The court emphasized that for establishing conspiracy, there must be corroborative evidence of agreement and overt acts; mere speculation or unverified recorded conversations do not suffice.

JUDGMENT :

NEENA BANSAL KRISHNA, J.

1. Criminal Revision Petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”) has been filed on behalf of Petitioner, Romesh Sharma to challenge the Order on Charge dated 10.08.2004 of the learned ASJ in Sessions Case No. 93/2001 in FIR No. 0849/1998, P.S. Hauz Khas.

2. The learned ASJ had framed the Charges under Section 120B with Section 302 IPC on 10.08.2004. This Order is challenged on the ground that from the totality of the facts available and the Charge Sheet, there is no material to even prima facie make out the case against the Petitioner, to warrant a trial. It has not been considered that there is no incriminating evidence against the Petitioner in the Chargesheet, to connect him with the alleged offences.

3. The first ground of challenge is that FIR was registered on the basis of Rukka/Complaint dated 03.11.1998 of Insp. Ishwar Singh. He, however, could not have been the Investigating Officer, who collected the evidence and filed the Chargesheet. The entire evidence conducted, is vitiated and the Petitioner is entitled to discharge.

4. Supreme Court in Megha Singh v. State of Haryana , AIR 1995 SC 2339 , disapproved the procedure wherein the Investigating Officer who lodges the Complaint, himself becomes the Investigator. Division Bench in the case of State of Karnataka v. Sheshadri Shetty and Ors. , 2005 Cri. L.J. 377, also observed that an impartial investigation is the bedrock of any successful prosecution. In some rare and unusual cases, there may be an illegal infirmity or impediment, but the principles of ethical jurisprudence must hold good irrespective of consequences. The law proscribes an Investigating Officer and there is no compromise if this bar is transgressed and the consequences would follow automatically.

5. The second ground of challenge is on merits, to assert that no prima facie case of conspiracy is made out from the Charge Sheet. For an offence under conspiracy, there has to be more than one person to conspire with each-other to commit the offence or have an intention to commit the crime which should materialise as a result of meeting of minds. The alleged incriminating conversation between the Petitioners and Abu Salem, who stated that “Nahin Babloo wala kaam to kara deta hoon. UP Police se karwa deta hoon”, even if admitted as true, does not make out even a prima facie case of conspiracy. There is nothing suggestive that the Petitioner had ever conspired with co-accused for the murder.

6. It is further contended that the entire case of the prosecutions rests solely on the tape recorded conversation, allegedly between the Appellant and the co-conspirator. However, this cassette containing the conversation, remained with HC Dilbagh Singh from 01.10.1998 to 03.11.1998. The alleged conversation is said to have taken place between 01.10.1998 to 20.10.1998. Whether HC Dilbagh Singh heard this conversation on a parallel line, is not made clear. When exactly this conversation took place; whether it was 01.10.1998 or was it on any other date till 20.10.1998, has also not been clarified.

7. HC Dilbagh Singh should have should have handed over the cassette to Insp. Ishwar Singh on 01.10.1998 or on the date of recording of the conversation. However, the tape recorded cassette was handed over to Insp. Ishwar Singh only on 03.11.1998. There is no explanation as to why HC Dilbagh Singh kept the cassette with him till 03.11.1998 and why was it not sealed between 01.10.1998 to 20.10.1998. This does not rule out the possibility of tampering of misusing or erasi