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2014 DIGILAW 382 (MP)

Saba D/o Late Wahid Farooqi v. C. B. I. Bhopal

2014-04-03

S.R.WAGHMARE

body2014
ORDER : 1. By this revision petition under section 397(1) read with section 401 of the Criminal Procedure Code, the petitioner Ms. Saba d/o Late Wahid Farooqi has challenged the order framing charge passed by the 4th Additional Sessions Judge in Sessions Trial No. 853/2012 on 21-7-2012 against the petitioner for offence under sections 120-B, 302 read with section 120-B and 201 of the Indian Penal Code. 2. The facts giving rise to the present revision are that on 16-8-2011 at about 11 a.m. in the morning a lady named Shahla Masood was found dead in her car in front of her house situated at Koh-e-fiza locality of Bhopal (M.P.). It was alleged that Shahla Masood was a political activist and business woman of Bhopal and an FIR was registered by Koh-e-fiza police station Bhopal initially, but on 3-9-2011 the FIR was registered by the CBI of Bhopal, it investigated the matter and filed a charge-sheet in May, 2012. The petitioner was arrested on 2-3-2012 for the offence under sections 120-B and 302 of the Indian Penal Code. The learned trial Court i.e. 4th Additional Sessions Judge, Indore has now passed the order framing charge on 21-7-2012 for offence under sections 120-B and 302 read with section 120-B and 201 of the Indian Penal Code and hence the present petition for quashment of the same. 3. Counsel for the petitioner has vehemently urged the fact that none of the aforesaid offences are made out against the petitioner. Even if the evidence on record is considered the offence of criminal conspiracy under section 120-B of the Indian Penal Code or any act to cause disappearance of evidence for offence under section 201 of the Indian Penal Code cannot be made out against the present petitioner. 4. Counsel vehemently urged the fact that the evidence on record, even if accepted on its face value, does not disclose the existence of criminal conspiracy as is being alleged. Similarly there is no material on record to indicate the commission of offence under section 201 of the Indian Penal Code i.e. causing of destruction of evidence. All that is evident from record is that a motorcycle which is alleged to have been in the possession of the accused petitioner accused No. 2 Ms. Saba was used in the offence. Similarly there is no material on record to indicate the commission of offence under section 201 of the Indian Penal Code i.e. causing of destruction of evidence. All that is evident from record is that a motorcycle which is alleged to have been in the possession of the accused petitioner accused No. 2 Ms. Saba was used in the offence. The validity of this evidence is also not worthy or reliable and no link has been established between the motorcycle and the commission of the offence of murder. Counsel placed reliance on Sajjan Kumar vs. Central Bureau of Investigation, 2010 (9) SCC 368 to state that the scope of sections 227 and 228 of the Criminal Procedure Code require the Judge to sift and weigh the evidence at the time of framing of charge and the Courts cannot act as a Post Office or a mouthpiece of the prosecution but it has to consider the broad probabilities of the case. Counsel vehemently urged the fact that although it has been alleged that the said vehicle motorcycle was used for “recce by the main accused” but the actual vehicle used for the recce was also alleged to be a black Pulsar motorcycle bearing No. MP-04-HR-6651 whereas the present vehicle was a red coloured (Bajaj Discoverer). 5. Similarly Counsel submitted that the alleged offence of conspiracy under section 201 of the Indian Penal Code along with co-accused Zahida is also not proved at all; except, the fact that the present applicant Saba was a good friend of Zahida Parvej and it is Zahida Parvej who gave supari to one Saqib Ali alias Danger (accused No. 3) to kill lady named Shehla Masood, a RTI activist and business woman of Bhopal (M.P.), whereas the criminal conspiracy to kill Shehla Masood was entered into by Zahida Parvej (accused No. 1) and Saqib Ali (accused No. 3) for a consideration of Rs. 3 lacs and the present applicant had no knowledge whatsoever about the same. Even from the record it is apparent that the applicant Saba was not at all involved in any way or was not a party to the agreement as alleged. And even if the diary entries of Zahida are considered on 15-8-2011 and 16-8-2011, the incident in the diary is after the murder of Shehla Masood and it cannot be taken into consideration to establish conspiracy. And even if the diary entries of Zahida are considered on 15-8-2011 and 16-8-2011, the incident in the diary is after the murder of Shehla Masood and it cannot be taken into consideration to establish conspiracy. Moreover the telephone loops mobile phone calls described by the respondent CBI in their reply to the present application only indicate conversation between the parties after the murder and it cannot establish the conspiracy prior to the murder and the ingredients of criminal conspiracy