Madhya Pradesh High Court
Virendra Patidar vs The State Of Madhya Pradesh on 2 February, 2016
MCRC-5668-2015
(VIRENDRA PATIDAR Vs THE STATE OF MADHYA PRADESH)
02-02-2016
Shri Atul Gupta, learned counsel for the petitioner.
Shri DS Chouhan, learned counsel for respondent CBI Vyapam Cell,
Bhopal.
This petition is listed today along with various connected identical matters for grant of bail relating to the cases of Vyapam Scam. Various counsel, through whom the petitioner or petitioners of other connected matters are represented, are also present.
2. Shri Vinay Kumar, Superintendent of Police, CBI, Vyapam Cell, Bhopal along with some investigating officers of different crime numbers relating to Vyapam Scam, taken over for supplementary investigation by the CBI are also present along with respective case diaries.
3. We would like to mention here that to consider some technical question relating to impact of the order of the Apex Court dated 14/12/2015 passed, in a bunch of Special Leave to Appeals (Cri), in SLP (Cri.) 9803/2015 over this petition to assist the Court, the Assistant Solicitor General of Union of India namely Shri Vivek Khedkar as well as Senior Advocate Shri V.K. Saxena along with his assisting counsel Shri Aditya Singh, Shri Jitendra Sharma, Shri Prashant Sharma, Shri Amar Sharma accompanying other counsel of different connected petitions are present.4. In view of availability of the case diary, this petition is taken up for hearing on merits.
5. On behalf of the petitioner, this second repeat petition is preferred under section 439 of C.P.C. for grant of bail to the petitioner as he is in custody since 25/11/2014 in connection with Crime No.285/2014 initially registered at Police Station Jhansi Road, Gwalior for the offences of sections 419, 420, 467, 468,471,120B and section 3/4 of the Madhya Pradesh Recognized Examination Act.
6. It is also mentioned here that in the light of the Apex Court's order, after taking over the cases relating to scam of Vyapam for further investigation by the CBI, the number of the aforesaid Crime No.285/2014 has been re- numbered in the office of CBI Vyapam Cell Bhopal, as RC 217/2015/S/0006 and at present, Shri Harish Goyal, Inspector, CBI present in the Court, being investigating officer is carrying out further investigation.
7. Before some days, in our respective chambers, record of disposed of MCRC No.6624/2015 decided by us vide order dated 13/10/2015 whereby bail application of the accused Pavan Kumar Rajput filed u/s 439 of Cr.P.C. in identical matter relating to the same scam was dismissed on merits, along with records of other four MCRCs in which also identical applications for grant of regular bail were dismissed by us, along with the copy of the order dated 14/12/2015 passed by the Apex Court in the Special Leave to Appeal (Cri) 9803/2015 decided along with other SLPs (Cri) No.9857/2015, 9863/2015, 7329/2015 and 7361/2015 filed against the aforesaid orders of this Court were placed. According to such orders, such Special Leave to Appeals were disposed of by the Apex Court with the following dictum and directions :-
âExemption from filing O.T. is granted.
We have heard the learned counsels for the parties. The materials required to be placed before the Court in terms of the order dated 7th December, 2015 have been so placed by Shri Ranjit Kumar, learned Solicitor General appearing for the CBI though not in the form of an affidavit. We have taken the same on record. According to the CBI, further investigation in each of these cases is required to be carried out for which custodial interrogation of the accused in each of the cases is required. Though the learned Solicitor General had submitted, on instructions received, that about six months further time is required, we are of the view that the CBI should endeavour to complete the investigation in these cases by 31st March, 2016. Thereafter it will be open for the the accused- petitioners to move the learned trial Court for bail once again.
In so far as the accused Sanjeev Saxena is concerned, we make it clear that once the investigation in terms of the present order is completed within the time -frame indicated above, it will be open for the accused Sanjeev Saxena to move for bail in any other connected cases(s) that may have been instituted against him.
