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Madhya Pradesh High Court

Dr. Sudhir Sharma vs The State Of Madhya Pradesh on 10 July, 2014

                                  (1)


                     M.Cr.C. No.9567/2014
                     M.Cr.C. No.9568/2014
09.07.2014
      Shri Pratul Shandilya, Shri Raj Kamal Chaturvedi and Shri
Tarun Kushwaha, Advocates for the applicant.
      Shri P.K.Kaurav, Additional Advocate General for the
respondents/State.

Heard counsel for the parties.

Both these applications are filed by the same person who has been named as accused in Crime No.17/2013 as also 18/2013 registered with the S.T.F. Police Station, Bhopal, for offence punishable under sections 420, 467, 468, 471, 120-B I.P.C. read with sections 65 and 66 of the Information Technology Act, 2000, and section 3(d), 1 and 2/4 of the M.P. Recognised Examination Act, 1937, which is commonly known as VYAPAM Scam cases.

The role of the applicant, as per the prosecution case, is that of having participated in the commission of offence as Racketeer. The magnitude of the offence has already been considered in the past in several other applications and including by the trial court in the order dated 26.6.2014, while dismissing the anticipatory bail application filed by the applicant.

The offences were registered on 23.11.2013. Pursuant to registration of the said offence the applicant initially responded to the requisition sent by the Investigating Officer and appeared before him on 23.12.2013 and again on 13.3.2014. Obviously, since there was no clinching material available with the Investigating Officer at that time warranting arrest of the applicant, he was set free. However, thereafter it has been noticed as is reinforced from the case diary - that the beneficiaries were interrogated who revealed the involvement of the applicant and as a result of which (2) M.Cr.C. No.9567/2014 M.Cr.C. No.9568/2014 the applicant was called upon to appear before the Investigating Officer on 3.4.2014. However, the applicant did not remain present nor has responded to the subsequent requisitions sent by the Investigating Officer from time to time. As a result, the Investigating Officer was left with no other option but to declare the applicant absconding on 14.6.2014 and also moved the trial court by way of application under section 82 of the Code in Crime No.18/2013. The trial Court has directed the applicant to remain present in the Court before 20.7.2014. Instead of responding to the requisition of the Investigating Officer and appearing before the trial court, the applicant, in the first place, filed anticipatory bail application before the trial court, which came to be rejected on 26.6.2014 and which decision has been made subject matter of the present application besides praying for grant of anticipatory bail, filed on 28.6.2014.

When the matter was taken up for hearing, at the outset, counsel for the State insisted for directing personal appearance of the applicant and requested the Court to issue direction in that behalf in terms of section 438(1B) of the Code of Criminal Procedure.

We were inclined to issue that direction and also permit the applicant to appear before the Court tomorrow 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 from outside the Court-room, has taken a stand that the applicant will not take the risk of appearing before the Court and it will not be (3) M.Cr.C. No.9567/2014 M.Cr.C. No.9568/2014 possible for him to appear tomorrow. Instead, the applications be decided on merits.

In the first place, if it is a case of absconding accused, the law is no more res integra. The Apex Court in the case of State of Madhya Pradesh Vs. Pradeep Sharma, (2014) 2 SCC 171, has expounded that the relief of anticipatory bail is of extraordinary character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated and where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. Further, if the accused is declared as an absconder/proclaimed offender in terms of Section 82 Cr.P.C. he is not entitled to relief of anticipatory bail.

Nodoubt, formal order under section 82 Cr.P.C. is yet to be passed as said proceedings have been notified on 20.7.2014. The fact remains that the applicant has not shown his bonafides in remaining present even before this Court in spite of direction to be issued in that behalf under section 438(1B) of the Code. Instead, the applicant has insisted for decision on merits of the application. As a result, we are left with no other option but to deal with the arguments of learned counsel for the applicant.

According to him, keeping in mind the exposition of the Apex Court in the case of Joginder Kumar Vs. State of U.P. and others, (1994)4 SCC 260, which has been quoted with approval by the Constitution Bench in the case of Lalita Kumari Vs. Government of Uttar Pradesh and others, (2014) 2 SCC 1, the question of arresting the accused would be relevant only in heinous offences.

We are afraid, it is complete misreading of the observations contained in paragraph 20 of the judgment in Joginder Kumar case which has been reproduced in paragraph 108 in Lalita Kumari case. The said observation cannot be read out of context. The law, as aforesaid, as restated in the case of State of M.P. Vs. Pradeep Sharma (supra), is amply clear that the relief of anticipatory bail is not to be granted as a rule but only in exceptional cases where it appears that the person may be falsely implicated and there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty.

In the present case, the trial court in para 5 and 6 of the order has found on the basis of the case diary that the applicant is involved in the commission of offence and his role is that of a Racketeer. He is the principal offender. As aforesaid, the offence is not an ordinary offence, but having wide ramification on the admissions in professional courses including medical course and recruitment to various public posts. The matter is largely known as VYAPAM Scam cases. The role of the applicant is not insignificant, if the prosecution case is to be accepted as it is.

In the circumstances, question of showing indulgence in the fact situation of the present case to this applicant does not arise.

Counsel for the applicant had then relied on the decision of the Apex court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, (2011) 1 SCC 694 (paragraphs 112 and 114), and in the case of Shri Gurbaksh Singh Sibbia and others State of Punjab, (1980)2 SCC 565 (paragraphs 7, 8, 26 and 31). According to the applicant, in ordinary cases the accused should be released on anticipatory bail. The decision in Siddharam (5) M.Cr.C. No.9567/2014 M.Cr.C. No.9568/2014 Satlingappa Mhetre case was considered by this Court in the anticipatory bail filed by other accused in the VYAPAM case and including the accused in the same crime in which the applicant has been named as accused.

While adverting to the decision of the Apex Court we rejected the argument of the said accused for grant of anticipatory bail. In the case of CBI Vs. Anil Sharma, AIR 1997 SC 3806, in paragraph 6 of the said decision, the Apex Court has observed thus :-

"We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favorable order under Section 438 if the code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulate by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disintering offences would not conduct themselves as offenders."

It was then argued by the counsel for the applicant that the applicant ought to be granted anticipatory bail on parity with the bail granted to other accused by the trial Court in the case of Premchand and Anita decided on 21.6.2014 at page 58 to 60 of the paper-book.

In that case, however, the role of the applicants was that of only Beneficiary and not of Racketeer as in the case of the applicant. As a result, the question of invoking parity does not arise and on this finding the decision of the Apex Court pressed into service by the applicant in the case of Shobhan Singh Khanka Vs. State of Jharkhand, (2012) 4 SCC 684, will be of no avail.

As no other argument is canvassed before us, we proceed to reject both the applications, both on the ground that the applicant has failed to cooperate in the investigation and has succeeded in absconding since first week of April, 2014, and has not made himself available to the Investigating Officer in spite of repeated requisition sent by him and also because of the role ascribed to the applicant in the commission of the offence being a serious one being involved in large scale conspiracy and that of a Racketeer and the offence is in respect of scam committed in the examinations conducted by VYAPAM and further the investigation of the crime being complex one, the question of grant of anticipatory bail does not arise.

Hence, dismissed.

              (A. M. Khanwilkar)                       (Alok Aradhe)
                  Chief Justice                           Judge

Saraf