1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1640 OF 2010 Ishwarsingh S/o.Raibhan Manza, Age-41 years, Occu-Service, R/o.'Santkrupa' 50, Ashwini Nagar, Itkheda Parisar, Aurangabad APPLICANT VERSUS 1. The State of Maharashtra 2. The Commissioner of Police, Aurangabad, Dist. Aurangabad RESPONDENTS WITH CRIMINAL APPLICATION NO.1641 OF 2010 Dr.Ramesh S/o.Raibhan Manza, Age-35 years, Occu-Service, R/o.50, 'Santkrupa', Ashwini Nagar, Paithan Road, Aurangabad APPLICANT VERSUS 1. The State of Maharashtra 2. The Commissioner of Police, Aurangabad, Dist. Aurangabad RESPONDENTS Mr.N.B.Suryawanshi, learned counsel for applicants in both applications. Mr.D.V.Tele, learned APP for State in both applications. 2 CORAM : A.V.POTDAR, J. RESERVED ON : 15/07/2010 PRONOUNCED ON : 20/07/2010 ORDER : 1. By both these applications, the Deputy Registrar (Academic Section) of Dr.Babasaheb Ambedkar Marathwada University, Aurangabad, (hereinafter referred to as The University), the applicant in the first application, and the Lecturer in the Department of Computer Science, who was deputed in the Central Assessment Scheme (hereinafter referred to as C.A.S.) as a Officer, which was particularly for the post of graduate course of science faculty, the applicant in the second application, who is also the real brother of the applicant in the first application, have moved this Court for their anticipatory bail in the event of their arrest in connection with CR No.14/2010, registered in Begumpura Police Station, Aurangabad for the alleged offence punishable u/s. 420, 465, 468, 471 r/w. 34 of The IPC. 2. Heard respective counsels for applicants in both the applications, followed by the submissions of learned APP appearing for the State. Also perused the papers of investigation as well as the report of the Inquiry Committee into the complaint filed by one P.G.Kasure, the President of Union, of The University, against these applicants and others in the matter of employing unfair means to get through the M.Sc.Physics examination, held in the month of April/May 2006. 3 3. It is contended across the bar on behalf of the applicants that the applicant in the first application had appeared for M.Sc.-II examination held by the University, which examinations were conducted in the month of April/May-2006, of which the results were declared in the month of June-2006. There are allegations that the applicant in the first application has scored '0' marks in all the 4 papers to which he had appeared in the examination and were altered lateron. The complaint was lodged by the President of Union, of The University in the month of March 2007, about this malpractice, after the first applicant was promoted to the post of Deputy Registrar from the post of Assistant Registrar (Academic section) in the same department, by not considering the claim of the complainant. It is further contended that, on receipt of the said complaint, Inquiry Committee of 3 members was constituted on 28/05/2007, and the Committee had submitted the report on 17/11/2008. Considering the report of the Committee, the applicant in the first application was debarred from appearing in any examination, conducted by the University for further 5 years and was directed to proceed on long leave. This action of the University was challenged in Writ Petition No.236/2010, which was filed on 07/01/2010, of which the notices were served on the respondents. Registrar of the said University and Controller of the examination were arrayed as respondents in the said writ petition. These orders were stayed by the Division Bench of this Court. It is also contended that similarly, the action was initiated against the applicant in the second application, debarring him to act as an examiner or Officer in 4 the C.A.S. , which was also challenged by way of Writ Petition No. 244/2010, in which also the Registrar and Controller of the examination were arrayed as respondents. Vide order dated 02/02/2010, the Division Bench of this Court stayed these re- commendations of the Inquiry Committee, and thereafter the said offence came to be registered against these two applicants and some other persons. It is alleged that they are involved in the malpractice of increasing marks in the answer books written by the applicant in the first application, with connivance of the applicant in the second application and others. One more application was also filed bearing no.1662/2010, but for some reason, that application was separated from these two applications at the time of final hearing. That application was filed by the programmer of the C.A.S. It is also contended that while the inquiry was initiated against these applicants and others, under the provisions of Right to Information Act, the application was moved by the applicant in the first application, asking the information for how much period, the answer books of the candidates appearing for the examination are preserved by the University. In reply to this application moved by the applicant in the first application, the information was provided that the answer books of the candidates appearing for the examinations are preserved for the period of 6 months. In the premise, how the only 4 answer books of the applicant in the first application were preserved by the University against this rule and procedure followed by the University, which gave rise to suspicion about the false implication of these applicants in the CR registered against these applicants and others. 5 According to the learned counsel for applicants, for his promotion to the post of Deputy Registrar from the post of Assistant Registrar, the candidate to hold the post graduate degree, is not the criteria, but only to take revenge against the first applicant, as he was promoted to that post, this offence is registered against these applicants and others in which the applicants are falsely roped. It is also contended across the bar that initially when the application was moved before the Sessions Court, these applicants were protected by interim order. Likewise, after this Court was moved, this Court has also granted interim protection to these applicants, which is not misused by these applicants. It is also contended that the specimens of the handwriting of these applicants are also obtained by the concerned investigation agency, and referred for the opinion of handwriting expert, which is yet to be received. All the documents are in possession of the Investigation Agency, hence custodial interrogation of the applicants is not necessary, hence prayed to allow these applications. 4. By placing reliance on the report received from the Inquiry Committee as well as the documents collected during the investigation till carried out, it is urged on behalf of the prosecution that considering the serious nature of offence, custodial interrogation of these applicants is necessary. 