PRATAPBHAI HAMIRBHAI SOLANKIversusSTATE OF GUJARAT AND ANOTHER

                      (2012] 9 S.C.R. 561


            PRATAPBHAI HAMIRBHAI SOLANKI                             A
                                v.
           STATE OF GUJARAT AND ANOTHER
            (Criminal Appeal No. 1649 of 2012)

                     OCTOBER 12, 2012
                                                                     B
   [K. S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

     CODE OF CRIMINAL PROCEDURE, 1973:

       s.439 - Bail - An RT/ activist who had exposed illegal        c
 activities of appellant and others, got killed through a contract
 killer - Charge-sheet filed - Court of Session and High Court
 declining bail to appellant - In the instant appeal, after the
judgment had been reserved, order dated 25.9.2012 passed
 by High Court entrusting the matter to CBI for further              0
 investigation, brought to the notice of the Court - Held: On a
perusal of the order dated 25.9.2012, it is demonstrable that
 the High Court has expressed its dissatisfaction with regard
 to the investigation conducted by the investigating agency -
At this stage, as there is a direction for fresh investigation, it   E
 would be inapposite to enlarge the appellant on bail - Penal
 Code, 1860 - ss. 120-B and 302.

     s.439 - Granting of bail - Parameters - Explained.

     PENAL CODE, 1860:                                               F
     s. 120-A - Criminal conspiracy - Essence of - Explained.

     An FIR was registered on 20.7.2010 against two
persons alleging that they came on a motorcycle and
shot dead an RTI activist. The investigation was entrusted           G
to State CID (Crime). The appellant was arrested on
7.9.2010. A charge sheet for offences punishable u/ss 302,
201 and 120-B IPC and ss.25(1)(b) and 27 Arms Act was
filed in court. The bail applications filed by appellant were
                              561                                    H
    562      SUPREME COURT REPORTS              [2012] 9 S.C.R.

A rejected by the Sessions Judge. The application for bail
  filed by the appellant before the High Court was resisted
  by the prosecution on the ground that the deceased was
  an RTI activist and had exposed illegal activities of the
  appellant accused no. 4 and, therefore, he hatched a
B conspiracy with accused no. 1 to eliminate the deceased,
  which ultimately resulted in hiring accused no. 2, a
  contract killer on payment of Rs. 11 lakhs; that there were
  various call details and contacts made by the accused
  with accused no. 2 who had absconded; that fake SIM
c cards were provided by the appellant to other accused
  to hide their identity. The High Court declined the bail.

       In the instant appeal, after the judgment had been
  reserved, the counsel for the State filed a copy of the
  order dated 25.9.2012 passed by the High Court
D expressing its dissatisfaction with regard to the
  investigation conducted by the investigating agency, and
  entrusting the matter to CBI to expeditiously undertake
  further investigation.

E         Disposing of the appeal, the Court

      HELD: 1.1 It is obligatory on the part of court to scan
  and scrutinize, though briefly, as regards the prima facie
  case, the seriousness and gravity of the crime and the
  potentiality of the accused to tamper with evidence apart
F from other aspects before the restriction on liberty is lifted
  on imposition of certain conditions. [para 19] (572-D]

       State v. Capt. Jagjit Singh (1962) 3 SCR 622 and
  Gurcharan Singh v. State (Delhi Admn.) 1978 (2) SCR 358
G = 1978 (1) SCC 118 Jayendra Saraswathi Swamigal v. State
                             =
  of T.N. 2005 (1) SCR 160 2005 (2) SCC 13; Prah/ad Singh
  Bhati v. NCT, Delhi and Another 2001 (2) SCR 684 = 2001
  (4) SCC 280; State of U.P. through C.B.I. v. Amarmani
  Tripathi 2005 (3 ) SCR 12 = 2005 (4 )          sec
                                                  21; Ash
H Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr. JT 2012
  PRATAPBHAI HAMIRBHAI SOLANKI v. STATE OF              563
                 GUJARAT
(9) SC 155 - referred to.                                      A

