Rajasthan High Court - Jaipur
Dr. Habeeb Khan Gauran vs . State Of Rajasthan on 18 December, 2014
SB CRIMINAL MISC. BAIL APPLICATION NO.13450/2014. Dr. Habeeb Khan Gauran Vs. State of Rajasthan Date of Order: 18th December, 2014. PRESENT HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. A.K. Gupta for the petitioner.
Mr. D.V. Tholia, AAG for the State.
Mr. Lalit Kishore Sharma, Addl. S.P., SOG.
REPORTABLE This bail application under section 438 Cr.P.C. has been filed by the petitioner for grant of pre-arrest bail in FIR No.12/2014 registered at police station CID, Jaipur District CID (SOG) for the offences under section 4/6 of the Rajasthan Public Examination (Prevention of Unfair Means) Act, 1992.
The said report has been lodged by Vidhyadhar Singh Dudi, Police Inspector (SOG), Rajasthan, Jaipur, which reads as under:
?????, ?????? ?? ?? ?????? 18.09.14 ?? ?? ?????? ???? ?????? ??0 ??????? ????, ????????? ????? ???????, ?? ? ?? ?? ?????? ???? 08/14 ???? 420,120 ?? ??.??.??. ? 3,4,6 ???????? ????????? ??????? (???????? ?????? ?? ???) ???0 1992 ???? ??.?.??. ?????? 09.07.14 ?? ???????? ?? ???? ??? ????? ??? ???? ?? ????? ??? ?? ??? ?? ??? ???? ?? "???? ???? ?? ????? ?? ?????? ??.??.??. ???????, 2011 ??? ???????? ???? ?? ?????? ??.??.??.??. ??????? ???? ????? ?????? ????? ?? ????? ?? ???????? ??? ?? ???? ??????? ?? ?????? ?????? ?? ????? ?????? ????? ???? ?????? ??????? ?? ???????? ?? ???? ????? ???? ?? ??? ?? ??????? ?? ???? ??????? ????? ?????? 18.09.2014 ?? ?????? ???? ?? ??????? ??? ???? ???? ?? ????? ???????? ?? ???? ??????? ???? ?????? ?? ???? ?????? ???????? ?? ??? ????? ???? ??????? ???????? ????? ??????? ?????? ?????? ???? ???????? ????? ?????? ????? ???? ?????????? ?????????? ?? ????? ???? ????? ??????? ????? ???? ??????? ??? ????, ??????? ??? ???? ? ???????? ??? ???? ???? ?? ???? ???? ???? ????? ??.?.??. ?? ??? ???? ???????? ??? ???? ???? ?? ?? ????? ??? ????????? ??????? ?????? ???? ??? ???????? ????? ?? ????? ?????? ???????? ???? ??? ?????? ??? ????? ??? ??????? ????????? ?? ????????? ? ???? ???????? ??????? ?? ?????? ???????? ???? ???? ???? ?? ???????? ??? ?? ?? ???? ??? ?? ???????? ?? ?? ?? ?? ??????? ???? ???? ??? ????? ?????? ?? ?? ?? ????? ????? ??????? ?? ?? ?????? 21-22-23 ? 24 ????? 2013 ?? ?????? ?? ???? ??, ?? ????? ?????? ????? ???? ?????????? ?????????? ???????? ??????? ??????? ?????? ?? ?????? ?? ?? ?? ????? ??????? 2011 ?? ????? ??????? ?? ?????? ????????? ??? ???? ????? ??????? ????? ?????? ?? ??? ?????? ????? ?? ????? ????? ???? ????? ??????? ?? ??? ?? ????? ????? ?? ???????? ??????? ?? ???? ????? ?????? ?? ?????? ????????? ? ????? ??????? ?????? ???? ?????? ?? ??????? ?? ???? ??? ??? ?? ?????? ?????? ?? ?????? ?? ????? ????? ????? ?? ????? ???? ??? ???????? ??? ?? ?? ????? ???????? ?? ??? ??? ?? ??? ??? ???? ?????? 