5. Perused the papers of investigation in the light of submissions across the bar. Per court, these applications are exception as the 6 University is the temple of education, providing degrees to the candidates, who were appeared for different courses prescribed by the University. These applicants are high profile officers holding responsible post in the University, and the acts allegedly committed by them are serious in nature, and the record require to be scrutinized in the light of these facts. 6. Admittedly, both these applicants are holding high profile post in the University. The first applicant is holding the post initially as Assistant Registrar in Academic Department of the University and was promoted to the post of Deputy Registrar (Academic) after he obtained the decree in M.Sc.Physics, even though not required for his promotion. Applicant in the second application is the real brother of the first applicant and has participated in the process of C.A.S. of the Post Graduate Science Faculty. Admittedly, the applicant in the first application was appeared for the examination of M.Sc. Physics, which is a Post Graduation Decree course in the Science faculty of the said University. 7. Alongwith the report of the Inquiry Committee, photo copies of the 4 answer books written by the applicant in the first application are placed before this Court. It clearly demonstrates that the applicant in the first application has scored '0' marks in all the four subjects. It revealed from the photo copies of those 4 answer books that the change was not effected by the Moderator while moderating those answer books. In the first paper, 3 questions were solved and 7 has scored '0' marks against each of the question and the marks were increased from '0' to '8'. On perusal of this answer book, it revealed that the marks were not only given in figures, but also in words on the first page of the answer book as well as against each of the question solved by the applicant in the first application. In the second paper, 3 questions were solved, for which the concerned examiner has given '0' marks against each of the question in figure as well as in words, which appeared to be changed on the first page as well as on the internal pages of the answer book. In the 3rd paper, candidate had solved 3 questions, for which '0' marks were given, which were later on altered from '0' to '8', which were put in figures as well as in words also. There is similar case for the last paper also. Thus the fact is clear that there is manipulation in the marks scored by the applicant in the first application. 8. Apart from the photo copies of the answer books, Examiner's Assessment Cards are also placed on record of the first 3 papers. The first paper was received by the examiner on 10/05/2006 at 10.00 a.m. and on the same day, he returned it at 5.30 p.m. The Examiner's Assessment Card of the 2nd paper shows that the examiner had received the second paper on 12/05/2006 at 3.00 p.m. and returned on the same day at 5.30 p.m. The Examiner's Assessment Card of the 3rd paper shows that the examiner had received the paper on 12/05/2006 at 3.00 p.m. and returned it on the same day at 5.30 p.m. Examiner's Assessment Card for the last paper is not on record. Thus, it is clear that after examining the 8 answer books of the applicant in the first application, they were returned by the concerned Examiner on the same day and these assessment cards shows the signature of the C.A.S. as a custodian on the very day. Mark list of those 4 papers nowhere shows that the candidate had initally scored '0' marks and lateron the marks were altered to '8', but it shows that the candidate had scored enhanced marks. It is to be noted that those mark lists were not signed by the examiner, who had examined the papers, but signed by one Bijale. Thus the fact clearly shows that there is malpractice, when these answer books are in the custody of the office bearers of the University, who are controlling the C.A.S. During the inquiry, statement of the examiners, who have examined the papers in question were recorded and they have confirmed that they have given '0' marks to the applicant in the first application, in all the papers. 9. It is to be noted that the examination was conducted in April- May 2006, while the results were declared in the month of June 2006. The applicant in the first application is the beneficiary of the marks which he has scored and are enhanced from '0' to '8' in the respective papers. It is not under dispute that the applicant in the 2nd application is one of the member/Officer controlling this Central Assessment Scheme and this manipulation took place while the papers are in the custody of the concerned staff. Even though it is vehemently urged across the bar that as per the procedure followed by the University, the answer books to be destroyed within the period of 6 months, if no any application for moderation is submitted by the 9 candidate concerned. Whatever it may be, the photo copies of the answer books are made available to the Inquiry Committee as well as placed before this Court. If the high profile officers of the University are indulged in the malpractice of enhancement of marks, then they require to be held responsible for such malpractice during the examination. If these things are going on in the Examination Department of the University, then this Court is not going to take it lightly, but this is a very serious offence and those who are indulged in this malpractice, require to be deprecated, and for that purpose, their custodial interrogation is necessary. 10. Even though it is urged across the bar that considering the post, which the applicants are holding in the University, if their custody is handed over to the Investigation officer for interrogation, then their reputation will be in danger. If the officers, who are holding high profile posts in the university, are found indulged in the malpractice, then the big question is whether they are having any reputation ? The offences allegedly committed by these officers of the University/applicants, are not excusable, because the priests of the temple itself are trying to damage the image of Goddess of Education. Considering all these aspects, this Court is of the view that custodial interrogation of these applicants is must. In the premise, as the applications are sans any merit, stand rejected. 11. After the judgment was pronounced, learned counsel for applicants has prayed for continuation of interim protection. As the 10 applicants are protected by way of interim relief for a considerable period, interim protection to continue for the period of 4 weeks. (A.V.POTDAR, J.) khs/JULY 2010/cri-appl-1640-10