Madhya Pradesh High Court
Vivek Kumar Arya vs Central Bureau Of Investigation on 13 March, 2019
1
MCRC-5018-2019
THE HIGH COURT OF MADHYA PRADESH
MCRC-5018-2019
(Vivek Kumar Arya vs. Central Bureau of Investigation)
Gwalior, Dated 13.03.2019
Shri Amit Lahoti, learned counsel for the applicant.
Shri Vivek Khedkar, learned counsel for respondent/CBI.
This is repeat application under Section 439 of Criminal Procedure Code, 1973. Earlier M.Cr.C. No.45605/2018 was dismissed on 24/12/2018 as withdrawn.
2. The Applicant is tried for the offence punishable under Sections 419, 420, 467, 468, 471 & 120-B of Indian Penal Code(IPC) and Section 3D(1)(2)/4 of Madhya Pradesh Recognized Examination Act, 1937 (hereinafter referred to as "the Act of 1937").
3. The role ascribed to the Applicant is that of beneficiary. The facts of case reveal that on the basis of written complaint filed by Shri M.K. Jain, Centre Superintendent, Government Padma Girls Higher Secondary School, Gwalior with Police Station Kampoo Gwalior on 05/07/2009 against Sharvan Singh, Manoj Kumar Nishad, Ajay Choudhary, Saurav Kurmi, Alok Kumar Yadav, Neeraj Kurmi, Manish alias Devesh Kurmi, Sanjay Kumar Rajput, Rajkumar and Jaipal Lodhi of cheating by impersonation in PMT- 2009 Examination. FIR No.259/2009 was registered for the offence punishable under Sections 419 and 420 of IPC and Section 3-D/4 of 2 MCRC-5018-2019 the Act of 1937.
4. On the same day, another complaint has received from Dr. Archana Bhardwaj, Principal Government, K.R.G. College, Gwalior at Police Station Kampoo alleging therein that candidate Abdul Tawwab S/o Abdul Sattar has appeared under Roll No.847128 in place of original candidate Rakesh Kumar Jat in PMT-2009 Examination on 05/07/2009. All accused persons, who appeared as impersonators, were arrested on 05/07/2009.
5. It is further borne out from the facts adverted at by the parties that during investigation by Madhya Pradesh Police, involvement of 22 more persons including present applicant. As the present Applicant could not be traced out during investigation, the Madhya Pradesh Police filed the charge sheet only against 19 impersonators and the middlemen. That, out of these 16 impersonators were acquitted for want of evidence. The judgment against two impersonators, viz., Ajay Choudhary and Alok Yadav is not pronounced as they are absconding. That, appeal against acquittal and against the the conviction are pending before this Court.
6. That, two more supplementary charge sheets were filed against candidates Amit Shrivastava and Jitendra Singh Atal and middleman Hargyan Vimal and Ashok Singh Rajput. The trial against three persons are pending before the Trial Court and trial 3 MCRC-5018-2019 against Anil Shrivastava is pending before the Juvenile Board, Gwalior.
7. The Central Bureau of Investigation has been handed over the VYAPAM matter by Hon'ble Supreme Court whereon the matter was re-registered for further investigation under Case No.RC 217 2016 S 0004 on 07/01/2016 against untraced / absconder accused persons.
8. The present Applicant was traced out and after investigation, further supplementary charge sheet was filed on 28/06/2018 against the present Applicant under Sections 120B read with 419, 420, 467, 468, 471 of IPC of IPC and Section 3/4 of the Act of 1937. On issuance of non-bailable warrant, the Applicant was arrested on 17/08/2018.
