Anwar Beg vs State of M.P.

Heard on merits of this petition.

The same is filed on behalf of the applicant under Section 438 of the Cr.P.C. for grant of anticipatory bail to the applicant, as he is under apprehension of his arrest in connection with Crime No. 138/2013 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.

Applicant''s counsel after taking us through the petition as well as the papers placed on the record alongwith the impugned rejection order of the Sessions Court argued that the applicant has been implicated in the matter on account of the alleged illegal admission of his son in the medical courses through competitive examination of the PMT held by the VYAPAM in the year 2009. In continuance, he said that as per the allegation, in order to secure the seat in the aforesaid course, the applicant has provided the alleged sum to his son and involved himself in the alleged criminal conspiracy with the racketeers namely Gyan Singh Jatav, Vishal Yadav and Alok Singh, so also with his own son and in pursuance of such criminal conspiracy, at the instance of the applicant his son has paid the alleged sum of Rs. 2,60,000/- and on the basis of such consideration, such son without appearing in the competitive examination, has secured such admission through some solver who has appeared on his behalf in the alleged competitive examination. He further said that on taking into consideration the evidence collected by the investigating agency till today in the matter, it is apparent that the applicant is being involved in the matter only on the basis of the memorandum of his son/co-accused Mohd. Azhar Beg as well as of other arrested co-accused and racketeer Vishal Yadav recorded under Section 27 of the Evidence Act and there is no any other evidence in the case diary, on which the inference regarding involvement of the applicant in the alleged offence could be drawn. In the background of this submission, he said that there is no prima facie circumstances against the applicant for committing the alleged offence. In support of his contention, he placed his reliance on the decided case of the Apex Court in the matter of Kehar Singh and Others Vs. State (Delhi Administration), . In continuance, he has also said that the co-accused of the impugned crime namely Mahipal Singh situated in the similar circumstances of the case has already been extended the benefit of the anticipatory bail by the Apex Court, so in view of the principle of parity in the light of such order of Mahipal Singh Yadav, the applicant is also entitled to extend the same benefit and prayed to extend the benefit of anticipatory bail to the applicant by allowing this petition.

On the other hand, responding the aforesaid argument with the assistance of the case diary as well as of the Investigating Officer, learned Additional Advocate General Shri M.P.S. Raghuvanshi argued that whatsoever evidence has been collected by the investigation agency in the matter till today, in which the memorandums of the aforesaid son of the applicant and other racketeer co-accused Vishal Yadav recorded under Section 27 of the Evidence Act are also included. There is sufficient prima facie circumstances to show that the applicant was involved in the alleged conspiracy to get admission of his son in the aforesaid medical courses through illegal means, for which the alleged sum was given by the present applicant through his son for the alleged illegal purpose and in such premises it is a serious offence. In continuation he said that the investigation against the co-accused as well as the applicant is being carried out and in the light of the available evidence, the custodial interrogation of the applicant to verify some material facts is necessary. In the absence of such custodial interrogation of the applicant, the investigation of the impugned case could not be completed. In continuance, he said that in the light of the aforesaid memorandums of son of the present applicant Mohd. Azhar Beg and racketeer co-accused Vishal Yadav recorded under Section 27 of the Evidence Act, the custodial interrogation of the applicant with respect of material fact of such memorandum is necessary and the same could be carried out only after making arrest of the applicant and not prior to that. In addition, he said that one racketeer of the impugned case namely Alok Singh is yet to be arrested in the matter, who is still absconded. Apart this, in spite making the efforts the investigation agency could not trace out the applicant since 2013 till today. Accordingly, he is also absconded and in view of such conduct, the applicant is not entitled for extending the benefit of anticipatory bail. In support of this contention, he has also referred the progress report of the investigation placed on the record and said that various co-accused are absconding in the matter and unless they are arrested, their custodial interrogation could not be carried out and in case of extending the benefit of anticipatory bail to this one person, the investigation agency has to face the serious consequences of the same in respect of the other absconded co-accused also. In support of his contention, he also placed reliance on decisions of the Apex Court in the matters of Gajanand Agarwal Vs. State of Orissa and Others, , Maruti Nivrutti Navale Vs. State of Maharashtra and Another, and a decision of the Single Bench of this Court in Sitaram Vs. Union of India, and prayed for dismissal of the petition.

