Research › Search › Judgment

Rajasthan High Court · body

2015 DIGILAW 413 (RAJ)

Arvind Kumar Jain v. State of Rajasthan

2015-02-13

NISHA GUPTA

body2015
Hon'ble GUPTA, J.—This revision petition under Section 397/401 Cr.P.C. has been filed against the order dated 1.5.2012 passed by Sessions Judge, Jaipur in Cr. Case No. 29/2011 by which charges have been framed against the petitioner under Section 120-B IPC read with Sections 302, 364, 346, 193 and 218 IPC. 2. The brief facts stated in the petition are that one Dara Singh @ Daria was killed at 5.20 AM on 23.10.2006 by the police officials belonging to Special Operation Group, (SOG). Rajendra Choudhary has lodged the First Information Report No. 396/2006 registered at Police Station Mansarovar, Jaipur. On 4.11.2006, Sushila Devi widow of Dara Singh also preferred a private complaint before the Judicial Magistrate vide complaint No. 9/2006 alleging that for the past many years there had been enmity between her husband and Sukhia Gang. The said gang had kidnapped Sumer Singh Fegedia, a friend of her husband and murdered him. As the other gang was having close association with the Superintendent of Police, SOG, Mr. A. Ponnuchami and to give benefit to other group her husband has been murdered mercilessly and the police have gave it name of encounter. Other allegations have also been made that her husband was declared a most wanted notorious criminal and prize money of Rs. 25,000/- was declared on his arrest and this order has been made by the present petitioner. This complaint was sent for investigation under Section 156(3) Cr.P.C Thereafter on the order of the Apex Court, CBI had registered the First Information Report and investigated the matter and filed charge-sheet for the above offences and the petitioner has been charged as above, hence this petition. 3. The contention of the petitioner is that the CBI has investigated the matter in a very tainted and fabricated manner just to implicate the petitioner falsely, he has been charged with the aid of Sec. 120-B IPC but there is no evidence of any conspiracy of the present petitioner with any one of the accused. Initially, the case of the prosecution was that the petitioner has conspired with Mr. Initially, the case of the prosecution was that the petitioner has conspired with Mr. R.S. Rathore whereas against Mr Rathore, initially no charge-sheet has been filed and a supplementary charge-sheet has been filed against him without any further investigation and now the petitioner has been charged that he entered into a conspiracy with other companions who are not named, no charge of conspiracy along with Mr Rathore has been framed against the petitioner, hence the CBI had come up with an inconsistent plea. The further contention of the petitioner is that there is no evidence to connect the petitioner with the crime. Allegations against the petitioner is that he recommended for declaration of award on the deceased which are finally ordered by the Director General of Police. He has also recommended interception of some mobile phone numbers including of Dara Singh and he had phone calls with Mr R.S. Rathore six times from 4.10.2006 to 19.10.2006. The action for declaring award or recommendation for interception of mobile phone were official duty of the petitioner. He was only an intermediary in the proceedings. The S.P. Churu has recommended for declaration of award long back on 18.1.2006, petitioner also recommended for the same and finally DGP has approved the award on 18.10.2006. Same is the story with interception of mobile phone. The file for interception was sent by SP, SOG. He was only an intermediary and after the approval of Home Secretary, the order of interception was taken directly by SOG. Present petitioner was not the head of SOG. He was Additional Director General of Crimes and there were three IGs under him. SOG was part of Special Crime and economic offences wing which was headed by SP (Special Crime and Economic Offences), he was not the immediate head of SOG. There is no material to presume or prima facie show that the petitioner was in conspiracy with Mr Rajendra Rathore or any member of SOG. Per contra, the contention of the CBI is that the court below has considered the evidence on record under the provisions of Section 227 Cr.P.C. and 228 Cr.P.C., there is no scope under these provisions to weigh the evidence and furthermore in revisional jurisdiction, this Court has only very limited jurisdiction only to consider that no miscarriage of justice should be done and if case is of no evidence then only interference is needed. Admittedly, Daria @ Dara Singh has died a homicidal death on 23.10.2006 CBI came in picture on 9.4.2010 when Sushila Devi, wife of deceased has filed a petition before the Apex Court. Earlier police officer has made the information, Apex Court has ordered for the investigation, the CBI has not shifted any stand but in both the charge-sheets, the stand of CBI is consistent that the present petitioner has hatched conspiracy with Rajendra Singh Rathore and it had been carried out with the aid of Arshad Ali