Madhya Pradesh High Court
Vikas Mahore vs The State Of Madhya Pradesh on 11 December, 2017
Author: S.K.Awasthi
Bench: Sanjay Yadav, S.K.Awasthi
1
Cr.R.No.519/2015
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
PRESENT :
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE S.K.AWASTHI
CRIMINAL REVISION NO. 519 of 2015
Vikas Mahore
-Vs-
State of MP and another
For the applicant : Shri Prashant Sharma,
Advocate.
For respondent No.2/ : Shri Vivek Khedkar, Asstt.
CBI Solicitor General.
ORDER
(11 /12/2017) Per S.K.Awasthi, J.
The applicant has preferred this revision petition under Section 397 of Cr.P.C. against the order dated 02.06.2015 passed by Special Judge, VYAPAM, Gwalior in S.T. No. 763/2014, whereby the charges for commission of offence punishable under Sections 419, 420, 467, 468, 471 and 120-B of IPC and under Section 3(d)(1)(2)/(4) of Madhya Pradesh Recognised Examination Act, 1937 have been framed against the applicant.
2. The facts arising out of the present revision application are that the applicant appeared in Pre-Medical 2 Cr.R.No.519/2015 Test Examination, 2010 conducted by Madhya Pradesh Vyavsayik Pariksha Mandal (for brevity, 'VYAPAM') and being in merit he was declared selected for the course of MBBS. He was allotted Gajra Raja Medical College, Gwalior wherein, he took admission after depositing necessary fees. After some time one letter has been sent by unknown person, upon which an inquiry was conducted and in the inquiry the police has concluded that the applicant has managed his admission through Vinay Kumar Patel, who has arranged some solver for appearing in the examination in place of applicant and payment has been made by applicant's father Dr. O.P. Mahor to the middleman Vinay Kumar Patel. On the basis of this inquiry an FIR bearing crime No. 352/2014 was registered against the applicant and other co-accused persons and after completion of investigation, charge-sheet has been filed.
3. On the basis of charge-sheet, trial Court has framed the charges under Sections 419, 420, 467, 468, 471 and 120-B of IPC and Section 3 (d)/(4) of Madhya Pradesh Recognised Examination Act, 1937 against the applicant, which is under challenge in the instant revision petition.
4. Learned counsel for the applicant submitted that the respondent has filed charge-sheet on the basis of memorandum of applicant which has been recorded under Section 27 of Evidence Act which is not admissible in evidence and except this, police has not produced any evidence regarding involvement of the applicant in the present crime. Neither the middleman Vinay Kumar Patel nor the person who is alleged to have appeared in place of applicant as solver has been traced or arrested. Even the name of solver and his whereabouts are not known. Police has not filed any document which shows that the applicant has committed any fraud or forgery. In spite of that, the trial 3 Cr.R.No.519/2015 Court has framed charges against the applicant.
5. Learned counsel for the applicant further submitted that by the order of Hon'ble Apex Court the investigation of the crime was handed over to the Central Bureau of Investigation (CBI). After due investigation, the CBI has found that there is no proof in relation to Vinay Kumar Patel being mediator or solver. CBI has also found that there is no iota of evidence against the applicant for the offence under Sections 467, 468 and 471 of IPC. Hence, CBI has dropped the proceedings under these sections against two persons and challan has been filed against the applicant and all for the offences punishable under Sections 417 , 419, 420, 120-B of IPC and Section 3(a)(1)(2)/4 of Madhya Pradesh Recognized Examination Act, 1937. But, after filing of supplementary charge-sheet by the CBI, the trial Court has not considered the fact which have come in the investigation of the CBI and in spite of the fact that the Court is having power to alternate the charge at any stage, the proceeding was continued against the applicant as per charges framed on the basis of investigation conducted by STF which is affecting the rights of the applicant. It is well settled law that where two prosecutions agencies filed separate challan then more beneficial view in favour of the applicant/accused has to be adopted. Therefore, the present revision application be allowed and the matter be relegated to the trial Court for reconsideration of charges framed against him.
6. Learned counsel for the State/respondent submitted that on the basis of material available on record there is a strong prima facie case against the applicant for framing the charges and at this stage when the prosecution has examined his material witnesses, there will be no use to relegate the matter to the trial Court for reconsideration of 4 Cr.R.No.519/2015 charges.
7. After hearing learned counsel for both the parties, we have gone through the charge-sheet and it is found that initially offence under Sections 420, 467, 468, 471 and 120-B of IPC and Section ¾ of Madhya Pradesh Recognized Examination Act, 1937 has been registered against the applicant by the STF and after completion of investigation the STF has filed charge-sheet before the Special Court and considering the material available on record the trial Court to initiate the trial framed the charges against the applicant which was challenged before this Court by present revision petition. During pendency of this revision petition, CBI has also conducted the investigation on the basis of direction given by Hon'ble Apex Court and filed supplementary charge-sheet but after filing of supplementary charge-sheet the trial Court was of the view that there is no need for reframing or altering the charges already framed against the applicant and in view of the trial Court, the trial should be continued in respect of the charges which have already framed against the applicant by the order dated 02.06.2015.
8. Under the provisions of Section 216 of Cr.P.C. the Court has power to alter or add to any charge at any time before judgment is pronounced but this power is discretionary and if the trial Court is of the view that the charges framed against the applicant are sufficient for conducting the trial then it cannot be compelled to alter the charges. It is also pertinent to note that after filing of the supplementary charge-sheet the applicant has not moved the application before the trial Court for amendment or alteration in the charges which have already been framed against him.
9. At this stage, it is apt to point out the observation of Hon'ble Apex Court in which the scope of consideration of 5 Cr.R.No.519/2015 framing of charges has been highlighted in the case of Chitresh Kumar v. State, (2009) 16 SCC 605, the relevant portion of which is reproduced hereinbelow: -
"25. It is trite that at the stage of framing of 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 or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (See Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [(1990) 4 SCC 76 : 1991 SCC (Cri) 47] .)
26. In Som Nath Thapa [(1996) 4 SCC 659 :
1996 SCC (Cri) 820] a three-Judge Bench of this Court explained the meaning of the word "presume". Referring to dictionary meanings of the said word, the Court observed thus: (SCC p. 671, para 32) "32. ... 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 [Ed.:
The words "might have" were emphasised in the original.] committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has [Ed.: Emphasis in original.] committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
10. From the special report received from the trial Court it appears that 16 prosecution witnesses have already been 6 Cr.R.No.519/2015 examined and trial is now at advance stage. In these circumstances, if any amendment or alteration is made in the charges framed against the applicant, the trial will be unnecessary prolonged and if after concluding the trial, the Court finds that there is no material against the applicant regarding the charges framed against him then such benefit will certainly be extended to the applicant.
11. Taking this view of the matter, the present revision petition being devoid of any merit is hereby dismissed.
(Sanjay Yadav) (S.K. Awasthi)
Judge Judge
(yog)
YOGESH VERMA
2017.12.14 17:46:21 +05'30'