JUDGMENT
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 220 OF 2015 (ARISING OUT OF SLP (CRL.) NO.7506 OF 2014) DR. VINOD BHANDARI …APPELLANT
VERSUS
STATE OF M.P. …RESPONDENT JUDGMENT ADARSH KUMAR GOEL, J.
1.
Leave granted.
2. This appeal has been preferred against final judgment and order dated 11th August, 2014 passed by the High Court of Madhya Pradesh at Jabalpur in Misc. Criminal Case No.10371 of 2014 whereby a Division Bench of the High Court dismissed the bail application filed by the appellant.
3. M.P. Vyavsayik Pareeksha Mandal (M.P. Professional Examination Board) known as Vyapam conducts various tests for admission to professional courses and streams. It is a statutory body constituted under the provisions of M.P. Professional Examination Board Act, 2007. As per FIR No.12 of 2013 registered on 30th October, 2013 at police station, S.T.F., Bhopal under Sections 420, 467, 468, 471, 120B of the Indian Penal Code (“IPC”) read with Section 3(d), 1, 2/4 of the Madhya
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Pradesh Manyata Prapt Pariksha Adhiniyam, 1937 and under Sections 65 and 66 of the I.T. Act, Shri D.S. Baghel, DSP (STF), M.P. Police Headquarters, Bhopal during the investigation of another case found that copying was arranged in PMT Examination, 2012 at the instance of concerned officers of the Vyapam and middlemen who for monetary consideration helped the undeserving students to pass the entrance examination to get admission to the M.B.B.S course in Government and Private Medical Colleges in the State of M.P. As per the material collected during investigation, in pursuance of conspiracy, the appellant Dr. Vinod Bhandari, who is the Managing Director of Shri Aurbindo Institute of Medical Sciences, Indore, received money from the candidates through co-accused Pradeep Raghuvanshi who was working in Bhandari Hospital & Research Centre, Indore as General Manager and who was also looking after the admissions and management work of Shri Aurbindo Institute of Medical Sciences, Indore, for arranging the undeserving candidates to pass through the MBBS Entrance Examination by unfair means. He gave part of the money to Nitin Mohindra, Senior Systems Analyst in Vyapam, who was the custodian of the model answer key, along with Dr. Pankaj Trivedi, Controller of Vyapam. During investigation, disclosure statement was made by Pradeep Raghuvanshi which led to the recovery of money and documents. The candidates, their guardians, some officers of the Vyapam and middlemen were found to be involved in the scam. It appears that there are in all 516 accused out of which 329 persons
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have been arrested and 187 are due to be arrested. Substantial investigation has been completed and charge sheets filed but certain aspects are still being investigated and as per direction of this Court in a Petition for Special Leave to Appeal (C) …. CC No.16456 of 2014 titled “Ajay Dubey versus State of M.P. & Ors.”, final charge sheet is to be filed by the Special Task Force on or before March 15, 2015 against the remaining accused. Allegations also include that some high scorer candidates were arranged in the examination centre who could give correct answers and the candidates who paid money were permitted to do the copying. Other modus operandi adopted was to leave the OMR sheets blank which blank sheets were later filled up with the correct answers by the corrupt officers of Vyapam. Further, the model answer key was copied and made available to concerned candidates one night before the examination. Each candidate paid few lakhs of rupees to the middlemen and the money was shared by the middlemen with the officers of the Vyapam. The appellant received few crores of rupees in the process from undeserving candidates to get admission to the M.B.B.S. and, as per allegation in the other connected matter, i.e., FIR No.14 of 2013 registered on 20th November, 2013 with the same police station, to the PG medical courses.
