R.C. Mishra, J.

1. These revisions are interlinked as they have arisen from a common order-dated 15.01.2008 passed by the Special Judge (under the Prevention of Corruption Act, 1988 [hereinafter referred to as ‘the PC Act’]) at Bhopal whereby –

(a) Deepak Surana, Ku. Priyanka Shrimal, Pavan Shrimal, Pankaj Shrimal and Ku. Mayanka Shrimal impleaded as respondents in Cri. Revision No.649/08 were discharged in respect of the offences punishable under Sections 13(1)(d) read with 13(2) and 15 of the PC Act read with Sections 120B and 37 of the IPC.

(b) Charges of the offences punishable under Sections 13(1)(d) read with 13(2) of the PC Act and Sections 120B read with 37 of the IPC were framed against B.R. Yadav (who has not challenged the order), Rajendra Kumar Singh, the petitioner in Cri. Revision No.1780/08; R.D. Ahirwar, the petitioner in Cri. Revision No.1444/08 & M.D. Mutha, the petitioner in Cri. Revision No.964/08 and

(c) Virendra Kumar Jain, Ashok Kumar Jain, Smt. Usha Dhakad and Smt. Asha Pangariya, the petitioners in Cri. Revision No.652/08; Manoj Kumar Jain, the petitioner in Cri. Revision No.663/08, Shashibhushan Khandelwal, the petitioner in Cri. Revision No.700/08, Omprakash Khandelwal, the petitioner in Cri. Revision No.750/08 and Sushil Kumar Jain, the petitioner in Cri. Revision No.770/08 were charged with the offences punishable under Sections 120B read with 37 of the IPC.

2. It was upon a complaint made by one Jagdeo Singh Ubbi on 23.08.1997 that the SPE (Lokayukt), after due inquiry into the allegations, directed vide order-dated 30.03.1998, registration of a case as Crime No.33/98 against B.R. Yadav, Rajendra Singh, R.D. Ahirwar, Ashok Kumar and others, for the offences punishable under Sections 13(1)(d) read with 13(2) and 15 of the PC Act and also under Section 120B of the IPC. Upon completion of the investigation, charge sheet was submitted for the aforesaid offences and the one under Section 37 of the IPC against as many as 17 persons named above.

3. Allegations as contained in the charge-sheet may be summarized as under -

(a) The lands, bearing Survey No.257 and part of the lands bearing Survey No.259 admeasuring a total area of 22.56 acres and located in Village Bhamori Dubey at Agra Bombay Road in Indore belonged to Smt. Sohan Kumari Sankhla and her son Ashok Kumar Jain. The Indore Town Improvement Trust constituted under the M.P. Town Improvement Trust Act, 1960 (for short ‘TIT Act’), acquired the aforesaid lands for the purpose of development of residential colony in the name of Scheme No.54 and issued corresponding notification under Section 46(1) of the TIT Act on 12/7/1963. Thereafter, on 18/5/66 Smt. Sohan Kumari made a representation requesting the Trust to release 5 acres of lands in her favour for construction of a Hospital and Nursing Home for her son Vijay Kumar Jain (since dead), who was a medical graduate. In response, the Trust, vide memo dated 3/8/1966, accepted the request, subject to condition that the lands would not be used for any other purpose and, accordingly, an agreement was executed on 20/8/1966 requiring Smt. Sohan Kumari to complete construction of the Hospital and related buildings within a period of two years.

(b) On 14/6/1972, Smt. Sohan Kumari, while expressing her inability to construct the Hospital etc. due to paucity of funds after demise of her husband, moved an application for permission to use the lands for other purposes. However, in view of contravention of the terms and conditions of the agreement, this application was rejected and the Trust (i) issued a notification under Section 71(1) of the TIT Act on 9/11/1973 acquiring the entire lands and (ii) obtained actual physical possession of the lands on 4/4/1975. The Trust was ultimately succeeded by Indore Development Authority (hereinafter referred to as ‘IDA’), that is an Authority established by the State Government under Section 38 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for brevity ‘the Adhiniyam). By virtue of the provisions of Section 87(c)(iii) thereof, all the assets and liabilities of Indore Town Improvement Trust were to be deemed the assets and liabilities of the IDA.

(c) In the year 1979, Ashok Kumar Jain filed a civil suit for declaration and injunction in respect of 2 acres of lands earlier belonging to him whereas Smt. Sohan Kumari also instituted a similar suit in respect of 3 acres of lands but in the result, both the suits were dismissed.

(d) Smt. Sohan Kumari died in 1985 leaving behind six children namely Virendra Kumar, Ashok Kumar, Smt. Usha, Smt. Asha, Sushil Kumar and Vijay Kumar. After her death, Ashok Kumar filed a writ petition (registered as W.P. No.1181/88), under Article 226/227 of the Constitution of India, before the Bench of this Court at Indore challenging acquisition of the lands, even without disclosing the fact that the suits filed by him and his mother had already been dismissed.

