Madhya Pradesh High Court
The State Of Madhya Pradesh vs Sanjay on 9 April, 2015
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M.Cr.C. No.3443/2015, M.Cr.C. No.3524/2015,
M.Cr.C. No.3681/2015, M.Cr.C. No.3685/2015,
M.Cr.C. No.3686/2015, M.Cr.C. No.3687/2015,
M.Cr.C. No.3688/2015, M.Cr.C. No.3847/2015,
M.Cr.C. No.3848/2015, M.Cr.C. No.3896/2015,
M.Cr.C. No.3897/2015, M.Cr.C. No.3898/2015,
M.Cr.C. No.4129/2015 and M.Cr.C. No.4382/2015
9.4.2015
Shri P.K. Kaurav, Additional Advocate General
with Shri Prakash Gupta, Panel Lawyer for the
applicant/State in all the applications.
Respondents through their respective counsels.
M.Cr.C. No.3897/2015
At the request of counsel for the State, we defer the hearing of this application till tomorrow as he would like to take clear instructions whether prima facie finding recorded by the Trial Court in order dated 24.6.2014 regarding the age of the respondent is acceptable to the prosecution or otherwise.
M.Cr.C. No.3848/2015The respondent is not present in Court, though assurance was given in that behalf yesterday.
By way of indulgence, list tomorrow (10.4.2015) along with companion cases.
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M.Cr.C. No.3896/2015We are informed by the learned counsel for the respondents that respondent No.1 is already in jail in connection with another crime of the same type.
As regards respondent No.2, he is presently busy with Second Semester M.B.B.S. examination and for which reason, he is not in a position to remain present in Court, though assurance was given in that behalf yesterday.
Since the respondent No.2 will be busy with written examination till 17.4.2015, we defer the hearing of this application till 20.4.2015.
We place on record that instead of respondent No.2, his father is present in Court to assist the Advocate.
M.Cr.C. No.4129/2015The respondent is not present in Court in spite of assurance given in that behalf yesterday.
Request to defer the matter till tomorrow, made on behalf of respondent, is accepted.
List tomorrow (10.4.2015) along with companion cases.
MCRC No.3443/2015This application is filed by the prosecution for cancellation of bail order dated 19.6.2014 passed by 19 th
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Additional Sessions Judge, Jabalpur.
The four respondents who have been ordered to be released on bail in terms of the impugned order dated 19.6.2014 have been named as accused in Crime No.898/2013 registered with Police Station Garha through Crime Branch, Jabalpur - commonly known as VYAPAM Examination Scam cases - for the offence punishable under Sections 419, 420, 467, 468, 471/34 of Indian Penal code and Sections 3 and 4 of the M.P. Manyata Prapt Pariksha Adhiniyam, 1937.
The solitary ground on which this application has been instituted by the prosecution is in the context of observations made by this Court in Public Interest Litigation bearing W.P. No.6385/2014 dated 13.1.2015, in which proceedings investigation of all the criminal cases under investigation of STF pertaining to VYAPAM examination scam cases are being monitored by this Court. During the hearing of that matter, it transpired that some of the accused named in the alleged crime have been granted bail by the Court other than the Court specially designated to try those cases. In other words, the bail order has been granted by the Court not authorized to entertain the bail application in respect of offences pertaining to VYAPAM examination scam crimes and for which reason the order
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passed in favour of those accused by the concerned Court suffered from the vice of coram non judice and, therefore, non-est in the eyes of law. Similar situation was considered by this Court in M.Cr.C. No.396/2015 and M.Cr.C. No.398/2015, as can be discerned from the order dated 9.1.2015.
It is indisputable that the High Court had issued directions to designate Judicial Officers by name to try the offences concerning the VYAPAM examination scam cases vide Notification dated 21/22.03.2014 Annexures A-1 and A-2. Those notifications were in public domain and made known to the concerned District Judges and other Judicial Officers of the concerned districts. Nevertheless, the District Judge, for inexplicable reasons assigned the bail application filed by the respondents to the Judge other than the designated Judge.
Suffice it to observe that the order challenged in this application has been passed by the Court which was not authorized to entertain the bail application concerning the VYAPAM examination scam crimes.
Accordingly, the impugned order passed by the Trial Court, granting bail to the respondents, dated 19.6.2014, deserves to be set aside being coram non judice, in exercise of powers under Section 439 (2) read with Section 482 of Cr.P.C.
