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Madhya Pradesh High Court · body

2014 DIGILAW 274 (MP)

Sandeep Laharia v. State of M. P.

2014-03-06

D.K.PALIWAL, S.K.GANGELE

body2014
Judgment: S.K. Gangele, J. 1. The applicant has filed this application under Section 438 of Cr.P.C. for grant of anticipatory bail. An offence under Sections 419, 420, 468, 471, 201 and 120B read with Sections 3/4 of Pariksha Adhiniyam has been registered against the applicant vide Crime No. 449/2013 at Police Station, Jhansi Road, Gwalior. 2. The applicant was first admitted at Government Medical College, Rewa. He was transferred in 2010 at G.R. Medical College, Gwalior. There were complaints against number of students including the applicant that they got admission in M.B.B.S. course by impersonation and somebody else was appeared on behalf of the applicant in the entrance examination. 3. A Committee was constituted by G.R. Medical College consisting Dr. Avinash Chandra, Prof. & Head, Chairman of the Committee, Dr. Mrs. N. Belapurkar, Member & Prof. of Physiology, Dr. Mrs. Ranjana Tiwari, Member & Associate Professor PSM, Dr. V.P. Narve, Member & Associate Professor ENT, Dr. Rajkumar Arya, Member & Assistant Professor Pharmacology to investigate the allegations and to scrutinise the documents of the applicant and other students. The Committee directed the students including the applicant to submit certain, documents. The applicant submitted following documents before the Committee for examination as mentioned by the Committee in its report dated 29-3-2012:-- (1) Attestation form with pasted Photograph of candidates. (2) Pre-Medical Test (PMT) Admit Card in original with photograph and signature and address already printed. (3) Allotment slip cum allotment order from office of the DME, Bhopal with address and signature of the candidates. 4. After verification of the record and documents of the applicant, the Committee has made following remarks about the applicant:-- (1) All three: photo, signature and address do not match. (2) There are six criminal cases registered in various police stations against him in Gwalior Division. (3) The candidate has passed 12th (Mathematics) and have studied in a local Engineering College (Maharana Pratap College of Technology) in year 2004. (4) Whereas he has submitted an affidavit claiming that he has not studied anywhere from 1998 to 2009. 5. There were complaints against various students, who have been studying in M.B.B.S. course or who passed M.B.B.S. examination. Thereafter, a report was lodged at the Police Station and the matter is under investigation. The police registered an offence under Sections 419, 420, 468, 471, 201 and 120B read with Sections 3/4 of Pariksha Adhiniyam against the applicant. 5. There were complaints against various students, who have been studying in M.B.B.S. course or who passed M.B.B.S. examination. Thereafter, a report was lodged at the Police Station and the matter is under investigation. The police registered an offence under Sections 419, 420, 468, 471, 201 and 120B read with Sections 3/4 of Pariksha Adhiniyam against the applicant. The applicant was taken to custody. 6. Initially, an offence under Sections 419, 420 of IPC and Sections 3/4 of Pariksha Adhiniyam was registered against the applicant. He was granted bail. Thereafter, the prosecution on investigation added further Sections468, 471, 201 and 120B of IPC. The applicant applied for anticipatory bail that has been rejected by the Court. Hence, he filed the present applicant. 7. It is appropriate to mention some facts in this bail application in regard to illegal admissions in Medical Colleges by hundred of students in the State of Madhya Pradesh. A large scam has been unveiled in regard to admission and procedure of examination conducted by the VYAPAM. In that connection, number of persons have been arrested. Mr. O.P. Shukla, Personal Assistant of Minister Mr. Laxminarayan Sharma and an owner of the Medical College at Indore Mr. Bhandari and other persons have been arrested by the police. A Special Investigation Team (SIT) was constituted by the Government to investigate the scam. In Gwalior, a criminal case against Mr. Rakshpal Singh Bhadoria, CSP has also been registered and he is absconding. Majority of the medical students are also absconding. The allegation is that with the connivance of the middlemen and officers of VYAPAM, the parents of the students had given an amount ranging in lacs to the persons and thereafter somebody else appeared on behalf of the students in the examination and the students secured their selection. When the scam was unveiled in various Medical Colleges Committees were constituted to identify the documents of suspected students. In that circumstance, a Committee was constituted at G.R. Medical College, Gwalior and it had verified the documents submitted by the applicant and submitted its report as mentioned above in the order. In the report, it is mentioned that there were five criminal cases registered against the applicant. The applicant passed his Higher Secondary examination in Mathematics. He was a student of Engineering and thereafter, he got admission in Medical College. The applicant was arrested and interrogated. In the report, it