Karnataka High Court
Eramallappa vs State Of Karnataka By on 23 November, 2016
Author: R.B Budihal
Bench: R.B Budihal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF NOVEMBER 2016
BEFORE
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
CRIMINAL PETITION No. 5995/2016
C/W
CRIMINAL PETITION NOS.4962/2016,
6032/2016 AND 6094/2016
IN CRIMINAL PETITION No.5995/2016
BETWEEN:
Eramallappa
S/o Late Billa Mallappa
Aged about 53 years
R/at No.26, 2nd Cross
Cauvery Nagar
Sira Gate
Tumkur-572 106. .. PETITIONER
(By Sri Hashmath Pasha, Adv.)
AND:
State of Karnataka
By Malleshwaram Police
Bangalore-560 003.
2
Now under investigation by
C.I.D. Police, Bangalore City
(Represented by learned
State Public Prosecutor) .. RESPONDENT
(By Sri Ashok N Naik Spl.PP,)
This criminal petition is filed under Section 439 of the
Cr.P.C. praying to enlarge the petitioner on bail in Cr.
No.37/2016 of Malleshwaram P.S., Bangalore, for the
offences punishable under Sections 115, 23 of Karnataka
Education Act, Sections 418, 420, 381 of IPC and Section 3 of
Karnataka Control of Organised Crimes Act.
IN CRIMINAL PETITION No.4962/2016
BETWEEN:
Santosh Parushuram Agasimani
S/o Late Parashuram
Aged 36 years
R/o No.454, Market Road
Adoor, Akki Alur Hobli
Hanagal Taluk
Haveri District
Native of Teragaon
Haliyala Taluk
Karawar District-577 084. .. PETITIONER
(By Sri Hashmath Pasha, Adv.)
3
AND:
The State of Karnataka
By CID Police
Malleswaram P.S
Bengaluru
Represented by S.P.P.
High Court of Karnataka
Bangalore-560 001. .. RESPONDENT
(By Sri Ashok N Naik Spl.PP,)
This criminal petition is filed under Section 439 of the
Cr.P.C. praying to enlarge the petitioner on bail in Cr.
No.37/2016 of Malleshwaram P.S., Bangalore, for the
offences punishable under Sections 115, 23 of Karnataka
Education Act Sections 418, 420, 381, 120B, 118 of IPC and
Section 3 of Karnataka Control of Organised Crimes Act.
IN CRIMINAL PETITION No.6032/2016
BETWEEN:
Manjunath N
S/o Nanjundaiah
48 years
No.23, Matha Nilaya
2nd Cross
Adarsha Nagar
Nagarbhavi 1st Stage
Vijaynagar
4
Bangalore-560 040. .. PETITIONER
(By Sri Vivek Reddy, a/w
Sri Jeevan Kumar B S, Advs.)
AND:
State of Karnataka
By CID Police
(Malleswaram P.S)
Bengaluru
Represented by SPP
High Court Building
Bangalore-560 001. .. RESPONDENT
(By Sri Ashok N Naik Spl.PP,)
This criminal petition is filed under Section 439 of the
Cr.P.C. praying to enlarge the petitioner on bail in Cr.
No.37/2016 of Malleshwaram P.S., Bangalore, for the
offences punishable under Sections 115 and 23 Karnataka
Education Act and Section 418, 420 and 381 of IPC.
IN CRIMINAL PETITION No.6094/2016
BETWEEN:
1. Sri Nagendra
S/o Krishnappa
Aged about 37 years
R/at No.25, Near Church Road
3rd Stage, Srirampura
Mysuru-570 023.
5
2. Thimarayappa
S/o Aravegowda
Aged about 37 years
R/at No.2857, 2nd Cross
2nd Main, Sharadadevinagar
Mysuru-570 005. .. PETITIONERS
(By Sri Ravindra Babu G, Adv.)
AND:
State of Karnataka
By Malleshwaram P.S.
Bengaluru City-560 003
(Investigated by CID Police
Carlton House, Bengaluru.) .. RESPONDENT
(By Sri Ashok N Naik Spl.P.P., HCGP)
This criminal petition is filed under Section 439 of the
Cr.P.C. praying to enlarge the petitioner on bail in Cr.
No.37/2016 of Malleshwaram P.S., Bangalore, for the
offences punishable under Sections 418, 420, 381, 201 read
with Section 120B of IPC and Sections 23, 115 of Karnataka
Education Act and Section 3 of Karnataka Control of
Organised Crimes Act.
These petitions having been heard and reserved for
orders, coming on for pronouncement of orders, this day, the
Court made the following:
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ORDER
Since all these petitions are in respect of same crime and since common questions of law and facts are involved in all these petitions, they have been taken together to dispose of them by this common order.
The petitioners' ranking is shown in the above petitions as accused Nos.16, 15, 1, 10 and 11. But after investigation and filing of the charge sheet, their respective ranking is shown as accused Nos.3, 4, 6, 8 and 7.
