Madhya Pradesh High Court
Dr. Narmada Prasad Agrawal vs The State Of Madhya Pradesh on 23 January, 2015
(1)
M.Cr.C.No.510/2015
23.01.2015
Shri Anil Khare, Senior Advocate with Shri H.S.
Chhabra, Advocate for the applicant.
Shri P.K. Kaurav, Additional Advocate General
with Shri Prakash Gupta, Panel Lawyer for the
respondent-State.
Heard counsel for the parties.
This application is for grant of anticipatory bail. The applicant is suspected to be involved in commission of offence registered as Crime No.14/2013 with S.T.F. Police Station, Bhopal - commonly known as VYAPAM examination scam cases for the offence punishable under Sections 409, 420, 120-B of I.P.C., Section 3(Gha)1, 2/4 of the M.P. Manyata Prapt Pariksha Adhiniyam, 1937 and under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
The argument of the applicant is that the Investigating Officer is persecuting the applicant. There is no material whatsoever before him to indicate the involvement of the applicant in the commission of the crime. It is submitted that the applicant's daughter Dr. Nistha Agrawal had appeared for Pre-P.G. Examination (2) in 2012. She was already married to one Dr. Vikas Singhal in 2010. The husband of Dr. Nistha Agrawal as well as her father-in-law is Doctor by profession. The applicant hails from a respected family and is a public servant working in the Government Hospital at Bhopal. He is already 64 years of age and has unblemished service record.
It is submitted that the fact that his daughter had stayed with him during the examination period is being used against the applicant and, therefore, the Investigating Officer intends to proceed against him in connection with the crime in which his daughter - Dr. Nistha Agrawal - has been named as accused. Dr. Nistha Agrawal was arrested on 15th December, 2014 and later on released on bail on 27th December, 2014. No fruitful purpose would be served by arrest of the applicant and more so that arrest would not be legitimate and justified in absence of any evidence to indicate the complicity of the applicant in the commission of the offence.
It is further submitted that the applicant deserves to be granted anticipatory bail on parity with another accused involved in the same crime Shri Kailash Chand Jain in terms of anticipatory bail granted to him by the Supreme Court. Reliance is also placed on the decision (3) of the Supreme Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others1, in particular paragraphs 85 to 96 and 112 and 113 to contend that ordinarily the suspect should be granted anticipatory bail and more so, in the fact situation of the present case, the exposition in the said decision squarely applies.
As directed on the earlier date, the learned counsel for the State has produced the case diary in connection with Crime No.14/2013 and in particular invited our attention to the documents forming part thereof unravelling the role of the applicant. The Investigating Officer is personally present in Court and has assisted the counsel for the State to point out those documents. A brief note has also been handed over to the Court to point out the circumstances in which the Investigating Officer is required to examine the applicant as suspect in Crime No.14/2013. The record indicates that Bharat Mishra was in touch with Vipin Goyal and Nitin Mohindra (racketeers). The applicant had called Nitin Mohindra on 30.08.2012 as is noticed from the telephone record available in the case diary. The circumstances in which the applicant interacted with 1 (2011) 1 SCC 694 (4) Nitin Mohindra is a matter to be examined by the Investigating Officer. Whether there was any reason for the applicant to contact Nitin Mohindra and whether it was in connection with the examination of his daughter Dr. Nistha Agrawal who had appeared in Pre-P.G. Examination is a matter for investigation. The connection of the applicant with Nitin Mohindra and Bharat Mishra is being investigated. Suffice it to observe that it is not as if there is no evidence at all with the Investigating Officer warranting examination of the applicant for the purpose of investigation of Crime No.14/2013 and to ascertain the factum of involvement of the applicant in the said crime and to collect other information from the applicant. Thus, the argument that the Investigating Officer is persecuting the applicant is ill-founded.