is that there must be agreement between two or more persons to do or causing to be done an illegal act and hence there could be a meeting of minds prior to the illegal act which is ‘the sine qua non’ of criminal conspiracy. Counsel relied on Kehar Singh and Others vs. State (Delhi Administration), (1988) 3 SCC 609 to state that the forming of the scheme or agreement between the parties is essential, mere knowledge would not be sufficient per se. 6. Counsel vehemently urged the fact that the entire case was concocted against the present applicant and in the charge-sheet, Saqib Ali alias Danger accused No. 3 and Jahida accused No. 1 were arrested on 28-2-2012. The present applicant was arrested on 2-3-2012 after the period of 3 days. The allegations that the applicant changed the red colour of the motorcycle which is the actually Bajaj Discover. Even if these allegations are considered, it is alleged that she removed the motorcycle Bajaj Discover from the house of Zahida Parvej and left it abandoned near a Kabristan from where it was found and recovered by the police. The motorcycle was recovered from an open place and Counsel countered that it could nowhere establish the nexus with the present applicant and in this way, there is not an iota of evidence on record to connect the present applicant with the crime for charge under section 201 of the Indian Penal Code which has wrongly been framed by the trial Court. 7. Counsel stated that there was no material whatsoever to indicate as to how the motorcycle was caused to disappear when it was recovered from an open place and it is alleged that the motorcycle was used by co-accused Zahida Parvez for carrying out the recce of the house of the victim. 8. 7. Counsel stated that there was no material whatsoever to indicate as to how the motorcycle was caused to disappear when it was recovered from an open place and it is alleged that the motorcycle was used by co-accused Zahida Parvez for carrying out the recce of the house of the victim. 8. Moreover even if the confessional statement of main accused Saqib Ali alias Danger (accused No. 3) is considered vide Ex.D/92, he has himself stated that he was using a black coloured Honda Activa Scooter for the recce and not the red motorcycle which is alleged to have recovered from the possession of the present applicant. Counsel prayed that an innocent person was being victimised merely because she was the friend of the main accused Zahid Parvej. There is no hard and concrete evidence against the applicant. Counsel prayed that the petition be allowed and the order framing charge be set aside. 9. Counsel for the respondent CBI per contra has vehemently opposed the contentions and stated that the trial is well under the way and 35 witnesses have already been examined and hence the revision has been rendered infructuous. Counsel prayed that even if the submissions are considered, there was ample evidence on record to connect the applicant with the offence as alleged against her. The diary entries of Zahida Parvez the main accused really established her love/intimate relationship for one Dhruv Narayan Singh, and the fact that Zahida Parvez was frustrated with his relations with other ladies especially deceased Shehla Masood and she has mentioned in the diary that along with her friend Saba Farooqi the present applicant accused, she used to follow Dhruv Narayan Singh, to check his movements. Her diary entry also indicated that she has decided to give supari (contract) for killing her rival Shehla Masood, the deceased; to one Shaqib Ali, who happened to be a history-sheeter at P.S. Tilla Jamalpura, Bhopal and thus Counsel submitted that accused Saba was an important link in the chain of events as well as a co-conspirator and knew everything about the commission of the offence of murder of Shehla Masood. The meeting of minds as required for criminal conspiracy are well existent and available on record. Counsel submitted that the petition was without merit and the same be dismissed. The meeting of minds as required for criminal conspiracy are well existent and available on record. Counsel submitted that the petition was without merit and the same be dismissed. Counsel further submitted that the conspiracy is well established from the diary entries of Zahida expressing that she was scared and had spent the day with accused Saba after Shehla Masood was murdered on 16-8-2011 well indicating that accused Saba was a part of the conspiracy and helped in execution of the same. 10. Another important link which cannot be marginalised or blinked away according to Counsel was the recovery of the mobile phone of present petitioner Saba and the mobile phone call details which clearly indicated that Zahida Parvej had conveyed to Saba Farooqi immediately that the plan had been executed and next course of action be taken immediately after the murder. Counsel also objected to the fact that the present applicant Saba Farooqi accused along with the other co-accused refused to undergo Lie Detection Test. Also considering the fact of red colour motorcycle Bajaj Discoverer it was found that this red motorcycle had been “snatched” by accused Saqib Ali on instructions of Zahida Parvez and it was painted red by the present accused Saba Farooqi and thereafter used by co-accused Zahida Parvez for carrying out the recce of the house of the victim. So also the vehicle was recovered on instructions of accused Saba the present applicant from an open place where it was abandoned by her vide memo under section 27 of the Evidence Act and the independent witness for recovery clearly established her involvement. This recovery clearly connects with the accused with the crime according to the Counsel. 