Madhya Pradesh High Court
Rajendra Tiwari vs Central Bureau Of Investigation on 3 August, 2021
Author: Vijay Kumar Shukla
Bench: Mohammad Rafiq, Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
Criminal Revision No.1059/2021
Rajendra Tiwari
-Versus-
Central Bureau of Investigation, Bhopal
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Shri Aditya Adhikari, Senior Advocate along with
Shri Deepak Tiwari, Advocate for the applicant.
Shri J.K. Jain, Assistant Solicitor General for the non-applicant.
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CORAM :
Hon'ble Shri Justice Mohammad Rafiq, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
Reserved for order on : 23-7-2021
Date of pronouncement : 03-8-2021
Whether approved for reporting :
[Heard through video conferencing]
ORDER
(Jabalpur, dtd. 03.8.2021) Per : Vijay Kumar Shukla, J.-
The present revision has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure [for short, "the CrPC"] challenging the order passed by the learned IX Additional Sessions Judge/Special Judge, CBI (Vyapam Case) Bhopal, dated 8-03-2021 in SC/9500003/2015 [CBI, bhopal vs. Pralekh Tiwari & others], whereby the Special Judge has framed 2 charges against the applicant under sections 420 read with 120-B of the Indian Penal Code (IPC), 467 read with 120-B of the IPC, 468 read with 120-B of the IPC, 201 read with 120-B of the IPC and under Section 471 read with 120-B of the IPC; under Section 13(1)
(d) read with 13(2) of the Prevention of Corruption Act, 1988 read with Section 120-B of the IPC; sections 65 and 66 of the Information and Technology Act, 2005 read section 120-B of the IPC; and under Section 3-D(1)(2)/4 of the M.P. Recognized Examination Act, 1937.
2. Shorn of unnecessary details : As alleged, the applicant has bribed Rajendra Shivhare, who was posted as Deputy Inspector General of Police at the relevant time and also other officials of the M.P. Professional Examination Board, Bhopal offering them Rs.15 lacs, in order to get his son - Pralekh Tiwari (co-accused) selected in the Subedar/Sub-Inspector/Platoon Commander Examination, 2012 conducted by the Professional Examination Board (Vyapam). The present applicant has been made as an accused alleging that he is a mediator in the said case. Initially the case was investigated by the Special Task Force (STF) and later it was transmitted to the CBI for further investigation.
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3. During course of investigation it was allegedly found out by the prosecution that the applicant has abetted the officials of the Vyapam for getting his son selected in the said examination and for that purpose he offered them illegal gratification to the extent of Rs.15 lacs. It is the case of the prosecution that the present applicant was a part of the conspiracy to create forged answer sheets of his son - Pralekh Tiwari for getting him selected in the Subedar/Sub-Inspector/Platoon Commander Examination-2012.
4. Final report/Challan has been filed against the applicant along with other co-accused persons in respect of the offences, which have been mentioned hereinabove. It is alleged by the prosecution that memorandums of the co-accused persons were recorded and hard disc of computer was recovered from the Vyapam Office which was sent to the Central Forensic Science Laboratory for analysis. As alleged, the prosecution recovered the bribed amount and some documents along with CDR of the conversation held between the accused persons regarding transaction of the alleged amount.
5. On the basis of the Final Report/Challan filed against the applicant along with other co-accused persons the learned Special Judge took cognizance of the offence against the applicant 4 and framed charges in respect of the offences as aforementioned. A supplementary challan has also been filed against the present applicant. The applicant submitted an application under Section 227 of the CrPC seeking discharge of the alleged offences. However, the said application has been dismissed and charges have been framed against the applicant.
6. The learned senior counsel appearing for the applicant argued that the present case is a case of no evidence and the present applicant has been has been dragged for commission of the alleged offence on the basis of the conversation allegedly held between the applicant and the co-accused, Rajendra Shivhare via mobile. It is strenuously urged that the said conversation is alleged to have been held between 01-11-2012 to 25-11-2013, whereas the result of the said Examination conducted by the Vyapam was announced on 8- 10-2012. Thus, it is not clear in the Challan that as to for what purpose that conversation was held. It is further submitted that since the telephonic conversation has taken place after the Examination was conducted and its result was declared on 8-12-2012, therefore, no prudence can be drawn that the present applicant, in any way, was connected with the main accused - Rajendra Shivhare. Further, the prosecution has failed to produce any evidence with respect to the date of the meeting held between the present applicant and the 5 co-accused Rajendra Shivhare for the alleged transfer of money. It is further submitted that the prosecution has also failed to place evidence in respect of the date of payment, mode of payment of Rs.15 lacs made to Rajendra Shivhare. Thus, it is argued that framing of charges against the applicant is without any evidence on record. It is vehemently urged that the memorandum of the co- accused is not admissible under the Indian Evidence Act. More so, because there has neither been any seizure of money allegedly paid by the applicant to the co-accused Rajendra Shivhare nor the transaction trail has been found out and explained by the prosecution.
