Most Rev. Prof. Rajendra Bihari ... vs State Of U.P. And Anr
2019 Latest Caselaw 1311 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved
 
Court No. -7
 
Case :- APPLICATION U/S 482 No. - 27322 of 2018
 
Applicant :- Most Rev. Prof. Rajendra Bihari Lal
 
Opposite Party :- State Of U.P. And Anr
 
Counsel for Applicant :- Samit Gopal,Sri G.S. Chaturvedi (Senior Advocate)
 
Counsel for Opposite Party :- G.A.,Shad Khan
 

 
Hon'ble J.J. Munir,J.

1. The Applicant, who is the Vice-Chancellor of the Sam Higginbottom University of Agriculture Technology and Sciences (hereinafter referred to as the 'SHUATS') Rewa Road, Naini, District Allahabad (now Prayagraj), has moved this Court invoking Section 482 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') to quash the impugned order dated 30.04.2018 passed by the Chief Judicial Magistrate, Allahabad in Criminal Case No. 5479 of 2018, 'State of U.P. vs. Rajesh Kumar and others' (arising out of Case Crime No. 295 of 2017) under Sections 409, 418, 420, 421, 463, 467, 468, 471, 477, 477-A, 201, 120-B/34 IPC, P.S. Civil Lines, District Allahabad (Prayagraj). He has further prayed that proceedings of Criminal Case No. 5479 of 2018 (supra) pending before the Court of the Chief Judicial Magistrate, Allahabad may be quashed. The impugned order dated 30.04.2018 is one, whereby the Magistrate has taken cognizance of the case on the basis of a charge sheet submitted by the police in Court after investigation, and directed issue of process (summons) against the Applicant.

2. It may be noticed at the outset that the impugned order and the charge sheet giving rise to the impugned proceedings-the impugned charge sheet as it properly deserves to be called-has been filed against two of a total of fourteen accused, so far chargesheeted in the present crime. The impugned chargesheet is a supplementary chargesheet bearing No. 179-B/2017, dated 27.03.2018. Twelve other accused have been charge-sheeted separately whereas investigation against another fourteen suspects is in progress. In order to place facts in perspective, it may be mentioned that the first chargesheet to be filed was chargesheet no. 179/2017, dated 24.02.2017, against as many as eleven accused. The second chargesheet to be filed was a supplementary chargesheet, bearing chargesheet no. 179-A/2017, dated 18.02.2018, which relates to a solitary accused, Raj Kumar Yadav. These two chargesheets, last mentioned, are not in issue in the present proceedings.

3. The crime from which the impugned proceedings arise relates to defalcation of funds of the SHUATS from their Bank accounts maintained with the Axis Bank, Branch Civil Lines, Allahabad (Prayagraj). The said defalcation has come about as a result of fraudulent withdrawals from three of the six Bank accounts of the SHUATS, maintained with the Axis Bank, with the fraudulent withdrawals admittedly running into a figure of Rs. 23,92,60,972/-( Rs. Twenty Three Crore Ninety Two Lacs Sixty Thousand Nine Hundred Seventy Two) withdrawn between 01.04.2013 to 07.11.2016.

4. The process of law was set in motion with the registration of a first information report on 05.05.2017 at 12:25 hours by opposite party no. 2, who is the Assistant Vice-President/Branch Manager of the Axis Bank, posted at Branch Civil Lines, Allahabad (Prayagraj). The FIR lodged by him was registered as Case Crime No. 295 of 2017 under Sections 409, 418, 420, 421, 463, 467, 471, 477, 201 and 120-B IPC, P.S. Civil Lines, District Allahabad (Prayagraj). It was lodged about the aforesaid defalcation through illegal withdrawals from the Bank accounts of the SHUATS, between 01.03.2014 to 31.11.2016. The accused nominated in the FIR is one Kamal Ahsan, Relationship Manager, Axis Bank, Civil Lines, Allahabad (Prayagraj), and another, Rajesh Kumar, an Accountant with the SHUATS.

5. The account of facts so far is founded on what the Applicant does not dispute. Hereafter also, this Court proposes to set out facts that figure in the affidavit filed in support of the present application, pointing out facts where parties at issue, and what their respective contentions about those issues are.

6. The police interrogated during investigation opposite party no. 2, Yogesh Bajpayee, one Mallappa Devappa Patil, another P. Natraj, still another Nitin Chandani, besides Ravi Shankar Tripathi and Rohit Kumar, as witnesses of the incident. The statement of these witnesses was recorded under Section 161 of the Code. They are all functionaries of the Bank of different grade in office, but in one way or the other, privy to the incident. Amongst these functionaries of the Bank, the statement of Malappa Devappa Patil was recorded under Section 164 of the Code before the Magistrate. All these statements under Section 161 of the Code and the statement of Mallappa Devappa Patil, under Section 164 of the Code, are on record as Annexures no. 3 to 10 of the affidavit filed in support of the application, under Section 482 of the Code.

7. It is also the Applicant's case that he or the other Authorities of the SHUATS did not know about these fraudulent withdrawals from the three of their current accounts, maintained with the Axis Bank, until they were informed of it for the first time, by Mallappa Devappa Patil, Deputy Vice-President and Yogesh Bajpayi, Assistant Vice-President/Branch Manager of the Axis Bank, Civil Lines Branch, Allahabad, and also the first informant. It is said that this information was communicated to the Applicant by the two functionaries of the Bank last mentioned, on 09.03.2017 at 06:00 p.m., in the Camp Office of the SHUATS at Lucknow. It is asserted that the Bank shared this information about the crime, approximately three months after coming to know of it.

