Delhi District Court
Cbi vs (1) Vikram Singh Mann on 2 March, 2022
IN THE COURT OF SHRI AMIT KUMAR, SPECIAL JUDGE
P.C. ACT (CBI-04), ROUSE AVENUE COURTS,
NEW DELHI
Crl. Revision 08/2021
CNR No. DLCT11-000161-2021
RC No. DAI-2013-A-0024
PS : CBI/ACB/ND
CBI ........ REVISIONIST
VERSUS
(1) VIKRAM SINGH MANN
S/O SH. DALEL SINGH MANN
R/O H. NO. 225, VILLAGE-KHEDA KHURD,
DELHI-110082.
(2) ROHIT KHATRI
S/O SH. RAJESH
R/O H. NO. 72/1, PANA UDYAN,
NARELA, DELHI-110040
(3) MUKESH KUMAR MANN
S/O LATE SH. BILBAG SINGH
R/O 221, PANA UDHYAN,
VILLAGE KHERA KHURD
(NEAR SHIV MANDIR)
DELHI
(4) SURENDER
S/O LATE SH. JAIPAL
R/O H. NO. 205/215,
VILLAGE KHERA KHURD,
DELHI
(5) AMIT KHATRI
S/O SH. SATBIR SINGH
R/O H. NO. 72/9, VISHWAKARMA
ROAD, PANNA UDYAN,
NARELA, DELHI
Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 1 of 28
(6) PARVEEN MANN
S/O SH. HAWA SINGH
R/O H. NO. 187,
VILLAGE KHEDA KHURD,
DELHI-110082
(7) RAJESH KUMAR
S/O LATE RAI SINGH
R/O H. NO. 253, PANNA UDYAN,
KHERA KHURD, DELHI
(8) MUKESH YADAV
S/O SH. BALRAJ YADAV
R/O 186-C, SECTOR-07,
NAHAR PUR VILLAGE,
ROHINI, DELHI-110085
........RESPONDENTS
DATE OF INSTITUTION : 15.04.2021
DATE OF ARGUMENTS : 17.02.2022
DATE OF JUDGMENT : 02.03.2022
Crl. Revision 09/2021
CNR No. DLCT11-000160-2021
RC No. DAI-2013-A-0024
PS : CBI/ACB/ND
CBI ........ REVISIONIST
VERSUS
(1) VIKAS LAKRA
S/O SH. HARI SINGH
R/O K/272, VILL+PO MUNDKA,
NEAR HANUMAN MANDIR,
NEW DELHI-110041.
(2) SOMVEER MALIK
S/O SH. RAMPHAL
R/O H. NO. 498/B,
Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 2 of 28
NEAR SHAHID BHAGAT SINGH PARK
MUNDKA, NEW DELHI-110041
........RESPONDENTS
DATE OF INSTITUTION : 15.04.2021
DATE OF ARGUMENTS : 17.02.2022
DATE OF JUDGMENT : 02.03.2022
Crl. Revision 25/2021
CNR No. DLCT11-000495-2021
RC No. 24 (A) 2013 (DAI-2013-A-0024)
PS : CBI/ACB/ND
SURENDER MANN
S/O LATE SH. JAIPAL,
R/O H. NO. 205/215,
KHERA KHURD, DELHI ...... REVISIONIST
VERSUS
CBI ........ RESPONDENT
DATE OF INSTITUTION : 03.12.2021
DATE OF ARGUMENTS : 17.02.2022
DATE OF JUDGMENT : 02.03.2022
JUDGMENT:-
1. Vide this order, I shall dispose off three revision petitions, two filed by CBI and one filed by accused Surender Mann against the Orders dated 04.09.2020 and 19.10.2020. The brief facts necessary for disposal of these three revision petitions are that CBI on the basis of source information registered a case against Mukesh Mann and others on the allegations of rigging of Staff Selection Commission Combined Graduate Level Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 3 of 28 (CGL) Tier-II, 2013 exam which was conducted in two shifts. As per FIR, the accused persons under a criminal conspiracy managed to leak out the question papers of this exam conducted on 29.09.2013 and solved these question papers to provide the answer keys to the selected candidates through electronic gadgets in exchange of money. CBI conducted raids on 29.03.2013 at different places to catch the persons involved in this racket and arrested some candidates appearing in the said exam and private persons suspected in leakage of papers and also seized incriminating documents/mobile phones from them. After completion of the investigation, CBI filed four Charge sheets. One of the charge sheet was against eight accused, who are respondents in Crl. Revision No. 08/2021 titled as CBI Vs. Vikram Singh Mann and Ors., the second charge sheet was filed against Vikas Lakra and Somveer Malik, who are the respondents in Crl. Revision No. 09/2021 and third charge sheet was filed against one Preeti and the fourth against one Ashu Rani. Two out of three revision petitions have been preferred by CBI whereas one revision petition No. 25/2021 has been preferred by accused Surender Mann against CBI.
Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 4 of 28
2. Subsequent to filing of the charge sheet, the Ld. Trial Court vide order dated 04.09.2020 passed in the Charge sheet against accused Vikas Lakra and Somveer Malik held that offence U/s 420 IPC is not made out against any of the accused and further, no offence is disclosed against accused Somveer Malik and directed to proceed against accused Vikas Lakra for the offence punishable U/s 120B IPC.
3. In the other charge sheet filed against Vikram Singh Mann & 7 others, Ld. Trial Court vide order dated 19.10.2020 found that no offence U/s 420 IPC is made out against any of the accused and found sufficient material to proceed against all the accused except Praveen Mann for the offence punishable U/s 120 B IPC. Accused Praveen Mann was, however, discharged from all the offences. The CBI has preferred the revision petitions against all the ten accused on the grounds that the Ld. Trial Court failed to appreciate that at the stage of charge, the evaluation and analysis of the material in depth is not required and it has to be seen that a prima facie case is made out or not and a prima facie case is sufficient to frame charges. Further, the Trial Court failed to appreciate that accused Praveen Mann and Somveer Malik, who have been Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 5 of 28 discharged outrightly, have similar role as that of the other accused. The analysis of the call detail records of their phones prima facie reveal that they were in continuous touch with accused Mukesh Mann & other accused persons and it cannot be said that there is no material against them. The Trial Court failed to appreciate that offence U/s 420 IPC is made out against all the accused as accused by false representation deceived the authorities and entered the examination Centre with mobile phones and used the mobile phones for the purposes of cheating during the exam. The Trial Court failed to appreciate that there is sufficient material against all the accused for framing of charges at this stage. The Trial Court failed to appreciate that accused Somveer Malik was arrested while sitting in a car outside the examination centre from where Vikas Lakra was caught red handed while appearing in the exam and the phone recovered from them reflects that various calls were exchanged between them during the first session of examination and there are independent witnesses to support this evidence against Vikas Lakra and Somveer Malik. The Trial Court also erred in holding that no offence of cheating under section 420 IPC is made out.
Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 6 of 28
4. In the Revision Petition preferred by accused Surender Mann, it has been claimed that no prima facie offence U/s 120 B IPC is made out against him for want of cogent evidence. The mobile phone having Sim No. 8586820186 was never recovered from him and this Sim Card is in the name of one Vineeta Saini R/o Hari Nagar, Ashram having no connection with him and there is no material against him even to proceed for any offence and the impugned order is bad and liable to be set aside.