7. It is argued on behalf of the applicant that nothing has been seized by the investigating agency on the basis of the admission allegedly made by the applicant under Section 27 of the Indian Evidence Act. It is putforth that the prosecution does not have any call details with respect to the telephonic conversation alleged to be held between the present applicant and Rajendra Shivhare, prior to conduct and declaration of the result of the said Examination. It is strenuously urged that as per letter dated 01-4- 2015 sent by Bharat Communication Limited to STF Shri Ashish Khare in which it is clearly mentioned - "CDRs are only for last one year period required CDRs as mentioned in the letter of STF is for 6 old period of more than year." Thus, the investigating authority has no evidence as regards the substance of the alleged telephonic conversation. It is argued that the material produced along with Challan by the prosecution against the applicant cannot form a conclusive evidence. Therefore, the trial Court has framed charges against the applicant on the basis of unproved evidence.
8. The respondent has filed reply/objection contending inter alia, that the Supreme Court of India during course of hearing in Writ Petition (Civil) No.372/2015 along with various petitions, vide order dated 9-7-2015 passed in W.P. (Civil) No.417/2015 [Digvijay Singh vs. State of M.P. and others] transferred the investigation of criminal cases related to Vyapam Scam and also the cases related to death which are allegedly linked with Vyapam Scam to the CBI. In pursuance of the said order the CBI took over the investigation of FIR No.17/2013 of the STF, Bhopal by re- registering the case as RC2172015A0020 on 25-7-2015 relating to irregularities in the selection of Police Recruitment Test 21012 conducted by Vyapam.
9. It is setforth that the FIR No.17/2013 of the Police Station, STF, Bhopal is the offshoot of the FIR No.539/2013, dated 6-7-2013 registered at the Police Station, Rajendra Nagar, Indore. 7 During course of investigation of the said FIR the HDD (hard disc) installed in the office computer of Nitin Mohindra, the then Principal System Analyst, Vyapam Bhopal, was seized by the Police Station, Rajendra Nagar on 18-7-2013 and the same was marked as "C-1". The local police/STF had sought and received expert opinion on "C-1" from DFS, Gandhi Nagar, vide report No.DFS/EE/2013/CF/327, dated 25-10-2013. The contents of the said HDD "C-1" were made available in a CD to the STF by DFS, Gandhi Nagar. In the said CD (i.e. data of HDD retrieved from the computer of Nitin Mohindra), an excel sheet was found having names of 21 candidates of the Police Recruitment Test, 2012 with their roll numbers, names of their sponsors/mediators and the amounts in figure collected from them. The details contained in the said excel sheet were enquired by the STF from Pankaj Trivedi and other middlemen, namely, Pradeep Raghuvanshi, Bharat Mishra, Sudhir Sharma and R.K. Shivhare by manipulation of digital data and OMR answer sheets in the course of evaluation of answer sheets. Pankaj Trivedi also corroborated the version of Nitin Mohindra. Thereafter, the records and date of Police Recruitment Test, 2012 were obtained by the STF from Vyapam and got analysed. It was prima facie found that the marks of 17 candidates of PRT-2012 including the son of the present applicant, were inflated by tampering digital data and OMR answer sheets of these 8 candidates. Accordingly, the instant case was registered as FIR No.17/2013 by the STF, Bhopal on 23-11-2013 against 25 accused persons (17 candidates, 04 Vyapam officials and 04 middlemen) under sections 420, 467, 468, 471 and 120-B of the IPC; under section 3(D)(1)(2)/4 of the M.P. Recognized Examination Act, 1937; and under sections 65 and 66 of the Information and Technology Act. During course of investigation conducted by the STF, the role of 13 more accused persons including the applicant herein, surfaced and they were arraigned as accused persons by the STF. Further, sections 7, 9, 13(2) read with 13(1)(d) and 15 of the Prevention of Corruption Act, 1988 were also added by the STF.