and others. The scope of interference is very limited at the stage of framing charges. Even if weaker than prima facie case exists or if material on record show that the accused might have done the act, the accused should have been charged. The petitioner is guilty of conspiracy and Dara Singh has been murdered in furtherance of conspiracy. There is sufficient evidence to charge the present petitioner. After the phone calls of petitioner and Rajendra Singh Rathore, the SOG has been mobilised and team has been sent for the search of Dara Singh. He has been apprehended with the aid of Vijay Kumar Choudhary handed over to SOG and he has been kept in secret places at Lalvas and thereafter murdered and it has been named as encounter, hence there is ample evide-nce to connect the petitioner with the crime and no interference is needed. 4. Heard the learned counsel for the parties and perused the record of the case as submitted by both the parties. Written submissions have also been submitted as well by both the limbs. 5. The first contention of the CBI is that scope under Section 397 Cr.P.C is very limited one and reliance has been placed on Ashish Chandra vs. Asha Kumar & Anr., (2012) 1 SCC 680 wherein in Para 20 it has been held as under: “The High Court has in its revisional jurisdiction appraised the evidence which it could not have done. It is the trial court which has to decide whether evidence on record is sufficient to make out a prima facie case against the accused so as to frame charge against him. Pertinently, even the trial court cannot conduct roving and fishing inquiry into the evidence. It has only to consider whether evidence collected by the prosecution discloses prima facie case against the accused or not.” 6. Pertinently, even the trial court cannot conduct roving and fishing inquiry into the evidence. It has only to consider whether evidence collected by the prosecution discloses prima facie case against the accused or not.” 6. There cannot be any dispute regarding the law laid down in Ashish Chandra (supra). Further the CBI has relied upon State of Bihar vs. Ramesh Singh, (1977) 4 SCC 39 whereby the Apex Court has clarified the test and consideration which would be applied by the Court under Section 227 Cr.P.C. and 228 Cr.P.C. and held as under: “4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If "the Judge consider that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing", as enjoined by Section 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- ... (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused", as provided in Section228. Reading the two provisions together in juxta position, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and Judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if. on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227”. Further reliance has been placed on Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368 in which also after considering the principle enunciated in Prafulla Kumar Samal (supra), it has been reiterated as under: “12. Now the next question is whether a prima facie case has been made out against the appellant. Further reliance has been placed on Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368 in which also after considering the principle enunciated in Prafulla Kumar Samal (supra), it has been reiterated as under: “12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers u/Sec. 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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; by and large 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 justified to discharge the accused, and in exercising jurisdiction u/Sec. 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad proba-bilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India vs. Prafulla Kumar Samal).” 7. Further reliance has been placed on Ankit Kapoor vs. Ramesh Chandra & Anr., (2012) 9 SCC 460 where the Court has gone to the extent and held that even the case is weaker than a prima facie case, the Court should proceed against the accused persons. Reliance has also been placed on Central Bureau of Investigation, Hyderabad vs. K.Narayan Rao, (2012) 9 SCC 512 where also same principles have been reiterated and it has been made clear that under Section 227 Cr.P.C., the Court should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if they were conducting the trial. Further reliance has been placed on Vinay Tyagi vs. Irshad Ali @ Deepak & ors., (2013) 5 SCC 762 where same principles have been reiterated and held that even the case is weaker than a prima facie case then also the Court should not interfere in exercise of revisional jurisdiction. Further reliance has been placed on Sheoraj Singh Ahlawat & ors. vs. State of Uttar Pradesh & Anr., (2013) 11 SCC 476 where the Court has held as under: “if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.” 