Madhya Pradesh High Court
Sudhir Sharma vs The State Of Madhya Pradesh on 30 October, 2015
Author: Sanjay Yadav
Bench: A.M. Khanwilkar, Sanjay Yadav
M.Cr.C. No.1258/2015
M.Cr.C. No.1260/2015
M.Cr.C. No.4309/2015
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
M.Cr.C. No.1258/2015
Sudhir Sharma ...Applicant
Versus
State of M.P. ...Respondent
M.Cr.C. No.1260/2015
Sudhir Sharma ...Applicant
Versus
State of M.P. ...Respondent
M.Cr.C. No.4309/2015
Sudhir Sharma ...Applicant
Versus
State of M.P. ...Respondent
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Coram:
Hon'ble Shri Justice A.M. Khanwilkar, Chief Justice
Hon'ble Shri Justice Sanjay Yadav, J.
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Shri Rajendra Tiwari Senior Counsel with Shri Kapil
Sharma Advocate for the applicant in all MCrCs.
Shri Vikram Singh, learned counsel for the CBI assisted
by Shri K. S. Wadhwa, Addl. Advocate General with Shri Piyush
Dharmadhikari, G.A. and Shri Prakash Gupta, P.L. for STF.
-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Reserved on : 14.10.2015
Date of Decision : 30.10.201520.
ORDER
Per Sanjay Yadav, J.
This order shall govern disposal of MCrC Nos.1258/2015, 1260/2015 and 4309/2015; whereby, the applicant seeks bail being arrested for offences under Sections 420, 467, 468, 471 & 120B of Indian Penal Code, Sections 65 and 66 of the M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 2 Information Technology Act, 2000 and under Section 3(Gha), 1 and 2/4 of the Madhya Pradesh Manayata Prapt Pariksha Adhiniyam, 1937, in Crime Nos.17/2013, 18/2013 and 20/2013. In Crime No.17/2013, the applicant was arrested on 6.11.2014 whereas in Crime No.18/2013, he was arrested on 25.07.2014 and in Crime No.20/2013, on 17.02.2015. Charge-sheets in these cases are respectively filed on 20.12.2014, 13.10.2014 and 23.05.2015.
2. Taking cue from the submissions by the counsel for the STF during course of hearing of bail applications in M.Cr.C. No.19371/2014 and M.Cr.C. No.19373/2014 recorded in paragraph 24 of order passed on 18.12.2014 wherein while opposing the bail applications, the prosecution had placed reliance on the decision of this Court in the case of Dr. Vinod Bhandari v. State of M.P. : 2014 (4) MPHT 103 (DB) decided on 11.8.2014 involved in the commission of similar offences and as to role of the applicant somewhat similar to the role of said Dr. Vinod Bhandari, it is contended on behalf of the applicant that Dr. Vinod Bhandari having been released on bail by order passed by the Supreme Court in Criminal Appeal Nos.1291-1292/2015 (arising out of SLP (Crl.) No.8433- 8434/2015) arising out of (Crl. M. P. No.15383-15384/2015) on M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 3 1.10.2015, Applicant be also now enlarged on bail.
3. It is contended on behalf of the applicant that since as per prosecution the case of the applicant is similar to that of Dr. Vinod Bhandari, the applicant is entitled for the same benefit as admitted to Dr. Vinod Bhandari. It is also contended that the investigation in all the three crimes viz. Crime No.17/2013, 18/2013 and 20/2013 having been complete and the charge sheets having been filed in the Court and no further custodial interrogation is required. And, that the applicant is on default bail in Crime No.4/2015, the applicant cannot be made to languish in jail. It is further contended that the rejection of bail application in past including the anticipatory bail application as also the regular bail during pendency of investigation be not taken as precedent and the rejection thereof will not prejudice the cause of the applicant for consideration of regular bail after the charge-sheets are filed in respective crimes.