10. After investigation the STF, Bhopal filed four charge- sheets/supplementary charge-sheets on different dates against 36 accused persons including the present applicant and investigation under Section 173(8) of the CrPC was kept open by the STF.
11. During CBI investigation it was revealed that the present applicant played the role of a middleman for his son - Pralekh Tiwari for his selection in the PRT-2012. The co-accused Pralekh Tiwari (Roll Number 325660) appeared in the PRT-2012 [Police Sub-Inspector/Subedar/Platoon Commander Recruitment Test-2012] conducted by the Vyapam on 16-9-2012 and got selected 9 in the examination through illegal means. His father - the present applicant contacted the co-accused Rajendra Kumar Shivhare, the then DIG of Police, Rewa Range, Rewa and accordingly Rajendra Kumar Shivhare provided his name and roll number to Nitin Mohindra for making the said candidates illegally pass the said examination. The name, roll number of Pralekh Tiwari and the name of the middleman Rajendra Kumar Shivhare and illegal amount of Rs.15 lacs are mentioned against his name in the excel sheet retrieved from the HDD of the office computer of Nitin Mohindra.
12. It is putforth that the investigation revealed that the Vyapam officials hatching criminal conspiracy with the middleman, Rajendra Shivhare manipulated the digital data and OMR answer sheets of the accused Pralekh Tiwari and provided higher marks to him in order to secure his selection in the examination and thereby deprived the deserving candidates from getting employment.
13. The SEQD report shows the tint and luster of ink of 14 in Hindi/English Paper-2 and 16 in General Knowledge Paper-3, originally marked questions to be similar, while in respect of other questions it is different and which proves that only 14 and 16 questions were originally attempted and shaded by the co-accused 10 Pralekh Tiwari in the OMR answer sheets. While other questions viz. 86 questions in Hindi/English Paper-2 and 84 questions in General Knowledge Paper-3 were deliberately left blank so that it can be illegally shaded/filled up subsequently. Thus, the son of the applicant obtained 172 marks in the written test of PRT-2012 out of total 200 marks by way of illegal manipulation of data and answers in the OMR sheet in conspiracy with Vyapam officials, the present applicant and the co-accused/the then DIG, Rajendra Kumar Shivhare.
14. During investigation, the then Programmer of the Vyapam Office was examined by the CBI which proved that in the CD No.52, 02 DBF files CP2_GWL1.DBF and CP2_GWL2.DBF pertaining to scanning data of Gwalior centres were available. The investigation further revealed that out of 100 questions/ovals, Pralekh Tiwari had filled up/shaded only 15 ovals and left 85 blanks in the OMR answer sheet in General Hindi/English Paper-2, as per the DBF files identified in the CP2_GWL1.DBF and CP2_GWL2 DBF of the Gwalior centres, available in the CD No.52. Out of total attempted 15 questions, he scored 14 marks in General Hindi/English Paper-2. However, as per the final mapping file based on which result was processed and published, the ovals of 100 questions were found to be shaded in the OMR answer sheet of 11 General Hindi/English Paper-2. Thus, it was found that the OMR answer sheet was subsequently illegally filed/manipulated and thereby the accused candidate could get 88 marks in the General Hindi/English Paper-2.
15. The prosecution further revealed that the accused/candidate Pralekh Tiwari had appeared from the Govt. Education Maharshi College, Gwalior. He scored 172 marks in the written test of the PRT-2012 out of total 200 marks and he had been declared successful and was got finally selected for the post of Platoon Commander.
16. The investigation further revealed that in the memorandum of the co-accused Nitin Mohindra recorded under Section 27 of the Evidence Act, he admitted that the names and roll numbers of Gaurav Shrivastava, Sam Shrivastava and Pralekh Tiwari were sponsored by Rajendra Shivhare, the then DIG of the Police, Rewa Range, Rewa and illicit sum to the extent of Rs.45 lacs was paid by Rajendra Shivhare.
