JUDGMENT [ENTITY], J.
1. All those revisions filed under [SECTION] of [ACT] read with [SECTION] of the [ACT] can be disposed of by this common order as the order challenged is the same.
2. Applications filed by these petitioners under [SECTION] of the [ACT] for discharge came to be rejected by the learned Additional Sessions Judge. Greater [ENTITY], by order dated 7th August 1998 and the said order is challenged here.
3. Before dealing with the case of each of these petitioners, it would be necessary to state few aspects.
One [ENTITY] ([ENTITY] for short) was a prominent businessman carrying on business of transportation of petroleum products. He was also owner of petrol pumps. He was having his office at Ghatkopar (East), Mumbai. On 12-5-1995 Mr. [ENTITY] left his office at about 6-00 p.m. along with his uncle Shri [ENTITY] towards New Mumbai in his Maruti car bearing No. H-04-A-616 at about 7-15 p.m. The car reached Garden Hotel, Panvel. [ENTITY] enquired about one [ENTITY] with the Receptionist of the Hotel. He was informed that Room No. 106 was booked by [ENTITY]. Mr. [ENTITY] went to Room No. 106 along with his uncle (the complainant). One unknown person opened the door and informed [ENTITY] that [ENTITY] has arrived with his family and he is staying in Hotel Welcome. The said person went out of the room and came back after some time in Room No. 106 and informed [ENTITY] that [ENTITY] would be coming shortly. In the meantime, another unknown person arrived in the said hotel and informed that [ENTITY] would be available on his farm house. On receiving this information [ENTITY] along with his uncle and two unknown persons, started going towards the farm house of [ENTITY] in his Maruti car. The car was driven by [ENTITY] and his uncle [ENTITY] was sitting by his side. The 2 unknown persons occupied the rear seats. When the car travelled for about 2 Km. along the Panvel by-pass Road, [ENTITY] enquired regarding location of farm house of [ENTITY]. He was informed by the two unknown persons that they might have crossed the farm house of [ENTITY]. At that point, [ENTITY] stopped the car on the road and came out of the car. The two unknown persons came out of the car and asked Mr. [ENTITY] to back the said car. Accordingly, they again occupied the car and Mr. [ENTITY] was about to start the car. The person sitting on the rear seat fired two rounds on the head of [ENTITY] and they came out of the car. They threatened [ENTITY] to come out of the car and asked him to flee away. [ENTITY] died on the spot. Mr. [ENTITY] came home and informed father of [ENTITY]. Thereafter, they came and lodged complaint with Panvel Town Police Station which came to be registered at CR No. 1-132/95, under [SECTION] of the [ACT] and [SECTION], [SECTION] and [SECTION] of the [ACT]. Initially, investigation was carried out by Panvel Town Police Station, but subsequently it was entrusted to D.C.B., C.I.D. Mumbai by Government of Maharashtra, considering gravity and seriousness of the offence.
4. According to the prosecution, conspiracy was hatched by the above petitioners, [ENTITY] and [ENTITY] and contract killer by name [ENTITY] was engaged to eliminate [ENTITY] as they were all having business rivalry. It is a case that in turn [ENTITY] engaged the services of 3 others including one shooter by name [ENTITY] and 2 others. Accused [ENTITY] and [ENTITY] were travelling along with [ENTITY] and his uncle in the Maruti Car. However, accused [ENTITY] is still absconding. Similarly, the other accused by name [ENTITY] who supplied revolver to the killer, is also absconding. The prosecution has sought permission from the Sessions Court to carry on investigation even after charge-sheet is filed and such permission has been granted.
