506 (i ) & 120 ( b ) r/w 196 ( 2 ) cr.p.c

Jolly James 9447287658 (Querist) 13 September 2011 This query is : Resolved
Whether sanction is necessary to prosecute offence under section 506 (i ) & 120 ( B )of I.P.C as per sec. 196 ( 2 )of Cr.P.C ( Punishment described either description of imprisonment for two years. Whether this can be consider as rigorous imprisonment? Please advice me

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Advocate Rajkumarlaxman (Expert) 14 September 2011
yes of course it is necessray. to clearify just go through the below matter and the sections are already clear enough to understnad the same.

T.V. Sarma vs R. Meeriah And Ors. on 15 February, 1980
Equivalent citations: AIR 1980 AP 219
Author: A Kuppuswami
Bench: A Kuppuswami, J Reddy, P Choudary

JUDGMENT

Alladi Kuppuswami, J.

1. This revision petition is filed against an order of the Metropolitan Sessions Judge in Sessions Case No. 28 of 1978 holding that there are no grounds for framing charges against A-3, A-5 and A-7 to A-14 and directing that charges be framed only against A-1, A-2, A-4 and A-6 for the two offences namely (1) under Section 120-B read with Section 201 I. P. C. and (2) under Section 120-B read with Section 500 I.P.C.

2.The petitioner is a leading criminal lawyer of this court. His son, Dr. Krishna Rao a Medical Officer in the Osmania General Hospital was married on 2nd January , 1975 to Kamala Devi, daughter of Koteswara Rao and the younger sister of A-1. The marriage was celebrated in the village Swarna, Prakasam District in the house of the bride's parents. After the marriage, the couple left for Hyderabad on 3-1-1975. On the way at Narsaraopet, Kamaladevi had vomitings and it was found that she was pregnant. They reached Hyderabad on the morning of 4-1-1975 and they again left for Swarna on 5-1-1975 as the consummation ceremony was fixed that night. It is the case of the petitioner that Dr. Krishnarao took his father in law to task for having passed on a pregnant lady as a virgin and getting her married to him His further case is that A-2, an advocate of Chirala, A-1 the brother of the bride and her father entered into a conspiracy to kill Dr. Krishna Rao by administering poison, as the fact of pregnancy before marriage became known to him. They accordingly murdered him by administering poison on the night of 5-1-1975 and the dead body was thrown in the canal. The dead body was found in the canal on the morning of 6-1-1975. As the petitioner suspected that A-1 and A-2 and bride's father with the connivance of A-3 Circle Inspector of Police, Chirala and A-4, the Sub- Inspector of Police, Inkelly within whose jurisdiction Swarna village is situate, were attempting to cremate the body, he alerted the higher police officials immediately. The body was therefore brought to Chirloa for post mortem examination which was conducted by the Medical Officer of Chirala on the morning of 7-1-1975. It disclosed that the death was not due to drowning. The police registered the case as Crl. No. 2/75 at the Police Station, Inkellu. The petitioner requested them to register a case under Section 302 and 201 I. P. C. read with Section 154, Cr. P. C. The doctor who conducted the post mortem examination gave a requisition to the Magistrate, Chirala for sending the viscera for chemical examination by A-9 for detecting poison, if any. The investigation was handed over to A-5, Inspector of Police, C. B., C. I. D. A-7 was the Superintendent of Police, Ongole. According to the petitioner on 14-1-1975 A-1 to A-9 met at Annapurna Hotel at Hyderabad and entered into a conspiracy for suppressing the evidence of murder of Dr. Krishna Rao and to screen the offenders from legal punishment. In pursuance of the conspiracy a report dated 14-1-1975 signed by A-5 was submitted to A-8 suppressing the evidence of murder. The viscera was sent to A-9 on 16-1-1975 signed by A-5 was submitted to A-8 suppressing the evidence of murder. The viscera was sent to A-9 on 16-1-1975 and A-9 gave his opinion on 10-2-1975 in pursuance of the conspiracy to the effect that ethylalcohol was found in the liver and viscera. It is also stated that the entire viscera was consumed in the test. The report was contrary to the opinion of the doctor who conducted autopsy and who had said that there was no trace of poison. The report also was the outcome of the conspiracy entered into between A-1 to A-9 spiracy entered into between A-1 to A-9 for suppressing the evidence of murder. A-5 also brought a report into existence that Dr. Krishnarao was important and that his death might be due to suicide. The allegation that the deceased was impotent was defamatory. With these allegations the petitioner filed a case before the VI Metropolitan Magistrate, Hyderabad. After recording the sworn statement of the complainant, and two witnesses, the Magistrate took congnizance of the offence alleged against the accused and registered the case as P. R. C. 7/76 for the offences punishable under Section 120-B, 120-B read with Sec. 201 and 120-B read the Section 500 I. P. C. That case was later on transferred to the court of the V. Metropolitan Magistrate, Hyderabad and numbered as P. R. C. 3/78 on his file. Meanwhile the Crime Branch filed P. R. C. 9/75 before the II class Magistrate, Chirala, for offences punishable under Secs. 302, 201, 120-B and 218 I. P. C. against Kamaladevi, her father and others. P. R. C. 9/75 was committed to Sessions and registered as S. C. 44/75 by the District & Sessions Judge, Ongole. The petitioner not being satisfied with the manner in which the police were conducting the case, filed a private complaint against 24 persons and this was registered as P. R. C. 1/75 in the court of the Additional Munsif Magistrate, Chirala for offences punishable under Sections 120-B, 120-B read with Section 302 and Section 201 and 120-B read with Sections 211, 218 and Section 466 I. P. C. This case was committed to Sessions and registered as S. C. No. 8/76 on the file of the District and Sessions Judge, Ongole. The two Sessions cases are pending in the Sessions Court.