The offence in question, in our opinion, is a serious offence and if the accused is convicted of the said offence, may end up in punishment for life sentence. Besides, because of involvement of large number of accused, the investigation has become complex. Grant of anticipatory bail would certainly impede further investigation. The efficacy of custodial interrogation has been delineated by the Apex Court in the case of CBI (5) vs. Anil Sharma2. The same reads 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 of 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 disinterring offences would not conduct themselves as offenders."
In our considered opinion, the fact as to whether the applicant had interacted with Nitin Mohindra (racketeer) in connection with the examination of his 2 AIR 1997 SC 3806 (6) daughter Dr. Nistha Agrawal, is a matter for investigation and the circumstances presently available in the case diary do suggest that investigation in this behalf against the applicant is necessary. If the Investigating Officer is convinced with the explanation offered by the applicant, there is no question of arrest of the applicant. But, if the explanation offered by the applicant is unconvincing it is open for the Investigating Officer to record that position and proceed against the applicant in accordance with law. In our opinion, that is the prerogative of the Investigating Officer, the correctness of which, of course, can be tested at the appropriate stage.
The moot question is whether in the fact situation of the present case, the applicant should be granted anticipatory bail. In our considered opinion, the answer is an emphatic "No"- considering the gravity of the offence and the complexity of the investigation as also because prima facie there is material to indicate that the applicant was in touch with the racketeer - Nitin Mohindra and that may be in connection with the examination of his daughter who had appeared in Pre- P.G. Examination and has been proceeded as an accused.
The Trial Court has also analyzed the argument of the applicant whilst rejecting the prayer for anticipatory (7) bail vide order dated 01.01.2015. The view expressed by the Trial court is a plausible view which reads thus :-
Þvkosnd ds foj) ,lVh,Q Hkksiky esa vijk/k dz- 14@2013 vijk/k /kkjk 409] 420] 120ch Hkk-na-la- ,oa /kkjk 3&?k ¼1½ ¼2½ lgifBr /kkjk 4 e0iz0ekU;rk izkIr ijh{kk vf/kfu;e 1937 ,oa /kkjk 13 1 ¼Mh½@ 13 ¼2½ Hkz"Vkpkj fuokj.k vf/kfu;e 1988 ds varxZr iathc) gqvk gSa A ;g ekeyk O;olkf;d ijh{kk eaMy ¼O;kie½ }kjk vk;ksftr izhihth ijh{kk 2012 esa ÞekMy vkUlj & dhß tks lhycan fyQkQs esa j[kh x;h Fkh] fudkydj vH;fFkZ;ksa dks miyC/k djkus ,oa blds ,sot esa vF;fFkZ;ksa vFkok muds vfHkHkkodksa ls Hkkjh /kujkf'k izkIr djus] ls lacaf/kr gS A vkosnd ij ;g vkjksi gS fd mlus viuh iq+=h Mk- fu"Bk dks mDr ijh{kk esa p;fur djkus ds fy, mDr ijh{kk ls lacaf/kr ÞekMy vkUlj & dhß dh QksVksizfr ijh{kk ls ,d fnu iwoZ O;kie ds vf/kdkjh fufru eksfgUnz k ¼lgvfHk;qDr½ ds ek/;e ls izkIr dh Fkh vkSj vkosnd dh iq=h Mk- fu"Bk us mDr ÞekMy vkUlj & dhß dh QksVksizfr dh lgk;rk ls lQyrk izkIr dh Fkh A ,lVh,Q us vius izfrosnu esa dgk gS fd izhihth ijh{kk 2012 dh ÞekMy vkUlj & dhß ds 14 iz'u fujLr fd, x, Fks] mu iz'uksa ds mRrj vkosnd dh iq=h us ÞekMy vkUlj & dhß ds vuqlkj gh fn, gSa rFkk ,lVh,Q us vius izfrosnu esa vkosnd dh iq=h ds iwoZ ds o"kksZ ds 'kS{kf.kd fjdkMZ dk mYYks[k djrs gq, ;g crk;k gS fd mDr fjdkMZ dks ns[krs gq, vkosnd dk izhihth ijh{kk esa 82-5 izfr'r vad izkIr djuk mlds 'kS{kf.kd fjdkMZ ls esy ugha [kkrk gS A ,lVh,Q us vius izfrosnu esa ;g Hkh mYYks[k fd;k gS fd vkosnd ls iSlksa ds L=ksr ds ckjs esa tkudkjh izkIr dh tkuk gSa A vijk/k dh izÑfr] xaHkhjrk rFkk izdj.k ds rF;ksa ,oa ifjfLFkfr;ksa rFkk vijk/k esa vkosnd dh Hkwfedk dks ns[krs gq, vkosnd dks vfxze tekur dk ykHk fn;k tkuk U;k;ksfpr ugha gS A ifj.kker : vkosnd Mk- ueZnk izlkn }kjk izLrqr vfxze tekur vkosnu i= varxZr /kkjk 438 na-iz-la- fujLr fd;k tkrk gS Aß (emphasis supplied) The decision of the Apex Court pressed into service will be of no avail to the applicant in the fact situation of the present case, as it is not as if the applicant is being proceeded falsely or with political vendetta. There is material before the Investigating Officer which requires him to examine, the applicant.
