H.S. Thakur vs State of Himachal Pradesh

Justice Sanjay Karol, J.—Petitioner has assailed the order dated 17.8.2012 passed by Special Judge (Forests), Shimla in case No. 2-S/7 of 2009, titled as State of H.P. versus H.S. Thakur and others. In terms of the impugned order, petitioner stands charged for having committed an offence punishable u/s 120B of the Indian Penal Code alone, whereas co-accused stand charged for having committed offences punishable under Sections 120B, 468, / 420, 471, 201 of the Indian Penal Code. Additionally, one of the accused person has also been charged for having committed an offence punishable u/s 13(2) of the Prevention of Corruption Act. Before I deal with the legal issue, facts leading to the filing of challan before the trial Court, as noticed by the Court, are reproduced herein below:

I have gone through the Charge-sheet and other documents. As per prosecution case Sh. H.S. Thakur was Registering & Licencing Authority (Rural), Shimla and Sh. Kamal Kumar Rohal was the Licencing Clerk. Rajeev Chauhan and Gian Singh owned and possessed one truck bearing No. HP-21-0407 and driver was Ajeet Singh. In an accident he died on 18.9.1996. He possessed driving licence No. 520/93/SDB. Gian Chand Chauhan moved an application in February, 1997 to RLA, Rural, Shimla for LTV endorsement and the application form was never signed by Ajeet Singh and most of the columns were blank. No medical was annexed. It was never disclosed that Ajeet Singh had died in September, 1996. Without complying with the mandatory requirement of rules accused Kamal Kumar Rohal processed the application and Hukam Singh Thakur signed the endorsement and issued the licence. In January, 1997 a claim petition under the Motor Vehicles Act was preferred by Geeta for claiming compensation in respect of death of the occupant of the truck and the award was passed fastening the liability on Insurance Company though Insurance Company had taken the stand that driver did not possess the valid and effective driving licence. Matter was taken in appeal by the Insurance Company to the Hon''ble High Court of H.P. and it came to the notice of Hon''ble High Court that RLA, Rural Shimla had made endorsement for LTV without verifying the status of the driver, though driver had died in September, 1996. The relevant columns were blank and thus Hon''ble High Court of H.P. directed inquiry against RLA, Rural Shimla. Pursuant to the direction of the Hon''ble High Court of H.P. inquiry was made and present challan was preferred. During the course of investigation documents were seized. It has been revealed in the challan that Rajeev Chauhan moved an application before the SDJM, Rajgarh and the application was allowed by the Court and documents came in possession [including DL] of Rajeev Chauhan. A claim was preferred before the Workman Commissioner, Shimla and original licence was not produced, yet photocopy was placed on record.

In my considered view, there is no merit in the present petition. The law as to whether a person can be charged for having committed an offence punishable u/s 120B of the Indian Penal Code alone, is now well settled.

In fact, Hon''ble the Supreme Court, in the year 1956 itself, in Bimbadhar Pradhan versus State of Orissa, AIR 1956 Supreme Court 469 settled this proposition of law. Significantly, the Court took into account its earlier decision in Topandas Vs. The State of Bombay, , and held that the offence of criminal conspiracy consists in the very agreement between two or more persons to commit a criminal offence, irrespective of further consideration whether or not those offences have actually been committed. The very fact of conspiracy constitutes the offence and it is immaterial whether anything has been done in pursuance of the unlawful agreement. It is not essential that more than one person should be convicted of the offence of criminal conspiracy. It is enough if the Court is in a position to find that two or more persons were actually concerned in the criminal conspiracy.

In Bhanwar Singh and Another Vs. State of Rajasthan, the apex Court held that trial for offences committed u/s 120B read with Sections 467/ 471 and 420 of the Indian Penal Code, without sanction is neither illegal nor void. It further elaborated that the object of conspiracy has to be determined not only by reference to the sections of the penal enactment, referred to in the charge, but on a reading of the charges themselves.