(e) On 14/6/1994, Ashok Kumar executed a general power of attorney in favour of Manoj Kumar Jain to act on his behalf whereas Virendra Kumar Jain also executed a general power of attorney in his favour on 17/7/94. In this capacity, Manoj Kumar Jain moved an application on 6/3/1995 before co-accused B.R. Yadav, the then Minister for Housing and Environment, to release 5 acres of lands from the lands acquired for Housing Scheme No.54, as floated by IDA. The Minister directed the Chief Executive Officer of IDA to submit a report. The officer, in turn, reported that release of any part of the lands, which previously belonged to Ashok Kumar and his mother, from the Scheme was not possible. However, Manoj Kumar Jain, by way of letter dated 27/4/1995 insisted upon release of the lands. On being asked again by the Minister to furnish a report, the Chief Executive Officer, vide memo dated 5/6/95, reiterated that release of the lands was neither permissible under law nor feasible as after acquisition, colonization had already started thereon.

(f) Against this backdrop, R.D. Ahirwar, the then Additional Secretary in the Department of Housing and Environment, who was due for retirement on 31/3/97, started taking undue interest in getting the lands released. Taking a view contrary to one expressed in his earlier note-dated 18/7/1995, he passed an order on 11/8/1995 directing the IDA to settle the dispute observing that it would be just and proper to release 7 acres of lands in favour of the applicants as the agreement-dated 20/8/1966 was binding on the Authority. In the wake of the order-dated 11/8/1995, Vijay Kumar and Sushil Kumar, on 6/9/95 only, executed agreements to sell 1.375 acres of lands sought to be released by IDA in favour of Omprakash Khandelwal. All other progenies of Smt. Sohan Kumari had also executed similar agreements to sell in favour of Manoj Kumar. These agreements specifically authorized the proposed purchasers to get the dispute with IDA regarding the release of lands settled at their own cost and to sell the lands thus released from Scheme No.54 of the IDA.

(g) Thereafter, vide order-dated 30/9/1995, R.D. Ahirwar also accepted the request made by Manoj Kumar Jain for substituting 7.5 acres for 7 acres of lands proposed to be released.

(h) On being apprised of this development, a Single Bench of this Court at Indore, by way of order-dated 13.05.96, disposed of the writ petition presented by Ashok Kumar, with the observation that-

“The respondents shall take decision in pursuance of the letter dated 11.08.1995 in accordance with law within a period of 2 months from the date of receipt of a copy of this order”.

(i) In the light of these facts, on 25/5/96, Virendra Kumar Jain, Ashok Kumar, Usha and Asha executed general powers of attorney in favour of Manoj Kumar Jain while the other successors of Smt. Sohan Kumari viz. Sushil Kumar and Vijay Kumar executed general powers of attorney in favour of Shashi Bhushan on 6/9/95.

(j) On 25/5/96 only, -

(i) Ashok Kumar Jain executed an agreement to sell 1 acre of land in favour of Pankaj Surana and Ku. Mayanka Shrimal and also obtained Rs.4,35,000/- as consideration.

(ii) Ashok Kumar Jain executed an agreement to sell 1 acre of land in favour of Pavan Srimal and also obtained Rs.4,35,000/- as consideration.

(iii) Ashok Kumar, Smt. Asha and Smt. Usha executed an agreement to sell 0.687 acre of land in favour of Pavan Shrimal and also obtained Rs.3 lacs as consideration.

(iv) Ashok Kumar, Asha and Usha executed an agreement to sell 0.687 acre of land in favour of Deepak Surana and Ku. Priyanka and also obtained Rs.3 lacs as consideration.

(k) At the relevant point of time, M.D. Mutha was working as Law Officer of the IDA. He, under the garb of what could be termed as compliance with the order-dated 11/8/95, forwarded a proposal, vide letter-dated 12.07.1996, that out of 7.50 acres of lands, only 3.18 acres could be allotted to the successors of Smt. Sohan Kumari and in exchange of remaining 4.32 acres of lands, the available lands and if the lands were not available under the Scheme, adjoining lands could also be allotted to them. Shashi Bhushan and Manoj Kumar Jain, on behalf of Ashok Kumar and all the other successors, consented to this proposal. However, the consent letters, bearing the date 17.07.1996, were ultimately acted upon by R.D. Ahirwar on 20/3/1997, a few days prior to the date of his superannuation. Meanwhile, on 28/7/96, Rajendra Kumar Singh took over as the new Minister of Housing and Environment. He proposed to review, in the public interest, orders passed by his predecessor in as many as 11 cases including the present one and on 13/9/96, also stayed operation of the orders dated 11/8/1995 & 30/9/1995 (supra). Being aggrieved, Manoj Kumar and Shashibhushan moved a contempt petition before the Bench at Indore on 14/11/1996. On being apprised of the contempt motion, Rajendra Kumar Singh passed an order on 17/11/96 indicating his disinclination in withdrawing the stay order. He, accordingly, directed to file an appropriate reply to the Contempt Petition and to appoint Shri Rohit Arya, Senior Counsel to represent him. He also fixed 29/10/96 as the next date of hearing but was not able to hear it till 20/2/1997. However, on 20/2/1997, he, all of a sudden, vacated the stay order passed on 13/9/96 and communicated this fact to R.D. Ahirwar through his letter- dated 24/2/97 that also contained direction to the IDA to act upon the proposal dated 12/7/96. R.D. Ahirwar, in anticipation of a formal approval of the corresponding note (that was ultimately endorsed by Rajendra Kumar Singh on 31/3/1997), passed the order regarding release of the lands as per proposal.

