Ashraf Jamal vs State (C.B.I.)
2011 Latest Caselaw 2667 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                   Judgment reserved on: 05.05.2011

%                  Judgment delivered on: 18.05.2011


+                           CRL. REV. P. NO.399 /1999


       ASHRAF JAMAL                                     ..... Petitioner
                             Through:   Mr. S.K. Saxena, Ms. Manisha &
                                        Mr.Praveen, Advocates.

                       versus

       STATE (C.B.I.)                                    ..... Respondent
                             Through:   Mr. Vikas Pahwa, Addl. P.P. with
                                        Mr.Saurabh Soni, Advocate.


CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                        :     No

2.     To be referred to Reporter or not?                     :     Yes

3.     Whether the judgment should be reported
       in the Digest?                                         :     Yes


                                JUDGMENT

VIPIN SANGHI, J.

1. Criminal revision petition, preferred against the impugned

orders dated 10.05.1999 and 06.07.1999 passed by the learned

Metropolitan Magistrate in FIR No. RC 4(S) / 93-SIU-(II)-CBI, by Shri

Anupam Rajan, being Crl. Rev.P.270/1999 has been dismissed by a

separate judgment. Arguments had been heard and judgment

reserved in this petition and Crl. Rev. Pet. No. 270/1999, initially on

21.05.2010. However, the judgment could not be pronounced within a

reasonable period of time due to the heavy work load. Consequently ,

these cases were listed again and the counsels were heard again.

2. The petitioner is a co-accused along with Shri Anupam Rajan.

The case of the prosecution is that the petitioner and Anupam Rajan

appeared in the Civil Services (Preliminary) Examination, 1993 held on

13.06.1993. In the optional paper, both the accused had opted for

Sociology subject. In the examination for the said Sociology paper, it is

alleged that the petitioner and Anupam Rajan swapped their answer

sheets and Anupam Rajan had solved the question paper of the

petitioner Ashraf Jamal and vice versa. It is alleged that by doing so,

the petitioner Ashraf Jamal secured high marks which eventually led to

his being declared pass in the Civil Services (Preliminary) Examination,

1993. Both the accused have been charged for substantive offences

under Sections 420, 468 and 471 IPC and also for conspiracy under

Section 120B read with Sections 420, 468 and 471 IPC. It would,

therefore, be seen that the case against both the accused is the same.

3. The judgment rendered in the case of Anupam Rajan in

Crl.Rev.P.270/1999 substantially covers the case of the petitioner as

the submissions made by the petitioner are substantially the same as

those advanced by the counsel for Anupam Rajan. I, therefore, do not

consider it necessary to record the said submissions of both the sides

once again and to deal with them, as that would be a futile exercise of

repetition. The reasons recorded in the judgment rendered in the case

of Anupam Rajan, in Crl.Rev.P.270/1999, may be read as my reasons

for rejecting the same submissions in this petition as well.

4. Learned counsel for the petitioner-Ashraf Jamal has raised one

additional submission which needs to be considered. It is urged that

there is no direct testimony, or evidence relied upon by the

prosecution in support of its case that Anupam Rajan has solved the

question paper of Ashraf Jamal and vice versa. It is also urged that the

Court is seeking to raise a presumption under Section 114 of the

Evidence Act, which presumption cannot be raised as the presumption

of culpability is itself based on another presumption, namely, that

Anupam Rajan had solved the question paper of the petitioner, and

vice versa.

5. He submits that under Section 10 of the Evidence Act,

anything said, done or written by any one of the persons alleged to be

in conspiracy,in reference to their common intention, is a relevant fact

against each of the persons to be so conspiring, provided there is

independent evidence of existence of the conspiracy to commit an

offence. He submits that there is no independent evidence in this case

of the existence of the conspiracy. The questioned/disputed

documents viz. the answer sheets of Anupam Rajan and Ashraf Jamal

cannot be considered as the independent evidence to establish the

existence of a criminal conspiracy. In this regard, he places reliance on

State of Tamil Nadu Vs. Nalini & Others, 1999 Crl.L.J 3124 and

L.K. Advani Vs. Central Bureau of Investigation, 1997 Crl.L.J

2559. He submits that the Court is expected to look into the broad

probabilities of the case while examining the issue whether, or not,

charge should be framed against the accused on the basis of the

charge-sheet. In this regard, he places reliance upon Niranjan Singh

Karam Singh Punjabi Vs. Jitendra Bhimraj Bijjaya and Others,

AIR 1990 SC 1962.

6. First and foremost, in my view, the aforesaid submissions do

not require to be dealt with at this stage as these issues largely

depend on the evidence that may be led at the trial. However, I may

add that in cases of conspiracy, direct evidence is difficult to find as

the conspiracy is hatched in secrecy. (See Baburao Bajirao Patil V.

State of Maharashtra (1971) 3 SCC 432; Hardeo Singh V. State

of Bihar (2000) 5 SCC 623 and Maharashtra State Board of

Secondary & Higher Education V. K.S. Gandhi (1991) 2 SCC 716).

7. There has to be some prima facie evidence to show that there

was a criminal conspiracy as held by the Supreme Court in Nalini

(supra) and by this court in L.K. Advani (supra). According to the

case of the prosecution, that evidence is available in as much, as, Sh.

Anupam Rajan and the petitioner hail from the same town; they were

studying at the same university; residing in the same hostel; had sent

their forms for the 1993 Preliminary examinations through the same

person, at the same time. Moreover, Sh. Anupam Rajan had taken the

1993 Preliminary examination despite securing the 52nd position in the

1992 examinations.

8. Whether or not these factors would eventually be accepted by

the trial court as independent evidence of the existence of the alleged

conspiracy is yet to be seen. Prima facie, it cannot be said that there

is absolutely no evidence which may, or may not, eventually be

accepted by the trial court to establish the existence of the alleged

conspiracy, against the petitioner and Sh. Anupam Rajan.

9. Whether or not the trial court would raise a presumption

under Section 114 of the Evidence Act against the petitioner and Sh.

Anupam Rajan is too early to say. That stage is not yet arrived.

10. It cannot be said at this stage that the case of prosecution is

not based on common sense or on the broad probabilities of the case.

Accordingly, I find no merit in this petition and dismiss the same.

11. No observation made by me in this order shall prejudice the

case of either party in the course of trial and the trial court shall not be

influenced by anything stated in this order. The prosecution of this

case is expedited as already directed in Crl. Rev. P. No. 270/1999.

(VIPIN SANGHI) JUDGE

MAY 18, 2011 AS/'BSR'