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Criminal Appeal No…. of 2015 @ SLP (Crl.) No.7506 of 2014
4. In the present case, the appellant was arrested on 30th January, 2014 while in the other FIR he was granted anticipatory bail on 16th January, 2014. Second Bail application of the appellant in the present case was considered by the 9th Additional Sessions Judge, Bhopal and dismissed vide Order dated 9.5.2014. Earlier, first bail application had been dismissed on 5th February, 2014. While declining prayer for bail, it was, inter-alia, observed :
“In the present case, it is alleged against
the accused that he in connivance with the
officers of coordinator State level institution
(VYAPAM) in lieu of huge amount got the
candidates selected in the examination
after getting them passed in the Pre-Medical
Test (PMT) Examination, which is mandatory
and important for admission in the medical
education institution. According to the
prosecution, applicant snatched right of
deserving and scholar students, he got
selected ineligible candidates in the field of
medical education. This case is not only
related to economic offence, rather apart
from depriving rights of deserving and
scholar students, it is related to the human
life and health.”
5. The Division Bench of the High Court, in its Order, referred to the supplementary challan filed against the appellant on 24th April, 2014, indicating the following material :
“Offence of the accused :
The accused Dr. Vinod Bhandari has been
the Managing Director of S.A.I.M.S., Indore
and prior to the P.M.T. Examination 2012 he
had in collusion with Nitin Mohindra, Senior
System Analyst of Vyapam, for getting
some of his candidates passed in the P.M.T.
Examination, 2012 and stating to send list
of his candidates and cash amount through
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Criminal Appeal No…. of 2015 @ SLP (Crl.) No.7506 of 2014
his General Manager Pradeep Raghuvanshi,
subsequently he sent list of his 08
candidates and 60 lakh rupees in cash
through his General Manager and 07
candidates out of aforesaid candidates were
got passed by using unfair means with the
connivance of Nitin Mohindra by way of
filling up the circles in their O.M.R. sheets
and received the amount in illegally manner
by hatching conspiracy which has been
recovered/seized from his General Manager
Pradeep Raghuvanshi. In this manner, the
accused has committed a serious crime in
well designed conspiracy by hatching
conspiracy and committed organized crime.
Evidences available against the accused :-
1. The certified copy of the excel sheet
of the data
retrieved from the hard
disc seized from the office
of
the
accused Nitin Mohindra;
2. The documents, note sheets and the
activity chart of P.M.T. Examination,
2012 seized from
Vyapam;
3. The list of 150 candidates seized from
Shri
Aurbindo Institute of Medical
Sciences College,
Indore in respect of
M.B.B.S. admission for the session 2012-
13 at the instanced of the accused Dr.
Bhandari;
4. Memorandums of other accused
persons;
5. The seizure memo of the amount
seized from
Pradeep Raghuvanshi.”
6. While declining bail, the High Court observed :
“To put it differently after considering all
aspects of the matter as the material
already placed along with the first charge-
sheet prima facie indicates complicity of the
applicant in the commission of the crime
and is not a case of no evidence against the
applicant at all; coupled with the fact that if
the charge is proved against the applicant,
the offence is punishable with life sentence;
as the role of the applicant is being part of
the conspiracy and is the kingpin; further
that the applicant is allegedly involved in
huge money transaction including to
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Criminal Appeal No…. of 2015 @ SLP (Crl.) No.7506 of 2014 sponsor 8 candidates who were to appear in the VYAPAM examination; and is also prosecuted for another offence of similar type of having sponsored 8 other candidates; and has the potential of influencing the witnesses and other evidence and more importantly the investigation of the large scale conspiracy is still incomplete; as also keeping in mind the past conduct of the applicant in going abroad soon after the registration of the Crime No.12/2013 and returning back to India on 21.1.2014 only after grant of anticipatory bail on 16.1.2014, for all these reasons, for the time being, the applicant cannot be admitted to the privilege of regular bail.” 7. We have heard learned counsel for the parties.