8. Reliance has also been placed on Rishipal Singh vs. State of Uttar Pradesh & Anr., (2014) 7 SCC 215 . Per contra, the counsel for the petitioner has submitted that law laid down in State of Karnataka vs. L. Munishwamy & ors., AIR 1977 SC 1489 (1) is still a good law wherein it has been held as under: “These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses a comparatively wider discretion in the exercise of which. it can determine the question whether the material on the record, if unrebutted, is such on the: basis of which a conviction can-be said reasonably to be possible.” 9. The contention of the petitioner is that charges could be framed only when the material on record if remained unrebutted conviction can be reasonably possible. it can determine the question whether the material on the record, if unrebutted, is such on the: basis of which a conviction can-be said reasonably to be possible.” 9. The contention of the petitioner is that charges could be framed only when the material on record if remained unrebutted conviction can be reasonably possible. The counsel for the CBI Mr Sarfraj Haidar Khan submits that law laid down in Munishwamy (supra) is not a good law and reliance has been placed on State of Maharashtra vs. Somnath Thapa, AIR 1996 SC 1744 wherein law has been laid down as under: “According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence". 10. Contention of the CBI is that the test is now that accused might have committed the offence and material on record should be considered on its face value and no enquiry is justifiable. At this stage CBI has also placed reliance on Ramesh Singh (supra). Counsel for the petitioner has rightly pointed out that law laid down in Munishwamy (supra) is by three judged bench and it cannot be overruled by the Bench of same strength as Somnath Thapa (supra) has not overruled the law laid down in Munishwamy but has bye-passed the law laid down in Munishwamy (supra). The counsel for the petitioner has further relied upon State of M.P. vs. Sheetla Sahai & ors., 2009 Cr.L.J. 4436 where the Court has held as under: “In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the chargesheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in favour of the accused. The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, Sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial.” Further reliance has been placed on Yogesh @ Sachin Jagdish Joshi vs. State of Maharasthra, AIR 2008 SC 2991 where same principles have been reiterated. Reliance has also been placed on Union of India vs. Prafulla Kumar Samal & Anr., AIR 1979 SC 366 (1); Dilawar Babu Kurane vs. State of Maharashtra, AIR 2002 SC 564 ; Sarabjit Singh & Anr. vs. State of Punjab & Anr., AIR 2009 SC 2792 and Supdt. & Remembrance of Lgal Affairs, West Bengal vs. Anil Kumar Bhunja & ors., AIR 1980 SC 52 (1). 11. vs. State of Punjab & Anr., AIR 2009 SC 2792 and Supdt. & Remembrance of Lgal Affairs, West Bengal vs. Anil Kumar Bhunja & ors., AIR 1980 SC 52 (1). 11. Hence in the light of the above, law could be summarized that while framing charges, the Court can weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out and after scanning the material on record with the limited purpose as stated above if a grave suspicion against the accused has been shown which has not been explained properly then the court is justified in framing charges while passing the order under Section 227 Cr.P.C. and 228 Cr.P.C., the Court would consider the broad probabilities of the case. The total effect of the evidence, the documents produced before the Court and any basic infirmities appearing in the case and so on, the Court can also look into the record submitted by defence which is beyond suspicion or doubt and the accused cannot be deprived of taking advantage of the material which the prosecution itself has placed on record. It is well settled principle of criminal jurisprudence that at the time of framing of the charge, the trial court should not act either as a mute witness or as a post office for the prosecution or as the mouth-piece of the prosecution. At the time of framing of the charge, the trial court has to be aware of the fact that the accused is entitled to a fair trial under the Constitution of India. Thus, in order to ensure fairness, the trial court has to sift the evidence to the limited extent of discovering whether strong suspicion exists against the alleged accused or not ? It is further required to examine the record to see if the ingredients of the alleged offence exist or not ? Lastly, it has to correlate the alleged conduct of the accused to the ingredients of the offence. 