4. The respondents however opposes the bail applications.
5. As per the prosecution, in Crime No.17/2013 the role ascribed to the applicant is that of middleman/racketeer in connection with Madhya Pradesh Police Subedar/Sub-Platoon Commander Recruitment Examination, 2012. It is alleged in the charge-sheet filed by STF on 20.12.2014 vide No.21-B/2014 M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 4 that the candidates viz. Gajendra Singh Thakur, Kehar Singh Rajput and Jyoti Sahu approached the co-accused Sanjeev Saxena, thereafter Sanjeev Saxena approached the applicant for selection in said examination. One another candidate viz., Santosh Sharma contacted a middleman Ramashish who contacted Sudhir Sharma for the selection in said examination. It is further alleged in the charge-sheet that the name, roll number and an illegal gratification was provided to the applicant who thereafter provided the roll number, name of all the four candidates to Nitin Mohindra, the then Principal, System Analyst through Dr. Pankaj Trivedi, the Controller of VYAPAM office. The OMR Sheets were left blank and in pursuant of criminal conspiracy hatched with the Vyapam Officials enabled the said candidates wrongfully and illegally qualify in the said examination.
6. As per Crime No.18/2013 the prosecution case is that it was registered on 23.11.2013 against 53 named accused persons and unknown others at Police Station STF Bhopal under Sections 420, 467, 468, 471 read with 120B IPC, 3(d)(1), 2/4 of M.P. Manayataprapt Pariksha Adhiniyam, 1937 and under Section 65 and 66 of Information Technology Act on the basis of complaint of Deputy S.P. Shri D.S. Baghel of STF M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 5 Bhopal with regard to irregularities/illegalities in the recruitment of Police Constables conducted by Vyapam in the year 2012. The role ascribed to the applicant is that of a middleman /racketeer in the recruitment of Constables for the year, 2012 and has in connivance with Vyapam Officials viz. Nitin Mohindra, Pankaj Trivedi and Sanjeev Saxena helped accused candidates Sudhir Kumar Sharma (the beneficiary and not the applicant), Praveen Sharma, Ankit Rawat, Durgesh Singh, Brijesh Singh and Bharat Singh Thakur. It is also the prosecution case that in respect of two candidates, who were his relatives viz., Pankaj Sharma and Sudhir Kumar Sharma, the applicant who was working as Chairman of CRISP (Center for Research and Industrial Staff Performance) and knew Vyapam Controller Pankaj Trivedi and gave the name and roll number of these two candidates to get them selected. It is also alleged in the charge sheet that Sudhir Sharma, the applicant and Sanjiv Saxena (a co-accused in Crime no.17/2013) knew each other as they studied together at Jhabua. Sanjeev Saxena requested the applicant to forward the names of three accused candidates viz., Durgesh Singh, Brijesh Singh and Bharat Singh Thakur to Pankaj Trivedi for ensuring their illegal selection. That accused candidate Ankit Rawat contacted applicant who, in turn, M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 6 contacted Pankaj Trivedi to help him in his selection.
7. In respect of Crime No.20/2013, the prosecution case is that being in mining business the applicant came in contact of the then Minister Laxmikant Sharma and many influential persons in the course of his business and played major role in appointment of Dr. Pankaj Trivedi as the Controller of Vyapam due to his political influence. It is the allegation in the charge sheet that he conspired with Dr. Pankaj Trivedi and candidates for qualifying the test of Samvida Shala Shikshak Patrata Pariksha Varg (2)- 2011 Examination (Contract Teacher Grade- II Eligibility Examination-2011). Further case of prosecution is that the Hard Disk Drive of Nitin Mohindra seized in Crime No.539/2013 was got examined at DFS, Gandhinagar and a copy of the CD containing the deleted data of the hard disk of the said computer was obtained during the investigation by STF. The excel sheet of deleted data revealed that the name of the applicant i.e. Sudhir Sharma figured against the accused beneficiary.
8. It is on these facts the CBI has distinguished the applicant's case from that of Dr.Vinod Bhandari. It is contended that considering the role of the applicant being a racketeer in the commission of the alleged offences, which are serious in M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 7 nature and would entail in punishment of life sentence and because of the fact that the Challan though filed but the charges are yet to be framed and the witnesses are to be examined and the applicant being an influential person and is in a position to influence the fair trial, the prosecution seek dismissal of applications.
9. Considered rival submissions.
10. Though parameters for consideration of bail during investigation and after filing of charge sheet may differ in some cases but the factors which were determinant at the pre-charge sheet stage still have the relevancy while considering the application at post charge sheet stage and the parity is not the sole criteria for grant of bail.
11. However, before dwelling on these aspects certain prima facie facts which led to dismissal of earlier application including an application for grant of anticipatory bail needs a reiteration, because the same will continue to have a bearing even during trial or till the stage the crucial prosecution witnesses are examined. Because for exercising the discretion, following factors play important role in determining whether an applicant would be entitled for bail-
(i) Whether there is any prima facie or M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 8 reasonable ground to believe that the accused had committed an offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) likelihood of the offence being repeated;
(vi) reasonable apprehension of the witness being influenced and
(vii) danger, of cause of justice being thwarted by grant of bail.