9. The role ascribed to the Applicant is that of beneficiary and the modus operandi as alleged was that he entered into criminal conspiracy with middlemen Sushil Shakya, Lalit Guleria (now dead) and impersonator Manoj Kumar Nishad and in connivance, accused Vivek Kumar Arya got filled offline application form of PMT 2009 in his personal details i.e. name, percentage, date of birth but with the false address i.e. C/o Rampal Singh Lodhi, FL- 430 (F-Sector), Deen Dayal Nagar, Gwalior. The Caste Certificate in the name of Vivek Kumar Arya was also attached with the offline 4 MCRC-5018-2019 application. Further, in pursuance to the said criminal conspiracy, the impersonator Manoj Kumar Nishad appeared in the written exam of PMT-2009 Examination on 05/07/2009 at Government Padma Girls H.S. School, Kampoo, Gwalior in place of candidate Vivek Kumar Arya under Roll No.848591 and was caught during the first shift of exam. A copy of Test Admit Card issued in the name of Vivek Kumar Arya S/o Kedar Lal, Roll No.848591 was also seized from the possession of impersonator Manoj Kumar Nishad. Further, the forensic examination of questioned handwriting/signature on photocopy of RASA established that the Applicant-Vivek Kumar Arya did not appear in the examination on 05/07/2009 in his place against Roll No.848591 at Government Padma Girls School, Gwalior. The forensic examination of Photograph also established that the photograph on the OMR Application Form of PMT-2009 of Vivek Kumar Arya is similar with the admitted photograph of the impersonator Manoj Kumar Nishad and different from the candidate Vivek Kumar Arya. Further, the Caste Certificate which was attached with the offline application form was found to be issued in the name of Vivek Kumar Arya S/o Kedar Lal R/o Village- Badhreta, Teshil-Kailaras, District Morena (M.P.) from the office of Sub-Divisional Magistrate, Sabalgarh District Morena (M.P). 5
MCRC-5018-2019
10. On these facts, the Applicant is being prosecuted. It is urged on behalf of the Applicant that the investigation being completed and the charge sheet having been filed, there is no requirement of Applicant for any confrontation. It is urged that the co-accused having been acquitted the detention of the Applicant is unjustified. It is further contended that the bail being a right and the jail an exception, the Applicant deserves to be bailed out. The Applicant further claims parity with the applicant in M.Cr.C. No.6356/2015. It is further contended that there is no likelihood of completion of the trial in near future and the Applicant cannot be detained for indefinite period.
11. The respondent CBI has opposed the bail denying any parity. It is urged that the manner in which the crime is given effect to reveal that the same has been commissioned in an organized manner, which leaves an impression that the accused persons are operating a syndicate. It is urged that if released on bail, there is a possibility of the Applicant of tampering with the evidences. The claim of parity is denied.
12. Considered rival submissions. Perused material documents on record.
13. Trite it is as observed by Their Lordships in Sanjay Chandra Vs. Central Bureau of Investigation:[(2012) 1 SCC 40] 6 MCRC-5018-2019 that "the provisions of Code of Criminal Procedure confer discretionary jurisdiction on criminal Courts to grant bail to the accused pending trial or in appeal against conviction; since the jurisdiction is discretionary, it has to be exercised with the great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general". Thus interest of the society is one of the paramount considerations while exercising the discretion.
14. Similarly in Gurcharan Singh and others vs. State (Delhi Administration):[(1978) 1 SCC 118], it is observed that two paramount considerations while considering a petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, or the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. As the same acquire significance in context to fair trial, which, both the accused as well as the prosecution is entitled for. (Please see Bhagirathsinh Judeja Vs. State Gujarat:[AIR 1984 SC 372]: "6. ......... The only material consideration in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence.).
15. In Dataram Singh Vs. State of Uttar Pradesh and 7 MCRC-5018-2019 another:[(2018) 3 SCC 22], it is observed by their Lordships:
"6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory."
16. In the present case as prima facie appears from the facts adverted supra that the crime besides being of serious nature has been commissioned in an organized manner and in absence of the eyewitnesses, it is the chain of events which are required to be linked to establish the conspiracy. As apprehended, the likelihood whereof is not ruled out that the applicant who as alleged has been impersonated which makes his case different from the case relied upon. In view whereof, we are not inclined to release the applicant on bail.
17. Consequently, Application fails and is dismissed.
(Sanjay Yadav) (Vivek Agarwal)
Judge Judge
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PAWAN
Digitally signed by PAWAN KUMAR
DN: c=IN, o=HIGH COURT OF
MADHYA PRADESH BENCH
GWALIOR, postalCode=474011,
st=Madhya Pradesh,
KUMAR
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Date: 2019.03.18 10:36:12 +05'30'