01.03.2013 ?? ???????? ??????? ???? ???? ??? ????? ?? ???? ???????????? ???? ??????? 658 ?????? 01.03.2013 ?? ?????? ?? ??????? ?????? ???? ???? (???????) ???????? ????? ?? ???? ????? ?? ?? ?? ?? ?? ????? ??????? 2011 ??? ???? ?????? ?????? ????? ??? ?? ????????? ??? ???? ???? ???? ?????? ???????? ???? ?? ????? ???????? ????? ???? ??? ???????? ??????? ???? ??????? ????????? ?? ???? ???? ?? ????? ??? ??? ?? ?????? ???????? ??????? ? ??????? ???????? ???? ?? ???? ?????? ??????? ?????? ????? ????? ???? ?????? ?????? ????????? ???? ???????? ???? ?? ??????? ?????? ?? ??????? ????? ???? ????? ???? ???? ??? ????? ?? ?????? 16.12.2011 ?? ???????? ?? ?? ?? ?? ??????? ???? ??.??.????? ?? ?? ????????? ???? ???????? ?? ???? ???? ?? ?? ?? ??????? 2011 ?? ???????? ????????? ?? ???? ???? ???? ?????? ?? ???? ???? ????? ???? ???? ?? ????? ??? ?? ?? ?? ?? ?? ??????? ?????? ?? ??????? ??????? ???? ??? ?? ???? ?? ?? ?? ????? ??????? ?? ??????? ???? ?? ????? ??.??.??.????? ??? ???? ?? ?? ?? ??????? ??? ???? ?? ?????? ??? ???? ?? ?????? ?????? ????? ??? ?? ??? ????? ?????? 10 ?? ??? ???? ??: ???? ?? ???????? ???? ?? ????? ??????? ????? ???????? ????? ??????? ??????? ??? ???? ? ??????? ?? ??? ?? ???? ???? ??? ????? ?? ?????? 16.03.2013 ?? ?????? ????? ???? ?????????? ???????? ????? ???????? ??? ???? ? ????? ????? ?? ?? ?? ?? ??????? 2011 ?? ????? ????? ??????? ?? ?????? ????????? ????? ??????? ??????? ?? ???????? ???? ??? ??? ?? ???? ?????? ?????? ?? ?????? ???? ???? ??? ???? ???? ?????? ???????? ??????? ?? ?? ?? ?? ???????? ???? ??.??.????? ?? ???????? ????????? ???? ??? ???? ???? ?? ???????? ????????? ?? ???? ???? ?? ????? ??? ????????? ???? ???????? ???? ??? ??? ?????? ???? ???? (???????) ???????? ????? ?? ???????????? ?????? ???? ???? ?? ????? ?? ?? ???? ??????? ??? ?????? ????????? ???? (???? ?? ?????) ???????? ???? ?? ??????? ?????? ??????? ????? ???? ???????? ???? ??????? ??????? ???? ????????? ?????? ????????? ??????? ?? ????? ???? ??? ??? ??? ?????? ???? ???????? 32 ???? ????? ???? ?????? ???? ????? ???????? ?????? ?????? ????? ???????? ????? ???? ?? ? ?? ????? ?????? 02.10.2014 ??? 5.15 ?? ??
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???? ???????? ???? ??????? ?? ???? ???????? ?? ???? ?????? ???? ?? ???? ????? ???????? ?? ? ?? ????? ?? ??????? ????? ??????? ?? ? ?? ???????? ????? ?? ???????? ?? ?? ?????? ???? ?? ??????? ???? ????? ???????? ???? ??????? ?? ??? ??????: ???? ????????? ?? ?? ?? ????? ??? ?? ??? ????? ???? ??????? ?? ????? ???? 4, 6 ???????? ????????? ??????? (?????? ?????? ?? ???) ??????? 1992 ?? ???? ???? ???? ???? ??? ???? ????????????? ?????? ?????? 12/14 ????? ??????? ??? ???????? ?? ???????? ???? ???? ????? ????? ?????? ?? ?? ?? ? ?? ????? ?? ??????? ?? ?? ???????? ?? ?? ?? ?????????? ???? ?? ??? ???? ??????? ???? ????? ???????? ?????????? ????? ???? ?? ? ?? ????? ?????? ????? 59 ?????? 02.10.2014 ??? 5.15 ?? ??"