2. All these petitions are filed under Section 439 of Cr.P.C. by the respective petitioners seeking their release on bail of the alleged offences punishable under Sections 418, 420, 381, 201 read with Section 120B of IPC and Sections 23 and 115 of the Karnataka Education Act, 1883, and Section 3 7 of the Karnataka Control of Organised Crimes Act, 2000, registered in respondent Police Station Crime No.37/2016.
3. Brief facts of the prosecution case are that the Joint Director (Examinations), Pre-University Board, Bengaluru, lodged the complaint dated 21.03.2016 against unknown persons alleging that II PUC Annual Exams for the academic year 2015-16 were scheduled to be held from 11.03.2016 to 28.03.2016. On 21.03.2016, examination was conducted for Chemistry (New Syllabus) subject. It is further alleged that on 21.03.2016, it came to the knowledge that a facsimile question paper of II PUC Chemistry (New Syllabus) subject was leaked out prior to the commencement of the examination i.e., at about 7.29 a.m. Later when the leaked out facsimile question paper was compared with the question paper given for the examination of Chemistry Subject on 21.03.2016, it corroborated. Complainant requested the 8 respondent-Malleshwaram Police to investigate the matter. On 30.03.2016 the said case was transferred from respondent Police to CID, Bengaluru, and during investigation the CID Police found that leaked question paper was circulated through WhatsApp of mobile phones and traced the cellular mobile numbers from which the leaked question paper was circulated. Then, the CID Police enquired accused Nos.1 to 3 and subsequently accused Nos.1 to 3 were arrested and their statements were recorded on 04.04.2016. Based on the voluntary statements of accused Nos.1 to 3, it was found by the CID Police that few others are also involved in circulating the leaked question paper for financial gain from beneficiaries. Based on the voluntary statement of accused Nos.5 and 8, it was found that the petitioners in the above petitions were also involved in circulation of the leaked question paper for money. The further allegations that accused had sold the leaked question paper and had collected 9 the money. On 11.04.2016 the CID Police requested the jurisdictional Additional Chief Metropolitan Magistrate, Bengaluru, for inserting Sections 120B and 201 of IPC in the said crime i.e., Crime No.37/2016, which was permitted by the said Court. On 18.04.2016 the above petitioners were produced before the Court and they were remanded to judicial custody and even till today they are in judicial custody.
The materials also show that on 23.03.2016, there was an order by the Government of Karnataka to hand over the case to CID Police. On 20.04.2016, the Investigating Officer submitted the report to Addl. Director General of Police to invoke the provisions of Karnataka Control of Organised Crimes Act (hereinafter referred to as 'KCOCA') and accordingly, the provisions of KCOCA are also invoked in the said crime.
The above petitioners approached the Principal City Civil and Sessions Judge, Bengaluru, seeking their release on 10 bail and the said bail petitions were rejected by the concerned Court.
4. The petitioners have contended that the provisions of KCOCA are not made applicable to the case on hand. Some of the accused have already been granted bail by the order of this Court and hence, on the ground of parity also the petitioners herein are entitled for grant of bail. They have also contended that there is no prima-facie case made out by the prosecution to show the involvement of these petitioners in the alleged offences. The petitioners are ready and willing to furnish solvent surety for their release on bail. They contended that they are residing in the address as mentioned above and hence there is no likelihood of fleeing away from justice.
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5. The prosecution opposed the petitions by filing separate objection statement in the respective petitions, but the sum and substance of the objections are as under.
On taking up the investigation from the local Police and after considering the report submitted by the Investigating Officer, investigation papers, etc., exercising powers conferred under Section 24(1)(a) of the KCOCA, The Addl. General of Police, CID, has passed an order invoking Section 3 of KCOCA, after ascertaining that the main accused persons having formed an "Organised Crimes Syndicate" continuously since 2008 and they have been involved in many cases related to question paper leakage and thus, investigation is continued. On 28.09.2010, charge sheet has been filed against the petitioners herein and other accused persons, totaling to 18 accused persons, for the offences punishable under Sections 120B, 454, 457, 380, 461, 166, 201 read with Section 109 of IPC and Sections 3(1)(ii), 3(4), 3(5) of KCOCA 12 and Sections 13(1)(d) read with 13(2) of Prevention of Corruption Act and also Section 23 and 115 of Karnataka Education Act.
6. The Investigating materials reveal that immediately after Science stream question papers reached the concerned Districts and Talukas, all the accused having conspired and formed the syndicate, and in furtherance of the conspiracy, the accused persons i.e., accused No.4, who is working as SDC in the Treasury Office at Hangal, taking the keys, which were kept in the drawer of the Computer table, opened the strong room and allowed accused No.1 Kumaraswamy to the strong room of the sub-treasury, opened the question paper bundles and took the photograph of the same and then put the bundles back as it were. Later, print out copies of the question paper were taken using laptop and with the help of accused No.6 Manjunath, the copies were distributed and 13 also allowed to be taken down by the co-conspirators for several lakhs of rupees.