With the aforesaid observation and directions the present Special Leave Petitions are disposed of.â
8. According to the aforesaid order, considering the request of the Solicitor General of Union of India in part the Apex Court directed to the CBI to take an endeavour to complete the further investigation of the cases upto 31st March, 2016 with a further observation that thereafter it will be open for the petitioners/accused to move the trial court for bail once again.
9. In the above-mentioned circumstances, on asking the petitioner's counsel that as per Article 141 of the Constitution of India the order passed by the Supreme Court becomes the law of the land and once considering the request of the CBI, period up-to 31st March, 2016 has been extended to it to conclude further investigation in the matter, then such order being passed in identical circumstances is binding on the parties as well as on this Court in the identical matters. In such premises, this Court is also bound to proceed in the present matter and all connected identical matters in accordance with the spirit and the directions of the aforesaid order of the Apex Court, if the request is made on behalf of the CBI that in further investigation, interrogation of the accused in custody is required then this Court has to give time to the CBI upto 31 st March, 2016, to complete the further investigation, by extending liberty to the petitioner to revive the prayer for grant of bail after 31st March, 2016, on which Shri Gupta submits that such order being passed by the Apex Court in the matter of the concerning petitioners who approached the Apex Court after dismissal of their petitions by this Court filed under section 439 of Cr.P.C., is not binding in the present matter. He further stated that bail petition is always considered in case to case basis and while dealing with bail petition of the accused like the petitioner it deserves to be decided independently and not on the basis of any precedent including the aforesaid order of the Apex Court which was passed in the absence of the petitioner and without extending any opportunity of hearing to him, hence, such order of the Apex Court is binding only till the extent of the parties of such SLPs and not to the case of the present petitioner or the petitioners of the connected petitions.
10. It is not in dispute, as stated above, that in other connected matters, the concerning petitioners/accused are represented through other counsel including Senior Advocate Shri V.K. Saxena. Advocates Shri Jitendra Sharma, Shri Prashant Sharma, Shri Amar Sharma and also others. On asking the counsel present to make submissions, on the aforesaid question, on which with the consent of all the Advocates of the petitioners Shri V.K. Saxena, Senior Advocate assisted by Shri Aditya Singh, Advocate Shri Jitendra Sharma, Shri Prashant Sharma and Shri Amar Sharma, Advocates have argued the matter to assist the Court to adjudicate the aforesaid question.
11. Shri V.K. Saxena, learned Senior Advocate after taking us through the aforesaid order of the Apex court dated 14/12/2015 said that such order could not be considered as a barrier for hearing and allowing the respective bail petitions of the petitioners who were not parties before the Apex Court. He further said that such order has been passed by the Apex Court in respect of such petitioners who approached the Apex Court and in such premises, such order is binding only against those persons who were before the Apex Court. In such premises, on the basis of such order, present petition as well as the other connected petitions could neither be disposed of, nor be dismissed nor hearing of the same could be deferred till 31 st March, 2016. He further said that mere perusal of the aforesaid order of the Apex Court it appears that the same was passed taking into consideration the papers placed by the CBI on the records of the cases of concerning petitioners according to which custodial interrogation of concerning accused was required, which is not a situation in the cases pending before this Court for grant of bail. So in any case, unless the CBI counsel is in a position to show with specific reasons and grounds that interrogation of the arrested accused is required, merely on the basis of the aforesaid order of the Apex Court, bail petitions could not be disposed of by extending liberty to revive the prayer after 31st March, 2016 with a direction to the CBI to conclude further investigation by that time. He further said that treating the aforesaid order of the Apex Court to be a precedent for this case, persons like the present petitioner and the petitioners of the connected petitions listed today, could not be deprived of the opportunity of hearing on merits on an early date prior to 31st March, 2016, specifically when they have not approached the Apex Court in the aforesaid petitions, in which the above- mentioned order was passed. He also stated that the principle of natural justice and liberty enshrined under Article 21 of the Constitution of India, according to which accused like the petitioner should not be deprived from hearing in accordance with the process established by law and, in such premises, irrespective of the aforesaid order of the Apex Court, petitioner has a right to demonstrate his case on merits for grant of bail and after hearing the arguments of the CBI Counsel, if the Court comes to the conclusion that custodial interrogation of the petitioner is not required for further investigation, then the bail petition may be considered and allowed on merits of the matter.
