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2015 DIGILAW 178 (MP)

Akansha Chauhan v. State of M. P.

2015-02-09

SUSHIL KUMAR GUPTA, U.C.MAHESHWARI

body2015
JUDGMENT : 1. Shri Vivek Kumar Lal, City Superintendent of Police, Purani Chhavni, Gwalior and Investigation Officer of the impugned Crime No. 285/2014 is present alongwith the case diary. 2. Heard on I.A. No. 10388/2014. 3. This is an application on behalf of the applicant to amend para 3 of the petition filed under Section 438 of the Cr.P.C. 4. For the reasons stated in the I.A., the same is allowed and after taking the annexed information stated in Annexure A/1A on record, the applicant's counsel is directed to incorporate the same at the appropriate para of the petition during the course of the day. This case is also listed today for admission, but on perusing the earlier order sheet, we have found that this petition has already been admitted vide order dt.29.12.2014, so no further order is required on such question. 5. In view of availability of the case diary, the petition is taken up for hearing on merits. 6. Before beginning the arguments, we were apprised by the counsel that today on behalf of their respective parties they have filed some papers in the registry as Document No. 831/2015 and Document No. 829/2015 respectively. The same are taken on record. 7. Heard. 8. On behalf of the petitioner, this petition is preferred under Section 438 of the Cr.P.C. for grant of anticipatory bail to the applicant, as she is under apprehension of her arrest in connection with Crime No. 285/2014 registered at Police Station Jhansi Road, Gwalior for the offence under Sections 419, 420, 467, 468, 471 and 120-B of IPC and Sections 3/4 of Madhya Pradesh Manyata Prapta Pariksha Adhiniyam, 1947. 9. Learned applicant counsel Shri Dhakray after taking us through the rejection order of the Sessions Court alongwith the papers placed on the record, by referring some papers relating to the academic qualifications of the applicant, said that the present applicant was remained throughout scholar as well as first class student upto the passing her examination of MBBS and subsequent to that, to get admission in P.G. course, she appeared in the competitive examinations of various states held in this regard. In support of such contention, he has also referred the list of the concerning states annexed with the index filed today. In support of such contention, he has also referred the list of the concerning states annexed with the index filed today. In this background, he said that looking to the meritorious career of the applicant there was no necessity for her to manage the illegal and offending affairs to get the admission in P.G. course in medical college of the State of Madhya Pradesh. 10. In continuation, by referring the copy of the memorandum of the co-accused Amit Sharma recorded under Section 27 of the Evidence Act obtained by her through RTI, he said that mere on the basis of this memorandum of the co-accused, the applicant has been implicated in the impugned crime. In continuation he said, even on taking into consideration such memorandum as accepted in it's entirety, even then the ingredients of the alleged offence are not made out against her. Mere on account of the information given by the co-accused, no inference could be drawn against her that she has committed the alleged offence. In continuation, he said that till today the investigation agency has not collected any admissible evidence showing the involvement of the applicant in the alleged offence. According to him, mere such memorandum of co-accused could not be a foundation to draw the inference against the applicant. In support of his argument, he also placed his reliance on an order of the Apex Court, whereby one Ms. Monika Yadav, the accused of some other crime number, has been extended the benefit of anticipatory bail and said that impugned case of applicant being identical she is also entitled for extending the same benefit of the anticipatory bail. In support of such argument, he has also referred an earlier order of the Division Bench of this court dt.3.12.2014 passed in the matter of Nirmala Solanki Vs. State of M.P. (M.Cr.C.No.11166/2014), whereby relying on the aforesaid Apex Court decision, the concerning applicant was also extended the benefit of anticipatory bail. In continuation, he said that taking into consideration the aforesaid both the orders, at the initial stage of this petition, by allowing the I.A. No.10335/2014 vide order dt.29.12.2014, the applicant was also extended the benefit of ad interim anticipatory bail for one month and subsequently such order was continued. In continuation, he said that taking into consideration the aforesaid both the orders, at the initial stage of this petition, by allowing the I.A. No.10335/2014 vide order dt.29.12.2014, the applicant was also extended the benefit of ad interim anticipatory bail for one month and subsequently such order was continued. Subsequent to such interim order, the applicant is fully cooperating the investigation agency to hold the investigation and she has not violated any terms of such interim bail order. He further said that if the benefit of anticipatory bail is not extended to the applicant, then she being a bachelor girl has to face the great difficulty not only in her medical profession but in social and future family life also. On extending such benefit, the applicant shall fully cooperate to the investigation agency to carry out the investigation and abide all the terms and conditions, which would be imposed by this court while extending the benefit of anticipatory bail. 11. Apart that, he also apprised us that identical matter of other person for grant of anticipatory bail is pending before the Apex Court as SLP (Cri.) No. 51/2015, which has been directed to be tagged by the Apex Court with SLP (Cri.) No. 9889/2014. The same are pending for adjudication. Apart this, he also referred the photo copies of some reported case laws submitted in compilation and prayed to extend the benefit of anticipatory bail by making the aforesaid earlier interim order as absolute by allowing this petition. 