7. Accused No.2-Shivakumaraiah, accused No.1 Kumaraswamy and accused No.3-Eramallappa have been involved in several cases in relation to question paper leak cases in the past. They have been involved in these activities of securing question papers of the examination conducted by the PU Board etc., prior to the examination by forming an organised crime syndicate and are continuously involved in such activity with the object of gaining pecuniary benefits. By indulging in such unlawful activity, they have done massive damage to the entire educational system. The Chemistry examination was cancelled twice because of leakage of question papers putting lakhs of students and their parents to tremendous agony and hardship, which affected meritorious students, who were preparing to appear in various competitive entrance examination at the state level 14 and the national level. The accused persons, by involving in such activity and committing the act, have gained monetary benefits and caused heavy loss to the State Exchequer and defrauded meritorious students. The above petitioners along with other accused hatched criminal conspiracy much prior to the scheduled date of examination.
8. The material collected prima-facie shows that the contact of the other accused persons with the main accused in the Organised Crimes Syndicate. During investigation an amount of Rs.3,00,000/- has been recovered out of Rs.5,00,000/- from accused No.4. Parity ground is not made applicable to the present petitioners. The call details collected also prima-facie show the involvement of the petitioners in the alleged offences. Accused No.6 collected Rs.10,00,000/- for getting the leaked question paper and deposited the said amount in the name of one of his life 15 insurance policy holder claims account and same has been recovered under the mahazar.
9. The materials collected show that there was a conspiracy between all the accused persons. Accused No.1- Kumaraswamy handed over the question paper to accused No.3 Ermallappa and accused No.6 Manjunath. Accused No.3 Ermallappa, in turn, handed over the leaked question papers to accused No.2-Shivakumaraiah and other beneficiaries for several lakhs of rupees. Accused No.3 Ermallappa had carried the leaked question papers to the students at Manipal and taken the money; statements have been made by the beneficiaries in that regard. Against accused No.3 Ermallappa also, three criminal cases were booked. The voluntary statement of accused No.3 also show his involvement. The IO has recovered Rs.1,00,000/- out of 16 Rs.5,00,000/- from the petitioner-accused No.3 under the mahazar.
10. The petitioners accused Nos.7 and 8 also knowingly facilitated the commission of the organised crime with the knowledge that the said accused are engaged in an organised crime, aided and abetted, and have facilitated the other accused in committing the said offences. During investigation, two gold rings were recovered from petitioner- accused No.7, which were said to be pledged with the pawn broker shop earlier and released them from the amount which he received from accused No.2-Shivakumaraiah. Petitioners have collected totally a sum of Rs.5,80,000/- from the beneficial students and handed over the same to accused No.2-Shivakumaraiah. In turn, accused No.2 has given an amount of Rs.65,000/- to each of the petitioners in different instances. Students have deposited an amount of 17 Rs.60,000/- to the savings bank account of accused No.8- Nagendra. Though accused No.8 being a Ph.D. Scholar and accused No.7 being an M.Phill. graduate, knowingly facilitated the commission of an organised crime and they have concealed the crime and criminals involved in the said cases. The above petitioners are very influential persons having political contacts and are capable of tampering prosecution witnesses and hampering the case of the prosecution. There are chances of intimidating the witnesses. Hence, sought to reject all the above petitions.
11. Heard the arguments of Sri Hasmath Pasha learned Counsel appearing on behalf of petitioners-accused Nos.3 and 4; Sri Vivek Reddy, learned senior counsel appearing on behalf of learned Counsel for petitioner-ccused No.6; so also the arguments of Sri Ravindra Babu, learned Counsel appearing on behalf of accused Nos.7 and 8 and also the 18 arguments of Sri Ashok N.Naik, learned Spl.PP for the respondent-State.
12. Sri Hasmath Pasha, learned Counsel for accused No.3 and 4 during the course of his arguments has submitted that so far as accused Nos.1 to 10 is concerned, the provisions of KCOCA are invoked and so far as accused Nos.11 to 18, only the offences punishable under the provisions of IPC and Education Act are invoked. He has submitted that for invoking the provisions of KCOCA, the procedure contemplated under the said Act is also not followed in the case. He has also submitted that writ petition has been filed by the accused persons, wherein the learned Single Judge of this Court has held that, for the present and while hearing the bail petition, the offences under the provisions of KCOCA are not made applicable. Hence, he has submitted that for the present, the alleged offences are to be 19 treated only under the provisions of the IPC and Karnataka Education Act. So for as accused No.4 is concerned, except this case, no other case is registered for attracting the provisions of KCOCA for the last 10 years and so far as accused No.3 is concerned, one case in C.C. No.372/2011 for the alleged offence under Section 420 of IPC is pending before JMFC Court at Gubbi and C.C.No.251/2014 is pending before JMFC, Tumkur. It is also his submission that C.C. No.372/2011 on the file of JMFC, Gubbi, is ended in acquittal by the judgment dated 7.08.2015 and another case in Mahalakshmi Layout PS crime No.369/2015 has been filed and still no charge sheet has been filed and no cognizance is taken. Hence, he has submitted that looking to these factual aspects, the mandatory requirements of the KCOCA that within the period of 10 years, two criminal cases have to be registered, wherein the charge sheet is to be filed and cognizance is to be taken, is not complied. It is his 20 contention that when accused No.3 has been acquitted in one case, it is as good as there is no case at all. He has also submitted that in the charge sheet material, names of some of the witnesses were left blank and therefore, the statement is not complete in all respects and it will not give complete factual story to the accused person while defending his case. Hence, submitted that even with regard to the allegation that the treasury box kept at Hangal treasury was opened and photograph of the Chemistry paper was taken in the mobile phone, thereafter it was developed and circulated to many other persons cannot be believed. He has further submitted that there use to be two keys to open the lock of the treasury, therefore, the opening of the treasury box by accused alone is not possible. He has further submitted that some of the other accused persons have already been granted bail by this Court. He has also submitted that looking to the entire charge sheet material, there is no prima-facie case made out and 21 hence, submitted that accused Nos.3 and 4 are to be released on bail by imposing the reasonable conditions.
