Vivek Kumar Arya vs Central Bureau Of Investigation

Appearing counsel for the parties are heard on alleged first anticipatory bail application filed before this court on behalf of applicant u/S. 438 of the

Cr.P.C in relation to Crime No. 259/2009 registered at Police Station Kampoo, District Gwalior for offences punishable u/ss. 419, 420, 467, 468, 431

r/w Sec. 120-B of the IPC and Sec. 3-D/4 of M.P. Recognized Examination Act and the status report filed by the respondent, documents filed on

behalf of applicant and case diary are perused.

Applicant's anticipatory bail petition under same provision has already been dismissed vide order dated 7th of July, 2018 by Special Judge (PMT)

and 4th Additional Sessions Judge, Gwalior whose certified copy is annexed with the application under consideration.

Appearing counsel for the petitioner Vivek Kumar Arya contends that the applicant is apprehending his arrest in above mentioned crime and it is

alleged by the prosecution that in M.P. PMT, 2009 at the center of Government Padma Girl's Higher Secondary School, Gwalior on 5.7.2009

impersonator Manoj Kumar Nishad appeared in the name of actual candidate present applicant (Vivek Kumar Arya) and Test Admit Card of

applicant's role number was allegedly seized from Manoj Kumar Nishad, who was arrested on 5.7.2009 and during investigation by M.P. Police, the

role of 22 more accused was surfaced and after completion of investigation charge-sheet was filed by the Police Station Kampu on 2.9.2009 before

the court concerned against 19 accused persons including impersonators and middle-men and allegedly some actual candidates including present

petitioner could not be traced out, during investigation by M.P. Police. After trial vide judgment dated 11.12. 2013, First Additional Sessions Judge,

Gwalior has acquitted 16 tried accused persons including Manoj Kumar Nishad, thereafter, in compliance to the order of the Hon'ble Supreme Court

investigation has been conducted by CBI and two supplementary charge-sheets have been filed on 11.12. 2014 and 10.5. 2015 and CBI re-registered

the case for further investigation under case no. R.C. 217 2016 S 0004 on 7.1.2016, against untraced absconding accused persons. It is argued that

alleged impersonator of the present applicant has already been acquitted, hence there is no possibility of conviction of the present applicant and

actually during investigation in the year 2009 present applicant co-operated with the investigation and his statement was recorded and thereafter

charge-sheet was filed wherein applicant was not arrayed as accused. Presently, petitioner is a government teacher and if he is arrested in the crime,

then his career and future prospects would be destroyed. He is ready to comply with all conditions to be imposed by the court. Therefore, it is prayed

that benefit of anticipatory bail be given to the present applicant.

With the application under consideration, photo-copies of bail orders of co-accused persons Amit Shirvastava, Hargyan Singh Vimal and Alok of the

same crime under section 439 of Cr.P.C have been filed and learned counsel for the applicant has placed reliance on the bail orders passed by this

court in M.Cr.C. No. 14360/2016 (Nandan Singh v. State of M.P.) decided on 16.1. 2017, M.Cr.C. No. 5366/2017 (Yogesh Kumar v. State of

Madhya Pradesh) decided on 6.10. 2017 and M.Cr.C. No. 2643/2015 (Pratap Singh v. State of M.P.) decided on 14.7.2015 reported as (2015) 3

MPJR.

Learned Assistant Solicitor General placing reliance on the facts disclosed in the status report filed on behalf of the respondent has contended that

the present petitioner Vivek Kumar Arya is one of the prospective beneficiary candidates in the relating crime, who was having intention to qualify

PMT, 2009 exam with fraudulent means, entered into conspiracy and in pursuance to that, applicant got filled application form of PMT, 2009 in his

name with the false address i.e. C/o Rampal Singh Lodhi, FL-430 (F-Sector), Deen Dayal Nagar, Gwalior and in pursuance to the said conspiracy

photo of impersonator Manoj Kumar Nishad was affixed on the off-line application form of applicant Vivek Kumar Arya and actually impersonator

Manoj Kumar Nishad appeared in the exam held on 05.07. 2009 and applicant's test admit card was seized from impersonator and previously when

investigation was conducted by M.P. Police, petitioner could not be traced out, but subsequently supplementary charge-sheet against some accused

persons have been filed on 28.6.2018 and a non-bailable warrant has been issued by the competent court against present applicant. Therefore his case

is not fit for granting him benefit of anticipatory bail.

In the case of Bhadresh Bipinbhai Sheth V. State of Gujarat; AIR 2015 SC 3090, it has been observed by the Apex Court that no inflexible

guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be

clearly visualized for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail, should

necessarily depend on the facts and circumstances of each case and in same citation it is also observed that impact of grant of anticipatory bail

particularly in cases of large magnitude affecting a very large number of people should be considered. It is also well settled that the stage of

consideration of bail application is not a stage of appreciation or evaluation of evidence. It is clear from the facts and circumstances that previously

during investigation by M.P. Police, applicant could not be traced out, otherwise he would have been tried with his alleged impersonator Manoj Kumar

Nishad. In the judgment dated 11.12.2013 passed by the relating trial court in para no. 12, it is clearly observed that during investigation on 5.7.2009

from acquitted accused Manoj Kumar Nishad Rs. 1,000/- and test admit card bearing role no. 845891 issued in the name of Vivek Kumar Arya was

seized, but before passing of the above mentioned judgment in relation to co-accused persons, applicant and some other beneficiaries could not be

traced out. In above mentioned facts it could not be observed that there is no legal evidence against the present applicant.

Looking to all these facts and circumstances of the case, without commenting on the merits of the case present applicant's case does not appear fit

for granting him benefit of anticipatory bail. Consequently, anticipatory bail petition filed on behalf of applicant Vivek Kumar Arya u/s. 438 of the

Cr.P.C is hereby dismissed.