IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA FRIDAY, THE 29TH SEPTEMBER 2006 / 7TH ASWINA 1928 CRL.A.No. 1102 of 2005() ------------------------ CC.16/2003 OF SPECIAL JUDGE (SPE/CBI-I), ERNAKULAM .................... APPELLANTS/ACCUSED: ----------- 1. K.K.VIJAYACHANDRAN, ASSISTANT, PASSPORT OFFICE, KOZHIKODE, S/O.LATE APPUTTY, R/O. DIVAM, NANOTH PARAMBA, KUTHIRAVATTOM P.O., KOZHIKODE-673 016. 2. P.P.NAUSHAD, PROPRIETOR, M/S.KINGS INTERNATIONAL, TOURS & TRAVELS, 5/215, B.T.BUILDING, BYE-PASS ROAD, ERANHIPALAM, KOZHIKODE, S/O.KHADER, R/O.PUTHIYAPURAYIL HOUSE, KALIKANDIPARAMBU, OLAVANA P.O., KOZHIKODE. BY ADV. SRI.P.JACOB VARGHESE SMT.V.A.GANGUJA SRI.V.MANOJ KUMAR SRI.VIVEK VARGHESE P.J. SRI.GEO PAUL RESPONDENTS: ------------- 1. THE SUPERINTENDENT OF POLICE, CBI-SPE, COCHIN-17. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.S.SREEKUMAR, SC FOR CBI FOR R1 THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. --------------------------------------- CRL.A.NO.1102 of 2005 --------------------------------------- Dated this the 29th day of September, 2006 JUDGMENT The appellants, two in number, were charge-sheeted by respondent-CBI for offences under Section 120-B IPC read with Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 ('the Act', for short) and Section 465 of Indian Penal Code (`IPC', for short). Both of them were convicted and sentenced under the said sections by learned Special Judge (SPE/CBI)('the Special Judge', for short). This appeal is filed challenging such conviction and sentence. FACTS, BRIEFLY: 2. According to prosecution, first accused was working as an 'Assistant' in the Passport Office in the 'passport writing section'. Second accused was the proprietor of a travel agency. In September, 2002 they allegedly conspired and agreed to get a fake passport issued to PW1, by incorporating therein a wrong date of birth of PW1, to facilitate PW1 to get a job abroad. Accordingly, first accused, on 9.9.2002, being a public servant, by corrupt and illegal means, by abusing the position as a public servant, forged signatures of PW10 in Exhibit P4-passport, affixed the seal of the passport officer, which was not then in use and made a false document, with intent to support a false claim. In [Crl.A. No.1102/05] 2 pursuance of the alleged criminal conspiracy, first accused also allegedly prepared Ext. P4 manually, by falsely noting a wrong date of birth of PW1. The accused thereby, allegedly obtained Ext. P4-passport, a valuable thing for PW1 and committed the various offences. 3. PWs 1 to 29 were examined and Exhibits P1 to P53 were marked on the side of the prosecution. The accused examined DW1 and marked Exhibits D1 to D4. The court below held: i) that accused 1 and 2 hatched a criminal conspiracy for creating Ex.P4 passport with a false date of birth of PW1 than what is contained in the original passport, Ex.P1; ii) that the first accused, in pursuance of such conspiracy dishonestly and by abusing his official position as a public servant, by corrupt or illegal means, wrote Exhibit P4 and forged the signatures of PW10 in Ex.P4; iii) that first accused handed over Ex.P4 passport to second accused, in pursuance of such conspiracy; and iv) that all the items marked as 'Q1 to Q4' in Ex.P4-passport were written by first accused. On the basis of the above findings, mainly, both the accused were convicted for the various offences including criminal [Crl.A. No.1102/05] 3 conspiracy and forgery falling under Sections 120-B and 465 IPC. 4. 'Criminal conspiracy' is defined under Section 120-A IPC as follows: “S.120-A. Definition of criminal conspiracy.— 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. A reading of section 120-A IPC reveals that to constitute the offence of criminal conspiracy, there must be an agreement between two or more persons. Such agreement must be, to do or cause to be done, a particular act or acts of the nature specifically referred to in the said section. Such acts may be either illegal as stated in sub-clause (1) of section 120-A IPC or, it may not be illegal. If such act is not illegal by itself, sub-clause (2) of section 120-A IPC requires that such act is to be done or caused to be done, by illegal means. 5. The proviso to Section 120-A lays down that no agreement, except an agreement to commit an offence shall [Crl.A. No.1102/05] 4 amount to a criminal conspiracy, unless some act besides the agreement is done by one or more parties to such agreement, in pursuance thereof. As per the explanation, it is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. Thus, if the above ingredients in section 120-A are satisfied, an agreement between two or more persons can be designated 'criminal conspiracy'. 6. As far as criminal conspiracy is concerned, the factum of “agreement” is the most relevant factor constituting the offence. The court must be satisfied that the accused has entered into an agreement of the nature referred to in Section 120A IPC on a particular day or during a particular period at a particular place or places and there was meeting of minds of two or more persons in a particular manner. But, in this case, there is no evidence to show at which place and what manner the accused 1 and 2 have come to an offending agreement. Where exactly the offence is committed and in what manner the offence of criminal conspiracy was committed are not clear even from the charge framed by the court or entering into an agreement, the parties can either personally meet at a particular place or contact each other in some manner as they may please by phone, letter or by any other mode. But, in this case, none of the details are discernible from the charge as to how the accused entered into the objectionable agreement as referred to in Section 120B IPC. [Crl.A. No.1102/05] 5 7. Any offence is committed on a particular day or during a period at a particular place or places in a particular manner. Such details should be ascertained at least before framing charge and stated in the charge. It is a legal requirement also. A joint reading of Section 211 and Section 212 of the Code reveals that the charge “SHALL” contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. This requirement is mandatory and the omission to mention the details not only violates mandatory provision of law, but also prejudices the accused. 