The applicant has not appeared before the Investigating Officer inspite of requisitions sent in that behalf. The (8) Apex Court in Mhetre's case (supra) restates the legal position that the relief of anticipatory bail need not be granted as a matter of course but only after being satisfied about all aspects of the matter, to wit, the seriousness and complexity of the offence, whether complaint is false and frivolous, the likelihood of accused influencing the investigation if granted anticipatory bail, his role in the crime and so on.
It is not necessary for us to examine the contention which arises today because of announcement of reward against the applicant on 21.01.2015, having decided the matter on merits about the grievance of the applicant that there was absolutely no evidence before the Investigating Officer to indicate complicity of the applicant in connection with the crime in question. The fact that the applicant is a public servant is also of no consequence considering the nature of offence and the circumstances which warrants his examination in connection with Crime No.14/2013. The fact that the applicant assures to cooperate during the investigation by itself cannot be the basis to grant anticipatory bail as a matter of course.
For the abovesaid reasons, in our opinion, this is not a case where anticipatory bail should be granted to the applicant.
(9)Counsel for the applicant, however, relies on the order passed by the Supreme Court in S.L.P. (Criminal) No.5921/2014 in the case of Kailash Chand Jain vs. State of M.P. arising from the decision of this Court rejecting application for anticipatory bail on 23.07.2014 in M.Cr.C. No.10782/2014. The applicant is claiming parity on the argument that even in that case the applicant was father of the candidate who was named as accused in commission of the same crime. The Apex Court granted anticipatory bail to the said applicant on the finding that the uncle and son of the applicant were already granted anticipatory bail and bail respectively. It is submitted that even in the present case, the applicant's daughter has been granted bail and for which reason parity applies.
We are afraid, this order will be of no avail to the applicant. In that case, the anticipatory bail application filed by Kailash Chand Jain was withdrawn before this Court with liberty to file regular bail application after arrest or after surrendering before the concerned Court. Against that decision, the Special Leave Petition was filed and in which the Supreme Court passed the order in the fact situation of that case. The fact that the applicant's daughter has already been granted bail does not mean that the applicant should be granted (10) anticipatory bail without requiring him to undergo the requirement of recording his statement before the Investigating Officer which he is expected to do as per the requisition sent to him by the Investigating Officer in the backdrop of circumstances pointed out earlier.
As aforesaid, if the Investigating Officer is of the opinion that the applicant is not involved in Crime No.14/2013, there is no reason why the applicant will be arrested. But, if involved, the crime being of a serious nature and involves complex investigation, the question of granting anticipatory bail to the applicant, does not arise.
Hence, this application fails. The same is rejected. The brief note handed over by the learned counsel for the State containing the gist of the case diary be kept in sealed cover in the custody of the Registrar General.
(A. M. Khanwilkar) (K.K. Trivedi)
Chief Justice Judge
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