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2021 DIGILAW 175 (GUJ)

JAYDIP DINESHCHANDRA JOSHI v. STATE OF GUJARAT

2021-02-25

B.N.KARIA

body2021
JUDGMENT : By way of present application, petitioner has challenged the order dated 19.02.2018 passed below an application Exh. 46 in Criminal Case No. 1188 of 2010 by the Ld. Chief Judicial Magistrate, Kutch at Bhuj, whereby the application preferred by the petitioner u/s. 227 of Code of Criminal Procedure praying for discharge is rejected as well as the order dated 10.12.2018 passed by Ld. Additional Sessions Judge, Kutch at Bhuj dismissing Criminal Revision Application No.28 of 2018. 2. The brief facts of the present case are as under: That petitioner joined his service of State Government as Deputy Collector. On 26.01.2001, there was an earthquake experienced in the State of Gujarat, whereby, the epicenter was located at Bhuj, wherein, a lot of destruction in terms of life and property had occurred and therefore, Government had decided to rehabilitate the affected persons and passed number of resolutions to that effect. To classify the damage, G.1 to G.5 categories were made and category certificates were issued by different authorities like Mamlatdar, City Survey Superintendent, Chief Officer & Deputy Collector. It is submitted that the grain market of Bhuj was totally affected by the earthquake and all the affected persons, who were having their shops, were required to be rehabilitated and accordingly one of the trusts was granted 17 acres of lands by the Government with various conditions, one of which as that the trust has to obtain Collector's certificate about allottee being earthquake affected. The Land was allotted at the market rate, which was prevailing at that point of time vide Resolution dated 03.09.2002. On 04.12.2003 the Collector, Bhuj, by way of a reasoned order with various conditions, allotted land bearing Survey No.363 paiki situated at Bhuj on paying market value in five different installments & then possession of the land was handed over to the trust. That, the said order was passed by imposing number of conditions, which were binding to the trust. That, the allotment of land was already done in the year 2003 vide order passed by the Collector, Bhuj on 04.12.2003. That on 08.07.2005 petitioner came to be transferred from Panchmahal to Bhuj and had joined the posting when almost all land related process including possession of land was already completed. That, the allotment of land was already done in the year 2003 vide order passed by the Collector, Bhuj on 04.12.2003. That on 08.07.2005 petitioner came to be transferred from Panchmahal to Bhuj and had joined the posting when almost all land related process including possession of land was already completed. That after two years of the said transfer of the petitioner, the Collector, Bhuj wrote a letter to the Deputy Collector, Bhuj, directing to carry out a detailed inquiry with regard to the irregularities committed by the trust and after carrying out the inquiry, a detailed report was submitted by the Deputy Collector, Bhuj i.e. the petitioner. That in pursuance to the said detailed inquiry, the Deputy Collector, Bhuj, i.e. the petitioner submitted the first report, wherein, the entire situation was described in detail. In the first report itself it was clearly written that trust has not obtained Collector's certificates & pointed out many irregularities of the trust & suggested if someone has wrongly sought any aid, police complaint should be filed against him. That the said report was filed subject to further inquiry. That a second interim report was submitted by the Deputy Collector, Bhuj i.e. the petitioner to the Collector, Bhuj in furtherance to the earlier report dated 15.09.2007. In the said report also the petitioner has clearly mentioned that as per the order dated 04.12.2003 passed by the Collector and as mentioned in condition of the said order, the certificates were to be issued at that relevant point of time, however, the same were not done till date. That, the said task can be carried out by a team headed by the Deputy Collector and it can be ensured that only those persons, who are granted certificates by the Collector are entitled for the benefits and otherwise, the benefits already entailed by the persons, who are not having such certificates, can be again procured by the Government. Till then, the further inquiry was kept pending. That final report in furtherance of the earlier reports was submitted to the Collector, Bhuj point wise showing breach of trust reiterating the facts that Collector has not given certificate to the trust and if the beneficiaries have wrongly obtained the allotment, without fail, a police complaint is required to be filed in that regard. That final report in furtherance of the earlier reports was submitted to the Collector, Bhuj point wise showing breach of trust reiterating the facts that Collector has not given certificate to the trust and if the beneficiaries have wrongly obtained the allotment, without fail, a police complaint is required to be filed in that regard. So it cannot be said that the report filed by the petitioner is for the benefit of the other accused persons. That petitioner came to be transferred from Bhuj to Ahmedabad. Thereafter Collector, along with the consideration