In support of his contention, learned Counsel relied upon the following decisions filed along with citations dated 29.09.2016:
i. State of Maharashtra Vs. Shiva alias Shivaji Ramaji Sonawane and Others - 2015 (14) SCC 272 ii. Prasad Shrikant Purohit Vs. State of Maharashtra and Another - 2015 (7) SCC 440 iii. State of Maharashtra and Others Vs. Lalit Somdatta Nagpal and Another - 2007 (4) SCC 171 iv. Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and Another - 2005 (5) SCC 294 v. Mahipal Singh Vs. Central Bureau of Investigation and Another - 2014 (11) SCC 282 vi. Usmanbhai Dawwodbhai Memon and Others Vs. State of Gujarat - 1988 (2) SCC 271 vii. State of Kerala Vs. Raneef - AIR 2011 SC 340 viii. Arnesh Kumar Vs. State of Bihar and Another -
2014 (8) SCC 273 22
13. Sri Vivek Reddy, learned senior Counsel, appearing for accused No.6 has submitted that there are no previous cases registered for any of the offences against accused No.6.
The allegation against accused No.6 is distribution of the question papers, hence, he has submitted that similar allegations are made against accused Nos.5, 9 and 12 and they have already been granted bail. It is also his contention that provisions of the KCOCA are not made applicable to accused No.6. The other offences alleged are not punishable with death or imprisonment for life and even on the ground of parity, petitioner is entitled for bail. Hence, he has submitted that by imposing the reasonable conditions, petitioner/accused No.6 may be enlarged on bail.
14. Learned Counsel for the petitioner-accused Nos.7 and 8 has submitted that there are no previous criminal antecedents against them and they are the lecturers in the college. The offences are not punishable with death or 23 imprisonment for life. The other accused with similar allegations are already released on bail, hence, on the ground of parity petitioners/accused Nos.7 and 8 are entitled to be released on bail.
15. Learned Spl.PP has submitted that accused Nos.5 and 11 are not charged under the provisions of KCOCA. He has further submitted that the gravity and seriousness of the offence has to be taken into consideration, lakhs of meritorious students are cheated because of the present incident. The accused are the members of the Organised Crimes Syndicate since 2008. Accused Nos.1 to 3 are the members of the said syndicate and other accused are abettors to accused Nos.1 to 3.
The learned Spl.PP drew the attention of this Court to Section 3 of the KCOCA and made submission that it is not necessary that against all the accused persons, there must be 24 two criminal cases registered wherein the Court has taken cognizance. He made submission that the conduct of other accused persons who assisted and abetted accused Nos.1 to 3 who are the members of the organised crime syndicate, has to be considered. Antecedents of the accused cannot be ignored. He further drew the attention of this Court to Section 22 of the KCOCA and submitted that the State has made out the case that the provisions of the KCOCA are applicable and charge sheet has been filed invoking the provisions of the KCOCA as against some of the accused. The learned Spl.PP lastly made submission that the alleged offences are serious in nature affecting the entire society at large and more particularly, the students community who were preparing for writing PUC-II year (Chemistry paper). Hence he submitted that the petitioners are not entitled to be granted with bail. He has relied upon the following decisions:
Sri Anand Kumar @ Anand Singh Vs. Central Bureau of Investigation (Crl.P.No.2850/2014.) 25 Anil Murlidhar Deshmukh Vs. State of Maharashtra (CBI Through) 25/01/2006 Manish Nagar Vs. The State of Karnataka (Crl.A.No.18/2009) The State of Karnataka Vs. Vishwanath Maranna Shetty (Crl.A.No.1689/2012) (arising out of SLP (Crl.No.1522/2012) The State of Karnataka Vs. Ritesh S/o Vasudeo Wanjari (Crl.A.No.297/2001) State of Maharashtra Vs. Shiva Alias Shivaji Ramaji Sonawane and others - 2015 (14) SCC 272 Prasad Shrikant Purohit Vs. State of Maharashtra and another - 2015 (7) SCC 440 State of Maharashtra and Others Vs. Lalit Somdatta Nagpal and Another - 2007 (4) SCC 171 Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra and Another - 2005 (5) SCC 294 Mahipal Singh Vs. Central Bureau of Investigation and Another - 2014 (11) SCC 282 Usmanbhai Dawoodbhai Memon and others Vs. State of Gujarat - 1988 (2) SCC 271 State of Kerala Vs Raneef - AIR 2011 SC 340 26 Arnesh Kumar Vs. State of Bihar and Another - 2014 (8) SCC 273 Anil Kumar U R Vs. State of Karnataka - Crl.P. No.4461/2016 Sri K M Muralidhar Vs. State of Karnataka - Crl.P.No.6004/2016
16. I have perused the grounds urged in the above bail petitions, objection statements filed by the respondent, the decisions relied upon by the learned Counsel appearing for the respective parties which are referred above so also perused the bail orders passed by this Court in respect of the other accused persons and also the orders passed by the Hon'ble Single Judges of this Court in the writ petitions.