12. In the light of above, consideration of the material on record in the present case shows that it is not in dispute that the present petitioner was Additional DG (Crimes) at the relevant time. The first fact which has been brought against the petitioner is that there were phone call six times between the petitioner and Rajendra Singh Rathore from 4.10.2006 to 19.10.2006. The first fact which has been brought against the petitioner is that there were phone call six times between the petitioner and Rajendra Singh Rathore from 4.10.2006 to 19.10.2006. The contention of the CBI is that they hatched a conspiracy on the phone for the murder of deceased Daria and after the first phone call on 4.10.2006, the SOG came in action and he went in search of deceased on 5.10.2006 again when there was a phone call between the two on 16.10.2006, the team of the SOG went in search of deceased two times in a day which clearly shows the conspiracy between the two. The counsel for the petitioner has brought to the notice of the Court that there is a clear statement of Sushila Devi, complainant herself and Tila, PW/79 that SOG was already trying to arrest Dara Singh from 25-26 September, 2006 meaning thereby that before the first mobile talk between Rajendra Rathore and petitioner dated 4.10.2006 and there is nothing on record to show that what was the talks between the two persons and unless the phone calls are deciphered into the conversation it cannot be relied upon and reliance has also been placed on Section 65-A of the Evidence Act in which evidence of mobile call have not been included. Hence taken on its face value, the phone calls between the two does not create any suspicion and reliance has been placed on Babubhai Bhimabhai Bokhiria and Anr. vs. State of Gujarat and Ors., AIR 2014 SCW 2152 wherein in Para 21, the Apex Court has held as under: “The other evidence sought to be relied for summoning the Appellant is the alleged conversation between the Appellant and the accused on and immediately after the day of the occurrence. But, nothing has come during the course of trial regarding the content of the conversation and from call records alone, the Appellant's complicity in the crime does not surface at all.” Further reliance has been placed on Prahlad Sharma vs. State of Raj., 2010 (2) WLN 164 where this Court has held as under: “The call details as submitted by the Police are also not helpful, as it is not unusual for a person to speak to his son or to his servant. Merely because the petitioner had called up his son and his servant, would not lead to the conclusion that the petitioner was involved in the alleged murder. After all the contents of the call are unknown. Therefore, what conversation had taken place between the petitioner and his son or servant cannot be deciphered.” Here in the present case the facts are not in dispute that Mr Rathore was Minister for Parliamentary Affairs and Assembly was in session hence phone call between the two could not caste any suspicion. 13. In the case in hand nothing has been brought on record regarding the contents of the conversation and call records alone could not brought the complexities of the petitioner in the crime. It has been stressed upon by the CBI that on the phone calls between the two, the SOG has came in action and they went in search of deceased but the charge-sheet speaks itself that deceased Daria was wanted in many cases he was involved in more than 20 cases and he was a hardened criminal and nothing has been brought on record that after phone call between the two, the petitioner had made phone calls to any members of the SOG or member of SOG has made any phone call to petitioner, hence the chain is not complete and it could not be presumed by reasonable prudence that the phone calls have any probable connection with the murder of the deceased. 14. The other fact which has been brought against the petitioner is that he made recommendation to put the mobile phone of Dara Singh and Vijay Choudhary etc. on interception by narrating wrong facts that already an award was declared on Dara Singh and he is involved in case of murder. 14. The other fact which has been brought against the petitioner is that he made recommendation to put the mobile phone of Dara Singh and Vijay Choudhary etc. on interception by narrating wrong facts that already an award was declared on Dara Singh and he is involved in case of murder. The case of the CBI is that the deceased was not involved in any offence from last 20 months but counsel for the petitioner has rightly pointed out that one FIR 143/2005 dated 29.12.2005 was got registered at Police Station Malsisar under Section 302 IPC and charge-sheet was filed against the deceased Dara Singh under Section 299 Cr.P.C hence the material brought on record by the prosecution is false on the face of it and CBI has not controverted the fact that FIR No. 143/2005 was registered against the deceased and he was wanted in that hence the material on record taken on its face value could not reveal that any false statement has been prepared by the petitioner for the declaration of award or for the interceptions of phone calls. Sushila Devi herself has pleaded before the Apex Court that prize of Rs. 5,000/- was declared on her husband which has been increased by 25,000/-. The contention of the CBI is that no such award was declared against the deceased and to support this contention, statement of Hari Ram Meena has been recorded who was S.P. Churu since June, 2005 to April, 2007 and he has testified the fact that when he was in office as Churu, SP he has not get declared any prize on the deceased but at the same time, he has submitted that the deceased was involved in many crimes. Hari Ram has stated only as regards period from June 2005 to