Suman Shyam DECISION
Suman Shyam, J.
1. Heard Mr. A.M. Bora, learned senior counsel assisted by Ms. C. Choudhury, learned counsel appearing for the petitioner. I have also heard Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam, appearing for the respondents.
2. This Criminal Petition has been filed under Section 482 Cr.P.C. praying for setting aside the order dated 18.05.2018 by means of which, the learned Judicial Magistrate First Class, Kamrup(M), Guwahati has framed charges against the petitioner under Sections 120(B)/419 of the Indian Penal Code (IPC) in connection with G.R. Case No. 609/2016.
3. The facts of the case, briefly stated, are that the petitioner was the counsel engaged by the accused in another Complaint Case No. 2495/2012, viz., Rajesh Saikia. On 31.05.2015, Sri Ranjit Saikia i.e. the brother of accused Rajesh Saikia, had appeared before the court of JMFC, Kamrup(M) in connection with CR Case 2495/2012 by impersonating the accused. On being objected to by the complainant, the co-accused Ranjit Saikia had admitted that he was not Rajesh Saikia but has appeared on his behalf on being instructed to do so by the petitioner, who was the counsel for accused Rajesh Saikia in that case. Since the co-accused in this case had admitted to have impersonated the accused in that case, the learned JMFC, Kamrup(M) had lodged an ejahar on 31.05.2015 before the Panbazar Police Station reporting the incident. Based on the said ejahar, Panbazar P.S. Case No. 210/2016 was registered under sections 120(B)/419 of the IPC. On completion of investigation, the police had submitted charge-sheet against the petitioner and Ranjit Saikia. The learned JMFC, Kamrup(M) had accordingly taken cognizance in the matter and upon hearing the parties, had framed charge against both the accused persons under Sections 120(B)/419 of the IPC by the impugned order dated 18.05.2018.
4. Mr. Bora submits that in this case the learned Magistrate has framed charge against the petitioner relying solely upon the confession made by the co-accused Ranjit Saikia. Contending that confessional statement of a co-accused is not a substantive piece of evidence and therefore, cannot be the basis of conviction in a criminal case the learned senior counsel submits that save and except the confession of the co-accused, there was no other material available before the learned trial court to frame charge against the petitioner. Mr. Bora submits that it is not a case of cheating but cheating by impersonation and therefore, Section 419 IPC would have no application to the facts of the case. Mr. Bora further submits that even assuming that there was impersonation in this case, even then, section 205 of the IPC would to come into play. However, due to the bar of Section 195 Cr.P.C., which prohibits cognizance being taken with regard to an offence under Section 205 of the IPC without a complaint having been lodged by the person concerned, the present proceeding has been deliberately misdirected only to frame charge against the petitioner under Sections 120(B) read with Section 419 of the IPC so as to cover up the lacunae in the process of investigation. Contending that it is a clear case of judicial camouflage, Mr. Bora has submitted that the learned Judicial Magistrate has committed an error in exercise of jurisdiction by failing to consider the aforesaid aspects of the matter while issuing the impugned order dated 18.05.2018. In support of his aforesaid arguments, Mr. Bora has placed reliance on the decisions of the Supreme Court in the case of Hari Charan Kurmi and others vs. State of Bihar reported in MANU/SC/0059/1964 : AIR 1964 SC 1184 and in the case of Basir-ul-huq and others vs. State of West Bengal reported in MANU/SC/0028/1953 : AIR 1953 SC 293 to contend that trial in a criminal case cannot be started only based on the confessional statement of a co-accused.
5. Relying upon another decision of this Court reported in MANU/GH/0026/1971 [Suresh Chandra Das and another vs. State of Meghalaya] Mr. Bora has argued that the confession of a co-accused can be looked into only to throw light or give assurance to other substantive and independent evidence. By relying upon the decision of the Supreme Court rendered in the case of Suresh Budharmal Kalani alias Pappu Kalani vs. State of Maharashtra reported in MANU/SC/0608/1998 : (1998) 7 SCC 337 Mr. Bora has argued that charge cannot be framed based on confession of a co-accused.
6. Mr. B.B. Gogoi, learned Additional Public Prosecutor, Assam, on the other hand, submits that the co-accused Ranjit Saikia has clearly admitted to having impersonated his brother on being instructed by the petitioner, who is the counsel for the accused in that case. The above confession clearly indicates to the possibility of a conspiracy and therefore, there were sufficient materials available before the trial court to frame charge against the petitioner under Sections 120(B)/419 IPC.
7. I have considered the submissions advanced by learned counsel for the parties and have gone through the materials available on record.