In Hiralal Jain Vs. Delhi Administration, the Supreme Court has held that for framing a charge for offence u/s 120B of the Indian Penal Code, the Court has to prima facie take into account the material placed on record by the prosecution.

In Yash Pal Mittal Vs. State of Punjab, , the Supreme Court further held as under:

On a careful reading of the first charge although the words "cheating by personation" were not mentioned therein, no valid objection could be made as the entire recitals are clear and are also followed up by a specific mention of the offence of cheating by personation u/s 419, IPC. In the case of an offence of criminal conspiracy u/s 120A the very agreement, concert or league is the ingredient of the offence and it is not necessary that all the conspirators must know each and every detail of the conspiracy as long as they are co-participators in the main object of the conspiracy. In achieving the goal several offences may be committed by some of the conspirators even unknown to the others. The only relevant factor is that all means adopted and illegal acts done must be in furtherance of the object of the conspiracy. Even if some steps are resorted to by one or the other of the conspirators without the knowledge of the others, it will not affect the culpability of those others who were associated with the object of the conspiracy. In the present case, the main object of the criminal conspiracy is undoubtedly cheating by personation. The other means adopted inter alia are preparation or causing to prepare spurious passports, forging or causing to forge entries and endorsements in that connection and using or causing to be used forged passports as genuine in order to facilitate travel of persons abroad. The final object of the conspiracy in the first charge being the offence of cheating by personation the other offences described therein are steps though they are offences themselves in aid of the ultimate crime. The charge does not connote plurality of objects of the conspiracy. That the appellant himself was not charged with the ultimate offence which is the object of the criminal conspiracy is beside the point in a charge u/s 120B IPC as long as he is a party to the conspiracy with the end in view. That the appellant himself does not personate is also beside the point when he is alleged to be a collaborator of the conspiracy with that object. The object of the criminal conspiracy is absolutely clear and there is no substance in the argument that the object was merely to cheat simpliciter u/s 417, IPC. Since the object of the criminal conspiracy is cheating by personation u/s 419, IPC, punishable with imprisonment which may be extended to three years, Section 196A(2), Cr.P.C. is no bar to the trial in the absence of a sanction.

(Emphasis supplied)

The apex Court in State through Superintendent of Police, State through Superintendent of Police, CBI/SIT Vs. Nalini and Others, , has summarized various broad principles (ten in number) of law of conspiracy.

In The Government of N.C.T. of Delhi Vs. Jaspal Singh, the apex Court considered the ambit and scope of provisions of Section 10 of the Indian Evidence Act, 1872 and also Section 120B of the Indian Penal Code and held that so far as the charge u/s 120B IPC is concerned, it stands proved by showing that two or more persons have agreed to do or cause to do an illegal act or an act which is not illegal by illegal means and that some overt act was done by one of the accused in pursuance of the same. Where their common object or design is itself to do an unlawful act, the specification of such act itself which formed their common design would suffice and it would even be unnecessary or superfluous to further substantiate the means adopted by all or any of them to achieve such object.

In Sanichar Sahni Vs. The State of Bihar, , the apex Court had the occasion to deal with the case where the appellant before the Court alone had been charged for having committed an offence u/s 120B of the Indian Penal Code, whereas his co-accused were charged for having committed offences punishable under the other provisions of the Indian Penal Code. However, these co-accused persons were not charged for an offence punishable u/s 120B of the Indian Penal Code. Trial Court convicted and sentenced all the accused for the charged offences. The judgment of conviction and sentence was affirmed right upto the apex Court and it was held:

A Constitution Bench of this Court in Willie (William) Slaney v. State of M.P. considered the issue of non-framing of charges properly and conviction of an accused for the offences for which he has not been charged and reached the conclusion as under:-

......In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, without a charge, can be set aside, prejudice will have to be made out.

87............. If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established.