17. One of the contentions urged by the learned Counsel for the petitioners herein is that the other accused persons have been already granted bail by the order of this Court and hence, on the ground of parity, the petitioners are 27 also entitled to be released on bail. In this connection, I have perused the bail order dated 22.7.2016 passed by this Court in Crl.P. No.4251/2016 and other connected matters. These bail petitions are in respect of accused Nos.3, 4, 6 and 7 and
8. However, looking to the operative portion of the bail order, at sub para No.6 of para No.45, the learned Single Judge of this Court has observed as under:
" It is made clear that the State is at liberty to move the Court for cancellation of bail in case of violation of any of the above conditions noted above or if the respondent-police, invoke the provisions under the KCOCA Act in future on any changed circumstance as referred to in the body of this order."
This bail order has been passed by the Court when the matter was still under investigation and charge sheet was not yet filed at that time. But when the present petitions were heard by this Court in respect of accused Nos. 3, 4, 6 and 7 and 8, the investigation was completed and charge sheet was also 28 filed, which is not disputed by the learned Counsel for the petitioners. The respondent has produced the copy of the charge sheet before the Court. Looking to the charge sheet material, the provisions of the KCOCA are also invoked against the petitioners.
18. I have further perused the bail order dated 1.9.2016 granted by this Court in Crl.P. No.5162/2016 and two other connected matters. These petitions are in respect of accused Nos.12, 8 and 4. I have also perused the bail order dated 3.8.2016 in Crl.P. No.4461/2016 in respect of accused No.5. The said bail petitions were considered when the matter was still under investigation. Now the investigation is completed and charge sheet is also filed invoking Section 3 of the KCOCA. The Court has to examine as to whether looking to the charge sheet material, the prosecution has made out 29 prima facie case against the petitioners herein for the alleged offences and even the offence under the KCOCA.
19. I have perused the order dated 22.7.2016 passed by this Court in W.P. No.33202/2016 wherein one Earamallappa who was ranked as accused No.16 in FIR filed the writ petition under Articles 226 and 227 of the Constitution of India read with section 482 of Cr.P.C. praying to quash the FIR registered in Cr. No.37/2016 of Malleswaram Police Station. In para No.47 of the said order, this Court observed as under:
" The writ petition is disposed of with an observation that at present with the available material on record it cannot be concluded as to whether the provisions of the KCOCA are attracted to the petitioner or not. However, the bar or restrictions for granting bail cannot operate against the petitioner. If bail petition is filed by 30 the petitioner, the same shall be considered on merits and in accordance with law. "
20. I have also perused the order dated 23.9.2016 in W.P. No.33889/2016 (GM-RES) c/w. W.P. No.41651/2016. Accused Nos.1 and 15 filed the said writ petitions under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C. for quashing the FIR in the above said crime number. This Court while disposing of the said writ petitions, at para No.9, has observed as under:
" The further contention of the petitioners that unless there are atleast two cases, in which cognizance had been taken, against the petitioners, for offences under the KCOC Act, the provision would not be attracted, is sought to be met by the learned Additional Advocate General, to contend that if there is an organized crime syndicate and if there are members of the syndicate against whom the allegations are made, the provisions of the KCOC Act are attracted. The 31 others against whom there may not be any such case would be pale into insignificance and would come under the mischief of the KCOC Act is a contention and that controversy is left open, to be addressed at the appropriate stage, if at all. It does not arise at this stage when the court below is yet to take cognizance of the case.
The interim order stands vacated."
21. Looking to the case of prosecution, the main allegation against the petitioners and the other accused persons is that PUC-II year examination of Chemistry subject was scheduled to be held on 21.3.2016. Before the commencement of the said examination, there is leakage of question paper of the said subject by the accused persons. Because of that reason, the examination of the said subject was postponed to 31.3.2016. Even earlier to 31.3.2016, again there was leakage of the said question paper for which another case registered in respondent police station Cr. 32 No.48/2016 and investigation of the said case was also entrusted to CID. It is the case of prosecution, during the course of investigation, that the petitioners-accused Nos.3, 4, 6, 7 and 8 have given their confessionary statement before the investigating officer.
