Dr. Dattatraya Narayan Samant And Others v. The State Of Maharashtra

Bhonsale, J.:— The petitioners have filed this petition under section 482 of the Code of Criminal Procedure as also under Article 227 of the Constitution of India, challenging the order of framing charges against the petitioners, dated October 13, 1980, passed by the learned Additional Sessions Judge, Greater Bombay. In this criminal application the question that falls for determination is whether the impugned order of framing of charges complies with the requirements prescribed by section 227 of the Code of Criminal Procedure, i.e, whether there were sufficiant grounds for proceeding to frame charges by the learned Additional Sessions Judge. The charges which are framed against the petitioners and original accused No. 5, one Shankar Vithal Savardekar are on five counts in all and the present petitioners are charged for having agreed between August 1978 and January 1979 to do or cause to be done illegal acts, i.e, offences of causing physical harm to one Shri Naval Godrej, Kersi Godrej and others and these acts of causing harm to the above mentioned persons were in pursuance of the said agreement of conspiracy and thereby all the petitioners had committed acts punishable under section 120-B of the Indian Penal Code. The remaining charges refer to the physical assault caused, in pursuance of this conspiracy, to various persons referred to above by accused No. 5 and that all the accused had committed offences punishable under sections 120-B, 307 read with section 115 of the Indian Penal Code. It is not necessary to refer to each of the charges at this stage except to mention that the present petitioners are said to be implicated with the offences alleged to have bean committed by accused No. 5 on the basis of an agreement entered into by all of them between the period from August 1978 and January 1979.

2. Before the various statements recorded by the Investigating Officer in this case are referred to in some details, it is necessary to refer briefly to the incident in question.

3. According to the prosecution, on the night of 8th of January 1979, at about 8.15 p.m accused No. 5 had gone to the residence of Shri Naval Godrej at 40-D, Ridge Road, Malabar Hill, Bombay, and no sooner Shri Naval Godrej opened the door himself than accused No. 5 is alleged to have stabbed Shri Navel Godrej, Smt. Phiroza Godrej and Smt. Goolbai Dastoor. In the statement recorded, Shri Naval Godrej has given a Hindi version of what accused No. 5 is alleged to have said at the time of the assault. After stabbing Naval Godrej who tumbled down near the table, his daughter-in-law Smt. Phiroza Godrej came to his rescue who too was stabbed with a knife. Thereafter mother-in-law of Shri Naval Godrej, Smt. Dastoor who also came to help then was also assaulted by the assailant and she also fell down on the floor. Thereafter the accused made his escape good until he was arrested on January 21, 1979 at Hubli. It is not necessary to refer to the investigation conducted by the Investigating Officer as far as the case against accused No. 5 is concerned. At this stage, some details of investigation will be referred to as and when they becomes relevant for the purpose of consideration of this application. In the statement of Shri Godrej recorded on the 13th January 1979, he had stated that he did not find any reason for the assault on him and his family members except the labour union rivalry. Shri Godrej also suspected that as he had negotiated with the new union of Godrej Boyce Workers for bonus and other demands, Dr. Datta Samant had been criticising the management and in fact had brought a morcha in December 1979 and had demanded that Shri Godrej should see Dr. Samant, which Shri Godraj had refused and instead asked his representative Shri Bardi to meet Dr. Samant. Shri Godrej further stated that Dr. Samant had threatened him and other members of the management on that occasion.

4. During the course of the investigation, various statements not only of the members of Godrej family who ware assaulted but also of other persons came to be recorded, i.e, the Manager of the Godrej and Boyce Co. and certain other workers. The police recorded the statements of persons which, according to them, not only unfolded the prosecution case, but made a case of conspiracy being hatched between August 1978 and June 1979 in pursuance of which, maintains the prosecution, the assault took place on the evening of January 8, 1979. The statements on which the prosecution places reliance for unfolding the conspiratorial agreement are of: (1) Honoralh F. Pareira, (2) Mohan Patil, and (3) Krishna Mahadik. Apart from these persons, the prosecution also proposes to examine the General Manager of the Godrej and Boyce Company Ltd. who gives some history of the labour trouble in the factory and traces it back to the incident which took place in September 1972. There is one more statement of Ashwinkumar Punjwani who speaks of the conduct of accused No. 5 after the incident had taken place, i.e, at about 10.30 p.m This is the subsequent conduct after the incident of stabbing had occurred and two visits to the country liquor bar, one when he had no amount for consuming alcohol and one when came subsequently with cash. However, the crucial statement recorded by the Investigating Officer are those of Krishnar Mahadik, Mohan Patil and Honorath Pareira. The prosecution seeks to rely on their statements pointing certain overt acts attributed to accused Nos. 2, 3, 4 and 5 either in the form of instigation to commit crime in question or to do certain overt acts to hand over an envelope which presumably contained money given to accused No. 5 allegadly on behalf of the union. The General Manager of the company Shri Kersi Navroji who, as stated earlier, has given the history of labour trouble in the factory.

5. Before I examine the statements in detail as well as the legal position, the narration of facts leading to the filing of the charge-sheet and framing of charges may be referred to very briefly. After the arrest of accused No. 1, on January 21, 1979, the other accused came to be arrested subsequently and the charge-sheet came to be filed by the Investigating Officer in the Court of the Additional Chief Metropolitan Magistrate, 23rd Court, Explanade, Bombay, being Case No. 234.P/79. On July 13, 1979, the learned Additional Chief Metropolitan Magistrate directed the accused to stand their trial for various charges mentioned in his order. The learned Additional Sassions Judge, Greater Bombay, after hearing the arguments of the learned Special Public Prosecutor and the learned Counsel for defence framed on five counts charges against all the petitioners. For the sake of convenience, the order of framing charges may be reproduced here:

“FIRSTLY:—That you all along with some other unknown persons in or about August 1978 and January 1979, at Greater Bombay, agreed to do or caused to be done the illegal acts viz., the offences punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards by voluntarily causing physical harm to Mr. Naval alias Nawroji Godrej, Mr. Kersi Godrej and two others in pursuance of the said agreement of conspiracy and thereby you all committed an offence punishable under section 120-B, Indian Penal Code and within the cognizance of the Court of Sessions, Gr. Bombay.

SECONDLY:—That you accused No. 5, Shankar Vithal Savardekar on or about the eighth day of January 1979, at the residence of Naval Godrej, around 8-15 p.m, in pursuance of the aforesaid criminal conspiracy did an act viz., of stabbing the said Naval Godrej with a sharp edged instrument like a knife with such intention or knowledge and under such circumstances that if you had thereby caused death of said Naval Godrej, you would have been guilty of the offence of murder and that you caused grievous hurt to said Naval Godrej by the said act and thereby you all committed an offence punishable under section 120-B, 307 r.w 115 Indian Penal Code, or alternatively you accused No. 5, Shankar Vithal Savardekar individually committed the offence punishable under section 307, Indian Penal Code and within the cognizance of the Court of Sessions, Gr. Bombay.

