Baraiya Rameshbhai Kamalshibhai vs State Of Gujarat
2023 Latest Caselaw 6897 Guj

                                                                                      NEUTRAL CITATION




     R/CR.MA/10244/2023                               JUDGMENT DATED: 18/09/2023

                                                                                       undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/CRIMINAL MISC.APPLICATION NO. 10244 of 2023

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR                       Sd/-
==========================================================

1      Whether Reporters of Local Papers may be allowed                   YES
       to see the judgment ?

2      To be referred to the Reporter or not ?                            YES

3      Whether their Lordships wish to see the fair copy                  NO
       of the judgment ?

4      Whether this case involves a substantial question                  NO
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

==========================================================
                          BARAIYA RAMESHBHAI KAMALSHIBHAI
                                        Versus
                                  STATE OF GUJARAT
==========================================================
Appearance:
MR ND NANAVATI, Senior Counsel assisted by MR APURVA R
KAPADIA(5012) for the Applicant(s) No. 1
MR LB DABHI, APP for the Respondent(s) No. 1
==========================================================
    CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                                  Date : 18/09/2023
                                  ORAL JUDGMENT

1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11198068230274 of 2023 with Bharatnagar Police Station, Bhavnagar City for the offences punishable under Sections 406, 419, 420, 465, 467, 468, 471 and 120B of the

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

Indian Penal Code, 1860 and under Sections 66(D) of the IT Act and Sections 12(1), 12(3) and 12(4) of the Gujarat Public Examination (Prevention of Unfair Means) Act.

2. Mr. N.D. Nanavati, learned Senior Counsel assisted by Mr.Apurva Kapadia, learned advocate for the applicant submits that the applicant has falsely implicated in the offence and he has nothing to do with it. It is submitted that a co-accused with a similar role has been granted bail by the Coordinate Bench of this Court. Therefore, the present applicant is entitled to bail on the ground of parity, as there is no specific role attributed to the applicant in the complaint and no material available that connects the applicant to the offence.

2.1 It is further submitted that whatever allegations leveled against the present applicant are based on the statement of a co-accused, which has no prudential value. It is submitted that the allegations leveled against the present applicant are based on the claim that they hatched a criminal conspiracy, fabricated documents, manipulated photographs of various students/incumbents using a laptop, and arranged for dummy persons to take exams in place of the original students/incumbents for the sake of earning money. However, there is currently no evidence to substantiate any transactions related to these allegations. It is further stated that the statement of co-accused Mahesh

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

Baria, who also appears as a dummy candidate, has not been recorded so far, while the whereabouts of the other two co-accused, namely Hiren Pandya, Dhruv Dave and Mahesh Baria, are unknown. It is submitted that the present applicant is a teacher, and there is no reason to believe that he would not cooperate in the investigation.

2.2 It is further submitted that in the Call Detail Records (CDR), the prosecution has attempted to implicate the accused by showing that he had conversations with another co-accused person, who happens to be his maternal uncle. However, there is no evidence proving that these conversations are related to the alleged conspiracy. Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail.

2.3 Learned Senior Advocate for the applicant, on instructions, states that the applicant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for his remand. He would further submit that upon filing of such application by the Investigating Agency, the right of

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

applicant accused to oppose such application on merits may be kept open.

3. Learned APP appearing for the State has vehemently opposed the present application and submitted that this is not a fit case for consideration on the ground of parity, as the present applicant is directly involved in the offense. It is submitted that in the earlier bail application allowed by the Coordinate Bench of this Court for accused- Bhavesh, his name was mentioned in the complaint based on the statement of a candidate named Jayeshbhai. However, Jayeshbhai's statement was not recorded. Subsequently, significant progress has been made in the investigation since then, including the arrest of one of the co-accused and the recording of his statement. In his statement, the co- accused has alleged that the present applicant arranged a dummy candidate in place of the original candidate, and a dummy candidate was also arranged to take for the examination in his place. Upon considering these facts and investigative papers, it has become evident that the present applicant played an active role in the offense.

3.1 It is further submitted that, the applicant hatched a conspiracy and engaged in fraudulent activities in competitive examinations conducted by the Government of Gujarat and in other Competitive Examinations for government service/employment, including the preparation

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

of forged and concocted documents and manipulation of candidate photographs. It is submitted that the accused persons who appeared in place of the original candidates are absconding, and one candidate named Dhruv Dave, who appeared as a dummy candidate, is also not currently traceable, though he is in police department. It is submitted that if the application is allowed, it would clearly adversely effect the investigation and custodial interrogation is required. Earlier accused was granted bail on the different ground, herein the case of applicant and role is also different, therefore, he is not entitled to claim benefits of parity. Thus, he has opposed grant of anticipatory bail looking to the nature and gravity of the offence.

