Dr. Jagannath Mishra v. State of Jharkhand- Case Analysis With Reference to the Indian Penal Code, 1860
Submitted by
KARANBIR SINGH THIND
PRN No. 11010224027
Division ‘A’ Roll No. 26 BBA. LL.B. of
Symbiosis Law School, NOIDA
Symbiosis International University, PUNE
In
March, 2013
Under the guidance of
Prof. Girjesh Shukla
And
Prof. Vikram Singh
Law of Crimes-I
Symbiosis Law School
Noida, 201301

Certificate

The project entitled “Dr. Jagannath Mishra v. State of Jharkhand (2002) CriLJ 4646- Case Analysis With Reference to the Indian Penal Code, 1860” submitted to the Symbiosis Law School, NOIDA for Law of Crimes-I as part of internal assessment is based on my original work carried out under the guidance of Prof. Girjesh Shukla and Prof. Vikram Singh in March 2013. The research work has not been submitted elsewhere for award of any degree.
The material borrowed from other sources and incorporated in the thesis has been duly acknowledged.
I understand that I myself could be held responsible and accountable for plagiarism, if any, detected later on.

(KARANBIR SINGH THIND)
Date: March 14, 2013

Acknowledgment

I have taken efforts in this project. However, it would not have been possible without the kind support and help of many individuals. I would like to extend my sincere thanks to all of them.

I would like to thank Symbiosis Law School, Noida for providing me with the opportunity to work on this project.

I am highly indebted to Prof. Girjesh Shukla and Prof. Vikram Singh for their guidance and constant supervision as well as for providing necessary information regarding the project & also for his support in completing the project.

Topic No. | Description | Page No. | 1. | Important Note to Evaluator | 5 | 2. | Facts | 6 | 3. | Issues | 6 | 4. | Ratio Decidendi | 7 | 5. | Analysis | 8 | 6. | Indian Judicial Position | 12 | 7. | Conclusion | 16 | 8. | Bibliography | 17 |

Index

Important Note to Evaluator:
The case law is related to transfer of cases related to criminal conspiracy. However, it has merely arisen as a result of ongoing matters of criminal conspiracy against the petitioner in certain Special Courts and does not touch upon the topic of conspiracy much. It revolves around the procedure of deciding certain criminal conspiracy cases, rather than deciding upon any elements of criminal conspiracy itself. As mentioned in the interim submission, the case law does not expressly state/ mention any provisions from the Indian Penal Code. Therefore, the case analysis is not strictly in reference to the Indian Penal Code but diverts slightly towards a more generalized study of the case law.

I. Facts

The case law mentioned in the topic is an appeal filed by the petitioner praying for issuance of appropriate direction(s) or order(s) to opposite party to transfer all cases of conspiracy as well as for direction of framing charges jointly for fair and speedy trial of cases.

A number of criminal cases regarding conspiracy against the Petitioner were pending in different Special Courts. Regarding this a report was submitted to the learned Special Judge, C.B.I. (A.H.D.), Patna by the Investigating Officer praying to close the case, which was rejected. The same was challenged before the Patna High Court, which was disposed of by order dated April 25, 2000 directing the trial Court to consider the matter afresh. All the cases already investigated and in respect of which, charge sheets have been filed as well as all other cases which are still under investigation are concerning one and the same conspiracy

II. Issues I. Whether the transfer of cases to one Court is required for a fair and speedy trial.
The main question to be decided was whether the petitioner was not receiving a fair trial because of cases in different court and that would it be justified to transfer cases to one single court.

III. Ratio Decidendi
The Court clearly laid down that cases shall not be transferred to any one Court where it causes prejudice to other persons.

Wherein the petitioner would not be receiving a fair and speedy trial because of pendency of different suits in different Courts and where no other party to the suit would be affected negatively because of the transfer of such cases, it may be allowed to transfer such cases to one single Court.

Deoki Nandan Prasad, J stated in the judgment:
“There is no grievance against any of the Special Courts. A mere allegation that the petitioner would not get quick justice by keeping those cases in different Courts, cannot be taken in account in view of the fact that all the cases are being tried at one place at Ranchi and the court will also function smoothly if it is not overburdened or cumbersome rather the Court shall dispose of those cases expeditiously by taking proper and effective attentions.

