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Madhya Pradesh High Court · body

2005 DIGILAW 129 (MP)

Dhananjaya v. State of M. P.

2005-01-25

S.L.JAIN

body2005
JUDGMENT Invoking extraordinary jurisdiction of this Court under section 482 of the Code of Criminal Procedure (henceforth, the 'Code'), petitioner has filed this petition for quashing the proceedings pending in the Court of Special Judge, Satna in Sessions Trial No. 106/2004 for offences punishable under sections 364, 395, 397, 328 and 120-B of the IPC. The case of the prosecution is that on 12.1.2004, Tirath Prasad Gupta was kidnapped from Uchehra by certain persons. After investigation, the petitioner and 11 other co-accused were arrested and charge-sheet was filed against them. On the basis of material on record, Special Judge, Satna framed charges against all the accused persons for the offences punishable under sections 364, 395, 397, 328 and 120-B of the IPC. It is the case of the petitioner that he owns a public telephone booth bearing telephone No. 6122529064. It is alleged against him that some of the co-accused contacted the family members of the kidnapped Tirath and also some of the other co-accused on aforesaid telephone number. There is no evidence that this telephonic conversation was made to his' knowledge. Normally, a public telephone booth is run by a person employed by the owner for the purpose. It is not necessary that owner should be available at the telephone booth round-the-clock. Usually, in a public telephone booth the customers talk on telephone in a closed cabin. It is not necessary that the owner or his employee present at the telephone booth should hear conversation of each customer talking on the telephone. The morals of the profession of running a public telephone booth require that the owner of the telephone booth or his employee should not hear the conversation of a customer talking on telephone. It is also the case of the petitioner that he has been arrested and charge-sheeted only on the memorandum of co-accused Anil Singh alias Vikki. There is no evidence that he participated in the offence of kidnapping along with other co-accused. He has not been identified by any of the prosecution witnesses. The petitioner also averred that as there is no material whatsoever against him, the charge-sheet filed against him for the offences punishable under sections 364, 395, 397, 328 and 120-B of the IPC, charges framed against him and proceedings pending against him are liable to be quashed. He has not been identified by any of the prosecution witnesses. The petitioner also averred that as there is no material whatsoever against him, the charge-sheet filed against him for the offences punishable under sections 364, 395, 397, 328 and 120-B of the IPC, charges framed against him and proceedings pending against him are liable to be quashed. I have heard Shri Arvind Singh, learned counsel for the petitioner and Shri J.K. Jain, G.A. for the State. Learned counsel for the State submits that there is sufficient evidence against the petitioner that the telephone of his public telephone booth was used by co-accused persons for making contacts with the family members of kidnapped Tirath and some co-accused persons. It is also alleged that petitioner also talked to the family members of kidnapped Tirath Prasad for ransom. From the statement of co-accused Anil Singh alias Vikki recorded under section 27 of the Evidence Act a fact has been disclosed that the public telephone booth of petitioner Dhananjaya was used for contacting the relatives of the kidnapped person. Dhananjaya also had a talk with the relatives of the kidnapped person for demand of ransom. Analysis of telephone call statement submitted by Vishal Chopra, JTO, Maihar, reveals that the telephone No. 6122529064 installed in the public telephone booth of the petitioner was used for the purpose of contacting the relatives of the kidnapped person and also some of the co-accused and other connected persons. Therefore, it cannot be said that there is no, prima facie, evidence against the petitioner Dhananjaya. Looking to the aforesaid material, at this stage, it cannot be said that no offence under sections 364, 395, 397,328 and 120-B of the IPC is made out against the petitioner. There is also, prima facie, material on record to show that the petitioner and other co-accused Sunil and Anil, the sons of Vindeshwari Prasad, contacted different persons on telephone. The voice of the persons who contacted relatives of Tirath Prasad Gupta was recorded. Whether this voice was of the present petitioner or not is a matter which will be decided by the trial Court after recording the relevant evidence. The voice of the persons who contacted relatives of Tirath Prasad Gupta was recorded. Whether this voice was of the present petitioner or not is a matter which will be decided by the trial Court after recording the relevant evidence. Whether the public telephone booth was being managed by the petitioner or his employee or by some other person on his behalf or whether the customers used to talk on telephone from cabin or whether because of scruples the petitioner does not hear the conversations of the customers are the matters which are to be decided after recording of evidence by the trial Court. At this stage, in the absence of any evidence a finding cannot be recorded that at the relevant time some person other than the petitioner was managing the public telephone booth owned by the petitioner or the petitioner had no knowledge of conversations made by co-accused persons with regard to kidnapping of Tirath Prasad Gupta or that the petitioner was not a pat1yto the conspiracy. The fact that the public telephone booth of the petitioner was used in the crime is a very strong circumstance against him. Section 120-A and 120-B of the IPC brought the law of conspiracy in India by making the overt act unessential when conspiracy is to commit a punishable offence. The offence of conspiracy is agreement between two or more persons to do any illegal act or a legal act by illegal means which mayor may not be done but the very agreement is an offence and punishable. Overt act in a case of conspiracy consists in the agreement of the parties. The very plot is an act itself and the act of each of the parties is promise against promise enforced for a criminal object or for use of criminal means completes the offence. In a case of conspiracy it is difficult to establish the same by direct evidence. Conspiracy can be proved by circumstantial evidence showing connection between the alleged conspiracy and the act done pursuant to that conspiracy. When from the allegations made in the charge sheet it can be inferred that accused entered into a conspiracy with other person to commit an offence, there is justification in framing the charge against that accused and in directing him to stand for trial. When from the allegations made in the charge sheet it can be inferred that accused entered into a conspiracy with other person to commit an offence, there is justification in framing the charge against that accused and in directing him to stand for trial. The gist of the offence of conspiracy lies in forming the scheme or agreement between the parties. The material on record in this case and its totality is sufficient to raise a strong suspicion that there was well thought out plan to commit kidnapping and allied offences. At this stage it cannot be seen that the evidence is filmsy or suffers from various infirmities or there is inconsistencies in the evidence and the same lacks corroboration from independent source. Ordinarily, criminal proceedings initiated against accused must be tried under the provisions of the Code and this Court would be reluctant to interfere with such proceedings at an interlocutory stage. It is not the allegation of the petitioner that he is being prosecuted with any ulterior' motive with a view to harass him. Normally, this Court in exercise of jurisdiction under section 482 of the Code, can interfere only in those cases where the entire evidence, if taken at its face value and accepted in its entirety does not constitute an offence alleged. The power of quashing the criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare case. This Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR and the facts found during investigations. In the order dated 6.7.2004, passed by the trial Judge while framing the charges against the petitioner, a brief survey of the material available against him has been given. This is not the stage when this Court can enter into the meticulous consideration of the material available. I refrain from going into the details of the matter, least any observation which I make might prejudice either party to the trial. This is not a case which calls for the interference of this Court in the present proceedings of extraordinary nature. The petition is, therefore, dismissed.