2. In other words, the case of the prosecution against the accused petitioner is that despite of the fact that his daughter was to appear in Rajasthan Judicial Service Examination, 2011, he, who was Chairman of the Rajasthan Public Service Commission, had visited the press where the question papers were printed and had illegally done proof reading and made noting from the question papers. Further, the case of the prosecution is that the main examination of RJS were to be held on 21st, 22nd, 23rd and 24th March, 2013 and the petitioner had, prior to the said examination, visited Surya Offset and Security Printers, Ahmedabad. He had asked the owner of the press Mudesh Purohit to make available the manuscript of the papers and proof print of all the four papers which the owner of the press had provided to the petitioner. The petitioner had then made some noting on his pad to which the owner of the press objected.
Earlier the petitioner had himself informed the Principal Secretary (Personnel) on 01.03.2013 about appearance of his daughter in the aforesaid and desired to keep himself away from it. Consequently, a Member of the Commission was given the charge to complete the process of the examination. Earlier also, on 16.12.2011, a letter had been sent by the petitioner to Shri B.M. Sharma, the then Chairman of RPSC, expressing the desire to keep himself away from the RJS Examination, 2011.
The daughter of the petitioner Kumari Reshma Khan was selected in the said examination and secured 10th position.
The preliminary enquiry made by the Inspector, along with relevant material, was then submitted to the authorities for further action and thereafter the instant report was lodged.
3. Learned counsel for the petitioner has submitted that the accused has not committed any offence and the instant report has been falsely lodged against him. Further he has submitted that the first information report has been grossly delayed. The alleged incident took place on 16.03.2013 whereas the report has been lodged on 02.10.2014. He has also submitted that had the petitioner gone to Ahmedabad, his mobile location would have been found at that place. The counsel for the petitioner has submitted that according to the owner of the press, there are restrictions in visiting the press. Any person who visits the press, an entry is strictly made in a register with all relevant details about him, such as date, time etc.. It has also been argued that if the accused had visited the press, then there ought to have been his footage in the CCTV cameras which were installed inside it. Therefore, the counsel for the petitioner has prayed that the petitioner belongs to a respectable family and is holding a high status in the society that he may be granted pre-arrest bail.
In support of his submissions, learned counsel for the petitioner has placed reliance on the decision in the case of Javedbhai Gafarbhai Vadgama Vs. State of Gujarat- Special Criminal Application (Direction) No.4265/2014 decided n 13.10.2014 and Javidbhai Gafarbhai Vadgama Vs. State of Gujarat- Criminal Misc. Application (For Anticipatory Bail) No.15148/2014 decided on 15.10.2014.
4. Learned Additional Advocate General appearing on behalf of the State has vehemently opposed the bail application. He has submitted that the petitioner is very much involved in commission of the crime and the instant report has been rightly lodged against him, wherein true and correct facts have been mentioned. Therefore, it cannot be said that a false report has been lodged against the petitioner. Further he has submitted that the petitioner was having two mobile phones with him. The location of the private phone (9829404786), mobile connection of which was taken by the petitioner on 29.12.2012 and kept upto 06.11.2013, was found in District Bhilwara and then he had switched it off. On the next day morning the mobile was put on, nearly at the same place. He had been in regular contact with the press owner (no.09825009599) through his mobile. On 14.03.2013 itself, the petitioner had called the owner of the press six times.