8. The Applicant has set out allegations carried in paragraph nos. 19 to 63 of the affidavit in support of the present application to quash proceedings that detail facts, amongst others, regarding domestic inquiries held by the SHUATS on the one hand, and the Axis Bank on the other. The facts, figures and evidence that have surfaced in these inquiries have been emphasized to make out a case that it was the Bank establishment and their officials, acting in connivance with the nominated accused in the FIR, Rajesh Kumar, Accountant with the SHUATS, who are responsible for the entire crime, involving fraudulent withdrawals as aforesaid. It has been said subtly through some assertions, and, through some quite eloquently, that none of the higher officials of the SHUATS, including the Applicant, had any inkling about the fraudulent withdrawals from the Institution's accounts, during the entire period from 01.04.2013 to 07.11.2016. They came to know about it as already mentioned, for the first time, on 09.03.2017. It has been emphasized that the officials of the Axis Bank became aware about the "fraud and embezzlement" sometime in or about the month of November, 2016. The said fact has been asserted in paragraph no. 50 of the affidavit in support of the application, with reference to a letter dated 12.05.2017, received by the SHUATS from M/s. Dhruve Liladhar & Co., the Solicitors for the Axis Bank, Civil Lines, Allahabad. This letter is on record.

9. At this stage, it is imperative to notice that in the thick of a blame game between officials of the SHUATS and Axis Bank, Rajesh Kumar, Accountant of the SHUATS, alleged a threat to his life from the officials of the Axis Bank, and, requested provision of security, also reporting through an application, addressed to the DIG and the SSP, Prayagraj (then Allahabad) that a certain statement of his recorded by the Authorities of the Axis Bank, was made under threat and coercion. The said Rajesh Kumar, Accountant of the University, according to the Applicant himself, became a fugitive in order to avoid arrest in connection with the FIR giving rise to the impugned proceedings. Apparently, the police were not pursuing investigation with the required seriousness and vigour. This led the Axis Bank to approach this Court by way of Criminal Misc. Writ Petition No. 8196 of 2017 'Axis Bank Limited vs. State of U.P. and another' praying for the following reliefs:

"It is, therefore most respectfully prayed that this Hon'ble Court may gracious be pleased to :-

a. Issue a writ order or direction in the nature of mandamus commanding the respondents No.2 and 3 to immediately apprehend the accused persons.

b. Issue a writ order or direction in the nature of mandamus commanding the respondents No.2 and 3 to initiate proceedings in accordance with law and to seize and attach the movable and immovable property of the accused persons in accordance with law during the pendency of the criminal proceedings.

c. Issue a writ order of direction in the nature of mandamus commanding the respondents No.2 and 3 to expedite and conduct free and fair investigation."

10. The fact of filing this writ petition by the Axis Bank to pursue investigation on the FIR lodged by them is admitted to the Applicant, and, in fact, the relief claimed in this petition has been extracted in moreful detail in paragraph no. 65 of the affidavit, filed in support of the application. This Court has reproduced the relevant part of the relief in the said petition, after cross checking it from the relative record of Criminal Misc. Writ Petition No. 8916 of 2017 (supra).

11. A perusal of the various orders passed in Criminal Misc. Writ Petition No. 8916 of 2017 filed by the Axis Bank, which the Applicant has filed compendiously as annexure no. 47 to the affidavit in support of the present application, shows that investigation in the case was meticulously supervised by a Division Bench of this Court stirring the police authorities into action, which amongst other things, led them to constitute a Special Investigation Team (hereinafter referred to as the 'SIT') to work in aid of the Investigating Officer, assigned with the investigation.

12. It is also admitted to the Applicant that on 29.07.2017, high officials of the University including the Applicant, who is the Vice-Chancellor received notices under Section 160 of the Code, to appear before the SIT/Investigating Officer on 30.07.2017, in connection with the present crime. The Statutory Auditor of the University, as the Applicant has chosen to describe one Mr. Sanjay Khanduja, was also summoned through process under Section 160 of the Code. The Applicant along with eight other officials of the University, all holding high ranking positions, admittedly appeared before the Investigating Officer on 30.07.2017, and were interrogated. They also acknowledged that they made statements before the Investigating Officer. During the course of all that, they were asked for further clarifications and the documents, which the Officials of the SHUATS provided to the Investigating Officer. This investigation included the Applicant.

13. At this juncture, after so much had happened on the basis of the FIR lodged by the Axis Bank relating to this crime, the Treasurer of the SHUATS approached the SSP, Allahabad with an application dated 09.05.2017, which had for an enclosure, a detailed statement of imputation, with a request that an FIR may be lodged against the officials of the Axis Bank, alleging that they had fraudulently withdrawn a sum of Rs. 23,92,60,972/-( Rs. Twenty Three Crore Ninety Two Lacs Sixty Thousand Nine Hundred Seventy Two) from the accounts of the SHUATS. This fact again is asserted by the Applicant himself in paragraph nos. 69 and 70 of the affidavit. It must be remarked here, not to pre-judge issues, but to notice a fact relevant to the determination of the Applicant's prayer in this application, that the Applicant admittedly came to know about the fraud on 09.03.2017, whereafter much domestic inquiry was undertaken by the SHUATS. Still so, no FIR relating to an enormous financial fraud, of the kind of a virtual theft from the University coffers, was lodged or attempted to be lodged by the applicant as the Head of the SHUATS, with the police at the relevant time.