     1.2 The essence of criminal conspiracy is an
agreement to do an illegal act and such an agreement
can be proved either by direct evidence or by
circumstantial evidence or by both, and it is a matter of
                                                               8
common experience that direct evidence to prove
conspiracy is rarely available. Therefore, the
circumstances proved before, during and after the
occurrence have to be considered to decide about the
complicity of the accused. In the instant case, there is no    C
denial of the fact that the deceased was an RTI activist
and extremely keen in exposing cel"tain matters which
pertain to illegal mining and many other such arenas. It
is not in dispute that the deceased was murdered at the
stated time and place. The appellant is a dealer in mobile
phones and there is some material on record that he had        D
handed over mobile phones to his friend who is a police
constable and owns mines; and that a call has been
traced from the mobile phone of the contract killer to the
appellant. [para 23-24] [574-E-H; 575-A-B]
                                                               E
     Damodar v. State of Rajasthan 2003 (3) Suppl. SCR 904
= 2004 (12) SCC 336; Kehar Singh v. State (Delhi Admn.)
1988 (2) Suppl. SCR 24      = 1988 (3) SCC 609; State of
Maharashtra v. Somnath Thapa 1996 (1) Suppl. SCR 189 =
1996 (4) SCC 659; Ram Narayan Popli v. Central Bureau of       F
Investigation 2003 (1) SCR 119 = 2003 (3) SCC 641 -
referred to.

     1.3 On a perusal of the order dated 25.9.2012, it is
demonstrable that the High Court has expressed its
dissatisfaction with regard to the investigation conducted     G
by the investigating agency. It has called it perfunctory.
After ascribing reasons, it has directed the C.B.I. to
expeditiously undertake further investigation. Legality of
the said order is not the subject matter of challenge in the
                                                               H
    564      SUPREME COURT REPORTS               [2012] 9 S.C.R.

A instant case. It has only been brought to the notice of the
  Court that C.B.I. has been directed to conduct a
  comprehensive investigation. At this stage, suffice it to
  say, as there is a direction for fresh investigation, it should
  be inapposite to enlarge the appellant on bail. [para 26)
B [578-C-E]

      1.4 It may be clarified that the Court has not
  expressed final opinion on entitlement of the appellant to
  be released on bail or not because of the subsequent
  development i.e. direction by the High Court for
C comprehensive investigation by the CBI. However, in
  case the order for reinvestigation is annulled by this
  court, it would be open for the appellant to file a fresh
  application for bail before the competent Court. If the
  order of the High Court withstands scrutiny, after the CBI
D submits· its report, liberty is granted to the appellant to
  move the appropriate court for grant of bail. [para 26)
  [578-F-G]
                        Case Law Reference:
E         (1962) 3 SCR 622       referred to          para 15
          1978 (2) SCR 358       referred to          para 15
          2005 (1) SCR 160       referred to          para 15

F         2001 (2) SCR 684       referred to          para 16
          2005 (3) SCR 12        referred to          para 17
          JT 2012 (9) SC 155     referred to          para 18
          2003 (3) Suppl. SCR 904     referred to     para 18
G
          1988 (2) Suppl. SCR 24      referred to     para 21
          1996 (1) Suppl. SCR 189     referred to     para 21
          2003 (1) SCR 119       referred to           para 22
H
  PRATAPBHAI HAMIRBHAI SOLANKI v. STATE OF                  565
                 GUJARAT
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal               A
No. 1649 of 2012.

    From the Judgment & Order dated 26.07.2011 of the High
Court of Gujarat at Ahmedabad in Criminal Misc. Application
No. 9576 of 2011.
                                                                   B
     Mukul Rohatgi, V.K. Bali, Sujay N. Kantawala, Saurabh
Kirpal, Sanjay Agarwal, Karan Bharioke, Alpesh Kogje, Dr.
G.K. Sarkar, Malabika Sarkar, Rakesh Dahiya, Hemantika
Wahi, Jesal, Nandani Gupta, Kamini Jaiswal, Mohit D. Ram,
Meenakshi Arora for the Appearing Parties.                         c
    The Judgment of the Court was delivered by

     DIPAK MISRA, J. 1. Leave granted.

     2. Grieved by the order of rejection of prayer for bail for   D
offences punishable under Sections 302, 201 and 120-B of the
Indian Penal Code, 1860 (for short 'the IPC') and under Sections
25(1 )(b) and 27 of the Arms Act, 1959 in Criminal Misc.
Application No. 9576 of 2011 dated 26.7.2011 by the High
Court of Gujarat at Ahmedabad, the appellant, accused No. 4,       E
has preferred the present appeal by special leave under Article
136 of the Constitution.