THIRDLY:—That you accused No. 5, Shankar Vithal Savardekar on the same day, place and time and in parsuance of the said conspiracy did an act viz., of stabbing Mrs, Feroze Godrej, with a sharp edged weapon like a knife with such intention and/or knowledge and under such circumstances that if you had caused death of said Mrs. Feroze Godrej, you would have been guilty of the offence of murder and you caused grievours hurt to said Mrs. Feroze Godrej by the said act and thereby you all committed an offence punishable under section 120-B, section 307 r.w 115, Indian Penal Code, and/or alternatively, you accused No. 5, Shankar Vithal Savardekar individually committed the offence punishable under section 307 Indian Penal Code and within the cognizance of the Court of Sessions, Gr. Bombay.

FOURTHLY:—That you accused No. 5, Shankar Vithal Savardekar on the same day, place and time and in pursuance of the said conspiracy did an act viz., of stabbing Mrs. Gulbai Dastoor, with a sharp edged weapon like a knife with such intention and/or knowledge and under such circumstances that if you had caused death of Mrs. Gulbai Dastoor, you would have been guilty of the offence of murder and you caused grievous hurt to said Mrs. Gulbai Dastoor, by the said act and thereby you all thereby committed an offence punishable under section 120-B, section 307 r.w 115 Indian Penal Code, and or alternatively you accused No. 5, Shankar Vithal Savardekar individually committed the offence punishable under section 307, Indian Penal Code and within the cognizance of the Court of Sessions, Gr. Bombay.

FIFTHLY:—That you accused No. 5. Shankar Vithal Savardekar on the same day, place and time did an act viz., of stabbing Mrs. Feroze Godrej, with a sharp edged weapon like a knife under such circumstances that she was pregnant that if you thereby caused death, you would have been guilty of culpable homicidal and did by such act cause the death of a quick unborn child and you thereby committed an offence punishable under section 316 Indian Penal Code, and within the cognizance of the Court of Sessions, Gr. Bombay.

And I, hereby direct that you be tried by me on the aforesaid charges.”

6. These charges were framed in Sessions Case No. 305 of 1979. The learned Additional Sessions Judge had passed no speaking order at the time of framing the charges and, therefore, the present petitioners approached this Court by filing Criminal Application No. 1444 of 1980, under sections 397, 401 and 402 of the Code of Criminal Procedure and under Article 227 of the Constitution of India and challenged the impugned order of framing charges. This Court (Pratap, J.) directed the learned Additional Sessions Judge to pass a speaking order. This Court (Pratap, J.) had heard the parties at considerable length and passed an order directing the learned Additional Sessions Judge to pass a speaking order. The learned Judge also made it clear that the charges already framed by the learned Additional Sessions Judge on October 13, 1980, would remain subject to the learned Additional Sessions Judge giving a speaking order as directed and, of course, subject to right of any of the aggrieved parties to challenge the said speaking order on its own merits and in accordance with law. The proceedings in Sessions Case No. 305 of 1979 in consequence came to be temporarily stayed.

7. The learned Additional Sessions Judge by his order dated November 24, 1980, passed in support of his earlier order of framing charges referred to the various statements such as that of injured person one Kurshed Bardi who was Accounts Officer to the General Manager (Finance), that of Mohan Patil, Honorath Francis, Krishna Mahadik and Ashwinkumar Punjwani. The learned Additional Sessions Judge also referred to some of the speeches made by accused No. 1, Dr. Datta Samant, on 11-8-1978, 14-8-1978, 5-9-1978 and 13-12-1978.

8. After referring to on what points the prosecution purposes to exam-one various witnesses, the learned Additional Sessions Judge gave reasons in support of his earlier order of framing charges in paragraphs 21, 22 and 23 as follows:—

“21. Shri Patel argues that even if the statements of Krishna Mahadik, Ashwinkumar and Honorath Francis are taken at their face value, still from their statements no justifiable evidence would emanate which may produce a suspicion over the first four accused for their complicity in the offence. It is difficult to brush aside the argument of Shri Patel lightly. However, a fair chance to the prosecution has to be given to examine the proposed witnesses. Those witnesses may then unfold the various facets of the facts they would depose to.

22. When the statements of these witnesses are tested on the touch-stone of the cross-examination, then their evidence will have to be considered on the back ground of the proved facts from the other witnesses. If at the stage I ware to proceed to decide as to which of the inferences is acceptable, then it may be an attempt to appreciate and assess the evidence at the initial stage.

23. This is in short the infrastructure of the evidence the prosecution proposes to lead at the trial. I have considered the statements of the witnesses the prosecution proposes to examine and proceeded to frame the charge against all the accused.”

9. If the order of Pratap, J., is read carefully, what was directed by the learned Judge was that “the learned Additional Sessions Judge should give a speaking order reflecting on the rival contentions advanced by the respective Counsel before him on the question of framing charges and of discharging the accused persons. After such speaking order has been given, it would be open to the aggrieved party or parties, if so desirous, to challenge the order on its own merits and in accordance with law”. However, the learned Additional Sessions Judge has not given a speaking order in terms of the directions contained in the Judgment of Pratap, J., delivered on November 11, 1980.

10. It is true that under the provisions of section 228 of the Code of Criminal Procedure, the Judge can frame charges after hearing the parties and after considering the records and documents if he is of the opinion that there is ground for presuming that the accused has committed an offence which is triable either by the Chief Judicial Magistrate or by himself. In such a situation he will frame in writing charges against the accused. The provisions of section 228 make no reference for recording the reasons in support of framing the charges.

11. However, when this Court directed specifically to give speaking order reflecting and covering the rival contentions advanced by the respective Counsel before him on the question of framing charges against the accused persons, it would have been better if the learned Judge had given reasons in terms of the specific directions given by this Court. The failure on the part of the learned Additional Sessions Judge to give reasons has deprived this Court to know the reasons in support of framing of the charges in question.

12. The requirement of giving reason has been regarded as wholesome practice and the object of the provision which requires the Sessions Judge to record his reason is to enable the Superior Court to examine the correctness of the reason for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. As held by the learned Chief Justice Y.V Chandrachud in 1(State of Karnataka v. L. Muniswamy), (1977) 2 SCC 699 : A.I.R 1977 S.C 1489, in such situation “the High Court, therefore, is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case………”

13. It, therefore, becomes necessary to examine the scope of the provisions enjoining duty upon a Judge at the time of framing a charge and the scope of an inquiry which requires to examine documents and records which are referred to in section 227 of the Coda of Criminal Procedure. In more than one judgment the Supreme Court has laid down the kind of application of judicial mind by the learned Judge to the documents and records at the time of framing of charges.

14. In 2(Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunia), (1979) 4 SCC 274 : A.I.R 1980 S.C 52, the Supreme Court has laid down guidelines to be followed by the Sessions Judge at the time of framing of the charges. In this case. His Lordship Mr. Justice Sarkaria who spoke for the Court has relied on the decision in 3(State Of Bihar v. Ramesh Singh), (1977) 4 SCC 39 : A.I.R 1977 S.C 2018, and has observed as follows:—

“It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the Investigating Police Officer. At this stage, as was pointed out by this Court in State Of Bihar v. Ramesh Singh, (1977) 4 SCC 39 : A.I.R 1977 S.C 2018, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at this stage of section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence.”

