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Gujarat High Court · body

2020 DIGILAW 654 (GUJ)

Pravindan Shivdan Gadhvi v. State of Gujarat

2020-07-30

B.N.KARIA

body2020
ORDER : 1. The present application is filed under Section 439 of the Code of Criminal Procedure by the applicant for regular bail in connection with an FIR being C.R.No.I-233 of 2019 registered with Sector-7 Police Station, District: Gandhinagar for the offence punishable under Sections 406, 409, 420 and 120B of the Indian Penal Code and Section 70 of the Information Technology Act. 2. Learned advocate for the applicant submits that applicant has no knowledge regarding the alleged offence and he has no nexus with the alleged act. He further submits that applicant is resident of Ahmedabad but working as Talati at Panchasar. He further submits that applicant is falsely involved, since wife of the applicant has also appeared in the examination from the school situated in Nikol area from Ahmedabad and not the school in Danilimda Area of Ahmedabad where the paper was leaked and, therefore also, this shows that the applicant is falsely involved in the case. He further submits that since all the accused have been granted regular bail who are the main accused and their role is greater than that of the applicant, even including the Trustees of the school from where the paper has been leaked and, therefore, also on the ground of parity also discretion may kindly be exercised in favour of the applicant. He further submits that no ingredients of the offences punishable under Sections 406, 409 and 420 are made out against the present applicant and by no stretch of imagination it can be said that he was part of any conspiracy of leakage of paper. Lastly, it is requested by learned advocate for the applicant to release the applicant on regular bail. 3. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has strongly objected the arguments advanced by learned advocate for the applicant submitting that from the police papers, prima facie, involvement in the serous offence is established by the prosecution. He further submits that the applicant, however, was serving in Panchasar as Talati cum Mantri who came to the school in the morning on the day of the offence as his wife was to appear in the examination. He further submits that by making conspiracy with co-accused namely Mohd. He further submits that the applicant, however, was serving in Panchasar as Talati cum Mantri who came to the school in the morning on the day of the offence as his wife was to appear in the examination. He further submits that by making conspiracy with co-accused namely Mohd. Faruq and Vijendrasinh Vaghela, present applicant has taken photographs of questions from his mobile phone and thereafter, he was solving the answer of the questions papers and forwarded to the co-accused through whatsapp. He further submits that on the previous day of the examination, present applicant had a meeting with other co-accused Mohd. Faruq and Vijendrasinh Vaghela at Danilimda for the purpose of leakage of the question papers. He further submits the location of the present applicant and other two co-accused persons was found at Danilimda and on the day of the examination, paper was leakage and mobile tower location of present applicant was found at Danilimda. He further submits that on 17.11.2019, on the day of the examination, the applicant was in contact with the co-accused at 11 times and Vijendrasinh Vaghela at 9 times as well as Lakhvindrasingh at 12 times. Learned APP for the respondent-State has referred the statement of Yasinbhai Yakubbhai Kakuvala dated 17.12.2019 and the statement of Bhavnaben wife Pravindan Shivdan Gadhvi dated 12.06.2020 and submitted that while appearing in the examination at 11:00 a.m. in the morning, her husband has given sim-card. That on a mobile phone, answers of the questions were written by present applicant and therefore, she entered into examination hall. That, other co-accused were released on bail by the Court and investigation was over and charge-sheet was filed. That, role of the applicant is graver rather than the role played by other co-accused, who have been released on bail and investigation is in the progress and charge-sheet is not filed. He further submits that broken mobile phone was produced by the applicant during the course of investigation and Dipak Joshi was asked to call the Investigating Officer as Gauravbhai. Therefore, prayer made by the present applicant cannot be considered by this Court. Hence, it was requested by learned APP for the respondent-State to reject the application preferred by present applicant. 4. I have heard learned advocates appearing on behalf of the respective parties. 5. Therefore, prayer made by the present applicant cannot be considered by this Court. Hence, it was requested by learned APP for the respondent-State to reject the application preferred by present applicant. 4. I have heard learned advocates appearing on behalf of the respective parties. 