5. Ld. PP for CBI has argued that the Ld. Trial Court failed to appreciate that the offence of cheating is clearly made out in this case against all accused and has wrongly relied upon the Judgment of Hon'ble Supreme Court passed in Mohd. Ibrahim Vs. State of Bihar, facts of which are totally different. It was argued that as per Section 420 IPC, if a person is dishonestly induced to deliver a property to another person, then the offence of cheating is made out. It is claimed that the word "person" has been defined U/s 11 of IPC, which includes a company or association or body of persons. This definition is an inclusive definition and therefore, SSC, in the present case, who was conducting the recruitment exam, is an Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 7 of 28 association duly incorporated and is a person as defined under this Section. Further, Section 24 of IPC defines the word "dishonestly" and Section 23 defines "Wrongful Gain" and "Wrongful Loss". The question paper was the property of SSC, who was induced to deliver that question paper to the candidates. The Trial Court failed to appreciate that the word person does not always mean a living entity. It was further argued that the delivery of property in the present case is the job, which a candidate would get if he clears the exam. In the present case, all the candidates and non candidates who indulged in unlawful means by getting the question paper leaked and then sharing the answer keys through electronic gadgets, dishonestly induced the body (SSC) to get the job, which can be turned as property. It was also argued that at the stage of charge, a prima facie case has to be seen and the consideration before the Court at this stage is not the same which is at the stage of final decision. It was further argued that accused Somveer Malik as well as Praveen Mann were wrongly discharged for all the charges as accused Praveen was caught red handed alongwith accused Mukesh Mann and others whereas accused Somveer Malik was caught from the Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 8 of 28 car of Vikas Lakra outside the examination centre with mobile phones with him and only because in the arrest memo of accused Somveer Malik, it is not recorded that he was arrested from the car or only because in his personal search, it is mentioned that nothing was recovered from him is no reason to discharge him when the charge sheet clearly shows that he was arrested from the car and was having mobile phones with him. It was submitted that there is sufficient material against all the accused to frame charges for offence punishable U/S 420 IPC and 120B IPC and impugned order is liable to be set aside.
6. In response to it, for accused Praveen Mann, it was argued that there is no illegality in the order impugned before this court. It is claimed that the allegations in the charge sheet are contrary to the record. It was stated that as per the evidence collected, accused Praveen Mann spoke to accused Mukesh Mann at about 6 am in the morning on 29.09.2013 for about 10 seconds and the only query was "Kit Se" i.e. where are you. There was nothing in this conversation pertaining to the exam and there is no material against Praveen Mann, which connects him with the present case. The alleged recovery of Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 9 of 28 the answer keys from Praveen Mann is also not sufficient to frame any charge against him as it does not corroborate that he helped any candidate with those answer keys. The CBI has failed to point out any defect in the impugned order. The revision is not a matter of right and the revisionist has to show any defect in the order and there exists none. Also that this revision was not filed by a duly authorized person. There is no material on record to show any conspiracy between accused Praveen Mann and others and therefore, the revision petition of CBI is liable to be dismissed.
7. For accused Surender Mann, who has also filed his own revision, it was argued that the investigation agency failed to identify the source of leakage of paper. Total 13 FIRs were registered throughout India in this case of leakage of question paper out of which 6 were in Delhi. One day police custody of accused Surender was taken and his voice samples were taken without order of the Court, which cannot be considered. There are total six Surender Mann in village Khera Khurd and how the present Surender Mann was identified is not clear. He is no way connected to Vineeta Saini in whose name the alleged Sim card is registered and there is no material against Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 10 of 28 Surender Mann except voice sample and CFSL report . He has been wrongly arrested in this case and further there is no material against him to show that he was involved in any conspiracy of leakage of the question paper.
8. For accused Amit Khatri, it was argued that there is no recovery from him and there is no independent witness against him nor there are any calls between accused Amit Khatri and Surender as alleged in the revision. There are only intercepted calls, which does not show anything against Amit Khatri and none of the ingredients of Section 420 exist in this case.
9. For accused Mukesh Mann, it was argued that there is nothing against him. Ingredients of Section 420 IPC are missing, there is no material that he got question paper leak. Only because he was standing outside the exam centre, nowhere connects him with the offence.
10. For accused Rajesh Kumar and Mukesh Yadav, it was argued that both were the candidates and there is no complaint against them nor there is any material and there is nothing incriminating even in the conversations during their phone calls with Mukesh Mann, which discloses any material Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 11 of 28 against them.
11. For accused Vikram Singh and Rohit Khatri, it was argued that ingredients of Section 420 IPC are not fulfilled. A person must commit cheating defined U/s 415 IPC to fall under the offence of 420 IPC and there is no material on record to even make out a case under Section 415 IPC.