(Emphasis supplied)

15. This is the one of the guidelines which one has constantly to keep in mind while persueing the records and the statements on which the prosecution proposes to rely. In my view, the last emphasis by. His Lordship on “a presumptive opinion as to the existence of the factual ingredients constituting the offence” will have a great bearing on deciding whether the statements on which the prosecution proposes to rely in this case make out an offence of conspiracy against the petitioners or against each of one of them separately. The existence of factual ingredients of the offence of conspiracy to which the learned Public Prosecutor had mentioned will be referred presently; the ingredients of the offence of conspiracy will also be referred to. But before that is done, there are other judgments of the Supreme Court giving further guidelines both to the Sessions Court as well as the High Court in assessing the material and documents on record on which framing of the charge can be sustained.

16. In State Of Bihar v. Ramesh Singh, (1977) 4 SCC 39 : A.I.R 1977 S.C 2018, the Supreme Court laid down a few more guidelines which are of relevance and importance in this case and they may be referred to here. Referring to the provisions of sections 227 and 228 of the Code of Criminal Procedure, it was observed in that judgment as follows:—

“Reading the two provisions together in just aposition, 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 or not to be meticulously judged. Not is any waight 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 had committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.

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…..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.”

(Emphasis supplied)

17. This distinction between consideration which shall weigh with the Judge at the stage of framing of the charges and at the conclusion of the trial are clearly brought out in the above referred passage. According to this judgment, if there is strong suspicion against the accused and the matter remains in the region of suspicion, it cannot take the place of proof of his guilt at the conclusion of the trial. But the inference which must be drawn is that if there is a strong suspicion existing at the initial stage 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. These observations will have to be applied to the case against each of the accused with reference to the evidence which the prosecution proposes to lead in this case.

18. In a decision of the Supreme Court in 4(Union of India v. Profulfa Kumar Samal), (1979) 3 SCC 4 : A.I.R 1979 S.C 366, the earlier decision of the Supreme Court in State Of Bihar v. Ramesh Singh, was heavily relied upon and followed, but the Supreme Court has further laid down various principles which are to be taken into account at the time of framing of the charge. Under the provisions of section 227, four principles ware laid down. It was observed in that case:—

“(1) That the Judge while considering the question of framing the charges under section 227 of the code 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:

(2) 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.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however 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 within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the code the Judge which under the present Code is a senior and experienced Court cannot act merely as a post-office or a mouth-piece 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, any basic infirmities appearing in the case and so on. This, however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”

19. Thus the principles called out from various decisions of the Supreme Court will have to be constancy borne in mind before examining the relevant contentions raised and submissions made by the learned Counsel before me as to whether the learned Additional Sessions Judge was or was not justified in framing the charge of conspiracy and abetment against accused Nos. 1 to 4, i.e, the present petitioners. Since the learned Additional Sessions Judge has not observed as to whether there was only a suspicion or there was a strong or grave suspicion as observed in some of the judgment of the Supreme Court, to frame a charge against the accused and to proceed with the trial, and as there is no indication of the order as to whether he has sifted the evidence and weighed it for the limited purpose of deciding whether a prima facie case has been made out or not it becomes necessary for this Court keeping in mind these guidelines to analyses the statements of various witnesses on whom the prosecution proposes to rely for making out a case of conspiracy. It is needless to say that the enquiry which I propose to make will not be a roving enquiry, not will it be necessary for me to go into the particulars of the entire prosecution case, but it will be necessary to find out whether or not a prima facie case has been made out. As has been observed by the Supreme Court in the case of Union of India v. Prafulla Kumar, (supra) the sufficiency of grounds 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. It is also observed in the same judgment as follows:—

“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 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 older to find out whether or not there is sufficient ground far proceeding against the accused.”

“It is wrong to say that at the stage of framing the charges, the Court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming commission of the offence. It affects person's liberty. The responsibility of framing of the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on record, it must not blindly adopt the decision of the prosecution.”

20. Bearing in mind these guidelines, I will now proceed to consider the statements of the witnesses on which the prosecution proposes to rely to prove its case of conspiracy. As stated earlier, there are three or four statements which if read closely, according to the learned Special Public Prosecutor, go to make out a strong suspicion against the petitioners that they had conspired between August 1978 and January 1979 to commit various offences mentioned in the various charges. The learned Additional Sessions Judge alter considering those statements has given an ambivalent finding by stating that the arguments of Mr. Fatal, the learned Counsel who appeared for the petitioners in the trial Court cannot be brushed aside lightly. However, according to the learned Additional Sessions Judge. “a fair chance has to be given to the prosecution to examine the proposed witnesses”. It is, therefore, necessary to find out whether even after taking those statements at their face value the prosecution has succeeded in making out any case of agreement to commit the offences levelled against the present petitioners. As stated earlier, accused Nos. 1 to 4, i.e, the present petitioners, are sought to be implicated only on the charge of conspiracy and/or abetment. Admittedly, they were neither present, nor had participated in the assault which took place on the members of the Godrej family on January 8, 1979 at about 8.15 p.m

21. At this stage it will be convenient to examine the ingredients of the offence of conspiracy since the judgment of the supreme Court in Supdt. & Remembrancer of Legal Affairs v. Anil Kumar, (1979) 4 SCC 274 : A.I.R 1980 S.C 52, lays down that even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion es to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence. It will, therefore, be necessary to briefly refer to the ingredients of offence of conspiracy.

22. In Halsbury's Laws of England, Fourth Edition, Vol. II, at page 44, paragraph 58, the meaning of “conspiracy” has been explained as follows:—

“Conspiracy consists in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means………. The essense 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. The conspiracy arises and the offence is committed as soon as the agreement is made; 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 of frustration or however it may be. The actus reus in a conspiracy is the agreement to excute the illegal conduct, not the execution of it. It is not enough that two or more persons persued the same unlawful object at the same time or in the same place: it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose.”

23. There are a number of decisions of the Supreme Court as wall as of the English Courts explaining the ingredients constituting the offence of conspiracy. 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 the agreement, but the very agreement is an offence punishable under section 120B of the Indian Penal Code. Entering into an agreement by two or more persons to do an illegal act or legal act by illegal means and not merely an intention to do such acts constitutes the very quintessence of the offence of conspiracy. So long as such a design rests in intention only, it is not indictable. The prosecution must further show that the agreement was entered into and that there was a meeting of minds between two or more parsons or as is described etymologically conspiaracy means breathing together and two people cannot breath together unless they put their ??? together. The gist of offence of conspiracy lies not in doing the act or effecting the purpose for which the conspiracy is formed, nor in attempting to do any of the acts, nor in instigation others to do them, but in the forming of the scheme of agreement between the parties. It is well settled that an agreement can be proved either by direct evidence or by circumstantial evidence or by both.

24. Lord Campbell has observed in a celebrated case: “Conspiracy is nothing. Agreement is the thing”. This, in my opinion, seems to be the gist of the offence of criminal conspiracy. “The crime of conspiracy is completely committed, the moment two or more have agreed that they will do, at once or at future time, certain things. The conspirators may repent, may have no opportunity or may be prevented or may fail. Nevertheless the crime is complete. It was completed when they agreed to do.”