(l) As the Minister-in-Charge of the Departments concerned, Rajendra Kumar Singh failed to recall a patently illegal order-dated 11/8/95 passed by his predecessor-in-office viz. B.R. Yadav and completely ignored the public interest. He apparently overlooked the direction contained in the High Court’s order-dated 13/5/96 to take decision in accordance with law. Thus, Rajendra Kumar Singh was also a party to the conspiracy in pursuance of which he reaffirmed the order directing IDA to give developed plots of lands in place of 7.5 acres of undeveloped lands that were already acquired by it.

In doing so, he not only caused wrongful loss to IDA to the extent of Rs.13,85,74,970/- but also screened the beneficiaries from the penal consequences under the Urban Lands Ceiling Act, 1976.

4. Adverting to the legal aspects of the matter, it may be observed that by virtue of the provisions of sub-section (1) of Section 5 of the PC Act, the Special Judge trying an accused for an offence punishable under the Act is required to follow the procedure prescribed by the Code of Criminal Procedure (for short ‘CrPC’) for the trial of warrant cases by the Magistrate. Correspondingly, the relevant provisions are Sections 239 and 240 of the CrPC. However, the Supreme Court in R.S. Nayak v. A.R. Antulay (1986) 2 SCC 716, after analyzing the terminology used in Sections 227, 228, 239, 240, 241 and 242 relatable respectively to Session Case, Warrant Case and Summons Case, proceeded to explain that there is no scope of doubt that at the stage at which the Court is required to consider question of framing of charge, the test of a prima facie case is to be applied.

5. Moreover, it would be necessary to consider the incriminating circumstances as highlighted by the prosecution in the charge-sheet regarding respective role/roles attributed to each category of the accused persons charged with the offences.

6. For the sake of convenience, the accused persons, who stand charged, may be classified under three categories –

(1) Ashok Kumar Jain as one of the original co-owners of the lands and Virendra Kumar, Smt. Usha, Smt. Asha and Sushil Kumar as heir and legal representatives of the other original co-owner late Smt. Sohan Kumari.

(2) Attorneys namely Manoj Kumar and Shashibhushan appointed by the accused falling under category (1) to get the lands released from acquisition and Omprakash, in whose favour agreements to sell certain parts of the lands were executed by Sushil Kumar and Vijay Kumar.

(3) Public servants instrumental in securing orders directing release of the lands duly acquired for a public purpose viz. R.D. Ahirwar & M.D. Mutha and B.R. Yadav, the then Minister, who passed the necessary orders and Rajendra Kumar Singh, the then Minister, who ratified or approved the decision taken by B.R. Yadav.

CATEGORY NO.(1) -

• Contentions raised by the petitioners Virendra Kumar, Ashok Kumar Jain, Smt. Usha and Smt. Asha are that –

(a) So-called agreements to sell were unilateral in nature and did not transfer right to anyone.

(b) Both the Ministers namely B.R.Yadav and Rajendra Singh had acted in accordance with the statutory authority conferred upon them.

• Contentions raised by the petitioner Sushil Kumar Jain are that –

(a) Only Manoj Kumar Jain, the attorney of Ashok Kumar, R.D. Ahirwar, Additional Secretary, P.C. Thomas, Under Secretary and Ministers B.R. Yadav and Rajendra Singh were prima facie guilty for release of 7.5 acres of lands and till then, the petitioner namely Sushil Kumar was not in picture.

(b) The petitioner was not even aware of the order-dated 11/8/95 at the time when builder Omprakash Khandelwal obtained his signature on the agreement to sell dated 17/8/95 and he was kept in dark presumably under the apprehension that on coming to know about the release order, he may decline to sell his share in the lands. Further, Omprakash Khandelwal required him to execute power of attorney in favour of his son Shashibhushan. Acting under the authority of Power of Attorney, Shashibhushan and Manoj Kumar Jain received the letters of offer from the Law Officer of IDA and gave consent even without knowledge of the petitioner and R.D. Ahirwar also did not prefer to inform him before acting upon the consent letters.