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The next question is whether the respondents who have been released on bail pursuant to the order dated 19.6.2014 should be rearrested in connection with the subject crime or should this Court entertain the request of the said respondents to grant them bail in the concerned crime on the principles expounded by the Apex Court in Paragraph 20 in the case of Sundeep Kumar Bafna v. State of Maharashtra and another, AIR 2014 SC 1745 ?
Notably, the role ascribed to each of the respondents by the prosecution is that of a beneficiary and having committed unfair means during the examination by taking assistance of an impersonator who appeared in the examination in their place.
Re : Respondent No.3 :
Nevertheless, learned counsel for the State, in all fairness, on instructions, submits that as regards respondent No.3 - Shailesh Kumar S/o Munshilal, his re-arrest may not be necessary because investigation qua him is now complete in all respects and his custodial interrogation may also not be necessary considering the fact that the immediate link of the said respondent Vindhyavasini Kumar has been arrested and is in jail. Therefore, the said respondent can be granted bail on strict conditions, if the said respondent were to give undertaking to this Court to extend full cooperation for further investigation in the
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Crime, if required and including against him for collection of further evidence and also to punctually appear before the Trial Court to ensure early disposal of the trial registered against him.
Counsel for respondent No.3, on instructions of respondent No.3, who is present in the Court and has surrendered before the Court consequent to the order of cancellation of his bail, is willing to give that undertaking. Since the respondent No.3 is present in Court, we take him in custody and entertain his prayer for grant of bail in connection with Crime No.898/2013.
We accordingly, in the interest of justice, keeping in mind the stand taken by the Investigating Officer direct immediate release of respondent No.3-Shailesh Kumar, S/o Munshilal on bail in connection with Crime No.898/2013 on the following strict conditions:-
(1) The respondent No.3 - Shailesh Kumar shall furnish personal bond in the sum of Rs.1,00,000/- (Rupees One Lac) with two solvent local sureties in the like amount to the satisfaction of the Registrar (Judicial) of this Court by 13th April, 2015 for his regular appearance during the trial in connection with Crime No.898/2013 in Police Station Garha
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through Crime Branch, Jabalpur; (2) The respondent No.3 shall also comply with the conditions enumerated under Section 437 (3) of Cr.P.C. meticulously; (3) Additionally, the respondent No.3 will report to the Police Station Mehgaon, District Bhind (M.P.) once a week on every Sunday between 10:00 a.m. to 12:00 noon unless required to attend the office of the Investigating Officer at Jabalpur on that day; and (4) The respondent No.3 will deposit his passport, if available, with the Investigating Agency within one week from today, else file affidavit in this Court within that time declaring that the he does not have any passport of any country.
This compliance will be condition precedent for release on bail.
Re: Respondent Nos.2 and 4 :
As regards respondent Nos.2 and 4, bail granted to them in terms of the impugned order will have to be set aside for the reasons already recorded. They are also present in Court and initially prayed for the same relief as granted to the respondent No.3. However, in view of the
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stand taken by the Investigating Officer that investigation against them is still incomplete and the next link with whom the said respondents had interacted for commission of the alleged offence has not been traced and that matter is still being inquired into, the learned counsel for the said respondents submits that they would prefer to apply for regular bail before the concerned designated Court after surrendering before that Court in terms of this order so that all aspects can be examined by that Court and appropriate order may be passed after hearing both sides. For that, we give limited protection to the respondents No.2 and 4 namely Sunil Mandloi and Anil Kumar Mourya to approach the designated Court taking up VYAPAM Examination Scam crimes and in particular Crime No.898/2013 by way of regular Bail Application on 13th April, 2015. The said respondents will surrender before the concerned designated Court on that date at 11:00 A.M. and apply for regular bail which can be considered by the said Court on the same day. The Investigating Officer through counsel has taken a fair stand that he would make himself available before the designated Court on that date or depute some responsible Officer along with the relevant papers/record so that the bail application filed by respondents No.2 and 4 can proceed for hearing forthwith and decided preferably on that day itself. Until the said respondents surrender before
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the designated Court on 13.04.2015 as mentioned above, no coercive action be taken against them on condition that they shall appear daily before the local Police Station Garha, Jabalpur between 11:00 a.m. to 12:00 noon until 12th of April, 2015.