5. On 28-11-1995, [ENTITY] was arrested at Mangalore by the D.C.B., CID, Mumbai. In the interrogation, he gave names of killers as [ENTITY], [ENTITY] and [ENTITY]. He also disclosed that he was given [ENTITY] to kill [ENTITY] by [ENTITY] through [ENTITY]. Accordingly, [ENTITY], [ENTITY] and [ENTITY] were arrested on 29-11-1995 and [ENTITY] was arrested on 1-12-1995. The said [ENTITY] was again interrogated, when he disclosed his link with [ENTITY] and [ENTITY]. They were lodged by C.B.I, in Colaba Police station lock-up from 23-9-1994 to 28-9-1994 in [CASE NUMBER] under [SECTION], [SECTION], [ACT] read with [SECTION] and [SECTION] of the [ACT] for illegal import and distribution of Naptha and for mixing it in petrol and thereby cheating the Government of India and making illegal gains of Rs. 10 crores. At that time, [ENTITY] was lodged in the said lock-up of Colaba Police Station in [CASE NUMBER], registered under [SECTION], [SECTION], [SECTION] of the [ACT]. According to the prosecution, [ENTITY] and [ENTITY] suspected that deceased [ENTITY] had given information to CBI authorities that led to their arrest in the said offence. Therefore, they decided to eliminate [ENTITY] and hatched conspiracy in the lock-up itself. For meeting the demand of [ENTITY] they in turn contacted these petitioners, who are having business rivalry with [ENTITY]. These petitioners agreed to pay various amounts for paying to [ENTITY].
6. I would now deal with what is against each of the petitioners:
(i) [ENTITY]: There is statement of one [ENTITY], brother of [ENTITY]. He has stated that [ENTITY] was in the employment and he was removed by [ENTITY] in 1989 as he misappropriated about Rs. 4 lacs. Mr. [ENTITY] intentionally gave him a job. Therefore, [ENTITY] had a grudge against [ENTITY]. There is statement of [ENTITY], father of [ENTITY]. He also stated that [ENTITY] misappropriated Rs. 4 lacs and therefore, he was removed by [ENTITY] in 1989 and [ENTITY] immediately gave him a job. There is memorandum of statement dated 20-12-1995 of [ENTITY]. The said statement reveals that [ENTITY] agreed to pay Rs. 55 lacs for committing murder of [ENTITY]. [ENTITY] gave a suitcase containing Rs. 15 lacs in Bangalore. The said suit case was kept by him in the house which he has taken on rent in Goa and the said suitcase he would produce. The said statement was recorded in Mumbai. The parties went to Goa and [ENTITY] was made on 31-12-1995. Relevant portion thereof is as under:
The accused [ENTITY] led into a flat. The lights were put on. The accused [ENTITY] led to the north side bed room at the flat from the main hall. In the said bed room, he pointed out a large size suitcase in a corner to be the same suitcase in which he had received last instalment of payment in cash of Rs. [SECTION] lacs from [ENTITY] at Bangalore. He also pointed out another small size handbag and informed that it was the bag in which he had received part of the amount of Rs. 18 lacs from [ENTITY] at Bombay. It was the second instalment that he had received from [ENTITY] sent by [ENTITY]. Both the bags were examined by police and they were empty.
(ii) [ENTITY]. Against him [ENTITY] (brother of [ENTITY]) has given his statement wherein he has stated that owner of Unique Roadlines ([ENTITY]) and [ENTITY] Roadlines ([ENTITY]) used to oppose the business carried on by them. [ENTITY], another brother of [ENTITY] stated in his statement that [ENTITY] is the owner of Unique Roadlines. He was having grudge against them for last 10/15 years. In 1989, [ENTITY] had removed [ENTITY] from the job as he had misappropriated Rs. 4 lacs and Mr. [ENTITY] immediately gave him a job with him to know the tricks of the trade. In 1992, Bharat Petroleum had informed [ENTITY] about termination of his contract with Bharat Petroleum. [ENTITY] came to know that this was due to [ENTITY]. [ENTITY] only told him that he should not indulge in such activity in future. In 1992, their office was raided by the Income-tax authorities. In fact, income-tax authorities wanted to raid [ENTITY]'s house. At that time, a telephonic call was received that [ENTITY] can collect amount of Rs. 7 crores from the house of [ENTITY]. The Income-tax Officer raided their house. They were suspecting that [ENTITY] had played this mischief. About 3/4 years before, a telegram was sent to Bharat Petroleum pointing out malpractices committed by [ENTITY] at O.N.G.C. That was done by [ENTITY].
This statement of [ENTITY], brother of [ENTITY], corroborated what has been stated by [ENTITY], [ENTITY] has also stated about motive of [ENTITY] for doing away [ENTITY].