of the reports, himself issued notice to beneficiaries for the breach of conditions to the trust wherein the trust was asked to explain the allegations about the breach of conditions. During the said process, the reports filed by the petitioner were also considered by the Collector and pursuant thereto, the Collector, ordered, that the allotment of the plots to the 317 beneficiaries are proper and legal & the allotment of plots for 60 was cancelled. Final report submitted by the petitioner was even considered by the Superior Officer and at no point of time, doubt was created with regard to the reports of the present petitioner as the same were not challenged, by any authority. That pursuant to the order passed by the Collector, Bhuj, a private complaint came to be registered by a private complainant Henry James Chako being Criminal Inquiry Case No.26 of 2007 for the offences punishable under Section 200, 203, 217, 465, 466, 467, 471, 472, 474, 475, 485, 406, 409 and 120(B) of the IPC. Ld. Magistrate was pleased to pass an order of investigation u/s. 156(3) of Cr.P.C. to C.I.D. Crime Bhuj, and thereafter, the FIR came to be registered as M. Case No. 1 of 2008. Present petitioner was not named in the FIR nor there were any allegations leveled against the petitioner in the entire FIR. Thereafter, during the course of investigation, the petitioner came to be arrested. In the meantime, the investigation came to be concluded and charge sheet came to be filed being charge sheet No.2 of 2010, wherein, the petitioner was arraigned as accused no.6. In the entire papers of the charge sheet as per the say of the petitioner only cursory allegation was made against the petitioner that the reports prepared by the petitioner were inappropriate. The petitioner approached the Ld. In the entire papers of the charge sheet as per the say of the petitioner only cursory allegation was made against the petitioner that the reports prepared by the petitioner were inappropriate. The petitioner approached the Ld. Sessions Judge praying for regular bail. However, the same came to be rejected. Thereafter, the petitioner approached this Hon'ble Court by way of filing Criminal Misc. Application No. 6783 of 2010 and this Court, was pleased to release the petitioner on regular bail by recording findings that the petitioner had joined the post on 08.07.2005 as Deputy Collector, Bhuj and therefore, there was no question of any conspiracy with any other accused. A further findings was recorded in the order by this Court that the only allegations against the petitioner was regarding the inquiry made by the petitioner and the report submitted, which was also considered by the Superior Officer and no grievance was made at that point of time. It was further observed that there is no direct or indirect involvement of the petitioner in the present offence. 3. Then petitioner had approached the Ld. Chief Judicial Magistrate, Kutch at Bhuj by way of an application below Exh. 46 inter alia praying for discharging him from the Criminal Case No.1188 of 2010 and the same came to be rejected by way of a non-speaking order. Being aggrieved and dissatisfied by the order, petitioner preferred Criminal Revision Application No.24 of 2016 before the learned Additional Sessions Judge, Kutch at Bhuj and same came to be rejected again by way of a non-speaking order. The petitioner was constrained to approach this Court by way of filing Special Criminal Application No. 9982 of 2017 challenging both the orders of the Ld. Magistrate as well as the Ld. Sessions Judge. This Court, was pleased to quash both the orders passed by the Courts below and was further pleased to remand the discharge application of the petitioner to the Ld. Magistrate to decide it afresh. Thereafter, the Ld. Chief Judicial Magistrate was pleased to rehear the discharge application of the petitioner filed below Exh. 46 and was pleased to reject the discharge application of the petitioner. The petitioner, thereafter, challenged the order passed by the Ld. Chief Judicial Magistrate before the Ld. Sessions Judge by way of filing Criminal Revision Application No.28 of 2018 but the said revision application was rejected by the Ld. Session Judge. 46 and was pleased to reject the discharge application of the petitioner. The petitioner, thereafter, challenged the order passed by the Ld. Chief Judicial Magistrate before the Ld. Sessions Judge by way of filing Criminal Revision Application No.28 of 2018 but the said revision application was rejected by the Ld. Session Judge. The petitioner was under suspension almost about nine years due to pendency of criminal case against him, petitioner approached this Court by way of filing Special Civil Application No. 18344 of 2015, wherein this Court rejected the said petition. Then petitioner filed Letters Patent Appeal No.972/2016, wherein this Court was pleased to deliberate upon the situation and was pleased to direct the competent authority to consider the possibility of allowing the petitioner to perform duties by revoking the order of suspension before the next review and to give him a suitable posting subject to final outcome of the said appeal. Petitioner being aggrieved and dissatisfied by vide order dated 19.02.2018 passed by learned Magistrate rejecting his application discharge as well as order dated 10.12.2018 passed by learned Sessions Court confirming the order of ld. Magistrate, he has approached this Court. 