17. In the memorandum recorded under Section 27 of the Evidence Act of the co-accused Rajendra Shivhare by the STF further revealed that he knew Sudhir Kumar Shrivastava, the then 12 Inspector of Police of the Police Station, Kotwali Rewa, where he was posted as DIG, Rewa Range, Rewa. Due to official capacity, Rajendra Shivhare knew Sudhir Kumar Shrivastava, who contacted him for illegal selection of his son - Gauram Kumar Shrivastava and his nephew - Sam Kumar Shrivastava and paid a sum of Rs.30 lacs for the same. Further, he admitted that he knew Rajendra Tiwari, who paid a sum of Rs.15 lacs for illegal selection of his son - Pralekh Tiwari. In his memorandum Rajendra Kumar Shivhare disclosed that he obtained Rs.45 lacs from the candidates/their relatives towards illegal selection and paid the said amount to Nitin Mohindra.
18. During the investigation by the STF, memorandum of the accused-applicant, Rajendra Tiwari was recorded under Section 27 of the Evidence Act wherein he disclosed that he contacted Rajendra Shivhare, the then DIG for illegal selection of his son, Pralekh Tiwari in the PRT-2012 and a sum of Rs.15 lacs was paid by him to Rajendra Shivhare for the said purpose.
19. It is further case of the prosecution that the names and roll numbers of the accused/candidates Pralekh Tiwari, Sam Kumar Shrivastava and Garurav Shrivastava and the middleman - Rajendra 13 Shivhare and a sum of Rs.45 lacs are mentioned in the excel sheet against the aforesaid three accused candidates.
20. The investigation further revealed that Vyapam officials hatching criminal conspiracy with the middlemen - Rajendra Shivhare and Rajendra Tiwari, manipulated the digital data and OMR answer sheets of the accused/candidate Pralekh Tiwari and provided him marks illegally higher than other candidates in order to secure his selection in the PRT-2012 Examination, which deprived other deserving candidates from getting selected in the said Examination.
21. After conducting requisite investigation, the respondent/CBI filed supplementary charge-sheet against 34 accused persons including the present applicant in respect of the offence punishable under sections 120-B read with 201, 420, 467, 468 and 471 of the IPC; section 13(2) read with 13(1)(d)(iii) of the Prevention of Corruption Act, 1988; section 166 of the Information and Technology Act; and under Section 3-D(1)(2)/4 of the M.P. Recognized Examination Act, 1937 before the Court of Special Judge, CBI (Vyapam Case), Bhopal on 30-11-2018. 14
22. That apart, an excel sheet was found in the Hard Disc "C-1" having names of 21 candidates of the Police Recruitment Examination - 2012 with their roll numbers, names of their sponsors/mediators and the amounts in figure collected from them. In the said excel sheet the name of the accused/candidate Pralekh Tiwari along with the name of the middleman/mediator Rajendra Kuhar Shivhare and amounts were mentioned.
23. In view of the obtaining factual matrix, prima facie the following facts emerge, which need to be appreciated in corroboration of each other :
(i) The name of Rajendra Kumar Shivhare is found mentioned as mediator/sponsor against the name of the accused/candidate Pralekh Tiwari in the excel sheet retrieved from the computer of Nitin Mohindra, Senior System Analyst of Vyapam. The amount paid was also mentioned in the said excel sheet with the name of sponsor Rajendra Kumar Shivhare.
(ii) The said beneficiary/candidate Pralekh Tiwari is the son of the present applicant.
(iii) The applicant and the alleged mediator Rajendra Kumar Shivhave were known to each other and they used to talk to each other over phone, whether it was before or after the PRT-
2012 Examination.
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(iv) The marks of the candidate - Pralekh Tiwari were illegally inflated by way of manipulation in the data and OMR answer sheets.
The above facts and outcome of the investigation conducted by the investigating agency, duly supported by evidence, vividly establish involvement of the present applicant in commission of the offences.
24. For the aforesaid premised reasons, we find that the present case is not a case of no evidence, as prima facie material is there to constitute the necessary ingredients of the offences for which the applicant has been charge-sheeted by the learned Special Judge. The findings recorded by the learned Trial Judge are impeccable and do not warrant any interference in revisional jurisdiction of this Court.
25. Ex-consequenti, the instant revision being sans substratum, stands dismissed.
(Mohammad Rafiq) (Vijay Kumar Shukla)
Chief Justice Judge
ac.
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2021.08.03 17:52:01 +05'30'
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