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Wednesday, February 4, 2015

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 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.

                                 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
J U D G M E N T

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 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 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.
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 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 :-
The certified copy of the excel sheet of the data  retrieved from  the  hard
disc seized from the   office of the accused Nitin Mohindra;
The documents, note sheets and the activity  chart  of  P.M.T.  Examination,
2012 seized from       Vyapam;
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;
Memorandums of other accused persons;
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  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 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.
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 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) 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 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 [pic]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 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 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 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  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 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
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[1]    (2005) 2 SCC 42
[2]    (2005) 8 SCC 21
[3]    (2011) 1 SCC 784
[4]    (2012) 1 SCC 40

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