11. Counsel submitted that the other important point that the applicant Saba cannot be charged for offence under section 201 of the Indian Penal Code is also baseless since the evidence in form of telephone call clearly establishes the relationship between co-accused Irfan, Saqib, Zahida and Saba Farooqi. The evidence D-130, D-132, 134, 136, 139 and 141 etc. are available on record. The evidence D-130, D-132, 134, 136, 139 and 141 etc. are available on record. Thus Counsel submitted that he opposed the submissions put forth by the Counsel for the applicant and it was a case of purely planning a murder in which the accused Saba Farooqi is also fully aware about the connection between accused Zahida Parvez and accused Saqib Ali to commit the murder and now the trial is well under the way. Counsel placed reliance on Santosh Kumari vs. State of Jammu and Kashmir and Others, (2011) 9 SCC 234 , Ashish Chadha vs. Asha Kumari and Another, (2012) 1 SCC 680 and R.S. Mishra vs. State of Orissa and Others, (2011) 2 SCC 689 to bolster his submissions. Hence Counsel prayed that the petition be dismissed. 12. On considering the above submissions, I find that what is to be considered at the time of framing of charge is whether there is a prima-facie case against the accused. The merits of the case or the evidence cannot be appreciated at this stage; and in the present case; if, the nature of the charge is considered; it is not a charge which involves direct liability but when the link is established the offence will be said to be made out or not. The mere existence of the link would suffice to make out the offences registered against the petitioner. Undoubtedly the Judge while considering the question of framing of charges under section 227 of the Criminal Procedure Code has power to sift and weigh the evidence but it is only for a limited purpose of finding out whether there is prima-facie case against the accused. When at the initial stage of framing of charge; if, there is a strong suspicion or evidence which leads the Court to think that there is a ground for prosecuting the accused; and that he has committed an offence, then it is not open for the Court to say that there is no sufficient ground for proceeding against the accused. State of Bihar vs. Ramesh Singh, AIR 1977 SC 2018 and Nirmaljit Singh Hoon vs. State of West Bengal, 1973 SCC (Cri.) 521 relied on. 13. Thus what is indicated is; that the test is, whether there is sufficient ground for proceeding and not whether there was sufficient ground for conviction. State of Bihar vs. Ramesh Singh, AIR 1977 SC 2018 and Nirmaljit Singh Hoon vs. State of West Bengal, 1973 SCC (Cri.) 521 relied on. 13. Thus what is indicated is; that the test is, whether there is sufficient ground for proceeding and not whether there was sufficient ground for conviction. Therefore the scope of section 227 of the Criminal Procedure Code is very specific, the trial Court is not expected to make a roving or fishing enquiry into the evidence available before it. It has to consider is whether the evidence collected by the prosecution discloses prima-facie case against the accused or not Ashish Chadha vs. Asha Kumari and Another, (2012) 1 SCC 680 relied on. 14. Moreover framing of charge or altering adding the charges under sections 211, 215 and 464 of the Criminal Procedure Code also permitted under the provisions of law at any stage of the trial; then in the present case considering the stage in which the trial has progressed; it would not now be proper to interfere with the framing of charge. Besides the telephone conversations and the diary entries clearly established that there was some relationship of the present accused Saba Farooqi with the main accused Zahida Parvez and the crime committed. Any further observations on merits is likely to affect the merits of the trial. So also it would be profitable to rely on State of M.P. vs. S.S.B. Johari and Others, 2000 (2) MPLJ 322 , whereby the Court held thus: “It is settled law that at the stage of framing the charge, the Court has to prima-facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima-facie case is made out for proceeding further, then a charge has to be framed.” [Also See: Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, 2000 (1) SCC 138 and State of Maharashtra and Others vs. Somnath Thapa and Others, 1996 (4) SCC 659 ] 15. Consequently, considering the totality of the submissions and record, the petition is dismissed as being without merit.