Madhya Pradesh High Court
Dr. Vinod Bhandari vs The State Of Madhya Pradesh on 11 August, 2014
M.Cr.C. No.10371/2014 1
ORDER
11/08/2014 Per : K.K. Trivedi, J:
Shri S.C. Dutt and Shri Manish Dutt, learned senior Counsel with Shri Siddharth Dutt, learned Counsel for the applicant.
Shri P.K. Kaurav, learned Additional Advocate General for respondentState.
This is repeat bail application by the applicant/accused, who has been arrested for offences committed under Sections 420, 467, 468, 471, 120B of I.P.C. read with Section 3(d), 1, 2/4 of the Madhya Pradesh Manyata Prapt Pariksha Adhiniyam, 1937 and under Sections 65 and 66 of the I.T. Act by the Police of S.T.F., Bhopal in Crime No.12/2013 and challan has been filed. The applicant was arrested on 30th January, 2014 and since then he is in jail. The first bail application was moved before the learned Additional Sessions Judge, Bhopal by the applicant, which was rejected on 05.02.2014. He moved an application before this Court being M.Cr.C. No.2189/2014 before the filing of challan, which application was withdrawn by him with liberty to file fresh bail application after filing of the challan before the Court below, vide order dated 19.03.2014. After making an application for grant of bail before the Court below since the said application was M.Cr.C. No.10371/2014 2 rejected vide order dated 09.05.2014, this application has been filed for grant of regular bail.
2. It is vehemently contended by learned senior Counsel for the applicant that since investigation as far as the applicant is concerned, is complete, there is no requirement of keeping the applicant in custody any longer and these aspects were not considered by the Court below while rejecting the bail application. Hence the applicant is entitled to be release on regular bail. It is further contended that in similar circumstances, some other accused involved in the very same crime, have been granted bail by this Court. It is contended that the applicant is entitled to grant of bail as there is no legal evidence available against him as per the challan filed by the prosecution. The applicant is willing to furnish the surety to the satisfaction of the Court and is also ready to surrender his passport to avoid any apprehension of absconding or fleeing from the ends of justice. He is also ready to attend the police station everyday till the trial is completed. The undertaking is further given that the applicant is willing to abide by all terms and conditions as may be imposed by this Court, if he is admitted to privilege of bail.
3. Learned Additional Advocate General, on the strength of material accompanying the challan and on the instructions so received, contended that the M.Cr.C. No.10371/2014 3 investigation is still going on inasmuch as the statements of certain persons, who have been named as accused and/or being named as prosecution witnesses, are to be recorded under Section 164 of the Code of Criminal Procedure. A huge amount was recovered from an employee of the applicant, who is coaccused in the same crime, on his making a statement. Fact further remains that the challan has been filed keeping in view the outer limit of filing of the challan in case of an accused in custody but still investigation of scam is going on in which there is likelihood of filing of further challan indicating the evidence available against the applicant. The present applicant is an influential person and in case he is enlarged on bail, there is every likelihood that the investigation would be hampered.
4. Learned senior Counsel has invited our attention to the material available against the applicant in so far as the present state of challan is concerned. It is contended that looking to the said material, it is clear that there is no legal evidence against the applicant. It is contended that the evidence, as have been indicated in challan papers against the present applicant, do not make out a case of any such offence that would be proved against him. It is contended that the statement of coaccused even made under Section 27 of the Evidence Act cannot be used against the applicant. There is no iota of legal M.Cr.C. No.10371/2014 4 evidence with respect to the excelsheet, which has been prepared after receiving the data from the harddisc of computer seized from other coaccused. Merely mentioning of first name without giving any description, it cannot be said that the applicant was the person whose name was referred in the said excelsheet. There is no proof of identity and, therefore, such an evidence cannot be read against the applicant at this stage. It is contended that the trial is to be conducted by a Magistrate, which will take a long time and looking to such scanty evidence available against the applicant, if he is not released on bail, in fact he would undergo the entire length of sentence which could be imposed after the trial, even without finding him guilty of such offence. It is, thus, contended that in catena of cases, in such circumstances the Apex Court has held that the accused is entitled to grant of bail. Primarily, learned senior Counsel for the applicant has placed their reliance on the case of Pulukuri Kottaya and others Vs. Emperor, AIR (34) 1947 Privy Council 67, and contended that in fact the entire evidence as well as the statement of co accused is not admissible in view of the well settled law. It is contended that considering these aspects, the law is further explained in the case of Prabhoo vs. State of U.P., AIR 1963 SC 1113, and thus the said evidence is not to be read at all. It is contended that circumstantial evidence, the nature of offence and all other aspects have M.Cr.C. No.10371/2014 5 been looked into by the Apex Court in the case of Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40, and it has been held that the regular bail is not to be refused in such circumstances. Further placing reliance in the case of Dipak Subhashchandra Mehta vs. Central Bureau of Investigation and another, (2012) 4 SCC 134, it is contended that in such circumstances the applicant would be entitled to grant of regular bail.