14. This step was taken when investigation into the present crime registered at the instance of the Bank, and catalyzed by a direction of this Court in a writ petition filed by the Axis Bank, reached a stage where the Applicant along with other high ranking officials of the SHUATS, were summoned to join investigation through a subpoena issued by the police/SIT, in exercise of their powers under Section 160 of the Code. At this Stage, the effort to get an FIR lodged by the Applicant was stoutly pursued, so much so that failing to secure the registration of an FIR through the SSP, Allahabad, an application under Section 156(3) of the Code was filed on 18.05.2017 to the Chief Judicial Magistrate, Allahabad. The Chief Judicial Magistrate, Allahabad called for a report from the police, and, again admittedly, on a report from the police dated 24.05.2017 to the effect that an FIR in the matter had already been registered on 05.05.2017 (the FIR giving rise to the impugned proceedings), the Chief Judicial Magistrate, Allahabad passed on order dated 29.07.2017, to include the application under Section 156 (3) of the Code, made on behalf of the SHUATS in their ongoing investigation in the present crime.

15. Again, it must be remarked here that once an FIR relating to an incident had already been registered at the instance of the Axis Bank and investigation was in progress, a second FIR relating to the same incident, that is to say, fraudulent withdrawals of moneys from the Bank accounts of the SHUATS, could not have been registered. It is a little intriguing as to why such a determined effort was made to lodge a second FIR, at the instance of the SHUATS, of which the Applicant is the Head, at a stage when investigation in the crime relating to the same incident on the basis of the Bank's FIR had already made headway.

16. It appears that pending investigation, four officials of SHUATS, to wit, Robin Lall Prasad, Registrar, SHUATS, Dr. Stephen Das, Barnabas S. Lall and Ajay David, were arrested by the police in connection with the present crime. Their bail pleas having been turned down by the Magistrate and the Sessions Judge, all the four applied for bail to this Court through four separate bail applications, details of which are given in paragraph no. 91 to the affidavit. Out of four, Dr. Stephen Das and Ajay David were granted bail by this Court by a common order dated 09.11.2017 whereas by the same order, the bail plea of the two others was rejected. They have subsequently been admitted to bail by the Hon'ble Supreme Court in SLP (Crl.) Nos. 634 and 635 of 2018.

17. The present Applicant, after the arrest of four officials of SHUATS aforesaid, filed a writ petition, being Criminal Misc. Writ Petition No. 1890 of 2017, challenging the FIR dated 05.05.2017 filed by the respondent-Bank, asking the same to be quashed, and, praying for interim relief by way of stay of arrest pending decision of the petition. It appears that in the said writ petition filed by the Applicant, interim stay of arrest was initially granted vide an order dated 15.09.2017, but subsequently, the petition was dismissed by a Division Bench of this Court vide order dated 18.12.2017.

18. Aggrieved, the Applicant filed an SLP (Crl.) No. 691 of 2018, wherein ad interim stay of arrest was granted till the next date of hearing fixed in the matter on condition that the petitioner ( the applicant here) will report to the police station everyday at 11:00 a.m. till required, or till 05:00 p.m., whichever is earlier. The State was required to give its further report in the ongoing investigation before the Hon'ble Supreme Court.

19. The special leave petition again came up before the Court on 05.03.2018 when it was recorded that the Applicant Rajendra Bihari Lal had participated in the investigation. It was looking to his cooperation with investigation that he was granted reprieve from arrest pending investigation, but again subject to the condition that as and when his presence is required, he would appear before the concerned investigating agency. It was also ordered that the Applicant would comply with the requirement, of Section 438 (2) of the Code. It was further stipulated in the order dated 05.03.2018 that the order will operate till the conclusion of investigation. The special leave petition was disposed of in terms of the said order along with all pending applications.

20. It may again be noticed here that though the Applicant was relieved of his liability from arrest pending investigation by the Hon'ble Supreme Court, no further relief regarding quashing of investigation, as against the Applicant, was granted. Rather, their Lordships directed the Applicant to make himself available, at all times, to the investigating agency. In due course of investigation, the Investigating Officer, after a searching and elaborate investigation facilitated by the SIT, has filed the charge sheet impugned giving rise to these proceedings which the Applicant now asks to be quashed.

21. On behalf of opposite party no. 2, a short counter affidavit dated 05.09.2018, being an affidavit sworn by Yogesh Bajpai, Assistant Vice-President, Axis Bank and the first informant of the case, has been filed. A supplementary affidavit has been filed on behalf of the Applicant, annexing therewith a true and a certified copy of the statement of Mallappa Devappa Patil, recorded on 26.09.2017 under Section 164 of the Code, and not adding anything by way of averment to those originally made in the affidavit, filed in support of the application. The State have produced before the Court the case diary, but have chosen not to file an affidavit. They have advanced their arguments on the basis of material already on record of the application and the case diary.

22. Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Samit Gopal, learned counsel for the Applicant, Sri Shad Khan, learned counsel appearing for opposite party no.2 and Sri Vinod Kant, learned Additional Advocate General assisted by Sri Nikhil Chaturvedi, learned AGA, appearing for the State.

23. Sri G.S. Chaturvedi, learned Senior Advocate appearing on behalf of the Applicant has advanced his submissions on the basis of a case that the Applicant has set out in paragraphs 100 to 110 of the affidavit, in support of the application. Paraphrased and shortly put that case is that the conclusions of the Investigating Officer mentioned in Parcha No. SCD29 dated 27th March, 2018 on the basis of which the impugned chargesheet has been filed, runs contrary to the statement of Mallappa Devappa Patil recorded under Section164 Cr.P.C.; that the Applicant is not nominated in the FIR; that there is no witness who has attributed any act to the Applicant which may constitute any of the offences charged; that no overt act has been done by the Applicant indicating his involvement in the crime; that the Applicant is the Vice-Chancellor of SHUATS; that there is no evidence appearing against the Applicant; that no incident, whatsoever, as alleged in the FIR has occurred; that the impugned order (summoning order) has been passed by the Trial Court mechanically in the absence of any evidence whatsoever; that the summoning order has been passed by the Trial Court without application of mind; and, that the impugned proceedings, so far as the Applicant is concerned are an abuse of process of Court, and are liable to be quashed.

