JUDGMENT 1. - Heard learned counsel for the parties and perused the challan papers and the impugned order dated 6th January, 1995 whereby the learned Special Judge, Dacoity Affected Area, Bharatpur, has ordered for framing the charges for offences under Sections 395,397 read with Section 120B of the Indian Penal Code against the accused petitioner. 2. Briefly the relevant facts are that at about 8.00 p.m. on 20th May,1994 Mohan Lal was sitting in the shop situated at Mandi Atalbandh, Bharatpur. It is alleged that the accused persons namely; Rajesh, Hari and Arjun Patodi and three others armed with gun entered into his shop, inflicted injuries to him by the but of guns, committed decoity and took-away Rs. 2,000/- in cash from the box at the point of Guns. The first information report was immediately lodged. During the investigation, the above named accused persons were arrested. The informant Mohanlal his brother Ishwari and Harish chandra, in their statements recorded under section 161 Cr. P.C. have stated that they had a dispute with Malkhan Singh, Sales Manager, Nath Seeds Ltd., Jaipur, in respect of certain transactions regarding purchase of a shop M/S Gupta Beej Bhandar. The petitioner Pradeep Kumar was in employment of the said Malkhan Singh and that Malkhan Singh and the petitioner in collusion entered into a criminal conspiracy with the accused persons mentioned in the firs information report for committing the said decoity, Besides these statements, the 1.0. has not collected any other evidence to show that the petitioner bore enmity with the victims of the decoity or that he entered into a criminal conspiracy with Hari, Rajesh and Arjun Patodi and others who had accompanied them at the time of decoity. 3. It is true, that generally direct evidence regarding criminal conspiracy is not available because a conspiracy is always hatched in secrecy and is not possible to adduce direct evidence of the same. However, the offence under section 120-B of the Indian Penal Code can be proved from the inference drawn form acts or illegal commissions committed by the conspirators in pursuance of common design. For this I place reliance on the law laid-down by the Appex Court in the case of Shivnarayan Laxminarayan Joshi and ors v. State of Maharashtra and ors AIR 1980 SC 439 . For this I place reliance on the law laid-down by the Appex Court in the case of Shivnarayan Laxminarayan Joshi and ors v. State of Maharashtra and ors AIR 1980 SC 439 . But active part of each conspirator has to be show or inferred from the evidence collected by the I.O. The 1.0. has not collected any evidence to show that the petitioner had any dispute or animosity with the victims of the alleged dacoity. There is no evidence to show that the petitioner had entered into an agreement to commit an illegal act or the alleged dacoity with the culprits named in the FIR. The presence of the petitioner immediately before the occurrence or thereafter has also not been shown by the evidence collected by the I.O. It is needless to mention that mere suspicion cannot take the place of proof. 4. In the case Union of India v. Prafulla Kurnar Samal and another ( AIR 1979 SC 366 ). their lordships have laid down certain principles for consideration while framing the charge against the accused. Their lordships have held as under : "The judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. 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. 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. 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. In exercising his jurisdiction under Section 227 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 Board probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. " 5. Applying the aforesaid principles of law and scanning the evidence collected by the I.O. in this case, there is no tangible evidence to prima facie show that the petitioner had entered into a criminal conspiracy with the co-accused Hari, Rajesh, Arjun @ Patodi and their companions, who committed the alleged dacoity. 6. In such circumstances, the learned Special Judge has mis-read and wrongly evaluated the evidence collected by the I.O. and committed an illegality in holding that prima facie the offence punishable under section 395 read with section 120-B Indian Penal Code was made out against the petitioner and in ordering for framing the charge for the said offence. Therefore, the impugned order qua the petitioner pradeep Kumar only cannot be sustained. 7. The result of the above discussion is that this revision petition is allowed and the order dated 6th January, 1995 passed by the learned Special Judge, Dacoity Affected Area, Bharatpur, qua the petitioner Pardeep Kumar only, whereby he ordered for framing the charge against the petitioner for offences under section 395, 397 and 120-B IPC, is hereby set aside and the petitioner is discharged of the said offences. 8. A copy of this order be sent to the lower court immediately.Revision Allowed. *******