Re: Respondent No.1 :
As regards respondent No.1, although the impugned order deals with the prayer for bail made by respondent No.1, we find that the respondent No.1 was ill-advised to move regular bail application before the Trial Court in spite of the bail granted by the learned Single Judge of this Court dated 11.02.2014 in MCRC No.943/2014 which is to operate till the end of the trial of Crime No.898/2013 qua the respondent No.1.
In the light of that order, what was required to be done by the respondent No.1 was only to complete the formalities for continuation of the arrangement directed in terms of order dated 11.02.2014 in MCRC No.943/2014 and not to apply for regular bail. Notably, it is not open to argue that the order dated 11.02.2014 in MCRC No.943/2014 passed in favour of respondent No.1 is coram non judice. For, notification issued by the High Court for listing of all the cases pertaining to VYAPAM examination scam before DB-I was issued on 16.02.2014 and 25.03.2014. Whereas, the order on MCRC No.943/2014
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was passed much before the said notifications were issued for assigning VYAPAM examination scam cases to DB-I. Taking overall view of the matter, therefore, the impugned order passed in favour of respondent No.1 by the trial Court be understood to mean that the respondent No.1 was called upon to comply with the formalities for continuation of the interim protection during the pendency of the trial after filing of the charge-sheet. We are informed that charge-sheet is yet to be filed against the respondent No.1. The fact remains that the order dated 11.02.2014 in MCRC No.943/2014 has not been reversed or recalled so far and until the same subsists, being a valid order, the question of canceling the bail granted to the respondent No.1 - Manoj Kumar Uike does not arise as that would inevitably result in circumventing the order dated 11.02.2014. That cannot be countenanced. Hence, the application qua respondent No.1 for cancellation of bail will have to be rejected for the distinguishing circumstances noted hitherto.
This application is disposed of on the above terms.
MCRC Nos.3681/2015, 3685/2015, 3686/2015 & 3687/2015 In these applications bail order passed in favour of respective respondents granted by the Additional Sessions
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Judge - other than the designated Judge - has been challenged by the applicant/State on the ground that the concerned Judge was not authorized to entertain bail application in VYAPAM Examination Scam cases. This aspect has already been considered in the companion cases decided today together. Admittedly, the Judge who granted bail to the respective respondents was not a designated Judge. The concerned District Judge should not have assigned the hearing of bail application to that Judge but only to the designated Judge in terms of notification dated 22.03.2015. The order passed in favour of respective respondents, therefore, is by a Judge not authorized to deal with the bail applications in VYAPAM Examination Scam cases and suffers from the vice of coram non judice as has been observed in the decision dated 09.01.2015 in MCRC No.396/2015 and MCRC No.398/2015.
For the same reasons, these applications will have to be allowed and the order impugned in the application is set aside on that count.
The next question is whether the respondents should be re-arrested in connection with Crime No.898/2013. Even these respondents through counsel have requested the Court to consider their oral request for grant of bail keeping in mind the exposition of the Supreme Court in Paragraph 20 of the decision in the case of Sundeep Kumar Bafna v.
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State of Maharashtra and another, AIR 2014 SC 1745 as has been done in other cases disposed of today to do substantial justice to the said respondents.
In the light of this submission, we called upon the learned counsel for the State to take instructions whether there is any material to oppose the prayer for bail qua these respondents. On instructions, it is fairly submitted by the learned counsel for the State that the investigation qua each of these respondents is complete. Their custodial interrogation is no more necessary. The immediate link with whom the concerned respondents had interacted has already been arrested.
In view of this submission, the concerned respondents who are present in Court and have surrendered before Court for consideration of their prayer for bail and given undertaking that they will extend full cooperation to the Investigating Officer for further investigation of the crime including for collection of material evidence against them. Further, they will give full cooperative for early disposal of the criminal trial and abide by any other conditions that may be imposed by the Court.