8. It appears from the record that by the impugned order dated 18.05.2018, the learned Judicial Magistrate had framed the following charges against the petitioner and the co-accused Ranjit Saikia :-
"Firstly :- That you, before appearing in the court of Smti S. Trivedi, the then learned JMFC, Kamrup(M) on 31.05.2015 at around 2:30 p.m., agreed with each other that Sri Ranjib Saikia would impersonate Sri Rajesh Saikia in CR Case No. 2495c/2012 and in pursuance of that agreement, Sri Ranjib Saikia stood in the shoes of Sri Rajesh Saikia before the court and thereby committed an offence punishable under section 120-B of Indian Penal Code, and within my cognizance.
Secondly :- That Sri Ranjib Saikia impersonated Sri Rajesh Saikia in CR Case No. 2495c/2012 in the court of Smti S. Trivedi, the then learned JMFC, Kamrup(M) on 31.05.2016 at around 2:30 p.m. and this was done as per the conspiracy entered into with Sri Dilip Prasad Dutta and thereby committed an offence punishable under section 419 of Indian Penal Code, and within my cognizance.
And I thereby direct that you be tried by me on the said charges u/s. 120-B/419, IPC."
9. As noted above, the basic contention of the petitioner is that the trial court had committed manifest illegality in framing charge in this case solely based on the confession of the co-accused.
10. Law is well settled by a long line of judicial pronouncements that at the stage of framing charges the Court would only be required to consider existence of a prima facie case. In Union of India vs. Prafulla Kumar Samal and another, reported in MANU/SC/0414/1978 : (1979) 3 SCC 4, the Supreme Court has held that the test to determine a prima facie case would depend upon the facts of each case and it would be difficult to lay down a rule of universal application. However, while considering the question of framing the charge it will be open for the Court 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.
11. In the case of Hari charan Kurmi and Others (supra), relied upon by Mr. Bora the Supreme Court had no doubt held that confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking assurance in support of its conclusion deducible from the said evidence. The said decision was rendered in a case where the order of conviction and sentence was challenged by the six accused persons found guilty of offence committed under section 396 IPC. In that case there was no direct evidence to prove the charge and the prosecution had relied upon confession made by three of the accused, recovery of stolen property and blood stained clothes. The High Court had not only affirmed the conviction of two of the appellants under section 396 IPC but by placing reliance on the confession made by the three co-accused, the sentence of life imprisonment was enhanced to death. Therefore a question arose as to whether the High Court was justified in its approach due to the provision of section 30 of the Evidence Act. It is to be borne in mind that the decision in the case of Hari charan Kurmi and Others (supra) was rendered in the context of sections 30 and 33 of the Indian Evidence Act, 1872 where there was no charge under section 120(B) of the IPC. Likewise, in the other decisions relied upon by Mr. Bora, the evidential value of the confessional statement made by the co-accused was examined in the light of the provision contained in section 30 of the Evidence Act.
12. As per section 30 of the Evidence Act, confession of a co-accused can be taken into consideration only if more than one accused person is tried together for the same offence and when confession made by one of such person affecting himself and some other of such person is proved. Section 33 of the Evidence Act deals with relevancy of certain evidence for proving, in the subsequent proceeding, the truth of facts therein stated. But in this case neither has the trial commenced nor is there any question of relying upon any evidence for proving facts in any subsequent proceeding. Therefore, sections 30 has no application in the present case. As such, the ratio laid down in decisions relied upon by Mr. Bora would be of no assistance to him in this case.
13. In the present case, the learned Judicial Magistrate had relied upon the statement made by the co-accused indicating that he had conspired with the petitioner to commit the offence which amounts to cheating by personation. The question that would, therefore, arise for consideration by this court in the present case is as to whether the statement of a co-conspirator would be a piece of substantive evidence so as to convict the co-accused. In order to answer the said question it would be necessary to refer to section 10 of the Evidence Act which reads as follows :-
"10. Things said or done by conspirator in reference to common design.-- Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it."
14. The language employed in section 10 makes it explicit that anything said or done by a co-conspirator in reference to their common intention to commit an offence after the time when such intention was first entertained by any one of them, would be relevant fact as against each of the co-conspirator.
15. While dealing with a question of similar nature the Supreme Court had observed in the case of Badri Rai and Another Vs State of Bihar, [MANU/SC/0047/1958 : AIR 1958 SC 953] that a conspiracy is hatched in secrecy and executed in darkness. Therefore, it is not possible for the prosecution to connect each isolated act or statement of one accused with the other. Rejecting the plea that unless charge under section 120-B has been framed, the act or the statement of one accused would not be admissible against the other, the Apex Court has held that it is only when there is evidence of concerted action in furtherance of common intention to commit a crime that law has introduced the rule of common responsibility on the principle that everyone concerned in a conspiracy is acting as an agent of the rest of them.