22. I have perused the confessionary statement dated 26.5.2016 given by accused No.3-Earamallappa, wherein he has admitted that he was also involved in getting the question paper in the Sub Treasury Office, Hanagal, having conspiracy with the other accused persons, and looking to this confessionary statement, it goes to show, prima facie, that he was keeping watch outside the Sub Treasury Office, Hanagal about the persons who were coming to the said place and facilitated accused No.1-Kumaraswamy, accused No.2- Shivakumaraiah and accused No.4-Santhosh to take out the photographs of the question paper of the Chemistry subject 33 by opening the treasury box and thereafter, developed the said photographs by using the laptops. In his confessionary statement, he has further stated that, in this connection, he conversed with the other accused persons over mobile which numbers were mentioned in his confessionary statement. The confessionary statement also goes to show that even he involved in leakage of the question papers of the said subject for the examination which was scheduled on 31.3.2016. His statement further goes to show that by the sale of such question papers, he received Rs.5,00,000/-. Out of that, he gave Rs.4,00,000/- to Kumaraswmay and kept Rs.1,00,000/- in his house. The prosecution papers also show that during the investigation, accused No.3 led the investigation team to his house and produced Rs.1,00,000/- to them which was seized by the investigating officer in the presence of the panch witnesses.
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So far as the confessionary statement of accused No.4- Santhosh is concerned, it is also dated 26.5.2016. Accused No.4 was appointed as SDC in the Treasury Office at Hirekerur on compassionate grounds. His statement shows, prima facie, that he managed to get his transfer on deputation basis to the Treasury Office at Hanagal. In his statement, it is clearly stated that himself, accused No.1- Kumaraswmay, accused No.3-Eramallaaiah went nearby the treasury office. Accused No.3 was keeping watch outside the treasury office. Himself and accused No.1 went inside the office and he took the treasury keys kept in the drawer and opened the lock put to the strong room and then accused No.1-Kumaraswmay cut the belt with the blade put to the bundle of the question papers and took the photographs of the said question paper through his camera. Again the bundles were kept with the help of gum, tape, cello pin and then, they went outside the said office. He has also stated 35 that accused No.1-Kumaraswamy by giving Rs.3.00 lac to him went by Tavera Car and he returned to his village on motor bike. He has also stated in his statement as to how he spent the amount received from accused No.1. He had also shown the places where they had the talks with regard to the financial arrangements in the daba. His statement also goes to show that the investigating officer seized Rs.1.50 lac from him and another Rs.1.50 lac from his brother Kirankumar.
Confessionary statement of accused No.6-Manjunath is dated 1.5.2016 wherein he has stated that he is working as physical education instructor since 20 years in New Cambridge School situated at RPC Layout, Bengaluru. In addition to that, he is also working as an LIC agent. Perusing the confessionary statement of accused No.6, it goes to show that he is involved in the team of sale of leaked question papers. The other accused persons were consulting and talking over the mobile phones to this accused person. His 36 statement shows that he enquired with Anil Kumar, who is a physical education instructor in Poornapragna High School, about the availability of question papers and he told Anil Kumar that, for one question paper, a student has to pay Rs.2,00,000/-. Out of that, the person who supplies the question paper has to be paid Rs.1,50,000/- for one question paper and remaining Rs.50,000/- will be shared by him. So his confessionary statement would make it clear that on 12.3.2016, Satish phoned him and that they can go to the house of one Narayana and at 4.45 p.m., he went to Sadashivanagar and called Satish, who also went to meet the said Narayan and at about 8.00 p.m., they met Narayan. Anil and Obalaraju were with the said Narayan. As they gave the question papers in advance, Narayan gave Rs.5,00,000/- as an advance amount in the presence of others. Out of the said amount, he gave Rs.50,000/- each to Anil and Satish and he carried Rs.4,00,000/- towards his house and kept the said 37 amount in the cupboard of his bed room. His statement also goes to show that the investigating officer seized the said amount from his house in the presence of panch witnesses.
23. The other petitioners who are accused Nos.7 and 8 as per the charge sheet are one Thimmegowda and Nagendra respectively.
