The Delhi High Court has observed that merely because the Central Bureau of Investigation (CBI) has initiated the process of proclamation or attachment proceedings under sec. 82 or 83 of Cr.PC despite the pendency of the anticipatory bail application before High Court, the same does not bar the consideration of such an application.
Section 82 contemplates procedure for issuing proclamation against a person absconding. Section 83 talks about attachment of property of person absconding.
Justice Anoop Kumar Mendiratta was dealing with an anticipatory bail application in an FIR registered under sec. 420, 467, 120B of IPC read with sec. 66D of the IT Act.
The FIR alleged concerned the Joint Entrance Examination (Mains) conducted for admission to Undergraduate Engineering Programs (B.E/B. Tech). The fourth session of JEE (Mains), 2021 in Computer Based Test (CBT) was conducted on 26th, 27th, 31st August and 1st and 2nd September, 2021 at different centers located in major cities throughout the country and abroad.
It was alleged that V. Mani Tripathi, Siddharth Krishna and Govind Vaarshney were the directors of M/s Affinity Education Pvt. Ltd. having its office at NOIDA and that two persons were assisting them in soliciting and managing admission in top NITs and reputed engineering colleges by adopting fraudulent means and unfair practices.
It was further alleged that Rs.10-15 lacs were being demanded from the parents of aspiring students for which they were asked to deposit Post Dated Cheques for an assured admission. The user ID and password of candidates appearing for examination were also collected for getting desired examination centers.
According to the prosecution, the modus operandi was that above persons would arrange a solver sitting at remote location for solving the questions which were displayed on the computer terminal allotted to the candidates. The centre supervisor, who would access to the computer network, was also a part of fraudulent act.
It was also the case of the prosecution that the petitioner and another co-accused had helped the aspirants in memorizing the question papers and the identity of evidence has been withheld to maintain secrecy of investigation and that they were also operating online examination centres, thereby compromising various exams.
During the search conducted at the residence of the petitioner and co-accused, it was alleged that several incriminating documents including list of candidates and the person who had brought the candidates to them for getting the papers cracked as well as electronic devices were seized.
It was stated that the accused were evading the process of law despite notice under sec. 160 of Cr.PC and notice under sec. 41A of Cr.PC. In view of above, Non-Bailable Warrants were issued against them.
While it was argued on behalf of the petitioner that there was no direct evidence in the shape of aspiring any students or parents of the student or assuring them for any undue benefit in the examination, the prosecution had relied upon the evidence collected during investigation.
"At the outset, it may be observed that merely because CBI has initiated the process under Sections 82/83 CrPC despite the pendency of the anticipatory bail application before this Court does not bar the consideration of the application by this Court," the Court observed.
The Court added that it cannot be ignored that the only role which was ascribed to the petitioner was regarding helping a student to memorize the questions.
"Petitioner had no substantive role in respect of the alluring the parents or taking any active part at the respective centers. Merely because the flat taken by SI Priyanka Dagar is stated to have been subsequently in possession of the petitioner cannot lead to an adverse presumption at this stage. The evidence can be duly collected after joining of the petitioner in the process of investigation," the Court said.
Accordingly, the Court granted anticipatory bail to the petitioner.
Case Title: ASHISH v. CENTRAL BUREAU OF INVESTIGATION
Citation: 2022 LiveLaw (Del) 450