Nilesh Sureshbhai Shah vs Central Bureau of Investigation and Another

Harsha Devani, J.—Rule. Mr. Y.N. Ravani, learned counsel waives service of notice of rule on behalf of the first respondent - Central

Bureau of Investigation and Mr. Himanshu Patel, learned Additional Public Prosecutor, waives service of notice of rule on behalf of the second

respondent. Having regard to the facts of the case and with the consent of the learned advocates for the respective parties, the matter is taken up

for final hearing today. This petition is directed against the order dated 10th February, 2012 passed by the learned Special Judge, CBI Court No.

2, Ahmedabad in C.B.I. Criminal Revision Application No. 2/2011 whereby the order dated 17th March, 2011 passed by the learned Additional

Chief Judicial Magistrate, Special C.B.I. Court No. 2, Ahmedabad (Rural), Mirzapur below Exh. 38 has been confirmed and seeks discharge of

the accused for the offences levelled against him.

The petitioner came to be arrested in connection with the offence registered as R.C.-28(A)/2004-GNR for the offences punishable under

sections 120B, 420, 465, 467, 468 and 471 of the Indian Penal Code. The case was registered against one Shri M.P. Sharma, Senior Manager,

Central Bank of India, Bhudarpura Branch, Ahmedabad, as well as against the petitioner. After conclusion of the investigation, the Central Bureau

of Investigation exonerated Shri M.P. Sharma and submitted charge-sheet against the petitioner as well as one Shri Gopesh Jayantilal Soni, who

was a panel advocate of Central Bank of India and had given title clearance certificates of the properties given by the petitioner as collateral

securities. Pursuant thereto, Special Criminal Case No. 6/2006 came to be filed in the court of the learned Additional Chief Judicial Magistrate

(CBI), Ahmedabad.

Accused Gopesh Jayantilal Soni made an application dated 22nd October, 2007 (Exh. 11) to the learned Additional Chief Judicial Magistrate

(CBI), Ahmedabad, seeking an order of discharge from the case. By a judgment and order dated 27th December, 2007, the said accused was

discharged from the charges levelled against him. It appears that further proceedings have been instituted challenging the said order, which are still

pending.

The petitioner had, by an application dated 16th March, 2010 (Exh. 38), applied for discharge u/s 239 of the Code of Criminal Procedure,

1973 (hereinafter referred to as ""the Code""). By a judgment and order dated 17th March, 2011, the learned Magistrate rejected the said

application. Being aggrieved, the petitioner went in revision before the learned Special Judge, CBI, Court No. 2 at Ahmedabad in CBI Criminal

Revision Application No. 2/2011, which came to be rejected by the impugned order dated 10th February, 2012.

Though by main application (Exh. 38), the petitioner had sought discharge from the entire case, Mr. Umesh Trivedi, learned advocate for the

petitioner submitted, under instructions, that he restricts the present petition by seeking discharge only qua section 120B of the Indian Penal Code.

The learned advocate for the petitioner submitted that initially when the charge-sheet came to be filed, there were two accused persons. However,

subsequently, the co-accused Gopesh Jayantilal Soni had filed an application seeking discharge and by a judgment and order dated 27th

December, 2007, he has been discharged from the charges levelled against him. Hence, the petitioner herein, is now the sole accused in the matter.

It was contended that an offence u/s 120B IPC, by the very nature of the offence would not be constituted when there is only a solitary accused.

In support of such submission, the learned advocate placed reliance upon the decision of the Supreme Court in the case of Topandas Vs. The

State of Bombay, wherein the Supreme Court has held that by the terms of the definition of criminal conspiracy itself, there ought to be two or

more persons who must be parties to an agreement and it is trite to say that one person alone can never be held guilty of criminal conspiracy for the

simple reason that one cannot conspire with oneself. Reliance was also placed upon the decision of the Supreme Court in the case of Fakhruddin

Vs. The State of Madhya Pradesh wherein the court has held that the offence of conspiracy cannot survive the acquittal of the alleged co-

conspirators. If all the other accused have been acquitted of the charge of conspiracy, the applicant alone could not be held guilty. It was,

accordingly, submitted that the above referred decisions are squarely applicable to the facts of the present case and that the petitioner being the

sole accused cannot be charged and tried for the offence u/s 120B IPC.

On the other hand, Mr. Y.N. Ravani, learned counsel for the first respondent, opposed the petition and supported the impugned orders passed

by the courts below. It was submitted that both the courts below after considering the facts of the case have held that no case has been made out

for discharging the petitioner herein in respect of any of the offences alleged against him and as such, there is no warrant for interference by this

court.

This court has also heard Mr. Himanshu Patel, learned Additional Public Prosecutor for the second respondent.

Since the present petition is restricted to the charge u/s 120B IPC, it would be pertinent to briefly refer to relevant provisions under the Indian

Penal Code. Section 120B IPC makes provision for ""Punishment of criminal conspiracy"", whereas ""criminal conspiracy"" is defined u/s 120A IPC

to mean that when two or more persons agree to do, or cause to be done - (1) an illegal act, or (2) an act which is not illegal by illegal means, such

an agreement is designated a criminal conspiracy. The proviso thereto lays down that no agreement except an agreement to commit an offence

shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance

thereof.

Thus, from the definition of the expression ""criminal conspiracy"", it is apparent that for the purpose of attracting the said section, two or more

persons should have agreed to commit an illegal act. It is only if a person is a party to a criminal conspiracy that the offence u/s 120B IPC would

be attracted. The Supreme Court in the case of Topandas v. State of Bombay (supra) has, after considering the definition of criminal conspiracy as

defined u/s 120A IPC, held that by terms of the definition itself, there has to be two or more persons who must be parties to such an agreement

and it is trite to say that one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with

oneself. If, therefore, four named individuals were charged with having committed the offence u/s 120B IPC, and if three out of these four were

acquitted of the charge, the remaining one accused who was the accused No. 1 in the case before it, could never be held guilty of the offence of

criminal conspiracy.

In the facts of the present case, as noted hereinabove, initially, there were two accused persons named in the charge-sheet. However, the co-

accused has been discharged by the learned Magistrate. Consequently, the petitioner remains the sole accused in the criminal case. As held by the

Supreme Court in the above decisions, one person alone can never be held guilty of criminal conspiracy, and therefore, the provisions of section

120B IPC would clearly not be attracted in the facts of the present case, inasmuch as, for hatching a criminal conspiracy, two or more persons

have to agree to commit an illegal act. For the foregoing reasons, the petition succeeds to the aforesaid extent. The impugned order dated 10th

February, 2012 passed by the learned Special Judge, CBI Court No. 2, Ahmedabad in CBI Criminal Revision Application No. 2/2011 as well as

the order dated 17th March, 2011 passed by the learned Additional Chief Judicial Magistrate, Special CBI Court No. 2, Ahmedabad (Rural),

Mirzapur below Exh. 38 in Special Case No. 6/2006 are hereby set aside to the extent the same reject the discharge application filed by the

petitioner for the offence u/s 120B IPC. The discharge application filed by the petitioner is hereby allowed to the extent the applicant seeks

discharge for the offence u/s 120B of the Indian Penal Code. Rule is made absolute accordingly, to the aforesaid extent.

Direct Service is permitted.