Having heard the counsel keeping in view their arguments advanced, we have carefully gone through the case diary including the aforesaid memorandums of the son of the present applicant as well as the alleged racketeer Vishal Yadav, with whom the applicant as well as his son was involved in the alleged criminal conspiracy to secure the seat for medical courses in the illegal manner as alleged by the prosecution. Mere perusal of the case diary, it is apparent that the applicant was also involved in such a criminal conspiracy whereby in consideration of the money he has not only secured the illegal admission of his son in the medical course through alleged racketeer Gyan Singh Jatav, Vishal Yadav and Alok Singh, but by such act he has also deprived those bona fide students, who appeared in the concerned competitive examination held by the VYAPAM on the basis of their own study and labour to make their future at their proper age, so the applicant has not only committed the offence in getting the admission for his son in medical course in illegal manner but by such act he has also deprived the genuine students to make their bright career at their proper age. So in such premises, it is not a simple offence, it is a very serious offence against the society. We are of the considered view that whenever any person commits any act to break the system of any institution, then he not only commits the offence alleged but also offence against the society at large and thus for such applicant no lenient view could be adopted by extending the benefit of anticipatory bail.

We are also of the considered view that the provisions of anticipatory bail have not been enacted to protect persons like the applicant, who commit act contrary to the system and thereafter take the plea that except payment of money to his son he has not committed any alleged act, which comes under the purview of the alleged offence. So in such premises, we are of the considered view that the applicant does not deserve the benefit of anticipatory bail.

True it is, the case of the prosecution is based on various memorandums of the co-accused including the racketeers and son of the applicant recorded under Section 27 of the Evidence Act, but the fact remains that after recording the memorandum of the original racketeer accused, further investigation was carried out and after making the arrest of the co-accused on the basis of such memorandum, when the memorandum of subsequent accused was recorded, then the earlier information was found to be true and thereafter on the basis of such subsequent information, the investigation agency has approached the other co accused, then again on verification and recording the memorandum of Section 27 of the Evidence Act of such other accused, the alleged information was found to be correct. So in such premises, the investigation agency has collected sufficient evidence in the matter to show that in the alleged scam there is direct involvement of the present applicant as he voluntarily and dishonestly involved himself in the alleged criminal conspiracy to secure the admission of his son in the medical courses in consideration of money with illegal means. Therefore, we are of the view that when prima facie evidence is available in the case diary against the applicant accused for which custodial interrogation is necessary, then he does not deserve the benefit of anticipatory bail, especially when the investigation of the case is in progress against the co-accused including the applicant and various persons who are absconding in the matter.

So far as the case law of Kehar Singh (supra) cited on behalf of the applicant is concerned, this Bench does not dispute the principle laid down in such case, but in the available circumstances, such principle does not help the applicant because firstly the cited case on account of the facts is distinguishable with the present case and secondly such case has been decided after appreciation of the recorded evidence of trial and taking into consideration the final judgment of the subordinate courts which is not the situation here. As such the present case is at the stage of the investigation while the cited case was decided after delivery of the judgment by the trial court as well as by the appellate court. So in such premises, the cited case is not helping the applicant.

Apart the aforesaid, the order of the anticipatory bail passed by the Apex Court in the matter of co-accused Mahipal Singh is concerned, in the available circumstances, the cited order appears to be distinguishable from the case of the present applicant and that apart, from mere perusal of the order of Mahipal Singh, it is apparent that by way of such order no binding principle has been laid down by the Apex Court and it is a settled proposition of law that unless any principle is laid down by the superior court, such order could not be treated to be a binding precedent for the subordinate courts. So on the aforesaid both the reasons such order of Mahipal Singh is not helping the applicant for extending the benefit of anticipatory bail.

In view of the availability of the aforesaid prima facie circumstances against the applicant in the matter, we are not inclined to extend him the benefit of anticipatory bail, hence, without expressing any opinion on the merits of the case, this petition filed under Section 438of Cr.P.C. is hereby dismissed.

Certified Copy.