I have perused the confessionary statement of accused No.7-Thimmegowda. He completed his M.A. in Economics in 2005. He was working in Venkateshwara First Grade College BTM Layout, Bengaluru as non teaching staff. There afterwards, he completed M.Phil. course in Sri Venkateshwara University in Economics subject and in the same college, he started serving as lecturer from 2009 to 2014 and in 2014, he left the job. His statement shows that accused No.2 came to be known by him and he met him in the house of accused No.2 in Nandini Layout and he asked 38 the amount which accused No.2 has to pay to him. At that time, accused No.2 told him that he is having the question paper for PUC-II year examination (Chemistry) and to bring the persons whom he knows. Then he informed the same to accused No.8-Nagendra as he was knowing the students of PUC-II (Science). His statement also goes to show that they used to collect Rs.10,000/- per student and they requested Nagendra to collect Rs.10,000/- per student. Accordingly, he told Nagendra to set the students and Nagendra used to collect Rs.20,000/- to Rs.30,000/- per student and used to pay Rs.10,000/- to accused No.2-Shivakumaraiah and the remaining amount, accused Nos.7 and 8 used to share between them. The statement of accused No.7 also goes to show that they brought about 14 students to one room and collected Rs.1,40,000/- from them and supplied the question papers to them. The students stayed in the said room gone through the question papers and on the next day, directly 39 they went to the examination hall. His statement further shows that from the said deal of the leakage of question paper, he collected Rs.1,15,000/- from accused No.2- Shivakumaraiah and the said amount was used to get back his two gold finger rings by paying Rs.18,000/- and he paid Rs.10,000/- to his brother in connection with the chit business and he expended Rs.25,000/- for purchasing the clothes for Ugadi festival and other amount he expended for his meals, vehicles and otherwise.
So also the confessionary statement of accused No.8 was recorded on 28.4.2016. His statement would show about his involvement in the deal of leakage of the PUC-II year Chemistry subject question paper and selling the same to the students taking the assistance of accused No.7 and collecting the money. His statement would further show that he has received Rs.50,000/- from accused No.6-Manjunath for introducing PUC-II year students for the purpose of sale of 40 the question papers and out of Rs.50,000/-, himself and Satish decided to go North India tour along with their family members and purchased the Air tickets from Prashanth who was the travel agent.
24. I have also gone through Section 19 of the KCOCA which reads as under:
19. Certain confessions made to police officers to be taken into consideration:-
(1) Notwithstanding anything in the Code or in the Indian Evidence Act, 1872 but subject to the provisions of this section, a confession made by a person before a police officer not below the rank of the Superintendent of police and recorded by such police officer either in writing or on any mechanical device like cassettes, tapes or sound tracks form which sound or images can be reproduced shall be admissible in the trial of such person or co-accused, abettor or conspirator:41
Provided that the co-accused, abettor or conspirator is charged and tried in the same case together with the accused.
(2) The confession shall be recorded in free atmosphere in the same language in which the person is examined and as narrated by him.
(3) The police officer shall before recording any confession under subsection (1) explain to the person making it that he is not bound to make a confession and that, if he does so, it may be used as evidence against him and such police officer shall not record any such confession unless upon questioning the person making it, he is satisfied that it is being made voluntarily. The concerned police officer shall, after recording such voluntary confession, certify in writing below the confession about his personal satisfaction of the voluntary character of such confession, putting the date and time of the same.
(4) Every confession recorded under sub-
section (1) shall be sent forthwith to the Chief 42 Metropolitan Magistrate or the Chief Judicial Magistrate having jurisdiction over the area in which such confession has been recorded and such Magistrate shall forward the recorded confession so received to the Special Court which may take cognizance of the offence.
(5) The person from whom a confession has been recorded under sub-section (1) shall also be produced before the Chief Metropolitan Magistrate or the Chief Judicial Magistrate to whom the confession is required to be sent under sub-section (3) along with the original statement of confession written or recorded on mechanical device without unreasonable delay.
(6) The Chief Metropolitan Magistrate or the Chief Judicial Magistrate shall scrupulously record the statement if any made by the accused so produced, and get the signature. In case of any complaint of torture the accused shall be directed to be produced for medical examination before a Medical Officer not below the rank of an Assistant Civil Surgeon.
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25. I have perused the charge sheet materials collected during investigation. It would show that accused No.2- Shivakumaraiah against whom crime No.56/2013 of Tumkur village New Extension Police Station on the file of the ACJ and CJM Court, Tumkur is pending in C.C. No.251/2014 and another case in Bengaluru City Nandini Layout Crime No.139/2014 registered and case in C.C. No.19287/2015 is also pending before the ACMM Court at Bengaluru. So far as Accused No.3-Eramallappa is concerned, crime No.56/2013 of Tumkur village New Extension Police Station on the file of the ACJ and CJM Court, Tumkur is pending in C.C. No.251/2014 and another case in Mahalakshmi layout crime No.369/2015 is also registered and it is pending investigation. Therefore, looking to these materials, they prima facie go to show that they are the members of the crime syndicate involved in committing the similar offences. So far 44 as the other petitioners are concerned, the materials would show that they were helping the crime syndicate in collecting the money by doing such activities of leakage of question papers. They were collecting money to give financial support to the crime syndicate so also they had personal gain by doing such dealings.
26. Considering all these materials, which I have referred above and more particularly, the statement of students to whom the questions papers have been supplied in advance before the examination makes it very clear that the accused persons collected money from them, took such students to one particular room, asked them to go through the questions. It is an undisputed fact that the examination of Chemistry subject for the students of PUC-II year which was fixed on 21.3.2016 was cancelled because of that reason. Therefore, it affected the students community who prepared 45 for the examination so also the meritorious candidates expecting better results had the examination was conducted as usual on 21.3.2016.