8. To avoid making any omissions while framing charge, Form No.32 of Schedule II of the Code and the relevant provisions of the Code relating to charge shall be followed by the court. The court has to fill up the relevant details in the form of charge under Section 120B IPC which is extracted below (Vide Dr. Sir Hari Singh Gour's Penal Law of India 11th Edition, Volume at page 1165): “I (name and office of the Magistrate, Sessions Judge, etc.) hereby charge you (name of the accused) as follows:” “That you, on or about the ...........day of ....... at .......... agreed with (name of the co-consiprator) to do ( or cause to be done) an illegal act, to wit......(or [Crl.A. No.1102/05] 6 an act to wit...... which is not illegal, by illegal means to.........) and that you did some acts to wit..........besides the agreement in pursuance of the said agreement to commit the offence of .......... punishable with death (or imprisonment for life, etc.) and thereby committed an offence punishable under Sec.120-B of the Indian Penal Code; and within my cognizance.” “And I hereby direct that you be tried on the said charge.” 9. Thus, the change must contain the date or period during which and the place at which, the accused agreed with the co-conspirator to do or caused to be done the particular act which is either illegal, or not illegal. If not illegal, by illegal means in a particular way. It shall also contain the particular act or acts which he has allegedly done, besides the agreement. But, the court below does not seem to have made any probe into these details. The court below does not seem to have ascertained what are the inevitable factors which are necessary to constitute the offence of criminal conspiracy under Section 120-B IPC. Neither before the accused was called upon to answer the charge of 'criminal conspiracy' nor before convicting the accused for such offence, such an exercise was not done. 10. The charge does not contain the relevant details which are to be stated therein as per Section 211 read with Section 212 of Cr.P.C. The offence of criminal conspiracy is an [Crl.A. No.1102/05] 7 independent offence and a person cannot be held guilty of such offence without proof of all the ingredients of section 120A IPC. It is not sufficient if the court vaguely states in the charge that the accused conspired to commit a particular act etc. No doubt, the lower court has taken strenuous effort in elaborately and painstakingly analysing the voluminous evidence in meticulous details. But, unfortunately, learned Special Judge has lost sight of the essentials which are to be looked into in an offence of criminal conspiracy. 11. When, where, at which place, on which date or during which period, the accused allegedly agreed to do an act or cause an act to be done and in what manner etc. they entered into a particular type of objectionable agreement (which can be designated as criminal conspiracy) are not looked into by the court below before convicting the accused for criminal conspiracy. No discussion is made in the judgment, whether any of the ingredients of the offence under Section 120-A IPC are proved by the prosecution. In short, the judgment is totally bereft of any finding on the ingredients of Section 120B IPC to base a conviction under the said Section. 12. It is also relevant to note that there is absolutely nothing in evidence to indicate that accused 1 and 2, at any time, on any date had any occasion to meet each other or agree to commit any offence, as alleged. No witness gave evidence that the accused 1 and 2 had any acquaintance, friendship or relationship of any kind at all with each other or that they had access to each other so that it may probable for [Crl.A. No.1102/05] 8 them to meet on some date or at some place and to enter into any agreement by some means to do or cause to be done, any act or acts which would constitute offence of 'criminal conspiracy'. There is neither oral or documentary evidence to prove at least such possibility. No direct or circumstantial evidence is adduced from which the court can infer that the accused 1 and 2 could have entered into a criminal conspiracy, as alleged. In short, evidence is totally lacking to prove any of the ingredients of offence under Section 120-A IPC. 13. Learned counsel for the appellants, however pointed out that the sole reason which persuaded the court to convict the accused under Section 120-B IPC appears to be that both of the accused engaged the same lawyer during trial. According to them, they could sift out only such an observation from the whole text of the impugned judgment. Needless to say, the appearance of the same lawyer for the alleged conspirators during trial is no ground at all, to conclude that the accused committed criminal conspiracy, as alleged by the prosecution. The question is not whether they 'conspired' to engage the same lawyer to defend them or not. What is relevant is the act committed by the accused prior to the laying of the charge and their appearance in court. 