4. Having heard the learned advocates for the respective parties and having gone through the evidence produced on record, it appears that the present complaint has been filed at the instance of Police Officer Mr. B.H. Singarkhiya (LCB) Bhavnagar. In this complaint, it is alleged that between the years 2012-23, the accused persons hatched a criminal conspiracy in competitive examinations conducted by the Government of Gujarat, as well as other competitive examinations. The applicant, named in the FIR, is alleged to have hatched this conspiracy and arranged for a dummy candidate to take the place of the original candidate who was scheduled to appear in government-conducted competitive examinations. This was done by creating

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

manipulated documents, including hall tickets, fake ID cards, with the help of laptops, in order to appear dummy candidates in competitive examination, in place of original incumbent.

5. The Court has to consider the involvement of the accused in the alleged offence and as to whether prima facie it appears that accused has committed an offence, is required to be considered. So far as the anticipatory bail is concerned, the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case and the following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses and threat to the complainant of the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations are required to be considered.

6. The applicant is facing charges of criminal conspiracy and has also created forged and fabricated documents. He

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

played an active role as an agent in various competitive examinations conducted by the State of Gujarat from 2019 to 2022 and also these examinations include: (i) Gram Sevak.

(ii) Examination of Peon in the Gujarat High Court; (iii) Forest Department; (iv) Talati Examination; (v) Sanitary Inspector Examination; (vi) Examination of Live Stock Inspector; (vii) Examination of Peon in Bank of Baroda; (viii) TAT-I and TAT-II (For Sachivalaya 2022 Clerk); (ix) Examination of Head Clerk in the Post Office, etc. It is needles to say taht in the cae of conspiracy hardly direct evidence would be available and it also may be inferred from the present circumstances.

7. The present applicant and other co-accused actively engaged in unlaful activity by using such unlawful means in such various examinations for the governemnt job or employment. It is also evident that they were involved in illegal activities, securing jobs for candidates who did not appear or qualified by using dummy candidates. For all these actions, they gained huge money and shared a portion of said amount with their gains with the dummy candidates. In the present case, Rs.8,00,000/- has been received for the dummy candidate and for the clearance of examination.

8. At the time of deciding the bail application, the Court should refrain from appreciating the evidence. However, considering the submissions made by the learned advocates for the respective parties and the fact and specific stand

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

taken by the applicant to extend the benefit of parity as the Co-ordinate Bench of this Court has granted bail to the co- accused. Hence, this Court has considered the material collect during the course of investigation with a view to examine the applicability of parity. The reference is required to be in the case of Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana, reported in AIR 2021 SC 221, while the Hon'ble Apex Court held that when deciding a bail application and extending the benefit of parity, the Court has to examine the exact role attributed to the accused. If the accused played a similar role, then the Court should extend the benefit of parity. Merely some words or any observation made in the order are not enough, such approach is erroneous and inappropriate for considering the benefit of parity. Thus, the applicant is not entitled to claim benefit of parity considering his role and involvement in the offence.

9. In so far the ground of parity is concerned, in the present case, prima facie, role and involvement of the applicant reveals from the investigation papers as the co- accused Bhavesh has been released on bail by the Coordinating Bench of this Court, it is imperative to clarify that the case of the present applicant is significantly different from that of accused Bhavesh. This is because, in the absence of any substantial evidence, the implication of accused Bhavesh in the offense was primarily based on the

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

statement of another accused. At that time, there was no concrete reason to detain him, especially considering that most of the accused were absconding, the investigation was in its preliminary stages, and the Investigating Officer had to collect valuable evidence at that relevant point of time.

10. However, in the present case, after going through the Investigating Officer's affidavit, it is prima facie evident that significant progress has been made in the investigation after May 2023. An accused, namely Hiren Pandya, who was a candidate and on whose behalf another dummy candidate participated in the examination, he has been arrested, and his statement was been recorded. However, another co- accused Dhruv Dave, who is employed in the Police Department and appeared in the examination in his place, is still out of reach, though he is serving in police department. In the statement, co-accused Hiren Pandya elaborates on the role of the present applicant, and from the other evidence placed on record which is substantial and it becomes apparent that the present applicant actively participated as an agent and payed an active role in commission of offfence. Furthermore, it is also disclosed during the investigation that prior to this offense, the applicant had played an active role in many government competitive examinations. In the early stages of this case, no sufficient evidence collected because the investigation was in its preliminary stage. However, there is now

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

substantial progress in the investigation and sufficient material available on record that, prima facie, connects the present accused with the offence.