Memorandum of statement of [ENTITY] dated 19-12-1995 and [ENTITY] dated 31-12-1995 are already mentioned while dealing with case against [ENTITY].
(iii) [ENTITY]: There is statement of [ENTITY] mentioning that owner of [ENTITY] Roadlines is opposing business. [ENTITY] has stated that there were good relations between [ENTITY] and Mr. [ENTITY], but they were soured from 1989 due to business rivalry. Initially; [ENTITY] helped [ENTITY] in getting contract from O.N.G.C. [ENTITY] has agreed to give partnership to [ENTITY], but [ENTITY] did not keep his word. Later on, contract with O.N.G.C. came to be divided between [ENTITY] and [ENTITY]. Hence [ENTITY] was required to reduce his tankers from 60 to 50. In 1991, [ENTITY] and [ENTITY] had taken petrol pump at Vasai on rental basis. There was a partnership between them. However, that partnership did not last. Relations between them got strained. [ENTITY] has stated as stated by [ENTITY]. Another witness by name [ENTITY], was owner of a petrol pump in Goa, stated that it was given to [ENTITY] for running. [ENTITY] wanted to have partnership. [ENTITY] approached him, but it was not given to him. He has stated that [ENTITY], however, could not succeed because of [ENTITY].
(iv) [ENTITY]: [ENTITY] only stated that [ENTITY] and [ENTITY] were having business of transporting diesel oil with O.N.G.C. There was competition between them in their business. He suspected that he was behind murder of [ENTITY].
(v) [ENTITY]: There is statement of one [ENTITY], an employee of [ENTITY]. In his statement he has stated that [ENTITY] had given Rs. 2 crores for getting NRI cheques as Mr. [ENTITY] was his Chartered Accountant. But Mr. [ENTITY] neither returned the said amount nor gave cheque. He has stated that Mr. [ENTITY] is having office at Bangalore and [ENTITY] is also from Bangalore and on the date of incident, Mr. [ENTITY] was not in Bombay. [ENTITY] has stated in his statement that [ENTITY] took the amount from [ENTITY]. Mr. [ENTITY] in his statement stated that [ENTITY] was their Chartered Accountant. Nearly 3 years ago he had taken Rs. 1 crore for converting into foreign exchange and returning it in foreign exchange. This amount was given in order to avail Government's new policy of exchange at that time. Mr. [ENTITY], however neither returned the money in Indian currency nor in foreign currency and duped them. He has falsely informed one [ENTITY] that, he had handed over the money and he is absconding with the amount. It is further stated that in the month of December 1991, Mr. [ENTITY]'s brother [ENTITY] and their common friend Mr. [ENTITY] had taken the Hotel Venkateshwara for running on leave and licence basis. It was for 11 months. But it was not returned thereafter. They removed furniture from the hotel, which required to file a case for theft. Mr. [ENTITY] and Mr. [ENTITY] threatened them on telephone and expressed that Hotel cannot be taken back from them. There used to be quarrels between [ENTITY] and [ENTITY], but it was compromised in 1992. But Mr. [ENTITY] was having a grudge since then. [ENTITY] stated about taking Rs. 1 crore from [ENTITY] by Mr. [ENTITY] for converting into foreign exchange. But Mr. [ENTITY] neither returned the amount in Indian Currency nor in foreign exchange hence [ENTITY] was constantly pressurising him, to return the said amount.
7. Then there are supplementary statements recorded regarding Mr. [ENTITY]'s subsequent conduct in December 1995. In short, these are statements of [ENTITY] (sister), [ENTITY] (brother-in-law), [ENTITY] (neighbour), [ENTITY] (Taxi Driver) and [ENTITY] (watchman). Their statements in short indicate that Mr. [ENTITY] was staying with his sister in December 1995 and he used to come late in night and leave early in the morning. This was going on for about 15 days.
8. The question that arises is whether there is sufficient material or ground to proceed against these petitioners. Both the sides cited various judgments in support of their stand.