5. On the other hand, learned Additional Advocate General has placed reliance on the cases of Ram Narain Poply vs. Central Bureau of Investigation, AIR 2003 SC 2748, Kanwar Singh Meena vs. State of Rajasthan and another, (2012) 12 SCC 180, Dipak Subhashchandra Mehta (supra), Manoj Ramesh Mehta vs. state of Maharashtra, AIR 2009 SC 622, and Gulabrao Baburao Deokar vs. State of Maharashtra and others, 2014 Cri.L.J. 845 and has contended that not only the investigation in respect of the applicant is incomplete, the fact was also found that when the offence was registered against the applicant, he went away to a foreign country. Despite the notice, he did not surrender before the Court instead persuaded this Court to grant him anticipatory bail in another case. In excelsheet the fact was found that there were 8 M.Cr.C. No.10371/2014 6 candidates sponsored by the applicant for admission in the medical colleges, out of whom 5 have been interrogated. Some of them have been granted the anticipatory bail. Yet one candidate is required to be called and examination in his/her respect is to be conducted. The fact remains that huge amount was found in custody of coaccused Raghuvanshi who was his employee and was working in the institution of the applicant, and that the independent witnesses have stated the fact about acceptance of money by the allies of the applicant on the instructions of the applicant and their statements clearly implicate the applicant in such a scam. Besides, the past conduct of the applicant, the social circumstances are also to be kept in mind looking to the gravity of the nature of offence committed by the persons like applicant and, therefore, the applicant is not entitled to grant of bail.
6. We have heard learned Counsel for the parties at length and perused the record.
7. The first chargesheet filed against the applicant does show that prima facie material has been produced indicating complicity of the applicant in the commission of the offence and being party to the criminal conspiracy. In the same case two sets of challan have been filed. The first challan has been filed against some of the accused M.Cr.C. No.10371/2014 7 persons on 28.01.2014 even before the arrest of the applicant. Most of the documents are referred from the said challan by the counsel for the parties, though the same may not be of that much relevance for consideration of gravity of offence committed by the applicant. In so far as the applicant is concerned, supplementary challan was filed on 24.04.2014 in which broad description is made about the extent of involvement of applicant in the crime, which reads thus :
"uke vkjksih%& MkW0 fouksn Hk.Mkjh firk Lo0 ,l0,e0 Hk.Mkjh] mez 58 lky] fuoklh 181] DydZ dkWyksuh] bankSjA vkjksih dk d`R; %& vkjksih MkW- fouksn Hk.Mkjh ,l0,0vkbZ0,e0,l0 bUnkSj dk eSusftax Mk;jsDVj gksdj ih-,e-Vh- ijh{kk 2012 ds iwoZ O;kie ds lhfu;j flLVe ,ukfyLV fufru eksfgUnzk ls feydj mlds dqN vH;fFkZ;ksa dks ih-,e-Vh- ijh{kk 2012 esa ikl djkus ,oa vH;fFkZ;ksa dh lwph o uxn jkf'k mlds tujy eSustj iznhi j?kqoa'kh ls fHktokus dk crkdj ckn es mlds tujy eSustj ds ek/;e ls 08 vH;fFkZ;ksa dh lwph ,oa 60 yk[k :i;s uxn fHktokdj "kM;a=iwoZd fufru eksfgUnzk ls vuqfpr rjhds ls mDr vH;fFkZ;ksa esa ls 07 vH;fFkZ;ksa dh vks0,e0vkj0 'khV esa xksys Hkjokdj ikl djk;k gS rFkk vuqfpr rjhds ls "kM;a=iwoZd jkf'k izkIr dh gS tks mlds tujy eSustj iznhi j?kqoa'kh ls tIr dh x;h gSA bl izdkj vkjksih lqfu;ksftr rjhds ls vkijkf/kd "kM;a= djds xEHkhj vijk/k ?kfVr dj laxfBr vijk/k ?kfVr fd;k gSA vkjksih ds fo:} miyC/k lk{; %& 1- vkjksih fufru eksfgUnzk ds dk;kZy; ls tIr gkMZfMLd ds fjVªho MkVk dh ,Dly 'khV dh lR;kfir izfr ftlesa vkjksih MkW0 fouksn Hk.Mkjh }kjk fn;s x;s vH;fFkZ;ksa dh lwph dk mYys[k gSA 2- O;kie ls tIr nLrkost] uksV'khV ,oa ih-,e-Vh- ijh{kk o"kZ 2012 dk ,fDVfoVh pkVZA 3- vkjksih MkW0 Hk.Mkjh dh fu'kkansgh ij Jh vkWjfoanks baLVhV~;wV vkWQ esMhdy lkbal dkWyst] bankSj ls tIr ,e0ch0ch0,l0 ,Meh'ku lS'ku 2012-2013 ds 150 vH;fFkZ;ksa dh lwphA 4- vU; vkjksfi;ksa ds eseksjs.MeA M.Cr.C. No.10371/2014 8 5- iznhi j?kqoa'kh ls tIr jkf'k dk tIrh i=dA"