24. Elaborating that case, Sri Chaturvedi seeks to assail the impugned order, summoning the Applicant to stand his trial. He submits that this order has been passed by the Magistrate after taking cognizance of the supplementary charge-sheet No. 179B/2017, dated 27.03.2018, where he has simultaneously taken cognizance and issued process. According to Sri Chaturvedi, an order simultaneously taking cognizance and issuing process against the accused, is bad in law. It cannot be done in one go, by a single order. Learned Senior Advocate points out that cognizance is taken under Section 191(1)(b) of the Code, whereas a summoning order is passed under Section 204. Learned Senior Counsel says that the Applicant does not challenge the order taking cognizance, but the order under Section 204 of the Code, issuing process against the Applicant.

25. Emphasizing this distinction between an order taking cognizance and a further order issuing process, Sri Chaturvedi points out that inquiry begins immediately after cognizance is taken under Section 190(1), either under sub Clause (a), (b) or (c). This inquiry continues, according to Sri Chaturvedi, till the stage of committal under Section 209 of the Code. It is submitted that it is obvious that committal proceedings would follow issue of process under Section 204 of the Code, and, therefore, the stage of issuing process under Section 204 is part of the stage of inquiry by the Magistrate, which are judicial proceedings. It is strongly urged by the Learned Senior Counsel that after taking cognizance under Section 190 (1)(b), and before issuing process under Section 204 of the Code, the Court has to be satisfied that the complaint, or as in this case the police report, discloses the commission of an offence, and further that there is no legal bar in taking cognizance of the offences. It is urged that there is a further requirement that there must be legal evidence in support of the allegations, carried in the complaint or the police report. It is submitted that in the absence of legal evidence, it cannot be said that "there is sufficient ground for proceeding", which are the precise words employed by the statute in Section 204(1) of the Code. It is emphatically submitted that the said expression requires judicial satisfaction, that there is legal evidence on the basis of which a person can be summoned to stand his trial, before the decision to issue process is taken.

26. According to Sri Chaturvedi, the fact that cognizance of an offence is taken does not ipso facto lead to the next step, that process has to be issued. In between the two, an inquiry by the Magistrate must take place that there is sufficient ground for proceeding on the basis of material in the police report, regarding which he must record his satisfaction. He, therefore, submits that the order taking cognizance, and that issuing process, cannot be a composite order. It is emphasized by learned Senior Counsel that in this case, since there is no evidence in the police report against the Applicant, on the basis of which the prosecution can go ahead, this distinction between the order of cognizance and that issuing process assumes seminal importance.

27. In support of the proposition that the summoning order and that issuing process cannot be a composite order, learned Senior Counsel has placed reliance on the decision of the Supreme Court in State of Uttar Pradesh vs. Lakshmi Brahman and Another1. The said case arose in the context of the right to be released on statutory bail, under Section 167(2) of the Code (Code of 1973), as it stood prior to its Amendment in the year 1978. A Division Bench of this Court, from whose decision the appeal before Their Lordships in Lakshmi Brahman (Supra) arose, had taken the view that in a case where no police report had been filed within time limited by law under Section 167(2) of the Code, as it then stood, the Magistrate could not remand the accused to custody at all, for he would have jurisdiction alone to do so, in a case exclusively triable by the Court of Sessions, while making an order of committal under Section 209.

28. The reasoning of this Court that was found flawed by the Hon'ble Supreme Court is best expressed in the words of their Lordships in Lakshmi Brahman (Supra) which reads thus:-

"2.......The High Court then posed to itself the question whether in a case instituted upon a police report exclusively triable by the Court of Session, the Magistrate while committing the accused to the Court of Session under Section 209, CrPC has, after the accused is brought before him and before the order committing the accused to the Court of Session is made, jurisdiction to remand the accused to custody other than the police custody? The High Court was of the opinion that since after the enactment of Code of Criminal Procedure, 1973, the proceeding before the Magistrate under Chapter XVI of the Code would not be an inquiry within the meaning of the expression in Section 2(g) and, therefore, Section 209 would not confer power on the Magistrate to commit the accused to custody. Proceeding along the line, the High Court held that in view of the provision contained in Section 207 read with Section 209 of the Criminal Proceedure Code the Magistrate has to commit the accused forthwith to the Court of Session and only after the order of commitment is made, the Magistrate will have power to remand accused to the custody during and until the conclusion of the trial. The High Court accordingly held that the Magistrate has no jurisdiction,......."

29. The view that proceedings before the Magistrate, where he takes cognizance of a police report in a case exclusively triable by the Court of Session, is not an inquiry within the meaning of Section 2(g) of the Code, did not find favour with their Lordships, as also the next step of reasoning that the proceedings as aforesaid, being not an inquiry, the Magistrate does not act in a judicial capacity authorizing him to remand an accused, unless he passes an order of committal under Section 209 of the Code. The said reasoning of this Court, disapproved by their Lordships in Lakshmi Brahman (Supra) is expressed in the following words:-