8. Main contention advanced on behalf of the appellant is that the appellant has already been in custody for about one year and there is no prospect of commencement of trial in the near future. Even investigation is not likely to be completed before March 15, 2015. There are about 516 accused and large number of witnesses and documents. Thus, the trial will take long time. In these circumstances, the appellant cannot be kept in custody for indefinite period before his guilt is established by acceptable evidence. Our attention has been invited to order dated 27th November, 2014 passed by the trial Court, recording the request of the Special Public Prosecutor for deferring the proceedings of the case till the cases of other accused against whom supplementary charge sheets were filed were committed to the Court of Session and till supplementary charge sheet was filed against several other accused persons. In the said order, the Court directed
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Criminal Appeal No…. of 2015 @ SLP (Crl.) No.7506 of 2014 the Investigating Officer to indicate as to against how many accused persons investigation is pending and the time frame for filing charge sheets/supplementary charge sheets. In response to the said order, the Investigating Officer, vide letter dated 25th December, 2014 filed before the trial Court, stated that 329 persons had already been arrested and 187 were yet to be arrested and efforts were being made to file the charge sheets by March 15, 2015 in compliance of the directions of this Court. Thus, the submission on behalf of the appellant is that in view of delay in trial, the appellant was entitled to bail.
9. On the other hand, learned counsel for the State opposed the prayer for grant of bail by submitting that this Court ought not to interfere with the discretion exercised by the trial Court and the High Court in declining bail to the appellant. He points out that the trial Court and the High Court have dealt with the matter having regard to all the relevant considerations, including the nature of allegations, the material available, likelihood of misuse of bail and also the impact of the crime in question on the society. He pointed out that the Courts below have found that there is a clear prima facie case showing complicity of the appellant, the offence was punishable with life sentence, the appellant was the kingpin in the conspiracy, he had the potential of influencing the witnesses, investigation was still pending and the appellant had earlier gone abroad to avoid arrest.
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Criminal Appeal No…. of 2015 @ SLP (Crl.) No.7506 of 2014
10. Referring to the counter affidavit filed on behalf of the State, he points out that in the excel sheet recovered from Nitin Mohindra, the appellant has been named and in the statement under Section 164 Cr.P.C. Dr. Moolchand Hargunani disclosed that he had met the appellant who asked him to meet Pradeep Raghuvanshi for admission to PMT and he was asked to pay Rs.20 lakhs. He could not pay the said amount and his son could not get the admission. A sum of Rs.50 lakh for PMT Examination and 1.2 crores for Pre PG Examination, 2012 was received from Pradeep Raghuvanshi who was General Manager of the appellant’s hospital and in charge of admission to the institute of the appellant.
11. We have given due consideration to the rival submissions and perused the material on record.
12. It is well settled that at pre-conviction stage, there is presumption of innocence. The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed. The detention is not supposed to be punitive or preventive. Seriousness of the allegation or the availability of material in support thereof are not the only considerations for declining bail. Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not likely to be concluded within reasonable time. Reference may be made to decisions of this Court in Kalyan Chandra
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Criminal Appeal No…. of 2015 @ SLP (Crl.) No.7506 of 2014 Sarkar vs. Rajesh Ranjan 1 , State of U.P. vs. Amarmani Tripathi 2 , State of Kerala vs. Raneef 3 and Sanjay Chandra vs. CBI 4 .
13. In Kalyan Chandra Sarkar (supra), it was observed :
“8. It is trite law that personal liberty
cannot be taken away except in accordance
with the procedure established by law.
Personal liberty is a constitutional
guarantee. However, Article 21 which
guarantees
the
above
right also
contemplates deprivation of personal liberty
by procedure established by law. Under the
criminal laws of this country, a person
accused of offences which are non-bailable
is liable to be detained in custody during
the pendency of trial unless he is enlarged
on bail in accordance with law. Such
detention cannot be questioned as being
violative of Article 21 since the same is
authorised by law. But even persons
accused of non-bailable offences are
entitled to bail if the court concerned comes
to the conclusion that the prosecution has
failed to establish a prima facie case against
him and/or if the court is satisfied for
reasons to be recorded that in spite of the
existence of prima facie case there is a
need to release such persons on bail where
fact situations require it to do so. In that
process a person whose application for
enlargement on bail is once rejected is not
precluded from filing a subsequent
application for grant of bail if there is a
change in the fact situation. In such cases if
the circumstances then prevailing require
that such persons be released on bail, in
spite of his earlier applications being
rejected, the courts can do so.”
