though two separate appeals had been filed, one set of argument was actually advanced at the time of hearing. Counsel for the Appellants contended that the prosecution had failed to establish any criminal conspiracy as provided in Section 120-A of the Indian Penal Code. That section provides: When two or more persons agree to do, or cause to be done (1) on illegal act, or (2) on act which is not illegal by illegal means; such on agreement is designated a criminal conspiracy: Provided that no agreement except on agreement to commit on offence shall amount to a criminal conspiracy unless some act beside the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation -It is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object. "Agreement" is thus the rock-bottom of the offence and unless it is shown that the several accused persons had agreed either to do on illegal act or on act, which though not illegal, by illegal means, no charge of criminal conspiracy can succeed. According to the prosecution, at the meeting held at, Patnaik?s residence on the 24th of January, 1969, (as disclosed in the F.I.R.) and on the 23rd of January, 1969, (as inoculate by oral evidence at the trial) this agreement was reached. p.ws. 6, 7 and 8 are the witnesses who speak about this meeting. According to p.w. 6 he was a Councillor of the Gunupur Notified Area Council. Pattnaik and Nagbhusan, two Advocates practising at Gunupur, are known to him and they had on occasions worked as his Advocates. p.ws. 6, 7 and 8 are the witnesses who speak about this meeting. According to p.w. 6 he was a Councillor of the Gunupur Notified Area Council. Pattnaik and Nagbhusan, two Advocates practising at Gunupur, are known to him and they had on occasions worked as his Advocates. On 23rd of January, 1969, in the afternoon, Patnaik?s clerk asked p.w. 6 to meet him along with some others. About 10 to 15 persons assembled at Patnaik?s house. Nagbhusan and Jaganath among others were present. Referring to the meeting he stated: ...Nagbhusan and Chandreyya of Parlakhemundi told me that the Ad basis were looting the properties of the rich people and distributing the properties among the poor in Andhra area and they both advised me further to do the same thing in Orissa. I did not agree with the proposal of Nagbhusan Patnaik and Chandreyya. All present in the gathering talked together in English. I along with my companion left the place. In cross-examination, he stated: At about 8 p.m. I had gone to the house of Shri D.B.M. Patnaik. About 10 or 15 minutes after I left the house of Shri D.B.M. Patnaik.... This witness was thus present at the meeting at Patnaik?s house for about 10 to 15 minutes. He has not assigned any role to Patnaik or the two other Appellants excepting saying that Jaganath was also present at the meeting. In cross-examination this witness has,admitted that he was implicated in 8 to 9 excise cases and he was even accused in a murder case. P.w. 7 stated that while he was returning in the month of January, 1969, from the market along with p.w. 6, the clerk of Patnaik asked them to come to Patnaik?s house by sunset. p.w. 7 reached Patnaik?s house and found there were 12 to 13 persons already gathering there. He does not name Jaganath or Dinabandhu to be present in the gathering. It is state d by him: Accused D.B.M. Patnaik and Nagbhusan" Patnaik told us that the rich people in Andhra area had been killed and looted and their properties were distributed among poor people. Then they advised us to do the same thing within our locality. They further advised us not do fear for the police and they would lead us. We disagreed with their proposal and advice and left the place. Then they advised us to do the same thing within our locality. They further advised us not do fear for the police and they would lead us. We disagreed with their proposal and advice and left the place. The gathering was still there when we left the house of D.B.M. Patnaik. While p.w. 6 stated that he was at Patnaik?s house for 10 to 15 minutes having arrived there at 8 p.m., p.w. 7 has stated that they were at Patnaik?s house till 9.00 p.m. This witness was Patnaik?s client and has to his credit some convictions. P.W. 8 says that he was called to Patnaik?s house with p.ws. 6 and 7. There, Patnaik and Nagbhusan told them that rich people in Andhra were being killed and looted and their properties were being distributed among the poor. They advised the gathering to do the same thing in Gunupur locality and not to fear the police. According to this witness, p.ws. 6 and 8 disagreed with the proposal of Patnaik and left the place. The other people were still there. In crossexamination, p.w. 8 has stated: D.B.M. Patnaik and Nagbhusan Patnaik told p.w. 6 about the killing and looting of the rich people, I heard it. Nagbhusan only told p.w. 6. D.B.M. Patnaik was present with Nagbhusan. The entire oral evidence regarding the meeting where conspiracy was hatched according to the prosecution thus comes from p.ws. 6, 7 and 8. Apart from the discrepancies manifest from the evidence of these witnesses, they appear to be undependable witnesses. p.ws. 6 and 7 have been involved in several criminal cases. p.w. 6 was even charged for murder. p.w. 8 did not implicate Patnaik; but stated that it was only Nagbhusan who had been persuading people to take to Naxalite activities. 