"12.Section 170 obligates the Investigating Officer to submit the police report if in the course of investigation sufficient evidence or reasonable ground is made out for the trial or for commitment of trial of the accused, to the Magistrate empowered to take cognizance of the offence upon a police report. On this report being submitted the Magistrate takes cognizance of the offence disclosed in investigation as envisaged by Section 190. It is indisputable that taking cognizance of an offence under Section 190 is a purely judicial function subject to judicial review by Court of appeal or revision to which the Magistrate is subject. Cognizance of an offence even if exclusively triable by the Court of Session has to be taken by the Magistrate because Section 193 precludes it from taking cognizance of any offence when it provides that no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the accused has been committed by the Magistrate under the Code. Thus even in case of an offence exclusively triable by the Court of Session, the police report on completion of investigation has to be submitted to the Magistrate having jurisdiction to commit the accused for trial. It is the Magistrate who takes cognizance of the offence and not the Court of Session though the case is one exclusively triable by the latter. Section 170 directs that if the accused in respect of whom police report is being submitted is in police custody, he has to be forwarded along with the police report to the Magistrate. When the Magistrate receives the report and the accused is produced before him it is necessary for him to pass some order for his further detention subject to provisions contained in Chapter XXXIII as to Bails and Bonds. The view taken by the High Court makes it a necessity for the Magistrate to release the accused on bail even if the accused is not otherwise entitled to the discretionary order of bail nor he applies for nor is ready to furnish bail only because the Magistrate has no jurisdiction to keep the accused in custody till an order committing the accused for trial is made. The High Court referred to Section 209 which provides that the Magistrate shall commit the accused to Court of Session and subject to the provisions of the Code relating to bail, remand the accused to custody during and until the conclusion of the trial. This according to the High Court implies that the Magistrate can exercise power to release on bail or remand to the custody the accused only after making the order of commitment but the Magistrate has no such power anterior to the order of commitment and during the interregnum since the receipt of the charge-sheet. This dichotomy read by the High Court in Sections 207 and 209 is certainly not borne out by the provisions of the Code. Section 207 as it then stood made it obligatory for the Magistrate to supply free of costs, copies of the documents set out in the section. The duty cast on the Magistrate by Section 207 had to be performed in a judicial manner. To comply with Section 207 which is cast in a mandatory language, when the accused is produced before the Magistrate, he has to enquire from the accused by recording his statement whether the copies of the various documents set out in Section 207 have been supplied to him or not. No order committing the accused to the Court of Session can be made under Section 209 unless the Magistrate fully complies with the provisions of Section 207. And if it is shown that the copies of relevant documents or some of them are not supplied, the matter will have to be adjourned to get the copies prepared and supplied to the accused. This is implicit in Section 207 and Section 209 provides that on being satisfied that the requisite copies have been supplied to the accused, the Magistrate may proceed to commit the accused to the Court of Session to stand his trial. The statutory obligation imposed by Section 207 read with Section 209 on the Magistrate to furnish free of costs copies of documents is a judicial obligation. It is not an administrative function. It is a judicial function which is to be discharged in a judicial manner. It is distinctly possible that the copies may not be ready. That makes it necessary to adjourn the matter for some time which may be spent in preparing the copies and supplying the same to the accused. The Magistrate can proceed to commit the accused for trial to the Court of Session only after he judicially discharges the function imposed upon him by Section 207......

13. Now, if under Section 207, the Magistrate is performing a judicial function of ascertaining whether copies have been supplied or not, it would undoubtedly be an inquiry for the purpose of satisfying himself that Section 207 has been complied with in letter and spirit. That satisfaction has to be judicial satisfaction. It is not a trial but something other than a trial and being judicial function it would necessarily be an inquiry. The making of an order committing the accused to the Court of Session will equally be a stage in the inquiry and the inquiry culminates in making the order of commitment. Thus, from the time the accused appears or is produced before the Magistrate with the police report under Section 170 and the Magistrate proceeds to enquire whether Section 207 has been complied with and then proceeds to commit the accused to the Court of Session, the proceeding before the Magistrate would be an inquiry as contemplated by Section 2(g) of the Code. We find it difficult to agree with the High Court that the function discharged by the Magistrate under Section 207 is something other than a judicial function and while discharging the function the Magistrate is not holding an inquiry as contemplated by the Code. If the Magistrate is holding the inquiry obviously Section 309 would enable the Magistrate to remand the accused to the custody till the inquiry to be made is complete. Sub-section (2) of Section 309 provides that if the court, after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement or adjourn any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. There are three provisos to sub-section (2) which are not material. If, therefore, the proceedings before the Magistrate since the submission of the police report under Section 170 and till the order of commitment is made under Section 209 would be an inquiry and if it is an inquiry, during the period, the inquiry is completed, Section 309(2) would enable the Magistrate to remand the accused to the custody."

30. This Court is unable to find anything in Lakshmi Brahman (supra) relied upon by Sri Chaturvedi, to show that dichotomy between an order of cognizance under Section 191(1)(b) and 204(1) Cr.P.C., that may render an order compositely passed, taking cognizance and issuing process by the Magistrate, bad on that count alone. No doubt, the order taking cognizance and that issuing process, must indicate record of satisfaction by the Magistrate that on the materials available in the police report a prima facie case is made out. But that need not be elaborately recorded with reference to all, or some good evidence, in all cases where evidence good enough to proceed is otherwise there against the accused. As such, the submission that the summoning order is bad on the ground alone that it is a composite order taking cognizance and issuing process, cannot be sustained.

31. The next submission of Sri G.S. Chaturvedi, learned Senior Counsel appearing on behalf of the Applicant, on the edifice of which the Applicant's case rests, is to the effect that there is no evidence whatsoever against the Applicant. It is urged that the prosecution have depended upon statements confessional of the co-accused, Rajesh Kumar recorded by the Investigating Officer in the course of investigation. It is submitted that these statements are not evidence, and are inadmissible, on two grounds:

(i) Being a confession to a police officer, the statements are barred under Section 25 of the Indian Evidence Act, 1872;

(ii) Since these statements have been made during investigation of the present case, the use of such statements at any inquiry or trial, is completely prohibited on account of the bar contained in Section 162 of the Code.

