Madhya Pradesh High Court
Ambrish Sharma vs Union Of India on 9 October, 2020
Author: Vijay Kumar Shukla
Bench: Sanjay Yadav, Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Division Bench)
M.Cr.C. No.34239/2020
Ambrish Sharma
-Versus-
Union of India
Shri Manish Datt, Senior Advocate along with Shri Yagyavalk
Shukla, Advocate for the applicant.
Shri J.K. Jain, Assistant Solicitor General for the respondent/Union
of India.
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CORAM :
Hon'ble Shri Justice Sanjay Yadav, Acting Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
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ORDER
(Jabalpur, dtd.9.10.2020) Per : Vijay Kumar Shukla, J.-
The present application is filed under Section 482 of the Code of Criminal Procedure [for brevity, "the CrPC"] for modification/relaxation of conditions of bail order dated 31-8-2018 passed in M.Cr.C. No.34408/2018 on the ground that the applicant needs to visit his son in Penn State University, USA and to secure a suitable and safe accommodation to him in the light of current situation caused by COVID-19 pandemic.
2. This is fourth visit of the applicant before this Court under Section 482 of the CrPC or petition under Article 226 of the 2 Constitution of India either for release of of the passport of the applicant or to allow him to travel to the USA. Being unsuccessful for all the times, this is the fourth attempt of the applicant seeking modification/relaxation of bail condition and permission to travel abroad to make arrangement for suitable accommodation for his son, who is studying in Penn State University USA.
3. The applicant is an accused in a criminal case registered by the Central Bureau of Investigation (in short, "the CBI"). The genesis of the case is that initially Crime No.12/2013 was registered on 30-10-2013 at the Police Station Special Task Force, Bhopal in respect of illegalities committed in "PMT 2012 Examination"
conducted by the M.P. Professional Examination Board (VYAPAM).
On 8-8-2014, the S.T.F. Bhopal has filed the charge-sheet which is pending for trial before the Special Judge, CBI for VYAPAM Scam Cases, Bhopal. Later on, in compliance to the order dated 9-7-2015 passed by the Hon'ble Supreme Court of India in Writ Petition (Civil) No.417/2015 (Digvijay Singh vs. State of M.P.) along with other petitions, the investigation of the said case was transferred to the CBI.
4. The CBI has re-registered the said case as RC No.2172015A0025 on 31-7-2015 under sections 409, 420, 467, 468, 3 471 and 201 of the Indian Penal Code [for brevity "the IPC"]; under Sections 13(2) read with section 13(1)(d) of the Prevention of CorruptionAct; under Sections 65 and 66 of the Information and Technology Act; and under sections 3(D)(1) and 2/4 of the Madhya Pradesh Recognized Examinations Act, 1937. Against the present applicant the allegation is that he ascribed a role in grant of illegal admissions to the students in the Peoples' Medical College, Bhopal in the year 2012.
5. The applicant after his surrender on 31-7-2018 applied for grant of bail which was rejected by the trial Court and thereafter he applied for bail before this Court in M.Cr.C. No.34408/2018, wherein a Division Bench of this Court taking into consideration the fact that the trial is likely to consume time, allowed the application by order dated 31-8-2018 stipulating certain conditions which are extracted hereunder :
"(1) The petitioner shall furnish personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh) with one solvent local surety or blood relative in the like amount to the satisfaction of the trial Court for his regular appearance during the trial.
(2) The petitioner shall also comply with the conditions enumerated under Section 437(3) of CrPC meticulously.
(3) The petitioner will deposit his passport, if available, with the investigating agency, else file affidavit in this Court declaring that the petitioner does not have any passport of any country. This 4 compliance will be condition precedent for release on bail; and (4) The petitioner shall not directly or indirectly try to influence any of the witnesses and shall continue to appear before the Court as and when called by the Court."
6. The applicant deposited his passport as per condition No.(3) of the bail order and was released from custody. Thereafter, he filed an application before the trial Court for releasing his passport and to permit him to travel abroad for renewal of his Flight Instructor Licence. The said prayer was opposed by the respondent, Central Bureau of Investigation (CBI). The trial Court by order dated 02-5-2019 rejected the application preferred by the applicant. The said order was challenged by the applicant invoking jurisdiction under Section 482 of the CrPC in M.Cr.C. No.19950/2019. It was submitted that the applicant is having Flight Instructor Licence which is required to be renewed every two years, or else it would be declared expired. It was further submitted that the applicant is required to attend Flight Instructor Refresher Course (FIRC) which was scheduled to be held in the month of June, 2019 and in case he is not allowed to attend the said Course, his certificate would expire. The said application was withdrawn by the applicant with the liberty to file a fresh petition, if an occasion arises.
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7. The said order was passed on 28-6-2019 and thereafter, the applicant invoked writ jurisdiction of this Court on 30-6-2019 (the date of petition) just after two days, on the ground for releasing of the passport and grant of permission to travel abroad for renewal of the Flight Instructor Licence on the ground that since the validity period of the certificate has expired, therefore, the same is required to be reinstated.