Learned Counsel for the petitioners relied on the judgment (Suresh Rudharmal [ENTITY] alias Pappu [ENTITY] v. State of Maharashtra). The Apex Court observed:
So far as confession of [ENTITY] is concerned the same (if voluntary and true) can undoubtedly be brought on record under [SECTION] of the [ACT] to use it also against [ENTITY] but then the question is what would be its evidentiary value against the latter. The question was succinctly answered by this Court in Kashmira Singh v. State of Madhya Pradesh 1952 SCR 5[SECTION] : 1952 Cri LJ 839, with the following words:
The proper way to approach a case of this kind is, first to marshal the evidence against the accused excluding the confession altogether from consideration and see whether if it is believed a conviction could safely be based on it if it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the Judge is not prepared to act on the other evidence as it stands even though if believed it would be sufficient to sustain a conviction in such an event the Judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of confession he would not be prepared to accept.
The view so expressed has been consistently followed by this Court. Judged in the light of the above principle the confession of [ENTITY] cannot be called in aid to frame charges against [ENTITY] in absence of any other evidence to do so.
The next judgment relied is ([PRECEDENT]). In this case the Apex Court considered provisions of [SECTION] and powers of the High Court under [SECTION] of the [ACT]. The Apex Court observed:
In the exercise of this wholesome power, 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.
It was a case under [SECTION], [SECTION] of the [ACT].
The learned counsel for the petitioners next relied upon judgment of the Supreme Court in [PRECEDENT]. The Supreme Court in that case, held that there was no direct evidence to prove conspiracy. The only circumstantial evidence available was of suspicion of motive. It was held that motive is not sine qua non for bringing the offence of murder or any crime home to the accused. It was observed:
The circumstantial evidence if accepted in its entirety, as pointed out by the Court below, create only a suspicion of motive. Needless to point out that the motive which induces a man to do any particular act is known to him and to him alone.
8A. Learned counsel for the petitioners also relied on judgment in ([PRECEDENT]). The Supreme Court was considering what is admissible in view of [SECTION] of the [ACT]. The Supreme Court in that connection observed:
The word "distinctly" means "directly", "indubitably", "strictly", "unmistakably". The word has been advisedly used to limit and define the scope of the provable information. The phrase "distinctly related to the fact thereby discovered" is the linchpin of the provision. This phrase refers to that part of the information supplied by the accused which is the direct and immediate cause of the discovery.
Reliance is also placed in this connection on the judgment reported in [PRECEDENT]. The Division Bench of this Court observed:
We must hasten to add that this all relates to informatory statement and not to "the facts" so discovered. Like any other fact being available and established as proved, its use would depend on the other evidence that may connect co-accused with such fact though they may not be linked with it by reason of the information that led to its discovery. Against the maker both the information and the facts discovered would be available for drawing inferences while against others the other evidence will have to be produced to connect them with such a fact.
As against this, learned A.P.P. relied upon judgment in [PRECEDENT]. The Apex Court was considering [SECTION] of the [ACT] The Apex Court held that when trial Court finds prima face case and prefers to frame charge against the accused, then High Court should not interfere by probing into sufficiency of grounds for conviction of the accused and ordering his discharge. It was held that [SECTION] of the [ACT] provides that the Court shall discharge if there is not sufficient ground for proceeding against the accused. All that the Court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime.
Reliance is also placed by the learned A.P.P. on judgment of the Supreme Court in ([PRECEDENT]) while considering provisions of [SECTION], it was held that even if Court finds that the accused might have committed offence it can frame charge. At the stage of framing charge probative value of the material on record cannot be gone into. The Apex Court has drawn attention to word "presume" and held that if there is ground for presuming that the accused has committed the offence a Court can justify say that a prima facie case against him exists, and so, frame a charge against him for committing offence. If on the basis of the materials on record, the Court can come to the conclusion that commission of offence is a probable consequence, case for framing of charge exists. Thus, if the Court feels that accused might have committed offence it can frame charge. It was a case of conspiracy and in that connection, it was held that when such offence consists of chain of actions, to bring home the charge of conspiracy, it is not necessary that each conspirator should have the knowledge of what the other collaborator would do.
Reliance is also placed by the learned A.P.P. on judgment ([PRECEDENT]). The Apex Court held that at the stage of framing charges, Court has to consider the material with a view to find out if there is a ground for presuming that accused has committed the offence or that there is no sufficient ground for proceeding against him.