In view of the stand taken by the Investigating Agency and the undertaking given by the respondents in these applications, in the interest of justice, we direct release of the respondents on bail in Crime No.898/2013 on the
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following strict conditions:-
(1) The respondents namely; Anand Kashniya, Arvind Kumar, Mulendra Saiyam and Ku. Sonali Saiyam in the respective applications shall furnish personal bond in the sum of Rs.1,00,000/- (Rupees One Lac) each with two solvent local sureties in the like amount to the satisfaction of the Registrar (Judicial) of this Court by 13th April, 2015 for their regular appearance during the trial in connection with Crime No.898/2013 in Police Station Garha through Crime Branch, Jabalpur;
(2) The respective respondents shall also comply with the conditions enumerated under Section 437 (3) of Cr.P.C.
meticulously;
(3) Additionally, the respondents Anand Kashniya, Arvind Kumar, Mulendra Saiyam and Ku. Sonali Saiyam will report to their respective nearest Police Station Kothari (District Sehore); Police Station Ater (District Bhind); Police Station Waraseoni (District Balaghat),
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Police Station Pushprajgarh (District Anuppur) respectively, once a week on every Sunday between 10:00 a.m. to 12:00 noon unless required to attend the office of the Investigating Officer at Jabalpur on that day; and (4) The respective respondents will deposit their passport, if available, with the Investigating Agency within one week from today, else file affidavit in this Court within that time declaring that they do not have any passport of any country. This compliance will be condition precedent for release on bail.
Accordingly, the applications are disposed of on the above terms.
MCRC No.4382/2015Since notice is yet to be issued to the respondents, hearing of this application is deferred till 20th April, 2015.
To be listed along with companion matters. Issue notice to the respondents in the meantime. Dasti, in addition, permitted. Notices be handed over to the counsel for the State by tomorrow.
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MCRC No.3688/2015Re: Respondent No.1 :
Even this application should succeed on the same terms as in M.Cr.C.No.3443/2015 and as a result of which the bail order passed in favour of the respondent deserves to be set aside, being coram non judice, in exercise of powers under Section 439 (2) read with Section 482 of Cr.P.C.
The respondent No.1 is present in the Court and initially prayed for the same relief as granted to the respondent No.3 in M.Cr.C. No.3443/2015. However, in view of the stand taken by the Investigating Officer that investigation against him is still incomplete and the next link with whom the said respondent had interacted for commission of the alleged offence has not been traced and that matter is still being inquired into, the learned counsel for the said respondent submits that he would prefer to apply for regular bail before the concerned designated Court after surrendering before that Court in terms of this order so that all aspects can be examined by that Court and appropriate order may be passed after hearing both sides. For that, we give limited protection to the respondent No.1 Sanjeev Yadav to approach the designated Court taking up VYAPAM Examination Scam crimes and in particular Crime No.898/2013 by way of regular Bail Application on
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13th April, 2015. The said respondent will surrender before the concerned designated Court on that date at 11:00 A.M. and apply for regular bail which can be considered by the said Court on the same day. The Investigating Officer through counsel has taken a fair stand that he would make himself available before the designated Court on that date or depute some responsible Officer along with the relevant papers/record so that the bail application filed by respondent No.1 can proceed for hearing forthwith and decided preferably on that day itself. Until the said respondent surrender before the designated Court on 13.04.2015 as mentioned above, no coercive action be taken against him on condition that he shall appear daily before the local Police Station Garha, Jabalpur between 11:00 a.m. to 12:00 noon until 12th of April, 2015.
Re: Respondent No.2 :
Bail order granted to the respondent No.2 also deserves to be set aside being coram non judice, on the same terms as in the companion cases. However, in view of the stand taken by the Investigating Officer that the custodial interrogation of the respondent No.2 is not required and investigation qua him is complete and since the respondent No.2 has appeared before the Court and surrendered, he is granted the same relief as granted to the respondent No.3 in M.Cr.C.No.3443/2015. For the same
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reasons, the respondent No.2 is ordered to be released forthwith on bail on following conditions:-
(1) The respondent No.2 - Anand Patel shall furnish personal bond in the sum of Rs.1,00,000/- (Rupees One Lac) with two solvent local sureties in the like amount to the satisfaction of the Registrar (Judicial) of this Court by 13th April, 2015 for his regular appearance during the trial in connection with Crime No.898/2013 in Police Station Garha through Crime Branch, Jabalpur; (2) The respondent No.2 shall also comply with the conditions enumerated under Section 437 (3) of Cr.P.C. meticulously; (3) Additionally, the respondent No.2 will report to the Police Station Batiyagarh, District Damoh (M.P.) once a week on every Sunday between 10:00 a.m. to 12:00 noon unless required to attend the office of the Investigating Officer at Jabalpur on that day; and (4) The respondent No.2 will deposit his passport, if available, with the Investigating Agency within one week
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from today, else file affidavit in this Court within that time declaring that he does not have any passport of any country. This compliance will be condition precedent for release on bail.
