Back
2019 Supreme(MP) 105
HIGH COURT OF MADHYA PRADESH
(DIVISION BENCH)
S. K. Seth, CJ and Vijay Kumar Shukla, J.
Central Bureau of Investigation (Vyapam Cases), Bhopal
v. Chandra Kant Mishra
Criminal Revisions No. 3695 and 3696 of 2018 (Jabalpur); against the order dated 7.5.2018 passed by the IX Additional Sessions Judge/Special Judge, CBI (Vyapam Cases), Bhopal in S. T. No. 704/2014; Decided on 6.3.2019
J. K. Jain, Assistant Solicitor General for applicant;
Qasim Ali for non-applicants.
Headnote:(1) Criminal P. C., 1973 -- S.397 -- revision against interlocutory order -- trial Court directed investigating agency to furnish mirror images of HDDs to accused/non-applicant -- though order is interlocutory, but regard being had to tenor, effect and impact of the order, it is the semblance of final order -- revision is maintainable. 2018 (2) JLJ 94 = AIR 2018 SC 2039 followed. [Paras 13 to 15
(2) Criminal P. C., 1973 -- S.207 -- accused/non-applicant could not demonstrate how the mirror images of HDDs would be relevant in his case -- besides, relevant materials have already been supplied -- trial Court erred while directing investigating agency to furnish mirror images of HDDs.
Vide impugned order dated 7.5.2018 the trial Court on oral submission of the defence counsel of the non-applicant, was pleased to direct the CBI to supply to the accused/non-applicant, the mirror images of the HDDs C-1 & G-1.
Held : The applicant has already supplied relevant portion of the HDDs C-1 & G-1 to the accused/non-applicant. They have also supplied list of documents along with CFSL report, soft copies of the files and other ancillary documents. Learned counsel appearing for the non-applicant could not demonstrate before this Court as to how the mirror images of HDDs C-1 & G-1 would be relevant in his case. Besides, relevant materials, as stated by the investigating agency, have already been supplied to the accused persons qua non-applicants. The learned trial Court has erred while directing the applicant to furnish mirror images of HDDs C-1 & G-1. AIR 1964 SC 286 and AIR 1957 SC 737 discussed. (2017)4 SCC 490 and 148(2008) DLT 289 distinguished.
¼1½ naM izfØ;k lafgrk] 1973 && /kkjk 397 && varoZrhZ vkns'k ds fo#) iqujh{k.k && fopkj.k U;k;ky; us ,pMhMh dh fejj best vfHk;qDr@vukosnd dks nsus dk vUos"k.k vfHkdj.k dks funs'k fn;k && ;|fi vkns'k varoZrhZ gS] rFkkfi vkns'k ds izdV 'kCn] izHkko vkSj ifj.kke ns[krs gq,] og vafre vkns'k ds lkn`'; gS && iqujh{k.k pyus ;ksX; gSA 2018¼2½ ts ,y ts 94 ¾ , vkb vkj 2018 ,l lh 2039 vuqlfjrA ¼iSjk 13 ls 15
¼2½ naM izfØ;k lafgrk] 1973 && /kkjk 207 && vfHk;qDr@vukosnd iznf'kZr ugha dj ldk fd ,pMhMh dh fejj best mlds ekeys esa fdl izdkj lqlaxr gkasxh && blds vfrfjDr] lqlaxr lkexzh igys gh iznk; dh tk pqdh gS && fopkj.k U;k;ky; us vUos"k.k vfHkdj.k dks ,pMhMh dh fejj best nsus dk funZs'k nsdj xyrh dhA
vkf{kIr vkns'k fnukad 7-5-2018 }kjk fopkj.k U;k;ky; us vukosnd ds izfrj{kk dkmUlsy ds ekSf[kd fuosnu ij] dsanzh; vUos"k.k C;wjks dks] ,pMhMh lh-1 ,oa th-1 dh fejj best vfHk;qDr@vukosnd dks iznk; djus dk funs'k fn;kA
vfHkfu/kkZfjr % vkosnd us igys gh ,pMhMh lh-1 ,oa th-1 dk lqlaxr va'k vfHk;qDr@vukosnd dks iznk; dj fn;k gSA mUgksaus lwph nLrkost ds lkFk dsanzh; U;k;kyf;d iz;ksx'kkyk fjiksVZ] Qkbyksa dh lkWV izfr;k¡ rFkk vU; vuq'kaxh nLrkost Hkh iznk; dj fn, gSaA vukosndx.k dh vksj ls milatkr fo}ku dkmUlsy bl U;k;ky; ds le{k iznf'kZr ugha dj lds fd ,pMhMh dh fejj best muds ekeys esa fdl izdkj lqlaxr gksaxhA blds vfrfjDr] tSlk vUos"k.k vfHkdj.k }kjk dFku fd;k x;k gS] lqlaxr lkexzh igys gh vfHk;qDr O;fDr;ksa] ;Fkk vukosndx.k dks iznk; dh tk pqdh gSA fo}ku fopkj.k U;k;ky; us vUos"k.k vfHkdj.k dks ,pMhMh dh fejj best nsus dk funs'k nsdj xyrh dh gSA , vkb vkj 1964 ,l lh 286 rFkk , vkb vkj 1957 ,l lh 737 foosfprA ¼2017½4 ,l lh lh 490 rFkk 148 ¼2008½ Mh ,y Vh 289 izHksfnrA
Shukla, J. -- 1. Since common question of facts and law are involved in both the cases, therefore, they were heard analogously and are being disposed of by a common order.