12. Shri Jitendra Sharma, counsel appearing in some other connected petitions relating to same Scam of Vyapam argued that as per settled proposition every order of the Apex Court could not be considered to be a precedent unless the same lays down any law or the principle on some question. Mere perusal of the aforesaid order of the Apex Court, it is apparent that in such order neither any law is laid down nor any principle has been enunciated; in any case the aforesaid order is not a judgment in rem and in such premises, it is not binding on any other person except the parties between them the same was passed by the Apex Court. Such order of the Apex Court could be treated to be only a judgment in persona as defined under the Evidence Act and, therefore, the same is not binding on any of the petitioners of this petition or connected petitions listed today. As such this Court is bound to decide each and every case on the basis of its own facts and the alleged offending act of the accused, and on perusal of the case diary, if custodial interrogation of the arrested petitioner who is inside the jail is not required, then, in that circumstances, considering the petition of such petitioner on merits, he should be released on bail. In this background, he said that CBI has not made any request before this Court in writing alongwith the documents for further custodial interrogation of the petitioner and prayed to hear and allow the petition on merits.
13. Shri Prashant Sharma, counsel appearing in some other connected matters listed today, after adopting the arguments advanced by the Senior counsel and the aforesaid counsel, in addition said that on mere perusal of the provisions of Chapter XXXIII of Cr.P.C relating to bail and anticipatory bail in its present form, it is apparent that on deciding one petition or various petitions either by this Court or the Apex Court or any Court either side the right of hearing of the other petitioners or other accused on bail, petition relating to identical cases, is not ceased in the existing law. If on the aforesaid technical ground the petition is dismissed, then it comes under the purview of denial of hearing to the petitioner on the bail petition. In continuation, he also said that there are different crime numbers and aforesaid order of the Apex Court could not be treated to be in respect of all the crime numbers relating to alleged scam; they are based on different facts and circumstances and prayed to hear and decide the bail petition on merits.
14. Shri Amar Sharma, counsel appearing for the accused in some other connected petitions listed today, said that in the lack of any present status report of the further investigation, merely on the basis of order of the Apex Court, period upto 31st March, 2016 or some other period could not be fixed by the Court to carry out further investigation and in the lack of such papers, this Court is bound to hear and decide the petition on merits and not to deprive the petitioners from hearing on merits by disposing of the same in the light of the order of Apex Court.