     3. The appellant was arraigned as an accused in crime/
F.l.R. No. 163/2010 for the aforesaid offences and the             F
investigation was conducted by the CID (Crime), Ahmedabad.
The prosecution case, in brief, is that an FIR was registered
against two persons on 20th of July, 2010 about 8.40 pm. They
came on a Bajaj motorcycle having registration No. GJ-1-DQ-
2482. At the corner of "Satyamev Complex-I", Opposite Gujarat      G
High Court at S.G. Highway, they fired at one Amitbhai
Bhikhabhai Jethwa from their country made revolver on the left
part of his back and caused injuries to which he succumbed
and they immediately disappeared from the scene of
occurrence. After the criminal law was set in motion, the
investigating agency commenced investigation and after             H
    566     SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A completion, placed the charge-sheet before the competent
  court.

        4. During pendency of investigation, an application was
  filed before the learned Session Judge for grant of bail
B contending, inter alia, that the name of the appellant was not
  found in the FIR; that he had no nexus with the commission of
  crime; that the case of the prosecution that he had conspired
  for murder of the deceased who was an RTI activist was
  absolutely incredulous inasmuch as the allegations against the
C appellant were totally vague and, in fact, had been deliberately
  made to destroy his unblemished public image, for he had been
  in public life for so many years; that the material brought on
  record in no way implicated the appellant in the crime in
  question and, therefore, he was entitled to bail. The learned trial
  Judge, analysing the material on record, declined to enlarge
D the appellant on bail. Be it noted, after the charge-sheet was
  filed the doors of the learned trial Judge were again knocked
  at but the same did not meet with success.

       5. As the factual narration would exposit, the accused-
E appellant filed Criminal Miscellaneous Application No. 2847 on
  30th March, 2011 before the High Court for grant of bail, but
  the same was withdrawn. Thereafter, the appellant filed Criminal
  Misc. Application No. 7505 of 2011 seeking temporary bail on
  the ground that his wife had suffered from acute gynaec
F problem and she needed to undergo surgery for Fibroid in the
  Uterus and regard being had to the said assertion the High
  Court granted temporary bail for a period of 21 days.

       6. As is manifest from the material brought on record, the
  informant, after completing his duty about 8.00 p.m., was
G returning to his house on a motorcycle. He went to "Satyamev
  Complex'' with his friend, Bhupatisinh, for the purpose of having
  tea and then they heard a gun shot sound and they rushed to
  the place where the firing took place. They found that one Bajaj
  motorcycle No. GJ-1-DQ-2482, one country made pistol and a
H plastic bag were lying on the road. They also saw a white colour
  PRATAPBHAI HAMIRBHAI SOLANKI v. STATE OF                 567
          GUJARAT [DIPAK MISRA, J.]
Maruti Gypsy. The informant, who was a constable, informed        A
his superior inspector on his mobile phone and gathered
information from the public around. They were informed that two
persons after firing drove towards Viswas City Road. The
emergency ambulance was called for and the staff after
examining the injured person declared him dead. The advocate      B
present there identified the deceased to be Amitkumar Jethwa,
an RTI activist. In course of investigation, the appellant was
arrested on 7.9.2010.

      7. Thereafter, as the factual matrix is uncurtained, the
appellant preferred bail application under Section 439 of the     C
Code of Criminal Procedure, 1973 forming the subject-matter
of Crl. Application No. 9576 of 2011. It was urged before the
High Court that the appellant, for no justifiable reasons, had
remained in custody since 7.9.2010 and the charge-sheet had
been filed under Sections 302, 201 and 120-B of the IPC solely    D
on the basis of the statement of Abhesinh Kesarsinh Zala, a
Peon serving in the office of the appellant. It was also
canvassed that there was no iota of material to rope him in the
crime and a maladroit effort had been made to demolish his
political career and demolish his social image.                   E