14. The prosecution can prove the essential facts to constitute offence under Section 120-A IPC either by direct or circumstantial evidence or by both. Of course, because of the secret nature of the offence committed, it may be difficult to [Crl.A. No.1102/05] 9 procure direct evidence and hence, prosecution shall produce sufficient circumstantial evidence to prove the offence. From the proved circumstances, the court may be able to infer whether the offence of criminal conspiracy is committed or not. But, learned Standing Counsel for the respondent-CB1, strongly argued that it may not be possible to procure any evidence to prove criminal conspiracy' since the offence of 'criminal conspiracy' is committed in utmost secrecy. According to him, the court has to infer that the alleged offence was committed. With due respect, I can only reject this argument. The particular day/period, time and place at which and the manner in which the offence was committed cannot be presumed by the Court from vacuum. The secret nature of the offence is no excuse for the prosecution for not placing the relevant particulars of the offence such as date, time, place etc. before court. Several other offences like theft, murder etc. are also committed in secrecy and the prosecution is bound to allege the date/period during which the incident occurred and the place where it happened and also the manner in which it was committed. 15. The fact that an offence is committed in secrecy is not all a reason to justify failure on the part of the prosecution to allege and prove the relevant particulars of the offence. It is also not a justifiable answer either for any court to convict a person, in the absence of any such details, based on any hunches or intuitions or even by any subsequent conduct of the accused after registration of the crime or during trial. The [Crl.A. No.1102/05] 10 offence of criminal conspiracy also shall be proved beyond reasonable doubt, by direct (if available) or by circumstantial evidence on each of the ingredient of the offence. But, the offence of 'criminal conspiracy' is not proved in this case as required and hence the conviction for offence under Section 120B IPC is unsustainable. 16. FORGERY: Now, coming to offence of forgery falling under Section 465 IPC, specific allegation is made against first accused. As far as second accused is concerned, there is only a vague allegation that he “conspired” to commit forgery. He is called upon to answer the charge of forgery only as a co- conspirator. Since I have already held that criminal conspiracy is not established in this case, second accused cannot be found guilty of offence under Section 465 IPC read with Section 120B IPC. 17. Under the head of forgery, the case against first accused is: i) that on 9.9.2002, he forged the signatures of PW10 in Ext.P4 passport, ii) that in September 2002 he affixed the seal of the passport office, PW10 (which was not in use during the relevant time) on Ext.P4, to forge a fake passport for PW1 with intent to support a false claim (vide “secondly” and “fourthly” in the court-charge), iii) that dishonestly prepared Ext.P4 passport manually, falsely showing the date of birth of PW1 and false details in the name of PW1. These are the only specific instances of forgery which, the accused is called upon to answer, as per the charge. Hence, I shall confine my [Crl.A. No.1102/05] 11 discussion to the above specific instances of forgery mentioned in the charge. 18. To prove the allegations relating to forgery, prosecution mainly relies upon the evidence of PW10 (Passport Officer),PW 29 (handwriting expert) and the reports of the handwriting expert, which are marked as Exts.P50 to P53. The case of the prosecution is that the seal of PW10 which was not in use at the relevant time, ie., in September 2002, was affixed by first accused on Ext.P4 to commit forgery. There is no direct evidence to prove this fact. But, PW10 was examined to prove that first accused might have used the said seal on Ext.P4. PW10 deposed that she was working as the Passport Officer during the relevant period and the first accused was working as an 'Assistant' in the passport writing section. She stated that the seal which is seen affixed on Extd.P4 was being used for issuing passports from passport office only till April, 2002. 19. According to PW10, the said seal was in the custody of first accused who was in charge of passport writing section. Except a bare statement made by PW10 in court, there is absolutely nothing in evidence to show that first accused was in custody of the seal at any time. No evidence, either oral or documentary, is forthcoming to support this version of PW10. It is also to be noted that it is only in the court that PW10 came forward with such a statement for the first time. It was brought out that she did not state the said fact to the CBI [Crl.A. No.1102/05] 12 officials. PW10 stated that the Investigating Officer did not ascertain any such details from her and hence the omission. 20. PW10, the Passport Officer stated in court that the CBI officials did not make any request to her to show the seal and hence she did not show it to them. It is quite strange and unusual for an Investigating Officer to make such vital omissions. In any case, where any material object is used for commission of an offence, there will be investigation as to how and under what circumstances the accused came into possession of the same. Steps will also be made to seize such object. But, this is a peculiar case where the Investigating Officer did not make any such effort or even question the Passport Officer, PW10 to find out whether the seal was in possession of the accused during the relevant time or whether he had any access to the seal during the relevant period. 