(c) In the entire transaction, the petitioner received only a sum of Rs.2,50,000/- as consideration for the agreement to sell his share of lands in favour of Omprakash Khandelwal whereas, according to FIR, value of corresponding piece of lands was roughly Rs.2.5 crores. Thus, the builders who procured the lands were the real beneficiaries.

CATEGORY NO.(2)

• Contentions raised by the petitioner Manoj Kumar Jain are that –

(a) The fact that, despite being a lawyer, he had moved an application for release of the lands from acquisition, by itself, would not be sufficient to prove his involvement in the offences.

(b) There is no legal impediment to purchase the lands under litigation.

(c) No contract was ever concluded in the eyes of law for the sale of aforesaid lands.

(d) Since the possession letters did not bear signatures of the buyers, mere preparation of documents relating to sale was not a proof of the transaction.

(e) None of the witnesses including Vijay Kumar Singh, G.P. Mukatiand and Udaybhan Singh stated that petitioner Manoj Kumar had offered any inducement to the Ministers.

(f) All the actions taken by the petitioner as the attorney were for the benefit of the Principal(s) and it is not the case of the prosecution that while acting as attorney, he was benefited in any manner through the acts forming subject matter of the charge sheet.

• Contentions raised by the petitioner Omprakash are that –

(a) So-called agreements did not create any right.

(b) No property was transferred by way of the agreements in question.

(c) As the Minister concerned, B.R. Yadav had acted in accordance with the statutory authority conferred upon him.

• Contentions raised by the petitioner Shashibhushan are that –

(a) Execution of power of attorney in favour of the petitioner after the lands were released would not ipso facto mean that it was an act in pursuance of a conspiracy with the main accused for securing release of lands, particularly when there was no oral or documentary evidence to show that he, at any stage, had directly or indirectly taken part or made any attempt for getting the lands released.

(b) Entering into agreement to purchase a piece of released lands by father of the petitioner viz. Omprakash Khandelwal could not, by any stretch of imagination, amount to his commitment to co-operate for the accomplishment of the object of the conspiracy.

(c) Public Prosecutor-in-charge of the case had filed an application for withdrawal from prosecution in public interest. In that application under Section 321 of the CrPC, it was specifically stated that the order of release was passed by the State Government in accordance with the provisions of Sections 52 and 72 of the Adhiniyam.

(d) Prosecution, in the aforesaid case, raised a suspicion as to legality of acquisition of lands by the Town Improvement Trust and further admitted that lands admeasuring 22.56 acres, acquired for the Housing Scheme stood released.

(e) Release of certain lands from acquisition was neither illegal nor violative of any provision of law. On the contrary, as explained by the Supreme Court in State of M.P. v. Kewal Yadav (2004) 11 SCC 317, it was legally permissible.

(f) As per the guideline laid down by the Apex Court in Soma Chawla v. State through CBI (2007) 5 SCC 403, while framing charges specifically, application of mind as regards role attributed to every category of accused persons is necessary and lack of such application of mind vitiated the order framing charges.

CATEGORY NO.(3)

• Contentions raised by the petitioner M.D. Mutha are that –

(a) The letter written by him on 12/7/96 in his official capacity as Law Officer of the IDA seeking consent of the lands owners for settlement of the matter was the sole material before the trial Court. However, its draft was duly approved by the Chairman and Chief Executive Officer of the IDA. As such, mere issuance of letter in compliance with the orders of the State Government as well as in pursuance of directions given by the superior authority was not sufficient to establish his involvement in the conspiracy.

(b) Since the orders-dated 11/8/95 and 30/9/95 were issued by the State Government under Section 52 of the Adhiniyam, they were binding on the IDA.

(c) Indore Bench of this Court had also directed IDA to take necessary action in compliance with the aforesaid orders of the State Government.

(d) Compliance with the direction given by the superior authority to sign the letter-dated 12/7/96 cannot be construed as commission of any offence under the provisions of the PC Act or those of the IPC.

(e) The petitioner was neither authorized nor competent to take any decision for release of the lands in favour of previous owners.

(f) There is nothing on record to presume that the petitioner had played any role in the entire decision- making process relating to release of the lands.

• Contentions raised by the petitioner R.D. Ahirwar are that –

(a) The petitioner only complied with the directions contained in order-dated 23/7/95 passed by the then Minister B.R. Yadav.

(b) If there was any disagreement between the Principal Secretary and the Minister, the then Principal Secretary was supposed to express his disagreement and re-submit the file to the Minister for correcting, revising or changing the orders but this was not done meaning thereby that the Principal Secretary was also in agreement with the orders passed by the Minister.