14. In Amarmani Tripathi (supra), it was observed :
18. It is well settled that the matters to be
considered in an application for bail are (i)
1 (2005) 2 SCC 42
2 (2005) 8 SCC 21
3 (2011) 1 SCC 784
4 (2012) 1 SCC 40
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whether there is any prima facie or
reasonable ground to believe that the
accused had committed the offence; (ii)
nature and gravity of the charge; (iii)
severity of the punishment in the event of
conviction; (iv) danger of the accused
absconding or fleeing, if released on bail;
(v) character, behaviour, means, position
and standing of the accused; (vi) likelihood
of the offence being repeated; (vii)
reasonable apprehension of the witnesses
being tampered with; and (viii) danger, of
course, of justice being thwarted by grant of
bail [see Prahlad Singh Bhati v. NCT,
Delhi[(2001) 4 SCC 280] and Gurcharan
Singh v. State (Delhi Admn.) [(1978) 1 SCC
118]. While a vague allegation that the
accused may tamper with the evidence or
witnesses may not be a ground to refuse
bail, if the accused is of such character that
his mere presence at large would intimidate
the witnesses or if there is material to show
that he will use his liberty to subvert justice
or tamper with the evidence, then bail will
be refused. We may also refer to the
following principles relating to grant or
refusal of bail stated in Kalyan Chandra
Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528]:
(SCC pp. 535-36, para 11)
“11. The law in regard to grant or
refusal of bail is very well settled.
The court granting bail should
exercise its discretion in a
judicious manner and not as a
matter of course. Though at the
stage of granting bail a detailed
examination of evidence and
elaborate documentation of the
merit of the case need not be
undertaken, there is a need to
indicate in such orders reasons
for prima facie concluding why
bail
was
being
granted
particularly where the accused is
charged of having committed a
serious offence. Any order devoid
of such reasons would suffer from
non-application of mind. It is also
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Criminal Appeal No…. of 2015 @ SLP (Crl.) No.7506 of 2014
necessary for the court granting
bail to consider among other
circumstances, the following
factors also before granting bail;
they are:
(a) The nature of accusation and
the severity of punishment in
case of conviction and the nature
of supporting evidence.
(b) Reasonable apprehension of
tampering with the witness or
apprehension of threat to the
complainant.
(c) Prima facie satisfaction of the
court in support of the charge.
(See Ram Govind Upadhyay v.
Sudarshan Singh [(2002) 3 SCC
598]] and Puran v. Rambilas
[(2001) 6 SCC 338.)”
22. While a detailed examination of the
evidence is to be avoided while considering
the question of bail, to ensure that there is
no prejudging and no prejudice, a brief
examination to be satisfied about the
existence or otherwise of a prima facie case
is necessary. An examination of the material
in this case, set out above, keeping in view
the aforesaid principles, disclose prima
facie, the existence of a conspiracy to which
Amarmani and Madhumani were parties.
The contentions of the respondents that the
confessional statement of Rohit Chaturvedi
is inadmissible in evidence and that that
should be excluded from consideration, for
the purpose of bail is untenable. This Court
had negatived a somewhat similar
contention in Kalyan Chandra Sarkar thus:
(SCC p. 538, para 19)
“19. The next argument of
learned
counsel
for
the
respondent is that prima facie the
prosecution has failed to produce
any material to implicate the
respondent in the crime of
conspiracy. In this regard he
submitted that most of the
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witnesses have already turned
hostile. The only other evidence
available to the prosecution to
connect the respondent with the
crime is an alleged confession of
the co-accused which according
to the learned counsel was
inadmissible
in
evidence.
Therefore, he contends that the
High Court was justified in
granting
bail
since
the
prosecution has failed to
establish even a prima facie case
against the respondent. From the
High Court order we do not find
this as a ground for granting bail.
