Madhya Pradesh High Court
Vijay Tamare@Bala vs Central Bureau Of Investigation on 9 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
CRA No. 15933 of 2023
(VIJAY TAMARE@BALA Vs CENTRAL BUREAU OF INVESTIGATION)
Dated : 09-05-2024
Shri Siddharth Sharma, learned counsel for the appellant.
Shri Sushil Chandra Chaturvedi, learned counsel for the
respondent/CBI.
Heard on IA No.4137/2024, an application under Section 389(1) of
CrPC is filed requesting stay of impugned judgment of conviction dated
20.12.2023 passed by Learned Special Judge, CBI, Gwalior, whereby appellant
Vijay Tamare @ Bala was convicted for offence punishable under Sections
120-B, 467 read with Section 120-B, 468 read with Section 120-B, 471 read
with Section 120-B, 419 read with Section 120-B and 420 read with Section
120-B of IPC and Section 3(d)(1)(2)/4 Madhya Pradesh Recognised
Examination Act, 1973 read with Section 120-B of IPC and sentenced to
undergo three years' RI with fine of Rs.1,000/-, four years RI with fine of Rs.
5,000/-, three years RI with fine of Rs.1,000/-, four years RI with fine of
Rs.5,000/-, three years RI with fine of Rs.1,000/-, four years RI with fine of
Rs.1,000/- and one year RI with fine of Rs.100/- with default stipulations vide
judgment of conviction and order of sentence dated 20-12-2023 passed by
Special Judge (CBI) and XII Additional Sessions Judge, District Gwalior (M.P.)
in S.C.(CBI) No.03 of 2017.
Learned counsel for the appellant in addition to the grounds mentioned in
the application submits that the sentence of imprisonment of the appellant Vijay
Tamare was suspended vide order dated 19.01.2024 passed on IA
No.23560/2023. There was not even an iota of evidence to implicate appellant -
Vijay for alleged offence. Learned counsel for the appellant submits that initially,
Kartar Singh was charge-sheeted in year 2012. No role was ascribed to the
appellant- Vijay. However, in year 2016, CBI filed charge-sheet after the
investigation, wherein Kartar Singh was made an approver and appellant was
implicated as an accused merely on the basis of statement of Kartar Singh.
Learned Trial Court committed error in believing tented testimony of the
approver. Appellant was made scapegoat to exonerate real culprit i.e. Kartar
Singh. Learned counsel referring to illustration-b of Section 114 of Indian
Evidence Act contends that the evidence of approver must be corroborated on
material particulars. No corroborative evidence to substantiate approver on
material particulars was produced. Learned trial Court ignored these aspects of
the matter and grossly erred in convicting the appellant.
Learned counsel for the appellant further submits that appellant was
serving in CISF for last 8-9 years. He was having good service record. His
service is terminated due to judgment of conviction against him. He is sole
bread earner of the family. He has to look after his wife and four year aged son.
If the conviction is not stayed, it may have adverse impact on service of the
appellant. Therefore, impugned judgment of conviction be stayed during
pendency of this appeal.
Per contra, learned counsel for the CBI opposes the application and
submits that there is no error in impugned judgment of conviction. Learned Trial
Court considering the evidence of Kartar Singh (PW-21) and corroborative
evidence of Rampratap (PW-18) and Bhanupratap (PW-22) convicted the
appellant for the alleged offence for his role of middlemen. The impugned
judgment is well reasoned and passed on the material available on record,
therefore, the application deserves to be dismissed.
Learned counsel for the appellant, during the course of argument, made
statement at Bar that although it is not pleaded in the application, services of
appellant Vijay Tamare stands terminated in view of the impugned judgment of
conviction. Learned counsel submits that if that judgment of conviction is
stayed, the appellant may apply for restoration of his services pending the
decision in the appeal. Learned counsel for the appellant further submits that the
hearing of appeal will take time and the appellant will be unnecessarily deprived
of service benefits. Therefore, in order to prevent injustice, stay of conviction
may be granted.
Heard both the parties and perused the record.
The sentence of imprisonment of the appellant Vijay Tamare was
suspended and he was released on bail vide order dated 19.01.2024 passed on
IA No.23560/2023. No application for suspension of conviction was made at
the time of suspension of sentence of imprisonment. This application is made
later after termination of services of the appellant by CISF. The appellant
desires to take a chance for restoration of his services on the strength of stay of
conviction.
It is trite law that power to stay of conviction under Section 389(1) of
CrPC should be used only in rare and exceptional circumstances where failure
to stay the conviction would lead to injustice and irreversible consequences.
