Q 1.

What is the criteria under section 228 1(b) of crpc for framing charges against
the accused person?

Section 228 of Code of Criminal Procedure 1973 - Framing of charge

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is
ground for presuming that the accused has committed an offence which-

(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused
and, by order, transfer the case for trial to the Chief Judicial Magistrate, 1 [or any other Judicial
Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate,
or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and
thereupon such Magistrate] shall try the offence in accordance with the procedure for the trial of
warrant-cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be
read and explained to the accused and the accused shall be asked whether he pleads guilty of the
offence charged or claims to be tried.

STATE AMENDMENT

● Chhattisgarh
In sub-section (2) of section 228 of the Principal Act, after the word "to the accused" the
following shall be added, namely: -"present in person or through the medium of
electronic video linkage and being represented by his pleader in the Court."
[Vide Chhattisgarh Act 13 of 2006, s. 4.]

In the case of STATE Vs BHUPINDER SINGH BISHT & ORS. 2015 VIIAD(Delhi)735,
220(2015)DLT266, it was observed that 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, disclosed the existence of all the ingredients constituting the alleged offence. At that
stage, the Court is not expected to go deep into the probative value of the material on record.
What needs to be considered is whether there is a ground for presuming that the offence has been
committed and not a ground for convicting the accused has been made out. At that stage, even
strong suspicion founded on material which leads the court to form a presumptive opinion as to
the existence of the factual ingredients constituting the offence alleged would justify the framing
of charge against the accused in respect of the commission of that offence.

Code of Criminal Procedure, 1973 – Section 227 – The trial court is bound to decide
whether there is “sufficient ground” to proceed against the accused and as a
consequence thereof either discharge the accused or proceed to frame charge against him
– Trite that the words “not sufficient ground for proceeding against the accused”
appearing in the Section postulate exercise of judicial mind. (Paras 14 and 15)

In the case of State of Bihar v. Ramesh Singh and Prafulla Kumar Samal – For an
offence under Section 120B, the prosecution need not necessarily prove that the perpetrators
expressly agree to do and/or cause to be done the illegal act, the agreement may be proved by
necessary implication – Well settled that an offence of conspiracy is a substantive offence and
renders the mere agreement to commit an offence punishable even if an offence does not take
place pursuant to the illegal agreement. (Paras 18, 19 and 23)

Shivnarayan Laxminarayan Joshi v. State of Maharashtra. [Para 18]

Mohammad Usman Mohammad Hussain Maniyar v. State of Maharashtra. [Para 19]

Kehar Singh & Ors. Vs. State (Delhi Administration) [Para 20]

State of Maharashtra & Ors. Vs. Som Nath Thapa & Ors. [Para 21]

State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru. [Para 22]

State Through Superintendent of Police, CBI/SIT Vs. Nalini & Ors. – Relied upon. [Para 22]

Indian Penal Code, 1860 – Section 120B – In the light of discharge of appellant’s mother, sister
and two close associates as also the father stated to be the mastermind behind the entire
conspiracy, for offences under Sections 120B and 302 I.P.C., on same set of circumstances and
accusations, no sufficient ground to proceed against the appellant for the aforementioned
offences. (Para 26)
In the case of Yogesh Sachin Jagdish Joshi v/s State of Maharashtra it was observed that
Meeting of minds of two or more persons for doing or causing to be done an illegal act or an act
by illegal means is sine qua non of criminal conspiracy.

Facts of the case:

● In the month of March 1999, deceased Kunal organised an entertainment show,

sponsored by the father of the appellant. During the event, the deceased was introduced to
the sister of the appellant, Hema. The acquaintance blossomed into love between the two.
They eloped and got married on 29th May, 2000. Appellant’s father lodged a complaint
alleging that the deceased had kidnapped his daughter.
● Sometime in June, 2000, on persuasion by the complainant and his wife, Hema agreed to
return and stay with her parents and the marriage between Kunal and Hema is stated to
have been annulled.
● Thereafter, Kunal was engaged to another girl and the wedding was scheduled for 30th
November, 2001. On 21st April, 2001, the deceased (Kunal) was found lying in a pool of
blood on Mahabaleshwar road. He was taken to the hospital where he was declared
brought dead.
● The complainant lodged an F.I.R at Mahabaleshwar Police Station against unknown
persons and an offence was registered under Section 302 of the IPC. However, on the
next day, the complainant levelled allegation of conspiracy against the appellant and
others to murder Kunal.
● On completion of investigation, charge-sheet was filed against the appellant before the
Juvenile Court, Satara.
● The appellant filed an application for discharge before the Juvenile Justice Board, under
Section 227 of the Code. The Juvenile Justice Board by order dated 1st October, 2004,
rejected the said application.
● Being aggrieved by the said order, the appellant preferred a criminal appeal before the
Sessions Judge, Satara which was dismissed.
● Still aggrieved, the appellant moved a revision application before the High Court which
was also dismissed.
 ● Findings of the Court : Sufficient ground survives to proceed against the appellant for the
aforementioned offences.
● Result : Appeal allowed.