3. A-7 to A-9 in P. R. C. 7/76 (later on numbered as P. R. C. 3/78) filed Crl. M. Ps. To quash the proceedings in P. R. C. 7/76. On 16-2-1977 this court (Sheth, J.) quashed the charges against A-7 to A-9 under Section 120-B read with Section 500 I. P. C. on the ground that they could not be prosecuted for these offences without prior sanction of the State Government under Section 197, Cr. P. C. Sheth, J. however directed that the Magistrate should proceed against A-7 to A-9 in so far as charge under Section 120-B alone was concerned as that did not require sanction under Section 197, Cr. P. C. He further observed that while considering that charge it would be open to the Magistrate or the Sessions Judge, if the case is committed, to take all the relevant facts into account and the evidence relating to offence under Sections 500 and 201 I. P. C. A-1 to A-3 and A-5 Also filed petitions for quashing the order taking cognizance of the offences in P. R. C. 7/76. On behalf of A-5 it was not only contended that sanction was necessary under Section 197, Cr. P. C. but the prosecution was barred by limitation in view of Section 53 of the Madras District Police Act. A-1 urged only the contention based on Section 53 of the Madras District Police Act. A-1 and A-2 submitted that there was no sufficient material for taking cognizance of the offence. By its order dated 18-2-1977 Sheth, J. held that sanction was necessary for prosecution of A-5 under Section 120 -B read with Section 201, Section 120-B read with Section 500 I. P. C. and also that the proceedings were barred by limitation against A-3 and A-5 under Section 53 of the Madras District Police Act as the prosecution was instituted on 29-6-1976 for the offences said to have been committed on 14-1-1975. The petitions filed by A1 and A-2 were dismissed. The petitioner herein filed Crl. M. P. 635 and 637 of 1977 before a Division Bench consisting of Madhava Rao and Madhusudan Rao, JJ. Challenging the order of the Single Judge dated 18-21977 in so far as it related to A-3 and A-5 and also against the order of the single Judge dated 16-2-1977 relating to A-7 to A-9. The Division Bench by its judgment dated 20-4-1977 dismissed the Crl M. Ps. In the result, the position was that according to the orders of Sheth, J., the prosecution against A-3, A-5 was barred by limitation and A-7 to A-9 could be proceeded against only for the offence under Section 120-B I. P. C. simpliciter and not for offences under Section 120-B read with Section 201, 120-B read with Section 500 I. P. C.

4. Encouraged by the decision of the High Court in the above proceedings A-4 and A-6 also filed petitions to quash the proceedings in P. R. C. 7/76 contending that the prosecution was barred by limitation under Section 53 of the Madras District Police Act. These petitions were however dismissed by a Division Bench of this Court consisting of Sambasiva Rao and Raghuvir, JJ., who held that Section 53 would apply only to deeds done or intended to be done under the provisions of the District Police Act or under the provisions of any other law for the time being in force and a conspiracy among police officers to suppress the evidence of murder and to screen the murderers from legal publishment, cannot by any stretch of imagination be something done or intended to be done under the provisions of the District Police Act or under the provisions of any other law for the time being in force. This decision in reported in 91977) 2 APLJ 239: (1978 Cri LJ NOC 34). They dissented from the view expressed by Sheth, J. referred to earlier in the case of the petitions filed by A-3 and A-5 that the prosecution against them was barred by limitation under Section 53 of the District Police Act.

5. The petitioner herein filed petitions before the VI Metropolitan Magistrate to commit A-1 to A-9 to sessions for offences publishable under S. 120-B, 120_B read with Section 201 and 120-B read with Section 500 I. P. C. He also filed a petition to implead five others as accused. A-10 and A-11 are police officers. According to the petitioner, A-10 and A-11 took part in the conspiracy to suppress the evidence of murder. The petitioner's further case was that A-12 to A-14 who are the Upper Division Clerks in the Office of the D. I. G., Guntur the DIG, Guntur and the Accountant General respectively in pursuance of a conspiracy, suppressed A-7's leave application and T. A. bills which would prove his presence at Hyderabad on 14-1-1975 which in its turn would probabilise the criminal conspiracy hatched in Annapurna Hotel On 14-1-1975 between A-1 to A-9. The Magistrate allowed the applications and directed notices to be issued to A-10 TO A-14

Who were sought to be added.

6. It is unnecessary to mention the further proceedings in the High Court as they are unnecessary for the purpose of this revision petition. It is sufficient to state that ultimately the Magistrate committed A-1 to A-14 in P. R. C 3/78 to Sessions.

7. Before the sessions Judge a draft containing 24 charges was drawn up by the petitioner giving all the minute details of the prosecution case and the Sessions Judge in his order dated 5th May 1979 proceeded to consider whether charges should be framed against all or any of the accused. Regarding A-1 and A-2, he held that there was sufficient ground for framing charges for offences under Section 120-B read with Sec. 201 and 120-B read with Section 500 I. P. C. Regarding the charge under Sec. 120-B simpliciter he held that Section 196 (2) Cr. P. C. was a bar as it prohibited taking cognizance of offence of any criminal conspiracy publishable under Section 120-B other than criminal conspiracy to commit a cognizable offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District magistrate has consented to initiate proceedings.

8. Regarding A-3 and A-5, he held that no charge can be framed for any of the offences in view of the judgment of Sheth, J., dated 18-2-1977 in Cr. M. P. No. 2750 and 2755 of 1976 which had become final.

9. Regarding A-4 and A-6 he held that as the Division Bench had held in K. Benjamin v. T. V. Sarma, (1977) 2 APLJ 239: (1978 Cri LJ NOC 34) a charge has to be framed against them under Section 120-B read with Sec. 201 and Section 120-B read with Section 500 I. P. C. Regarding charge under S. 120-B simpliciter, he held it was barred under Section 196 (2) of the Cr. P. C.

10. Dealing with A-7 to A-9 he held that the judgment of Sheth, J., dated 16-2-1977 had become final and therefore they cannot be prosecuted for offences publishable under Section 120-B read with Section 201 and Section 120-B read with Sec. 500 I. P. C. As far as the charge under S. 120-B simpliciter was concerned, he held that they could not be proceeded against in view of S. 196 (2), Cr. P. C. Regarding A-10 and A-11 he observed that the acts attributed to them were done by them in discharge of their official duties as police officers who were instructed to assist in the investigation of the crime. Hence, Sec. 197 Cr. P. C. was applicable and in the absence of sanction from the State Govt. they could not be prosecuted for the offences alleged against them. The learned Sessions Judge then considered the case of A-12 to A-14. He observed that the conspiracy alleged against A-12 to A-14 has no connection whatsoever with the criminal conspiracy said to have been entered into by A-1 to A-9 in Annapurna Hotel on 14-1-1975. According to the petitioner this conspiracy oad for its object the suppression of evidence relating to the T. A. etc., of A-7. Hence they could not be proceeded along with A-1 to A-9 at one trial, since that would amount to misjoinder of charges. Further, their failure to produce A-7's casual leave application, casual leave register and T. A. Bill is relatable to official duties and they cannot be prosecuted for offence punishable under Section 120-B read with Section 120-B read with Section 471 I. P. C. in the absence of sanction under Section 197, Cr. P. C.

11. In the result the Sessions Judge held that there are no grounds for framing charges against A-3, A-5, A-7 to A-14 and they were therefore discharged. He further held that charges will be framed against A-1, A-2, A-4 and A-6 for the two offences, namely under Section 120-B read with Sec. 201 and Section 120-B read with Section 500 I. P. C.

12. The petitioner has filed this revision petition challenging the correctness of the order of the Sessions Judge discharging A-3, A-5 and A-7 to A-14.