(viii) character, behaviour, means, position and standing of the accused.
[Please see : Prasanta Kumar Sarkar v.
Ashis Chatterjee (2010) 14 SCC 496]
12. While dwelling on applications for anticipatory bail in Crime No.17/2013 and 18/2013 in M.Cr.C. No.9567/2014 and M.Cr.C. No.9568/2014 on 9.7.2014, this Court was inclined to issue direction and to permit the applicant to appear before the Court by next day and till then he could be extended protection of no arrest. However, the counsel for the applicant after deliberation with the instructing Advocate who in turn, presumably contacted the applicant on telephone call made M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 9 from outside the Court room, took a stand that the applicant will not take the risk of appearing before the Court and it will not be possible for him to appear. It was stated that the applications be decided on merits. Taking into consideration the role of the applicant in the commission of offence as a racketeer in connection with the admission in professional courses including medical course and recruitment to various public posts. And, as per prosecution, his role being significant, the anticipatory bail application was rejected.
13. At this juncture, we intend to make it clear that we are aware of the fact that in respect of crime No.17/2013, 18/2013 and 20/2013 final charge-sheets have been filed on 20.12.2014, 13.10.2014 and 23.05.2015 respectively (that in crime No.18/2013 four other supplementary challans have been filed against the other accused persons) and that the findings in order dated 09.07.2014 was of the period during pendency, however, one of the factors which is relevant for consideration of a bail application being "character, behaviour, means, position and standing of the accused." The antecedent, therefore, become one of the major factors in considering application for bail.
14. We move further to note the conduct of the applicant which he displayed when in custody while considering the M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 10 applications for bail vide M.Cr.C. No.19371/2014 and M.Cr.C. No.19373/2014 decided on 18.12.2014 wherein while taking note of the contents of the material placed by the Investigating Agency in form of compilation tendered in a sealed cover during course of hearing, it was observed :
"27. ... It is undeniable that the investigation in this crime is a complex one; and, more particularly, becomes challenging on account of charge of conspiracy, which will have to be established on the basis of evidence, which may not be necessarily direct evidence. We have been informed that the Investigating Agency is in the process of recording statement under Section 164 of the Code of one of the co-accused. Considering the complexity of the investigation because of the multiple players involved in the commission of offence, in our opinion, it may not be just and proper to release the applicant on bail by adverting to the material filed along with the charge sheet filed against the co-accused. For, the nature of accusation against the applicant is of having acted as a racketeer. The offence, if proved, against the applicant will visit him with life sentence. The supporting evidence for establishing the guilt of the applicant, as aforesaid, has been gathered in part and the process of gathering further evidence and including verification of the evidence and the material already gathered is in progress. Although one of the factor to be borne in mind by the Court is whether there is likelihood of accused fleeing from the ends of M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 11 justice and tampering with the prosecution witnesses. In a matter of such serious offence, granting bail would, inevitably, slow down the investigation and may entail in denying a fair opportunity to the Investigating Agency of recording statement of co-accused under Section 164 of the Code. That evidence would certainly be admissible and help the prosecution in establishing the guilt of the concerned accused, who were members of the conspiracy. The role ascribed to the applicant is not of an ordinary beneficiary or facilitator having acted as conduit between the beneficiary and the middleman. According to the prosecution, the applicant is one of the kingpin and not only involved in Crime No.17/2013, but, has already been named as accused in another Crime No.18/2013, which is of the same type. As per the confidential note presented to us, it seems that the applicant is likely to be named as accused, at least, in two more offences of the same type after due verification of his role from the material gathered in the said crimes. For all these reasons, we are more than satisfied that the applicant cannot be released on bail, at least, until filing of the charge-sheet in Crime No.17/2013."
