Praveen M.P. vs State of Karnataka

Rathnakala, J.—Though the petition is listed for admission, is heard on merits from both sides and taken up for final disposal.

This petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 challenging the order dated 09.12.2014 passed by the Prl. Sessions and Special Judge, Bellary thereby rejecting the application filed by the petitioner under Sections 227 and 239 of Cr.P.C.

The facts succinctly stated, this petitioner is arrayed as accused No. 15 in the charge sheet filed by respondent-Police in respect of the offence punishable under Sections 120B , 417 , 418 , 465 , 468 , 409 of IPC and Sections 117 , 121 , 138 of Karnataka Education Act, 1983. Totally there are 27 accused persons. The case of the prosecution is, the Vijayanagara Institute of Medical Sciences Hospital, Bellary (hereinafter referred to as VIMS for brevity) is established under Section 3 of Rajeev Gandhi University Health Sciences Act, 1984. Rajeev Gandhi University Health Sciences (hereinafter referred to as ''RGUHS'' for brevity) every year conducts entrance examination for the post of graduation seats. The eligible candidates will be selected for seats of their choice in accordance with their merit. For the examination of Post Graduation Entrance Test (hereinafter referred to as ''PGCET'' for brevity) of the year 2011, a committee was constituted. The then Vice Chancellor/CW-2 was its Chairman. The then Registrar/CW-1 was its Member Secretary. As per the resolution of the said committee, the examination centres were identified and examination was conducted on 30.01.2011. VIMS was also one of such centres. The candidates who got higher rank get benefit of lesser fees and who are not successful in getting higher rank will have to pay donation and fees in crores. The accused Nos. 16 to 26 to avoid paying donation and to get higher rank committed illegality in the PGCET test with the connivance of accused Nos. 10, 25 and 27. The petitioner being a medical intern is an expert in the subject.

Further allegation of the prosecution is, the first accused working at VIMS Forensic conspired with other accused, with an intention to make illegal money by providing key answers of the PGCET examination scheduled for the year 2011, they collected lakhs of rupees from the candidates. In furtherance of the conspiracy held with the co-accused, he managed that seat numbers of above 250 were allotted to the candidates of his choice to see that they will be seated in the same hall in the VIMS, Bellary on the date of examination on 30.01.2011. Against the rules, the question papers were opened on the examination day. First accused with the help of the officials took the photographs of the question papers, sent the same to the house of the accused No. 17 (owner of the house). The accused persons who are experts in the subjects present in the said building prepared answers to the questions and the same were sent back to the candidates through official accused persons. The candidates waited for 1 1/2 hours for the chit to write answers. After receiving the answers, they copied the same from the chits and had managed to get higher ranks. Specific allegation against this petitioner is, he was present at the relevant time in the house of accused No. 17, along with accused Nos. 6 to 14, prepared answers and handed over the same to accused No. 9 etc.

Learned counsel for the petitioners submits that the name of this petitioner does not find place in any of the statements recorded by the Investigating Officer under Section 161 of Cr.P.C. it is found only in the voluntary statements of the accused Nos. 1, 6 to 9, 12 and 14 which is not admissible in law. Even in the statements of CWs-42, 43 (accused 7 and 17) recorded under Section 164 of Cr.P.C., his name is not forthcoming. No call details pertaining to this petitioner to establish his presence in the building of accused No. 8 at the relevant point of time is collected by the Investigating Officer. None of the call details collected by him indicate his nexus with the co-accused. He is innocent and falsely charge sheeted only for the reason that his name is Dr. Praveen which is confusable with Dr. Praveen Kumar/the name of accused No. 9. In none of the remand applications filed before the Court and in none of the statements of the witnesses his name is mentioned. If the prosecution is allowed to continue the investigation against this petitioner, it will malign his name and there is every likelihood of his career being spoiled.

The learned Addl. S.P.P. while opposing the petition placed his objection by way of written statement. In epitomize his case, admittedly there are two accused persons in this crime having similar name. One is accused No. 9-Dr. Praveen Kumar A.S., M.B.B.S. Diploma in Anastasia working in a Private Nursing Home, Bangalore, and another is the petitioner herein/accused No. 15-Dr. Praveen M.P., M.B.B.S., resident of 205, 6th Cross, Hanumantha Nagar, Bangalore, He is the brother of accused No. 12-Dr. Udaya Ravi, who resides with him in the same address. The petitioner was present when accused No. 7 carried the digital camera to the house of accused No. 7, where all question papers were taken out and answers were prepared. He was a fresh graduate and could answer the questions more effectively and enter the same in a computer and returned it to the examination hall. The investigation has revealed his role in preparation of answer chits and sending the same to the examination hall. Being a fresh graduate he was more useful than others. CW-42 refers his name, Dr. Praveen Kumar 5 times. CW-43 refers his name only once. Wherefore, there is no ground for any confusion about the indulgence of this petitioner in the alleged offence.