13. Before dealing with the other submissions made in this revision petition we may refer to the submission made by the petitioner that the order pronounced by the learned Sessions Judge is not one pronounced by him and that he took the assistance of somebody else to bring into existence the impugned order overnight and on the eve of this transfer. This is made at the end of a long affidavit filed by the petitioner along with the Memorandum of Criminal Revision. We do not find any justification for this wild allegation. In the affidavit the petitioner refers to several in accuracies in the statement and facts and even with regard to the questions of law in the impugned order. Even assuming that some of the statements of facts are not accurate, it is in our view impossible to draw an inference that the learned Judge did not write the order himself but took the assistance of somebody else. We have no hesitation in rejecting this allegation as one made without any basis whatsoever.

14. Before dealing with the case of the other accused, it would be convenient to consider that of accused A-12 to A-14 which according to us present no difficulty. As has been noticed already, the sum and substance of the complainant's case is that A-1 to A-9 entered into a criminal conspiracy at Annapurna Hotel on 14-1-1975 and in pursuance of that conspiracy a report was submitted suppressing the evidence of murder and also making defamatory statements against Dr. Krishna Rao. To probabilite the case that A-1 was in Annapurna Hotel on that day the complainant is relying upon certain T. A. Bills and the casual leave register and other documents. It is the case of the petitioner that A-12 to A-14 subsequently entered into a criminal conspiracy with A-7 to Suppress the T. A. Bills and other documents which could probabilise the presence of A-1 at Annapurna Hotel on 14-1-1975. From this it is clear that the conspiracy with which A-7 and A-12 to A-14 are sought to be charged has no connection whatsoever with the criminal conspiracy said to have been entered into between A-1 to A-9 in Annapurna Hotel on 14-1-1975. The learned Sessions Judge was therefore right in holding that A-7 and A-12 to A-14 cannot be proceeded against for the offences with which they are charged along with the other accused at one trial since it would result in mis joinder of charges.

15. The learned Sessions Judge also observed that the failure to produce casual leave register. T. A. Bill etc., is relatable to the official duties of A-12 to A-14 and hence they cannot be prosecuted for the offences punishable under Section 120-B read with Section 201, Section 120-B read with Section 466 and 120-B read with Section 471 I. P. C. in the absence of sanction under Sec. 197, Cr. P. C. it is doubtful whether this part of the order can be upheld as, if such withholding of the documents is in pursuance of a conspiracy as alleged by the petitioner, it cannot be said to be in performance of their official duty (vide our judgment infra where we have discussed this aspect in connection with the charge of conspiracy as against A-1 to A-9). But anyhow as we are in agreement with the ultimate conclusion of the learned Sessions Judge on the first ground referred to above we hold that he was right in discharging these accused.

16. We now turn to the case of the other accused.

17. Sri Sarma contended that in framing charges or discharging the accused the Sessions Judge has only to consider the factual aspect and he has no jurisdiction to discharge the accused on the ground of absence of sanction under Section 197, Cr. P. C. or that the prosecution is barred by limitation under the District Police Act, or that he is precluded from framing charges in view of Sheth, J.'s judgment in prior proceedings. We are unable to agree with this submission. Under Section 227 of the cr. P. C. "If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing". On the other hand under Section 228, Cr. P. C. "If after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Sessions Judge he shall frame a charge against the accused". It is clear from Section 227, Cr. P. C. that the Sessions Judge is bound to discharge the accused if he considered that there is no sufficient ground for proceeding against the accused. The language is wide enough to include any ground which he considers sufficient for not proceeding against the accused. The ground may be that the evidence produced is not sufficient to warrant the Sessions Judge to proceed against the accused even on the facts placed before him. If therefore, the Sessions Judge finds that the accused cannot be proceeded against as no sanction has been obtained or that the prosecution is clearly barred by limitation or that he is prior judgment of this court, the Sections Judge is not only justified in discharging the accused but is bound to do so. Sri Sarma drew our attention to State of Bihar v. Ramesh Singh, where it was held that reading Section 227, Cr. P. C. and Section 228, Cr. P. C. together it is clear that at the initial stage of the trial, the evidence which the prosecutor proposes to adduce is not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. The standard of test and judgment which is to be finally applied before recording a finding regarding to 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 Cr. P. C. 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. If the evidence which the prosecutor proposes to adduce even if fully accepted 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 even, at the initial stage of making an order under Section 227 or Section 228 ordinarily or generally the order which will have to be made will be one under Section 228 and not under Section 227, Cr. P. C. There cannot be any doubt about the correctness of the proposition laid down by the Supreme Court in the above decision. But we fail to see how this decision is of any assistance to the petitioner. It is not decided in this case by the Supreme Court that it is not open to the Sessions Judge to discharge the accused if he is of the view that proceeding against the accused is contrary to any provisions of law or a judgment of this court.

18. As has already been noticed, the case of the petitioner is that A-1 to A-9 met at Annapurna Hotel on 14-101975 and entered into a conspiracy to suppress the evidence of murder of Dr. Krishna Rao to screen the offenders and in pursuance of that conspiracy a report was made by A-5 and A-9 also gave an opinion to the effect that no poison was found in the liver and on the other hand, ethyl alcohol was found suggesting over drinking. It was also mentioned in the report that Dr. Krishnarao was impotent and that the death might be due to suicide. We have no hesitation in agreeing with the decision of this court in K. Benjamin v. T. V. Sarma, (1977) 2 APLJ 239: (1978 Cri LJ NOC 34) (supra) that such a conspiracy, especially in which police officers are involved to supress the evidence of murder to screen the murderers from legal publishment and also to commit defamation cannot by any stretch of imagination be said to have been done in the discharge of public suit. It is true that the Division Bench was concerned with the provisions of the District Police Act, but there is no substantial difference between the language of Section 197, Cr. P. C. and Section 53 of the District Police Act, but there is no substantial difference between the language of Section 197, Cr. P. C. and Section 53 of the District Police Act. In Section 53 the expression used is "for anything done or intended to be done under the provisions of this act or under the provisions of any other law for the time being in force". In Section 197, Cr. P. C. the expression used is "while purporting to act in the discharge of his official duty". It is ridiculous to argue that it is a party to the criminal conspiracy to suppress the evidence of murder or screening offender from legal punishment. We have therefore no hesitation in holding that no sanction is required under Section 197, Cr. P. C.