11. On the other hand, responding the aforesaid argument, learned Additional Advocate General Shri M.P.S. Raghuvanshi after taking us through the case diary by referring the First Information Report and other papers argued that it is a so serious matter, in which by breaking the established system of admission in the P.G. course the applicant by adopting the offending and the illegal activities through middleman and racketeers has secured the admission in P.G. course in some private college of the State and thereby the applicant had deprived to those bona fide and genuine students, who appeared in such competitive examination on their own devoted study in getting such admission in P.G. course at their proper age. In this background, he said that the present applicant was neither the scholar nor first class student and that's why she could not get success in any of the competitive examination of other States and after getting unsuccess in other states the applicant had managed the illegal affairs to get admission in the P.G. course in the State of Madhya Pradesh through racketeers and middleman as stated by Amit Sharma in his memorandum recorded under Section 27 of the Evidence Act, according to which the applicant has secured such admission in P.G. course in consideration of Rupees Thirty five Lacs, which was paid by her to one Vivek Chauhan, who is still absconding and in spite making the efforts could not be arrested till today who on his turn in consideration of such sum had managed the affairs to secure the aforesaid PG seat for the applicant through Amit Sharma and Brijmohan, the peon, in some office of the system. In this regard sufficient evidence is available in the case diary. In the light of such evidence the custodial interrogation of the applicant for proper investigation of the case is necessary and unless such interrogation is carried out, the investigation could not be completed. In continuation, he said that for getting the aforesaid admission the alleged money transaction had taken place between the present applicant and the aforesaid Vivek Chauhan and on that basis such Vivek Chauhan managed the affairs to secure the alleged admission. Thus, in any case the custodial interrogation of applicant is necessary. In continuation, he said that after extending the benefit of ad-interim anticipatory bail to the applicant, she appeared before the Investigation Officer and furnished the requisite bail bond, but is not cooperating properly to investigation agency to investigate the matter, as such in spite making the efforts she had not co-operated and make available the relevant requisite papers. In support of such contention, he has also referred some of the papers of the case diary as well as the status report of the present matter filed today. He said that in the aforesaid status report such situation of non cooperation of the applicant is specifically stated. The same is also supported by the affidavit of the aforesaid senior police official Shri Vivek Kumar Lal. He said that in the aforesaid status report such situation of non cooperation of the applicant is specifically stated. The same is also supported by the affidavit of the aforesaid senior police official Shri Vivek Kumar Lal. In support of his argument, he has placed his reliance on the copies of the reported cases placed on the record in a bunch. Lastly, by referring the order dt.27.1.2015 passed by this Bench in M.Cr.C.No.126/2015 (Sarita Sharma Vs. State of M.P.), in which while dealing with the Crime No. 449/2013 registered at the same police station, the second repeat application of the concerning applicant relating to the scam of PMT examination held by the VYAPAM was dismissed on merits, said that there is no change circumstances of this case, hence on the grounds on which the aforesaid application of the concerning candidate was dismissed vide order dt.27.1.2015, the present petition also deserves to be dismissed and prayed for the same. 12. Having heard the counsel at length keeping in view their arguments advanced, we have carefully gone through the case diary and the papers placed by the respective parties on the record alongwith the case laws cited by the counsel of the parties. 13. It is undisputed fact that initially the impugned crime was registered against unknown persons at the aforesaid police station of Jhansi Road, Gwalior but in the course of the investigation on arresting the co-accused Amit Sharma on recording his memorandum under Section 27 of the Evidence At, it was prima facie established that the present applicant had managed and got the PG seat in some private college of the State of Madhya Pradesh in consideration of Rupees Thirty Five Lacs, which was paid by her to Vivek Chauhan, who is still absconding and Vivek Chauhan on his turn had given the sum to Amit Sharma and Brijmohan to manage the affairs to get sum admission or applicant in illegal manner and in such circumstances for proper investigation to verify the collected information by the Investigation Officer in the matter in respect of the present applicant till today, the custodial interrogation of the present applicant is necessary, otherwise all other necessary information relating the applicant with respect of the alleged offence could not be collected by the investigating agency. 