21. The possession of the seal by first accused or his accessibility to the same is a very relevant and strong incriminating piece of evidence against the accused. But no investigation was done to find out who was in custody of the seal during the relevant period. According to PW10, the seal was used only till April 2002 but the offence was committed after five months in September 2002. So, it is the duty of the investigating officer to find out in whose custody the unused seal was kept during the five months and how the accused obtained possession of the same, for using it for committing forgery. [Crl.A. No.1102/05] 13 22. The relevant seal, being a very important object (since it is used for issuing passports) normally is expected to be handled at the passport office in a very responsible way. If it is stopped being used, it will normally be surrendered, destroyed or kept in safe custody. There must be document also to prove entrustment of the seal to any particular official. But, there is no investigation into this and the seal was not seized nor produced in court. Had first accused been in custody or possession of the seal, its seizure from his custody would have satisfied the court about the complicity of the accused in the crime. But, there is also no explanation for the failure to seize the seal or even for the omission to question the Passport officer (PW10) regarding this. It is not understood why the Investigating Officer did not make any investigation into the existence or availability of the seal or the probable custody or accessibility of the same by the first accused. In such circumstances, it is even doubtful whether the seal was actually available at all in the Passport Office with first accused. 23. The first accused contended that forgery, if any, might have been committed by somebody from outside the office. It is argued by learned counsel appearing for first accused that it is unlikely that anybody who was working in the passport office who must be aware of the procedure for issuance of passport would use the above seal for committing the offence. Certain circumstances were also pointed out by learned counsel for the appellant in support of this contention [Crl.A. No.1102/05] 14 which are worthy of consideration. Firstly, first accused being the staff in charge of the writing section in the passport office would know that the seal allegedly used for forgery was not in use during the relevant time. So, it is highly unlikely that such a seal would have been used by first accused for forging the document since the forgery will be easily detected. If the first accused can get the old seal, there is no reason why he could have clandestinely procured the other seal which was currently in use also. 24. Secondly, It was also pointed by learned counsel for the appellant, as per the evidence, if two different inks are used for writing the passport, it will be rejected and two different inks shall not be used for writing the same passport. This fact is brought out in evidence. As a staff who was working in the Passport Office for a long period (particularly in the 'passport writing section'), first accused must be aware of this fact. But, it is in evidence that two different inks are used in Ext.P4, the forged passport. According to learned counsel for appellant, it is highly improbable that any staff who knew this fact would use different inks in the same passport to forge the same, so also affix a seal which was not in current use in the passport office. So, the argument is that forgery, if any, could have been committed by somebody else out side the office, who would not have been aware of any of the above procedures. This may be the reason why the seal could not be seized nor produced from the passport office. This argument cannot be rejected lightly. [Crl.A. No.1102/05] 15 25. It has been brought out in evidence that a passport goes from hand to hand in the course of processing, and it will be accessible to many persons. It can never be in the exclusive possession of the accused. It was brought out in evidence that PW11, the peon in the passport office, who was engaged in laminating the passport, had allegedly removed during the lamination the original photograph and substituted it with another photograph and he is facing an enquiry in respect of the same. It is also in evidence that there were other instances of manipulations in the preparation of passport at the instance of other employees as well. According to learned counsel for the appellant, it is therefore likely that others who are not quite aware of the procedure involved in the issuance of passport would have committed forgery but it is highly improbable that first accused being posted in the writing-section would commit the offence by using different inks and also by using a seal which was not in current use. 26. It is also relevant to note that because of the accessibility of the passport by several other staff, certain persons, who are examined as witnesses in this case,were originally implicated in the offence. Taking all these facts into consideration, the failure to seize the seal from the Passport Office or from the accused and the failure to make any investigation into the whereabouts of the seal etc. raise a serious doubt whether first accused was in custody of the seal at all at any time for