4. Heard learned advocate for the petitioner and learned Public Prosecutor for the respondent-state. 5. Learned advocate for the petitioner submits that orders passed by the Courts below are illegal, erroneous and against the provisions of law. That courts below committed a grave error of law and facts by passing the impugned orders without appreciating the fact that the petitioner had prepared the reports as per the order of the Collector and had submitted the said reports to the Superior Officer. That Superior Officer never took any objections of the said reports. That even if all the reports are perused, it clearly transpires that the reports are dealing with each any every conditions of Resolution of the Government, wherein also, the petitioner has categorically stated that number of beneficiaries were yet to obtain certificate from the Collector. That petitioner had given an opportunity to all the beneficiaries of hearing as well as producing all the evidences in support of their claim to be the beneficiaries as per the Resolution passed by the Government. Accordingly, the petitioner had forwarded not less than 365 files along with the documentary evidences produced by the beneficiaries alongwith the final report dated 25.04.2008. Accordingly, the petitioner had forwarded not less than 365 files along with the documentary evidences produced by the beneficiaries alongwith the final report dated 25.04.2008. That when the petitioner has performed his official duty and has also submitted the reports along with documentary evidences, it cannot be termed that the reports filed by the petitioner are “Hollow or Shallow” much less being a part of conspiracy, which is hatched by the co-accused persons. That considering the entire papers of the chargesheet, there is no iota of evidence suggesting that the petitioner has conspired with the main accused persons. That earthquake had taken place on 26.01.2001 and till June 2005, petitioner was not holding his office as Deputy Collector, Bhuj. Hence there was no question of any conspiracy with any of the accused as the petitioner had joined as Deputy Collector at Bhuj on 08.07.2005. It is further argued that there was no sufficient material with regard to conspiracy against the present petitioner. That the entire offence along with the hatching of conspiracy was over prior to 06.10.2005 and it is not the case of the prosecution that petitioner had played any role in commission of main offences as alleged in the FIR. That since the date of the FIR, i.e. almost about 9 years, the petitioner was placed under suspension due to the pendency of the criminal case against him. Hence, it was requested by learned advocate for the petitioner to allow the present application. In support of his arguments Ld. Advocate for the petitioner has relied upon the following judgments referred in: (1) 2018 (1) GLR 159; (2) 2010 (2) SCC 398 ; (3) 2019 (2) GLR 1058 ; (4) 2019 (3) SCC 330; 6. Learned Public Prosecutor for the respondent-State has strongly objected the submissions made by learned advocate for the petitioner and submitted that after thorough investigation, chargesheet was filed by the Investigating Officer against the petitioner. That during the investigation, it was clearly found that present petitioner had hatched criminal conspiracy along with other co-accused persons. That it cannot be a ground for discharge as the name of the present petitioner was not shown in the FIR and was arraigned an accused during the investigation. That evidence clearly shows about involvement of the present petitioner and learned JMFC Court as well as learned Sessions Court have rightly discussed and appreciate the same in their orders respectively. That it cannot be a ground for discharge as the name of the present petitioner was not shown in the FIR and was arraigned an accused during the investigation. That evidence clearly shows about involvement of the present petitioner and learned JMFC Court as well as learned Sessions Court have rightly discussed and appreciate the same in their orders respectively. That investigating agency has also revealed prima facie involvement of the present petitioner as he being a Deputy Collector of the State Government, who has hatched criminal conspiracy with other co-accused persons. That chargesheet was filed along with the statements of the witnesses and documents clearly satisfy the charges under Sections 200, 205, 217, 465, 466, 467, 471, 472, 474, 475, 485, 406, 409 and 120(B) of the Indian Penal Code. Learned Public Prosecutor has distinguished judgments relied upon by the learned advocate for the petitioner, arguing that they are not applicable to the present case. It is further argued by Ld. Public Prosecutor that complaint was filed by the third party against earthquake affected Bhuj Bajar Navnirman Charitable Trust. That prosecution has never permitted/directed to any government officer to register the FIR. That accused No.1 had also preferred a quashing petition with a request to quash the impugned complaint and chargesheet. That petition preferred by the accused No.1 was rejected by this Court. That thereafter accused No.1 challenged the order passed by this Court rejecting his quashing petition before the Hon'ble