    8. It was further urged that the first application for bail
having been withdrawn, there was no bar to entertain and
dispose of second bail application on merits in favour of the
accused-appellant; that the appellant is a childhood friend of    F
accused, Bahadursinh Vadher, a police constable, having
business of mines and he is engaged in the business of mobile
towers and had held the post of the ex-President of Kodinar
Nagar Palika and Vice-President at the time of incident and
had been roped in such a crime solely on the base that the
accused-Bahadursinh had met him at his office in Kodinar          G
where allegedly a conspiracy was hatched to eliminate the
deceased, which was sans substance; that as far as theory of
conspiracy is concerned, nothing had been remotely brought
on record to justify the allegations; and that the charge-sheet   H
    568      SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A had been filed; and, therefore, he was entitled to be enlarged
  on bail. It was propounded that a singular telephonic call from
  the mobile the voice of which was not recorded, could not form
  the fulcrum pf the prosecution to book the appellant in the crime
  and further the case has been fabricated with the sole intention
B to systematically smother the liberty of a law abiding individual.

           9. The application for bail was resisted by the learned
    counsel for the prosecution on the ground that the deceased
    was the President of Gir Nature Youth Club, an NGO and also
    Editor of a magazine "Around the Nature" and an active RTI
C   activist. He had found the appellant to be involved in number
    of illegal activities and had exposed him in number of ways as
    a consequence of which he had hatched the conspiracy with
    the accused No. 1 which ultimately resulted in hiring of accused
    No. 2 as a contract killer on payment of Rs.11 lakhs to eliminate
D   him. The learned counsel also contended that there were
    various call details and contacts made by the accused,
    particularly, with accused No. 2 who had absconded; that fake
    SIM cards were provided by the appellant to hide their identity;
    that the appellant had criminal antecedents; that no leniency
E   should be shown despite the plea advanced as regards the
    social reputation; that the factum of conspiracy is quite complex
    and the prosecution had been able to gather the connecting
    materials which would go a long way to show involvement of
    the appellant and hence, it was not a fit case where discretion
F   for grant of bail should be exercised.

       10. The learned single Judge, considering the rival
  submissions advanced at the Bar came to hold that the
  conspiracy between the accused No. 4 and the accused No. 1
G was obvious from the number of visits of accused No. 1 to the
  office of accused No. 4; that there was conversation between
  the accused No. 4, the appellant herein, and the sharp-shooter,
  a person who had absconded and that itself prima facie
  showed the involvement of the accused-appellant. The High
  Court taking note of all the aspects including the gravity of the
H offence declined to admit the appellant to bail.
  PRATAPBHAI HAMIRBHAI SOLANKI v. STATE OF                   569
          GUJARAT [DIPAK MISRA, J.]
      11. We have heard Mr. Mukul Rohatgi, learned senior A
counsel for the appellant, Ms. Hemantika Wahi, learned counsel
for the State of Gujarat and Ms. Kamini Jaiswal and Mr. Mohit
D. Ram, learned counsel for respondent No. 2.

      12. Mr. Rohatgi, learned senior counsel for the appellant,
                                                                   8
accused No. 4, has submitted that the reliance on the statement
of the peon who had only mentioned that accused No. 1
Bahadursinh, was a frequent visitor to the office of the
appellant, but he had not been able to hear any conversation
because of glass doors, makes the impugned orders
sensitively unsustainable as such kind of statement does not C
render any assistance to the prosecution case. He would further
submit that the allegation that the appellant provided the finance
in hiring the contract killer has no semblance of truth inasmuch
as it is manifest from the statement of Amarsinh, the brother of
Bahadursinh, that he had given rupees nine lakhs in cash to D
his brother for purchase of land in Kodinar area and thus, the
appellant had no involvement with the alleged financing. It is his
submission that the voice in the mobile phone was not recorded
and only a singular call was made by the accused No. 2 and
such a stray incident cannot even suggest in the remotest E
manner any kind of conspiracy and, therefore, regard being had
to the period of incarceration, he should be enlarged on bail.