5. Having considered the facts of the case, perused the record produced by the learned advocate for the applicant as well as learned APP for the respondent-State, in the facts and circumstances of the case and considering the fact that the nature of allegations made against the applicant in the FIR, it appears that complaint was filed, wherein it was alleged that Exam (Written Test) of Clerk Grade-III (other than Sachivalaya) was scheduled to be held on 17.11.2019 in 33 districts at 3173 Centers in the State of Gujarat. That Additional Resident Collector was appointed as the Chief Coordinator and the District Education Officer was also appointed as Coordinator. It is also alleged in the complaint that the Education Officer was appointed as Administrator for each center mainly from Principals of School and/or Professors at College. The entire procedure was stated in the FIR and as per the said procedure, examination was conducted. Thereafter, the Government received a complaint about leakage of the paper and therefore, Special Investigating Team (S.I.T.) was appointed and upon information, the Government has decided to cancel the examination. With the allegations of the conspiracy against the unknown persons, FIR came to be filed. It appears that pursuant to the FIR, Principal, Administrator of Danilimda S.M. Public School were arrested and several other persons came to be arrested on the basis of suspicion. It also appears that one of the co-accused namely Vijendrasinh @ Vijaysinh Narendrasinh Daulatsinh Vaghela, Principal of Danilimda School was also one of the candidates in the aforesaid examination conducted by the Board and was released by the Court in Criminal Misc. Application No.7246 of 2020 dated 12.06.2020. Before releasing him on regular bail, he was enlarged on temporary bail as per the observation of this Court (Coram: Hon'ble Mr. Justice Vipul M. Pancholi). It also appears from the record of this case that co-accused namely Dipak Joshi was released on bail by the Court (Coram: Hon'ble Mr. Justice A.J. Desai) in Cr.M.A. No.6788 of 2020 vide order dated 02.06.2020. Another co-accused namely Rambhai Nareshbhai Mulubhai Gadhvi was also released on regular bail by this Court (Coram: Hon'ble Mr. Justice Vipul M. Pancholi). It also appears from the record of this case that co-accused namely Dipak Joshi was released on bail by the Court (Coram: Hon'ble Mr. Justice A.J. Desai) in Cr.M.A. No.6788 of 2020 vide order dated 02.06.2020. Another co-accused namely Rambhai Nareshbhai Mulubhai Gadhvi was also released on regular bail by this Court (Coram: Hon'ble Mr. Justice Vipul M. Pancholi) in Cr.M.A. No.2605 of 2020 vide order dated 04.03.2020. It also appears that another coaccused namely Mohd. Faruq Abdul Vahab Kureshi preferred one Cr.M.A. No.6178 of 2020 and vide order dated 05.05.2020, this Court was pleased to release him on regular bail. The above said accused persons were appointed as Centre Manager at M.S. Public School, Danilimda and they were allegedly involved in the leakaging the papers. It also appears from the record that another co-accused Lakhvindersingh Gurnamsingh Siddhu was also released on regular bail vide order dated 05.05.2020 passed in Cr.M.A. 6118 of 2020. It appears that previously, applicant was also apprehending his arrest and present applicant preferred anticipatory bail before the Sessions Court concerned, which was rejected. Thereafter he referred Cr.M.A. No.3519 of 2020 before this Court but same was permitted to withdraw vide order dated 04.03.2020. As per the submissions made by learned advocate for the applicant, due to pandemic COVID-19 and lockdown, he did not surrender to the judicial custody and thereafter, he preferred an anticipatory bail before this Court wherein notice was issued and matter was fixed for hearing on 18.06.2020. Meanwhile, he was arrested on 11.06.2020 and remand was sought by investigating officer, which was granted for five days vide order dated 12.06.2020 by learned Magistrate. Thereafter, he was sent to judicial custody. It is true that charge-sheet is not filed by the investigating officer and investigation is in the progress. Looking to the role played by the present applicant and role played by other co-accused particularly Mohd. Faruq Abdul Vahab Kureshi and Vijendrasinh @ Vijaysinh Narendrasinh Daulatsinh Vaghela as both of them are released on bail by this Court as discussed above. There is no allegation against the present applicant by the prosecution, that any monetary benefit was received by present applicant by leakaging the papers except the answer forwarded to his wife. Benefit of parity would required to be given to the present applicant looking to the facts and circumstances of the present case. There is no allegation against the present applicant by the prosecution, that any monetary benefit was received by present applicant by leakaging the papers except the answer forwarded to his wife. Benefit of parity would required to be given to the present applicant looking to the facts and circumstances of the present case. I am of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail. 6. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being FIR being C.R.No.I-233 of 2019 registered with Sector-7 Police Station, District: Gandhinagar on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that the applicant shall; [a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injurious to the interest of the prosecution; [c] surrender passport, if any, to the lower court within a week; [d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned; [e] furnish latest and permanent address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court; [f] mark presence before the concerned Police Station fortnightly between 11:00 a.m. and 2:00 p.m. till filing of the charge-sheet. 7. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. 8. Rule is made absolute to the aforesaid extent. 9. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. 8. Rule is made absolute to the aforesaid extent. 9. This order be communicated to the applicant through Jail Authorities by the registry as well as learned Sessions Court concerned.