In the case of State of Rajasthan v. Ashok Kumar Kashyap, the Hon’ble Supreme Court
discussed the law relating to framing of charges under the Code of Criminal Procedure, 1973

● Firstly, it was observed that “at the stage of Section 227, the Judge has merely to sift the
evidence in order to find out whether or not there is sufficient ground for proceeding
against the accused.”
● Secondly, the Court opined that only such evidence, that has been recorded by the Police
or documents that have been produced before the Court, which ex facie disclose
suspicious circumstances against the accused, are to be considered at the stage of framing
of charges.
● Thirdly, it was further observed that “if the Judge comes to a conclusion that there is
sufficient ground to proceed, he will frame a charge under Section 228 Cr.P.C., if not,
he will discharge the accused.”
● Fourthly, the Court cautioned that while applying judicial mind at the stage of framing of
charges, the Court need not enter into the merits of the matter or weigh the evidence and
probabilities. Such exercise should be undertaken when the trial commences.
● Fifthly, it was laid down that at the stage of framing of charges, the Court must presume
that the material available on record by the prosecution is true and if the same is taken at
face value, whether it fulfils the necessary ingredients of an offence or not. This is all that
the Court is required to see.
● Sixthly, the Court clarified that at the stage of framing of charges, the probative value of
the material available on record has to be looked into by the Court and there is no need to
answer whether such material is sufficient for conviction or not. The Court is only
required to see if a prima facie case is made out against the accused and even if there is a
slight probability in the mind of the judge that the accused might have committed the
offence, then it may frame the charges against the accused.
 ● And lastly, the defence of the accused on merits is not required to be considered at the
stage of framing of charges as a Mini Trial is not permissible at such stage. This is very
important that the defence of the accused is not to be looked into at this stage.

CONCLUSION

In conclusion, it could be said that the stage of framing of charges is a preliminary stage in
criminal proceedings and the evidence brought out by the prosecution against the accused is to
be seen by the Court. If such evidence does not disclose commission of any offence, then the
Court must discharge the accused but even if there is an iota of evidence against the accused that
fulfills the ingredients of an offence, then charges ought to be framed in such cases. Thus, we see
that the application of mind is quite limited at the stage of framing of charges and the Hon’ble
Supreme Court has categorically observed that no mini trial could be conducted at such a stage.

Q2. Is it permissible to prosecute directors/trustees over in charge of & responsible to the

company/ trust without simultaneously prosecuting the company/trust as well?

The Hon’ble Supreme Court (SC) in the matter of Dayle De’Souza v. Government of India
[SPECIAL LEAVE PETITION (CRL.) NO. 3913 OF 2020 dated October 29, 2021], held that
a person cannot be prosecuted and punished merely because of their status or position as a
director, manager, secretary or any other officer in a company unless the offense in question was
committed with their consent or connivance or is attributable to any neglect on their part.

