Shakti Pratap Singh Kirar vs State of M.P.

State counsel is under receipt of the case diary and investigating officer of the impugned crime Shri Rameshwar Kaushal, Sub-Inspector (Police), posted in SIT is also present in person.

Heard.

On behalf of the applicant, this application is preferred under Section 438 of Cr.P.C. for grant of anticipatory bail, as he is under apprehension of his arrest in connection with Crime No. 285/2014 registered at Police Station Jhansi Road, Gwalior (M.P.) for the offences of Sections 419, 420, 467, 468, 471 and 120B IPC and Section 3/4 of MP Recognized Examination Act.

Shri Ankur Maheshwari, learned counsel for the applicant, after taking us through the petition as well as the papers placed on record and the rejection order of the Sessions Court, argued that the applicant has been implicated in the case by making false and fabricating allegations in the First Information Report. In continuation, he said that, in fact, the applicant had got admission in PG by securing the fourth rank in the Pre-PG competitive examination of 2011 of the State. In support of his contention, he has also referred the result of the competent test examination as Annexure- A-6. In such premises, he said that the prosecution has wrongly stated in the case diary that the applicant has secured first rank in such competitive examination. In continuation, he said that the applicant has also passed-out in MBBS examination with merits. In support of such contention, he has also referred the concerning mark-sheets annexed with the petition as Annexure- A/4 and certificate as Annexure- A/5. In addition to it, he said that the co-accused of the case, situated in similar circumstances, have been extended the benefit of anticipatory bail by the Apex Court in various crime numbers relating to the scam of competitive examination for admission in the medical course held by the VYAPAM. In support of such contention, he has referred the copies of the orders annexed with the petition as Annexure- A-7 collectively. Apart that while arguing the case on merits, he said that the applicant has been implicated in the matter only on the basis of memorandum of the other co-accused recorded under Section 27 of the Evidence Act, which could not be treated to be admissible evidence, unless some other positive evidence is available in the applicant''s case diary. In addition, he also said that even on taking into consideration the evidence collected by the Investigating Agency till today in the case diary and if it is accepted in its entirety even then the ingredients of any of the alleged offences are not made out against the present applicant. He also prayed to extend the benefit of anticipatory bail on the ground that in the family of the applicant, a minor son of six months is in the lap of his wife and except the applicant there is no other competent male member to look after them. In this regard, he also said that when such son was in the age of three months, at that time, his heart surgery was carried out and he is still under observation and treatment and in the lack of the presence of the applicant, any unhappy incident may take place with his infant son. In support of this, he also referred to the medical papers of his son placed on record as Annexure-A/8. With these submissions, he prayed to extend the benefit of grant of anticipatory bail to the present applicant by allowing present petition.

On the other hand, responding the aforesaid arguments, Shri Prabal Solanki, Government Advocate, with the assistance of the case diary as well as the investigating officer present, argued that whatsoever evidence has been collected by the Investigating Agency till today in the case diary, on mere perusal of the same, it is apparent that there are prima facie circumstances to show that the applicant without appearing in any competitive Pre-PG examination, has secured the admission in the PG course by illegal sum for consideration of some huge money and such illegal act was committed by the applicant with assistance of his father Dr. Gulab Singh Kirar, through racketeers and the middlemen and in such premises, in order to verify certain material factual position so also in the light of other available collected evidence of the case diary, the custodial interrogation of the applicant is necessary and the same could be carried out only after making his arrest and not prior to that. He further said that according to the investigation carried out till today, the Investigation Agency could not trace out the place and center of the examination from where the applicant had appeared in the alleged competitive examination of Pre-PG. According to the available information, in consideration of an amount of Rs. 30 lakhs, which was given by the applicant and his father to the racketeers and middlemen, named in the FIR itself, the applicant has secured the admission in the Pre-PG course contrary to the established system of the competitive examination of Pre-PG held by VYAPAM. He further said that besides the memorandum of Section 27 of the Evidence Act of the other co-accused, some other evidence is also available in the case diary and in view of such evidence also the custodial interrogation of the applicant is required. He further said that whatsoever the order on which the applicant''s counsel has placed his reliance with the submission that persons situated in the similar circumstances have been extended the benefit of grant of anticipatory bail by the Apex Court is concerned, he said that it is apparent from such orders that while passing such orders by Apex Court, no binding principles have been laid down and in such premises, such orders could not be treated as binding principles in the present matter. He further said that the anticipatory bail petition or bail petition is always decided taking into consideration the merits and demerits of the case concerned. The consideration of such application could not be influenced either by the bail order or the anticipatory bail order of some other crime or case or in any case of the other accused and in such premises also, the impugned crime number being a different crime number the aforesaid any of the orders referred to by the applicant''s counsel is not helping the applicant for extending the benefit of anticipatory bail. He further said that on mere perusal of the FIR in this matter, it is apparent that not only the names of the applicant and his father as culprit have been stated but also their names have been stated alongwith description of act and the offences of the crime committed by them. In addition, he said that by committing the alleged act, the applicant has not committed the offence on books only but thereby he has also deprived of those genuine students who appeared in the Pre-PG examination on the basis of their own labour and study, but due to the illegal activities of the person like applicant and other co-accused, could not get admission at their proper age in the PG course to make their future career in the medical field and prayed for dismissal of this petition.