The petitioner had gone to Ahmedabad on 16.03.2013 in a taxi which had come to Ajmer, a day earlier, to deliver papers at Maharishi Dayanand Saraswati University. The petitioner had entered the press along with its owner Mudesh Purohit and entry in the register at the gate was made as Mudesh Purohit plus one. It has also been submitted by the counsel for the prosecution that there were CCTV cameras in the press and as the footage were not available because it had become old one with passage of time, that they have been sent to the expert at FSL.
5. Learned counsel for the State has further submitted that the prosecution case against the petitioner is corroborated by the statement of their witnesses. He had invited attention of this court to the statement of the prosecution witness Mudresh, owner of the press, recorded during investigation wherein he had stated about the visit of the petitioner to Ahmedabad by the taxi car which had come to Ajmer to deliver the papers at Maharishi Dayanand Saraswati University, thereafter the petitioner visited the press and looked into the question papers of Rajasthan Judicial Service Examination on the ground of proof reading and had written down notes in his pad etc. etc. Similarly, Ghanshyam Bhai Patel has stated about picking up the petitioner from his residence and taking him to the press at Ahmedabad and thereafter bringing him back to Ajmer. Learned Additional Advocate General has submitted that the evidence on record collected during investigation clearly supports the prosecution case against the petitioner.
6. Learned Additional Advocate General, in reply to the submission made by the counsel for the petitioner with regard to appearance of the accused before the investigation officer in response to the notice under section 41A Cr.P.C., has submitted that the said notice had been issued to the petitioner but initially he was not found at his address at Deedwana, Ajmer and Jodhpur. As per the said notice, the petitioner was to appear before the investigation officer on 17.10.2014. Ultimately, when the notice was served to the petitioner, instead of appearing before the investigation officer, a letter was sent through his advocate on 16.10.2014 mentioning that the petitioner is unable to appear and sought further time of three weeks.
Learned Additional Advocate General has submitted that the instant case is not a false one. Further he has submitted that because of the offence committed by the petitioner and as a result of it, his daughter was selected. The persons with talent were deprived of being selected in RJS Examination. It has also been submitted that the petitioner did not comply with the notice under section 41A Cr.P.C. In the facts and circumstances of the case, the prosecution has submitted that when the persons like the petitioner, who are holding high posts are involved in commission of the crime, the investigation is handicapped. In the present case, the custodial interrogation of the petitioner is essential for proper investigation which is yet to be completed, such as recoveries etc. He has, thus, prayed that indulgence of anticipatory bail should not be granted to the petitioner.
Learned Additional Advocate General has, in support of his submissions, placed reliance on the decision of Hon'ble Supreme Court in the case of Directorate of Enforcement & another Vs. P.V. Prabhakar Rao- (1997)6 SCC 647, Muraleedharan Vs. State of Kerala- (2001)4 SCC 638, State Rep. By the C.B.I. Vs. Anil Sharma- (1997)7 SCC 187 and State of A.P. Vs. Bimal Krishna Kundu & another- (1997)8 SCC 104.
7. This court has thoroughly considered the facts and circumstances of the case and the submissions made by the counsels for the rival parties. The case diary of the case was also taken by the court and it had gone into it and perused the material collected by the police during investigation.
8. It was in respect of the preliminary examination of Rajasthan Administrative Services, 2013 that an FIR No.8/2014 had come to be registered. The said matter was investigated and on conclusion of the same, a challan was filed on 03.09.2014. In the said case three employees of the press were also arrested. However, investigation as against the owner of the press and some others was kept pending under section 173(8) Cr.P.C. It is revealed from the record that on 18.09.2014 the investigating agency found that the petitioner is involved in leakage of the question papers of RJS Examination, 2011. Thereafter, a preliminary enquiry in respect of leakage of question papers of RJS Examination was conducted and a report was submitted to the authorities on 02.10.2014. On having decided to proceed in the matter, first information report was then lodged on 02.10.2014 with regard to the incident in the present case. It is to be noted that in the year 2013, it was only the examination of Rajasthan Judicial Services which was conducted by the Rajasthan Public Service Commission and no other examination was held at that time.
