Gajanan Ramrao Lande vs The State Of Maharashtra
2016 Latest Caselaw 777 Bom

Sherla V.



                                                                        aba.1852.2015_8.doc


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CRIMINAL APPELLATE JURISDICTION




                                                                                    
                      ANTICIPATORY BAIL APPLICATION NO.1851 OF 2015

            1. Gajanan Ramrao Lande




                                                            
            2. Rajiv @ Raju Ramrao Lande                    ... Applicants

                  Vs.




                                                           
            The State of Maharashtra                   ... Respondent

                                          with
                      ANTICIPATORY BAIL APPLICATION NO.1852 OF 2015




                                                  
            Gajanan Ramrao Lande                            ... Applicant

                  Vs.
                                          
            The State of Maharashtra                   ... Respondent
                                         
            Mr.M.K. Kocharekar i/b Pawan Mali for the Applicants in ABA/1851/2015
            Mr.M.K. Kocharekar i/b V.R. Raje Mali for the Applicant in ABA/1852/2015
                   

            Mr.S.K. Shinde, Spl.P.P. With Ms.Rutuja Ambekar, APP, for Respondent -
            State
                



                                                CORAM: MRS.MRIDULA BHATKAR, J.

DATE: MARCH 21, 2016

ORAL ORDER:

1. The anticipatory bail application No.1851 of 2015 is moved by the

applicants-accused Gajanan Lande and Rajiv Lande for pre-arrest bail as

the offence is registered at C.R. No.II-2 of 2015 with the Tarapur police

station, Palghar, at the instance of one Suresh Govindrao Bhamre on

18.10.2015. The anticipatory bail application No.1852 of 2015 is moved

by the applicant-accused Gajanan Lande for pre-arrest bail as the offence

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is registered at C.R. No.II-21 of 2015 with the Manikpur police station,

Palghar, at the instance of one Dinesh Narayan Pashte on 18.10.2015.

Initially the complaints were registered under sections 188 and 120B of the

Indian Penal Code as also under section 7 of the Maharashtra Prevention

of Mal Practices At University, Board and other Specified Examinations

Act, 1982. However, later on, charges under sections 420, 464, 468, 471

of the Indian Penal Code were added.

2. It is the case of the prosecution that both the informants are public

servants. The office of the revenue department wanted to appoint clerks

cum typists in the said department in District Palghar. So, the examination

was conducted on 18.10.2015 afternoon. The candidates who were

appearing for the examination were issued admit cards and they were

instructed not to carry cell phone and other electronic articles with them.

In Anticipatory Bail Application No.1851 of 2015, 216 candidates

appeared for the examination. The invigilator found that one candidate

Sangita Narayan Suradkar had kept cellphone on her lap and it was

seized. There was no message in the phone and therefore she was

allowed to write the paper. The said cellphone was handed over to a

police officer. The examination started at around 11 am. At around

12.45pm, the police constable informed that on her cellphone, answers of

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question paper for which she was appearing were received from one

number 7219038682. Sangita was therefore arrested on the spot and the

cellphone alongwith the SIM card was seized.

In Anticipatory Bail Application No.1852 of 2015, 17 candidates

appeared for the examination at Vartak high school. One candidate by

name Arun Shamrao Gavli entered the examination hall at 10.55 hours.

He was checked by the complainant who was in charge. All the

candidates were informed that they should not keep any cellphone or any

other articles with them. At around 11.30am, the movements of the said

Arun Gavli were found suspicious and on his examination, it was found

that he had tied a cellphone with a rubber band below his knee joint The

video recording of the incident was done and on examination, it was found

that on his cellphone, messages about answers were received from other

cellphone number 9168999354. The candidate Arun Gavli was arrested.

After the arrest, the police investigated the offence and they found that

there was a racket about copying in that examination. The students who

were appearing for the examination were promised that the answers of

questions would be supplied to them by SMS on their respective

cellphones at the time of examination, so that they could clear the

examination and get the job. For that purpose, the applicants/accused

and the co-accused charged Rs.2 lakhs from each candidate.