       13. Ms. Hemantika Wahi, .learned counsel for the State of
Gujarat, resisting the application for grant of bail, submitted that F
the conspiracy is always hatched in secrecy and there are
series of circumstances from which the involvement of the
accused-appellant is evincible and, that apart, the material on
record would reveal that the appellant was in constant
connection with the accused No. 1, who was facing a lot of G
disadvantage because of the pro-active crusade undertaken
against his illegal activities by the deceased, an RTI activist,
by filing Pl Ls. It is also urged by her that the deceased had been
able to expose the involvement of the appellant in many an
illegal operations and, therefore, the High Court has correctly
declined to entertain the prayer for bail.                           H
    570       SUPREME COURT REPORTS               [2012] 9 S.C.R.


A       14. Ms. Kamini Jaiswal and Mr. Mohit D. Ram, learned
    counsel for the respondent No. 2, the father of the deceased,
    have supported the stand of the State.

        15. At this juncture, we may refer with profit to certain
  authorities which lay down the considerations that should weigh
8
  with the Court in granting bail in non-bailable offences. This
  Court in State v. Capt. Jagjit Singh 1 and Gurcharan Singh v.
  State (Delhi Admn.) 2 has held that the nature and seriousness
  of the offence; the character of the evidence; circumstances
C which are peculiar to the accused; a reasonable possibility of
  the presence of the accused not being secured at the trial;
  reasonable apprehension of witnesses being tampered with;
  the larger interest of the public or the State and other similar
  factors which may be relevant in the facts and circumstances
  of the case are to be considered. The said principles have been
D reiterated in Jayendra Saraswathi Swamigal v. State of TN. 3 .

        16. In Prahlad Singh Bhafi v. NCT, Delhi and Another4,
  this Court has culled out the principles to be kept in mind while
  granting or refusing bail. In that context, the two-Judge Bench
E has stated that while granting the bail, the court has to keep in
  mind the nature of accusations, the nature of evidence in
  support thereof, the severity of the punishment which conviction
  will entail, the character, behaviour, means and standing of the
  accused, circumstances which are peculiar to the accused,
F reasonable possibility of securing the presence of the accused
  at the trial, reasonable apprehension of the witnesses being
  tampered with, the larger interests of the public or State and
  similar other considerations. It has also to be kept in mind that
  for the purposes of granting the bail the legislature has used
G the words "reasonable grounds for believing" instead of "the

    1.   (1962) 3 SCR 622.
    2.   (1978) 1 sec 118.
    3.   c2oos) 2 sec 13.
H   4.   c2001) 4 sec 280.
     PRATAPBHAI HAMIRBHAI SOLANKI v. STATE OF                    571
             GUJARAT [DIPAK ~ISRA, J.]
evidence" which means the court dealing with the grant of bail           A
can only satisfy it as to whether there is a genuine case against
the accused and that the prosecution will be able to produce
prima facie evidence in support of the charge. It is not expected,
at this stage, to have the evidence establishing the guilt of the
accused beyond reasonable doubt.                                         B

     17. In State of U.P. through C.B.I. v. Amarmani Tripathi5,
while emphasizing on the relevant factors which are to be taken
into consideration, this Court has expressed thus: -

      "While a vague allegation that the accused may tamper              C
      with the evidence or witnesses may not be a ground to
      refuse bail, if the accused is of such character that his mere
      presence at large would intimidate the witnesses or if there
      is material to show that he will use his liberty to subvert
      justice or tamper with the evidence, then bail will be             D
      refused."

In the said case, the Bench has also observed as follows: -

      'Therefore, the general rule that this Court will not ordinarily
      interfere in matters relating to bail, is subject to exceptions    E
      where there are special circumstances and when the basic
      requirements for grant of bail are completely ignored by
      the High Court."

      18. Recently, in Ash Mohammad v. Shiv Raj Singh @                  F
Lalla Babu & Anr. 6, this Court while dealing with individual
liberty and cry of the society for justice has opined as under: -
       "It is also to be kept in mind that individual liberty cannot
       be accentuated to such an extent or elevated to such a
       high pedestal which would bring in anarchy or disorder in         G
       the society. The prospect of greater justice requires that
       law and order should prevail in a civilized milieu. True it

5.    (2005) a sec 21.
6.    JT 2012 (9) SC 155.                                                H
    572       SUPREME COURT REPORTS                    (2012] 9 S.C.R.