This Court in Gurpreet Singh Vs. State of Punjab, referred to and relied upon its earlier judgments in Willie (William) Slaney, and State of A.P. v. Thakkidiram Reddy, and held that unless there is failure of justice and thereby the cause of the accused has been prejudiced, no interference is required if the conviction can be upheld on the evidence led against the accused. The Court should not interfere unless it is established that the accused persons were in any way prejudiced due to the errors and omissions in framing the charges against him. A similar view has been reiterated by this Court in Ramji Singh and Another Vs. State of Bihar,

Therefore, the law on the issue can be summarized to the effect that unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory.

In the instant case learned counsel for the appellant, Mr. Sahay could not point out as to what prejudice has been caused to the appellant. Charge has been framed against the appellant u/s 120B IPC. He never raised any grievance against the same at the time of framing of the charge or during the course of the trial or by filing any petition for quashing the charge. The issue was not agitated before the High Court also.

In Sudhir Shantilal Mehta Vs. C.B.I., , the apex Court has clearly held:

Criminal conspiracy is an independent offence. It is punishable independent of other offences; its ingredients being:-

(i) an agreement between two or more persons.

(ii) The agreement must relate to doing or causing to be done either

(a) an illegal act;

(b) an act which is not illegal in itself but is done by illegal means.

(Emphasis supplied)

The aforesaid principle further stood reiterated in R. Venkatakrishnan Vs. Central Bureau of Investigation, wherein it has been held:

Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, must prove the same by applying the legal principles which are applicable for the purpose of proving a criminal misconduct on the part of an accused. A criminal conspiracy must be put to action and so long a crime is merely generated in the mind of criminal, it does not become punishable. Thoughts, even criminal in character, often involuntary, are not crimes but when they take concrete shape of an agreement to do or cause to be done an illegal act or an act which is not illegal but by illegal means then even if nothing further is done, the agreement would give rise to a criminal conspiracy. Condition precedent for holding accused persons guilty of a charge of criminal conspiracy must, therefore, be considered on the anvil of a fact which must be established by the prosecution viz. meeting point of two or more persons for doing or causing to be done an illegal act or an act by illegal means. The courts, however, while drawing an inference from materials brought on record to arrive at a finding as to whether the charges of criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is, thus, difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which offences have been committed and the level of involvement of accused persons therein are relevant factors. For the said purpose, it is necessary to prove that propounders had expressly agreed to or caused to be done illegal act but it may also be proved otherwise by adducing circumstantial evidence and/or by necessary implication. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from knowledge itself. A conspiracy may further be a general one and a separate one. A smaller conspiracy may be a part of a larger conspiracy. It may develop in successive stages. New techniques may be invented and new means may be devised for advancement of common plan. For the said purpose, conduct of the parties would also be relevant.

(Emphasis supplied)

Keeping in view the aforesaid principles, it is quite apparent that the Court below has not erred in only framing the charge of Section 120B of the Indian Penal Code against the present petitioner. Petitioner is not the only accused. He alone has not been charged for having committed an offence, punishable u/s 120B of the Indian Penal Code. A charge under the said Section alone can be framed against a particular individual. Petitioner may have committed an offence of conspiracy but may not have committed offences in relation to which his co-accused stand charged.

At the stage of framing of charge, Court has to consider the material in totality. In the instant case, the Court below, in my considered view, must have been equipped with some material to prima facie show that the accused is guilty of the charged offence. At this stage, trial Court is not required to go into the merits of the matter.

At the time of framing of charge, Court is not required to minutely examine the evidence or apply the standard as to whether prosecution would ultimately be able to prove/establish its case against the accused during trial. The purpose of framing of charge is to tell an accused, precisely and concisely, the matter with which he is charged. It must be conveyed to him with sufficient clarity and certainty what prosecution intends to establish during trial.

In my considered view, at this stage, it cannot be said that the conclusion with regard to the framing of charge for offence, punishable u/s 120B of the Indian Penal Code is unreasonable, unjustifiable, illegal or warranting interference by this Court, in exercise of its revisional jurisdiction. In view of the aforesaid, present petition is dismissed. Pending application(s), if any, also stand disposed of.

I place on record, with appreciation, the valuable assistance rendered by Mr. Rajinder Dogra, learned Additional Advocate General.