Madhya Pradesh High Court
Arvind Kumar Joshi vs The State Of Madhya Pradesh on 21 April, 2016
MCRC-18336-2015
(ARVIND KUMAR JOSHI Vs THE STATE OF MADHYA PRADESH)
21-04-2016
1. Earlier the applicant was granted temporary bail for a
period of three months vide order dated 02.12.2015. This
Court has already considered the bail application of
another co-accused Mrs. Tinoo Joshi in M.Cr.C.
No.155/2016 and passed the following order:-
1. âThis is second bail application under Section 439 of Cr. P.
C. for grant of bail to the applicant. Applicant was arrested on
14.01.2015 in connection of Crime No. 102/10, registered at P.
S. S.P.E., Lokayukta, Bhopal for commission of offence
punishable under Sections 13 (1) (e), 13 (2) of Prevention of
Corruption Act and under Sections 467, 468, 109 and Section
120- B of IPC against the applicant, her husband and other
accused persons.
2. The allegation against the applicant is that she and her
husband had accumulated illegal wealth as properties and
other assets from corrupt practices to the tune of
Rs.43,20,23416/-. Other accused persons were also involved
in the offences. The offences registered against the applicant
are punishable with imprisonment of life or ten years.
3. The charge sheet was filed before the court on 1.3.2014.
4. The applicant had filed an application for grant of bail under
Section 437 of Cr.P.C. On 6.3.2014 which was rejected on
11.3.2014. Another application was filed by the applicant
before the trial court which was also rejected on 28.4.2014.
Warrant of arrest was issued against the applicant. In
pursuance to the order passed by the Supreme Court in
Special Leave Petition, the applicant surrendered before the
trial court on 13.1.2015.
5. The applicant was granted interim bail on medical ground,
vide order dated 30.1.2015 passed in M.Cr.C. No. 975 of 2015
for a period of three months. She was released on 2.2.2015 in
pursuance to the order passed by this court. The applicant did
not surrender before the trial court after a lapse of three
months. Thereafter, again warrant of arrest was issued on
5.5.2015. She surrendered before the court. Thereafter, she
filed an application for grant of bail which was rejected.
6. Learned Senior Counsel appearing on behalf of the applicant
has contended that the applicant is a lady. She is in judicial
custody for more than seven months. Other accused persons
have been grated bail. The applicant has been suffering from
various ailments. Apart from this, there is no likelihood that
the trial will be completed in near future. Even at present
charges have not been framed, hence, the applicant be
released on bail. In support of his contentions, learned Senior
Counsel has relied on the following judgments :-
(a) Miss Marie Andre Leclerc Vs. State (Delhi Administration) and
others reported in (1984) 2 SCC 443,
(b) Sanjay Chandra Vs. Central Bureau of Investigation, reported in
(2012) 1 SCC 40,
(c) Sharad Kumar and others Vs. Central Bureau of Investigation,
reported in (2012) 1 SCC 65,
(d) Joginder Kumar Vs. State of U.P. and others reported in (1994) 4
SCC 260,
(e) Moti Ram and others Vs. State of Madhya Pradesh reported in
(1978) 4 SCC 47,
(f) Avtar Singh Vs. State of Punjab reported in (2010) 15, SCC 529,
(g) Jaya Simha Vs. State of Karnataka reported in (2007) 8 SCC
145,
(h) Sureshchandra Ramanlal Vs. State of Gujarat and another
reported in (2008) 7 SCC 591,
( i) Essorpe Mills Limited Vs. Presiding Officer, Labour Court and
others reported in (2008) 7 SCC 594,
(j) Shobhan Singh Khanka Vs. State of Jharkhand reported in (2012)
4 SCC 684,
(k) Central Bureau of Investigation Vs. Ashok Kumar Aggarwal
reported in (2014) 14 SCC 295,
(l) Krishnanand Agnihotri Vs. State of Madhya Pradesh reported in
(1977) 1 SCC 816,
(m) State Inspector of Police, Vishakhapatnam Vs. Surya Sankaram
Karri reported in (2006) 7 SCC 172,
7. The applicant was an IAS Officer of 1979 batch. There are
serious charges of corruption in regard to accumulation of
wealth which is more than known source of income of the
applicant. At the time of filing of the charge sheet, the
applicant was not present. An arrest warrant was issued
against the applicant on 28.4.2014. She had surrendered
before the court on 13.1.2015 after a period of near about
seven months.
