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2015 DIGILAW 641 (MP)

Richa Johari Ojha v. State of MP

2015-06-23

M.C.GARG, U.C.MAHESHWARI

body2015
JUDGMENT : 1. State counsel is under receipt of the case diary as well as the Investigating Officer-Shri Vivek Kumar Lal, is also present in person. 2. At the outset, learned Senior Counsel submits that he does not want to press IA No. 5223/2015, an application for grant of ad-interim anticipatory bail to the applicant and seeks permission to withdraw the same with a prayer to hear this petition on admission today. 3. Considering the aforesaid prayer, the aforesaid IA is hereby dismissed as withdrawn and not pressed. 4. In view of the availability of the case diary and the Investigating Officer, this petition filed under section 438 of Cr.P.C. is taken up for consideration. 5. The same has been filed on behalf of the applicant under the aforesaid provision for grant of anticipatory bail as she is under apprehension of her arrest in connection with Crime No. 285/2014, registered at Police Station Jhansi Road, Gwalior for the offences under Sections 419, 420, 467, 468, 471and 120-B of IPC, so also under Sections 3(gha), 1 and 2/4 of the MP Manyata Prapt Pariksha Adhiniyam, 1937. 6. After taking us through the petition as well as the rejection order of the Sessions Court alongwith order of the Division Bench-I of the Principal Seat of this Court dated 19/6/2015 passed in M.Cr.C. No. 9303/2015, the Senior Counsel said that initially on behalf of the applicant the petition for grant of anticipatory bail was filed as M.Cr.C. No. 9303/2015 before the Principal Seat of this Court. The same was returned back to the applicant vide order dated 19/6/2015 with the following observations, directions and liberties : "We accede to this submission of the applicant. The Registry is directed to return back this application to the applicant for being presented before the Gwalior Bench on 22.06.2015. We make it clear that if the applicant fails to report and to remain present thereafter before the Investigating Officer as per the assurance given through counsel, the Investigating Officer will be free to proceed against the applicant in accordance with law. All questions are left open to be decided on its own merits." 7. In continuation, the Senior Counsel submits that in compliance of the aforesaid direction, this petition is preferred before this Court and simultaneously, the applicant has appeared before the Investigating Officer to carry out her interrogation in the investigation. All questions are left open to be decided on its own merits." 7. In continuation, the Senior Counsel submits that in compliance of the aforesaid direction, this petition is preferred before this Court and simultaneously, the applicant has appeared before the Investigating Officer to carry out her interrogation in the investigation. In continuation, he appraised us that the applicant has not appeared only once before the Investigating Officer, but appeared twice, i.e. on 21/6/2015, so also on 22/6/2015 and subsequent to that, she has not been directed to appear before the Investigating Officer for further interrogation. He categorically stated that as such the applicant has not committed any of the alleged offence either herself or with the association of her father and other alleged co-accused. She secured the seat in Pre- PG course on the basis of her study and talent, whereby she has passed out the alleged competitive examination of admission of Pre-PG course but subsequently on the basis of memorandum of other co-accused as alleged the racketeer of the case and of the memorandum of her father recorded under Section 27 of the Evidence Act, she has been implicated in the case on false pretext by fabricating a false story. In continuation, he said that on extending the benefit of anticipatory bail to the applicant, she is ready and willing to assist the investigating agency according to its directions. He further said that the applicant being a married woman, is a practicing doctor and also having a child of eleven months in her lap and if the benefit of anticipatory bail is not extended to her, then she has to suffer a lot not only in respect of her professional career but on her arrest, her infant child has to suffer in a lot. In further argument, Senior counsel Shri Saxena, said that after admission in the Pre-PG course through competitive examination, the applicant has successfully passed out the PG course. In addition, he said that the applicant has also passed out such course as Gold Medalist. In continuation, he said that besides the aforesaid, in the course of prosecuting the study of MBBS in different subjects, she secured eight Gold Medals. In addition, he said that the applicant has also passed out such course as Gold Medalist. In continuation, he said that besides the aforesaid, in the course of prosecuting the study of MBBS in different subjects, she secured eight Gold Medals. He also said that mere on the basis of memorandum of other co-accused recorded under Section 27 of the Evidence Act the impugned case could not be deemed to be prima facie proved against the applicant and prayed to extend the benefit of anticipatory bail to the applicant by allowing this petition. 8. On the other hand, responding the arguments advanced by the applicant's counsel with the assistance of the case diary as well as the Investigating Officer, Shri Solanki, Government Advocate said that as per the evidence collected by the investigating agency, available in the case diary, there are prima facie circumstances against the applicant for committing the alleged offence. Although some initial interrogation of the applicant has been carried out by the investigating agency on 21/06/2015 and 22/06/2015 but still the investigation is in progress and in the available circumstances, in the course of further investigation her custodial interrogation is required which could not be carried out unless she is arrested. In further argument, he said that looking to the nature of offence and the manner in which it was committed by the applicant, whereby breaking the established system of VYAPAM to carry out the competitive examination of the candidates for Pre-PG course, in illegal manner in consideration of money in lakhs with the association of her father and through racketeer Yogesh Chandra Uprit, secured the seat in the Pre-PG course, for which prima facie evidence is available in the case diary, according to which under instructions of her father and such racketeer while giving such examination had left blank circles in front of many of the questions which have been filled up subsequently by some other person involved in the alleged