8. The said writ petition was dismissed on 9-7-2019. Thereafter the applicant made an application before the Trial Court for release of passport and permission to visit the Penn State University, USA on the ground that his son has been offered admission in the Penn State University and he desires to accompany him to complete all the procedural formalities of his son's admission in USA. The said application was rejected by the Trial Court by order dated 01-7-2020. The applicant challenged the said order in a petition under Section 482 of the CrPC in M.Cr.C. No.23951/2020. The prayer for release of passport and permission to go abroad was opposed by the respondent - CBI on the ground that earlier the applicant had remained absconding for a longer period and surrendered before the trial Court only after non-bailable warrants of arrest were issued against him. It is for this reason, stringent condition of surrender of his passport before the investigating 6 agency was imposed while granting bail, so he could not flee from justice. It is submitted that there is an apprehension of the applicant's fleeing from the country and evade its legal system. It is further submitted that applicant has been filing application to travel abroad on one pretext or another. Earlier, he has filed application under Section 482 of the CrPC (M.Cr.C. No.19950/2019) for release of his passport on the ground that applicant is required to attend the Flight Instructor Refresher Court (FIRC) scheduled in June 2019, which was withdrawn on 28.06.2019 with liberty to file a fresh petition, if occasion so arises. Thereafter, just 2 days for the same relief, he invoked the writ jurisdiction of this Court on 30.06.2019 on the ground that renewal of his Flight Instructor Licence is required, as the validity period of the certificate has expired, which was dismissed keeping in view the seriousness and gravity of the charges levelled against the applicant. It is further urged that entire story is an eye wash as the acceptance of offer of admission and admission letter of the applicant's son, nowhere reveals that applicant's presence is imperative for admission of his son.
9. In this background the said petition preferred by the applicant under Section 482 of the CrPC was dismissed by this Court on 14-8-2020.
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10. Now, another attempt has been made by the applicant seeking permission to visit abroad almost on the same ground seeking modification/relaxation of conditions of the bail order dated 31-8-2018 on the ground that the son of the applicant has joined the Penn State University Pennsylvania, America on 22-8-2020 and is staying in a hostel-accommodation which is currently not safe considering the necessity to maintain social distancing and living in a seclusion, as much as possible. He prayed for modification of the impugned order, wherein it has been specifically mentioned the condition of depositing of passport which is getting misinterpreted as complete prohibition to travel abroad. He urged that in similar circumstances, the Supreme Court in the case of Parvez Noordin Lokhandwalla vs. State of Maharastra [Cr.A. No.648/2020] by order dated 01-10-2020 has granted permission to travel abroad and, therefore, the applicant be also granted permission to go abroad by modifying the bail condition.
11. The learned counsel for the respondent - CBI opposed the prayer and submitted that the applicant is misusing the process of law by filing repeated petitions/applications for the same cause of action. His prayer to release the passport and permission to travel abroad has already been rejected by this Court in M.Cr.C. No.23951/2020 on 14-8-2020. He urged that the applicant is likely 8 to flee from justice. Earlier he had remained absconding for a long period and surrendered before the Trial Court after non-bailable warrants of arrest were issued against him. It is for this reason, stringent condition of surrender of his passport before the investigating agency was imposed while granting bail, so he could not flee from justice. It is submitted that there is an apprehension of the applicant's fleeing from the country and evade its legal system. It is further submitted that the applicant has been filing applications to visit abroad one pretext or the others. His earlier petitions on the same ground have already been dismissed.
12. We have heard the learned counsel for the parties. On earlier three occasions, this Court has already declined the similar relief to the applicant. In M.Cr.C. No.23951/2020 this Court has taken into consideration the objection of the respondent-CBI regarding apprehension of the applicant's fleeing from the country and his conduct of remaining absconded for a long period and he surrendered only after the issuance of non-bailable warrants of arrest against him. The applicant is an accused of a case registered by the CBI under sections 409, 420, 467, 468, 471 and 201 of the IPC; under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988; under sections 65 and 66 of the Information and Technology Act; and under Section 3(D)(1) and 2/4 of the M.P. 9 Recognized Examination Act, 1937. It is alleged that he was involved in securing admission for the students illegally in the People's Medical College, Bhopal in the year 2012 known as Vyapam Case.
13. In the case of Parvez Noordin Lokhandwalla (supra) the permission to travel US for a period of eight weeks was sought on the ground that the applicant therein, was a Green Card holder and it was mandatory for him to return US within a stipulated period of departure from that country, failing which the condition for revalidation of the Green Card would not be fulfilled. He had to go for revalidating the Green Card. In the said case, the applicant was an accused in a private complaint. The applicant and the members of his family were involved in a long drawn out litigation, both of a civil and criminal nature. The aforesaid judgement would not render any assistance to the applicant herein, in the facts of the present case.
14. The parameters for exercise of jurisdiction under Section 482 of the CrPC is very limited. Three circumstances, under which the inherent jurisdiction may be exercised, viz. (i) to give effect to an order under the CrPC; (ii) to prevent the abuse of the process of Court; and (iii) to otherwise secure the ends of justice. 10
15. It is to be borne in mind that while exercising the power under Section 482 of the CrPC, the High Court does not function as a Court of appeal or revision.
16. Admittedly, the applicant was granted bail by the Division Bench of this Court in M.Cr.C. No. 34408/2018 by order dated 31.08.2018 on the condition that the applicant will deposit his passport with the investigating agency taking into consideration the likelihood of applicant's fleeing from justice.
17. The jurisdiction under Section 482 of the CrPC is an exceptional nature and is to be exercised in exceptional cases for achieving the purpose stated in the case. In the present case, no such extraordinary situation exists which may call for exercise of the inherent/extraordinary powers.
18. For the reasons stated hereinabove, the present application deserves to and is hereby dismissed. No order as to costs.
(Sanjay Yadav) (Vijay Kumar Shukla)
Acting Chief Justice Judge
ac.
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2020.10.13 16:49:45 +05'30'
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