8. It is contended by learned counsel for the respondent that due
to non cooperation of the applicant, the charges have not been framed by the court. The charges are serious in nature. The allegation that the applicant and her husband have accumulated wealth which is thousand times more than their known source of income as mentioned above in the order is serious one.
9. Learned Senior Counsel appearing on behalf of the applicant has relied on the judgment of the Apex court passed in Sanjay Chandra Vs. Central Bureau of Investigation, reported in (2012) 1 SCC 40. In the aforesaid judgment, the Apex court has considered the previous judgments in which the following principles of law have been laid down in regard to grant of bail :-
38. In State of U.P. v. Amarmani Tripathi, this Court held as under: (SCC pp. 31 & 32, Paras 18 & 22).
18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati v. NCT, Delhi and Gurcharan Singh v. State (Delhi Admn.).
While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36, para 11)
11. The law in regard to grant or refusal of bail is very well settled. 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 merit 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 accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the 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.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v.
Rambilas.)
22. While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary.
(emphasis in original)
10. The Apex Court has specifically held that the court has to consider the nature of gravity of the charge and reasonable belief that the accused had committed the offence.
11. Search operations were conducted at the residence and business premises of the applicant and her husband and from bank lockers, cash amount of Rs. 3 crores, 6 lacs, 37 thousand and 970/- alongwith foreign currency and jewelery was recovered. The Police seized the aforesaid amount. Prime facie it is clear that huge amount of cash was recovered from the possession of the applicant and her husband. The applicant was not present when the charge sheet was filed. She surrendered before the trial court after a period of seven months. The applicant was enlarged on temporary bail on medical ground. She did not surrender before the court immediately after expiry of the term. This court has deprecated the conduct of the applicant while rejecting the application for further extension of bail, vide order dated 12.5.2015 passed in M.Cr.C. No. 6196 of 2015. The court observed as under :-
âKeeping in view the aforesaid in my considered view the applicant instead of availing the benefit of the temporary bail of three months granted to her, for no justified reason, did not get the surgery done which according to her was very urgent. The medical treatment papers are relating to a private hospital of Udaipur and of Delhi. No reliable medical papers have been produced to justify further extension of bail. The conduct of the applicant as seen from the record indicates that she was not serious in getting the surgery done during the period she was enlarged on temporary bail. In the circumstances the application deserves to be and is hereby is rejected. The applicant is directed to surrender before the trial Court immediately. However, she may apply for fresh bail or temporary bail for getting surgery done after surrender. In case such application is submitted, the same will be considered on its own merits or she may be ordered to be medically examined by the Team of Expert Government Doctors of the Government Hospital at Bhopal in the related subjects.â
12. Alongwith this application another application for taking additional documents on record has been filed. The applicant has submitted certain medical prescriptions. After perusal of the prescriptions, it is clear that the applicant has not been suffering from any serious ailment. The medical facility is available in jail to provide proper medical treatment to the applicant.
13. As observed by the Apex Court, it is obligatory on the part of the court to consider seriousness of the allegations against the accused while admitting him/ her on bail. The allegations against the applicant are accumulation of wealth in excess of her known sources of income. The trial court has still not framed charges against the applicant. There is every possibility that trial will take long time. If the applicant is released on bail, then the trial may suffer. The applicant has completed near about seven months period only. Looking all the aspects of the matter and gravity of offence the period of detention of the applicant at this stage in my opinion, it would not be proper to release the applicant on bail. Consequently, this application stands rejected.â
2. The case and evidence against the applicant is similar to co-accused Tinoo Joshi, hence, in my opinion, the applicant is not entitled to be released on regular bail on merits.