April 2007. The statement of Mr Meena seems to be contrary to the record relied by the C.B.I., as the S.P., Churu has moved the papers for declaration of award on Dara Singh on 18.1.2006 and Mr Meena has further stated that in communication to Additional S.P., SOG, he has recommended to enter the name of deceased in the list of most wanted 10 accused and on his arrest suitable prize be declared. The CBI has not investigated the matter whether prior to it any prize was declared on the deceased or not. The CBI has not investigated the matter whether prior to it any prize was declared on the deceased or not. The fact which has been brought on record by the CBI is that Sushila Devi has stated that prize was declared on her husband which was increased, hence there is nothing to show on record that any wrong facts have been mentioned for recommendation for interception of mobile or to declare award. The present petitioner was only an inter-mediator in the proceedings for declaration of award and putting the phone on interception. There is nothing on record to show that petitioner got the order of interception by way of submitting the false facts. Interception has not been done by the petitioner. Further it has been brought on record that in spite of the order of the interception, the phones have not been put to interception which has been further explained that interception was only with the intention to have the location of Vijay Choudhary and deceased and when on 18.10.2006, the deceased has called to Vijay Choudhary his location has been searched out and thereafter there was no need to putting the phones on interception. It clearly shows that the intention of putting the phone on interception or declaration of award were only with the purpose to apprehend the accused so he could be submitted to proper proceedings as the other wanted accused Vijendra Singh @ Tiliya has surrendered. It has also been brought on record that the request for interception was made by Junior Officers and it was forwarded to the petitioner and he has further forwarded it to Principle Secretary, (Home), Government of Rajasthan and with the sanction of the Principal Secretary (Home), the mobile phones have been put to interception. 15. The other circumstance or material which has been brought on record to book the petitioner with the crime is that hastily the petitioner has got the award declared on deceased after the first phone call from Mr. Rajendra Rathore on 4.10.2006 but facts have not been denied are that SP Churu has sent papers in relation to declaration of the award on Daria on 18.1.2006. On 6.2.2006 SP, Churu has also wrote letter to Mr. Mohan SP and in February, 2006 the process has started. The petitioner has also recommended for the same and Director General has declared the award. On 6.2.2006 SP, Churu has also wrote letter to Mr. Mohan SP and in February, 2006 the process has started. The petitioner has also recommended for the same and Director General has declared the award. The CBI has relied upon the statements of A.S. Gill, the former Director General of Police who has stated that in urgency and hurriedly, the petitioner has got the reward declared but the record shows that the proceedings were pending since January, 2006 and when on 29.12.2005 another FIR has been lodged against the deceased and he could not be arrested, the proceedings have been made mobilized. 16. It is also stated that wrong facts have been mentioned in the note-sheet that the deceased is the accused of murder. The fact has been brought on record that indeed the deceased was accused of murder as FIR No. 143/2005 was registered against him at Malsisar and fact which has been brought on record by the CBI is that from last 20 months, no case was registered against him also seems to be untrue. Initiation of the declaration of prize has been made by S.P. Churu and finally it has been declared by Director General of Police. The contention of the CBI is that he made the actions in urgency and hurriedly. Urgency is clear on the face of it as the deceased was wanted in not less than 20 cases and with reasonable prudence no one can probably presume that the act of the petitioner for recommendation of declaration of prize could be connected with the alleged murder of the deceased. 17. The other fact which has been brought on record by the CBI is that after declaration of award on 18.10.2006, the petitioner has kept the file in his custody since 2.2.2010 and statement of Kanhayalla Bairwa, Additional Director General CID, CB has been recorded who has stated that on 2.2.2010, the file was handed over to him by the petitioner. Be that as it may be, it has not been stated by the CBI that what was the purpose for which the file has been kept by the petitioner and how this fact could connect the petitioner with the conspiracy of crime. Be that as it may be, it has not been stated by the CBI that what was the purpose for which the file has been kept by the petitioner and how this fact could connect the petitioner with the conspiracy of crime. Apart from it, the petitioner has also relied upon the progress report filed by Additional S.P., Jaipur City (East) dated 16.2.2010 wherein it has been stated that during the investigation by police, the copies from the said file has been received by the Investigation Officer in 2008. If the file was with the petitioner it was not possible for the Investigation Officer to have the copies of the record. This fact goes against the CBI and no movement register has been brought on record which could show that the file was with the petitioner till 2.2.2010 hence all above material on record has no reasonable connection with the conspiracy or role of the petitioner with the crime. 