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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.Y. Kogje, J.
Yashwantkumar Hiralal Patel - Applicants
Vs.
Babubhai Maganbhai Prajapati & Ors. - Respondents
Criminal Misc. application (For Cancellation of Bail) No. 14209 of 2017
Decided On : 01-09-2017
Education Law – Code of Criminal Procedure, 1973 – Section 439(2) – Indian Penal Code, 1860 – Sections 379, 120(B), 201, 409, 114 and 36 – Information Technology Act – Sections 66, 66(E) and 72 – Gujarat Secondary Education Act – Section 43 – Seeking cancellation of Bail – Examination – Offence of Theft – English question paper has gone viral on social media of WhatsApp and that such question of paper was widely circulated much prior to the scheduled time of the examination – Upon probing, it was found that the question paper of one Panchsheel High School of Lunawada has been leaked – Investigation commenced after the filing of the FIR, and by a report it had surfaced that it was a well planned conspiracy by the employees of the school, which were the centers for conducting the examination – Held, It is also now on evidence that the respondents were holding vital and sensitive post through whom the question papers in sealed covers were to pass from the Education Department to the Zonal Office and from Zonal Office to the concerned centers where the examination was to be held – It is now evident on record that respondents have removed the question papers from the sealed covers, taken photographs of all the pages of such question papers, placed the question papers back in the sequence in the sealed cover reapplied the seals and then forwarded to the concerned center for distribution amongst the students – After having photographed such question papers, the same was circulated by use of information technology and electronic device – It is also found that the questions from the leaked question papers were answered and even the answers thereafter, have been circulated to the students attempting the examination and all these things have been done prior to the actual conduct of examination at 10 AM – Evidence in the form of FSL report indicates that the file containing the photographs of the question paper has been generated much prior to the actual time of examination when the question papers were supposed to be released from the sealed cover and these question papers were found in the electronic device belonging to the respondents accused persons – Sessions Court has also committed an error in disregarding the objection in the form of affidavit filed of the Investigating Officer, which clearly devout a specific role played by the respondent accused and mentioned in the preceding paras disregarding objections and not referring to the role of the accused in the offence amount to non application of mind. Therefore, the discretion exercised upon such non application is a discretion not exercised judiciously – Directions issued – Application is partly allowed. (Paras 23, 24, 30 and 31)
A.Y. KOGJE, J.
Rule. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent-State and learned advocate for the respondent waives service of notice of Rule on behalf of the respondents No. 1.
2. This application is filed for cancellation of bail under Section 439(2) of the Code of Criminal Procedure against the order dated 06.05.2017 passed by the Sessions Judge, Mahisagar at Lunawada in Criminal Misc. Application No. 67 of 2017 by which respondent No. 1 has been enlarged on regular bail in connection with C.R No. I-36 of 2017 registered with Lunawada Police Station for the offences punishable under Sections 379, 120(B), 201, 409, 114 and 36 of the Indian Penal Code, and Sections 66, 66(E) and 72 of the Information Technology Act, and Section 43 of the Gujarat Secondary Education Act.
3. In the FIR, the gist of allegations are as under:-
4. The FIR is registered on 24.03.2017 by the applicant in his capacity as the District Education Officer of Mahisagar District and it is in connection with the examination of the SSC/HSC Board, which commenced on 15.03.2017 all over Gujarat.
5. The entire State is divided in zone and each zone is divided into centers where the actual examination is to be conducted. The question papers are distributed from the Zonal Office to reach the centers for examination under the supervision of the functionaries of the Education Department as well as police personnels.
6. On 24.03.2017, the examination for SSC of subject of the English was scheduled and the time for examination was 10 AM to 1 PM. While on duty, the informant received information from the Deputy Director of the Board from the capital Gandhinagar informing him about the fact that the English question paper has gone viral on social media of WhatsApp and that such question of paper was widely circulated much prior to the scheduled time of the examination. Upon probing, it was found that the question paper of one Panchsheel High School of Lunawada has been leaked. It is in this circumstance, the FIR came to be filed.
7. The investigation commenced after the filing of the FIR, and by a report dated 18.04.2017 it had surfaced that it was a well planned conspiracy by the employees of the school, which were the centers for conducting the examination. Hence, the relevant Sections of the Indian Penal Code and the Information Technology Act were also invoked. As the investigation progressed, the names of the persons who had committed the offences at their level also surfaced and subsequent reports on 19.04.2017 and 20.04.2017 were submitted for adding of relevant Sections of the Gujarat Secondary Education Act, and Section 36 of the Indian Penal Code alongwith the names of the accused persons, which surfaced during the course of the investigation.
8. While the investigation was in progress, the respondent No. 1 moved an application for regular bail and in response to the application, the Investigating Officer submitted an affidavit objecting to grant of the bail wherein the Investigating Officer in detail brought on record the role of the respondent which is as under:
(1) The accused Ramanbhai of this case is working as a clerk in Sarvoday High School, Munkhosla since last ten years and during SCC examination of 10th Standard, he was discharging duty as administrative employee of examination center at the above mentioned school. His main duty was to maintain confidentiality of important details of examination of 10th standard. But, he hatched conspiracy of this offence being guided by some main conspirator supporting him and in order to succeed in the conspiracy, he requested Zonal Officer and accused of this case Prahladbhai Rana through Assistant Zonal Officer and accused of this case Babubhai Prajapati of Dahod Zone to appoint accused Hitendra Prajapati herein as Government Representative of Sarvoday Munkhosla High School where he was working. Thereafter, on the day of examination out of the paper sets rece
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