25. Coleridge J., in 5(Murphy), (1837) 8 c at page 310 observed as follows:—

“Although the common design is the root of the charge, it is not necessary to prove that these two parties cams together and actually agreed in terms to have this common design, and to pursue it by common means, and so to carry it into execution…….. If you find that these two persons persued by their acts the same object, often by the same means, one performing one part of an act and the other part of the same act, so as to complete it, with a view to the attainment of the object which they were persuing, you will be at liberty to draw the conclusion that they have been engaged in a conspiracy to effect that object. The question you have to ask yourselves is, Had they this common design, and did they pursue it by these common meano………… the dosign being unlawful?”

26. In my opinion, these observations are of utmost importance because even if there is concurrence in the intention of the accused persons to do an illegal act, it is not enough for the purposes of establishing a charge of conspiracy. What the prosecution must prove by the positive evidence is that there was a positive agreement in the minds of two or more porsons or there was a meeting of minds to do an unlawful act or to do a lawful act by unlawful design. For example, if two burglars should decide independently to burgle the same house on the same night, their independent decisions would not constitute a conspiracy. A conspiracy is not merely a concurrence of wills, but a concurrence resulting from agreement between the two. In other words, the parties must put their heads.

27. It may be stated at this stage that it is also well settled that there may not be direct evidence of conspiracy. There may not be witnesses who depose to actual agreement between the parties to commit an itlegal act or unlawful design. Many a time the offence of conspiracy has to be inferred from the proved facts as was done in 6(Emperor v. Shafi Ahmed Nabi Ahmed). 31 Bom. L.R 515. Crump J. in that decision has referred to a number of English cases on the question of conspiracy. He has referred to the dictum of Lord Mansfield in the 7(King v. Parsons), (1762) 1 W.B 332, that “there was no occasion to prove the actual fact of conspiring, but that it might be collected from collateral circumstances”, Earle J. in 8(Reg. v. Duffield), (1851) 5 Cox 404, had in fact said:—

“It does not happen once in a thousand times, when the offence of conspiracy is tried, that anybody comes before the jury to say—I was present at the time when these parties did conspire together and when they agreed to carry out their unlawful purposes; that species of evidence is hardly ever to be adduced before a jury, but the unlawful combination and conspiracy is to be inferred from the conduct of the parties, and if you see several men taking several steps, all tending towards one obvious purpose, and you see them through a continued portion of time, taking steps that lead to an end, why it is for you to say whether those persons had not combined together to bring about that end, which their conduct so obviously appears adapted to effectuate.”

28. These references to various authorities would make it clear that there must be an agreement between two or more persons to commit an unlawful act, in this case the assault on the members of the Godrej family.

29. From the material placed by the prosecution before the Court, is it possible to infer that two or more persons had entered into an agreement of unlawful design, because the unlawful design is the root of the charges? Can it be said by reading all the statements on which the prosecution relies that all the petitioners had agreed to do an unlawful design or act? Can it be said by reading the statements of Mohan Patil, Honarath Pariera, Krishna Mahadik and Ashwinkumar Punjwani that an agreement is proved to have existed at any point of time between August 1978 and January 1979, and if such an agreement did exist, between some of the accused, what was the starting point of that agreement to assault members of the Godrej family 7 in my opinion, after considering the entire record and the statements, the case of accused No. 1 will have to be separated from rest of the accused, i.e, accused Nos. 2, 3 and 4 ragarding the existence of such an agreement. If at all there was such an agreement which has to be inferred from the evidence on record or from the overt acts which have been attributed to some of the accused persons, can it be said that the other accused knew about this agreement? In my opinion, initially, existence of an agreement must be proved by prosecution. I repeatedly asked the learned Special Public Prosecutor Mr. Vakil as to what was the starting point of this conspiratorial agreement and the answer given by Mr. Vakil was that the agreement must have been there, though he could not positively state, between accused Nos. 1 and 2 and it must be somewhere between August 1978 and January 1979.

30. Another question which will have to be answered is from the speech made by accused No. 1, Dr. Datta Samant who happens to be a leader of several unions in the city, whether he instigated workers to indulge in violence and if he did so, did it amount to an agreement between him and any of the accused, especially accused No. 5 to commit the offence with which they are charged? Did his speeches go beyond preaching general violence against the leaders of the Shramilk Sangh, the rival union and also against the management of the Godrej Factory? It has been repeatedly argued that accused No. 1, Dr. Datta Samant had been threatening in his various speeches at gate meetings and public meetings that “incident of September 1972 will have to be reacted if the management did not stop interfering with their activities or try to support the rival union, i.e “Shramik Sangh”. Granting to the prosecution that such speeches ware made and threats were uttered by Dr. Datta Samant, does it by itself necessarily prove existence of an agreement between all the accused to commit this particular offence which is the subject matter of the five charges, i.e, accused No. 5, first having entered into an agreement with the other accused, in persuance of such an agreement assaulted the members of the Goderej family.

31. Mr. Rajni Patel, the learned Counsel appearing on behalf of all the petitioners at one stage urged that there may be difference between the acts attributed to accused Nos. 2, 3 and 4 on the one hand and accused No. 1 on the other hand. His argument to which I will make reference later on, in substance, was that taking all these statements on the face value, the witnesses did not attribute any over act at all to accused No. 1 except alleging that on the night of the crime, when accused No. 5 was alleged to have gone to the office of the union and received from accused No. 2 an envelope, accused No. 1, Dr. Datta Samant also happened to be present in his chamber. The second general allegation against Dr. Datta Samant by the prosecution witnesses is that he had not only been preaching violence to his workers to react the incident of September 1972 alluding thereby to the riots which took place in the Goderej Colony and in which some persons died as a result of riots, but hes also been threatening the management. As I will presently point our, in all speeches of Dr. Datta Samant there was only general exhortation to violence for solving the union problems and exhortation to violence in general is not the same thing as an agreement to commit a particular crime. It is true that in some of the statements including that of Naval Godrej and the General Manager Navroji, it is stated that when Dr. Samant had sought interview with Mr. Naval Godrej and that interview having been refused, Dt. Samant had threatened the management. However, I have not been able to see in all the statements of witnesses and in speeches any exhortation to violence on the members of the Godrej family.

32. It is necessary in this case to distinguish between general exhortation to violence, for solution of certain-union problems or reacting the incident of September 1972 which, according to Mr. Vakil, the learned Special Public Prosecutor, refers to not incidents in 1972 and a specific exhortation to assault the members of the Godrej family. It is unfortunate curse of this country that preaching violence becomes so often a powerful weapon in the armoury of union leaders and others in support of their various demands. It is easily end usually said in this country, that if certain demands of agitating groups are not met, rivets of blood will flow. Union leaders or various other groups of people think that because violence is preached, their demands may be conceded. However, from such general exhortation, inference of a specific conspiracy to commit a particular crime is neither justifiable not sustainable in the eyes of law. Dr. Samant's speeches at the most would suggest that he intended violence if the demands regarding his union were not met by the management. It might be that such threats were brought into action in the year 1972. I am, however, not concerned with that incident in this case. I only want to find out from the statements of various witnesses and the other material on record whether there was an agreement between accused No. 1 and other accused, including accused No. 5 and other unknown parsons, to do an unlawful design, i.e to commit an assault on the membars of the Godrej family. As I have stated earlier, the prosecution has not been able to show what was the starting point of the alleged conspiracy, except mentioning that between August 1978 and January 1979, this conspiracy must have commenced.