19. But in this case, in prior proceedings this court (Sheth, J. ) took the view that sanction is necessary and also that the prosecution is barred by limitation under the District Police Act. This decision is no doubt not correct in view of the decision of the Division Police Act. This decision is no doubt not correct in view of the decision of the Division Bench in K. Benjamin v. T. V. Sarma (supra) in which it has been expressly referred to and dissented from. It was however argued that though this decision may be wrong, it has become final, especially in view of the judgment of a Division Bench consisting of Madhavarao and Madhusudan Rao, JJ., of this court dated 20-4-1977 dismissing applications to quash the orders of Sheth, J. The Sessions Judge is bound by the said judgment and he was therefore right in following the judgment and holding that the concerned accused who were parties to the proceedings in so far as the charge under Section 120-B read with Section 201 and Section 120-B read with Section 201 and Section 120-B with Section 500 I. P. C. are concerned. It is however contended by Sri Sarma that there is no principle of law or provision in the Cr. P. C. which precludes the Sessions Judge from framing the charges against the said accused notwithstanding the judgment of Sheth, J.

20. The question for consideration before us is what is the effect of the judgment of Sheth, J. in the present proceedings before the Sessions Judge?

21. It is a well accepted principle of Criminal law that a person cannot be prosecuted and punished for the same offence for more than once. This principle has been incorporated in Art. 20 (2) of the Constitution. Long before the Constitution the Cr. P. C. of 1898 contained a Section 403 which was in the following terms:

"403 (1) A person who has been once tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried against for the same offence, nor on the same facts for any offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under Section 237.

(2) A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under Section 235, Sub section (1).

(3) A person convicted of any offence constituted by any act causing consequences which together with such act, constituted a different offence from that of which he was convicted may be after wards tried for such last mentioned offence, if the consequences had not happened, or were not known to the court to have happened, at the time when the was convicted.

(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for any other offence constituted by the same acts which he may have committed if the court by which he was first tried was not competent to try the offence with which he is subsequently charged.

(5) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897, or Section 188 of this Code.

EXPLANATION: The dismissal of a complaint, the stopping of proceedings under Section 249, the discharge of the accused or any entry made upon a charge under Section 273, is not an acquittal for the purposes of this section".

Section 26 of the General Clauses Act which is referred to in Section 403 is as follows:

"26. Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and published under either or any of those enactments, but shall not be liable to be punished twice for the same offence".

22. The provisions in the Cr. P. C. of 1973 (Act 2 of 1974) corresponding to Section 403 of Cr. P. C of 1898 is Section 300. Sri Sarma argues that these provisions are not applicable as this is not a case where a person convicted or acquitted of an offence is being tried again for the same offence. He submits that all that happened was that Sheth. J., in one judgment held that in view of the fact that sanction under Sec. 197 Cr. P. C. has not been obtained the court could not take cognizance of the offence, and in another that the prosecution is barred by limitation under the District Police Act. He therefore submitted that Section 300 Cr. P. C. or Art 20 (2) of the Constitution cannot stand in the way of charges being framed again by the Sessions Judge against these accused.

23. Sri Sarma is right in his submission that Section 300 has no application but still we are of the view that the decision of Sheth, J., has become final and it is not permissible for the Sessions Judge to frame charges once again in regard to matters covered by the decision of Sheth J. In our view it will lead to gross miscarriage of justice if in the very same case the judgment rendered by the High Court is held not to be binding upon the Sessions Judge and he is permitted to frame charges once again in the teeth of the judgment of this Court. The fact that the judgement of Sheth, J., was erroneous in view of the subsequent decision of the Bench in a proceeding relating to different accused, will not affect the finality of the judgment of Sheth, J. in so far as the accused before him were concerned.

24. The principle that decision between the same parties in prior proceedings are to be treated as final is referred to sometimes as the principle or "resjudicata" and sometimes as the doctrine of "issue estoppel'. As observed by Spencer Bower and Truner in their Treatise on "Res judicata" (Second Edn. Page 151) there is nothing new about issue estoppel, except its name. The term 'issue destoppel' to cover estoppel by issues determined in some earlier proceeding, which necessarily and fundamentally form the very basis of judgment delivered, was apparently first coined by Higgins, J., in Australia in 1921 in his dissenting Judgment in Hoysted v. Taxation Commr. (29 Comm LR 537). It was again taken up by Dixon. J., in the same Court nearly twenty years later in Blair v. Curran, (62 CLR p. 464) and later again by Fullagar, J., in Jackson v. Goldsmith (81 Comm LR 446). It finally achieved the feat of successful transplantation to the English jurisdiction, Lord Denning, M. R., and Diplock L. J. in the Court of Appeal and finally the Lords of Appeal in ordinary accepting it as a useful addition to the terminology of the subject.

25.Diplock L. J. thus defined it in Thoday v. Thoday (1964 p. 181).

"The second species, which I will call 'issue estoppel', is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled.

Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfillment of an identical condition is a requirement common to two or more different causes of action. If in litigation on one such cause of action any of such separate issues whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either on evidence or on admission by a party to the litigation, neither party can, in subsequent litigation between them on any cause of action which depends on the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was".

26. The question as to how far the principle of 'issue estoppel' applies in a criminal case has been considered in a number of decisions of the Privy council Supreme Court and the House of Lords and it will be useful to refer to them briefly.

27. In Sambasivam's case, 1950 AC 459 a person was charged with carrying a fire arm and being in possession of ammunition. He was acquitted of the second charge of being in possession of ammunition and that acquittal became final. He was later convicted of the offence of carrying a fire arm and as against the said conviction there was an appeal to the Privy Council. The Privy Council held that the offence regarding the revolver being loaded and of the appellant carrying bullets is inadmissible in law, in deciding the charge relating to the carrying bullets is inadmissible in law, in deciding the charge relating to the carrying bullets is inadmissible in law, in deciding the charge relating to the carrying a fire arm as he had been acquitted of the second charge of being in possession of ammunition. Lord Macdermott speaking for the Board said:

"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication"

28. In Pritam Singh's case, , is was held that where an issue of fact has been tried by a competent court on a former occasion and finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 403 (2) (of the old Code). The correctness of this decision was questioned again before the Supreme Court in Manipur Administration v. Bira Singh, . The Supreme Court held that the rule of issue estoppel is not the same as the plea of double jeopardy or autrefois acquit. It does not introduce any variation in the Code of Criminal Procedure either in investigation, enquiry or trial. It relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court at a previous trial. Section 403 Cr. P. C. (old Code) does not preclude the applicability of this rule of issue estoppel. The rule is in accordance with the sound principle and there is no reason for discarding the rule especially as it had been accepted by the Supreme court as a proper one to be adopted in Pritam Singh's case (supra). In the circumstances they affirmed the decision in Pritam Singh's case (supra). It is clear from these decisions that the Supreme Court has held that the principle of issue estoppel applies to criminal cases also. We are however aware that in a recent decision in Reg. V. Humphrys, (1976) 2 WLR 857, the House of Lords has held that the doctrine of issue estoppel has no place in English Criminal law; that determination at a first trial of an issue in favour of the accused is no bar to the admission at a second trial of evidence given at the first trial. In that case the respondent was charged with driving a motor vehicle while disqualified. The only issue at the trial was whether a police officer was correct in identifying the respondent as the driver of a motor bicycle on that day. In evidence the respondent denied driving any motor vehicle. He was acquitted. Later he was charged with perjury, the allegation being that at the first trial he had wilfully made a statement which he knew to be false, namely, that he did not drive any motor vehicle during that period. The same police officer was a prosecution witness at the second trial. The Judge rejecting a plea of issue estoppel raised by the defence, allowed the police officer to give evidence again identifying the respondent as the driver of the motor bicycle which he had stopped on the earlier occasion. The respondent was convicted. The House of Lords held that the trial Judge had rightly admitted the evidence of the Police Officer and the respondent's conviction was justified. Dealing with Sambasivam's case, (1950 AC 458) (supra), it was observed by some of the Law Lords that it could not be regarded as an authority as to issue estoppel. (though that case was relied on in support of the principle by the Supreme court in Pritam Singh's Case, , (supra). Whatever may be the view of the House of