11. In so far the examination is concerned, misconduct, misbehaviour and the malpractices and cheating is required to be dealt with strictly. The purity of the examination is of paramount consideration and in the competitive examination where many incumbent candidates burn their midnight oil to secure the government job and they are eagerly waiting for the government jobs, they are ultimately deprived due to such unscrupulous elements and their dishonest activity and malpractice.

12. The Hon'ble Apex Court in the case of Director (Studies), Dr. Ambedkar Institute of Hotel Management, Nutrition & Catering Technology Chandigarh and Ors. vs Vaibhav Singh Chauhan, reported in (2009) 1 SC 59, in substainal part of para 12 held as under:

"12. We are of the firm opinion that in academic matter there should be strict discipline and malpractices should be severely punished. If our country is to progress we must maintain high educational standards, and this is only possible if malpractices in examinations in educational institutions are curbed with an iron hand."

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

13. Considering the aforementioned aspects, it appears that from many years, the accused persons have been involved in such illegal acitivity and compromising the integrity and sanctity of competitive examinations conducted by the State Government and other examinations by leaking papers or engaging dummy candidates involved in unfair and fraudulent activities. As a result of these unfair and unlawful activity, the applicant and accused persons have also shaken the public confidence and given challneged to the system in maintaining parity of examiantion and in chosen competent and qualfied incumbents for the government jobs. Due to such unscrupulous activity, those individuals who are not qualified for the jobs and unfit to secure government employment, though through dishonest means and illegal activities, they have secured the government employment. It is needless to say that for the government jobs, integrity, honesty and devotion to duty are basic virtues and prime considerations for the selection. Incumbents, who enter into government service through dishonestly and unfair means pose a significant risk to the entire administration of the government over the time.

14. The present applicant is a teacher, and being a teacher, he is supposed to and expected that he has to maintain integrity and high moral and values. However,

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

being a teacher, the applicant is involved in such illegal activities and if he is protected, then negative message would travel to the society.

15. Considering the aforesaid fact and keeping in the mind and after going through the investigation papers, prima facie, it appears that the present applicant is actively involved in the offense. He has arranged for dummy candidates, as evidenced from the statements of the co- accused/candidates and witnesses. Furthermore, two candidates/dummy candidates are still absconding and if bail is granted, then it may adversely affect the case of prosecution as investigation is at prelimianry stage. This Court has considered the interest of the prosecution and the applicant's personal liberty, it cannot overside the larger public interest and accused facing charge of conspiracy. Prior to give weightage to personal liberty, the Court has to strike balance between personal liberty and a larger interest of society.

16. Even, accused cannot claim parity on that basis as discussed in the earlier part of the order and while granting the bail must focus on the role of accused and said protection is granted in the anticipatory bail. Without proper investigation, it is impossible to unearth the large scale

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

scam, the syndicate and to find out the modus operandi, if bail is granted at this primary stage, which would amount to premium to unethical and immoral personality due to such act of accused persons faith of Government and people and recruitment agency also has been shaken. The public confidence in the system undermines, keeping in mind sensitivity of matter and if in cavalier fashion benefit of parity extended or bail gratned, then not only wrong message will travel in the public but hamper the investigation and tampered with an evidence which is nothign but amounts to premium to wrongdoers.

17. In so far the statement of co-accused is concerned,it provides clues to the investigating agency as to how to investigate the case and thereafter the investigating officer has to collect evidence against the person who has been named as the accused. In the light of the above provisions, there is no bar on considering the statement of co-accused for investigation purposes. At this stage, it is relevant to note that this Court has observed in the case of Mohmed Salim abdul Rasid Shaikh v. State of Gujarat, reported in 2001(2) GLR 1580, in para 12, as under:

"...It is pertinent to note that the prosecution case rests mainly on circumstantial evidence and police has received a clue against the present applicant from the statement of co-

accused, already arrested. Irrespective of the fact that

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

statement of co-accused to police is not admissible in evidence before the Court, but police can certainly consider that statement as a clue while interrogating him further or other persons arrested or interrogated during the course of investigation..."