15. On the other hand, Shri Vivek Khekdar, Assistant Solicitor General of Union of India accompanied with Shri DS Chauhan, counsel for the CBI (VYAPAM) Cell, Bhopal, opposed the aforesaid submissions of the counsel of the petitioner and the counsel of the petitioners of connected petitions. After taking us again through the aforesaid order of the Apex Court, argued that although aforesaid all the cases, in which the Apex Court on the request of Solicitor General of India appearing on behalf of the CBI has fixed the time limit for further investigation up-to 31st March, 2016 by extending a liberty to the concerning petitioners to revive the prayer before the trial Court i.e. in Crime Nos. 449/2013 and 138/2013, initially registered at Police Station Jhansi Road, Gwalior which after taking over by the CBI have been registered as RC 217/15/S/0109 and RC 217/15/S/0105 respectively and one more Crime number which was registered at some Police Station of Jabalpur and said that mere perusal of the case diaries of all the cases relating to other crime numbers including the case diary of the case at hand, it is apparent that all the cases relating to the same Scam of VYAPAM and in the light of the earlier decision of the Apex Court, all such cases have been taken over by the CBI for further investigation. It is also undisputed position that in all matters after re-registration in the Office of CBI VYAPAM Cell Bhopal further investigation is being carried out and during such investigation, not only in those cases in which the Supreme Court has passed the order but also in other connected matters in which further investigation is being carried out, custodial interrogation of the accused in such investigation is required and for that purpose, the CBI is taking appropriate steps in accordance with procedure prescribed under the law. In continuation, he said that merely on perusal of the Article 141 of the Constitution of India, it is apparent that the law laid down by the Apex Court is the law of the land and in such premises, every party or any subordinate court has no authority to give any different or further interpretation to the order and the same is binding as it is on the parties as well as on the subordinate court including this Court. In support of such contention, he has referred to Para 39 of the decision of the Apex Court in the matter of CIT Vs. M/s Sun Engineering Works (P) Ltd, AIR 1993 SC 43. He has also placed his reliance on a decision of the Apex Court in the matter of Rajesh Ranjan Yadav Vs. CBI, (2007) 1 SCC 70 and referred to paragraphs 10, 12, 16 and 24 of the same. He further said that mere long lodgment in jail could not be treated to be a sufficient ground to release on bail. In support of such contention, he has placed reliance on a decision of the Apex Court in the matter of Kalyan Chandra Sarkar Vs. Rajesh Ranjan, (2005)2 SCC 42 and referred paragraph 18 of the same.
16. In response of some specific query of the Court, he said that in all the matters listed today custodial interrogation of the accused, who are in judicial custody, are required and to carry out such investigation, minimum period as fixed by the Apex Court in the aforesaid order is required. In further argument, he said that he does not dispute the principle that every bail petition is to be decided on the basis of its individual facts relating to the concerning accused and the available evidence of case diary but whenever any direction or observation is given by the Higher Court to carry out the investigation, then such direction being a dictum of the superior court is binding in all connected identical matters. In such premises, it could not be assumed that the Apex Court has not given any direction or has not decided any precedent or principle while passing the aforesaid order. He further stated that in view of the principle laid down in the aforesaid cited cases, on the basis of aforesaid arguments of senior counsel and other counsel of the petitioners, it could not be assumed that the Supreme Court has disposed of the aforesaid petitions by extending a liberty to revive the prayer to the petitioners- accused before the trial Court after 31st March, 2016 on the basis of some specific documents, as such, in the lack of any description of papers or any documents nothing could be assumed or presumed by this Court. In continuation, by referring the last two paragraphs of the aforesaid order of the Apex Court, he said that mere perusal of the part relating to Sanjeev Saxena, it is apparent that such order was passed in connection with some other connected matters also and in view of such language of the order, this Court is also bound to consider such aspect in respect of all connected matters pending before this Court and prayed to dispose of these petitions in view of the direction of the Apex Court given in the aforesaid order dated 14/12/2015.
17. Before proceeding to give findings in the matter, it is also mentioned that Shri Atul Gupta, has also argued the case on merits before us for grant of bail to the petitioner. He has also referred the copy of the charge-sheet from his brief filed against the petitioner.
18. Having heard, keeping in view the arguments advanced, we have carefully gone through the case diary available with the counsel of CBI, so also the copy of aforesaid order of the Apex Court dated 14/12/2015 passed in a consolidate manner in various SLPs in Special Leave to Appeals in (Crl) No(S). 9803/2015. In the available scenario of the matter, especially in the light of the aforesaid order of the Apex Court extending the period up-to 31st March, 2016 to CBI to carry out further investigation of the matter with liberty to the concerning accused- applicant to revive the prayer thereafter for grant of regular bail before the trial Court, we deem fit to consider the first question in this petition as to whether in view of the aforesaid dictum of the Apex Court keeping in view the submissions of Shri Vivek Khedkar, Assistant Solicitor General of Union of India for the CBI that all the crimes registered in the office of CBI relating to Scam of VYAPAM against the petitioner/accused of this petition and all other connected petitions, who are also in judicial custody, their custodial interrogation is required in further investigation and if the same is required, then how much time is extended to the CBI to carry out such further investigation.
