H N CHAVDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The applicant apprehending his arrest in connection with FIR lodged with Gujarat University Police Station, Ahmedabad City as C.R. No.I -79/2008 for the offences punishable under Section 419, 414, 466, 468, 471, 474, 120 -B of Indian Penal Code, has filed this application under Section 438 of the Code of Criminal Procedure, 1973.

(2.) At the outset, this is the second application under Section 438 of the Code of Criminal Procedure, 1973 before this Court in view of rejection of Criminal Misc. Application No.7772 of 2010 by this Court (Coram: Hon'ble Mr. Justice Z.K. Saiyed). The applicant is a Government servant and is an Officer in the Education Department and at relevant point of time he was posted as Secretary to the Gujarat Secondary and Higher Secondary Education Board (for short the Board) established under the Gujarat Secondary and Higher Secondary Education Act, 1972. The Board undertakes Secondary and Higher Secondary Certificate Examinations every year as per the schedule fixed.

(3.) Initially, the FIR came to be lodged at the Gujarat University Police Station, Ahmedabad City, on 14.3.2008 for the offences punishable under Sections 419 and 114 of IPC and as per the above FIR, students one Master Harsh Pravinbhai Kotak and one Miss Komal Sanjaybhai Patel appearing in Standard 12 examination Science stream were not able to write their papers and requested for assistance of a writer and accordingly students were permitted to have an assistance of one Mr.Hriday Prashantbhai Archarya studying in Standard 11 in science stream in Swastik Shishu Vihar Secondary School, Sardar Patel Stadium, Ahmedabad and Miss Komal S. Patel who claimed to have fractured her right hand was provided one Mr. Parth Mukeshbhai Pandya also studying in the same standard and in the same school. While, on 14th March, 2008, on checking by a squad instead of Mr. Hriday Prashantbhai Archarya, Dharmik Ambalal Patel, a writer of Master Harsh Pravinbhai Kotak and in case of Miss Komal Patel, one Mr. Kevin Paragbhai Desai instead of Mr. Parth Mukeshbhai Pandya were writing papers. Thus, writer students provided to assist and write the examination of Master Harsh Kothak and Miss Komal Patel, were not assisting or writing the papers but some other students were found on the day when checking squad inspected the examination hall. It appears that upon preliminary investigation, I.O. submitted a report on 21.3.2008 and requested to add offences punishable under Sections 464, 468, 471, 474 and 120 -B of IPC. Later on, after arresting the students another report dated 16.9.2008 was submitted for deleting Sections 464, 468, 471, 474 and 120 -B of the IPC. Subsequently, in view of inconsistency of medical reports submitted by both students and certificates issued by the concerned Orthopedic Surgeon, once again Police Officer requested that Sections 464, 468, 471, 474 and 120 -B be added and however, the investigation was transferred to the crime branch for further investigation and after collection of evidence, recording statements of about 11 persons, it was found that there was conspiracy to introduce dummy writers. As per the report submitted on 10.3.2010, Police Officer of Crime Branch, Ahmedabad, requested to add the offences punishable under Sections 466, 468 and 471 of IPC. Thus, on 10th March, 2010, offences were on the record punishable under Section 466, 468, 471 and 120 -B of IPC. That, in the anticipatory bail application which was preferred and dismissed on 5.8.2010 (Coram: Hon'ble Mr. Justice Z.K. Saiyed) being Criminal Misc. Application No.7772 of 2010, all contentions available on facts were taken up including reliance placed in the case of State of Gujarat v. Deepak Jaswantlal Sheth [1998 (3) GLR 2240] and after considering material on record in para 6 and 7, the learned Single Judge has observed as under: