Supreme Court - Daily OrdersDr.Vinod Bhandari vs State Of M. P. on 4 February, 2015Author:Adarsh Kumar GoelBench:Adarsh Kumar Goel1

                                                                    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
                                           JUDGMENTADARSH 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.Signature Not VerifiedAs per FIR No.12 of 2013 registered on 30 th October, 2013 at policeDigitally signed byMahabir SinghDate: 2015.02.0416:18:24 ISTReason:station, S.T.F., Bhopal underSections 420,467,468,471,120Bof the

         Indian Penal Code (“IPC”) read withSection 3(d),1,2/4of the Madhya2Pradesh Manyata Prapt Pariksha Adhiniyam, 1937 and underSections 65and66of 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 be3arrested.   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 20 th November, 2013 with

the same police station, to the PG medical courses.4.   In the present case, the appellant was arrested on 30 th January,

2014 while in the other FIR he was granted anticipatory bail on 16 th

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 had4been 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 24 th 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 :-51. 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 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 no6prospect 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 27 th

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 25 th

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 High7Court 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 underSection 164Cr.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.812.    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 inKalyan Chandra Sarkar vs.

Rajesh Ranjan1, State of U.P. vs. Amarmani Tripathi2,State of

Kerala vs. Raneef3andSanjay Chandra vs. CBI4.13.InKalyan 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 21which 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 ofArticle 21since 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

1 (2005) 2 SCC 42
2 (2005) 8 SCC 21
3 (2011) 1 SCC 784
4 (2012) 1 SCC 409existence 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 [seePrahlad 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 case10need 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 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, para19)

    “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 submitted11that 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.InRaneef(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? IsArticle 21of
                     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.”1216.InSanjay 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 from13showing 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 day14and 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, 201515ITEM NO.1D                  COURT NO.2                   SECTION IIA
(For Judgment)
                 S U P R E M E C O U R T O F        I N D I A
                         RECORD OF PROCEEDINGS

                  Criminal Appeal No.220 of 2015
  (Arising out of Special Leave Petition(Crl.) No(s).           7506/2014)

DR.VINOD BHANDARI                                         Petitioner(s)

                                    VERSUS

STATE OF M. P.                                            Respondent(s)


Date : 04/02/2015 This appeal was called on pronouncement of
                    judgment today.For Appellant(s)       Mr. Sidharth Luthra,Adv.Mr. Kunal Verma,Adv.Mr. Viraj Gandhi,Adv.For Respondent(s)      Mr. Mishra Saurabh,Adv.


    Hon'ble      Mr.   Justice   Adarsh   Kumar   Goel   pronounced    the

judgment of the Bench comprising Hon'ble Mr. Justice T.S. Thakur

and His Lordship.In terms of signed judgment, this appeal is disposed of.(MAHABIR SINGH)                                  (VEENA KHERA)
 COURT MASTER                                     COURT MASTER(Signed reportable judgment is placed on the file)