PRADEEP KUMAR SHARMA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioners have sought for quashing of the criminal proceeding initiated against them in G. R. case No. 173 of 2005, arising out of Loisingha P. S. case No. 171 of 2005 pending on the file of J. M. F. C. Loisingha and the orders dated 3-1-2006 taking cognizance of the offence under Sections 379/41 /120-B/34 of IPC and issuing N. B. Ws. of arrest against them.

(2.) SUCCINCTLY stated prosecution case is that on 25/26-10-2005 at about 1. 30 a. m. while Ganesh Padhan, the Security Supervisor of 220 KV Grid Co. Tower line along with other security guards was engaged in patrolling duty, saw one trekker and one truck coming from village Kutarapalli towards village Sakma. On suspicion they detained both the vehicles, on the midway, between village Sakma and Kuturapalli. During this time 10 to 12 persons sitting in the truck jumped out of it and fled away in darkness. Similarly 3 to 4 persons sitting in the trekker took to their heels. Immediately the Security Supervisor and the guards surrounded both the vehicles and found three persons including the driver sitting in the truck. On query, the driver disclosed his name as Harbinder Singh and the other two as Md. Azgar and Kanhu Bag. On search of the truck, the security staff found five quintals of AAA Jobra Electric wire, recently snapped, weighing about two quintals to have been kept in it. The Security Supervisor talked over cell phone to the O. I. C. of loisingha Police Station and on his arrival at the spot, lodged a written report before him, which was registered under Sections 379/411/34, IPC and was investigated into. After completion of investigation charge sheet was submitted against accused persons including the present petitioners for the offence under Sections 379/411/120-B/34 of IPC and after going through the case diary the J. M. F. C. Loisingha took cognizance of the said offences against them.

(3.) AS mentioned earlier, petitioners have challenged the very initiation of the proceeding and the subsequent orders of taking cognizance of the offence under Sections 379/411/120-B/34, IPC and issuing n. B. Ws. of arrest against them. Relying on the decisions in Uma Shankar Mishra v. State of Orissa, (2003) 25 OCR 611 : (2003 cri LJ 216 ). Shri Narsingha Jena v. State of orissa, (2002) 93 CLT 389 and Saju v. State of Kerala, 2001 (11) OLR (SC) 4 : (2001 Cri lj 102) learned counsel appearing for the petitioners submitted that unless there was material on record to show that there was an agreement between two or more persons to do an illegal act or to do an act which was not illegal by illegal means, the offence under Section 120 (B) of ipc could not be attracted. In the case at hand there is no material whatsoever to show that there was an agreement between either of the petitioners with the co-accused for commission of theft of electric wire and accordingly urged to quash the criminal proceeding initiated and the subsequent orders of cognizance taken under Section 379/411 / 120 (B)/34 of ipc and issuance of N. B. Ws. of arrest against them. Section 120-A of IPC defines criminal conspiracy. It reads as follows :