18. The contention of the CBI was that petitioner hatched conspiracy with Mr Rajendra Singh Rathore. First charge-sheet has been filed against the petitioner and other persons and investigation against Mr Rajendra Rathore was kept pending under Section 173 (8) Cr.P.C and it has been mentioned that as regards role and participation of Mr Rajendra Rathore investigation is pending. Thereafter, the CBI took opinion from Attorney General of India, the then Mr Vahanvati and he gave opinion that facts are not sufficient to file charge-sheet against Mr Rajendra Rathore but thereafter without collecting any new evidence, CBI filed charge-sheet against Mr Rathore and now the petitioner has been charged to have conspiracy with his other companion. No charge has been framed against the petitioner for having conspiracy with Rajendra Rathore and contention of the petitioner is that inconsistent pleas have been taken by the CBI and reliance has been placed on Sardul Singh Caveeshar vs. State of Bombay, AIR 1957 SC 747 where it has been made clear that the prosecution could not be permitted to rely on alternative set of facts which are inconsistent, the prosecution can rely on direct and circumstantial evidence to prove one set of facts. Here in the present case, the case of the prosecution was that Mr Rajendra Singh Rathore had a motive to liquidate the deceased and petitioner also agreed to the same but now the petitioner has been charged on a different set of facts that he hatched conspiracy with other members of the team where admittedly, there is no material on record to show that petitioner ever made any contact with other co-accused A. Ponnuchami or Arshad Ali or any other member of the team. 19. The prosecution has not come with a case that the petitioner was knowing Dara Singh or he had any motive to kill Dara Singh and petitioner has relied upon State (Delhi Administration) vs. Gulzarilal Tandon, AIR 1979 SC 1382 wherein it has been held as under: “In case where the case of the prosecution rests purely on circumstantial evidence, motive undoubtedly plays an important part in order to tilt the scale against the accused.” 20. The CBI has submitted Sunil Clifford Daniel vs. State of Punjab, (2012) 11 SCC 205 and his contention is that motive may be operative in the mind of an accused and it cannot be even known to the victim of the crime and if evidence on record suggests that there was a motive to commit the crime it may be seen that the accused was having the same motive. There may be cases where chain of action turns into crime which is the case here and even absence of motive would not dislodged the entire prosecution if other circumstances leads to the hypothesis that accused has committed an offence and in the chain if the accused has participated or aided, the motive could be attributed to him also. There is no dispute about these propositions but here in the present case, the initial case of the prosecution was that petitioner has hatched conspiracy with Mr Rajendra Rathore but thereafter CBI has turned its stand and now totally different charges have been framed against the petitioner. The facts are also pertinent to note that wife of the deceased Sushila and brother of the deceased had made written complaint before the court but there is no story in the complaint that petitioner was having any conspiracy in the matter and there is no allegation against the petitioner in the two complaints. The facts are also pertinent to note that wife of the deceased Sushila and brother of the deceased had made written complaint before the court but there is no story in the complaint that petitioner was having any conspiracy in the matter and there is no allegation against the petitioner in the two complaints. It has also been submitted that there is no evidence of meeting of mind of the petitioner and Mr Rajendra Rathore. PW/275 Shaukat Ali and PW/278 Giraj Singh both are the constable drivers who have stated that petitioner never meet Mr Rajendra Rathore and there is no other evidence to show that Mr. Rajendra Rathore ever met the petitioner personally or otherwise. Nothing has been brought on record to presume the meeting of mind of the two for unlawful act of mrder of the deceased. 