Lords in regard to issue estoppel in English criminal law, we are bound by the decision of the Supreme Court in Pritam Singh's case, (supra) and Manipur Administration v. Bira Singh, (supra)

observed that the rule of issue estoppel in a criminal trial is that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution. But this principle in our view would equally apply to an issue of law also. The principle of issue estoppel has been invoked in criminal cases in order to cover cases where the plea of autrefois acquit will not be available because the crime with which the accused in order to cover cases where the plea of autrefois acquit will not be available because the crime with which the accused is charged in the later proceedings may not be the same crime of which he was acquitted earlier. Yet it may be that the verdict of acquittal is the earlier proceedings might have been based on a finding, the consequence of which is that he must be acquitted of the charge in the later proceedings also. That is not able to show that the crime charged is substantially the same crime on which a finding was given in the first verdict. Such a situation is covered by principle of issue estoppel (which as has been pointed out on a number of occasions is only a convenient label or res judicata. In Connelly v. Director of Public Prosecution. 1964 AC 1254, Lord Morries said "apart from circumstances under which there may be a plea of autrefois acquit, a man may be able to show that a matter has been decided by a court competent to decide it, so that the principle of res judicate applies".

29. Again Lord Mac Dermott in Sambasivam's case, 91950 AC 458) (supra) observed:

"The maxim 'Res judicata pro veritate accipitur' is no less applicable to criminal than to Civil Proceedings". In several Australian cases also the principle of issue estoppel has been held to be available in criminal proceedings. It is thus seen that 'issue estoppel' or "res judicata' applies to issues of fact and also of law which have been raised and settled once and for all between the parties even if the judgment is pronounced in criminal proceedings.

30. The case with which we are dealing is a fortiori case. This is not merely a case where an issue was decided in other proceedings and that decision is relied on in a second set of proceedings. We are concerned with a case where in proceedings arising in the very same Sessions case, the High Court has held on a prior occasion that the accused 7 to 9 cannot be proceeded against for want of sanction under Section 197 Cr. P. C. and the prosecution against A-3 to A-5 is barred by limitation. There cannot be any doubt that such a decision would be final at least in so far as the same accused is concerned. What ever may be the difference of opinion between the English courts and the Supreme Court as to the application of 'issue estoppel' in a case where the criminal proceedings are different, if the parties are allowed to urge the same question again and again in the same proceedings it would in our opinion, result in abuse of process of court. We are therefore, of the view that the decision of Sheth, J., though erroneous is binding on both the parties in these proceedings and A- 7 to A-9 and A-3 to A-5 cannot be proceeded against in respect of charge under Section 120-B read with Section 201 and Section 120-B read with Section 500 IPC.

31. Having held that the judgment of Sheth, J. precluded the court from framing charges against A-3, A-5 and A-7 to A-9 in respect of offences under Section 120-B read with Section 201 and 500 IPC the court below proceeded to consider whether charges could be framed under Section 120-B simpliciter. It held that Section 196 (2) Cr. P. C. is a bar to the prosecution of all the accused for the offence of conspiracy simpliciter under Section 120-B IPC. This conclusion is based upon a misapprehension of the meaning and effect of judgment of Sheth, J. Criminal conspiracy' is defined in Section 120-A as follows: -

"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.

Provided 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.

EXPLANATION:

It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object".

Section 120-B then proceeds to provide for the punishment of criminal conspiracy. Thus, it is seen that the gist of the offence of criminal conspiracy is an agreement to do an illegal act, or an act which is not illegal by illegal means. The meaning of the direction that a person should be tried for an offence under Section 120-B simpliciter in Sheth, J.'s judgment is that he should be tried for an offence of conspiracy to commit the offence for which an agreement was entered into which in this case is alleged to be an agreement to cause disappearance of the evidence and to defame the petitioner's family which are offences under Section 201 and Section 500 IPC therefore, the direction of Sheth, J., should be understood to mean that the accused can be charged for the offence of conspiracy to cause disappearance of the evidence and to defame the petitioner's family. Understanding the said direction in the said manner, let us consider the effect of Section 196 (2) Cr. P.C.

32. Under Section 196 (2) Cr. P. C. no court shall take cognizance of the offence of any criminal conspiracy punishable under Section 120-B of the I. P. C. other than a criminal conspiracy to commit a cognizable offence punishable with death, imprisonment for life or rigorous imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings. In this case the offence under Section 201 IPC is punishable with imprisonment which may extend to seven years as the offence regarding which the evidence is caused to disappear or the offenders are sought to be screened from legal punishment is murder which is an offence punishable with death. Hence Section 196 (2) Cr. P. C. has no application in so far as the conspiracy to suppress evidence of the commission of offence or to screen the offenders from legal punishment is concerned. However, in regard to the offence of defamation under Section 500 IPC the punishment is simple imprisonment which may be extended to two years. Hence Section 196 (2) Cr. P. C. applies. The result therefore is that A-7 to A-9 have to be charged for conspiracy to commit an offence under Section 201 IPC though they may not be charged for committing offence under Section 201 IPC in pursuance of the conspiracy.