12. For accused Somveer Malik, it was argued that for an offence U/s 420 IPC, there should be a person deceived, which does not exist in this case and further there is no material against Somveer Malik. As per his arrest memo, he was arrested from the road and not from the car as alleged. There is no recovery in his personal search and his phone was recovered from the car which belonges to accused Vikas Lakra and there is nothing to connect him with that car except the alleged recovery of his mobile from the car and the contention that he was arrested from the car is not supported by the documents. It was further argued that he has been rightly discharged by the Trial Court and it cannot be presumed that he spoke to accused Vikas Lakra during the first session of the exam. Contents of charge sheet are contrary to documents and record. Cheating as defined under IPC is totally different than Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 12 of 28 cheating as understood in common parlance and cheating during exams does not constitute any offence under IPC.
13. For accused Vikas Lakra, it was argued that there was no material that he deceived any person and merely because he hid and carried mobile phone during the examination does not satisfy the ingredients of Section 420 IPC and no offence U/s 420 IPC is made out.
14. Coming to the fact of the case, Ld. Trial Court has specifically and in detail mentioned about the role of each and every accused in the impugned orders dated 04.09.2020 in the case of Vikas Lakra & anr. and dated 19.10.2020 in the case of Vikram Singh Mann and Ors. and there is no reason to reproduce the same herein. The Trial Court found enough material against all the accused to proceed against them for the offence of criminal conspiracy except accused Praveen Mann and Somveer Malik who both were totally discharged. The trial court found that there is grave suspicion against all the accused (except Praveen Mann and Somveer Malik) that they conspired with some unknown persons to assist in the exam by using illegal means. The Trial Court found that illegal means were used to attempt the exam but observed Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 13 of 28 that exam in itself is a legal act. None of the accused except Surender Mann has found error with this order of the Ld. Trial Court and as such, it is undisputed that all the accused except Surender Mann who has filed his revision have accepted the findings of the Ld. Trial Court that at this stage, there is grave suspicion against them of using illegal means for attempting the exam. The questions therefore to be adjudicated in these revisions petitions are as under :-
(1) Whether there exist sufficient material against all the accused raising grave suspicion for commission offence punishable under Section 120B of IPC r/w 420 IPC and substantiative offence under Section 420 IPC?
(2) Whether there exist sufficient material at this stage against accused Somveer Malik and Praveen Mann to proceed against them for any offence and if yes for which offence(s)?
(3) Whether there exist any material against revisionist Surender Mann to proceed against him for any offence and if yes, which offence(s)?
Question No. 1:-
15. For adjudicating this question, let us examine the definition of cheating as defined under section 415 of IPC. As per this section, whosoever by deceiving any person fraudulently or dishonestly induces the person, who is deceived to deliver Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 14 of 28 any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he was not so deceived and with such act causes or likely to cause damage or harm to that person in body, mind, reputation or property is said to "cheat". As per explanation attached to this section, concealment of fact is a deception.
16. The Ld. Trial Court while relying upon the judgment of Hon'ble Supreme Court passed in Mohd. Ibrahim Vs. State of Bihar, Crl. Appeal No. 1695 of 2009 dated 04.09.2009 held that existence of a person is essential in a case of cheating and found that since there exist none, who was deceived in the present case, the question of cheating does not arise.
17. A person has been defined in Section 11 of IPC, which includes a company or association or body of person whether incorporated or not. I find force in the contention of the Ld. PP that the definition of the person as defined in IPC is inclusive definition. It can be a living person or a body or association of a person whether incorporated or not. In the present case, Staff Selection Commission (SSC) was conducting the exam which would have entitled the Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 15 of 28 successful candidates a job. SSC is an association or body of persons and falls within the definition of person as defined in Section 11 IPC and it can not be said that a person does not exist in this case.
