Delhi High Court
Ashraf Jamal vs State (C.B.I.) on 18 May, 2011
Author: Vipin Sanghi
Bench: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 05.05.2011
% Judgment delivered on: 18.05.2011
+ CRL. REV. P. NO.399 /1999
ASHRAF JAMAL ..... Petitioner
Through: Mr. S.K. Saxena, Ms. Manisha &
Mr.Praveen, Advocates.
versus
STATE (C.B.I.) ..... Respondent
Through: Mr. Vikas Pahwa, Addl. P.P. with
Mr.Saurabh Soni, Advocate.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
1. Whether the Reporters of local papers may
be allowed to see the judgment? : No
2. To be referred to Reporter or not? : Yes
3. Whether the judgment should be reported
in the Digest? : Yes
JUDGMENT
VIPIN SANGHI, J.
1. Criminal revision petition, preferred against the impugned orders dated 10.05.1999 and 06.07.1999 passed by the learned Metropolitan Magistrate in FIR No. RC 4(S) / 93-SIU-(II)-CBI, by Shri Anupam Rajan, being Crl. Rev.P.270/1999 has been dismissed by a separate judgment. Arguments had been heard and judgment Crl. Rev. P. No.399 /1999 Page 1 of 5 reserved in this petition and Crl. Rev. Pet. No. 270/1999, initially on 21.05.2010. However, the judgment could not be pronounced within a reasonable period of time due to the heavy work load. Consequently , these cases were listed again and the counsels were heard again.
2. The petitioner is a co-accused along with Shri Anupam Rajan. The case of the prosecution is that the petitioner and Anupam Rajan appeared in the Civil Services (Preliminary) Examination, 1993 held on 13.06.1993. In the optional paper, both the accused had opted for Sociology subject. In the examination for the said Sociology paper, it is alleged that the petitioner and Anupam Rajan swapped their answer sheets and Anupam Rajan had solved the question paper of the petitioner Ashraf Jamal and vice versa. It is alleged that by doing so, the petitioner Ashraf Jamal secured high marks which eventually led to his being declared pass in the Civil Services (Preliminary) Examination, 1993. Both the accused have been charged for substantive offences under Sections 420, 468 and 471 IPC and also for conspiracy under Section 120B read with Sections 420, 468 and 471 IPC. It would, therefore, be seen that the case against both the accused is the same.
3. The judgment rendered in the case of Anupam Rajan in Crl.Rev.P.270/1999 substantially covers the case of the petitioner as the submissions made by the petitioner are substantially the same as those advanced by the counsel for Anupam Rajan. I, therefore, do not consider it necessary to record the said submissions of both the sides once again and to deal with them, as that would be a futile exercise of Crl. Rev. P. No.399 /1999 Page 2 of 5 repetition. The reasons recorded in the judgment rendered in the case of Anupam Rajan, in Crl.Rev.P.270/1999, may be read as my reasons for rejecting the same submissions in this petition as well.
4. Learned counsel for the petitioner-Ashraf Jamal has raised one additional submission which needs to be considered. It is urged that there is no direct testimony, or evidence relied upon by the prosecution in support of its case that Anupam Rajan has solved the question paper of Ashraf Jamal and vice versa. It is also urged that the Court is seeking to raise a presumption under Section 114 of the Evidence Act, which presumption cannot be raised as the presumption of culpability is itself based on another presumption, namely, that Anupam Rajan had solved the question paper of the petitioner, and vice versa.
5. He submits that under Section 10 of the Evidence Act, anything said, done or written by any one of the persons alleged to be in conspiracy,in reference to their common intention, is a relevant fact against each of the persons to be so conspiring, provided there is independent evidence of existence of the conspiracy to commit an offence. He submits that there is no independent evidence in this case of the existence of the conspiracy. The questioned/disputed documents viz. the answer sheets of Anupam Rajan and Ashraf Jamal cannot be considered as the independent evidence to establish the existence of a criminal conspiracy. In this regard, he places reliance on State of Tamil Nadu Vs. Nalini & Others, 1999 Crl.L.J 3124 and Crl. Rev. P. No.399 /1999 Page 3 of 5 L.K. Advani Vs. Central Bureau of Investigation, 1997 Crl.L.J 2559. He submits that the Court is expected to look into the broad probabilities of the case while examining the issue whether, or not, charge should be framed against the accused on the basis of the charge-sheet. In this regard, he places reliance upon Niranjan Singh Karam Singh Punjabi Vs. Jitendra Bhimraj Bijjaya and Others, AIR 1990 SC 1962.
6. First and foremost, in my view, the aforesaid submissions do not require to be dealt with at this stage as these issues largely depend on the evidence that may be led at the trial. However, I may add that in cases of conspiracy, direct evidence is difficult to find as the conspiracy is hatched in secrecy. (See Baburao Bajirao Patil V. State of Maharashtra (1971) 3 SCC 432; Hardeo Singh V. State of Bihar (2000) 5 SCC 623 and Maharashtra State Board of Secondary & Higher Education V. K.S. Gandhi (1991) 2 SCC 716).
7. There has to be some prima facie evidence to show that there was a criminal conspiracy as held by the Supreme Court in Nalini (supra) and by this court in L.K. Advani (supra). According to the case of the prosecution, that evidence is available in as much, as, Sh. Anupam Rajan and the petitioner hail from the same town; they were studying at the same university; residing in the same hostel; had sent their forms for the 1993 Preliminary examinations through the same person, at the same time. Moreover, Sh. Anupam Rajan had taken the Crl. Rev. P. No.399 /1999 Page 4 of 5 1993 Preliminary examination despite securing the 52nd position in the 1992 examinations.
8. Whether or not these factors would eventually be accepted by the trial court as independent evidence of the existence of the alleged conspiracy is yet to be seen. Prima facie, it cannot be said that there is absolutely no evidence which may, or may not, eventually be accepted by the trial court to establish the existence of the alleged conspiracy, against the petitioner and Sh. Anupam Rajan.
9. Whether or not the trial court would raise a presumption under Section 114 of the Evidence Act against the petitioner and Sh. Anupam Rajan is too early to say. That stage is not yet arrived.
10. It cannot be said at this stage that the case of prosecution is not based on common sense or on the broad probabilities of the case. Accordingly, I find no merit in this petition and dismiss the same.
11. No observation made by me in this order shall prejudice the case of either party in the course of trial and the trial court shall not be influenced by anything stated in this order. The prosecution of this case is expedited as already directed in Crl. Rev. P. No. 270/1999.
(VIPIN SANGHI) JUDGE MAY 18, 2011 AS/'BSR' Crl. Rev. P. No.399 /1999 Page 5 of 5