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3. The learned Counsel for the applicants/accused submitted that the

applicants are innocent. They have not committed any offence. The

allegations against them are false. The names of the applicants is not

mentioned in the FIR. They are not connected in any manner with the

commission of offence. The learned Counsel further submitted that section

7 of the Maharashtra Prevention of Mal Practices At University, Board and

other Specified Examinations Act, 1982 (for short, 'the said Act') is not

applicable in the present cases because the said examination cannot be

said as an 'examination' under the term defined under section 2(b) of the

said Act. He submitted that it is necessary in order to attract the said

offence for the Government to issue a notification in the official gazette

under section 2(b) of the said Act. In the absence of such notification,

section 7 of the said Act, the offence under which is made non-bailable,

cannot be invoked. The learned Counsel has submitted that the

applicants-accused are on interim bail and have attended the concerned

police station and their custody is not required.

4. In support of his arguments, the learned Counsel relied on the

judgment of the Bombay High Court (Nagpur Bench) in the case of Rajiv

@ Raju s/o. Ramrao Lande & anr. vs. The State of Maharashtra

through P.S.O., Buldhana (City), District Buldhana1.

1 Criminal Application (ABA) No.21 of 2015 decided on 3.3.2015

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5. Mr.Shinde, learned Public Prosecutor appearing for the State,

argued that section 7 of the said Act is attracted because it says about the

use of any other unfair means at the time of examination is an offence and

the punishment is only upto 6 months and / or fine u/s 9 of the Act is made

non-bailable. He submitted that issuance of notification in the Government

gazette is not obligatory if the examination is conducted by the authority

which is Collector. He relied on a circular of 2007 issued by the Divisional

Commissioner of Konkan Division, whereby directions are given to the

Collector to conduct the examination. He submitted that the word 'may' is

used in respect of issuance of notification by the Government. Thus, to

issue such notification or not is optional for the government. He submitted

that the examination was declared for the revenue department and,

therefore, it is to be considered that if it is conducted by the Collector, it is

covered under the authority and notification is not required.

6. In support of his submissions, he relied on the judgment in the case

of Chief Settlement commissioner (Rural) Punjab & anr. vs. Ram

Singh & Ors.2.

7. The learned Public Prosecutor, on merit, has submitted that the

applicants-accused and the co-accused have used a very peculiar modus

operandi of commission of this offence. He submitted that in the course of

2 AIR 1987 SC 1834

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investigation, the police found that separate SIM cards were provided by

the accused to the candidates, who agreed to pay money to the

applicants-accused for the copy. These accused alongwith the other co-

accused had visited different villages and promised those villagers that

they would be giving them some government services for which their PAN

card, documents for identity proof were required. The villagers, who

trusted them, handed over their identification documents and thereafter, on

the basis of those original documents of various villagers, the applicants-

accused and the co-accused obtained SIM cards of various cellphone

service providers and then the documents were returned to the villagers.

Thereafter, the students were contacted with a promise that if they paid

Rs.2 lakhs each, they would be supplied answers of the question papers

at the time of the examination, who agreed to pay and wanted to be

beneficiaries of this copy, they were provided separate SIM cards. Thus,

nearly 45 SIM cards were collected and they were provided both the SIM

cards as well as cellphones. After having such kind of networking at the

time of examination hall, through SMS, the answers were provided to the

candidates. He further submitted that Arun Gavali, who appeared in the

examination, was caught red handed as personifying one Mr.Taral, who

was the real candidate supposed to appear for the examination, however,

that person is absconding. He submitted that till today, the police have

registered the offences against 8 accused.

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8. Perused the FIR. After going through the statements of the

witnesses, it is found that the applicants/accused have approached the

villagers. The applicants have handed over the documents to get the SIM

cards. The manner in which the applicants/accused have committed the

offence, prima facie, shows that it was an intelligent plot to provide

different mechanism for copy and earn money. I am of the view that the

applicants/accused are undoubtedly involved in this case and the police

have clues against these applicants. Unless and until their custody is

obtained, the investigation cannot progress. The offence is grave as it is

an examination for the government jobs and recruitment of government

employees.