33. I will presently analyse all the statements on which the prosecution, proposes to rely as to at what point of time the alleged agreement was entered into by Dr. Datta Samant or any of the accused and whether in pursuance of such an agreement, the assault on the members of the Godrej family had taken place on the night of 8th January 1979. As I have referred to above the illustration of two burglars deciding independently to burgle the same house on the same night, their independent decisions would not constitute a conspiracy. The prosecution in this case must so that conspiracy is not merely a concurrence of wills but a concurrence resulting from agreement.

34. In deciding whether the assault which took place on the night of 8th of January 1979 was in pursuance of an agreement entered into by two or any of the five persons charged, let us examine the statements recorded by the Investigating Officer on which the prosecution relies to make a prima facie case of conspiracy. As referred to above, in examining these statements, the purpose is not to make the roving enquiry, but to find out whether there even exists a strong suspicion against all the petitioners of having committed the offense of conspiracy. At this stage it pertinent to remember that in all the Supreme Court cases referred to above involved consideration of perpetrators of crime themselves and no question arose involving any conspiratorial liability as has arisen in this case. Accused No. 5 who is the author and perpetrator of crime is not before this Court. The present petitioners are sought to be implicated only on the basis of having been party to the offence of conspiracy.

35. Before examining the statements two things must be kept in mind. While there is exhortation by accused No. 1, Dr. Datta Samant to teach the management a lesson, to teach the office bearers of the Shramik Sangh a lesson or to repeat or react the incident of September 1972, there is no exhortation to commit a particular crime. Further there is no direct evidence as regards an agreement having been entered into by Dr. Datta Samant, accused No. 1, with rest of the accused to commit the offence of conspiracy. I have to consider whether an agreement can be inferred from the acts attributed to accused No. 1 as well as to other accused.

36. Now first such statements are that of Shri Naval Godrej and the General Manager Shri Navroji and Accountant Shri Khurshed Bardi. The learned Special Public Prosecutor Mr. Vakil and the learned Counsel for the petitioner, accused Mr. Patel have taken me through ell the statements. While the submissions of Mr. Pate I have been that there is no evidence of conspiracy in all the statements and even if they are taken at their face value, they do not make out a prima facie case of conspiracy or an agreement being entered into by any of the accused. Even infarrentially such an agreement cannot be deduced in the alleged Overt acts attributed to other accused and to various speeches made by Dr. Samant, Mr. Patel further submitted that the possibility of the accused No. 5 having taken individual revenge by assaulting members of the Godrej family as he was in miserable condition cannot be ruled out. He has submitted that from the speeches of Dt. Samant and the statements of witnesses, one can find general exhortation to violence. These exhortations were conditional that if the management did not meet their demands, the 1972 incident will have to be reacted. But no specific act or agreement can be inferred as far as accused No. 1 is concerned. The other submissions of Mr. Patel will be referred to when the various statements recorded by the Investigating Officer are being referred to.

37. Mr. Vakil, the learned Special Public Prosecutor, on the other hand, has taken me, as stated above, through all the statements and has submitted that the first thing that emerges from all these statements is that Dr. Datta Samant, accused No. 1, who was loosing his grip on the union in Godrej Company, in order to restore his authority and power, was preaching violence both against the new rival union Shramik Sangh as well as against the management. The learned Special Public Prosecutor has taken me minutely through all the statements and pointed out from the statements of Shri Naval Goderej, General Manager Kersi Nivroji and Accountant Bardi in support of his submissions that accused No. 1, Dr. Datta Samant continued to instigate the workers against Shri Naval Godrej and Shri Navroji presumably because he thought that it would help him to establish his authority again in the union affairs. As I have stated earlier, there is material on the record that in certain speeches and on certain occasions Dr. Samant had told the workers that if necessary, the workers will have to react the incident of September 1972. I have also observed earlier that this falls short of the agreement as required by section 120B of the Indian Penal Code. The learned Special Public Prosecutor after going through the statements of Shri Naval Goorej, Shri Navroji and Shri Bardi has canvassed before me that this exhortation to violence and threats given to the management would indicate its strong motive for accused No. 1 as well as the other accused to enter into a conspiracy as alleged against them. Mr. Patel, on the other hand, submitted that the motive by itself is not relevant for consideration of the crime of conspiracy. In certain cases, motive could be relevant; In this particular case, however, such a motive of general exhortation to violence is of little assistance to the prosecution. In this case the various other circumstances which reliance has been placed by the prosecution have not helpad the prosecution to prima facia make out the charge of conspiracy. Exhortation to violence in general by accused No. 1 cannot by itself be the basis from which the agreement to commit the specific offence. In question can be deduced.

38. The learned Special Public Prosecutor thereafter took me through the statement of Honorath Pariera and pointed out certain sentences which, according to him would furnish sufficient ground to proceed with the trial against the petitioners on the charge of conspiracy. For example, in the statement of Pariera, a reference has bean made to the history of 1972 riots case. Pariera has stated:—

“Recently, some of the close associates of Dr. Datta Samant lika Bhagwan Angana, Chavan and others started opposing to the attitude of Dr. Datta Samant in handling the workers' demands. They also demanded change in the leadership of our union. Taking the advantage of this situation, the Godrej Management i.e, Naval Sheth, Kershi Sheth and others supported these persons and Bhagwan Argane and Chavan for a new union for Godrej workers known as “Shramik Sangh.”

39. He further states that Dr. Samant addressed some of the meetings and tension started prevailing in the Godrej Factory. Accused No. 1 and his other colleaguas, including other persons disliked the management supporting the rival union. A Morcha was taken on 14-8-1978 to Malbar Hill to Shri Naval Godrej's residence. It was stopped at Kemps Corner. In all these meetings during August to December, Dr. Samant used to abuse Shri Naval Godrej, Shri Karsi and other management members and tall the workers to unite and to teach a lesson like 1972 to the management. This Pariera also complained to Dr. Samant regarding the complaints against Anant Shinde and Shankar Savardekar, Dr. Samant according to this statement, did not like the management supporting the rival union and in these meetings Dr. Samant had warned the management about the interference with his union and told the management that he would tell his workers to deal with them like 1972. The learned Special Public Prosecutor specially drew my attention to the following sentences in some of the paragraphs:—

“During last 4/5 months on many occasions myself, Anant Shinde, Mohan Patil. Mungekar, Prabhaker Samant, Kamst and some others used to keep on chit-chating near union office at Vikhroli………. During these talks Mungekar used to say that Bhagwan Angane, Naval Sheth, Navroji Dadhiwala are all (Madarchot) and unless they are finished, they would not stop their activities against Godrej workers, Anant Shinde also used to abuse similarly and boasted that he would finish then within no time. Mungekar used to tell them to wait as Dt. Samant had moved the Court. He used to tell us that if such interference continued, he would advise us and ask to be ready.”