14. 14. In the light of the aforesaid status report of investigation filed by the I.O. today on perusing the case diary, we have found that after extending the benefit of ad interim anticipatory bail to the applicant, she had appeared before the Investigation Officer and furnished the requisite bail bond and her counsel by referring papers placed on the record tried to demonstrate that she is fully cooperating to investigation agency but on perusing the case diary, we have found that in the lack of proper cooperation of the applicant, the requisite investigation in respect of this applicant to hold the investigation is not possible by the investigating authority. So in the available circumstances, we are of the considered view that for fair and proper investigation, the custodial interrogation of the applicant is necessary. 15. Apart the aforesaid, on perusing the case diary, it is apparent that this matter is relating to very serious scam relating to the field of medical education in which various officials working in the VYAPAM through some middle men and the racketeers under criminal conspiracy by breaking the established system through various offending act had given the admission in higher medical courses to those persons, like the applicant, who were not qualified for admission in such course and by this act the concerning officials, brokers, middlemen, racketeers and the candidates like applicant not only secured the admission in such course illegally by the offending act, but simultaneously they deprived to those bona fide, meritorious and genuine students, who appeared in the concerned competitive examination held by the VYAPAM either for admission in MBBS course or P.G. course on the basis of their own devoted and laborious study with the subject, so in such premises, looking to the seriousness of the offence, the applicant does not deserve for extending the benefit of the anticipatory bail. As such on granting such bail, the same will not give healthy message to the public at large. In some of the reported decisions of the Apex Court cited by the Additional Advocate General, it was held that while dealing with the matter of the anticipatory bail or the bail, the courts should keep in mind the impact of such bail or anticipatory bail over the society. In some of the reported decisions of the Apex Court cited by the Additional Advocate General, it was held that while dealing with the matter of the anticipatory bail or the bail, the courts should keep in mind the impact of such bail or anticipatory bail over the society. So in such premises also looking to the seriousness of the offence we are not inclined to extend the benefit of anticipatory bail to the present applicant. 16. Apart the aforesaid, it appears from the case diary that further investigation of the case with respect of the present applicant including her custodial interrogation could be carried out only after making her arrest. Apart this, the matter is also under supplementary investigation against so many other persons/co-accused. The aforesaid co- accused Vivek Chauhan is still absconding. So in such premises also we are not inclined to extend the benefit of anticipatory bail to the applicant. 17. So far as the order of the Apex Court delivered in the matter of aforesaid Ms. Monika Yadav, on which the earlier order of Nirmala Solanki was passed by this court and subsequent to that, on their basis in the present matter the ad interim anticipatory bail was granted to the applicant vide order dt.29.12.2014 are concerned, on perusing the order of the Apex Court, it is apparent that such order was not passed in connection of the impugned Crime No. 285/2014, the same has been passed in connection with Crime No. 138/2013 registered with respect of the scam of PMT examination held by the VYAPAM and not in respect of the examination of P.G. course. 18. It is also apparent that while dealing with the bail matters no specific principle for grant of anticipatory bail was laid down by the Apex Court in the aforesaid cited order. It is the settled proposition of law that unless some principle is laid down by the Apex Court in the order, the same could not be deemed to be a precedent having the binding effect on all the subsequent other matters. 20. It is the settled proposition of law that unless some principle is laid down by the Apex Court in the order, the same could not be deemed to be a precedent having the binding effect on all the subsequent other matters. 20. Apart the aforesaid, bail matter is always dealt with by the court on the basis of available facts and circumstances of the case, as appear from the case diary or the charge sheet and the same could not be influenced by any fact or situation of the case diary of the other criminal case or the copy of the charge sheet of some other criminal case. So in the available circumstances, the applicant is not entitled to get the benefit of anticipatory bail on the ground of parity. 21. So far as the case law of the Apex Court in : (2011) 1 SCC 694 [Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors. And : (2014) 2 SCC 171 (State of Madhya Pradesh Vs. Pradeep Sharma), in which the guidelines for grant of anticipatory bail and the bail have been laid down, on examining the case at hand in the light of the principle laid down in such cases, we are of the view that this is not a fit case for extending the benefit of anticipatory bail to the applicant. 22. Consequently, this petition deserves to be and is hereby dismissed. Pursuant to it, the interim order dated 29.12.2014 granting ad interim anticipatory bail to the applicant has also come to an end.