21. The contention of the CBI is that when the petitioner is charged with the offence of conspiracy the totality of the circumstances should have been seen. Generally for the conspiracy there cannot be any direct evidence hence on the probabilities and on material on record it should have been presumed and reliance has been placed on Ajay Aggarwal vs. Union of India & ors., (1993) 3 SCC 609 wherein it has been held as under: “A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable of for a criminal object or for the use of criminal means.” 22. Further reliance has been placed on Firozuddin Basheeruddin & ors. vs. State of Kerala, (2001) 7 SCC 596 : “Another major problem which arises in connection with the requirement of an agreement is that of determining the scope of a conspiracy - who are the parties and what are their objectives. The determination is critical, since it defines the potential liability of each accused. The law has developed several different models with which to approach the question of scope. The determination is critical, since it defines the potential liability of each accused. The law has developed several different models with which to approach the question of scope. One such model is that of a chain, where each party performs a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. No matter how diverse the goals of a large criminal organisation, there is but one objective: to promote the furtherance of the enterprise. So far as the mental state is concerned, two elements required by conspiracy are the intent to agree and the intent to promote the unlawful objective of the conspiracy. It is the intention to promote a crime that lends conspiracy its criminal cast.” 23. Contention of the CBI is that it is a model in which chain of actions have been done which ultimately resulted into the murder of deceased and petitioner is the complicity in the conspiracy and the motive of the petitioner was to meet objective of the conspiracy. The petitioner has relied upon Sherimon vs. State of Kerala, AIR 2012 SC 493 and contention of the petitioner is that there is nothing on record to establish meeting of mind between the two assuming that the petitioner has issued some official orders but taking them on its face value, it could not lead to conclusion that the petitioner has entered into the conspiracy of murder of deceased. Further reliance has been placed on P.K. Narayan vs. State of Kerala, (1995) 1 SCC 142 wherein in Para 10, the law has been summarized as under: “The ingredients of this offence are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means an act which by itself may not be illegal. therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it can not be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it can not be said that those circumstances are incapable of any other reasonable interpretation.” 24. In K.R. Purushottaman vs. State of Kerala, AIR 2006 SC 35 , it has been held as under: “To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal means is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts.” 25. Further reliance has been placed on Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao, 2012 Cri.L.J 4610, wherein it has been held that offence of criminal conspiracy cannot be deemed to have been established on mere suspicion and surmises which are not supported by cogent and acceptable evidence. Here in the present case, the material which has been brought on record is only that there are 6 phone calls between the petitioner and Mr Rajendra Rathore but admittedly, petitioner has not been charged for having any criminal conspiracy with Mr Rathore and in the first charge-sheet he has not been charge-sheeted and apart from it, no evidence to show that what conversation has been taken place between the two. Petitioner has not talked to any other member of SOG from 4.10.2006 to 19.10.2006, hence on this fact no reasonable man can have suspicion that the petitioner was having criminal conspiracy to murder the deceased. Petitioner has not talked to any other member of SOG from 4.10.2006 to 19.10.2006, hence on this fact no reasonable man can have suspicion that the petitioner was having criminal conspiracy to murder the deceased. As considered earlier the order of recommendation for declaring prize on deceased or having his phone on interception were official acts and could not connect the petitioner with the crime as no false facts have been mentioned in it as alleged by the C.B.I. The stress of the CBI was that all these acts have been done in furtherance of conspiracy but as considered earlier from the material on record it is explained by the petitioner that no false facts have been stated by him and law laid down in Praful Kumar (supra) clearly required the Court to weigh the evidence for limited purpose of pointing out whether there is a prima facie case against the accused or not and facts which disclose suspicion against the petitioner and has not been properly explained then only the Court is justified in framing charges but in the present case on weighing the evidence for the limited purpose, the facts which have been brought against the petitioner have been explained and looking to the broad probabilities of the case, all the actions undertaken by the petitioner were to apprehend the deceased as he was a hardened criminal, 20 cases were pending against him thereafter one FIR 143/95 was also registered against him in which he was also absconding. 