The excelsheet is the part of the challan where it is seen that the first name of the applicant is mentioned. Some of the students, who were sponsored by the applicant, were arrested and their statements have been recorded. The statement of witnesses reinforce the factum of role played by the applicant in the commission of alleged offence. However, they being the beneficiaries, were admitted to privilege of bail, either anticipatory or regular after arrest. We are called upon to consider the request for grant of bail, it may not be proper to elaborately analyse the material qua the applicant as mentioned in the chargesheet except to record our prima facie opinion that the same discloses complicity of the applicant in the commission of the crime in question. Indeed, this is only a prima facie view for considering the prayer for grant of bail and ought not to influence the trial pending against the applicant. The counsel for the applicant was at pains to point out that the evidence submitted along with the chargesheet is inadmissible and not a legal evidence at all. Admissibility of evidence will have to be tested at the trial. Further, it is pointed out by the prosecution that the investigation against the applicant and more particularly of the larger criminal conspiracy in which the applicant played a significant role is still incomplete. Inasmuch as, the statement of some of the persons are yet to be recorded and that, interrogation of some M.Cr.C. No.10371/2014 9 accused persons and confronting them with the applicant is in contemplation. That being so, it is not a case where the investigation in respect of the crime committed by the applicant or his involvement is fully completed.
8. That apart, there are reasons assigned by the Trial Court while rejecting the regular bail application of the applicant, as contained in Paras 10, 11, 12, 13 and 14, which read thus :
"10. fuLlansg mijksDr ekxZn'khZ fl}karksa ds izdk'k esa tekur vkosnu i= dk fujkdj.k visf{kr gS] ysfdu lkFk gh mDr U;k; n`"Vkarksa ls ;g Hkh Li"V gS fd tekur nsus ;k u nsus dk fofu'p; izR;sd ekeys ds vius rF;ksa vkSj ifjfLFkfr;ksa dks n`f"Vxr j[krs gq, gh fd;k tk ldrk gSA vijk/k dh xaHkhjrk vkSj lekt dk O;kid fgr tekur ds fy, vko';d fopkj.kh; fcUnq gSA lkFk gh lkFk tekur Lohdkj fd, tkus dk lekt ij iM+usokyk izHkko Hkh ,d egRoiw.kZ fopkj.kh; fcUnq gS ftls vuns[kk ugha fd;k tk ldrk gSA bl laca/k esa ealc vyh fo:} bj'kku ,oa vU; ¼2003½ 1 ,l lh lh 632 ,oa lrh'k tXxh fo:} NRrh'kx<+ jkT; 2007 fdz-yk-t- 2766 voyacuh; gSA
11. Li"V gS fd fdlh ekeys esa vfHk;ksx i= dk izLrqr gks tkuk ;k vfHk;qDr ds Qjkj gksus ;k lk{; dks izHkkfor djus dh ;qfDr;qDr vk'kadk dk vHkko gksuk ek= vius vki esa tekur dk vuU; vf/kdkj iznku ugha djrk gSA oju~ izdj.k dh leLr ifjfLFkfr;ksa vkSj rF;ksa ds vk/kkj ij tekur vkosnu i= dk fujkdj.k fd;k tk ldsxkA
12. izLrqr izdj.k esa vkosnd ds fo:} vkjksfir vijk/k izh&esMhdy VsLV ¼ih,eVh½ ijh{kk] tks fpfdRlk f'k{kk laLFkku esa izos'k ds fy, vfuok;Z vkSj egRoiw.kZ izos'k ijh{kk gS] dh vk;kstd jkT; Lrjh; laLFkk ¼O;kie½ ds vf/kdkfj;ksa ds lkFk gh "kM;a= djds Hkkjh /kujkf'k ds ,sot esa vH;fFkZ;ksa dks ijh{kk esa mRrh.kZ djkdj mudk p;u djkus ls lacaf/kr gSA vfHk;kstu ds vuqlkj vkosnd us ;ksX; vkSj es/kkoh Nk=ksa ds gd dks Nhudj iSls ds fy, v;ksX; vH;fFkZ;ksa dks fpfdRlk f'k{kk ds {ks= esa p;fur djk;kA ;g ekeyk M.Cr.C. No.10371/2014 10 dsoy vkfFkZd vijk/k dk ugha gS oju~ ;ksX; vkSj es/kkoh Nk=ksa ds vf/kdkjksa dk guu djus ds lkFk&lkFk fpfdRlk tSls egRoiw.kZ {ks= ftldk laca/k ekuo thou vkSj LokLF; ls gS] esa v;ksX; vH;fFkZ;ksa dks iSls ds ,ot esa izos'k fnykus dk gSA fuf'pr gh ;g d`R; ,d xaHkhj lkekftd vijk/k gSA