Facts

● Dayle De’Souza (“the Appellant”) is a director of M/s. Writer Safeguard Pvt. Ltd. (“the
Company”). In 2009, the Company had entered into an agreement for Servicing and
Replenishment of Automated Teller Machines (“ATMs”) with M/s. NCR Corporation
India Private Ltd. the latter having earlier entered into an agreement with the State Bank
of India for maintenance and upkeep of the State Bank of India’s ATMs. On February 19,
2014 the Labour Enforcement Officer (Central) had inspected the State Bank of India’s
 ATM and on March 06, 2014, a notice was issued by the Labour Enforcement Officer
(Central) to the Appellant and one Vinod Singh, Madhya Pradesh head of M/s. Writer
Safeguard Pvt. Ltd. alleging non-compliance with the provisions of the Minimum Wages
Act, 1948 (“the Wages Act”) and Minimum Wages (Central) Rules, 1950 at the ATM. On
April 02, 2014 the Company responded claiming that they neither manage nor work at
the ATM.
● After more than four months, the Labour Enforcement Officer (Central), by letter dated
August 08, 2014 informed the Appellant and Vinod Singh that they were required to
appear in the court on August 14, 2014. On 14th August 2014, the Labour Enforcement
Officer (Central) filed a criminal complaint before the Court of the Chief Judicial
Magistrate, Madhya Pradesh under Section 22A of the Wages Act. Moreover only two
individuals have been enlisted as accused namely the Appellant and Vinod Singh and The
Company is not enlisted as an accused in the complaint and has not been summoned to
stand trial.
● On the date of presentation of the complaint, the Judicial Magistrate, Madhya Pradesh
took cognizance of the offense and issued a bailable warrant against the Appellant and
Vinod Singh. On August 01, 2015, the Company submitted a detailed representation to
the Deputy Chief Labour Commissioner (Central), Jabalpur, Madhya Pradesh denying the
contents of the notice dated March 06, 2014. Thereafter, on August 01, 2015 the
Appellant filed a petition under Section 482 of the Code of Criminal Procedure, 1973
before the Hon’ble High Court of Madhya Pradesh for quashing the complaint. By the
impugned order in M.Cr.C. No. 846/2016 dated January 20, 2020. The High Court
dismissed the petition as sans merit. The Hon’ble Supreme Court held that a person
cannot be prosecuted and punished merely because of their status or position as a
director, manager, secretary or any other officer, in a company unless the offence in
question was committed with their consent or connivance or is attributable to any neglect
on their part. SC further in light of Section 22C of the Wages Act said that vicarious
liability would be attracted only when the offence was committed with the consent,
connivance, or is attributable to the neglect on the part of a director and not merely
because the person holds a responsible post in the company.
 ● Further, the SC said that arresting directors and officers of a company without them
having even any remote role in the perpetration of the alleged violation of law by the
company is fraught with serious consequences and must be avoided at all costs. Initiation
of prosecution and summoning of an accused to stand trial has serious consequences.
They extend from monetary loss to humiliation and disrepute in society, sacrifice of time
and effort to prepare defense and anxiety of uncertain times. Criminal law should not be
set into motion as a matter of course or without adequate and necessary investigation of
facts on mere suspicion, or when the violation of law is doubtful and it is the duty and
responsibility of the public officer to proceed responsibly and ascertain the true and
correct facts. Execution of law without appropriate acquaintance with legal provisions
and comprehensive sense of their application may result in an innocent being prosecuted.
Resultantly, and for the reasons stated above SC allowed the present appeal and quashed
the summoning order and the proceedings against the present Appellant.

Under Indian law directors or senior management personnel can be held vicariously liable in the
following manner.
1. Where the statute itself provides for vicarious liability of directors and other management
personnel. For example:
Companies Act, 2013: primarily the Companies Act holds “officer in default” liable for
most of the violations. The term ‘officer in default’ includes any whole-time director, key
managerial person, person on whose advice board is accustomed to act, director with
whose consent and connivance the default took place, etc. In some cases, specific
individuals (such as director in charge of finance, company secretary) are identified who
shall be held liable for violation of certain provisions.

Vicarious liability provisions under different statutes: these provisions are found in many
statutes. Primarily, they hold such persons liable who, at the time of contravention, were in
charge of, and responsible for the conduct of the affairs of the company or with whose consent or
connivance the offense is committed.
Specific liability of certain persons under statutes: some statutes provide for liability of certain
designated individuals where the contravention is committed by a company.
If the statute does not expressly provide for vicarious liability, then individuals can be prosecuted
only if there is direct evidence of their active role along with criminal intent. A brief snapshot of
how liability is fastened on the directors of company under Indian law is provided below:
The lower courts and investigative agencies have largely remained oblivious to this
jurisprudence. Consequently, it is now beginning to provide another tool in the hands of
malicious litigants, who are using it against innocent individuals acting as directors of the
companies. It is believed that unless the lower courts and investigation agencies are properly
sensitized about this jurisprudence, directors of the companies would get rounded up and
proceeded against for crimes simply on account of being a director. On the other hand, wrongful
actions against directors, if initiated, must be quashed at the earliest instance without subjecting
the innocent persons into protracted litigation. This will help to retain the right talent at the top
level for India Inc. and also give sufficient impetus to ease of doing business in India

Q.3 The charge is conspiracy to commit an offence followed by a charge in respect of that
offence as well. Conspiracy is not established & the accused is acquitted of the offence of
conspiracy. Can the accused be convicted in respect of the substantive offence?

Section 120A of the I.P.C. defines criminal conspiracy as an agreement of two or more persons
to do or cause to be done-

1. An illegal act, or;

2. An act that is not illegal by illegal means.

Section 43 of the I.P.C. defines the term ‘illegal’ as everything that is an offence or is prohibited
by law or furnishes ground for a civil action.