7. The meeting where conspiracy was hatched was stated to have been held on the 24th of January, 1969, in the First Information Report. According to the oral evidence, however, the meeting was held on 23rd of January, 1969. Apart from the shifting of the date, the evidence regarding the foundation of conspiracy is conflicting, comes from a shaky source and participation of accused persons is not very clear. As to what transpired in the meeting is also not definitely stated by the witnesses. According to the oral evidence, however, the meeting was held on 23rd of January, 1969. Apart from the shifting of the date, the evidence regarding the foundation of conspiracy is conflicting, comes from a shaky source and participation of accused persons is not very clear. As to what transpired in the meeting is also not definitely stated by the witnesses. Mere exhortation to take to Naxalite methods without anything more may not satisfy the requirements of Section 120-A of the Code. In that view of the matter, I find it difficult to accept the prosecution evidence regarding the hatching of the alleged conspiracy at a meeting held on 23rd of, January, 1969, at the residence of Patnaik in Gunupur on the basis of the oral evidence. Reliance has been placed on certain document any evidence to support the case of conspiracy and several activities of the accused persons in furtherance thereof. Ext. 3 is said to be a writing of March, 1968 on the basis whereof charge u/s 399 of the Indian Penal Code was asked to be found. The learned Trial Judge has not been convinced about this piece of implicating evidence and, therefore, the charge u/s 399 of the Indian Penal Code has not been accepted. The names of some of the accused persons are said to appear in abbreviated forms in this document. For instance, one ?J.N.? appearing in Ext. 3 is said to be Jaganath. The writing is not clear and it is difficult to say whether it is ?J.M.? or ?J.N.? p.w. 51 has tried to support the stand that the reference in Ext. 3 is to Appellant Jaganath. A look at the material does not support the witness?s version beyond the range of doubt. Admittedly the literature and correspondence which have been placed on record appear to be advocating or preaching anti-social activities. Merely from such writings also criminal conspiracy cannot be found. As already indicated, the element of agreement to establish the link between accused and accused so as to involve the entire group in a charge of criminal conspiracy was necessary. It is true, positive or direct evidence is not necessary and the prosecution is entitled to take advantage of the principle embodied in Section 10 of the Evidence Act. As already indicated, the element of agreement to establish the link between accused and accused so as to involve the entire group in a charge of criminal conspiracy was necessary. It is true, positive or direct evidence is not necessary and the prosecution is entitled to take advantage of the principle embodied in Section 10 of the Evidence Act. In Bhagwan Swarup v. State of Maharashtra A.I.R 1965 S.C. 682, it was held that Section 10 will come into play only when there is reasonable ground to believe that two or more persons have conspired together to commit on offence or on actionable wrong, that is to say, there should be prima facie evidence that a person was a party to the conspiracy before his acts can he used against his co-conspirators. Once such a, reasonable ground exists, anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others. But, here again, it is obligatory for the prosecution to? establish such link as would join up the several activities of the accused persons to be in furtherance of the common intention, i.e. conspiracy. While it is true that conspiracy by direct evidence is difficult to establish, it is equally true that existence of conspiracy cannot be assumed from a set of un-connected facts or from a set of conduct exhibited by different accused persons at different places and times without a reasonable justification for drawing the link. The learned Trial Judge has dealt with at great length the evidence relating to several meetings and other happenings in which Patnaik or the other accused persons participated. In the absence of material to accept the existence of the agreement referred to in Section 120-A of the Code, these details are not available to be used against the Appellants. According to the prosecution the conspiracy was hatched on 23-1-1969. The charge on this score was, however differently worded and said: You along with others named above on or about the 23rd January, 1969 and before and after that date, that is to say, from the beginning of March, 1968, to 27-1-1969, at Gunupur jointly and severally agree on conspired.... So far as Dinabandhu and Jaganath are concerned, the Trial Judge has mainly relied upon the entries in the Exercise book (Ext. So far as Dinabandhu and Jaganath are concerned, the Trial Judge has mainly relied upon the entries in the Exercise book (Ext. 3) and the documents recovered and exhibited in the case. According to the trial Court, these amply corroborate the prosecution case. But I do not agree that it would be appropriate to rely on the entries in these documents already written out prior to the holding of the meeting on 23-1-1969 in support of the case of conspiracy. There is some evidence about Patnaik?s conduct and activities, but it is indeed difficult to accept the same as evidence of conspiracy. 