(c) K.S. Sharma, the then Principal Secretary, pointedly remarked that the orders passed by the Minister had been to resolve the long standing dispute amongst the IDA, the lands owners and members of Wholesale Kirana and Tea Merchant’s Association.

(d) The petitioner was not expected to (i) fix the hearing on 20/2/97 or (ii) vacate the stay order or (iii) direct the IDA to implement the High Court’s order-dated 13/5/96.

(e) The only oversight attributed to the petitioner was that during hearing on 20/12/97, he did not raise any objection to the decision taken by the Minister as per the proposal made by the IDA and consented to by the lands owners and also did not refuse to record the minutes of the meeting whereas he was duty bound to obey the direction of the Minister to record the minutes.

(f) The petitioner submitted a note on 26/12/96 containing suggestion to bring all the background facts to the notice of the High Court. Rakesh Sahni, the then Secretary, also supported the fact that the note-dated 26/12/96 submitted by the petitioner was approved by him as well as by the Minister but no follow up action could be taken despite the fact that instructions were given to consult Shri Rohit Arya, Advocate.

(g) During the hearing of W.P. No.1437/96 on 6/3/97, the representative of IDA undertook to comply with the order- dated 13/5/96 passed by the Court and to implement the directions given by the State Government on 24/2/97 and 5/3/97.

(h) In the light of the undertaking, Contempt Petition No.47/96, which was pending against the petitioner, was also disposed of by the High Court. In such a situation, he was under an apprehension that in case of failure to act promptly, fresh contempt proceedings would be initiated against him.

(i) The petitioner only performed the official duties and functions assigned to him without any motive or design and to the best of his understanding. His acts and omissions, therefore, were protected by the provisions of Section 81 of the Adhiniyam.

•  Contentions raised by the petitioner Rajendra Kumar Singh are that –

The only role attributed to the petitioner is that he had restored the order-dated 11/8/95 passed by B.R. Yadav, the then Minister for Housing and Environment (Government of M.P.) by vacating the stay order passed by him. However, it was done in the face of contempt proceedings pending against the State Government after taking into consideration the following facts -

(i) In a long drawn litigation between Smt. Sohan Kumari and her legal heirs on one hand and the State Government & the IDA on the other, various Civil Suits and Writ Petitions were filed and in W.P. No.1181/88, the High Court of M.P. Bench at Indore, also directed to maintain status quo in respect of the lands in question. Against this backdrop, B.R. Yadav passed the order-dated 11/8/95 requiring consideration of the case by the IDA afresh. In the light of this development, W.P. No.1181/88 was disposed of by the High Court on 13/5/96 with a direction to IDA to take decision in pursuance of the State Government’s letter-dated 11/8/95 in accordance with law within a period of two months.

(ii) On 28/12/95, B.R. Yadav demitted the office and was succeeded by S.N. Sharma, who handed over charge of the Ministry to the petitioner on 28/7/96.

(iii) On 13/9/96, the petitioner, while directing to review various matters relating to lands at Indore, proceeded to stay the earlier orders without knowing that the High Court, vide order-dated 13/5/96, had already given direction to the IDA to take decision in accordance with the order-dated 11/8/95 (supra).

(iv) Date for hearing was fixed on 29/10/96 but prior to that, legal representatives of Smt. Sohan Kumari filed W.P. No.1437/96 against the State Government challenging the action in the matter regarding release of the lands. A Contempt Petition, bearing No.47/96, was also filed on the ground that by staying the operation of the order- dated 11/8/95, the State Government had committed contempt of Court by not following the order-dated 13/5/96 passed by the High Court in W.P. No.1181/88. In these circumstances, attention of the department was focused at the contempt petition and to avoid further complications, the petitioner, vide note-dated 20/2/97, vacated the order-dated 13/9/96 and thus, restored the order-dated 11/8/95. Ultimately, the High Court dismissed the W.P. considering the letters-dated 24/2/97 and 5/3/97 issued to the IDA requiring it to take necessary action and to inform accordingly. On 6/3/97, the High Court also dropped the contempt proceedings passed in Contempt Petition No.47/96.

(v) As laid down by the Apex Court in Kewal Yadav’s case (supra), the State Government is authorized to control various authorities constituted under the Adhiniyam.

(vi) In these circumstances, it could not be said that by passing the order-dated 20/3/97, he had approved the proposed release of lands.

(vii) The petitioner could not be held liable for issuance of letter-dated 20/3/97 that, being inconsistent with the contents of the corresponding note as approved by him, was an unauthorized communication. For this misconduct, he, vide order-dated 17/9/97, also directed initiation of departmental proceedings against R.D. Ahirwar.