The Proviso attached to Section 120A provides that a mere agreement to commit an offence shall
amount to criminal conspiracy and no overt act or illegal omission is required to be proved. Such
overt act is necessary only when the object of the conspiracy is the commission of an illegal act
not amounting to an offence. It is immaterial whether the illegal act is the ultimate object of such
agreement or is merely incidental to that object.

Ingredients

“The essential ingredients of the offence of criminal conspiracy are: (i) an agreement between
two or more persons; (ii) the 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. It is, therefore,
plain that meeting of minds of two or more persons for doing or causing to be done an illegal act
or an act by illegal means is sine qua non of criminal conspiracy. – Rajiv Kumar v. State of U.P.,
(2017) 8 SCC 791

Punishment of criminal conspiracy

Section 120B of I.P.C. provides for punishment of criminal conspiracy- Where the criminal
conspiracy is to commit a serious offence: In cases where the conspiracy is to commit an
offence-

1. Punishable with death,

2. Imprisonment for life or
3. Rigorous imprisonment for a term of two years or upwards
4. and where no express punishment is provided under the Code for such conspiracy,

every person who is a party to such a criminal conspiracy shall be punished in the same manner
as if he had abetted such offence.

2. Criminal conspiracy to commit offences other than those covered in the first category:
Whoever is a party to such a criminal conspiracy shall be punished with imprisonment
of either description for a term not exceeding six months or with fine or with both.

Proof of conspiracy
The offence of criminal conspiracy can be proved by either direct or circumstantial evidence. A
conspiracy is usually hatched in a secret and private setting which is why it is almost impossible
to produce any affirmative evidence about the date of the formation of the criminal conspiracy,
the persons involved in it or the object of such conspiracy or how such object is to be carried out.
All of this is more or less a matter of inference.

Case Laws:

1. In the case of State of H.P vs Krishan lal the Court held that the criminal conspiracy
consists of a meeting of minds for agreeing to do on offence. The court defined Meeting
of Minds as the persons involved in the conspiracy were well aware of the objective and
intention behind the conspiracy
2. In the case of Leo Roy Frey V. Suppdt. Distt. Jail (AIR 1958 SC 119)], it was stated
that the offence of conspiracy to commit a crime is different offence from the crime that
is the object of the conspiracy because the conspiracy precedes the commission of the
crime and is complete before the crime is attempted or completed, equally the crime
attempted or completed does not require the element of conspiracy as one of its
ingredients they are, therefore quite separate offences.
3. State of Tamil Nadu vs Nalini case: If a person has knowledge about the conspiracy,
then it would not make him a conspirator. The court also held that providing shelter to the
main accused is not considered as evidence of the conspiracy. A meeting of minds will be
required to prove the conspiracy.
For example, If 3 members planned a robbery in a bank and planned to escape by a car
belonging to person X. If X doesn’t know anything about the robbery, then X cannot be
considered to be a conspirator.
4. Acts subsequent to the achieving of the object of conspiracy may tend to prove that a
particular accused was party to the conspiracy. Once the object of conspiracy has been
achieved, any subsequent act, which may be unlawful, would not make the accused a part
of the conspiracy.” State v. Nalini, (1999) 5 SCC 253
CONCLUSION
The offence of criminal conspiracy comes under the category of inchoate crimes as it does not
require the commission of an illegal act. Criminal conspiracy is a partnership in crime and a joint
or mutual agency exists in each conspiracy for the prosecution of a common plan. Nowadays, it
is seen that the provision of criminal conspiracy is very loosely invoked which is not in line with
the principles laid down by the Supreme Court. Hence, it is very much required that the superior
courts keep a check on the misuse of the provision while upholding the rule of law.

Q4. Role of Sunil Godhwani

1. Sh. Sunil Godhwani, being the chairman and managing director of REL till 2016, in
connivance with Sh. Malvinder Mohan Singh and SH Shivinder Mohan Singh, who were
the largest shareholders of RELand owners of RHC Group of Companies, gave
instructions to the REL and RFL management team working under him, for the
sanctioning and disbursal of the CLB loans which were given without adequate
documentation, risk assessment and due diligence.
2. Thus it is established that Sh. Sunil Godhwani, had knowingly assisted them in
acquisition and utilisation of proceeds of crime to the tune of Rs. 150 Crore in M/s Lowe
Infra & Wellness Pvt Ltd, derived out of the criminal activities relating to scheduled
offence & thereby has committed the offence of money laundering & is liable to be
prosecuted and punished under Section 4 of PMLA, 2002 and confiscate any property, if
any.