33. Sri Padmanabha Reddy argued that even assuming that the judgment of Sheth, J., and the provisions of Section 196 (2) Cr. P.C. do not preclude the court from framing charges against A-1 to A-9 in respect of an offence of conspiracy under Section 120-B to commit offence under Section 201 IPC, still there is no material at all to frame charges against these as well as other accused. He submitted that the only evidence in the enquiry under Section 202 IPC was that of one Lakshman Rao and the petitioner's son Shyamasundara Rao. He took us through the evidence and tried to satisfy us that there is absolutely no material in support of the prosecution case of a conspiracy in Annapurna Hotel, we are unable to agree with this submission. As has been pointed out by the Supreme Court in State of Bihar v. Ramesh Singh, (supra) already referred to, the evidence which the prosecutor proposes to adduce is not to be meticulously judged at the initial stage of framing a charge. Nor is any weight to be attached to the probable defence of the accused. 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 to be applied in deciding the matter when a charge is framed. In the later case the court is only concerned with the question whether there is sufficient ground for conviction of the accused and not whether the trial is sure to end in his conviction. If the scales are even as to the guilt or innocence of the accused, ordinarily or generally the order which will have to be made is one under Section 228 and not under Section 227 Cr. P. C. In this case the learned Sessions Judge has observed that the voluminous material which the complainant has placed before the court would suggest that a criminal conspiracy might have been entered into by the concerned persons for the purpose of suppressing the evidence of Dr. Krishna Rao's murder in order to screen the offenders from legal punishment and that the conspiracy was also to defame the deceased Dr. Krishnarao. Hence he held that there was sufficient ground for framing charges against A-1 and A-2 for the offence under Section 120 read with Section 201 and Section 120-B read with Section 500 I. P. C. Had it not been for the impediment caused by the judgment of Sheth, J. in earlier proceedings and provisions of Section 196 (2) and Section 197, Cr. P. C. on the same reasoning the court below should have framed charges against A-3 to A-9 also. It is not open to us in a revision petition to question the correctness of the opinion formed by the learned Sessions Judge on the material placed before him that it was sufficient to frame charges against the accused. We therefore negative the contention of Sri Padmanabha Reddy that there is absolutely no material at all to frame charges.

34. Regarding A-10 and A-11 as in the case of A-12 to A-14 the acts attributed to them have nothing to do with the alleged conspiracy said to have been hatched in Annapurna Hotel. The case of the petitioner against them is that they did not carry out the instructions issued by the Dy. Inspector General of Police to them regarding the investigation into the case. The learned Judge has set out in para 32 the various acts and omissions which are attributed to A-10 and A-11 by the petitioner and it is unnecessary to repeat them in detail. We agree with the learned Sessions Judge that these acts and omissions have nothing to do with the conspiracy between A-1 to A-9 in Annapurna Hotel on 14-1-1975. Further these acts and omissions are obviously done in their official duty as police officers who were instructed to assist in the investigation of crime No. 2/75 and hence the provisions of Section 197, Cr. P. C. are applicable. We agree with the learned Sessions Judge that they cannot be prosecuted for the offences alleged against them.

35. Having regard to our conclusion on the various points raised in this revision the ultimate result is that the decision of the learned Sessions Judge is modified to the extent that A-7 to A-9 may be proceeded against in respect of the offence of conspiracy to commit the offence under Section 201 I. P. C. In other respects the decision shall stand.

36. The revision is accordingly allowed in part.

Alladi Kuppuswami and P.A. Choudary, JJ.

37. Having regard to the view we have taken we do not certify that this is a fit case for appeal to the Supreme Court.

Jayachandra Reddy, J.

38. I agree with my learned brother Kuppuswami, J. that the judgment of Sheth, j. and the provisions of Section 196 (2) of the Code of Criminal Procedure do not preclude the Metropolitan Sessions Judge from proceeding against accused 7 to 9 in respect of an offence of conspiracy under Sec. 120-B I. P. C. to commit an offence under Section 201 I. P. C. But I am of the view that they cannot straightway be charged for this offence i. e. Section 120-B I. P. C. simpliciter and tried without being given an opportunity under Section 227, Cr. P. C. enabling them to substantiate their plea seeking discharge on the ground that there is no sufficient material to proceed.

39. Sri C. Padmanabha Reddy vehemently contended that there is absolutely no material at all to frame charges against these accused under Sec. 120-B I. P. C. simpliciter. His grievance is that no Court so far has looked into the so called material on the basis of which the accused are sought to be proceeded, It is also his contention that the learned Metropolitan Sessions Judge has not considered the plea of discharge on merits and on the other hand he discharged them on the ground that there was legal bar. It is also his contention that the documents sought to be relied upon by the complainant are only in the nature of correspondence between officers and they do not in any way suggest that there is a conspiracy among the accused, and even otherwise, the documents will be admissible only by virtue of Section 10 of the Evidence Act provided there is some material to show prima facie that there was such an agreement to commit the offence of conspiracy. Having given my earnest consideration to these submissions, I am inclined to hold that accused 7 to 9 should be given an opportunity as mentioned above, under Section 227, Cr. P. C. particularly when we are setting aside the order of discharge passed by the learned Metropolitan Sessions Judge in their favour on the ground that Section 196 (2) Cr. P. C. is no bar.

40. The question is whether there is sufficient material against accused 7 to 9 to frame a charge for conspiracy simpliciter to commit an offence under Section 201 I. P. C., though they cannot be charged for committing an offence under Section 201 read with Section 120-B I. P. C. as such. The judgment of Sheth, J. has become final and consequently these accused cannot be prosecuted for the offences under Section 120-B read with Section 201 and Section 120-B read with Section 500 I. P. C. Therefore, the only accusation that remains against them is that they entered into a criminal conspiracy punishable under Section 120-B I. P. C. and the offence sought to be committed was to cause the disappearance of the evidence. It is needless to say that gist of an offence of conspiracy simpliciter is the agreement to commit an offence, and is rather very difficult to prove. However, we are not concerned at this state to see whether there is sufficient material to prove the offence. Under the Cr. P. C. 1973 the committal court simply transmits the record to the Court of Session and it is only the Sessions Court under Section 227, Cr. P. C. that has to consider whether there is sufficient ground for proceeding against the accused. This is a valuable right given to the accused and the court has to discharge the accused if there is no sufficient ground for proceeding against him. The provision of law saves the accused persons from undergoing the ordeals of criminal trials based on frivolous and baseless accusations. In State of Karnataka v. Muniswamy, the supreme Court considered the scope of Section

227, Cr. P. C. and observed thus:

"It is clear from the provision that the Sessions Court has the power to discharge an accused if 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 the provision which requires the Sessions Judge to record his 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."

Their Lordships further held thus:

"On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D. D. Ghadigaonkar, and Century Spinning and Manufacturing Co. v.

State of Maharashtra, show that it is wrong to say

that at the stage of framing charges the Court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial."

41. In the instant case, except making a stray observation that the voluminous material placed by the complainant suggests that a criminal conspiracy might have been entered into by the concerned accused, the learned Metropolitan Sessions Judge did not consider what that material is and how it is sufficient. Even this observation was made while referring to the case against accused 1 and 2. It is true, as observed by the Supreme Court in State of Bihar v. Ramesh Singh , that it is not obligatory for the Judge at that

stage of the trial to consider in any detail and weight in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. However, their Lordships further observed thus:

"If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable."