7. But, fact of the matter is that like all other accused aggrieved by the order in question, Rajendra Kumar Singh has also been charged with the offence of criminal conspiracy, which is a matter of inference to be deduced from acts done or omission made in pursuance of the common design. The fact that he had allegedly joined the conspiracy at a later point of time, also does not assume any significance. For this reference may be made to the following observations made by the Apex Court in S. Swami Ratnam v. State of Madras AIR 1957 SC 340 –

"In the case of single conspiracy although spread over for several years as long as there is one object of the conspiracy that is to cheat the members of the public, the fact that in the course of years others joined in the conspiracy of several instances of cheating took place in pursuance of the conspiracy does not change the conspiracy and it does not split up a single conspiracy into several conspiracies."

There is no difference between the mode of proof of the offence of conspiracy and that of any other offence : it can be established by direct evidence or by circumstantial evidence. But, Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co-conspirators (See. Bhagwan Swarup Lal Bishan Lal v. State of Maharashtra AIR 1965 SC 682).

8. In the instant case, knowing fully well that the acquisition of lands by the Town Improvement Trust had attained finality and there was no provision for release of the lands in the corresponding Act, Virendra Kumar Jain, Ashok Kumar Jain, Usha Dhakad and Asha Pangariya had appointed Manoj Kumar and Sushil Kumar had appointed Shashibhusan, son of Omprakash as their attorneys and had also executed agreement to sell reflecting their knowledge about the dispute and had authorized the proposed purchasers to get the lands anyhow released and to alienate the same to any person. The contention as to ignorance of law or unawareness of the order dated 11/8/95 while putting signatures on the agreement to sell or that none of them had influenced any Minister to pass the order releasing the lands is not reasonably acceptable.

9. The attorneys are the key role players who were able to persuade the Ministers to pass/reaffirm an apparently illegal order releasing the lands that had already been acquired. Their defence that it is no offence to enter into agreement in respect of the lands in dispute or no contract was ever concluded in the eyes of law or the possession letters did not bear signature of the buyer, is also not acceptable as such an agreement need not be signed by both the parties. The present case is a glaring example of what may be termed as an illegal release of lands duly acquired by the State Government at the instance of power of attorneys, who did not own the lands at any earlier point of time. Further, it also highlights the concept of power of attorney sales which has been deprecated by the Supreme Court as illegal and irregular in the case of Suraj Lamp and Industries (P) Ltd. v. State of Haryana AIR 2009 SC 3077, wherein the Court also insisted upon special measures to control such sales.

10. R.D. Ahirwar was the author of letters-dated 11/8/1995 and 30/9/95 requiring the IDA to settle the matter with the persons in category no.(1) [above] by taking an apparently illegal view that the agreement dated 20/8/1966 was binding on the IDA. M.B. Mutha, as Law Officer of the IDA was expected to know the legal position and was required to oppose any move to take the lands that had already been acquired back from the IDA. Their plea that as public servants, they had no other option except to follow the orders of their superior authorities in the aforesaid circumstances would not be sufficient to discharge them particularly when they were holding very responsible posts at the relevant point of time and therefore, it could be presumed that by playing the respective roles in pursuance of the conspiracy, they were instrumental in getting the lands released vide order dated 20/3/97.

11. As pointed out already, B.R. Yadav has not challenged the order framing charges whereas the explanation of Rajendra Singh is that he had restored the order dated 11/8/09 passed by B.R. Yadav in the face of contempt proceedings pending against the State Government. It is true that the State Government is empowered to issue directions in exercise power of control and superintendence contemplated in Section 73 of the Adhiniyam but, as elucidated in Kewal Yadav’s case (ibid), if any order, passed by the State Government, is contrary to law or repugnant to the provisions of the Adhiniyam or any other Act, it would always be open to a party to challenge the same before the appropriate forum.

Further, the Minister holds public office though he gets constitutional status and performs functions under the Constitution, law or executive policy. The acts done and duties performed are public acts or duties as the holder of public office. Therefore, he owes certain accountability for the acts done or duties performed. In a democratic society governed by rule of law, power is conferred on the holder of the public office or the authority concerned by the Constitution by virtue of appointment (See. Secy., Jaipur Development Authority v. Daulat Mal Jain, (1997) 1 SCC 35).

12. It is pertinent to mention here that the petition, under Article 226 of the Constitution of India, -

(a) moved by Rajendra Singh for quashing of the FIR was dismissed by a single Bench of this Court vide order- dated 03.07.1998 passed in W.P. No.2434/98, that has been reported as 2000 (3) MPHT 172.

(b) filed by R.D. Ahirwar for quashing of his prosecution as well as sanction for his prosecution was also dismissed by another Single Bench of this Court vide order-dated 24.06.2002 passed in W.P. No.2181/99, that has been published as 2003 CRI. L. J. 2616.