Apex Court by preferring SLP No.895 of 2010.That it is high time to proceed with the file as it is pending since last more than 10 years. That in an order passed below Exh.46, learned Magistrate has observed his satisfaction about possibility of accused might have committed the offence. That further scrutiny of the evince is not required to be made by this court. That subsequently chargesheet has been filed which clearly shows the part of the conspiracy. That revision application preferred by the petitioner being Criminal Revision Application No. 24 of 2016 was also dismissed by the learned Additional Sessions Judge, Kutchh at Bhuj on 10.12.2018 and now this is a third round of this litigation. That High Court will not re appreciate the material placed on record. No patent error of jurisdiction made by the learned Trial Court in dismissing the application for discharge, which was filed by the present petitioner. That High Court will not re appreciate the material placed on record. No patent error of jurisdiction made by the learned Trial Court in dismissing the application for discharge, which was filed by the present petitioner. That this was the independent offence committed by the present petitioner. That yet charge is not framed by the concerned Trial Court. Hence, it was requested by learned Public Prosecutor to confirm the orders passed by the learned Trial Courts below and dismiss present application. 7. Having considered the facts of the case, arguments advanced by learned advocate for the petitioner as well as learned Public Prosecutor for the respondent-State and chargesheet papers produced on record, it appears that on account of earthquake experienced in the State of Gujarat on 26.01.2001, lots of destruction in terms of life and property had occurred including the City of Bhuj. As a part of rehabilitation, the affected persons were given certain benefits by Government issuing several notifications. One of the trust namely Bhuj Bajar Navnirman Charitable Trust was granted 17 acres of lands by the Government with various conditions, one of which was a trust has to obtain Collector's certificate about allottee being earthquake affected by an order of collector, Bhuj dated 04.12.2003, land bearing Survey No.363 paiki situated at Bhuj was alloted to the trust imposing various conditions and on paying market value in five different installments. The petitioner thereafter came to be transferred from panchmahal to Bhuj and joined his new posting on 08.07.2005 when almost all land related process including possession of land was already completed. It appears that after two years of the said transfer of the petitioner, Collector, Bhuj wrote a letter to the Deputy Collector, Bhuj on 08.09.2007 directing him to carry out a detail inquiry in respect of the irregularities committed by the trust. The Deputy Collector i.e. present petitioner, after carrying out the inquiry, submitted detail report on 15.09.2007. In the said report, entire situation was described that trust has not obtained certificate from the Collector & pointed out main irregularities of the trust. In the report it was suggested that if someone has wrongly sought any aid, police complaint should be filed against him. The said report was filed subject to the further inquiry. In the said report, entire situation was described that trust has not obtained certificate from the Collector & pointed out main irregularities of the trust. In the report it was suggested that if someone has wrongly sought any aid, police complaint should be filed against him. The said report was filed subject to the further inquiry. It appears from the record that thereafter the second interim report was submitted by the present petitioner in a capacity of Deputy Collector, Bhuj on 29.10.2007 to the Collector Bhuj in connection with the previous report dated 15.09.2007. In the second report, it was mentioned that as per the order dated 04.12.2003 passed by the Collector, as per the condition No.8, certificates were to be issued at that relevant point of time. However, the same were not done till date. It was further pointed out that the said task can be carried out by the team headed by the Deputy Collector and it can be ensured that only those persons, who are granted certificates by the Collector, were entitled for the benefits and otherwise, the benefits already entailed by the persons, who were not having such certificates, can be again procured by the Government. It also appears from the record that on 25.04.2008, final report in furtherance of the earlier reports was submitted by the petitioner to the Collector, Bhuj. In the final report it was pointed out the breach of trust, reiterating the facts that Collector has not given certificate to the trust and if the beneficiaries have wrongly obtained the certificate, a police complaint is required to be filed. Thereafter it also appears that petitioner was transferred from Bhuj to Ahmedabad on 23.06.2008. The Collector, after considering of the reports submitted by the petitioner, issued notice to beneficiaries for the breach of conditions to the trust and sought explanation. The Collector, Bhuj, then passed an order on 25.03.2009, stating that allotment of the plots to the 317 beneficiaries were proper and allotment of plots for 60 beneficiaries were cancelled. It also