17.1 Further, in the case of Mohammed Fasrin v. State Rep. By the Intelligence Officer, rendered in Criminal Misc. Application No.296 of 2014, the Hon'ble Supreme Court observed as under:

".......The confessions of a co-accused gives a clue to the investigating authorities as to how to investigate the matter and against whom to investigate the matter. Thereafter, it is for the investigating officers to collect evidence against the said person who has been named by the co- accused....."

17.2. Hence, the argument put forth by the learned advocate for the applicant, which suggests that the evidence against the present applicant consists solely of statements made by co-accused individuals, it is essential to emphasize that in cases where the accused is charged with conspiracy, the statements of co-accused are indeed relevant. Furthermore, these statements have the value to offer leads clue for further investigation. Hence, argument canvassed by the learned advocate is not sustainable.

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

18. In aforesaid backdrop, custodial interrogation is necessary. When serious offences are disclosed and involvement of an accused prima facie established then, the Court would be loath to lean in favour of grant of pre-arrest bail in absence of any other overriding considerations. The alleged offence is in nature of white collar and socio- economic offence, this Court is conscious with the safeguards provided under Section 438 of the CrPC and concept of the personal liberty. But herein, I am of the considered of view that, the present offence is committed very smartly which is not just an offence against any individual rather the largest societal interest and public welfare is involved at and in such circumstances, the delicate balance is required to be maintained between two rights one against the personal liberty and second is societal interest. Arrest is part of the process of investigation and intended to secure several purposes. In which the accused may provide information, during the the discovery of material facts and to relevant information.

19. In such circumstances, when investigation is in preliminary stage if, anticipatory bail is granted may hamper the investigation and to collect the material in the more information, and find out the involvements of another person custodial interrogation is also necessary, therefore, keeping in mind the law laid down by the Honourable Supreme Court in the case of (i) State Rep. by the CBI V/s Anil Sharma

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

reported in 1997 (7) SCC 187, (ii) Adri Dharan Das V/s State of W.B. reported in 2005 (4) SCC 303 and (iii) P. Chidambaram V/s Directorate of Enforcement reported in AIR 2019 SC 4198, wherein the Hon'ble Supreme Court has held held as follows:

"The legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest.

Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation.

It may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. In this view, it cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant/applicant under Article 21 of the Constitution of India.

Consequently, power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. The privilege of the pre- arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. Anticipatory bail is to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy".

Having regard to nature of allegations and stage of investigations, held investigating agency must be given sufficient freedom in process of investigation. Appellant not entitled to anticipatory bail as the same would hamper the investigation".

19.1 Further, in the case of Pratibha Manchanda vs The State of Haryana, reported in AIR 2023 SC 3307, wherein the Hon'ble Apex Court has held in Para 19 as under:

19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

also presents challenges in maintaining a delicate balance between individual rights and the interests of justice.

The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."

20. Further, keeping in mind Law laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre V/s State of Maharashtra and Others reported in (2011) 1 SCC 694. Herein, I have gone through the material available against the accused very carefully and it appears that herein, no complaint has been made with view to humiliating or tarnish the image of the present applicant. Even in Jai Prakash Singh V/s State of Bihar and another, reported in (2012) 4 SCC 379, Honourable Supreme Court pleased to hold:

"Parameters for grant of anticipatory bail in a serious offenceare required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."

21. The object of anticipatory bail is that person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. In present case, no any such sort of allegation or bias is found out it is needless to say that order under Section 438 of the CrPC is not a passport to the commission of trial nor a shield against any serious accusation, which adversely affects the society

22. This Court is of the considered view that if the present accused is equipped with protective order, it would obviously adversely affect the case of the prosecution and the qualitative investigation as applicant is having trained legal mind and he will tamper with evidence and witnesses of prosecution and here two accused are still out of reach, who are directly connected with the present accused and other co-accused.

23. In the above facts and circumstances and considering the observations on the legal aspect of the matter, this Court has absolutely no doubt that if applicant is equipped with such an order before he is interrogated by the Police, it

NEUTRAL CITATION

R/CR.MA/10244/2023 JUDGMENT DATED: 18/09/2023

undefined

would greatly harm the investigation and would impede the prospects of unearthing all the ramifications involved in the conspiracy. Having considered nature and seriousness of the charge, prima facie involvement of accused and possibility of tempering with evidences, it does not appear to be just and proper to exercise the discretion in favour of the applicant and accordingly, the application for anticipatory bail is dismissed. Rule discharged.

Sd/-

(HASMUKH D. SUTHAR,J)

ALI