13. Section 37 of the IPC provides that where several acts are done so as to result together in the commission of an offence, the doing of any one of them with intention to co-operate in the offence makes the actor liable to be punished for the commission of the offence. The distinction between S.34 and S.37 was highlighted in Makka v. The State 1952 Cri. L. J. 797 in the following terms -

“the former requires common intention for a criminal act which is done by a number of persons in order that they should become liable as if the act was done by each of them while the latter deals with the intentional co-operation in the offence which has resulted from several acts, each of which standing by itself is not the offence with which the accused are charged”.

14. Even a strong suspicion leading to presumption as to possibility as against certainty makes out a case for framing of charge. The trial Judge is required to record reasons only if he decides to discharge the accused (Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722 referred to).

15. In State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744, a three-Judge Bench of the Apex Court explained the meaning of the word "presume". It was further observed -

"...if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the material brought on record by the prosecution has to be accepted as true at that stage".

16. Thus, looked at from any angle, part of the impugned order that relates to framing of charges does not suffer from any palpable error of jurisdiction.

17. This brings us to the other part of the order whereby the respondents in Cri. Revision No.649/2008 were discharged. It has been challenged primarily on the ground that material on record was sufficient to presume that the accused persons namely Deepak Surana, Priyanka Shrimal, Pavan Shrimal, Pankaj Shrimal and Ku. Mayanka Shrimal were also involved in the criminal conspiracy and related offences.

18. Learned Special Public Prosecutor has strenuously contended that the very nature of transactions entered into between the proposed sellers and the proposed purchasers of the lands namely Deepak Surana, Priyanka Shrimal, Pavan Shrimal, Pankaj Shrimal and Ku. Mayanka Shrimal and the contents of corresponding agreements to sell clearly go to suggest that Ashok Kumar Jain, Smt. Asha and Smt. Usha through Manoj Kumar, the power of attorney holder, had proposed to sell respective shares knowing fully well that the lands were yet to be released by IDA and the proposed purchasers, while reflecting their awareness of the pending dispute with IDA, had undertaken to get it resolved and, therefore, a conspiracy to grab the lands, which could not have been released after acquisition, could easily be inferred. For this, our attention has been drawn to the fact that the agreements to sell executed in favour of the accused persons (since discharged) also contained conditions to the effect that proposed purchasers would have every right/authority (a) to get the lands released wholly or partly from Scheme No.54 or to obtain other lands in exchange thereof and (b) to transfer the lands thus released or obtained in exchange or any part thereof in favour of any other person. According to learned Prosecutor, these conditions were quite similar to those, which were incorporated in the agreements forming basis of charges as against Manoj Kumar, Shashibhusan and Omprakash.

19. In response, Shri A.M. Mathur, learned Senior Counsel appearing for the discharged accused, has submitted that the corresponding part of the order does not suffer from any error of jurisdiction as the charge-sheet and all other documents accompanying it did not disclose ground to presume that they had committed any offence. In support of the argument, he has placed reliance on a series of decisions laying down principles governing standard of test, proof and judgment to be applied at the stage of charge in a Sessions Trial. The ratio of each one of these decisions may extensively be reproduced as under -

“That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power 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;

That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post- Office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (Union of India v. Prafulla Kumar AIR 1979 SC 366).

It seems well settled that at the Ss.227-228 stage i.e., stage of framing the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case (See. Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja AIR 1990 SC 1962).

In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power 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; where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (See. Dilawar Babu Kurane v. State of Maharashtra AIR 2002 SC 564)."

20. As propounded way back in 1938 by a Division Bench of the Nagpur High Court in Sheoprasad Ramjas Agrawal v. Emperor AIR 1938 Nagpur 394, the order of discharge should not be lightly interfered with. The Apex Court in Century Spinning and Manufacturing Company Limited v. State of Maharashtra AIR 1972 SC 545 observed that order framing charge affects personal liberty of a person and, therefore, the Court should not frame a charge simply because the prosecuting agency, by relying upon the documents referred to in Section 173 of the Code, considered it proper to institute the case. As further explained in State of Karnataka v. L. Munishwamy AIR 1977 SC 1489, for the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses, comparatively wider discretion in exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said to be reasonably possible.

21. In the wake of these guiding principles, let us now examine each one of the reasons recorded by learned trial Judge to discharge Deepak, Priyanka, Pavan, Pankaj and Mayanka. The reasons were as follows -

(A) None of them was named in the FIR or in the complaint made to the Lokayukt.

(B) It is not the case of the prosecution that the powers of attorney or agreements to sell were recovered from any one of these accused persons.

(C) None of the agreements to sell, said to have been executed in favour of them -

(a) bore his/her signature.

(b) reflected mode of payment of consideration.

(D) Statement of Bank Account filed in support of Priyanka and Mayanka also did not indicate withdrawal of any amount forming part of the consideration.

(E) Certificate issued by the Chartered Accountant also suggested that no amount had been paid by Mayanka to Ashok Kumar or anyone of his sisters.