Having heard the counsel and keeping in view the arguments in advance and on perusing the case diary, we have found that there are sufficient prima facie circumstances against the applicant for committing the alleged offence accompanied with his father and the other co-accused, racketeers and middlemen. As such, as per available evidence, the applicant without appearing in the competitive examination of Pre-PG course by breaking the established system of the competitive examination of the PG course established by the VYAPAM, in consideration of an amount of Rs. 30 Lakhs in illegal manner, the applicant has got admission in the PG course. It is also apparent that till today, the examination place and the center from where the applicant had appeared in said competitive examination, is not known to the Investigating Agency. So, in this regard, to verify all such relevant circumstances, the custodial interrogation of the applicant is necessary and in lack of such interrogation, no factual matrix could be verified from the applicant in any other manner. So, firstly, on such count, the applicant does not deserve for extending the benefit of grant of anticipatory bail. Apart this, merely account of the mark-sheet of passing out the Pre-PG examination by securing merit (either first or fourth position), it could not be inferred that the applicant has not committed the alleged offence by ignoring the evidence collected by Investigation Agency till today with the applicant.

So far as extending the benefit of anticipatory bail to the applicant on the ground of the physical condition of his infant son is concerned, we are of the considered view that looking to the seriousness of the offence by ignoring the evidence collected by the Investigation Agency, merely on such emotional and sentimental ground, such benefit could not be extended to the applicant especially when some other members are already in his family to look after the affairs of his minor son. It is apparent from the case diary that besides the memorandum of other accused recorded under Section 27 of the Evidence Act indeed the names of the applicant and his father have come as culprits with their act and some other evidence are also available. In the FIR itself, the name of the applicant and his father alongwith their committed offending acts have been stated. Apart the applicant and his father, names of so many other persons have been stated in the FIR by mentioning their offending acts. So, in view of such prima facie circumstances against the applicant, it could not be inferred that he has been falsely implicated in the matter by fabricating the story as argued by the applicant''s counsel.

In the available circumstances, it is apparent that the applicant has not committed the alleged offence depending in the books, but by such act has deprived of all those genuine students who have appeared in the alleged competitive examination of Pre-PG, but due to illegal activities of the person like applicant and his father and racketeers and middlemen, could not get success at their proper age to get admission in the Pre-PG course to make their future career in the medical field. So, in such premises, impugned case being a serious case, we are not inclined to extend the benefit of anticipatory bail. Apart the aforesaid, we would like to mention here that the anticipatory bail application of Dr. Gulab Singh Kirar, who is one of the accused of the impugned crime has already been dismissed on merits yesterday vide order dated 06.07.2015 in M.Cr.C. No. 6357/2015 and so far as the allegations are concerned, the case of the applicant could not be deemed to be distinguishable. The distinguishable feature is only that the applicant was a student and his father accompanied with the applicant has committed the alleged offence.

We are also of the view that the provision of Section 438 of Cr.P.C. for grant of anticipatory bail has not been enacted by the legislature to protect wrong doers or to protect those persons against whom prima facie circumstance or evidence is available in the case diary; such provision could be invoked only for those persons against whom there is no prima facie evidence for committing such offence and the investigation agency is unnecessarily harassing such persons, which is not the case of the applicant. So, in such premises also, we are not inclined to invoke the provisions of Section 438 of Cr.P.C. to extend the benefit of grant of anticipatory bail.

In view of the aforesaid discussion, the case laws of Apex Court cited by the applicant''s counsel are not helping to the applicant in the present matter. Even otherwise, in view of the latest orders of the Apex Court in the matter of Amit Yadav v. State of M.P. decided in Special Leave to Appeal (Crl.) No. 3835/2015 vide dated 12.05.2015 and in the matter of Dr. Kalyan Singh v. State of M.P., decided in Special Leave to Appeal (Crl.) No. 4796/2015 vide order dated 08.06.2015, whereby such Special Leave Petitions have been dismissed which were preferred by the concerning accused against the order of dismissal of their respective anticipatory bail applications by this Court.

In view of the aforesaid discussion, we are not inclined to extend the benefit of grant of anticipatory bail to the present applicant. This petition being devoid of merits deserves to be and is hereby dismissed.