40. In the same statement Pariera goes to say that he complained to Dr. Samant about the discussions and threats by Anant Shinde when Dr. Samant asked him to keep quiet and not to bother. In October 1978 when this Pariera was talking to Dr. Datta Samant after a meeting, in the presence of accused No. 2 Mungekar, accused No. 3, Prabhaker Sawant, accused No. 5 Shankar Savardekar, accused No. 4, Anant Shinde and some others, this Pariera told Dr. Samant that Anant Shinde should be warned and asked not to create any trouble. On that, Shanfcer Savardekar and Anant Shinde called Pareira “Gandu” and told that they would finish Naval Sheth, Kersi Navroji and others whenever Dr. Samant would tell them to do so. Dr. Samant thaiked them for their active support and love but told them not to do anything till he told them.

41. The learned Special Public Prosecutor further relied on the remaining portion of the statement of Pariera wherein he has stated that accused Nos. 5, 2 and 3 in their discussion about a fortnight before his statement was recorded were abusing Naval Godrej, Kersi Navroji and Bhagwan Angane in filthy language, and accused No. 4 Anant Shinde told that those were responsible for bringing down the leadership of their leader Dr. Samant and they must be taught a lesson. At this stage, Shankar Savardekar seems to have stated that he would finish them. Anant Shinde, accused No. 4, told that he would be with Shankar Savardekar, accused No. 5, and would not mind to go to jail for the sake of Dr. Samant's prestige. Accused Nos. 2 and 3 also agreed and told them that the union would support them. Pariera told accused Nos. 2 and 3 that they should not give lift to such talk of accused Nos. 5 and 4. Accused Nos. 2 and 3 left saying that Pariera would not have spoken this way if he would have been jobless.

42. He further refers to what happened at 9.30 p.m on 8th January 1979, presumably after the incident of assault on the members of Godrej family. Since he wanted some expert medical aid, he went to Dr. Samant. Dr. Samant came at about 9.45 p.m and hurriedly went into his office with some workers. Pariera was waiting for his turn to come. After about half an hour or so Pariera noticed accused No. 5 Shankar Savardekar coming to the union's office. Accused No. 5 went to Prabhakar Sawant, accused No. 3, and talked to him and both of them then went to accused No. 2 Mungekar. Accused No. 3 Prabhakar Sawant and accused No. 5 Shankar Savardekar immediately came out. Mungekar gave him an envelope and asked him to go. Thereafter accused No. 5 left.

43. The learned Special Public Prosecutor having taken me through minutely these statements of Pariera submitted that after the incident of assault had taken place, accused No. 5 straightway walked to the office of the union and there accused Nos. 2 and 3 handed over an envelope. What that envelope contained could be inferred by the subsequent conduct of the accused, inasmuch as it is in the statement of Ashwinkumar Punjwani that at about 10-30 p.m accused No. 5 went to the liquor shop conducted by Ashwinkumar and paid for the illicit liquor he had consumed in the evening. Thereafter, the accused was absconding until he was arrested on 21st January 1979. The inference which the learned Public Prosecutor wants me to draw is that the presence of accused No. 1, Dr. Datta Semant in the building was very significant. He submitted that the reason why accused No. 5 should come to the Union's office at all was clear. He wanted to reck vengeance on the members of the Goderej family, because he was not only dismissed, but he was also jobless and homeless and was in very miserable condition. The fact that he came to the union's office and accused Nos. 2 and 3 gave him an envelope would only strengthen his submission which he earlier made that behind the assault, there were not only the speeches of Dr. Samant to exhort violence, but also a conspiracy to kill or cause bodily injury to the members of the Godrej family.

44. Now the only act attributed to Dr. Samant in the entire statement is that he was present in the union's office when accused No. 5 came to the unions's office and took an envelope presumably containing some money. It is not for me to consider on merits the question of presence of Dr. Samant in his office at that time. Admittedly, accused No. 5 never met accused No. 1 according to the said statement. All that seems to have happened is that accused No. 1 was present in his chamber in the same building where accused No. 5 seams to have come. One thing is very clear that no overt act is alleged against him. For example, as Mr. Rajni Patel had argued that if this act was done in pursuance of the conspiratorial agreement, in fitness of things, accused No. 5 would have walked straightway to accused No. 1 and would have reported him the successful end of the mission as per the agreement between accused No. 1 and other accused. However, it is not stated by this Pariera that accused No. 1 met accused No. 5, or accused No. 2 or accused No. 3 thereafter met accused No. 1 and acquainted with him of the visit by accused No. 5. At this stage, it cannot be said that this act of accused No. 1 sitting in the union's office prima facie enables one to draw an inference of conspiracy. In any case, this is the subsequent conduct of accused No. 5. The earlier conduct of Dr. Samant, accused No. 1, according to this statement is that when accused Nos. 4 and 5 had said that they would finish Naval Godrej, Kersi Navroji and others whenever Dr. Samant told them. Dr. Samant told them not to do so until he told them. The learned Special Public Prosecutor wants me to draw an inference that Dr. Samant must have told accused No. 5 to commit the assault in the month of January. In my opinion, this is not the sufficient ground is draw an inference of agreement to do this particular act on 8th January 1979, in view of the guidelines laid down by the Supreme Court, it can, therefore, be said that Dr. Datta Samant, accused No. 1, was not a party to the agreement, if at all one existed, in pursuance of which it is alleged that the assault had taken place on the members of the Godrej family.

45. The learned Special Public Prosecutor further argued that accused Nos. 2 and 3 would not dare to give an envelope without the knowledge and consent of accused No. 1, Dr. Samant. We must remember that a union leader of the standing of accused No. 1, Dr. Samant who admittedly led varions labour unions in the city is bound to be in his office as in order to tackle union problems, he would more often be found in his office than at his home. When several workers visit the office, it is possible that accused No. 5 had visited some part of the office building without the knowledge at accused No. 1. The learned Special Public Prosecutor wants me to draw an inference that but for the knowledge of accused No. 1, accused Nos. 2 and 3 would not have given an envelope to accused No. 5. I am not prepared to go that far and foist the knowledge on the part of accused No. 1 of accused Nos. 2 and 3 having given an envelope containing some money to accused No. 5.