22. Learned Senior Counsel, while supporting order of discharge for the reason (C) [above], has strenuously contended that, in absence of consensus ad idem between the parties, there was no agreement at all and, therefore, the proposed purchasers were not liable for any adverse consequence whatsoever. To buttress the contention, reliance has been placed on the following precedents –

(i) R. Chinnadurai v. S. Rajalakshmi AIR 2004 MADRAS 313 wherein it was held that an agreement must have two parties and both are to sign the same.

(ii) Thawardas Pherumal v. Union of India AIR 1955 SC 468 wherein it was laid down that a person cannot be bound by one-sided offer, which is never accepted.

(iii) Badri Prasad v. State of M.P. AIR 1970 SC 706 wherein it was propounded that where there is no unconditional acceptance, there would be no contact.

However, the contention is apparently misconceived as in India, an agreement of sale signed by the vendor alone is valid and enforceable by purchaser (See. Aloka Bose v. Parmatma Devi AIR 2009 SC 1527). Besides this, non-initiation of any action against anyone of the respective vendors for unnecessarily showing him/her as the prospective purchasers in the agreements was also indicative of their involvement in the conspiracy.

23. Coming to the reasons (A) and (B) [ibid], it may be seen that (i) non-mentioning of the names was no ground to reject the outcome of the investigation as against the accused named above and (ii) non-recovery of the powers of attorney or agreements to sell from the possession of any one of them also did not assume any significance.

24. Reasons (D) and (E) [supra], which weighed with learned trial Judge in recording the order of discharge, were based on documents placed on record by Priyanka and Mayanka. Terming this approach as well justified, learned Senior Counsel has invited our attention to the following observations made by one of the two Judges constituting the Bench in Rukmini Narvekar v. Vijaya Satardekar AIR 2009 SC 1013 –

“It can not be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases, i.e., where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. In some very rare cases the Court is justified in looking into the material produced by the defence at the time of framing of the charges, if such material convincingly establishes that the whole prosecution version is totally absurd, preposterous or concocted”.

Presumably, noticing that the aforesaid opinion appears to be in conflict with a three-Judge Bench decision in State of Orissa v. Debendra Nath Padhi AIR 2005 SC 359, the other Judge expressed non-concurrence in the following words -

“In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such material as are indicated in Section 227, Cr.P.C. can be taken into consideration by the learned magistrate at that stage. However, in a proceeding taken therefrom under Section 482, Cr.P.C. the Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi's case by the larger Bench to which the very same question had been referred.”

Besides this, in a subsequent decision rendered in Indu Jain v. State of M.P. AIR 2009 SC 976, the same Bench, which decided Rukmini's case, has explained that the view expressed by a two Judge-Bench in Satish Mehra v. Delhi Administration (1996) 9 SCC 766 that the trial Judge was competent to look into the material produced on behalf of defence at the time of framing of charge stands completely overruled by the pronouncement in Debendra Nath Padhi’s case (above). Accordingly, materials/documents furnished by the accused could not have been considered at the stage of framing of charge. Even otherwise, no significance could be attached to the source or mode of payment of consideration under the respective agreements. Thus, the reasons (D) and (E) [above] were not tenable at all.

25. Having regard to the above discussion, we are of the opinion that all the reasons assigned by learned trial Judge for discharging the accused named above were ex facie fanciful and fragile. Obligation to discharge the accused arises when the charge against the accused is considered to be groundless. As such, learned Judge committed a manifest error of jurisdiction in discharging Deepak, Priyanka, Pavan, Pankaj and Mayanka. Like all these non-public servants arraigned as accused in the charge sheet, each one of them also deserved to be charged with the offences punishable under Section 120B read with 37 of the IPC. The order of their discharge, therefore, requires interference under the revisional jurisdiction.

26. For these reasons, the impugned order, so far as it relates to Deepak, Priyanka, Pavan, Pankaj and Mayanka, is hereby set aside. As an obvious consequence, discharge of these five accused is annulled. Instead, it is directed that the trial Judge shall also proceed against them in accordance with law after framing suitable charges of the offences punishable under Section 120B read with 37 of the IPC. The other part of the order concerning framing of respective charges against the co-accused persons is maintained.

27. Since a considerable period of more than three years has already elapsed after passing of the impugned order of discharge, it shall be in the discretion of trial Judge to determine whether in the facts and circumstances of the case including the number of prosecution witnesses already examined and possibility of delay in completion of trial of the co-accused and in the light of well settled legal position as discussed by one of us in Manoj v. State of M.P. I.L.R. [2008] M.P. 404, it would be expedient to separate trial of the five accused persons to be charged at this stage with the aforesaid offences

28. Consequently, Cri. Revision No.649/2008 is allowed whereas all the other revisions are dismissed.

29. A copy of this order be retained in each one of the connected revision petitions.