is mentioned that there were five criminal cases registered against the applicant. The applicant passed his Higher Secondary examination in Mathematics. He was a student of Engineering and thereafter, he got admission in Medical College. The applicant was arrested and interrogated. In his memorandum, dated 24-1-2014, given by him to the Inspector Mr. H.L. Prajapati, Inspector, Police Station, Jhansi Road, Gwalior, he had stated that after murder of Kamal Kushwah, he came into contact with Gajendra Yadav and Vishal Yadav. Dr. Vishal Yadav had told him that if he would give Rupees Five lacs, he would be able to secure admission of the applicant at G.R. Medical College. Consequently, he had handed over Rupees Two lacs initially to Dr. Vishal Yadav at his residence of C.P. Colony. He did not appear in the Medical Examination. Somebody else was appeared on his behalf. He was selected in Pre-Medical Examination and got admission in M.B.B.S. College, Rewa. Thereafter, he had given remaining Three lacs rupees to Dr. Vishal Yadav. Dr. Yadav also secured his transfer from Gwalior to G.R. Medical College, Gwalior. He had also introduced Mr. Chand Kha and Deshraj Gurjar to Vikas Yadav. Those persons had given Rupees Six lacs to him and they also got admission in M.B.B.S. Course. The applicant also received Rupees Fifty thousand each as commission. Vishal Yadav in his memorandum confirmed the aforesaid statement. 8. When the police investigated the matter, it had further added some sections and subsequently, the Court rejected the anticipatory bail application of the applicant on the ground that the offence of the applicant is a heinous offence and further custodial interrogation of the applicant is necessary. 9. Learned Counsel for the applicant has contended that for the similar offence, an offence was registered against the applicant and he was granted anticipatory bail at Rewa. Subsequently, he was also granted regular bail by the Court at Gwalior, hence, the Trial Court has committed an error of law in refusing to accord benefit of anticipatory bail to the applicant. 10. We have heard the arguments of other Counsel also including Mr. V.K. Saxena, Senior Counsel in connected bail applications. All the Counsel argued that denial of benefit of anticipatory bail to the applicants is contrary to law. The applicants have been pursuing their studies. There is no likelihood that the applicants would abscond. 10. We have heard the arguments of other Counsel also including Mr. V.K. Saxena, Senior Counsel in connected bail applications. All the Counsel argued that denial of benefit of anticipatory bail to the applicants is contrary to law. The applicants have been pursuing their studies. There is no likelihood that the applicants would abscond. They were in jail and subsequently some sections have been added, hence, it is necessary in the interest of justice that the applicants be enlarged on anticipatory bail because their personal liberty is jeopardised. In support of their contentions, learned Counsel relied on the following judgments:-- (i) Noneju vs. State of M.P., 1995 (I) MPWN 111 (ii) Chandan Singh vs. State of M.P., 2003 (II) MPWN 22 (iii) Kashiram vs. State of M.P., 1988 (II) MPWN 81 (iv) Charan Singh vs. State of M.P., 1997 (II) MPWN 14 (v) Savitri Agarwal vs. State of Maharashtra, (2009) 8 SCC 325 . 11. In regard to consideration by the Court in the event of grant of anticipatory bail by the Court, the Constitution Bench of the Hon'ble Supreme Court in the case of Gurbaksh Singh vs. State of Punjab, reported in AIR 1980 SC 1632 , has held as under:-- We agree, with respect, that the power conferred by Section 438 is of an extraordinary character in the sense indicated above, namely that it is not ordinarily resorted to like the power conferred by Sections 437 and 439. We also agree that the power to grant anticipatory bail should be exercised with due care and circumspection but beyond that, it is not possible to agree with the observations made in Balchand Jain in an altogether different context on an altogether different point. 12. The Constitution Bench specifically observed that the power should be exercised with due care and circumspection. 13. 12. The Constitution Bench specifically observed that the power should be exercised with due care and circumspection. 13. Hon'ble Supreme Court further in Siddharam Satlingappa Mhetre vs. State of Maharashtra, reported in 2011 (1) M.P.H.T. 430 (SC) : (2011) 1 SCC 694 , has considered the provisions of Section438 of Cr.P.C. and also the factors, which have to be taken into consideration by the Courts while dealing with the anticipatory bail and held as under:-- The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:-- (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The Court must also clearly comprehend the exact role of the accused in the case. The Court must also clearly comprehend the exact role of the accused in the case. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860, the Court should consider with even grater care and caution because over-implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. Arrest should be the last option and it should be restricted to those exceptional cases, where arresting the accused is imperative in the facts and circumstances of that case. The Court must carefully examine the entire available record and particularly the allegations are corroborated by other material and circumstances on record. These factors are by no means exhaustive but they are only illustrative. 