3. The applicant has been suffering from Myelo Dysplastic Syndrome, its a Haematological Mlignancy of terminal nature (Blood Cancer). The applicant was advised for Bone Marrow transplantation (BMT). Along with the application, the applicant has filed a letter dated 22.03.2016 issued by the doctor of Jaslok Hospital, Mumbai. The letter reads as under:-
BRIEF MEDICAL SUMMARY âMr. Arvind Joshi, aged 61, is a patient of Jaslok Hospital (Reg No.986063) and is a diagnosed case of Myelo-Dysplastic Syndrome. He has been advised urgent allogencic bone marrow transplantation. He was admitted in Jaslok Hospital th on 28 December, 2015 for Bone marrow Biopsy and Bone marrow aspiration for Cytogenetics. Histopathology and FISH MDS PANEL tests on the patient's bone marrow samples.
Based on these tests and clinical condition of the patient the following medical advice was given:
a) The weekly medication of EPO injection s/c was increased from 40,000 units to 60,000 units per week.
b)The weekly medication of G-CSF injection s/c 300 units was increased to twice a week.
c) This injections are to continue till the allogeneic Bone marrow transplantation.
d) Histogenetics Laboratories, USA were advised to undertake the high resolution DNA test of the patient and his siblings (one brother Rajiv, and two sisters Abha and Vibha) for HLA matching to identify the suitable donor for allogeneic Bone marrow transplantation. The comparative HLA reports sent by Hostogenetics Laboratories USA nd were received and reviewed on 22 March, 2016, and were found to be not matching. The HLA report of brother Rajiv shows only 8/16 match and of sisters Abha and Vibha showed 6/10 match.
e) The patient is being currently assessed for decitabine 5 Azacytidine chemotheraphy, which once started will be continued till allogenic Bone marrow transplantation.
In vie of non-availability of HLA matched donor of patient, Internatinal HLA-matched unrelated donor search needs to be initiated immediately. However, considering the complexity of the Bone marrow transplantation in the case of patient Arvind Joshi in view of the staging of his disease, and the non- availability of HLA- matched sibling donor and the need to urgently carry out an exhaustive International unrelated HLA matched donor's search, the patient needs to be referred immediately to an international centre of excellence for Bone marrow transplantation using matched unrelated donor, or alternatively haploidentical (half matched) related donor for undertaking allogeneic Bond marrow transplantation because that is the only curative treatment for Myelodysplatic Syndrome available to the patient and with the patient's advancing age, if there is delay, his fitness for undergoing Bone marrow transplantation will keep diminishing. It is therefore, recommended that the patient should immediately consult Professor (Dr) Ghulam Mufti, Head of department of Onco-Haematology, King's Colledge Hospital, London, UK which is one of the most recognized and leading Internatinal centre of excellence for Bone marrow transplantation using matched unrelated donor Bone marrow for grafting and haploidentical (half matched) related donor for grafting specially for haematological malignancy like Myelodysplastic Syndrome.
Since the selection of unrelated matched donor or the haplodidentical related donor is done by the institution which is undertaking the Bone marrow transplantation, it is advised that the patient should immediately consult Professor (Dr.) Ghulam Mufti to get the International unrelated donor search initiated by King's College Hospital London UK. The copy of this advise is also being sent to Professor (Dr.) Ghulam Mufti, Head of the department of Onco-Haematology, King's College Hospital, London, UK.â
4. The doctor opined that the best treatment of the diecease is available at King's College Hospital, London (United Kingdom). However, looking to the facts of the case in my opinion, it would not be just and proper to permit the applicant to go abroad. The applicant can avail the facility of Bone Marrow Transplantation (BMT) in India also which is available at different hospitals.
5. Looking to the seriousness of ailment of the applicant, the temporary bail granted to the applicant earlier, is further extended for a period of three months on the same terms and conditions as imposed by this Court vide order dated 02.12.2015. He shall continue to remain on temporary bail for a period of another three months on the same bail bonds and on completion of three months, the applicant shall surrender before the Court of Chief Judicial Magistrate, Bhopal.
IA No.7338/2016, is disposed of accordingly.
(S.K. GANGELE) JUDGE