Be that as it may, we think that
this argument is too premature
for us to accept. The admissibility
or otherwise of the confessional
statement and the effect of the
evidence already adduced by the
prosecution and the merit of the
evidence that may be adduced
hereinafter including that of the
witnesses sought to be recalled
are all matters to be considered
at the stage of the trial.”
15.
In Raneef (supra), it was observed :
“15.
In deciding bail applications an
important factor which should certainly be
taken into consideration by the court is the
delay in concluding the trial. Often this
takes several years, and if the accused is
denied bail but is ultimately acquitted, who
will restore so many years of his life spent
in custody? Is Article 21 of the Constitution,
which is the most basic of all the
fundamental rights in our Constitution, not
violated in such a case? Of course this is not
the only factor, but it is certainly one of the
important factors in deciding whether to
grant bail. In the present case the
respondent has already spent 66 days in
custody (as stated in Para 2 of his counter-
affidavit), and we see no reason why he
should be denied bail. A doctor incarcerated
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for a long period may end up like Dr.
Manette in Charles Dicken’s novel A Tale of
Two Cities, who forgot his profession and
even his name in the Bastille.”
16. In Sanjay Chandra (supra), it was observed :
“21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
24. In the instant case, we have already noticed that the “pointing finger of accusation” against the appellants is “the seriousness of the charge”. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not
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Criminal Appeal No…. of 2015 @ SLP (Crl.) No.7506 of 2014 the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather “recalibrating the scales of justice”.
17. In the light of above settled principles of law dealing with the prayer for bail pending trial, we proceed to consider the present case. Undoubtedly, the offence alleged against the appellant has serious adverse impact on the fabric of the society. The offence is of high magnitude indicating illegal admission to large number of undeserving candidates to the medical courses by corrupt means. Apart from showing depravity of character and generation of black money, the offence has the potential of undermining the trust of the people in the integrity of medical profession itself. If undeserving candidates are admitted to medical courses by corrupt means, not only the society will be deprived of the best brains treating the patients, the patients will be faced with undeserving and corrupt persons treating them in whom they will find it difficult to repose faith. In these circumstances, when the allegations are supported by material on record and there is a potential of trial being adversely influenced by grant of bail, seriously
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Criminal Appeal No…. of 2015 @ SLP (Crl.) No.7506 of 2014 jeopardising the interest of justice, we do not find any ground to interfere with the view taken by the trial Court and the High Court in declining bail.
18. It is certainly a matter of serious concern that the appellant has been in custody for about one year and there is no prospect of immediate trial. When a person is kept in custody to facilitate a fair trial and in the interest of the society, it is duty of the prosecution and the Court to take all possible steps to expedite the trial. Speedy trial is a right of the accused and is also in the interest of justice. We are thus, of the opinion that the prosecution and the trial Court must ensure speedy trial so that right of the accused is protected. This Court has already directed that the investigation be finally completed and final charge sheet filed on or before March 15, 2015. We have also been informed that a special prosecutor has been appointed and the matter is being tried before a Special Court. The High Court is monitoring the matter. We expect that in these circumstances, the trial will proceed day to day and its progress will be duly monitored. Material witnesses may be identified and examined at the earliest. Having regard to special features of this case, we request the High Court to take up the matter once in three months to take stock of the progress of trial and to issue such directions as may be necessary. We also direct that if the trial is not completed within one year from today for reasons not attributable to the appellant, the appellant will be
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Criminal Appeal No…. of 2015 @ SLP (Crl.) No.7506 of 2014 entitled to apply for bail afresh to the High Court which may be considered in the light of the situation which may be then prevailing.
19. The appeal is accordingly disposed of with the above observations. We make it clear that observations in our above judgment will not be treated as expression of any opinion on merits of the case and the trial Court may decide the matter without being influenced by any such observation.
……………………………………………J. (T.S. THAKUR)
……………………………………………J. (ADARSH KUMAR GOEL)
NEW DELHI
FEBRUARY 4, 2015