14. Recently Hon'ble Supreme Court in State of M.P. vs. Pradeep Sharma, reported in (2014) 2 SCC 171 , has considered the provisions of Section 438, Cr.P.C. and the consideration by the Courts at the time of granting anticipatory bail and held as under:-- 14. In order to answer the above question, it is desirable to refer to Section 438 of the Code, which reads as under:-- 438. In order to answer the above question, it is desirable to refer to Section 438 of the Code, which reads as under:-- 438. Direction for grant of bail to person apprehending arrest.-- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely-- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer-in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases, where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. 15. From the aforesaid quoted decisions of the Hon'ble Supreme Court, including the Constitutional Bench judgment, the legal principle in regard to grant of anticipatory bail emerges that Section 438 of Cr.P.C. is extraordinary in character and it is to be exercised only in exceptional cases and the Court should exercise the power with due care and circumspection. 16. In the present case as noted above, the number of criminal cases, near about 5, have been registered against the applicant. 16. In the present case as noted above, the number of criminal cases, near about 5, have been registered against the applicant. The Committee has opined after verification of the documents of the applicants that his address, photograph and signatures could not be matched. He had also given a false affidavit that he had not studied anywhere from 1998 to 2009 and he passed 12th standard examination in Mathematics, although, the Counsel for the applicant submitted a mark sheet of the applicant showing that he passed 12th standard examination with Biology. 17. Looking to the facts of the case and nature of the case that a large scale scam has been revealed, in our opinion, the applicant is not entitled the benefit of anticipatory bail on the basis of principle of law enumerated by the Hon'ble Supreme Court. 18. The argument advanced by the Counsel for the applicant that the similar offence has been registered against the applicant at Rewa and he was enlarged on bail also could not be accepted because the Trial Court has observed that the present offence is quite different. It is also a fact that earlier applicant was granted bail, however, subsequently some more offences were added under Sections 468, 471, 201 and 120B of IPC. 19. Section 468 of IPC is in regard to forgery for the purpose of cheating and maximum punishment of seven years and fine is provided. Same punishment is for Section 471 of IPC. Section 201 is in regard to causing disappearance of evidence of an offence committed, or giving false information touching it to screen the offender. 20. Hon'ble Supreme Court in Prahlad Singh Bhati vs. NCT, Delhi, reported in (2001) 4 SCC 280 , has held that with the change of nature of the offence, the accused becomes disentitle to the liberty granted to him in relation to a minor offence, if the offence is altered for a grave crime. In the present case, subsequently, some more sections have been added against the applicant as mentioned above. Hence, in our opinion, the applicant is not entitled to get benefit of anticipatory bail on the ground that earlier he was enlarged on bail. 21. It is also argued by the learned Counsel that the memorandum given by the applicant under Section 27 of the Evidence Act has no value and it could not be considered at this stage. 22. 21. It is also argued by the learned Counsel that the memorandum given by the applicant under Section 27 of the Evidence Act has no value and it could not be considered at this stage. 22. We are not in agreement with the argument advanced by the learned Counsel for the applicant in this regard. Section 27 of the Evidence Act permits derivative use of custodial statement in the ordinary course of events. The information given by the accused without any threat, it is admissible in evidence with incriminatory value as held by the Hon'ble Supreme Court in Selvi vs. State of Karnataka, reported in AIR 2010 SC 1974 , where the Hon'ble Supreme Court has held as under:-- 119. We have already referred to the language of Section 161, Cr.P.C., which protects the accused as well as suspects, and witnesses, who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 162, 163 and164 of the Cr.P.C., which lay down procedural safeguards in respect of statements made by persons during the course of investigation. However, Section 27 of the Evidence Act incorporates the 'theory of confirmation by subsequent facts', i.e., statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those, which 'furnish a link in the chain of evidence' needed for a successful prosecution. This provision reads as follows:-- 27. How much of information received from accused may be proved.--Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 120. This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian Law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no automatic presumption that the custodial statements have been extracted through compulsion. 120. This provision permits the derivative use of custodial statements in the ordinary course of events. In Indian Law, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no automatic presumption that the custodial statements have been extracted through compulsion. In short, there is no requirement of additional diligence akin to the administration of Miranda Warnings. However, in circumstances, where it is shown that a person was indeed compelled to make statements while in custody, relying on such testimony as well as its derivative use will offend Article 20(3). The relationship between Section 27 of the Evidence Act and Article 20(3) of the Constitution was clarified in Kathi Kalu Oghad, AIR 1961 SC 1808 (supra). It was observed in the majority opinion by Jagannadhadas, J., at pp. 33-34: (Para. 13 of AIR). The information given by an accused person to a police officer leading to the discovery of a fact, which may or may not prove incriminatory has been made admissible in evidence by that section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of clause (3) of Art. 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of Section 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion has been used in obtaining the information. (Emphasis supplied) This position was made amply clear at pp. 35-36: (Para. 15 of AIR). Hence, the mere fact that the accused person, when he made the statement in question was in police custody would not, by itself, be the foundation for an inference of law that the accused was compelled to make the statement. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment, which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. Of course, it is open to an accused person to show that while he was in police custody at the relevant time, he was subjected to treatment, which, in the circumstances of the case, would lend itself to the inference that compulsion was, in fact, exercised. In other words, it will be a question of fact in each case to be determined by the Court on weighing the facts and circumstances disclosed in the evidence before it. 23. Investigation is under progress. The charge-sheet has still not been filed. Subsequently, during investigation, some sections have been added. Hence, the Trial Judge has rightly observed that custodial interrogation of the applicant is necessary. 24. The case is not a simpliciter one. It is a part of large scam. Medical profession is not an ordinary profession. The standard of medical education has core relation with the well being of society and health of citizens. There is no dispute that male or female both are the best creatures in the universe. It is pious duty of the State and society that best talents be made available in medical profession that is why a competition has been introduced for the purpose of admission in Medical Colleges. If incompetent persons, rather persons, who have no caliber be permitted to be admitted in the Medical Colleges, then the whole medical educational system would be affected and people would loose faith in medical profession, rather the life of the citizens would be in danger. 25. Because a large scale scam has been discovered in the State of Madhya Pradesh in regard to admission of ineligible candidates in the medical institutions with the connivance of the officers of examination body--VYAPAM and middleman and gravity of the offence, in our pinion, looking to the facts of the case and the nature of allegation against the applicant, he is not eligible to accord the benefit of anticipatory bail. Before parting with the case, we would like to observe that the prosecution has not investigated the case properly. The Committee in its report recorded a finding that the photographs and signatures of the applicant in originals, which were submitted at the time of submitting forms for Pre-Medical Test, are mismatching. Report of the Committee is dated 29-3-2012. Thereafter, investigation agencies have not taken care to examine the documents by Forensic Expert or Expert Committee. It is a grave error. Report of the Committee is dated 29-3-2012. Thereafter, investigation agencies have not taken care to examine the documents by Forensic Expert or Expert Committee. It is a grave error. It is the duty of the State and the prosecution agency that the documents of the accused persons be examined as early as possible by an expert body including the Forensic Expert so possibility of tampering with the documents be avoided. The investigation has been entrusted to the in-charge Station House Officer. When a Special Investigation Team has been constituted by the Government and some Dy. S.P. Level Officers are also involved in the scam, hence, it is necessary for the prospection and State to entrust the investigation to higher investigating agency under the leadership of IG or DIG, who have expertise in the field. We hope that the Government shall take into consideration the above observations made by this Court and will act accordingly. M.Cr.C. is disposed of accordingly.