appears that reports submitted by the petitioner was considered by the Superior Officers and at no point of time, any doubt was created in respect of the reports, nor it was challenged. It also appears that reports submitted by the petitioner was considered by the Superior Officers and at no point of time, any doubt was created in respect of the reports, nor it was challenged. It also appears that pursuant to the order dated 25.03.2009 passed by the Collector, Bhuj, a private complaint was registered by a private complainant namely Henry James Chako being Criminal Inquiry Case No.26 of 2007 for the offence punishable under Sections 200, 203, 217, 465, 466, 467, 471, 472, 474 ,475, 485, 406, 409 and 120(B) of the IPC. It also appears that learned Magistrate was pleased to pass an order of investigation u/s. 156(3) of Cr.P.C. to C.I.D. Crime Bhuj, and thereafter, the FIR came to be registered as M. Case No. 1 of 2008 before the C.I.D. Crime, Bhuj Branch, Rajkot Zone. It appears that petitioner was not named in the FIR nor any allegations were leveled against him in the entire FIR. It also appears that during the course of investigation, petitioner was arrested on 24.02.2010 and meanwhile, investigation was concluded and charge sheet was filed being charge sheet No.2 of 2010 wherein petitioner was arraigned as an accused no.6 and only cursory allegations were made against the petitioner. That the reports prepared by the petitioner were inappropriate. Thereafter petitioner prayed for his release on bail by preferring Criminal Misc. Application No. 6783 of 2010 before this Court, which was allowed by this Court vide order dated 02.08.2010. Thereafter the petitioner filed an application Exh.46 before the learned Chief Judicial Magistrate, Kutch at Bhuj with a request to discharge him from Criminal Case No.1188 of 2010 but the said application was rejected by order dated 30.01.2016 by the learned Chief Judicial Magistrate. Being dissatisfied with the order, a criminal Revision Application No.24 of 2016 was preferred by the present petitioner before the court of learned Additional Sessions Judge, Kutch at Bhuj which was also rejected by order dated 30.11.2017. Thereafter, the petitioner approached this Court by filing Special Criminal Application No. 9982 of 2017 challenging both the orders of Ld. Magistrate as well as the Ld. Sessions Judge. This Court vide order dated 18.01.2018 was pleased to quash both the orders passed by the Courts below and was pleased to remand the discharge application of the petitioner to the Ld. Magistrate to decide it afresh. Thereafter, the Ld. Magistrate as well as the Ld. Sessions Judge. This Court vide order dated 18.01.2018 was pleased to quash both the orders passed by the Courts below and was pleased to remand the discharge application of the petitioner to the Ld. Magistrate to decide it afresh. Thereafter, the Ld. Chief Judicial Magistrate was pleased to rehear the discharge application of the petitioner. 8. It appears from the submissions made by learned advocate for the petitioner and learned Public Prosecutor for the respondent-State that the reports submitted by the petitioner were never challenged before any of the authorities on the ground as alleged by the prosecution in the case. Petitioner was never subjected to any departmental inquiry in respect of the aforesaid reports. It appears that petitioner was proceeded under the footing that reports prepared by the petitioner are “Hollow and Shallow”. From the chargesheet papers, there is nothing on record that petitioner has joined his hands with the other co-accused persons as there was no material to that effect. From the record it also appears that since almost about 9 years petitioner was placed under suspension due to the pendecy of the criminal case against him. Petitioner approached this Court by filing Special Civil Application No.18344 of 2015 wherein this Court was pleased to reject the said petition vide order dated 18.01.2016 against which L.P.A. No.972 of 2016 was filed by the present petitioner wherein vide order dated 01.05.2018, this Court was pleased to direct the competent authority to consider the possibility of allowing the petitioner to perform his duties, by rejecting the order of suspension and to give him a suitable posting subject to final outcome of the said appeal. It is fact that as per the order of Collector, Bhuj, petitioner had prepared a report and submitted to the Superior Officer and Superior Officer has never raised any objection on the said report. 9. If we go through the reports and peruse the same, it appaers that each and every issues were dealt with stating that number of beneficiaries were yet to obtain certificate from the Collector. It was also stated that an opportunity to all the beneficiaries of hearing as well as producing the evidence in support of their case were given to the beneficiaries. It was also stated that an opportunity to all the beneficiaries of hearing as well as producing the evidence in support of their case were given to the beneficiaries. Petitioner has performed his duties and also submitted a report which cannot be termed that reports filed by the petitioner are “Hollow and Shallow” being a part of the conspiracy, which has hatched by the co-accused persons. If we consider the entire papers of chargesheet, there is no