IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36365 of 2009 1. GANESH PRASAD YADAV S/O LATE SRI PANDEV RAI VILL.+P.S.- AURAI, P.S.- AURAI, DISTT.- MUZAFFARPUR Versus 1. THE STATE OF BIHAR 3 28.1.2010 The petitioner is aggrieved with the order dated 19.8.2009, passed by the Additional Sessions Judge, Fast Track Court No. II, Muzaffarpur in Sessions Trial No. 302 of 2002 by which the application for discharge has been rejected. The main argument on behalf of the petitioner is that the only material that has come against him is that the petitioner in conspiracy with the named accused persons was responsible for the death of Ramu Thakur and Ajit Ojha. Learned counsel for the petitioner submits that there is no material in the case diary to indicate that the petitioner was in conspiracy with the co-accused persons. It is submitted that in order to show that there is conspiracy, there must be some previous meeting of mind or the witnesses ought to have stated that they had seen the accused persons prior to the occurrence with the petitioner which lead them to the conclusion that the petitioner and the co-accused persons had conspired to commit the said act of murder. On perusal of the case diary, the material that has come against the petitioner is that it is said that the petitioner had conspired for the said occurrence as the petitioner and the deceased Ramu Thakur were contestants in the assembly election in the year 1995. It has also been transpired in the case diary that the wife of Ramu Thakur had addressed a letter to Hon’ble the Chief Justice of Patna High Court alleging and apprehending that the petitioner would commit the murder of her husband. This letter however, although referred to in paragraph 194 of the case diary is not annexed on 2 record. According to the counsel for the petitioner, the aforesaid material that has come in the case diary is not sufficient to hold prima facie that petitioner would come under the ambit of Section 120 B of the Indian Penal Code. Learned counsel refers to the judgment reported in (2008) 10 SCC 394 in the case of Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra and points out to paragraph 20 of the judgment wherein the Supreme Court has defined the basic ingredients of a criminal conspiracy which are “(i) an agreement between two or more persons; (ii) an agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means.” The Supreme Court has said that there must be some evidence to show that there is a meeting of minds of two or more persons for doing an illegal act although the Court has acknowledged that it is very difficult to get direct evidence of common intention of the conspirators as such planning is done in secrecy. The aforesaid order of the Apex court was passed in an appeal, after conviction. Considering this aspect of the matter, this Court cannot at this stage consider the discharge of the petitioner on the grounds as made out by the petitioner. The material with respect to Section 120B of the Indian Penal Code would have to be considered in a full fledged trial and the Court below by a detailed order dated 19.8.2009 has rightly rejected the application of the petitioner for discharge. There is no illegality in the impugned order. This application is thus dismissed. Sanjay (Sheema Ali Khan, J.)