According to the investigation conducted by the police and evidence collected in furtherance thereof, it is revealed that the petitioner had himself given in writing that as his daughter was appearing in the said examination, he wants to keep himself away from it. Consequently, some other member of the Commission was to look after the examination. However, the petitioner had told the owner of the press that special care should be taken while handling the papers of Rajasthan Judicial Services and in this regard he would like to visit Ahmedabad. In view of the desire of the petitioner, the press owner had informed him about his taxi car has reached Ajmer, on 15.03.2013, for delivering some papers at MDS University and asked him to come in the said vehicle, if he wants to visit Ahmedabad. On a positive response by the petitioner, the owner of the press had accordingly instructed the person who had brought the taxi, namely; Ghanshyam Bhai Patel, who had after delivering the papers at the University in the afternoon, went to the residence of the petitioner and brought him to the press at Ahmedabad at about 08.30 p.m. It is note-worthy that the statement of Mudresh son of Jitendra Purohit, the owner of the press, was recorded under section 164 Cr.P.C. which reads as under:
RPSC ??????? ???? ??? ????? ?? ???? ?????? 15 ????? 2013 ?? ??? ?? ??? ???, ???????? ???? RJS EXAM ?? ?????? ?? ????? ????? ???? ? ??????? ????? ?? ??? ??? ?? ?? ??? ?? ??? ????? ?? ?? ????? ??? ????? ?? ????? ??????? ???? ?????? ?????? 16.03.2013 ?? ????? ??????? ???? ?? ??? ?? ?? ???????? ????? ????? ?? ??? ??? ?? ????? ????? ?? ????? ???????, ?? ?? ???? ?? ????? ??? MDS University ??? ?????? ?? ??????? ???? ?? ??? ??? ??? ??, ?? ??? ?? ??????? ???? ?? ????? ?? ??????? ???? ?? ????? ??? ???????? ???? ?? ??? ???? ??????? ??????? ???? ?? ?? ??? ?? ?????? ???? ?? ???? 11.00-11.30 A M ?? ???? ????? ?? ??? ????? ???? ??????? ?? ??? ??????? ???? ?? ??, ?? ?? ??????? ???"
The owner of the press received the petitioner and took him inside the press by making an entry in the register at the gate by putting his name and plus one. Accordingly, entry in the register was also made about Ghanshyam Bhai Patel and one Vasudev. In the conference room of the press, the petitioner asked about the manuscript and proof print of the papers of RJS. The said material was called for by the press owner from one Babu Bhagora who was the custodian of the same.
After receiving the proof and manuscript of the question papers, the petitioner had initially started comparing the original copy with the proof print. But lateron when the petitioner started noting down something in his pad, from the question papers, the press owner objected to it. Mudresh, the press owner, had deposed in his statement before the Magistrate as under:
"?? ??? ??????? ???? ?? ???? ????? ??????? ????? ?? ???? 8.30PM ?? ??????? ????????? ?? ??????? ????? ????? ?? ?????? RECEIVE ???? ??? ??? ?????? ?????????? ??? ??? ???? ???? ???? ?? ????? ?? ??????????? ?? ???? ??? ??????? ?????? ???? ???? ??? ???????? RJS ??????? ?? ?????? ?? ???????????? ? ????? ???? ?????? ????? ????????? ???? ????? ?? ?????? ???? ???????? ???????? ???? ???? 4 ??????? ?????? (RJS Exam ??) ???? ?????? Law I, Law II, ??????, English ?? ???? ??? ??????? ?? ??? LEE, LRH, RLA-1???? ??? ?? (???? ??? ??? ???? ???) ?????? ????? ?? ???? ????? ????? ??????? ?? Time ?? Date ????? ??? ????????? ????? ?? ?????? ????? ???? ??????? ?? ???? ????? ?? ???? ?? ??? ????? ??????? ???? ?? ??? ???? ?? ????? ???? ?? ????? ???? ???? ????? ??? ????? ???????? ???? ??? ??? ??????? ?????? ??? ?? ??? ????? ???? ???? ?? ????? ????? ????? ????? ??? ?? ?? ??? ??? ???? ????, ?? ???????? ????? ?? ??? ????? ??????? ?? ??? ??? ??? ???, ??? ????? ?? ??? ???? ???"