9. In the case of Chief Settlement Commissioner (supra), the

allotment of land in excess of the lawful entitlement was given and the

Court held that the Rule does not confer a right on the displaced person to

insist that excess land be sold to him. Thus, the choice was given to the

Chief Settlement Commissioner as the word used is 'may' to use various

options towards adjustment and the Supreme Court held that the

expression 'may' in the rule cannot be read as 'shall'. The rule merely

confers a discretion to the Settlement Commissioner (Rural). The Court

held "In our opinion, the interpretation canvassed by the allotees would

defeat the very purpose of Rules".

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10. In the case of Rajiv @ Raju s/o. Ramrao Lande & anr. (supra), the

learned Single Judge of this Court has taken a view that examination is

proposed to be held by the authority specified and notified in the official

gazette by the State and no material was placed on record that such

notification was issued by the State Government in the official gazette and,

therefore, how the section can be attracted is a matter of dispute.

11. Challenge is given under section 7 and it was argued vehemently

that section 7, which is non-bailable, cannot be invoked. Under section 7,

the phrase 'use of any other unfair means' takes care of all mal-practices

or the misdeeds done when the examination is conducted. Though the

punishment is upto 6 months, the offence is made non-bailable because of

the nature and gravity of the offence. At the time of conducting

examination, the degree of sanctity required is very high and, therefore, it

is made non-bailable. The word 'examination' is defined under section

2(b) of the Act. It is as under:

"2(b). "Examination" means any examination held or proposed to be held by any University or the Board and includes such other examination held or proposed to be held by such other authority as may be specified in this behalf, from time to time, by the State

Government by notification in the Official Gazette."

12. The section is clear that if at all the examination is conducted by the

University or Board, then, it is covered under the examination as defined

under the Act. Besides this, when an examination is conducted by any

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other authority than the university and the Board, then, the State

Government may issue notification in the official gazette specifying the

authority and the examination. I cannot accept the submission of the

learned Public Prosecutor that the "Collector" himself is to be considered

as a authority. On plain reading of the section, the legislature did not

intend to give standing authority to the Collector in respect of conducting

examination. "The other authority as may be specified' means that the

State Government has option to issue notification in the official gazette

about the said authority and once such authority is specified in the official

gazette, then, the examination conducted by the said authority, comes

within the sweep of the word 'examination' as defined under section 2(b) of

the Act and then only section 7 of the Act can be attracted. In the absence

of such notification, if the examination is conducted by any authority, then

that examination is valid and legal, however, the said Act cannot be made

applicable to that examination. However, to bring that examination within

the ambit of section 2(b) of the Act, the State Government needs to issue

notification in the official gazette specifying the authority. In the absence

of such notification, the examination cannot be an examination under 2(b)

of the Act and, therefore, if the mal practices have taken place during such

examination, cannot be said as offence as under section 7 of the Act.

Thus, notification issued by the State Government enables to bring the

acts, misdeeds, malpractices committed within the ambit of section 7 of

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the Act. I am in agreement with the learned Prosecutor that the word 'may'

is not to be read as the word 'shall'. The choice is given to the State

Government to issue notification, specifying the authority. If the State

Government does not want to specify the authority, then, if any malpractice

takes place, at the time of conducting of any examination, in the absence

of such notification, those malpractices cannot be said as offences under

section 7 of the Act. Therefore, to that extent, for the interpretation of

section 7, I am with the learned Counsel for the applicants-accused.

However, the prosecution has not restricted the charges only to section 7

of the said Act but has also charged the applicants/accused under

sections 420, 464, 468, 471 of the Indian Penal Code which are non-

bailable. The manner in which the offence is committed, the custodial

interrogation of the applicants-accused is necessary. The absconding real

candidate is also to be traced. As it is a case of cheating, fraud and

forgery, I am not inclined to grant pre-arrest bail to the applicants/accused.

13. In the circumstances of the case, therefore, both the Anticipatory

Bail Applications are rejected.

(MRIDULA BHATKAR, J.)

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