15. Furthermore, we prima facie gather from the charge- sheet the consistency in the role ascribed to the applicant during investigation i.e. a racketeer in respect of Crime No.18/2013, while taking note of the submission on behalf of M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 12 applicant in M.Cr.C. No.19373/2014 on 18.12.2014, it was observed that-
"28. .... Another co-accused Nitin Mohindra has also confirmed about the role of the applicant and has disclosed the names of candidates sponsored by the applicant, as has been indicated by co- accused - Dr. Pankaj Trivedi. Co-accused - Nitin Mohindra was working as Programmer, at the relevant time, in M.P. Professional Examination Board at Bhopal. He has stated that the names were given to him through one Sanjeev Saxena. The fact that this co-accused does not personally know the applicant, cannot extricate the applicant if other materials filed along with the charge-sheet against the applicant were to be accepted as it is. The applicant has been named as one of the conspirators and having helped the stated candidates in fraudulently passing the Constable Recruitment Examination 2012. The charge-sheet already filed against the applicant in this crime on 15th October, 2014, not only discloses the role of the applicant, but, also refers to the material, which will be relied by the prosecution during the trial........"
"29- From the above, it is noticed that besides the memorandum under Section 27 of the co-accused, the prosecution will be relying on hard-disk data recovered from co-accused Nitin Mohindra, mapping valuation sheet, analysis of OMR sheet, matching telephone calls of the applicant with that of co- accused Ramshesh Sharma etc. This material, itself, is sufficient to indicate the complicity of the applicant in the commission of Crime No.18/2013, if proved. The question of admissibility of this evidence will have to be tested at the trial. But, this material is certainly relevant for recording prima facie satisfaction about the involvement of the applicant in the alleged crime. Further, it has been stated across the Bar that after filing of the charge-M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 13
sheet on 15th October, 2014, against the applicant in Crime No.18/2013, further investigation has been done and the Investigating Agency has been able to unravel additional material establishing complicity of the applicant in the commission of that crime. That material has been placed before us in a sealed cover for our perusal. Since it is yet to be placed on record along with the supplementary charge-sheet, we do not deem it appropriate to dilate on that material - as that may prejudice the investigation and also, inevitably, result in disclosure of the further material gathered by the Investigating Agency. That must be eschewed. The fact that there is some doubt about the money transactions in respect of some of the candidates would make no difference at this stage. Suffice it to mention that additional material will form part of the supplementary charge-sheet/Police Report to be filed before the concerned Court against the applicant in Crime No.18/2013 by first week of January, 2015. Considering the role of the applicant, being a racketeer in the commission of the alleged offence, which is a serious offence and would entail in punishment of life sentence and because of the complexity of the investigation, the prayer for grant of bail even in Crime No.18/2013 cannot be entertained at this stage."
16. Evidently, the bail application as for Crime No.18/2013 was being considered after filing of the charge-sheet which was taken note of in paragraph 29 of the order dated 18.12.2014. And, since the charges are yet to be framed, there being no changed circumstance, as would warrant a different view than expressed on 18.12.2014 in respect of Crime No.18/2013.
17. It was also noticed on 18.12.2014, as is evident from M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 14 paragraph 30 and 32 of the order, that the Investigating Agency i.e. the STF, as it was then the investigating agency, was in the process of recording statement of one of the co- accused under Section 164 of Cr.P.C. We are informed by the CBI, the present Investigating Agency, that after taking over from the STF very recently i.e. in September 2015 the decision recording re-registration of the case (i.e. Crime No.18/2013) by the CBI or to supervise is yet to be taken as the scrutiny of the documents running into about 4000 pages is underway. In view whereof, the release of the applicant at such a crucial stage of the investigation by CBI may defeat the process of proper and fair trial.
18. That, while dwelling on bail application in both these crimes in M.Cr.C. No.19371/2014 and M.Cr.C. No.19373/2014, though it was expressed that releasing the applicant on bail is not advisable, at least, till filing of the charge-sheet in Crime No.17/2013 and final charge-sheet in Crime No.18/2013. The situation, however, has not altered even with the filing of the charge-sheet in both the crime, as the nature and gravity of the accusation, severity of the punishment in the event of conviction, character, behaviour, means, position and standing of the accused, reasonable apprehension of the witness being influenced, danger of justice being thwarted if released on bail, being adverted at and analysed, suggest rejection of the M.Cr.C. No.1258/2015 M.Cr.C. No.1260/2015 M.Cr.C. No.4309/2015 15 applications. Accordingly, we reject these applications.
19. While dismissing these applications, we make it clear that above observations are only meant for the purpose of considering these bail applications and will have no bearing on the trial.
(A.M. KHANWILKAR) (SANJAY YADAV)
CHIEF JUSTICE JUDGE
Loretta & das