19. In order to answer the aforesaid question, firstly we have carefully gone through the order of the Apex Court as reproduced above. Mere perusal of the same, it is undisputed that after dismissal of the applications for grant of regular bail in the crime of the alleged Scam of Vyapam by this Court, the concerning accused against the order of this Court approached the Apex Court and on consideration, considering the prayer of the CBI Counsel taking into consideration the papers placed on record, instead of period of six months, the CBI was directed to take an endeavour to complete the further investigation in the relating cases upto 31st March, 2016 and further it was observed that thereafter it will be open for the accused- petitioners to move the learned trial Court for bail once again.
20. In view of the principle laid down by the Apex Court in the aforecited cases, namely, M/s Sun Engineering Works (P) Ltd, Rajesh Ranjan Yadav and Kalyan Chandra Sarkar (supra), we are of the considered view that after passing the order by the Apex Court, any sub-ordinate Court including this Court, is not having any authority to give any further or other interpretation to any ''word'' or ''sentence'' of such order of the Apex Court, as such the subordinate court and the High Court, in view of Article 141 of the Constitution of India, are bound by such dictum and verdict, as law of land. Although senior counsel and other counsel have submitted their attractive arguments by giving different interpretations with different dimensions to the Supreme Court order, but we are afraid to consider such arguments in view of the principle of judicial proprietary of law. If any further interpretation of any ''sentence'' or ''word'' is required, then the concerning or affected party is always at liberty to approach the Apex Court. In such premises, the arguments advanced by senior counsel Shri V.K. Saxena and other counsel on behalf of the petitioners-accused of concerning petitions, have not appealed us.
21. In the aforesaid circumstances, and the situation of case, especially in view of the submissions of Shri Khedkar, Assistant Solicitor General of Union of India for the CBI that in further investigation, the custodial interrogation of the petitioners- arrested accused of this petition and other petitions are required and for that purpose, he prayed for the period upto 31st March, 2016 in consonance of the aforesaid dictum of the Apex Court, taking into consideration the verdict of the Apex Court given in the aforesaid order dated 14/12/2015 in identical matters relating to the same scam without entering into any other merits of the matter, at this stage, this petition is disposed of with a direction to the CBI Counsel to take an endeavour to conclude further investigation upto 31st March, 2016 and thereafter, the petitioner of this petition and the petitioners of connected petitions are at liberty to revive the prayer for grant of bail. On filing such petition, the same shall be considered in accordance with the procedure prescribed under the law.
22. At the request of Shri Jitendra Sharma and Shri Abhishek Parahsar, it is observed that prior to 31st March, 2016 if any subsequent order is passed by the Apex Court in any matter relating to the same scam which may give right to the petitioner or the petitioners of connected petitions to revive the prayer before 31st March, 2016, in such circumstances, the petitioner/s shall be at liberty to revive the prayer for grant of bail before 31st March, 2016.
23. Office is directed to place a copy of this order in all connected matters listed today because without entering into any other merits of the matter, in the light of the aforesaid submission of CBI Counsel and the verdict of the Apex Court in the aforesaid order dated 14/12/2015 by extending the period to the CBI to complete further investigation upto 31st March, 2016, with liberty to the petitioners-accused to revive the prayer for grant of bail as stated above, all connected identical bail petitions are also disposed of.
24. Let a typed copy of this order be given to the counsel of CBI with a direction to further circulate its copy to all the investigating officers of the CBI relating to further investigation of the cases relating to the scam of Vyapam for compliance.
(U.C. MAHESHWARI) (SUSHIL KUMAR GUPTA)
JUDGE JUDGE