32. The submission of learned Senior Counsel proceeds on the basis of a case that except for the confessional statement of Rajesh Kumar recorded by the Investigating Officer, during the course of investigation, there is no other evidence, direct or circumstantial, appearing against the Applicant. It is on the foot of this case that Sri Chaturvedi has placed reliance on a decision of the Hon'ble Supreme Court in Aghnoo Nagesia vs. State of Bihar2. He has, in particular, drawn the attention of the Court to paragraph no. 9 of the report in Aghnoo Nagesia (supra), where their Lordships have held:

"9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an accused. The law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: "No confession made to a police officer, shall be proved as against a person accused of an offence". The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "accused of any offence" covers a person accused of an offence at the trial whether or not he was accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a police officer, unless it is made in the immediate presence of a Magistrate. The partial ban imposed by Section 26 relates to a confession made to a person other than a police officer. Section 26 does not qualify the absolute ban imposed by Section 25 on a confession made to a police officer. Section 27 is in the form of a proviso, and partially lifts the ban imposed by Sections 24, 25 and 26. It provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling under sub-section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of Section 27 of the Evidence Act. The words of Section 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate under Section 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by Section 27 of the Evidence Act, a confession by an accused to a police officer is absolutely protected under Section 25 of the Evidence Act, and if it is made in the course of an investigation, it is also protected by Section 162 of the Code of Criminal Procedure, and a confession to any other person made by him while in the custody of a police officer is protected by Section 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them."

33. It is submitted by the learned Senior Counsel that the guidance of the Hon'ble Supreme Court in Aghnoo Nagesia (supra) is clear and unequivocal. He submits that in view of the said law, the statements of Raj Kumar that are confessional in nature, being recorded by the police during course of investigation, are absolutely barred from being proved in any inquiry or trial. Section 25 of the Indian Evidence Act and Section 162 of the Code clearly make all statements of Raj Kumar, made to the police, inadmissible.

34. Learned Senior Counsel for the Applicant having strongly mooted the point that only evidence appearing against the Applicant being the confessional statement of co-accused, Raj Kumar, which is inadmissible in evidence, has reverted to the requirements of Section 204 of the Code, that govern the jurisdiction of the Magistrate to issue process in a case. He points out once again that in the absence of legal evidence by which learned Senior Counsel submits is meant evidence that is admissible, it cannot be said, employing the phraseology of the statute, that "there is sufficient ground for proceeding" within the meaning of Section 204 (1) of the Code. The said expression, according to the Sri Chaturvedi, learned Senior Counsel, requires judicial satisfaction that there is legal evidence, on the basis of which an accused can be proceeded with.

35. In order to buttress his contention further learned Senior Counsel has placed reliance on the decision of the Hon'ble Supreme Court in R.P. Kapur vs. State of Punjab3. Learned Senior Counsel has specifically relied upon paragraph nos. 6 of the report in R.P. Kapur (Supra), where it is held:

6. ............. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. ............

36. It is to sum up this part of his submission that learned Senior Counsel urges that in the present case, there is absolutely no evidence in support of the case against the Applicant, collected during investigation on the basis of which he can be prosecuted.

37. Sri G.S. Chaturvedi, learned Senior Counsel at this stage submits that it would be necessary for him further to demolish the premises on which the prosecution seek to proceed against the Applicant, before he can legitimately say, that these proceedings ought to be quashed. The submission is kind of pre-emptive in nature and could have well awaited consideration in rejoinder. Since the learned Senior Counsel thinks that it stands in the way of relief, it is being dealt with here and now, in the sequence and manner in which it has been made during the hearing.

38. The submission of learned Senior Counsel proceeds on this score to the effect that although, there is no evidence to connect the Applicant to the crime, the opposite parties insist that the Applicant be tried, as he is the Head of the Institution in his capacity as the Vice-Chancellor of the SHUATS. It is pointed out that the opposite parties say, that the Applicant must be deemed to have committed the offence, as he must have known facts relating to this wholesome defalcation of institutional funds from its Bank accounts, where cheating and fraud were practiced to syphon off huge sums of moneys from the Bank accounts of the SHUATS. Sri G.S. Chaturvedi, learned Senior Counsel at this stage says that the respondents virtually asks the Applicant to be held vicariously liable for the offence, even though, there is absolutely no evidence collected during investigation to connect him to the crime. He submits that this line of reasoning to launch a prosecution against the Applicant is completely derided of legal basis.

39. Learned Senior Counsel building on this part of his submission emphasized that there is no provision in the Penal Code which warrants the head of an institution, be it a company or other juristic body, to be vicariously held liable for offences under the Penal Code committed by other officers or servants, high or low, of such juristic entity. In support of his contention, Sri Chaturvedi, learned Senior Counsel has placed reliance upon the decision of the Hon'ble Supreme Court in Sunil Bharti Mittal vs. Central Bureau of Investigation4. He has invited the Court's attention to paragraphs nos. 30, 41 to 44 of the report in Sunil Bharti Mittal (supra) that read thus:

"30. We have given our serious consideration to all the submissions made before us and are fully conscious of the importance of the matter as well. At the outset, we would like to point out that detailed submissions were made on the nature of the charges, and in the process, the learned counsel for the appellants tried to trivialise the matter by stating that what was decided was only a policy decision of the Government to allocate additional spectrum by charging 1% additional AGR i.e. from 4% to 5%; benefit thereof was extended to all cellular operating companies including public sector companies like MTNL and BSNL, etc. and, therefore, there cannot be a criminal intent behind it. Mr Salve as well as Mr Nariman took pains in showing various portions of the counter-affidavit filed by CBI to show that the appellant was left out and not made accused after due deliberations and argued that it was not a case of erroneous omission by CBI. It was also argued at length that the allegations were in the domain of the policy decision taken by the Government to charge 4% of AGR whereas it was realised much later in the year 2010 when TRAI has passed orders that it should have been 5% AGR. According to them, it was merely a bona fide policy decision which could not be subject-matter of criminal proceedings, in the absence of intent of criminality therein. More so, when benefit of the said decision was not confined to the appellant's company, namely, M/s Bharti Cellular Ltd., but was extended to all others as well including public sector telecom companies like MTNL and BSNL. Therefore, there cannot be a criminal intent behind such a decision.