A         is, there can be no arithmetical formula for fixing the
          parameters in precise exactitude but the adjudication
          should express not only application of mind but also
          exercise of jurisdiction on accepted and established
          norms. Law and order in a society protect the established
B         precepts and see to it that contagious crimes do not
          become epidemic. In an organized society the concept of
          liberty basically requires citizens to be responsible and not
          to disturb the tranquility and safety which every well-
          meaning person desires."

C       19. We are absolutely conscious that liberty is· a greatly
  cherished value in the life of an individual, and no one would
  like to barter it for all the tea in China, but it is obligatory on the
  part of court to scan and scrutinize, though briefly, as regards
  the prima facie case, the seriousness and gravity of the crime
D and the potentiality of the accused to tamper with the evidence
  apart from other aspects before the restriction on liberty is lifted
  on imposition of certain conditions.

        20. The submission of Mr. Rohtagi is that there is total
E absence of material to connect the appellant with the crime in
  question but due to maladroit endeavour of the prosecution he
  has been falsely implicated. The learned senior counsel would
  emphatically urge that certain visits by a friend of accused No.
  1, a singular telephone call and filing of a public interest
  litigation where the appellant is not involved cannot form the
F foundation of a prima facie case relating to conspiracy.

       21. At this stage, it is useful to recapitulate the view this
  Court has expressed pertaining to criminal conspiracy. In
  Damodar v. State of Rajasthan 7, a two-Judge Bench after
G referring to the decision in Kehar Singh v. State (Delhi
  Admn.) 8, State of Maharashtra v. Somnath Thapa 9 , has stated
  thus: -
    7.   (2004) 12 sec 336.
    8.   (1988) 3 sec 609.
H 9.     (1996) 4 sec 659.
  PRATAPBHAI HAMIRBHAI SOLANKI v. STATE OF                573
          GUJARAT [DIPAK MISRA, J.]
     "The most important ingredient of the offence being the A
     agreement between two or more persons to do an illegal
     act. In a case where criminal conspiracy is alleged, the
     court must inquire whether the two persons are
     independently pursuing the same end or they have come
     together to pursue the unlawful object. The former does not B
     render them conspirators but the latter does. For the
     offence of conspiracy some kind of physical manifestation
     of agreement is required to be established. The express
     agreement need not be proved. The evidence as to the
     transmission of thoughts sharing the unlawful act is not    c
     sufficient. A conspiracy is a continuing offence which
     continues to subsist till it is executed or rescinded or
     frustrated by choice of necessity. During its subsistence
     whenever any one of the conspirators does an act or series
     of acts, he would be held guilty under Section 120-B of the
                                                                 0
     Indian Penal Code."
     22. In Ram Narayan Popli v. Central Bureau of
lnvestigation 10, while dealing with the conspiracy the majority
opinion laid down that the elements of a criminal conspiracy
have been stated to be: (a) an object to be accomplished, (b) E
a plan or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the
accused persons whereby, they become definitely committed
to cooperate for the accomplishment of the object by the means .
embodied in the agreement, or by any effectual means, and (d) F
in the jurisdiction where the statute required an overt act. It has
been further opined that the essence of a criminal conspiracy
is the unlawful combination and ordinarily the offence is
complete when the combination is framed. No overt act need
be done in furtherance of the conspiracy, and that the object of G
the combination need not be accomplished, in order to
constitute an indictable offence. Law making conspiracy a crime
is designed to curb immoderate power to do mischief which is
gained by a combination of the means. The encouragement and
10. (2003) 3 sec 641.                                            H
    574     SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A support which co-conspirators give to one another rendering
  enterprises possible which, if left to individual effort, would have
  been impossible, furnish the ground for visiting conspirators and
  abettors with condign punishment. The conspiracy is held to be
  continued and renewed as to all its members wherever and
B whenever any member of the conspiracy acts in furtherance of
  the common design. The two-Judge Bench proceeded to state
  that for an offence punishable under Section 120-B, the
  prosecution need not necessarily prove that the perpetrators
  expressly agree to do or cause to be done illegal act; the
c agreement may be proved by necessary implication. Offence
  of criminal conspiracy has its foundation in an agreement to
  commit an offence. A conspiracy consists not merely in the
  intention of two or more, but in the agreement of two or more
  to do an unlawful act by unlawful means.
D       23. In the said case it has been highlighted that in the case
  of conspiracy there cannot be any direct evidence. The
  ingredients of offence are that there should be an agreement
  between persons who are alleged to conspire and the said
  agreement should be for doing an illegal act or for doing by
E illegal means an act which itself may not be illegal. Therefore,
  the essence of criminal conspiracy is an agreement to do an
  illegal act and such an agreement can be proved either by
  direct evidence or by circumstantial evidence or by both, and
  it is a matter of common experience that direct evidence to
F prove conspiracy is rarely available. Therefore, the
  circumstances proved before, during and after the occurrence
  have to be considered to decide about the ·complicity of the
  accused.
       24. The present factual matrix is required to be tested on
G the aforesaid touchstone of law. There is no denial of the fact
  that the deceased was an RTI activist and extremely keen in
  exposing certain matters which pertain to illegal mining and
  many other such arenas. It is not in dispute that the deceased
  was murdered about 8.30 p.m. on the Public Road just opposite
H the High Court and near the corner of "Satyamev Complex-I"
  PRATAPBHAI HAMIRBHAI SOLANKI v. STATE OF                    575
          GUJARAT [DIPAK MISRA, J.]