46. The learned Special Public Prosecutor submits that if this fact of giving envelope by accused Nos. 2 and 3 has to be read along with the statement of Ashwinkumar Punjwani. The said Punjwani in his sparetime runs a country liquor bar in Ghatkopar. His statemant is to the effect that on the night of 8th January 1979 at about 10.30 p.m accused No. 5 had come there and had two bottles of liqour Accused No. 5 had no money to pay and when accused No. 5 told him that he would coma sometime after and pay the money, accused No. 5 was allowed to go by Ashwinkumar. At about 11-30. p.m, accused No. 5 came back and paid for his drinks. At that time Punwani asked accused No. 5 from where he came and accused No. 5 replied that he had gone to the office of Dr. Samant and received money for the work done by him. Accused No. 5 also abused union people for paying him lees for doing difficult work. The learned Special Public Prosecutor has submitted that if this sentence that he had done work of the union and had been paid less for doing difficult work is read in the context of exhortation to violence by accused No. 1, only one inference is possible and that is that this work was nothing else than the assault on the members of the Godrej family. He, therefore, argued that inferentially accused No. 1, must be a party to an earlier agreement in pursuance of which this crime has been committed by accused No. 5. At this stase, it must be ramembered that in the entire statement of Punjwani there is not reference to accused No. 5 saying that accused No. 1 had given him money or even met him. There is no reference to accused No. 1 at all in his statement.

47. The learned Special Public Prosecutor then took me through the statement of Krishna Mahadik who has stated that at about 9.00 a.m on 9th January 1979 he was informed by Pandhari Nagesh regarding the assault on Shri Navel Godrej and members of his family. This Krishna Mahadik had gone to the union's office and accused No. 4 was present and accused No. 4 seems to have stated as to how this incident of assault on Naval Godrej has taken place little earlier than decided and why Dadhiwalla was left out. The learned Special Public Prosecutor emphasised this part of the sentence and argued that from this sentence an inference can be drawn that there was an earlier agreement to assault on the Godrei family. There is some substance in the submission of the learned Public Prosecutor that this statement does show that accused No. 4 had earlier knowledge. At the end of the statement this Manadik also stated that even in the past, he along with others ware given money to assault members of management of Godrej. The argument is that if accused No. 4 had some definite earlier knowledge and accused No. 5 had stated that he would finish Naval Godrej then why an inference should not be drawn against accused No. 1 inasmuch as but for his active support and instigation which he had given in his speech, this crime would not have taken place.

48. I am afraid, that apart from holding that there is some substance in the argument that accused No. 4 had some knowledge, an agreement of conspiracy cannot be Inferred from this statement alone. It also cannot be inferred that then was in fact an agreement entered into to commit this crime and that accused No. 1, Or. Datta Samant was a party to it. After going through the various statements, I do not find that apart from general exhortation to violence, there existed any conspiracy, i.e, an agreement to commit this crime and in pursuance of which accused No. 5 assaulted the members of the Godraj family.

49. The learned Special Public Prosecutor also drew my attention to the statement of Mohan Patil in which he had stated that he was arrested in connection with ??? and murders which took place on 2nd September 1972 at Godrej Colony. However, this has no reference to the incident in question. Therefore, it does not held us to draw any inference of conspiracy.

50. As far as the case of petitioners Nos. 2, 3 and 4 is concerned, even Mr. Patel at one stage of his argument stated that some references are to be found to ovens act alleged to have been done by accused Nos. 2, 3 and 4. Pariera has stated that accused No. 4 used to boast that he would finish these people in no time Accused No. 2 also used to say that Bhagwan Angane, Naval Shath and Navroji were all “Gandu”. In October 1978, in the presence of accused No. 2, Mungekar, accused No. 3, Prabhakar Sawant, accused No. 4, Anant Shinde and accused No. 5, Shankar Savardekar and Anant Shinde, said that they would finish Naval Sheth, Kersi and others whenever Dr. Samant would tell them to do so. Dr. Samant told them not to do anything till he told them to do. There is no doubt that this overt act if proved on the part of accused Nos. 2, 3 and 4 would furnish some kind of abotment to the act of accused No. 5. As I have already coma to the conclusion that there was no prior agreement in pursuance of which this crime has been committed by accused No. 5 the charge of conspiracy against the petitioners cannot be sustained. As far as accused Nos. 2, 3 and 4 are concerned, the statements do indicate that some utterances or some over acts such as handing over an envelope to accused No. 5 might enable the prosecution to draw an inference of abetment even against accused Nos. 2, 3 end 4. It may be that when the prosecution unfolds its case, these alleged acts on the part of accused Nos. 2 to 4 may be of some assistance to the prosecution case. The learned Special Public Prosecutor has urged that in case this Court comes to the conclusion that there was no prima facie case made out of the charge of conspiracy, then the question of abetment by all the accused persons for having committed the offence of assault by accused No. 5 be considered. As I have already indicated above, that there are no sufficient grounds to proceed with the charge of conspiracy, it will have to be set aside.

51. However, as far as accused No. 1, Dr. Samant is concerned, there is no question of framing a charge even of abetment on the materials placed before me. In view of what I have held earlier, the offence of abetment cannot be inferred against accused No. 1, inasmuch as no overt act is alleged against him. The prosecution evidence against accused, No. 1 does not come even within the relm of suspicion, still less a strong or grave suspicion, and, thereforer, there are no sufficient grounds to proceed against accused No. 1 either on the charge of conspiracy or on the charge of abetment.

52. As far as accused Nos. 2, 3 and 4 concerned, I have already indicated that there is some material or some suspicion against them for having abetted on the basis of overt acts alleged against them and the learned Additional Sessions Judge may be justified in proceeding against them for framing the charge for having committed offence punishable under section 307 read with section 109 of the Indian Penal Code. The learned Additional Sessions Judge may be on receipt of the record of this case frame proper charges against accused Nos. 2, 3 and 4 as well as accused No. 5.

53. However, before passing a final order in this case, a brief reference may be made to two submissions made by the learned Special Public Prosecutor. He very fairly pointed out to me that though a view has been taken in some of the decisions of the Supreme Court and specially in a recent decision by Justice D.A Desai in the case of (V.C Shukla v. State), 1980 Supp SCC 92 : A.I.R 1980 S.C 962, that the order of framing charge is an inlerlocutory order, he was aware of the observations of the majority judgment in paragraph 44 of the said judgment, where it is held:

“As the decisions of this Court in the case of Madhu Limnye and Amarnath v. State of Haryana were given with respect to the provisions of the Code, particularly section 397(2), they were correctly decided and would have no application to the interpretation of section 11(1) of the Act, which expressly excludes the provisions of the Code of Criminal Procedure by virtue of the non abstante clause.”

54. In 10(Madhu Limaye v. State Of Maharashtra.), (1977) 4 SCC 551 : A.I.R 1978 S.C 47, Justice Untwalia speaking for the Court and who was the party to the earlier decision in Amarnath's case has at length considered the question whether framing of a charge is an interlocutory or final order. In paragraph 12 of the said judgment, Untawalia, J., has traced the history of this controversy as to the distinction between the interlocutory order and final order and after referring to the English cases and Indian case, he observed that ultimately framing of the charge was a final order and not an interlocutory order. He drew support from the judgment of Shelat, J., in 11(Mohan Lal Tacker v. State of Gujarat). A.I.R 1968 S.C 733. In that case a question arose whether the order directing filing of a complaint against Mohan Lal under section 476 of the Indian Penal Code was or not a “final order” within the meaning of Article 134(a)(c) of the Constitution of India. Shelat, J., delivering the judgment on behalf of himself and two other learned judges held that it was a final order. In the majority decision four tests were culled out from some English decisions and they were enumerated in paragraph 4 of that judgment and the fourth test was: “If the order in question is reversed, would the action have to go on?” Applying that case to the facts of the instant case, it would be noticed that if the plea of the petitioners succeeds and the order of the learned Additional Sessions Judge is reversed, the criminal procedings under the charge of conspiracy against accused No. 1, as well as accused Nos. 2, 3, and 4 as initiated, cannot go on. This decision in Madhu Limaye's case was, therefore, held to be a good law by the subsequent judgment in V.C Shukla's case.