2. For the sake of clarity and convenience the facts adumbrated in Cr.R. No. 3695/2018 are referred. The present revision is filed under section 397/401 of the Code of Criminal Procedure [hereinafter referred to as the ‘CrPC’] challenging the order dated 7.5.2018 passed by the learned IX Additional Sessions Judge/Special Judge, CBI (Vyapam Cases), Bhopal in S.T. No. 704/2014 arising out of Crime No. 20/2013 instituted at the Police Station, Special Task Force (STF), Bhopal – CBI Case No.RC2172015A0016, whereby the learned trial Judge has directed the applicant to furnish mirror images of Hard Disk Drive (HDD) C-1 & G-1 to the accused/non-applicant.
3. The apex Court vide order dated 9.7.2015 in the matter of W.P. (Civil) No. 372/2015 along with various petitions W.P. (Civil) No. 417/2015 [Digvijay Singh v. State of M.P. and others] transferred the investigation of criminal cases related to VYAPAM scam from S.T.F., Bhopal to C.B.I. Pursuant to the said order passed by the Apex Court, the cases were re-registered by the CBI and further investigations were carried out. During course of investigation in RRC217015A0108 (STF Crime No. 539/2013) by the CBI the forensic images of the HDDs C-1 & G-1 were obtained by the CBI from the trial Court with the help of forensic experts from the CFSL, Hyderabad. Thereafter, the aforesaid HDDs and their forensic images were forwarded to the CFSL, Hyderabad for forensic analysis.
4. The data relied upon by the prosecution in the instant case – RC2172015A0016 was obtained from the CFSL, Hyderabad in the form of a compact disk along with the expert analysis report thereon which is based on the date retrieved from the HDDs sent for forensic examination in the CBI Case No. RC2172015A0108 and the said data is duly authenticated by the Hash Value and the certificate under section 65-B of the Indian Evidence Act.
5. The present case is an offshoot of the examination of the Hard Disk Drive (HDD) seized from the office of Nitin Mohindra in Crime No.539/2013, dated 7.7.2013 of the Police Station, Rejendra Nagar, Indore. The Hard Disk Drive seized on 26.7.2013 from the office chamber of Nitin Mohandra, the then Principal Sysem Analyst, VYAPAM was examined by FSL, Gandhi Nagar and thereafter their report, DFA-EE-2013-CF-327 Part Report-I, dated 25.10.2013 and the retrieve data in a CD was provided by FSL, Gandhi Nagar. In the said CD, two files viz. GRADE_2_3_ROLLNOS.xls and GRADE_2_3_ROLLNOS.xlsx under folder Annexure-B-1/RAR, Files/RAR Files Report_files\0004-000.rar were found to contain details, such as, serial number, roll numbers, names, remarks, names of the mediators etc., in respect of S-2, S-3 and AG-3 examinations conducted by VYAPAM. These excel files were containing multiple excel sheets. In one of the excel sheets, there were names of 40 candidates with Roll numbers in respect of Samvida Shala Shikshak Partata Pareeksha Var-2 (Contractual School Teacher’s Eligibility Test Grade-II). On verification from VYAPAM, Special Task Force (STF) ascertained that there were discrepancies in the marks of 36 candidates mentioned in the excel sheet.
6. After completion of further investigation in Case No. RC2172015A0016 by the CBI, a final charge-sheet was filed on 8.2.2018 before the trial Court against the accused/non-applicant and other co-accused persons under sections 120-B r/w 420, 467, 468 and 471 of the Indian Penal Code [for short ‘the IPC’]; under section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988; section 66 of the I.T. Act; and under section 4 r/w 3(d)(i)(ii) of the M.P. Recognized Examination Act.
7. The compact disk so received from the CFSL, Hyderabad along with certificate under section 65-B of the Indian Evidence Act is a relied upon document in this case and as such it was duly submitted to the learned Tr