Several accused persons are charge-sheeted in each of the said cases and it is to be seen that those accused persons would not be prejudicially affected. Moreover all the Special Courts are already functioning smoothly and fairly as well as there is no grievance as against any of the Special Courts, the question of transferring only those cases in one Court does not arise as such action may cause prejudice to other accused persons.”

IV. Analysis

Petitioner

On behalf of the Petitioner, it was argued that since a number of cases are pending in Special Courts against the Petitioner for committing criminal conspiracy, it would be pertinent to transfer all these cases to one Court in order to ensure a fair and speedy trial.

The next argument on behalf of the petitioner was based on multiplication of offences by the prosecution. It was argued that the allegation of conspiracy against the petitioner in one matter was related to only one transaction and the involvement of the petitioner, therefore, cannot be said to be repeated in every alleged withdrawal nor can there be innumerable conspiracies so as to match with every alleged withdrawal. Such a course is repugnant to the fundamental principles of criminal jurisprudence. In support of the argument, J. Jayalalitha v. Union of India was cited by the petitioner.

Respondent

Learned counsel appearing on behalf of the respondents contended that thirty-six cases relating to fodder scam have been transferred to the State of Jharkhand as per the decision of the Hon'ble Apex Court as they are relating to the occurrence taken place in the different districts of the State of Jharkhand and thereafter the State Government with a view to convenient for the accused persons as well as for speedy and fair trial, as many as six special Courts have been created specifically for trying the cases of fodder scam which are functioning at one place at Ranchi.

It was further submitted that all the Special Courts functioning at Ranchi are busy in day-to-day proceeding of the said cases and for the speedy disposal of those cases.

It was also submitted that the petitioner ought to have moved such petition before the Special Court itself if any grievance the petitioner had but without availing this opportunity, this application has been filed which is fit to be dismissed.

The learned counsel further contend that as many as 94 witnesses have already been examined in one matter and the trial of the case is in progress on the day to day basis will hamper the whole trial if such cases will be transferred in one Court and that is a delaying tactics on the part of the petitioner to scuttle in speedy disposal of the cases.

Approach of the Court

The issues in this case predominantly dealt with whether it is pertinent to transfer all the ongoing matters involving the petitioner to one court to facilitate a fair and speedy trial. In this regard, the Hon’ble Jharkhand High Court referred to Section 407 of the Code of Criminal Procedure (Hereinafter referred to as CrPC).

Regarding the nature of the offences (which the petitioner has been charged with i.e. 13(1)(d) and 13(2)) Section 3 of the Prevention of Corruption Act, 1988 was read, which deals with the power of the Government to appoint Special Judges.

Provision of Sub-section (4) of Section 4 and Section 5 of the Prevention of Corruption Act sufficiently indicate the intention of the Legislature and also the object of the Act that the cases of Corruption shall be tried speedily and completed as soon as possible and the Special Judge will hold the trial of an offence on day to day basis. Altogether 36 cases of Fodder Scam have been transferred to the State of Jharkhand for trial and for speedy disposal of those cases, the State Government appointed six Special Judges for trying those cases at one place at Ranchi for the trial of Fodder Scam cases.

Precedent(s) Cited

J. Jayalalitha vs U.O.I. & Anr.

14 writ petitions were filed in the Supreme Court wherein it was contended that Section 3 of The Prevention of Corruption Act is violative of Article 14 and Article 21 of the Constitution of India.

The High Court by two separate judgments dismissed the writ petitions, by holding that Section 3 insofar as it empowers the Government to appoint special Judges "for such case or group of cases" is constitutionally valid and not violative of Articles 14 and 21 of the Constitution.

V. Indian Judicial Position

Criminal Conspiracy
Chapter VA of the Indian Penal Code deals with offences related to criminal conspiracy.
Section 120A defines criminal conspiracy
Section 120B provides the punishment for criminal conspiracy

1. Section 120A
“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”

The main ingredients of Section 120A are: i.) There should be two or more persons ii.) There should be an agreement between themselves iii.) The agreement must be to do or cause to be done: a.) an illegal act; or b.) a legal act by illegal means

The proviso to the section amplifies the scope of the liability as follows: 1.) In the case a conspiracy to commit an offence, the mere agreement is sufficient to impose liability without the requirement that some overt act in furtherance of the conspiracy should have been committed. 2.) However, in the case of a conspiracy to do a legal act by illegal means, there ought to be some overt act, which should have been committed by one or more parties to the agreement, apart from the agreement itself.