41. In the present case, however, this principle is applied in an exactly reverse scenario. Here, company is the accused person and the learned Special Magistrate has observed in the impugned order that since the appellants represent the directing mind and will of each company, their state of mind is the state of mind of the company and, therefore, on this premise, acts of the company are attributed and imputed to the appellants. It is difficult to accept it as the correct principle of law. As demonstrated hereinafter, this proposition would run contrary to the principle of vicarious liability detailing the circumstances under which a Director of a company can be held liable. .........

42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman, etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.

43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made an accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.

44. When the company is the offender, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] , the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of "alter ego", was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company. "

40. It is submitted that the decision of their Lordships in Sunil Bharti Mittal (supra) last referred, in no uncertain terms holds that for the cause alone that a person is the head of an institution, he should be prosecuted, even if there is no material against him, is not the law. It is emphasized that in the present case there being no material to indicate involvement of the Applicant in the crime on the basis of which the Magistrate could record his judicial satisfaction that there is sufficient ground to proceed, the impugned order as well as the entire proceedings are liable to be quashed. Sri Chaturvedi, learned Senior Counsel has pointed out that even otherwise, the impugned proceedings are bad as they fall squarely within the teeth of challenge on the third of the four grounds (detailed infra) on which criminal proceedings can be successfully asked to be quashed by one, who is an accused there. In this regard, he has reposed faith in the decision of the Hon'ble Supreme Court in Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi and others5. He has, in particular, referred to paragraph no. 5 of the report where their Lordships have held thus:

"5. Mr Bhandare laid great stress on the words "the truth or falsehood of the complaint" and contended that in determining whether the complaint is false the court can go into the question of the broad probabilities of the case or intrinsic infirmities appearing in the evidence. It is true that in coming to a decision as to whether a process should be issued the Magistrate can take into consideration inherent improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations but there appears to be a very thin line of demarcation between a probability of conviction of the accused and establishment of a prima facie case against him. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. Once the Magistrate has exercised his discretion it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused. These considerations, in our opinion, are totally foreign to the scope and ambit of an inquiry under Section 202 of the Code of Criminal Procedure which culminates into an order under Section 204 of the Code. Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside:

(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

The cases mentioned by us are purely illustrative and provide sufficient guidelines to indicate contingencies where the High Court can quash proceedings."

41. It is further contended on behalf of the Applicant in answer to an early and preliminary objection on behalf of the State, that the plea that grounds now urged on behalf of the Applicant to seek quashing, may well be urged in support of the motion to seek discharge before the Trial Court, at the stage of framing charges, is not at all tenable. This course, has been deprecated by the Hon'ble Supreme Court as an alternative to a plea to quash proceedings by the High Court under Section 482 Cr.P.C. Learned Senior Counsel for the Applicant, in support of his contention has referred to the decision of the Hon'ble Supreme Court in Pepsi Foods Limited and another vs. Special Judicial Magistrate and others6. Learned Senior Counsel relies on the following principle laid down in M/s Pepsi Food Limited (supra):

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

42. It is, therefore, contended by the learned Senior Counsel on behalf of the Applicant that merely because the Trial Court can discharge the accused, if it were moved to consider the charge groundless under Sections 239 or 227 of the Code, as the case may be, does not mean that an accused cannot approach the High Court under Section 482 of the Code, or under Article 227 of the Constitution, in a matter where no case is made out against him. He submits that it is not the law that even in a case where there is absolutely no evidence, an accused must suffer the agony of a criminal trial. In support of the same principle, Sri G.S.Chaturvedi, learned Senior Counsel has further placed reliance upon a decision of the Division Bench of this Court in Agra Electric Supply Company and another vs. State of U.P. and another7 where it was held:

"14. It appears to us that in 11 of the cases, barring four cases to which miscellaneous cases Nos. 2749 and 2747 of 1958 and No. 505 of 1959 relate, the only person mentioned as the accused in the heading was the electric supply company concerned. In one case, it was not mentioned through whom the company was impleaded as an accused whereas in all other cases the company was impleaded as accused through the Resident Engineer. In most of those cases, though in the body of the complaint the allegations were in respect of acts or omissions by the electric supply company concerned only and though in the prayer the first part was that the Magistrate is requested to take cognizance of the offence committed by the company, the last part of the prayer was that the person to be put on trial after cognizance was taken was the Resident Engineer.

15. It also appears that, as a result of this prayer, the Magistrates very lightly issued summonses for the Resident Engineers themselves instead of issuing summonses for the appearance of the electric supply companies through the Resident Engineers. Since in the complaints themselves, there was no mention that the Resident Engineers as such had committed any offence and even in the first part of the prayer the request to the Magistrates to take cognizance was only in respect of the offence committed by the companies, it is clear that the prayer for putting the Resident Engineers personally on trial was very inappropriate and should not have been granted by the Magistrates. In all these cases, the accused who was to be tried and who should have been tried was the electric supply company concerned though all the time the company could be directed to put in appearance as accused through the Resident Engineer.

16. We consider that this aspect having come to our notice, a direction should be issued to all the Magistrates concerned to make sure that the trial before them proceed against the electric supply companies through the Resident Engineers concerned and not against the Resident Engineers themselves in their personal capacities or even by describing the prosecution as being in their representative capacities. When the Resident Engineers appear the appearance would be treated as the appearance of the company being prosecuted. We direct the Magistrates to proceed accordingly.