27. During the course of arguments, the learned Advocates submitted that the provisions of the KCOCA are not made applicable and the remaining offences will be only under provisions of IPC and the Karnataka Education Act. It is also their submission that the said offences are not exclusively punishable with death or imprisonment for life. In view of their submission and for the sake of appreciation, even if it is assumed that the provisions of KCOCA are not made applicable and the alleged offences fall only under the provisions of IPC and the Karnataka Education Act, even then the offences are serious in nature having a serious consequences on the entire society at large in general and the students community in particular. If such things are not 46 checked properly, then the sincere and honest students become desperate and disappointed and they loose their confidence in the education system itself. It is the case of the prosecution that because of the alleged act done by the petitioners along with the other accused persons, the students, who prepared for the examination honestly and sincerely, had mental agony and sufferings and the parents of such students were also suffered because of the alleged leakage of question papers and the cancellation of the examination for that paper which was scheduled on 21.3.2016. If the exams are rescheduled, it is also having the financial burden on the state exchequer.
28. I have also perused the statement of witnesses C.W.8 -G. Chandan s/o. Gangadhar studying in PUC-II year, C.W.9-Parithosh K.R., s/o. Ravindranath studying in PUC MES College Malleswaram, C.W.10-Kumari Harshitha who 47 was studying in PUC-II year and she is the daughter of accused Narayan, C.W.11-Monish, s/o.Ramesh studying in PUC-II year has stated in his statement that accused No.6 Manjunath took Monish to the house of accused Narayan to see the leaked question paper and to prepare for the examination. C.W.12-Sri Sharath R.K., S/o.Ravi, has stated in his statement that he has seen the writings of PUC-II year examination in the hand of accused-Ranganath and then taken the photograph of the said question paper in the mobile phone and sending the same to his friend Sanjay. C.W.17- Bharath.A, s/o. Anil Kumar, has stated in his statement that he has been shown the leaked question paper. The accused- Shivakumaraiah, Nagendra, Thimmegowda, Muralidhar, Anil and Sujay took them to different places and made them to study and prepare for the examination. C.W.18-Mahesh G. Pogthi has also stated in his statement about he seeing the question paper in advance. The accused Shivakumaraiah, 48 Nagendra, Thimmegowda, Muralidhar, Anil and Sujay took them to different places and made them to study for examination. C.W.19-K. Vishal, s/o. K.M. Vishal also stated similarly as that of C.W.17 and 18 so also C.W.20-Sri Vinod, C.W.21-Akshay, C.W.22-Sri Rajesh. The statement of these witnesses are recorded as per Section 164 of Cr.P.C. before the Magistrate Court. Their statements prima facie go to show that before the date of examination, they got the question papers through the help of accused persons which they have specifically named in their statements and they have also stated that they were taken to the house of accused Narayan and other places and they were made to study after seeing the question papers and to prepare for the examination.
29. Though it is the contention of the learned Advocates appearing for the petitioners that the offences are 49 not punishable with death or imprisonment for life and the maximum punishment prescribed is up to 7 years, the proposed penalty is not the only guiding factor while considering the bail petitions. The other guiding factors are nature and gravity of the offence, its consequences on the society at large and all concerned, possibility of the persons involved in such crimes, tampering the witnesses and the possibility of the accused in involving in similar offences in future also and whether accused are influential persons. All these aspects will have to be taken into consideration by the Courts of law. Looking to the case on hand and the antecedents of some of the petitioners, they involved in committing the similar offences even earlier also. May be there is acquittal of some of the petitioners from such proceedings. If the accused has been acquitted in any case, it is not because they have not committed such offence, it is 50 because the prosecution was not able to prove it beyond all reasonable doubts.
30. The materials collected during investigation would prima facie show the conversation by the petitioners over mobile phones, supply of the question papers to the students and collecting money from them. Even the materials prima facie show that the key in the Sub Treasury Officer Hangal were used stealthily to open the treasury box and took the photograph of the question papers kept in the treasury box and thereafter, developed the question papers by using the laptops and sold the same. In this regard, the voluntary statements of the accused under which money recovered in the presence of panch witnesses and the use of the vehicle for the distribution of such question papers are also said to have been seized by the prosecution during investigation. 51
31. I have also gone through the decisions relied upon by the learned Counsel for the respective petitioners, which are referred above. In view of the facts and circumstances of the case on hand, I am of the clear opinion that those decisions will not come to the aid and assistance of the petitioners herein.
32. Considering all these aspects of the matter, even if it is taken that the provisions of KCOCA are not made applicable, still I am of the considered opinion that looking to the gravity and seriousness of the offence and its consequences, these are not the cases wherein discretion can be exercised in favour of the petitioners. Accordingly, the petitions are rejected.
Sd/-
JUDGE Cs/BSR/-