In Bimbadhar Pradhan v. State of Orissa, it was held that if there are more than two persons involved in a conspiracy, and if it shown that the objective of the conspiracy has been achieved, then even if some of the other accused had been acquitted, the remaining accused could be convicted under Section 120B. This extends to a situation where there is only one accused remaining after all the other accused have been acquitted.

In Baliya @ Bal Kishan v. State of Madhya Pradesh, it was held that the foundation of the offence of criminal conspiracy is an agreement between two or more persons to cooperate for the accomplishment of an illegal act or an act which is not illegal by itself, through illegal means. Such agreement or meeting of minds create the offence of criminal conspiracy and regardless of proof or otherwise of the main offence to commit which the conspiracy may have been hatched, once the unlawful combination of minds is complete, the offence of criminal conspiracy stands committed. More often than not direct evidence of the offence of criminal conspiracy will not be forthcoming and proof of such an offence has to be determined by a process of inference from the established circumstances of a given case.

In E.K. Chandrasenan v. The State Of Kerala, the following judgment was passed:
As to when conspiracy can be taken as established, it has been accepted that there can hardly be direct evidence on this, for the simple reason that conspiracies are not hatched in open; by their very nature they are secretly planned; and so, lack of direct evidence relating to conspiracy by this accused has no significance.

2. Section 120B

“Section 120B. Punishment of criminal conspiracy
1120B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.”

To make a person liable for the offence of conspiracy, it is not necessary that the offender ought to have been present from the very beginning or even during the entire period of the conspiracy. A conspirator may come and leave the conspiracy at any time during the pendency of the conspiracy. Any and every such conspirator will be liable for the subsequent acts of other conspirators.

When the conspiracy alleged is with regard to committing a serious crime of the nature contemplated in Sec. 120B read with the proviso of Sec. 120A, then in that event, mere proof of agreement between the accused for commission of such a crime alone is enough to bring about conviction under Sec. 120B and the proof of an overt act by the accused or by any of them would not be necessary. There is no requirement that each and every one of the conspirators must commit some overt act toward fulfillment of the object of the conspiracy. Since in most cases, a conspiracy is conceived and hatched in secrecy, circumstantial evidence that leads to an inference that an agreement between the two or more people to commit an offence may be drawn.

VI. Conclusion

While there are grounds for transferring cases from a number of different courts to a single court in order to facilitate a speedy trail, the same cannot be done at the expense of other parties in the litigation. Mere inconvenience is no ground for transfer.

In the present case there was no grievance against any of the Special Courts. A mere allegation that the petitioner would not get quick justice by keeping those cases in different Courts, could not be taken in account in view of the fact that all the cases are being tried at one place at Ranchi and the court will also function smoothly if it is not overburdened or cumbersome rather the Court shall dispose of those cases expeditiously by taking proper and effective attentions.

Several accused persons are charge-sheeted in each of the said cases and it is to be seen that those accused persons would not be prejudicially affected. Moreover all the Special Courts are already functioning smoothly and fairly as well as there is no grievance as against any of the Special Courts, the question of transferring only those cases in one Court did not arise as such action would have caused prejudice to other accused persons.

VII. Bibliography

Books * Vibhute, K. I., LexisNexis Butterworths Wadhwa. “Criminal Law”; Edition XI

Dictionaries * Black’s Law Dictionary; Ninth Edition

Websites * Manupatrafast.in * http://www.lawnotes.in * http://legalplug.in * http://www.indiankanoon.org/

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[ 1 ]. AIR 1999 SC 1912
[ 2 ]. AIR 1999 SC 1912
[ 3 ]. AIR 1956 SC 469
[ 4 ]. Cr.A. No.26/1998.
[ 5 ]. 1995 AIR 1066
[ 6 ]. R Balakrishna Pillai v. State (1996) CrLJ 757 (Ker.)
[ 7 ]. Suresh Chandra Bahri v. State of Bihar AIR 1994 SC 2420