The learned A.P.P. then relied upon judg-mentin 1995 Supp (1) SCC 80 : 1994 Cri LJ 3[SECTION]1 (Suresh Chandra Bahari v. State of Bihar). The Supreme Court was considering requirement of proving criminal conspiracy under [SECTION] and [SECTION] of the [ACT] The Court observed:
The provisions in such situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirements and ingredients are established the act would fall within the trapping of the provisions contained in [SECTION] since from its very nature a conspiracy must be conceived and hatched in complete secrecy, because otherwise the whole purpose may be frustrated and it is common experience and goes without saying that only in very rare cases one may come across direct evidence of criminal conspiracy to commit any crime and in most of the cases it is only the circumstantial evidence which is available from which an inference giving rise to the conclusion of an agreement between two or more persons to commit an offence may be legitimately drawn.
The learned A.P.P. relied on judgment in [PRECEDENT], The Court observed:
Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inference from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation.
The learned A. P. P. also relied on judgment in ([PRECEDENT]). In the said case the Court held that at the stage of framing charges, even a strong suspicion founded upon materials before the Magistrate which leads him to form a presentative opinion as 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 the offence.
9. From these various decisions, it is clear that more suspicion of motive is not sufficient to frame charges against the accused. There should be some reasonable ground to believe that person has taken part in the conspiracy or in other words reasonable likelihood of participation. There should be something to connect him with the crime. Further, it is well settled that [SECTION] of the [ACT] is an exception to the rules enacted in [SECTION] and [SECTION] of the Act. It is well settled that extent of information admissible must depend upon the exact nature of fact discovered to which such information is required to relate. What is allowed to be proved under [SECTION] in the information or such part thereof as relates distinctly to the facts thereby discovered. The facts discovered, not merely physical object produced, but also the place from which it is produced and the knowledge of the accused as to this. Further, same standard of proof or test is not to be applied while considering discharge application as required to be considered at the time of final hearing. Further, direct evidence of conspiracy is rarely available and generally based on circumstantial evidence.
9A. As far as accused [ENTITY] is concerned, there is nothing against him except strong suspicion expressed by [ENTITY].
As far as [ENTITY] is concerned, only vague allegation is made about payment in 1992 of Rs. 1 Crore for converting it into foreign exchange or NRI cheques. Again, this is nothing but suspicion of motive expressed. It cannot be said that there is even a strong suspicion. His subsequent conduct also cannot connect him to the crime or as a person who participated in a conspiracy.
In the case of [ENTITY], the position is expression of suspicion by various witnesses that he might have taken part as there was business rivalry and he might have been involved in the crime. But beyond this vague expression, there is nothing.
However, as far as [ENTITY] is concerned, I find that there is strong motive alleged against him. It has been stated that there was long-standing rivalry between them. Memorandum of statement of [ENTITY] and even discovery panchanama make reference to him. Strictly speaking, some part of the said memorandum and the panchanama may not be admissible. But this cannot be brushed aside at this stage. In the light to narration of facts, it can be said that he had motive for taking part in the conspiracy. There is some material indicating his involvement. When [ENTITY] was first interrogated, he blurted out the name of [ENTITY], who paid him. Further memorandum of statement and discovery panchnama mention that [ENTITY] received the amount through [ENTITY] sent by [ENTITY]. Pursuant to that two empty bags were recovered at Goa. Hence, the material creates reasonable basis for the inference that he is involved in the conspiracy or in other words reasonable apprehension is created that he is connected with the conspiracy.
It is needless to add that if any evidence comes on record against the discharged accused, the Court can exercise the power under [SECTION] of the [ACT] In view of this, I pass the following order.
ORDER
1. [CASE NUMBER] is allowed and petitioner-[ENTITY] is discharged.
2. Criminal Revision Application No. [SECTION]9/ 98 is allowed and petitioner-[ENTITY] is discharged.
3. [CASE NUMBER] is allowed and petitioner-[ENTITY] is discharged.
4. [CASE NUMBER] ([ENTITY]) is dismissed.
5. [CASE NUMBER] ([ENTITY]) is dismissed.
Learned Counsel for the petitioner in [CASE NUMBER] prays for stay of this order. Prayer rejected.
Certified copy expedited.