The stay of conviction is not the rule, but is an exception to be resorted in rare
cases depending upon the special facts of the case.
[Navjot Singh Sidhu v. State of Punjab (2007) 2 SCC 574, Ravikant
S. Patil v. Sarvabhouma S. Bagali (2007) 1 SCC 673, Afjal Ansari v.
State of U.P. (2024) 2 SCC 187, K.C. Sareen v. CBI (2001) 6 SCC 584
relied].
In case of State of T.N. v. A. Jaganathan (1996) 5 SCC 329 the
Supreme Court observed that:-
"... conviction and sentence can both be suspended only if non-grant of suspension
of conviction would result in damage which could not be undone if ultimately the
appeal/revision was allowed. On facts, it was found that even if stay of conviction
was not granted, no prejudice would be caused to the convicted person, having
regard to the fact that when the revisions against the conviction and sentences were
ultimately allowed, the damage, if any, caused to the respondents therein with
regard to payment of stipends, etc. could well be revived and made good to them.
This Court noted that if such trifling matters involving slight disadvantage to the
convicted person were to be taken into consideration, every conviction would have
to be suspended pending appeal or revision".
In case of State of Maharashtra v. Balakrishna Dattatrya Kumbhar
(2012) 12 SCC 384, it has been held in Para 15 that :-
"15. ... the appellate court in an exceptional case, may put the conviction in
abeyance along with the sentence, but such power must be exercised with great
circumspection and caution, for the purpose of which, the applicant must satisfy the
court as regards the evil that is likely to befall him, if the said conviction is not
suspended. The court has to consider all the facts as are pleaded by the applicant,
in a judicious manner and examine whether the facts and circumstances involved in
the case are such, that they warrant such a course of action by it. The court
additionally, must record in writing, its reasons for granting such relief. Relief of
staying the order of conviction cannot be granted only on the ground that an
employee may lose his job, if the same is not done."
In case of State of Maharashtra v. Gajanan (2003) 12 SCC 432 and
Union of India v. Atar Singh (2003) 12 SCC 434, the Supreme Court
dealing with the specific situation of loss of job of the appellant, held that it is
not exceptional case for staying of conviction.
In case of Shyam Narain Pandey v. State of U.P. (2014) 8 SCC 909,
it was observed in para 11 that:-
"11.. In the light of the principles stated above, the contention that the appellant will
be deprived of his source of livelihood if the conviction is not stayed cannot be
appreciated. For the appellant, it is a matter of deprivation of livelihood but he is
convicted for deprivation of life of another person. Until he is otherwise declared
innocent in appeal, the stain stands. The High Court has discussed in detail the
background of the appellant, the nature of the crime, manner in which it was
committed, etc. and has rightly held that it is not a very rare and exceptional case
for staying the conviction".
In light of above stated guiding principles, the fact situation of the case in
hand is examined. The detail appreciation of evidence on merits of conviction
cannot resorted at this stage of hearing on interlocutory application. There is no
manifest irregularity or apparent illegality pointed out to assail the judgment of
conviction. The appellant stands convicted for conspiracy in manipulating the
process of Police Constable Recruitment Examination organised by VYAPAM.
The appellant stand convicted for his role as middlemen to organise the solver
in place of actual examinee. This case is one of the cases investigated by CBI to
expose ill-practices in various examinations conducted by VYAPAM, wherein
genuine and bona fide unemployed youth was deprived of their rightful claim to
jobs due to malpractices and manipulation of such miscreants. Thus,
suspension of conviction in such a matter will have adverse impact on the
public perception on integrity of the institution.
Appellant Vijay Tamare stands terminated from service, therefore, the
damage has already been done. It can be undone after judgment on merits in the
appeal, provided it goes in his favour. Therefore, this is not a rare and
exceptional case for staying the conviction.
Consequently, IA No.4137/2024 is dismissed.
(VIVEK RUSIA) (SANJEEV S KALGAONKAR)
JUDGE JUDGE
Vijay
VIJAY
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
TRIPATH
GWALIOR,
2.5.4.20=663cb09dd950bfc3ea7ed4f02
d97ddae5364f1d4b042dbc59921b76e8
12d2d6b, postalCode=474001,
st=Madhya Pradesh,
I
serialNumber=58392D8C4E7C9693BFE
EB5B46B3CA006F1127E89008952BBEC
528CE4D82551BD, cn=VIJAY TRIPATHI
Date: 2024.05.10 17:11:44 +05'30'