where situates the office of Bar Council of Gujarat. The              A
appellant is a dealer in mobile phones and there is some
material on record that he had handed over mobile phones to
his friend who is a police constable and owns mines; and that
a call has been traced from the mobile of the contract killer to
the appellant. Mr. Rohtagi would argue with vehemence that the        B
aforesaid circumstances are sketchy and the prosecution has
tried to rope the appellant in conspiracy basically on the ground
that he had provided the finance but the said story does
collapse like a pack of cards inasmuch as the accused No. 1
had taken a substantial sum from his brother towards his share        c
in the profit from the family property. It is also borne out on
record that the appellant is an influential man in the society and
he ciaims to be a friend of a constable and has urged that as
a friend he was visiting his office and nothing has been stated
to have been heard by the office peon. It is argued with
                                                                      0
immense emphasis that the sketchy connection does not make
out a prima facie case against the appellant and further there
is no material to infer that he would tamper with evidence or
would not make himself available for trial.
     25. Ordinarily, we would have proceeded to express our           E
opinion on the basis of analysis of the material available on
record but, a pregnant one, after order was reserved, Ms. Arora,
learned counsel appearing for respondent No. 2 filed an order
dated 25.9.2002 passed by the Division Bench of the High
Court of Gujarat in Special Criminal Application No. 1925 of          F
2010. On a perusal of the said order, it is luculent that the High
Court after referring to its number of earlier orders and surveying
the scenario in entirety has passed the following order:-
     "13. As discussed in detail in paragraphs 6, 7 and 9
     herein, investjgation into the murder of the petitioner's son    G
     does not appear to have been carried out in conformity with
     the legal provisions discussed in paragraph 11 and the
     control exercised by one police officer of a very high rank,
     all throughout and even after the orders for further
     investigation by this Court, provides sufficient ground to       H
    576       SUPREME COURT REPORTS                 [2012) 9 S.C.R.