16. In the case of Bhagwandas Keshwani and another vs. State of Rajasthan reported in MANU/SC/0107/1974 : (1974) 4 SCC 611 the Supreme Court had observed that in cases of conspiracy, better evidence than acts or statements of co-conspirators in pursuance of the conspiracy is hardly ever available. It was observed that any conspiracy to do an illegal act would invariably been drawn up in secrecy and therefore, independent witnesses may be hard to come by. As such, it was held that things said or done by a co-conspirator in reference to common design was admissible in evidence and could be used against the other accused(s).
17. In the case of State Vs Nalini reported in MANU/SC/0945/1999 : (1999) 5 SCC 253 the Supreme Court, while interpreting section 10 of the Evidence Act, has held that section 10 is an exception to section 30 of the Evidence Act. It was held that section 10 is based on the principle that the statement of co-conspirator would be binding on the other co-conspirator as long as it is made during subsistence of the common intention and if there was prima facie evidence to show that there was criminal conspiracy, the condition of section 10 would be satisfied, in which event, anything said or done by the co-conspirator becomes substantive evidence against the other.
18. In the case of Jayendra Saraswathi Swamigal Vs State of Tamil Nadu reported in MANU/SC/0017/2005 : AIR 2005 SC 716, the Supreme Court has quoted with approval the decision of Privy Council in Mirza Akbar v King Emperor wherein it was held that the expression " common intention" in section 10 signifies a common intention existing at the time when the thing was said, done or written by one of them. It was held that things said, done or written when the conspiracy was afoot are relevant as evidence of common intention but if the statement or confession is made after the common intention or conspiracy was no longer operating, there is then no common intention of the conspirators to which the statement can have reference.
19. From a careful analysis of the judicial pronouncements referred to above, what transpires is that sections 10 and 30 of the Evidence Act operate on completely different planes. Law is settled that confession of a co-accused under section 30 of the Evidence Act is never to be treated as substantive evidence. However, the same is not true in case of anything said or done by a co-conspirator with reference to the common intention to commit a crime. As per section 10, such statement of the co-conspirator would be admissible in evidence. However, to apply section 10, the court must have reasonable ground to believe that the accused persons have conspired together to commit an offence in furtherance of their common intention and secondly, the act or statement of the co-conspirator must be done or made during the subsistence of the conspiracy and not after the conspiracy has come to an end. If these conditions are fulfilled then anything said or done by a co-conspirator will be relevant fact and hence, admissible in evidence against the other conspirator/accused with reference to their common intention.
20. In the case in hand, the basic charge against the petitioner is one of criminal conspiracy to commit an offence punishable under the IPC. The co-accused Rajit Saikia has not only admitted to have impersonated the accused in C.R. No 2495/2012 but had also stated in the open court and in presence of other witnesses including the petitioner, that he had impersonated his brother Rajesh Saikia as per the instruction of the petitioner. There is nothing on record to indicate that the statement of the co-accused was not based on truth or that the petitioner had raised any protest when he was named by the co-accused. Moreover, when the co-accused had made that statement, he was not arrested but was present before the court in furtherance of his intention to impersonate his brother. A perusal of the impugned order dated 18.05.2018 also goes to show that the learned Magistrate has relied upon other evidences available on record while framing charge against the accused persons. Therefore, it may not be correct to say that save and except the confession of the co-accused there was no other evidence available for framing charge. What evidential value such materials will have in the ultimate analysis is a matter of appreciation of evidence and can be dealt with at the time of trial of the case.
21. From the facts and circumstances of the case noticed above and the materials brought on record, a rebuttable presumption arises in favour of existence of reasonable ground to believe that both the accused persons in this case had conspired to commit the offence of cheating by personation. Therefore, a prima facie case is made out for framing charges against the petitioner under section 120-B/419 IPC. It is an altogether different matter that the charge would have to be proved by the prosecution by leading co-gent evidence during trial.
22. In so far as the argument advanced by Mr. Bora pertaining to application of section 195 of the Cr.P.C is concerned, since no charge has been framed under Section 205 of the IPC, hence, the said issue would only be of academic value in this case. As such, this Court is not inclined to go into the said aspect of the matter in the present proceeding. Considering the fact that the trial is yet to commence in this case and being conscious of the fact that charges can be altered at any stage before pronouncement of judgement, in order to avoid any prejudice being caused to the parties to this proceeding, further discussion on the quality and quantity of the evidence brought on record is deemed to un-warranted at this stage.
23. For the reasons stated here-in above, I am of the view that there is no merit in this criminal petition and the same is accordingly dismissed.
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