iota of evidence suggesting that petitioner is conspired with the main accused persons. Earthquake had taken place on 26.01.2001 and till June 2005, petitioner was not holding his office as Deputy Collector, hence there was no question of any conspiracy with any of the accused as the petitioner had joined as Deputy Collector at Bhuj on 08.07.2005. The allegations as to conspiracy cannot be attributed to the petitioner, prima facie, as there cannot be any meeting of mind, a role of only attributed regarding the inquiry made by the petitioner and reports submitted, which have also been considered by the Superior Officer and no grievance was made. Even as per the case of the prosecution, the alleged conspiracy came to be hatched prior to the entrustment of the inquiry to the petitioner, and therefore, merely assuming the fact that the petitioner has conspired with the other co-accused persons can not become the basis to frame charge against him. The essential ingredients of the offence of the “criminal conspiracy” is the agreement between two and more persons to commit an offence as enumerated and defined under Section 120(A) of the Indian Penal Code. Requirement of the law would be that there should be at least a proof to that effect that there was such agreement in existence. If we go through the material chargesheet papers placed on record, there is no such material against the present petitioner in support of the said allegations. 10. The Hon'ble Supreme Court in the case of John Pandian v. State, reported in 2010 (14) SCC 129 has observed in Para 55 as under: Inspite of the concurrent judgment of the trial and the appellate Court in this case, more particularly, against accused Nos. 10. The Hon'ble Supreme Court in the case of John Pandian v. State, reported in 2010 (14) SCC 129 has observed in Para 55 as under: Inspite of the concurrent judgment of the trial and the appellate Court in this case, more particularly, against accused Nos. 2 (Sivakumar), 4(Ubaiadulla), 5 (Yusuf), 6 (Abdul Kareem), and 7 (John Pandian) we had to consider the evidence afresh as we are not satisfied with the appreciation of the evidence at the trial and appellate stage. We find from the judgment that the Courts below have committed an error in first holding the existence of conspiracy and proceeding on that basis and then taking titbits in evidence to suggest that those titbits would connect the accused with the conspiracy as the conspirators. The law on conspiracy has been stated time and again by this Court. In Major E.G. Barsay v. State of Bombay reported in AIR 1961 SC 1762 , Subba Rao, J. observed: "The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act." In Halsbury's Laws of England the definition of conspiracy is as under: "Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law. The essence of the offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied or in part express and in part implied.. and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be". In American Jurisprudence, 2nd Edn., Vol.16, Page 129, the following definition of conspiracy is given: "A conspiracy is said to be an agreement between two or more persons to accomplish together a criminal or unlawful act or to achieve by criminal or unlawful means an act not in itself criminal or unlawful ... The unlawful agreement and not its accomplishment is the gist or essence of the crime of conspiracy 11. The unlawful agreement and not its accomplishment is the gist or essence of the crime of conspiracy 11. In another case The Hon'ble Supreme Court in the case of Keharsingh v. State (Delhi Administration) reported in AIR 1978 SC 1883 has observed as under: 271. It will be thus seen that the most important ingredient of the offence of conspiracy is the agreement between two or more persons to do an illegal act. The illegal act may or may not be done in pursuance of agreement, but the very agreement is an offence and is punishable. Reference to secs 120A and 120B IPC would make these aspects clear beyond doubt. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means is the very quintessence of the offence of conspiracy. 272. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will of ten rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter is. It is however, essential that the offence of conspiracy requires some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of two persons is necessary. Nor it is necessary to Prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient. Gerald Orchard of University of Canterbury, New Zealand (Criminal Law Review 1974, 297 at 299 explains the limited nature of this proposition: "Although it is not in doubt that the offence requires some physical manifestation of agreement, it is important to note the limited nature of this proposition. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. The law does not require that the act of agreement take any particular form and the fact of agreement may be communicated by words or conduct. Thus, it has been said that it is unnecessary to PG NO 185 prove that the parties "actually came together and agreed in terms" to pursue the unlawful object; there need never have been in express verbal agreement, it being sufficient that there was "a tacit understanding between conspirators as to what should be done." 12. It is undisputed fact that as per the case of the prosecution, the entire offence alongwith hatching of conspiracy was over prior to 06.10.2005. It is not the case of the prosecution that petitioner had played any role in commission of main offence as alleged in the FIR and in the chargesheet for the offence alleged under Sections 200, 203, 217, 465, 466, 467, 471, 472, 474, 475, 485, 406, 409 and 120(B) of the IPC. 13. In absence of any allegations in the entire papers of the chargesheet in relation to the said offence, petitioner cannot be prosecuted for such offences. Considering the fact that, material placed on record about conspiracy is not there against the petitioner. It appears that there was no sufficient material placed on record by the prosecution to involve the present petitioner with the offence in question. 14. This Court would like to refer a judgment of Hon'ble Apex Court in case of Union of India Vs. Prafulla Kumar Samal & another reported in 1979 SCR (2) 229) dealing with the similar question, Hon'ble Apex Court has observed as under: We might, state, to begin with, that so far as the present case (offences committed under the Prevention of Corruption Act) is concerned it is regulated by the procedure laid down by the Criminal Law Amendment Act under which the police has to submit, chargesheet directly to the Special Judge and the question of commitment to the Court of Session does not arise, but the Sessions Judge has nevertheless to follow the procedure prescribed for trial of sessions cases and the consideration governing the interpretation of section 227 of the Code apply mutatis mutandis to these proceedings after the chargesheet is submitted before the Special Judge. Before interpreting and analysing the provisions of section 227 of the Code so far as pure sessions trials are concerned, two important facts may be mentioned. Before interpreting and analysing the provisions of section 227 of the Code so far as pure sessions trials are concerned, two important facts may be mentioned. In the first place, the Code has introduced substantial and far reaching changes in the Code of 1898 as amended in 1955 in order to cut out delays and simplify the procedure, has dispersed with the procedure for commitment enquiries referred to m section 206 to 213 of the Code, of 1898 and has made commitment more or less a legal formality. Under the previous Code of 1898 the Magistrate was enjoined to take evidence of the prosecution witnesses after giving opportunity to the accused to cross-examine the witnesses 2nd was then required to hear the parties and to commit the acceded to the Court of Session unless he chose to act under section 209 and found that there was no sufficient ground for committing the accused person for trial. Under the Code the Committing Magistrate has been authorised to peruse the evidence and the documents produced by the police and commit the case straightaway to the Sessions Court if the case is one which is exclusively triable by the Sessions Court. Thus, it would appear that the legislature while dispensing with the procedure for commitment enquiry under the Code of 1898 has conferred a dual responsibility on the Trial Judge who has first to examine the case on the basis of the statement of witnesses recorded by the police and the documents filed with a view to find out whether a prima facie case for trial has been made out and then if such a case is made out to proceed to try the same. In our view the legislature has adopted this course in order to avoid frivolous prosecutions and prevent the accused from being tried of an offence on materials which do not furnish a reasonable probability of conviction. In the instant case, as the offences alleged to have been committed by the respondents fall within the provisions of the Act, the Special Judge has been substituted for the Sessions Judge, the procedure of the Sessions Court having been applied fully to the trial of such cases. Thus, it is manifest that the accused has not only one opportunity and that too before the Sessions Judge for showing that no case for trial had been made out. Thus, it is manifest that the accused has not only one opportunity and that too before the Sessions Judge for showing that no case for trial had been made out. This was obviously done to expedite the disposal of the criminal cases. Secondly, it would appear that under section 209 of the Code of 1898 the question of discharge was to be considered by a Magistrate. This power has now been entrusted to a senior Judge, namely, the Sessions Judge who is to conduct the trial himself and who has to decide before commencing the trial as to whether or not charges should be framed in a particular case against the respondents The discretion, therefore, is to be exercised by a senior and more experienced Judge so as to exclude any abuse of power. In this view of the matter, it is manifest that if the Sessions Judge exercises his discretion in discharging the accused for reasons recorded by him, his discretion should not normally be disturbed by the High Court or by this Court. Section 227 of the Code runs thus: "If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing." The words 'not sufficient ground for proceeding against the accused' clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not A necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. At the stage of section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.: The scope of section 227 of the Code was considered by a recent decision of this Court in the case of State of Bihar v. Ramesh Singh(1) where Untwalia, J. speaking for the Court observed as follows:" 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 pro poses 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". This Court has thus held that whereas strong suspicion may not take the place of the proof at the trial stage, yet it may be sufficient for the satisfaction of the Sessions Judge in order to frame a charge against the accused. Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment to the Sessions Judge has been made out. Even under the Code of 1898 this Court has held that a committing Magistrate had ample powers to weigh the evidence for the limited purpose of finding out whether or not a case of commitment to the Sessions Judge has been made out. 15. In the case of State of Bihar vs. Ramesh Singh reported in (1978) 1 SCR 257 , the Hon'ble Apex Court has observed as under: 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. 16. In the case of Dilawar Balu Kurane v. State of Maharashtra reported in (2002 (2) SCC135), the Hon'ble Apex Court has observed as under: Now the next question is whether a prima facie case has been made out against the appellant. 16. In the case of Dilawar Balu Kurane v. State of Maharashtra reported in (2002 (2) SCC135), the Hon'ble Apex Court has observed as under: Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 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 under Section 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 probabilities 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. 17. In the entire chargesheet, there is no specific role or material attracted to the present petitioner to involve him in the offence. There is no evidence on record to indicate that any criminal conspiracy was hatched by the present petitioner alongwith the accused persons. Only reports were prepared by the petitioner as per order of the Collector, Bhuj and thereafter, such reports were submitted. It appears that reports submitted by the petitioner were never doubted by the superior officer nor they were challenged, on the contrary, under the reports submitted by the petitioner, necessary actions were taken by the Collector, Bhuj after issuing necessary orders. 18. Present petitioner was not posted at Bhuj upto 18.07.2005 till lodgment of offence was completed. It appears that reports submitted by the petitioner were never doubted by the superior officer nor they were challenged, on the contrary, under the reports submitted by the petitioner, necessary actions were taken by the Collector, Bhuj after issuing necessary orders. 18. Present petitioner was not posted at Bhuj upto 18.07.2005 till lodgment of offence was completed. Only role played by the present petitioner was holding an inquiry as per the directions issued by the Collector, Bhuj observing “Hollow and Shallow” inquiry cannot made as a part of criminal conspiracy as observed by the learned Judge below. There is nothing on record or evidence available with the prosecution about committing some illegal act and hatching conspiracy by the present petitioner. Ingredients of offence of criminal conspiracy are missing in the chargesheet. To prove the charge under Section 120(B) of the I.P.C. read with Section 10 of the Indian Evidence Act, prima facie, prosecution has to led the evidence against the conspirators and to afford a reasonable ground for the Court to believe that two or more persons are members of conspiracy. To frame a charge of conspiracy under Section 120B of the Indian Penal Code, read with Section 10 of the Indian Evidence Act, 1872, there has to be prima facie evidence against the conspirators. In the instant case, no prima facie case is found against present petitioner being conspirators to establish alleged conspiracy. The evidence produced against the petitioner is neither admissible against him nor does it show the petitioner to be a part of any criminal conspiracy hatched with other co-accused persons. The learned JMFC as well as learned Sessions Judge has committed a grave error in rejecting the discharge application without dealing with the admissibility of the same observing “Hollow and Shallow” inquiry allegedly made by the petitioner. 19. In view of the above discussions and observations, present application deserved to be allowed and the same is allowed accordingly. 20. The order dated 19.02.2018 passed in an application below Exh. 46 in Criminal Case No. 1188 of 2010 by the Ld. Chief Judicial Magistrate, Kutch at Bhuj as well as the order dated 10.12.2018 passed by Ld. Additional Sessions Judge, Kutch at Bhuj in Criminal Revision Application No.28 of 2018 stands quashed and set aside. An application Exh.46 shall be allowed accordingly. 21. Rule is made absolute to the aforesaid extent. Chief Judicial Magistrate, Kutch at Bhuj as well as the order dated 10.12.2018 passed by Ld. Additional Sessions Judge, Kutch at Bhuj in Criminal Revision Application No.28 of 2018 stands quashed and set aside. An application Exh.46 shall be allowed accordingly. 21. Rule is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned Court through fax or email forthwith.