As regards the entries made at the gate of the press, the press owner had stated, under section 164 Cr.P.C., that:
"????? ??? ?? ?? ?????????? ???? ?????? ?? ???? ?? ????? ???????? ?? ???????? ??????? ??0 ?? ??? ???? ???? ?? ???? ??????? ??+1+???????+??????? ???? ??? ???"
9. Likewise, the prosecution witness Ghanshyam Bhai Patel was also produced before the Magistrate for his statement under section 164 Cr.P.C., who had deposed as under;
"?????? 16/3/13 ?? ??? MDS ????????????? ??? ???? ?????? ???? ???? ????? ??? ??? ?? ???? ??? ???? 10 ??? ????? ??????? ?? ?? ??? ??? ?? RPSC ?? ??? ??????? ???? ????? ?? ????? ????? ???? ???????? ???? ??? ????? ???? 11.00AM ?? ??????? ????? ???? ?? ???? ????? ????? ?? ???? ?? ???????? ?? ??? ????? ?? ???? ??? ?? ???? 8.30 ??? ?? ???????? ??? ????? ?? ??????? ????? ?? ??????? ???? ?? ??????? ??0 2 -3 ????? ??????? ?? ?? ??? ?????? ??? (????? ???) ???? ???"
".............. ??? ???? 11.30PM ?? ?? ??????? ????? ???? ?? ???? ????? ?? ??? ?????? ?? ????? ????? ?? ????? ???? ????? ??? ???? 7.00-7.30 ??? ??????? ???? ?? ???? ?? ?? ?????? ???? ??? ???? ?????? ??? ???? ???? ???? ??? ???? ???? ???????? ?? ???? ???????? ???? ?? ???? ???"
He has also stated about the journey from Ajmer to Ahmedabad and back. During the journey to Ahmedabad, the taxi which had carried the petitioner had stopped near Bhilwara but on return, it has been stated that they had not stopped anywhere and reached Ajmer straight away.
10. As regards the notice under section 41A Cr.P.C. given to the petitioner for his appearance on 14.10.2014, a letter No.227/A dated 16.10.2014 had been received from the Advocate of the petitioner which is in the case diary wherein a request has been made to fix another date after three weeks. The very fact that the said letter has been numbered as 227/A goes to show that it was not dispatched from the office of the advocate in the normal course.
11. In view of above and taking into consideration the facts and circumstances of the case as revealed from the material on record of the case diary, it cannot be said that the registration of the instant case against the petitioner is an out-come of any political vendetta or that a false report has been lodged against him. There is no just reason to disbelieve the statements of the prosecution witnesses recorded under section 164 Cr.P.C. at this stage and as such they cannot be ignored.
In respect of the case law cited by both the sides, it would suffice to say that in the matter of bail applications, the pre-dominant consideration is the facts and circumstances, accusation against an accused and the material which has been collected during investigation and no precedent can be binding while considering a bail application. Therefore, in my considered opinion, there is no case for grant for indulgence for pre-arrest bail to the petitioner and the prayer so made by him in the application deserves to be declined.
12. Consequently, this bail application under section 438 Cr.P.C. for grant of pre-arrest bail is dismissed.
(RAGHUVENDRA S. RATHORE), J.
bblm All corrections made in the judgment/ order have been incorporated in the judgment/ order being e-mailed.
BBL Mathur Private Secretary.