Therefore, though the learned Metropolitan Sessions Judge while acting under Section 227, Cr. P. C. need not in detail discuss the material, yet he must at least refer to the outlines of the material placed by the complainant. We have not come across a single paragraph in which the evidence, either oral or documentary, being relied upon by the complainant, has been referred or considered. Paras 1 to 15 of the order of the learned Metropolitan Sessions Judge merely contain the allegations made by the complainant. In Paras 16 to 18 the learned Metropolitan Sessions Judge considered the case against accused 1 & 2, but did not refer to any evidence. In para 19 he refers to some of the decisions of the Supreme Court on the scope of Section 227, Cr. P. C. and there is a casual observation which reads thus:

"The voluminous material which the complainant has placed before the Court would suggest that a criminal conspiracy might have been entered into by the concerned accused persons for the purpose of suppressing evidence of Dr. Krishnarao's murder in order to screen the offenders from legal punishment and that the conspiracy was also to defame the deceased Dr. Krishna Rao. Hence in my opinion there is sufficient ground for framing charges against A-1 and A-2 for two offences, viz., (1) under Sec. 120-B read with Section 201 I. P. C. and (2) under Section 120-B read with Sec. 500 I. P. C."

In Paras 20 and 21 the learned Sessions Judge has considered the cases against accused 3 and 5 and held that no charges can be framed against them in view of the earlier orders of the High Court. In Paras 22 to 27 he has considered the case of A-4 and A-6 only from the point of view of Sec. 53 of the Madras District Police Act and held that they are not protected by the said provisions of law and it is only in Paras 28 to 30 the learned Sessions Judge considered the case against accused 7 to 9 and they read thus:

"28. The case against A-7 to A-9 may now be taken up for consideration. A-7 was the Superintendent of Police, Ongole at the relevant point of time. A-8 was the Superintendent of Police, C. B., C. I. D. A-9 is the Director of Forensic Science Laboratory and Chemical Examiner. A-7 and A-9 figure as accused in S. C. No. 8 of 1976 on the file of the Sessions Court, Ongole. It is interesting to note that the complainant did not implead A-8 as one of the accused in that case but added him only in the present case. A-7 to A-9 are not parties to S. C. No. 44/75 on the file of the Sessions Court, Ongole. Cr. M. P. No. 1304/77 was filed against A-1 to A-9 but the learned Magistrate passed orders in the said petition on 23-9-1977 only in respect of A-1 to A-6. He did not pass any orders in that application as against A-7 to A-9. Cr. M. P. 1305/77 was filed against A-5 and A-8 to A-11. The learned Magistrate passed order therein on 23-9-1977 taking cognizance of the case against A-8 and A-9 under Section 120-B and Section 120-B read with Section 201 I. P. C. Crl. M.P. 1306/77 was filed against A-7 and A-12 to A-14. The learned Magistrate passed orders therein on 23-9-1977 taking cognizance of the offences punishable under Sections 120-B, Section 120-B read with Section 201, Sec. 120-B read with Section 466 and Section 120-B read with Section 471 I. P. C. against A-7 and the other accused impleaded in that petition. It may be mentioned that in Cr. M. P. No. 1306/77 even the petitioner did not allege that the respondents therein viz. A-7 and A-12 to A-14 had committed offences punishable under Section 120-B read with Section 471 I. P. C. Hence as matters stand at present in view of the orders passed by the learned Magistrate in Cr. M. Ps. Nos. 1304 to 1306 of 1977, the offences which are taken cognizance of against A-7 to A-9 are those punishable (1) under Section 120-B and (2) under Section 120-B read with Section 201 I. P. S. as against A-7 the offences taken cognizance of in addition to the two offences mentioned above are those punishable (1) under Section 120-B read with Section 466 and (2) under Section 120-B read with Section 471 I. P. C. It is significant that the learned Magistrate did not pass orders in Cr. M. Ps. Nos. 1304 to 1306 of 1977 taking cognizance of the offence punishable under Section 120-B read with Section 500 I. P. C. against A-7 to A-9. It may be mentioned that on account of inadvertence, the learned Magistrate passed orders relating to Cr. M. P. No. 1305/77 on the docket sheet of Crl. M. P. No. 1306/77 and vice versa.

29. Assuming that A-7 to A-9 are charged not only with the offences punishable under Section 120-B read with Section 201 I. P. C. but also under Section 120-B read with Section 500 I. P. C., it must be mentioned that the orders passed in Crl. M. P. No. 2726/76 and Crl. M. Ps. Nos. 120 and 141 of 1977 by the High Court on 16-2-1977 have become final and these orders were also confirmed by a Division Bench of the High Court in Cri. M. P. No. 637/77 on 20-4-1977. It is, therefore, too late in the day to contend that the question of the liability of A-7 to A-9 for offences punishable under Section 120-B read with Section 201 and 120-B read with Sec. 500 I. P. C. can still be considered.

30. The liability of A-7 to A-9 for the offence of criminal conspiracy simpliciter punishable under Section 120-B I. P. C. will be discussed separately. A-7's liability for the offences punishable under Section 120-B read with Section 466 and 120-B read with Section 471 I. P. C. will be discussed, when the case of A-12 to A-14 is taken up for consideration."

In Paras 31 to 36 the learned Judge considered the case against A-10 to A-14 and discharged them. He also considered the liability of A-7 in that context and observed thus:

"The details mentioned above clearly show that this conspiracy alleged against A-7 and A-12 to A-14 has no connection whatsoever with the other criminal conspiracy said to have been entered into by A-1 to A-9 in Annapurna Hotel on 14-1-1975. This conspiracy which is now alleged against A-7 and A-12 to A-14 has for its object the protection of A-7 from being proceeded against for the other conspiracy said to have been entered into by A-1 to A-9 in Annapurna Hotel on 14-1-1975. A-12 to A-14 are not at all interested in the suppression of evidence of Dr. Krishan Rao's murder or in defaming Dr. Krishna Rao by imputing impotency to him, Moreover A-1 to A-6 and A-8 and A-9 are not concerned in the offences punishable under Section 120-B read with Sec. 466 and Section 120-B read with Section 471 I. P. C. which are alleged against A-7 and A-12 to A-14. In this view of the matter, Section 220 (1) and Section 223 (a) and (d), Cr. P. C. do not apply to this case and A-7 and A-12 to a-14 cannot be proceeded against for the aforesaid offences along with A-1 to A-6, A-8 and A-9 at one trial since that would amount to misjoinder of charges. That apart, the failure of A-7, A-12 to A-14 to produce A-7's C. L. application, the C. L. Register and A-7's T. A. Bills for the month of January, 1975 is relatable to their official duties. Hence they cannot be prosecuted for the offences punishable under Section 120-B read with Section 201, Section 120-B read with Section 466 and Section 120-B read with Section 471 I. P. C. in the absence of sanction under Section 197, Cr. P. C."