18. The next question is whether the said person/body i.e. SSC was deceived to do or omit to do anything which it would not do and the said act or omission caused or was likely to cause damage or harm to it, either in body, mind, reputation or property. In the present case, had SSC come to know before start of exam that the question paper had been leaked or that some of the candidates are using illegal means to attempt the exam than certainly in that situation they would not have handed over the question papers to those candidates nor would had allowed them to appear in that exam. It means that the accused candidates i.e. accused who were candidates while appearing in the exam deceived SSC who is a person to do the act of handing over the question papers to them. Further the handing over of the question papers, which were already leaked to the candidates, who were using illegal means to attempt the exam, certainly caused damage and harm to the reputation of SSC. The leakage of question Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 16 of 28 papers and cheating in exam was widely reported in media throughout the country resulting into several FIRs. In facts, in the present case, all the ingredients of offence of cheating are present. The explanation attached to the section supports this finding as dishonest concealment is a deception as per explanation. The fact that question papers were leaked before exam as well as use of illegal means by the candidates is concealment of the fact amounting to deception. Simply put, SSC who is a person was deceived to hand over the question papers which were already leaked to the candidates who were using illegal means and the same caused harm and damage to its reputation and therefore, the cheating as defined under Section 415 of IPC is clearly made out.
19. Coming to the question, whether the offence under Section 420 of IPC was committed or not. Section 420 of IPC requires that there should be cheating (which exists in this case) and that the person so deceived/cheated should deliver any property to any person. In the present case, SSC was clearly deceived and whether there was delivery of property or not, is to be looked into. The word "property" has not been defined under IPC but the word "movable property" has Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 17 of 28 been in Section 22 of IPC. As per this section, movable property is intended to include corporeal property of every description except things attached to earth. This definition also seems to be an inclusive definition. The candidates, who were appearing in the exam were seeking a job. Job can be said to be an "incorporeal property" i.e. a property which can not be seen like copyright, trade mark etc. but certainly have some value. The candidates who were appearing in the exam by using illegal means certainly deceived SSC and made an attempt dishonestly to induce SSC to deliver the job i.e. the property. They however, could not succeed because of the raids by the CBI but certainly made an attempt to cheat as per Section 420 IPC. Had they succeeded in their attempt, they would have got jobs which is a property.
20. These findings find support from the judgment of Delhi High Court passed in Case titled as Raghav Kalra vs. State through CBI, passed in Crl. Revision Petition No. 726/2014 dated 29.11.2018. In that case before Hon'ble High Court, AIIMS had conducted an entrance exam for admission to Post Graduate Courses through multiple choice questions (MCQ) using OMR sheets. On source information, CBI registered a Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 18 of 28 case regarding manipulation in the said exam on the ground that the OMR sheets after submissions by the candidates were manipulated. The Ld. Trial Court in that case, framed charges against involved candidates and the agency which was engaged for evolution of OMR sheets for the offences punishable under Section 120B of IPC r/w Section 420, 467, 468, 471 IPC and substantiative offence under Section 420 IPC. This order of the Ld. Trial Court was challenged by the accused in several revision petitions before Hon'ble High Court who dismissed all the revision petitions holding that the dishonest intention and the intent to defraud is vivid in the present scenario. The grave suspicion that the accused are party in overall criminal conspiracy can not be wished away and upheld the order of framing of charge of the Ld. Trial Court. In the case before hand, the facts are somewhat similar. As per charge sheet, the candidates and the other accused persons got the question paper leaked and then after preparing the answer keys conveyed the answers to the candidates through electronic gazette. They could not succeed because of the raids but certainly made an attempt to cheat. In the case before Hon'ble High Court the exam was an Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 19 of 28 entrance exam to Post Graduate Course and in the case before this court the exam was to get a job which is on a higher pedestal and it can not be said that there was no attempt to cheat. In facts and circumstances, I am of the considered view that the Ld. Trial Court erred in discharging all the accused for the substantive offence punishable under Section 420 of IPC as well as the offence punishable under Section 120B read with 420 of IPC. In facts as discussed herein above, there is sufficient material before court, which disclose grave suspicion to frame charges for the offences punishable under Section 120B of IPC read with Section 511 r/w Section 420 of IPC and substantive offence punishable under section 511 IPC r/w 420 IPC against all accused except Praveen Mann. Second Question:-