8. Learned Counsel for the Appellants relied upon a decision of this Court in Ramchandra v. State of Orissa 40 (197) C.L.T. 1108, wherein the approved in a case u/s 120-B of Indian Penal Code was the Appellant against his conviction. The conviction, in this Court was challenged on the ground that there was no sanction as required u/s 196-A of the Code of Criminal Procedure. As it appears, the learned Government Advocate without examination of the position conceded that though sanction was necessary, yet sanction had not been taken. There was also a charge u/s 505 of the Indian Penal Code for which sanction as required u/s 196 of the Code of Criminal Procedure had not been taken. Dealing with this aspect of the matter on that occasion, I stated: The main case here was instituted upon the basis of the First Information Report by the Appellant. It is conceded by learned Government Advocate that there is no material on record to show that there was compliance of the requirements of Section 196 or Section 196-A of the Code of Criminal Procedure, so far as the offences punishable under Sections 505 and 120-B respectively of the Indian Penal Code are concerned. In this view of the matter, the prosecution for the offences punishable under Sections 120-B and 505 of the Indian Penal Code was not tenable and the convictions for those offences must stand vacated. The correctness of the concession was not examined and on the concession of the learned Government Advocate, conclusion was reached. As I now find, the conclusion is not supportable in law though the ultimate result in the case would not have been otherwise in view of the finding recorded in regard to the offence u/s 399 of the Indian Penal Code. As I now find, the conclusion is not supportable in law though the ultimate result in the case would not have been otherwise in view of the finding recorded in regard to the offence u/s 399 of the Indian Penal Code. 196-A of the Code of Criminal Procedure Section provides: No Court shall take cognizance of the offence of criminal conspiracy punishable u/s 120-B of the Indian Penal Code (45 of 1860). (1) in a case where the object, of the conspiracy is to commit either on illegal act other than on offence or a legal act by illegal means, or on offence to which the provisions of Section 196 apply unless upon complaint made by order or under authority from the State Government or some officer empowered by the State Government in this behalf, or (2) in a case where the object of the conspiracy is to commit any non-cognizable offence, or a cognizable offence not punishable with death. Imprisonment for life or rigorous imprisonment for a term of two years or upwards unless the State Government or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government has, by order in writing, consented to the initiation of the proceedings: Provided that where the criminal conspiracy is one to which the provisions of Sub-section (4) of Section 195 apply no such content shall be necessary. The conclusion reached in Criminal Appeal No. 118 of 1973 would have been appropriate if the object of the conspiracy was to commit any non-cognizable offence or a cognizable offence ?not punishable? with imprisonment for a term of less than two years. For graver offences, Sub-section (2) is applicable and prosecution is maintainable without written complaint of the prescribed authority. This position of law is directly supported by a decision of the Supreme Court in the case of Bhanwar Singh v. State of Rajasthan 1968 S.C.D. 620. No support, therefore, is available from the decision in Criminal Appeal No. 118 of 197.3 to the Appellants in this case and merely on the ground of non-compliance of Section 196-A of the Code of Criminal Procedure, the Appellants are not entitled to acquittal. 9. But, as I have already said, the evidence in regard to conspiracy is of very doubtful nature and, therefore, it would not be appropriate to sustain their conviction. 9. But, as I have already said, the evidence in regard to conspiracy is of very doubtful nature and, therefore, it would not be appropriate to sustain their conviction. I would hold that they are entitled to benefit of doubt. 10. I would accordingly allow the appeals, set aside their convictions and acquit them. Appellant Jaganath appears to be on bail. His bay bond is cancelled. The other Appellants shall be released from imprisonment forthwith unless their detention is otherwise necessary. Appeals allowed. Final Result : Allowed