42. The only two remaining Paras in the order of the learned Metropolitan Sessions Judge are 37 and 38 and they read thus:

"37. The only question that now remains for consideration is whether all or any of the accused can be simpliciter punishable under Section 120-B I. P. C. When we eliminate the offence punishable under Section 120-B read with Section 201, 120-B read with Section 500 I. P. C. Section 120-B read with Section 466 and Section 120-B read with Section 471 I. P. C. we will be left only with the offence of criminal conspiracy simpliciter under Section 120-B (2) I. P. C. which is punishable with imprisonment extending up to six months or with fine or with both. Section 196 (2), Cr. P. C. lays down that not court shall take cognizance of the offence of any criminal conspiracy punishable under Section 120-B I. P. C. other than the criminal conspiracy to commit a cognizable offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceedings. Thus Sec. 196 (2) Cr. P. C. is a bar to the prosecution to these accused persons for the offence of criminal conspiracy simpliciter punishable under Section 120-B (2) I. P. C.

38. For the reasons stated above, I hold that there are no grounds for framing charges against A-3 and A-5 and A-7 to A-14 and they are hereby discharged. On the other hand, charges will be framed only against A-1, A-2, A-4 and A-6 for the two offences viz. (1) under Section 120-B read with Section 201 I. P. C. for criminal conspiracy for the suppression of evidence of Dr. Krishna Rao's murder with the object of screening the offenders from legal punishment and (2) under Section 120-B read with Section 500 I. P. C. for criminal conspiracy to defame Dr. Krishna Rao."

43. I have extracted all the necessary paragraphs wherever there is a reference to accused 7 to 9 and there is nothing in any one of these paragraphs to show that there was some sort of a reference or consideration even superficially of the alleged material against the accused. The facts show that they are all responsible officers at the State level and they had no grudges against the complainant or any interest in the accused. Therefore, in a case of this nature it is all the more necessary that the Court of Session while exercising its jurisdiction under Section 227, Cr. P. C. should carefully see whether there is sufficient ground to proceed against the accused. On the other hand, a perusal of the order of the learned Metropolitan Sessions Judge would show that he considered only the legal bars that come in the way of the prosecution and discharged the accused. So far as the merits are concerned, there is absolutely no consideration and the learned Metropolitan Sessions Judge has not applied his mind at all to the question whether there is sufficient ground to proceed against these accused.

44. It is easy to make an allegation of conspiracy against anybody and that is why we find certain limitations in Section 196, Cr. P. C. which preclude the Courts from taking cognizance of certain cases of conspiracy as mentioned therein. As regards the evidence that can be adduced in proof of the conspiracy, Section 10 of the Evidence Act is an important provision of law which introduces the doctrine of agency and if the conditions laid down therein are satisfied anything said, done or written by one conspirator is admissible against the co-conspirators. As held by the Supreme Court in Bhagwan Swarup v. State of Maharashtra AIR 1965 SC 682: ((1965) 1 Cri LJ 608) this section will come into play only when the court is satisfied that there is reasonable ground to believe that two or more persons have conspired together to commit an offence and there should be prima facie evidence to the conspiracy before his acts can be used against his co-conspirators. Only after such a reasonable ground exists anything said, done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others not only for the purpose of proving the existence of the conspiracy but also for providing that the other person was a party to it. Therefore, the court has to consider in the first place whether there is prima facie evidence affording a reasonable ground for the Courts to believe that the accused are members of the conspiracy.

45. Sri C. Padmanabha Reddy, the learned counsel for the respondents-accused contended that this is a case of no evidence and at any rate most of the documents on which reliance is placed by the complainant have no relevancy at all and even otherwise they would be admissible only when there is prima facie evidence to believe the existence of conspiracy. The learned counsel strenuously contended that no court has looked into the so-called items of evidence as required under section 227, Cr. P. C. and that this Court has to examine the same and quash the proceedings exercising its power under Section 482, Cr. P. C. Though I find sufficient force in this submission I think this is a matter to be examined by the Metropolitan Sessions Judge while exercising his powers under Sec. 227, Cr. P., C. since he has not done so, so far. I have taken pains to extract all the relevant paragraphs in the order of the Court below. There is neither reference to nor any consideration of the evidence. My learned brother Kuppuswami, J. has also noted that the observation of the learned Sessions Judge, viz. That the voluminous material placed by the complainant would suggest conspiracy, was made while considering the allegations against A-1 and A-2. I must mention that even there, there is no reference to any evidence at all. That being so. It is difficult to accept that this bald observation without any reference to the so-called evidence would also apply to A-7 to A-9. I am of the opinion that this is eminently a fit case where the accused should be given an opportunity as provided under Section 227, Cr. P. C. before framing a charge under Section 228, Cr. P. C. for an offence of conspiracy simpliciter. As observed by the Supreme Court in State of Karnataka v. L. Muniswamy the Sessions Court, while exercising its jurisdiction under Section 227 has to record its reasons for holding whether there is or is not sufficient ground for proceeding against the accused and the High Court is entitled to go into the reasons given by the Sessions Judge in support of its order and to determine for itself whether the order is justified by the facts and circumstances of the case. It can, therefore, be seen that it is the duty of the Sessions Judge to consider whether there is or is not sufficient ground to proceed against the accused and he has to record his reasons in support of his order one way or the other. In the instant case, so far as the merits, viz., the so-called items of evidence, are concerned, we find that there is neither reference, nor consideration of the same, nor there are specific reasons given by the Sessions Judge about the acceptability or otherwise of these items of evidence. On the other hand, as already mentioned, he considered only the questions of law and discharged the accused. In State of Karnataka v. L. Muniswamy the Supreme Court held that 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 the court or that the ends of justice require that the proceeding ought to be quashed. When we are setting aside the order of discharge entirely based on legal bar, the lease that should be done is to give an opportunity to accused 7 to 9 under Section 227, Cr. P. C. to substantiate their plea that there is not sufficient ground to proceed against them on merits. This, in my view, is very much necessary in the interest of justice.

46. For the aforesaid reasons, the Metropolitan Sessions Judge shall consider the case on merits against accused 7 to 9 after giving an opportunity as per the provisions of Section 227, Cr. P. C. and then proceed in accordance with law.

47. I certify that this is a fit case for appeal to the Supreme Court.

P.A. Choudary, J.

I agree with my brother Kuppuswami, J. and nothing to add.

BY COURT

There will be a stay of operation of the judgments for one month to enable the concerned accused to prefer an appeal to the Supreme Court and obtain appropriate orders.

48. Order accordingly.