Learned Addl. S.P.P. placed his reliance on the judgment of the Apex Court reported in Amit Kapoor Vs. Ramesh Chander and Another, , wherein the consideration which shall gain the mind of the Court at the initial stage of framing charge was detailed. Para 19 of the judgment reads thus:

"At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well settled law laid down by this Court in the case of State of Bihar Vs. Ramesh Singh, :

"4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If ''the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing'', as enjoined by Section 227 . If, on the other hand, ''the Judge is of opinion that there is ground for presuming that the accused has commuted an offence which _... (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused'', as provided in Section 228 . Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228 , then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227 ."

In the light of the above, it is the submission of the learned Addl. S.P.P. that it is too early to form an opinion that there is no material against this petitioner to convict him for the alleged offence. The application filed is misconceived and liable to be dismissed.

Admittedly, there are two accused persons with similar names, one is the petitioner herein i.e. Dr. Praveen M.P., accused No. 15 and Dr. Praveenkumar A.S.-accused No. 9. The call list collected by the Investigating Officer pertains to the accused No. 9 and ''none of the material collected by the Investigating Officer have any sort of semblance with the petitioner herein. In its summary of the allegation at column No. 13 of charge sheet format the prosecution is emphasizing on the statements of the accused persons, who have turned approvers for the prosecution against this petitioner also. However, on perusal of statement recorded under Section 164 of Cr.P.C. and also the statements of accused Nos. 7, 11 and the voluntary statements of accused Nos. 12 and 9 nowhere there is any reference to the existence of two persons by name Praveen. All the while they are speaking about one and only person i.e., Praveen without referring to his full name. Nowhere they have referred to his status and position also. That apart there is no documentary material in reference to this petitioner in the entire charge sheet. Moreover, on the relevant date petitioner was still an intern. The Apex Court reiterating the tenets of law with regard to the stages at 227 and 228 of Cr.P.C. in its judgment in the case of Yogesh @ Sachin Jagdish Joshi Vs. State of Maharashtra, , observed as follows -

"15. Chapter XVIII of the Code lays down the procedure for trial before the Court of Session, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228 . It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.

It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished form grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, make a conviction reasonably possible."

Yet in another judgment in the case of Krishnareddy v. State by Station House Officer and Others, Criminal Appeal No. 1833/2013 [Arising out of S.L.P. (Crl.) No. 4221/2012] it has been observed in para 7 as follows -

"The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into. The court is neither a substitute nor an adjunct of the prosecution. On the contrary, once a case is presented to it by the prosecution, its bounden duty is to sift through the material to ascertain whether a prima facie case has been established which would justify and merit the prosecution of a person. The interest of a person arraigned as an accused must also be kept in perspective lest, on the basis of flippant or vague or vindicative accusations, bereft of probative evidence, the ordeals of a trial have to be needlessly suffered and endured."

The learned Addl. S.P.P. has stressed upon stating about C.W. 42, who took the name of Dr. Praveen five times. But this statute when read fails to impress the presence of two persons by name Praveen at the spot. If at all there were two Doctors by name Praveen definitely there would be an adjective with second Praveen like (another). As of now there is material on record connecting accused No. 9 by way of his call list and tower location report. Wherefore, unescapable conclusion is, Dr. Praveen referred by C.W. 42, in his statement is in reference to Dr. Praveen only i.e., accused No. 9. On going through the entire charge sheet material except the similarity in the name of petitioner and accused No. 9, I do not find anything connecting him to the alleged offence. The prosecution had every opportunity till now to investigate further under Section 173(2)(i)(a) of Cr.P.C. to link this petitioner to the alleged crime if at all there was anything of that sort. In the absence of anything to that effect, I hold that this petitioner is brought to book perhaps due to mistaken identity or under mere suspicion, which cannot be sustained in the light of the principles laid down and reiterated many times by this court and the Apex Court.

In the light of the discussion supra, the order passed by Court below dated 09.12.2014 insofar it relates to rejecting the application moved by petitioner/accused No. 15 under Section 239 of Cr.P.C. in rejecting his prayer to discharge for the offences punishable under Section 120B , 417 , 418 , 465 , 468 , 409 of IPC and Sections 117 , 121 , 138 of Karnataka Education Act, 1983 is not a speaking order passed without proper analysis of the matrix on hand, hence set aside. He is discharged of these charges.

The petitioner is permitted to bring to the notice of the Court below about the order passed today.