JUDGMENT R. N. BISWAL, J. : The petitioners have sought for quashing of the criminal proceeding initiated against them in G.R. case No.173 of 2005, arising out of Loisingha P.S. case No.171 of 2005 pending on the file of J.M.F.C., Loisingha and the orders dated 3.1.2006 taking cognizance of the offence under Sections 379/411/120-B/34 of I.P.C. and issuing N.B.Ws. of Arrest against them. 2. Succinctly stated prosecution is that on 25/26.10.2005 at about 1.30 A.M. while Ganesh Padhan, the Security Supervisor of 220 K.V. GRID Co. Tower line along with other security guards was engaged in patrolling duty, saw one trekker and one truck coming from village Kuturapalli towards village Sakma. On suspi¬cion, they detained both the vehicles, on the midway, between village Sakma and Kuturapalli. During this time 10 to 12 persons sitting in the truck jumped out of it and fled away in darkness. Similarly 3 to 4 persons sitting in the trekker took to their heels. Immediately the Security Supervisor and the guards sur¬rounded both the vehicles and found three persons including the driver sitting in the truck. On query, the driver disclosed his name as Harbinder Singh and the other two as Md. Azgar and Kanhu Bag. On search of the truck, the security staff found five quin¬tals of AAA Jobra Electric wire, recently snapped,weighing about two quintals to have been kept in it. The Security Supervisor talked over cell phone to the O.I.C. of Loisingha Police Station and on his arrival at the spot, lodged a written report before him, which was registered under Sections 379/411/34 I.P.C. and was investigated into. After completion of investigation charge sheet was submitted against accused persons including the present petitioners for the offence under Sections 379/411/120-B/34 of I.P.C. and after going through the case diary the J.M.F.C., Loisingha took cognizance of the said offences against them. 3. As mentioned earlier, petitioners have challenged the very initiation of the proceeding and the subsequent orders of taking cognizance of the offence under Sections 379/411/120-B/34 I.P.C. and issuing N.B.Ws of Arrest against them. 3. As mentioned earlier, petitioners have challenged the very initiation of the proceeding and the subsequent orders of taking cognizance of the offence under Sections 379/411/120-B/34 I.P.C. and issuing N.B.Ws of Arrest against them. Relying on the decisions in Uma Shankar Mishra v. State of Orissa; (2003) 25 O.C.R.611, Shri Narsingha Jena v. State of Orissa; 93 (2002) C.L.T.389 and Saju v. State of Kerala; 2001 (II) OLR (SC) 4, learned counsel appearing for the petitioners submitted that unless there was material on record to show that there was an agreement between two or more persons to do an illegal act or to do an act which was not illegal by illegal means, the offence under Section 120(B) of I.P.C. could not be attracted. In the case at hand, there is no material whatsoever to show that there was an agreement between either of the petitioners with the co-accused for commission of theft of electric wire and accordingly urged to quash the criminal proceeding initiated and the subse¬quent orders of cognizance taken under Section 379/411/120(B)/34 of I.P.C. and issuance of N.B.Ws. of Arrest against them. Section 120A of I.P.C. defines criminal conspiracy. It reads as follows : “120A. Definition of criminal conspiracy-When two or more persons agree to do, or cause to be done- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides 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.” So, the essential ingredients of Section 120A of I.P.C. are- (1) the accused conspired with two or more persons (2) in doing so the accused either did or caused to be done: (i) an illegal act, or (ii) an act though not in itself illegal, by illegal means. There must be material as held in the decisions cited (supra) and the definition of the criminal conspiracy quoted above to show that there was an agreement between the parties for doing an illegal act or an act though not illegal by illegal means. Generally conspiracy is hatched in secrecy. There must be material as held in the decisions cited (supra) and the definition of the criminal conspiracy quoted above to show that there was an agreement between the parties for doing an illegal act or an act though not illegal by illegal means. Generally conspiracy is hatched in secrecy. It is not possible in each case to adduce direct evidence of the same. The offence can be proved from circumstantial evidence. Furthermore, it is not necessary for a conspirator to remain present at the scene of crime. Now in the touch stone of the ratio of the above decisions and the definition of criminal conspiracy as quoted above, it is to be tested whether there is material to proceed against the petitioners under Sections 379/411/120-B/34 of I.P.C. 4. On perusal of the statement of Harbinder Singh @ Viky, the driver of the truck, it is found that on 18.10.2005 as per the direction of Indrapal Singh, the owner of the truck, he carried some articles from Raighar to Bolangir and unloaded the same on 19.10.2005 near the Circuit House, Bolangir. Thereafter, he contacted Indrapal Singh, who instructed him to stay there for one to two days, as he had to lift some goods from Bolangir. As per the direction of Indrapal Singh, he talked over phone with Santosh Sharma, one of the petitioners, who instructed him on 25.10.2005 to keep the truck near Gandhi Nagar Post Office where he would send two boys. Accordingly, Harbinder Singh took the truck near Gandhi Nagar post office and kept it there. At about 9 to 10 P.M. accused Aku @ Md. Azgar, the Munsi of accused Nabi Hussain, a dealer in scrap materials and accused Kanhu Bag came there sat in the truck and told him to drive it to Loisingha on the pretext that the goods of accused Nabi Hussain would be loaded there at a godown. Accordingly he drove the truck towards Loisingha, but accused Md. Azgar and Kanhu Bag asked him to stop the truck near Tel river, where the electric wire were loaded. After loading the electric wire, while they were returning, on the way they were intercepted by the Security Supervisor and his staff. 5. Accordingly he drove the truck towards Loisingha, but accused Md. Azgar and Kanhu Bag asked him to stop the truck near Tel river, where the electric wire were loaded. After loading the electric wire, while they were returning, on the way they were intercepted by the Security Supervisor and his staff. 5. It transpires from the statement of Rohit Chouhan that on 25.10.2005 as per their previous plan Aku @ Md.Azgar and Kanhu Bag talked with accused Santosh Sharma (petitioner) and came to Bolangir to arrange a truck. He also confessed that they commit¬ted theft of electric wire in several occasions from Jharsuguda, Bargarh, Barapali, Patnagarh and Dunguripalli areas and in each occasion either accused-petitioner Santosh Sharma or his maternal uncle Pradeep Sharma (petitioner) used to arrange truck for such theft. No doubt previous conduct of the accused is not admissible under law, but at the stage of taking cognizance admissibility or otherwise of evidence is not required to be gone into. 6. It is found from the statement of accused Nabi Hussain, a dealer in scrap materials that on 25.10.2005 during morning hour accused Rohit Chouhan came and asked him to send a truck, if he intends to purchase electric wire. Accordingly, he contacted accused-petitioner, Pradeep Sharma for a truck to carry aluminium wire. Without knowing the place where the aluminium wire were to be loaded and the destination he demanded Rs.25,000/- as hire charges. Thereafter, accused Santosh Sharma (petitioner) asked Nabi Hussain to send his Munsi and accordingly, he sent accused Md. Azgar and Kanhu Bag to him. 7. It is well settled that act, action or statement of an accused cannot be used as evidence against the co-accused, but there is an exception to it in case of conspiracy as laid down under Section 10 of the Evidence Act. To attract the said provi¬sion, first it is necessary to establish a prima facie case of conspiracy, where after the provision under Section 10 of the Evidence Act can be placed into service. In the present case prima facie it appears from the statement of the witnesses that there was a conspiracy for commission of electric wire. So the provision under Section 10 of the Evidence Act can be placed into service. Accordingly the statement of accused Harbinder Singh, Nabi Hussain, Rohit Chouhan and Kanhu Bag can be relied upon. In the present case prima facie it appears from the statement of the witnesses that there was a conspiracy for commission of electric wire. So the provision under Section 10 of the Evidence Act can be placed into service. Accordingly the statement of accused Harbinder Singh, Nabi Hussain, Rohit Chouhan and Kanhu Bag can be relied upon. To proceed with a criminal case against a person, it is not neces¬sary to prove that there are sufficient materials to establish the accusation against him. A roving inquiry is not required at that stage to find out whether the accused would be ultimately found guilty or not. It is the duty of the trial Court. If there is prima facie material against an accused, the case can proceed against him. In the present case, as found from the statement of Harbinder Singh, Nabi Hussain, Rohit Chouhan and Kanhu Bag and other witnesses the petitioners agreed to arrange a truck for commission of theft of electric wire. When without knowing the place wherefrom the electric wire were to be loaded and the destination where the same would be unloaded, accused Pradeep Sharma (petitioner) demanded Rs.25,000/- as hire charge of the truck and his nephew accused Santosh Sharma (petitioner) arranged the truck which was kept standing as per the previous plan near the head Post Office of Bolangir, it prima facie appears that they had conspired for commission of theft of the electric wire and in furtherance of that arranged the truck. Under such facts and circumstances of the case, the CRLMC stands dismissed with a word of caution that nothing that has been stated above should be taken as established. If the prosecu¬tion case has to be sustained it must be proved at the trial in accordance with law. CRLMC dismissed.