conspiracy and thereby secured 30th rank in such competitive examination to secure the seat in Pre-PG course. She does not deserve for extending the benefit of anticipatory bail. She does not deserve for extending the benefit of anticipatory bail. He further said that by committing such act, the applicant has not only committed the offence defined under the law books but also deprived to those genuine students who appeared in such competitive examination of the VYAPAM on their own devoted study and labour, but due to the aforesaid illegal act of the applicant, her associates and racketeer, they could not get success at their proper age to make their career in medical field in the concerning subject of the Pre-PG course. So on such count also, the impugned offence being serious offence, the applicant does not deserve to extend the benefit of anticipatory bail. He further said that the provisions of anticipatory bail have not been enacted to protect those accused or offenders who are involved in the serious offences like the present one in which the applicant was involved. In case there is no prima facie circumstance to show that any of the alleged offence has been committed by the applicant then in that circumstance, such provision could be considered and invoked for the applicant but in the case of serious offence like the case in hand the benefit of such provision at the whims of the applicant could not be extended. If such provision is invoked for the applicant by this Court, then it will not give healthy message to the society at large. In support of his contention, he has also referred the interrogated statement of the applicant and the memorandums of her father and the co-accused racketeer recorded under Section 27 of the Evidence Act. At this stage, in response of the query of the Court asking whether after recording the memorandum of the father as well as the racketeer Yogesh Chandra Uprit, the facts stated by them in such disclosure have been further verified by the investigating agency, on which he submits that investigation is still being carried out on the basis of the collected evidence including the statements and memorandums and the custodial interrogation of the applicant could be carried out only after making her arrest, and not prior to that. In addition, on the basis of the case diary, he said that alleged blank circles in the answer-sheets of the applicant were as alleged filled up through co-accused Ramgopal and Brij Mohan, who have already been arrested in the matter and on disclosing the information by them in their memorandums recorded under Section 27 of the Evidence Act, they have stated the same. With these submissions, the State Counsel prayed for dismissal of the petition. 9. Having heard the counsel at length, keeping in view their arguments advanced, we have carefully gone through the papers placed on record alongwith papers of the case diary referred by the State counsel, so also other papers of the same. 10. Having perused the same, we have found prima facie circumstance against the applicant to show the prima facie involvement of the applicant in the alleged offence according to which with illegal affairs in consideration of money by breaking the system of competitive examination of Pre-PG Course established by the VYAPAM, she had secured the admission in Pre-PG Course. In the course of investigation, the co-accused racketeer, middleman and the father of the applicant after making their arrest, in their memorandums recorded under Section 27 of the Evidence Act, stated the incriminatory things against the applicant and the applicant also stated in her preliminary interrogatory statement recorded on 21/06/2015 and/or 22/06/2015. Thus, in view of such prima facie established circumstances, the custodial interrogation of the applicant appears to be necessary in further investigation, so also to collect the material evidence. Apart from this, it is apparent that in the last more than one year so many cases have been registered in the State of Madhya Pradesh in respect of the alleged scam of the competitive examination of PMT and its Pre-PG course and in those cases various persons have been arrested, and since long they are in custody and considering the seriousness of the offences in those cases, they have not been extended the benefit of regular bail till today and in such circumstances, if serious offender like the applicant is extended the benefit of anticipatory bail, then certainly it would be a discrimination with the other co-accused of the alleged identical cases of scam. Besides this, as per submission of the State Counsel, the applicant has not only committed the offence defined in law books, but she has also committed the offence against those genuine and devoted students who appeared in the alleged competitive examination on their own study and labour but due to illegal activities of the applicant, her associates, racketeer and other co-accused, they could not get success to make their future in medical field and such argument prima facie also appears to be relevant for dismissal of this petition. 11. We are of the view that the provisions of Section 438 of Cr.P.C. for extending the benefit of anticipatory bail have not been enacted for those persons who are involved in the alleged serious offences like case at hand, such provisions may be invoked only if there is no prima facie circumstance against the alleged accused. So far as the ground as advanced by applicant's counsel that the applicant is having a child of eleven months in her lap is concerned, mere on such emotional ground by ignoring the seriousness of the offence the applicant could not be held to be entitled to extend the benefit of anticipatory bail. 12. We have carefully gone through the order passed by Division Bench-I of the Principal Seat of this Court. In such order, in the last line it is stated that all questions are left open to be decided on its own merits, so any observations or the findings given in such order do not come in the way of passing this order. As such, this order is being passed on merits of the matter after taking into consideration the evidence and circumstances available in the case diary. 13. In view of the aforesaid discussions, we are not inclined to extend the benefit of anticipatory bail to the applicant. Consequently, this petition deserves to be and is hereby dismissed. 14. It is made clear that any observation or finding given in this order shall not come in the way of the consideration of the application of the applicant under Section 439 of CrPC, if the same is filed after making her arrest. Such application shall be considered and decided by the Court in accordance with law on its own merits.