26. Further the case of the CBI was that on 19.10.2006 Vijay Choudhary has been apprehended by SOG and he has been released after having assurance from him that he will hand over the deceased to SOG. It is only an inference drawn by the CBI and there is nothing on record to strengthen this contention and it is usual and settled practice in police to seek help of the Mukhbir's to trace the offenders. Admittedly, as per the prosecution Vijay Choudhary has been released from custody on 20.10.2006. There is evidence to this effect that thereafter Vijay Choudhary and Dara Singh were found together at Fatehpur and Asgar Peer has also stated that Dara Singh went with Vijay Choudahry. Phone location of Vijay Choudhary has also been brought on record till 22.10.2006 only. Admittedly, as per the prosecution Vijay Choudhary has been released from custody on 20.10.2006. There is evidence to this effect that thereafter Vijay Choudhary and Dara Singh were found together at Fatehpur and Asgar Peer has also stated that Dara Singh went with Vijay Choudahry. Phone location of Vijay Choudhary has also been brought on record till 22.10.2006 only. The case of the CBI is that thereafter Vijay Choudhary has handed over Dara Singh to SOG Team but nothing has been brought on record to substantiate this inference and further contention of the CBI is that after hading over of Dara Singh to S.O.G., he was kept at Lalvas at a secret place and contention of the CBI is that tower location of SOG Team has been found near Jaipur Airport and thereafter at Lalvas, hence it could be presumed that Dara Singh was also with him but by no stretch of imagination on the strength of phone location of officers of S.O.G., it could be presumed that Dara Singh was handed over to them or he has been kept secretly. No phone location of Dara Singh has been brought on record and no evidence to the effect that Dara Singh has been handed to S.O.G., hence only on the tower location, it could not be presumed that Dara Singh was ever handed over to SOG or he was kept in a secret place in Lalvas. Even there is no evidence of phone location of Vijay Choudhary after 22.10.2006 whereas deceased has died admittedly on 23.10.2006 at 5.20 A.M., hence applying judicial mind on material on record and consideration of the material on record to see whether there is a sufficient ground for proceeding against the accused, no case is made out against the petitioner for charging him for the offence of conspiracy for murder or abduction. 27. The petitioner has also been charged for the offence under Section 218 I.P.C., the primary ingredient of the offence is to frame incorrect record to save the person from legal punishment. Here there is no iota of evidence to show that petitioner has acted in any way to save any person from legal punishment, hence charge under Section 218 I.P.C. is totally misreading of the facts. 28. Here there is no iota of evidence to show that petitioner has acted in any way to save any person from legal punishment, hence charge under Section 218 I.P.C. is totally misreading of the facts. 28. Further, the petitioner has been charged for the offence under Section 193 I.P.C. but to charge under Section 193 I.P.C. it is condition precedent that a complaint should be filed by the court or public servant concerned as required by Section 195 of Cr.P.C. but the court below has framed the charges against the petitioner in spite of bar under Section 195 Cr.P.C and admittedly, no complaint has been filed by any public servant or court concerned hence charges under Section 193 IPC are also not sustainable. 29. It is also pertinent to note that court below has ordered to frame charges against the petitioner with the observation that earlier on 25.8.2011 the matter has been considered at length and no opportunity of hearing has been awarded to petitioner in fact the court has ignored the basic principle that the decision of the prosecution cannot be accepted blindly to ask the accused to face a trial as order of framing charge affects the person's liberty substantially. 30. Objection has also been raised that the petitioner is a public servant, he has acted in discharge of official duty and protected under Sec. 197 Cr.P.C. As the material on record is not sufficient to sustain the order of framing of the charge as there is nothing on record to draw the inference that accused might have committed it, which carries some element of certainty but here the prosecution has erected its case only on imagination. The issue is left open as opinion on the same could adversely effect the case of either party. In view of the above, this petition is liable to be accepted and is accordingly allowed. The order dated 1.5.2012 passed by Sessions Judge, Jaipur in Cr. Case No. 29/2011 by which charges have been framed against the petitioner under Section 120-B IPC read with Sections 302, 364, 346, 193 and 218 IPC is quashed and set aside and the petitioner stands discharged from the above offences.