55. This Court had an occasion to decide whether the order of framing of a charge was on interlocutory order within the meaning of section 397 of the Coda of Criminal Procedure. In 12(Criminal Revision Application No. 246 of 1979), decided by Gadgil and Mehta, JJ., the reference made by Pratap, J., was answered by the Division Bench holding that the order of framing a charge is not an interlocutory order within the meaning of section 397(2) of the Code of Criminal Procedure. In this judgment the learned judges had referred to the decisions of the Supreme Court in Amarnath's case (supra), Madhu Limaye's case (supra) and V.C Shukla's case (supra). After referring to all these cases, the final conclusion at which the Division Bench had arrived at was:—

“We think that the Supreme Court in Madhu Limaye's case as also in V.C Shukla's case has specifically held that an order of framing charge is not an interloutory order.”

56. The learned Special Public Prosecutor in fairness did not argue that the order of framing charge of conspiracy by the learned Additional Sessions Judge against the accused was an interlocutory order. He only submitted that in view of the various decisions of the Supreme Court in Amarnath's case, Madhu Limaye's case and V.C Shukla's case as also the interpretation adopted by the Division Bench of this Court, all those judgments are binding on all of us and in view of the ratio of this decision, he would not deem it necessary to argue this point and, in my opinion, rightly so. The decisions in these three cases leave no scope, except to hold, that an order of framing charge is a final order though there are certain observations by Desai, J., in paragraph 110 of his judgment to the contrary.

57. The last point to which some reference was made by Mr. Patel is whether if prima facie there is no evidence on the charge of conspiracy made out by the prosecution, is it open for this Court to quash the proceedings as far as the charge of conspiracy concerned? Mr. Patel placed a heavy reliance on the judgment delivered by the learned Chief Justice Mr. Y.V Chandrachud in the case of (State of Karnataka v. L. Muniswamy), (1977) 2 SCC 699 : A.I.R 1977 S.C 1489. This is the only case which involved consideration of sufficiency of grounds to frame a charge of conspiracy against those accused who were not concerned with actual commission of crime, in all other decisions of the Supreme Court the petitioners themselves were perpetrator of crime. In Muniswamy's case, however, the question was whether there were sufficient grounds to proceed to frame a charge of conspiracy and in that context there are some observations of valuable guidance and assistance. In that case the question that had arisen was whether the High Court of Karnataka was right in allowing the petition of the accused persons and quashing the charge of conspiracy. The learned Chief Justice at considerable length dealt with sections 227 and 228 of the Code of Criminal Procedure and also the scope of inherent powers of the High Court under new section 482 of the Code of Criminal Procedure. The learned Chief Justice referred to earlier judgment of Gajendragadkar, J., in the case of 13(R.P Kapur v. State Of Punjab.), A.I.R 1960 S.C 886, and traced the scope of inherent power of the High Court under the provisions of section 482 of the Code of Criminal Procedure. On the scope of section 227 of the framing charges the learned Chief Justice observed as follows:—

“It is clear from section 227 of the New Code that the Sessions Court has the power to discharge an accused after perusing the record and hearing the parties he comes to the conclusion for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. The object of provision on which requires the Sessions Judge to record its reasons is to enable the superior Court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court, therefore, is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order justified by the facts and circumstances of the case. In the exercise of the wholesome power under section 482, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of Court or that the ends of justice requires that the proceeding ought to be quashed.”

58. In the course of the judgment, the learned Chief Justice further observed:—

“Gajendragadkar, J., who spoke for the Court in Kapur's case observes in his judgment that it was not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of the High Court's inherent jurisdiction. The throe instances cited in the judgment as to when the High Court would be justified in exercising its inherent jurisdiction are only illustrative and can in the very nature of things not regarded as exhaustive. Considerations justifying the axercise of inherent powers for securing the ends of justice naturally vary from case to case and jurisdiction as wholesome as the one conferred by section 482 ought not to be encased within the strait-jacket of a rigid formula.”

59. One of the tests laid down by Gajendragadkar, J., in the leading judgment in Kapur's case is that where the allegations contained in the first information report or the complaint, even if they are taken at their face value and accepted, in their entirety, do not constitute the offence alleged. I have already come to the conclusion that all the allegations contained in the various statements of the witnesses to whom the prosecution proposes to examine on the charge of conspiracy do not make out even a prima fecie case of conspiracy against accused No. 1, Dr. Samant. Some references to him here are there remain largely in the relm of suspicion. I have earlier held that there are no sufficient grounds to proceed with the trial on the charge of conspiracy. In such cases, as Gajeneragadkar, J., observed: “in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not”. As also observed by Gajendragadkar, J., “the inherent jurisdiction of the High Court can be excicised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice.” This Court is, therefore, entitled in exercise of its powers under section 482 of the Code of Criminal Procedure to quasn the order dated October 13, 1980 by the learned Additional Sessions Judge in Sessions Case No. 305 of 1979 to the extent of framing the charge of conspiracy against petitioner-accused Nos. 1 to 4. As held earlier that as there is some suspicion against accused Nos. 2, 3 and 4 for having abetted the offence cemmited by accused No. 5, the learned Additional Sessions Judge will frame appropriate charges, as there are sufficient grounds for proceedings further against accused Nos. 2, 3 and 4 for those offences and, of course, against accused No. 5.

60. The learned Additional Sessions Judge is, therefore, directed to frame appropriate charges under section 307 read with section 109 of the Indian Penal Code against accused Nos. 2, 3, 4 and 5.

61. This criminal application, therefore, is partly allowed. The charges of conspiracy framed by the learned Additional Sessions Judge, Greater Bombay, against accused No. 1, Dattatraya Narain Samant, accused No. 2, Dattaram pandurang Mungekar, accused No. 3, Prabhakar Shankar Sawant and accused No. 4, Anant Tukaram Shinde are hereby quashed and set aside. It is further directed that since there are no sufficient grounds to proceed against accused No. 1, even in respect of the charge of abetment, he shall be wholly discharged from Sessions Case No. 305 of 1979. However, on consideration of the record of the case and documents submitted herewith and after hearing the respective Counsel, as I am of the opinion that prima facie there are grounds for holding that accused Nos. 2, 3 and 4 may have abetted the commission of the crime committed by accused No. 5, the learned Additional Sessions Judge is hereby directed to frame the appropriate charges against accused Nos. 2, 3 and 4 for having committed offences punishable under section 307 read with section 109 of the Indian Penal Code and proceed with the trial.

62. At this stage, Mr. P.R Vakil, the learned Special public Prosecutor, prays for leave to appeal to the Supreme Court of India. Leave to appeal is hereby rejected.

Partly allowed.