13. ;g fufoZokfnr gS fd vkosnd ds fo:} ,sls gh izd`fr ds vU; vijk/k Hkh iathc) gq, gSa rFkk blh ekeys esa lgvfHk;qDr vkseizdk'k 'kqDyk dk tekur vkosnu i= varxZr /kkjk 439 na-iz-la- ekuuh; e0iz0 mPp U;k;ky;] tcyiqj }kjk fo-nka-iz-dz- 4596/2014 esa ikfjr vkns'k fn0 24.04.2014 ds vuqlkj xqq.k&nks"k ij fujLr fd;k x;k gSA
14. bl ekeys ds mijksDr fof'k"V rF;ksa vkSj ifjfLFkfr;ksa] vijk/k dh xaHkhjrk vkSj fo'ks"kdj vkosnd dk ,slh gh izd`fr ds vU; vusd vijk/kksa esa lfEefyr gksus ds rF; ds vk/kkj ij mlds vkijkf/kd pfj= dks ns[krs gq, fuf'pr gh mls tekur ij fjgk fd, tkus ls lekt ij izfrdwy izHkko gksxkA bl ekeys ds mDr fof'k"V rF;ksa vkSj ifjfLFkfr;ksa] vijk/k dh xaHkhjrk] vkosnd ds fo:} ladfyr lk{; vkSj O;kid lekt fgr dks ns[krs gq, vkosnd tekur ij fjgk fd, tkus dk ik= ugha gSA"
9. It may be useful to advert to the dictum of the Supreme Court in the case of Deepak Shubhashchandra Mehta (supra). In para32 of the said decision, the Court has summed up the legal position regarding factors to be kept in mind while considering prayer for bail. The same reads thus:
"The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the M.Cr.C. No.10371/2014 11 accused is charged of having committed a serious offence. The court granting bail has to consider, among other circumstances, the factors such as (a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; (b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (c) prima facie satisfaction of the court in support of the charge. In addition to the same, the court while considering a petition for grant of bail in a nonbailable offence, apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted."
[emphasis supplied]
10. In view of the reasons noticed by us and considering the nature of offence alleged against the applicant, we do not find it a fit case for grant of bail. Of course in reported cases on which reliance is placed by learned senior Counsel for the applicant, bail orders have been passed in the given circumstances on facts of those cases. However, the distinction between the case of applicant and the cases considered by the Apex Court, is that, in all those cases virtually the investigation against the concerned accused was completed; whereas the investigation, in so far as this applicant is concerned, is still not completed.
M.Cr.C. No.10371/2014 1211. To put it differently after considering all aspects of the matter as the material already placed along with the first chargesheet prima facie indicates complicity of the applicant in the commission of the crime and is not a case of no evidence against the applicant at all; coupled with the fact that if the charge is proved against the applicant, the offence is punishable with life sentence; as the role of the applicant is being part of the conspiracy and is the kingpin; further that the applicant is allegedly involved in huge money transaction including to sponsor 8 candidates who were to appear in the VYAPAM examination; and is also prosecuted for another offence of similar type of having sponsored 8 other candidates; and has the potential of influencing the witnesses and other evidence and more importantly the investigation of the large scale conspiracy is still incomplete; as also keeping in mind the past conduct of the applicant in going abroad soon after the registration of the Crime No.12/2013 and returning back to India on 21.1.2014 only after grant of anticipatory bail on 16.1.2014, for all these reasons, for the time being, the applicant cannot be admitted to the privilege of regular bail.
12. The application deserves to be and is hereby rejected.
(A.M. Khanwilkar) (K.K. Trivedi)
Chief Justice Judge
Skc