21. Coming to the material against accused Praveen Mann and Somveer Malik, who both were totally discharged by the Trial Court. As far as accused Praveen Mann is concerned, I am in agreement with the findings of the Trial Court that there is no material against him, which raise grave suspicion for framing any charge. The only material against him is that there was a telephonic conversation between him and accused Mukesh Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 20 of 28 Mann in the morning of 29.09.2013 which was the date of Exam and that he was arrested from the spot alongwith Mukesh Mann and Vikram Singh Mann. As per the CDRs filed by the Prosecution Agency, Praveen Mann spoke to Mukesh Mann at about 6 am on phone for 10 seconds and the only conversation between them was Praveen asking Mukesh "Kit Se" i.e. where is he. This call of 10 seconds without any incriminating conversation regarding the exam is of no value for framing charges against Praveen Mann. Further, Praveen Mann was arrested at Guru Tek Bahadur Memorial after 2 pm on 29.09.2013 i.e. after the first shift of the exam and there appears to be no material against him, which reflects any conspiracy between Praveen Mann and the other accused. As per prosecution, one answer key containing answers of 20 questions of the first shift of the exam was recovered from Praveen Mann. That recovery also is insufficient and does not raise any grave suspicion against Praveen Mann to frame charges for any offence. The Ld. Trial Court held that a mere hand written paper containing serial number of 20 questions with their answer after two hours of the exam cannot be said to be sufficient material raising grave suspicion and there is Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 21 of 28 no allegation against Praveen Mann that he spoke to any candidate before, during or after the exam and therefore, discharged him completely. I find no reason to differ with the opinion of Trial court and therefore, the order of Trial Court discharging accused Praveen Mann based on cogent reasoning is upheld.
22. Coming to accused Somveer Malik, Ld. Trial Court discharged him holding that the arrest cum personal search memo of accused Somveer Malik does not indicate that he was arrested from the car parked outside the Examination Centre where accused Vikas Lakra was appearing as a candidate and further his personal search indicates that no recovery was made from him and his phone was recovered from the car belonging to the first accused and further, that it cannot be presumed that the calls made during the first shift of the exam between the two phone numbers were made by Somveer Malik or were made from inside the Examination Centre and therefore, discharged him completely. The findings of the Trial Court appears to be contrary to record as far as the accused Somveer Malik is concerned. At the stage of charge, the Courts are required to see, if there is sufficient Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 22 of 28 material placed before the court which discloses grave suspicion against the accused which has not been properly explained and in that scenario the Court should frame charge. The Hon'ble Supreme Court in Sajjan Kumar Vs. CBI, (2010) 9 SCC 368 summarized the guiding principles of consideration of a criminal case at the stage of charge. The Hon'ble Supreme Court held that the Court at the stage of framing of charge must be satisfied that the commission of offence by the accused is possible and if yes, then the charges should be framed. In the case before me as per the prosecution case detailed in the Charge Sheet, accused Vikas Lakra, who was a candidate was appearing in exam at the Examination Centre at Sarvodya Bal Vidhyalaya, DDU Marg New Delhi and was caught red handed from the Examination Centre having mobile phone no. 9654664145 on his person alongwith wires stitched in his clothes during second shift of exam. Analysis of the CDR of this mobile during the duration of the first shift of the exam shows that calls were received on this mobile number from mobile no. 9716780491 issued in the name of Somveer Malik and 7827335344 issued in the name of Vikas Lakra. Both these mobiles were seized from Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 23 of 28 Somveer Malik, who was arrested while sitting in a Car bearing No. DL13 CA 3030 parked outside this Examination Centre and this car belongs to Vikas Lakra. Location of these three mobile numbers were covered under the same tower. In facts ,commission of offence by Somveer Malik is possible. The finding of the Trial Court that the arrest memo of accused Somveer Malik does not reflect that he was arrested from the car and that there was no recovery in the personal search memo is of no benefit to accused Somveer Malik at the stage of framing of charge. There are independent witnesses, who have seen Somveer Malik sitting in the