A         conclude that the investigation waE controlled and the line
          of investigation was determined and ' supervised so as to
          put to naught the allegations made and the suspicion
          raised by the acquaintances and family members of the
          deceased. As discussed in detail earlier in paragraph 9,
B         the investigation would hardly inspire confidence not only
          in the minds of the bereaved and aggrieved family
          members, but even general public on taking an objective
          view of the matter. On the other hand, the deceased
          having been an active RTI activist, so-many people whose
c         vested interests may have been affected by his
          applications under the RTI Act, could have a motive to
          contribute into his killing. Therefore, a perfunctory
          investigation on the basis of statements of the accused
          persons themselves may not unearth the whole truth and
          meet the ends of justice. Therefore, it is imperative that
D
          proper and comprehensive investigation is undertaken by
          an agency which is not under the control of the State
          Government.
       14. The Right to Information Act, 2005 declared in its
E      Preamble that, whereas the Constitution of India has
      established democratic Republic and democracy requires
      an informed citizenry and transparency of information which
      are vital to its functioning and also to contain corruption and
      to hold Governments and their instrumentalities
F     accountable to the governed; and to preserve the
      paramountcy of the democratic ideal, that it was enacted.
      The Constitutional powers conferred upon the highest
      judicial institution in the State to entertain public interest
      litigation and issue necessary direction was also a step
      forward in enforcing the fundamental rights of the citizens
G
      and ensuring the rule of law. These progressive steps
      cannot be allowed to be nullified and no one should face
      a threat to his life when he approaches a court of law to
      exercise his right of access to justice. In such milieu, murder
      of a petitioner in a PIL and an RTI activist, in front of the
H     High Court, could be read as a clear message to the
PRATAPBHAI HAMIRBHAI SOLANKI v. STATE OF                  577
        GUJARAT [DIPAK MISRA, J.]
 concerned citizens that they may have to pay by their lives,     A
 if they insist upon using the tools placed in their hands by
 law and approach the Court for redressal of public
 grievance against some individuals. The commission of
 murder, in the facts of the present case, amounted to an
 affront to the judicial system and a challenge to                B
 imptementation of an Act of Parliament, with national
 repercussions and has to be viewed seriously. Therefore,
 it is of utmost importance that the case on hand is
 thoroughly investigated and properly prosecuted by
 independent and competent officers, so as to inspire             c
 confidence and reaffirm faith of the people in rule of law.
  15. In the facts and for the reasons discussed hereinabove,
 while concluding that the investigation into murder of the
 son of the petitioner was far from fair, independent, bona
 fide or prompt, this Court refrain from even remotely            D
 suggesting that the investigating agency should or should
 not have taken a particular line of investigation or
 apprehended any person, except in accordance with law.
 It is clarified that the observations made herein are only
 for the limited purpose of deciding whether further              E
 investigation was required to be handed over to CBI, and
 they shall not be construed as expression of an opinion on
 any particular aspect of the investigation carried out so far.
 However, in view of the peculiar facts and circumstances,
 following the ratio of several judgments of the Apex Court       F
 discussed hereinabove and in the interest of justice and
 to instill confidence in the investigation into a serious case
 having far reaching implications that we order that further
 investigation into 1-C.R.No. 163 of 2010 shall be transferred
 to the Central Bureau of Investigation (CBI), with the           G
 direction that the CBI shall immediately undertake an
 independent further investigation, and all the officers and
 authorities under the State Government shall co-operate
 in such investigation so as to facilitate submission of
 report of investigation by the CBI as early as practicable       H
 and preferably within a period of six months. The police
    578      SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A         authorities of the State are directed to hand over the
          records of the present case to the CBI authorities within
          ten days and thereafter the CBI shall take up
          comprehensive investigation in all matters related to the
          offer.ce and report thereof shall be submitted to the Court
B         of competent jurisdiction and, in the meantime, further
          proceeding pursuant to the charge-sheets submitted by
          respondent No. 5 shall remain stayed."
        26. On a perusal of the aforesaid order, it is demonstrable
  that the High Court has expressed its dissatisfaction with regard
C to the investigation conducted by the investigating agency. It
  has called it perfunctory. After ascribing reasons, it has directed
  the C.B.I. to expeditiously undertake further investigation. We
  may hasten to add that the legal propriety of the said order is
  not the subject matter of challenge in the present appeal. It has
D only been brought to our notice that C.B.I. has been directed
  to conduct a comprehensive investigation. Needless to state,
  it is open to the appellant to challenge the legal substantiality
  of the said order. But for the present, suffice it to say, as there
  is a direction for fresh investigation, it should be inapposite to
E enlarge the appellant on bail. We may add that in case the order
  for reinvestigation is annulled by this Court, it would be open
  for the appellant to file a fresh application for bail before the
  competent Court. If the order of the High Court withstands
  scrutiny, after the C.B.I. submits its report, liberty is granted to
F the appellant to move the appropriate court for grant of bail. We
  may clarify that though we have narrated the facts, adverted to
  parameters for grant of bail under Section 439 of the Code,
  dwelled upon the view of this Court relating to criminal
  conspiracy and noted the submissions of the learned counsel
G for the parties, we have not expressed our final opinion on
  entitlement of the appellant to be released on bail or not
  because of the subsequent development i.e. direction by the
  High Court for comprehensive investigation by the C.B.I.
          27. The appeal, is accordingly, disposed of.
H   R.P                                        Appeal disposed of.