Application disposed of on the above terms.
MCRC No.3847/2015Re: Respondents Nos. 2 and 4 :
As regards respondent Nos.2 and 4 application is disposed of on the same terms as in the case of MCRC No.3443/2015 with liberty to the respondents to apply for regular bail before the concerned designated Court after surrendering before that Court at 11:00 AM on 13th March, 2015. Until 13.04.2015, no coercive action be taken against the respondent Nos.2 and 4 on condition that they shall appear daily before the local Police Station Garha, Jabalpur between 11:00 a.m. to 12:00 a.m. until 12th of April, 2015.
Re: Respondents Nos.1, 3 and 5 :
As regards respondent Nos.1, 3 and 5 application is disposed of on the same terms as in MCRC No.3443/2015. Even these respondents are present before the Court. They have surrendered before the Court.
As the Investigating Officer through learned counsel for the State fairly stated that re-arrest of these respondents
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is not necessary as the investigation is complete and the immediate link with whom these respondents had interacted has also been arrested coupled with the fact that the respondents through counsel undertake to extend full cooperation for further investigation in the Crime, if required and including against them for collection of further evidence and also to punctually appear before the Trial Court to ensure early disposal of the trial registered against them.
Counsel for respondent No.1, 3 and 5, on instructions submits that these respondents are willing to give that undertaking. Since these respondents are present in Court, we take them in custody and entertain their prayer for grant of bail in connection with Crime No.898/2013.
We accordingly, in the interest of justice, keeping in mind the stand taken by the Investigating Officer direct grant of bail to respondent Nos.1, 3 and 5 namely Rajesh Kumar Armo, Sandhya Paraste & Jyotiraditya Bhalavi in connection with Crime No.898/2013 on the following strict conditions:-
(1) The respondent Nos.1, 3 and 5 namely -
Rajesh Kumar Armo, Sandhya Paraste and Jyotiraditya Bhalavi shall furnish personal bond in the sum of Rs.1,00,000/- (Rupees One Lac) each with two solvent
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local sureties in the like amount to the satisfaction of the Registrar (Judicial) of this Court by 13th April, 2015 for their regular appearance during the trial in connection with Crime No.898/2013 in Police Station Garha through Crime Branch, Jabalpur;
(2) The respondent Nos.1, 3 & 5 shall also comply with the conditions enumerated under Section 437 (3) of Cr.P.C.
meticulously;
(3) Additionally, the respondent Nos.1, 3 & 5will report to the Police Station Mandla, Police Station Dindori and Police Station Dindori respectively once a week on every Sunday between 10:00 a.m. to 12:00 noon unless required to attend the office of the Investigating Officer at Jabalpur on that day; and (4) The respondent Nos.1, 3 & 5 will deposit their passport, if available, with the Investigating Agency within one week from today, else file affidavit in this Court within that time declaring that they do not have any passport of any country. This
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compliance will be condition precedent for release on bail.
Application disposed of accordingly.
MCRC No.3898/2015The factual position in this application is identical to the case of respondent No.1 - Manoj Kumar Uike in M.Cr.C.No.3443/2015. Even in this application, bail order passed by the learned Single Judge of this Court on 10.02.2014 in M.Cr.C.No.519/2014 was before issuance of the notification to assign all cases pertaining to VYAPAM examination scam before DB-I. Thus, it was a valid bail order operating in favour of the respondent. For which reason the impugned order passed in favour of this respondent by the Trial Court will have to be understood to mean that the respondent was called upon to comply with the formalities for continuation of the interim protection during the pendency of the trial after filing of the charge sheet. For the same reasons as in Uike's case the application for cancellation of bail qua this respondent will have to be rejected.
The application is disposed of.
MCRC NO.3524/2015To be listed along with MCRC No.3896/2015 which application pertains to respondent herein.
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The gist of material against each of the respondents in the respective applications handed over to us for our perusal is ordered to be kept in sealed cover in the safe custody of Registrar (Judicial) until further orders.
(A. M. Khanwilkar) (Rohit Arya)
Chief Justice Judge
Psm/-