car of Vikas Lakra and further, there is material in the form of CDRs to show that the phone recovered from Vikar Lakra during the second shift of the exam, was in continuous touch in the first shift exam with the two phones recovered from the car of Vikas Lakra in which Somveer Malik was sitting and one of these three phones was in the name of Somveer Malik. This sufficient to raise grave suspicion against Somveer Malik that he was involved in this conspiracy with an attempt to cheat. How a Sim issued in name of Somveer Malik was in constant touch with mobile recovered from Vikas Lakra during the Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 24 of 28 first shift of exam. Prosecution deserves an opportunity to lead evidence on this. This material is sufficient to raise grave suspicion. The Trial Court erred in discharging Somveer Malik by relying upon his arrest memo and personal search memo, more so, when the charge sheet clearly mentions that he was arrested while sitting in the car parked outside the Examination Centre and two mobiles, which were in continuous touch in the first shift with the mobile recovered from Vikas Lakra were also recovered from him and there are independent witnesses to that effect. It is for Somveer Malik to explain as to how his mobile was there in the car of Vikas Lakra and how it was in constant touch with mobile recovered from Vikas Lakra. The prosecution must be given an opportunity to prove that accused Somveer Malik was arrested from car of Vikas Lakra and the mobile phones were recovered from him and any benefit of alleged ambiguity in the arrest memo or the personal search memo cannot be given to the accused at this stage. There are independent witnesses to support prosecution case and there is sufficient material to raise grave suspicion against Somveer Malik. Further, I do not find any merit in the arguments of Ld. Counsel for Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 25 of 28 Somveer Malik that cheating in exams can never amount to offence punishable under section 420 IPC. As already discussed above, the act of using illegal means in SSC exam for seeking job will amount to an offence punishable U/s. 420 IPC though in present case it is attempt only. In facts, the Order of the Ld. Trial Court discharging accused Somveer Malik is set aside and there is sufficient material against him to frame charges for the offences punishable U/s 120 B IPC read with 511 IPC read with 420 IPC and substantive offence punishable U/s 511 read with 420 IPC. Ordered accordingly. Third Question:-
23. Coming to the revision petition of accused Surender Mann against whom the Trial Court found sufficient material to proceed for the offence of conspiracy. It is claimed for him that the mobile phone no. 8586820186 was never recovered from him and the said SIM card is in the name of one Vineeta Saini, who is not connected to him nor he was arrested from the spot and therefore, there is no material to proceed against him for any offence. Ld. Trial Court in the order impugned has noted that the voice sample of accused Surender collected by the IO during investigation was compared by the CFSL Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 26 of 28 expert with the voice in intercepted calls and the expert opined that the intercepted calls contain the voice of accused Surender and this is sufficient to raise grave suspicion against him at this stage. I am in complete agreement with Ld. Trial Court on this count. The analysis of the CDRs shows that accused Surender was in continuous touch with other accused and further, his match of his voice sample compared by the experts with the intercepted conversations regarding rigging of the exams is sufficient at this stage to proceed against him. The material collected is sufficient to hold that commission of offence by accused Surender was possible. As per record, accused Surender was not arrested on 29.09.2013 itself and surrendered later on. In these circumstances, recovery of SIM No. 8586820186 from him is very remote and the same does not give any benefit to him at this stage. Scientific evidence and the other facts at this stage raise grave suspicion against him not only for the conspiracy as held by Trial Court but also for the offence of attempt to cheat. There is sufficient material against him to frame charges for the offences punishable U/s 120 B IPC read with 511 IPC read with 420 IPC and substantive offence punishable U/s 511 read with Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 27 of 28 420 IPC.
24. Accordingly, the impugned orders dated 04.09.2020 and 19.10.2020 are set aside against all the accused except Praveen Mann. The trial court is directed to frame charges against all the accused (except Praveen Maan) for the offences punishable U/s 120 B IPC read with 511 IPC read with 420 IPC and substantive offence punishable U/s 511 read with 420 IPC and proceed further as per law.
25. Trial Court record be sent back along with copy of this order.
26. Revision Files be consigned to record room. Digitally signed by AMIT
AMIT KUMAR
KUMAR Date:
2022.03.03
ANNOUNCED IN THE OPEN COURT 10:13:34 +0530
TODAY i.e. on 02.03.2022
(AMIT KUMAR)
SPECIAL JUDGE, PC ACT,
CBI-04, ROUSE AVENUE COURTS,
NEW DELHI
Crl. Revision Nos. 08/2021, 09/2021 & 25/2021 Page 28 of 28