17. Then there remain the four cases in which, apart from the companies, certain individuals have been impleaded as accused in their personal capacities. We have carefully gone through the complaints in these four cases and we find that in none of these complaints are any facts alleged which would show that there was any breach or non-observance of any provision of the Act schedule or rules of the Indian Electricity Act by any act of commission or omission on the part of the individuals. There is not even any suggestion that, if there has been any non-observance of any rule or breach of any rule on the part of the electric supply company, which is the principal accused in each of these cases, the responsibility for that non-observance or breach lay on any of these individual accused. We may also mention that, in all these four cases the stage at present is that the examination of prosecution witnesses has not yet started. In some probably all the accused have put in appearance, while in others that is not so. In fact, the information of the learned counsel appearing for the State in these cases is that in none of these four cases have the individual accused yet appeared. Consequently, in deciding whether the prosecutions can continue, the only material available are the four complaints in the tour cases and there is no additional material by way of evidence which needs to be considered by us. On the facts given in the complaints, it is dear that the facts alleged by the complainant do not even make out a prima facie case against any of these individuals for breach of any of the rules framed under the Indian Electricity Act or the provisions of that Act as there are no incriminating allegations against these individuals. The proceedings that are being taken in the I trial of these individuals are, therefore, without any justification. No summonses should have been issued against them under Section 204 of the Cr PC and they should not have been put on trial. In cases where they are not yet on trial there is no justification for enforcing their attendance in court and putting them on trial. We, therefore, consider that the proceedings against these individuals going on under these complaints should be quashed by us in exercise of our powers under Section 439 of the Cr PC. We accordingly quash all proceedings in these four cases against these individual accused and set aside the orders of the Magistrates directing issue of summonses for their attendance under Section 204 of the Cr PC. We may make it clear that this order will in no way affect proceedings which might be taken by the Magistrates on these complaints against the electric supply companies concerned provided those proceedings are taken in accordance with the principles which we have laid down in connection with the remaining 11 accused. The stay orders in all these cases are discharged."

43. The complainant-opposite party no. 2 who represents the Axis Bank have filed a short counter affidavit rebutting the Applicant's case. Sri Shad Khan who has appeared for the second opposite party has assailed the stand taken by the Applicant to say that there is no legally admissible evidence against the Applicant. Sri Vinod Kant, learned Additional Advocate General appearing on behalf of the State, assisted by Sri Nikhil Chaturvedi, learned Additional Government Advocate have likewise submitted that it is not a case of no evidence or no legally admissible evidence being there against the Applicant. The submissions of the State and opposite party no. 2 are in unison. These are referred to together.

44. It is pointed out by the learned Additional Advocate General and the learned counsel for opposite party no. 2, that this matter is one that is still under investigation about the complicity of other suspects, and to unearth further material relating to the fraudulent withdrawals subject matter of this crime, where a Division Bench of this Court is monitoring investigation in criminal Misc. Writ Petition No. 8916 of 2017. It is also pointed out that the Directorate of Enforcement have also commenced investigation against the Applicant and other co-accused, under the Prevention of Money Laundering Act, 2002. They have referred to a letter dated 08.03.2017 received by the Branch Manager, Axis Bank, Civil Lines Branch from the Assistant Director, Directorate of Enforcement, Government of India, requiring information about the three Bank Accounts of the SHUATS, under Section 50 of the Prevention of Money Laundering Act. It is also pointed out that the status report of investigation has been submitted to the Division Bench, from time to time, and the same is kept in a sealed envelop with the Registrar General. It is pointed out by the learned Additional Advocate General as also learned counsel for opposite party no. 2 that a bare perusal of the statement of co-accused, Rajesh Kumar recorded under Section 161 of the Code would reveal that he was just a pawn in the hands of the officials of the SHUATS, and all fraud that was committed, was at the instance of the Applicant and the other co-accused, who are high ranking officials of the SHUATS. It is, particularly, emphasized both by the learned Additional Advocate General and the learned counsel for opposite party no. 2, that it is not a case of vicarious liability, but one of criminal conspiracy, hatched for the purpose of making wrongful gain from the institutional funds of SHUATS, that include grants received by the then College from the UGC and other State grants-in-aid, received by the College from the Government. It is submitted that the Applicant is at the centre stage of this conspiracy.

45. It is urged by learned Additional Advocate General appearing on behalf of the State and the learned counsel for opposite party No. 2 that the Bank upon receipt of a complaint commenced investigation into the fraud. They had a suspicion of fraud committed with the funds of the University available in their accounts. The Bank officials requested the University to confirm the transactions by means of a bank reconciliation statement. The University vide their letter dated 03.01.2017 confirmed that all transactions are in order and authentic. Not satisfied with the reply, the Bank again requested the University to reconcile and reaffirm transactions in their accounts, and the University once again vide a letter dated 10.01.2017 informed the Bank that all accounts are verified and found in order. The said certificates dated 03.01.2017 and 10.01.2017 are part of the case diary. It is pointed out by the learned Additional Advocate General that the SHUATS are a University incorporated under the U.P. Act No. 35 of 2016. He has referred the Section 13(2) of the Act of 2016, last mentioned, to say that the Vice-Chancellor has been conferred the status of the Principal Executive and Academic Head of the University who shall exercise general supervision and control over the affairs of the University, and implement decision of all Authorities of the University. It is further pointed out that there is a Finance Committee comprising 20 members, stipulated under Section 22 of the Act of which the Vice-Chancellor is the Chairperson, besides the Registrar and the Finance Comptroller. All financial matters related to the University are in the ultimate decision making power of the Finance Committee of which the Vice-Chancellor is the Head. It is thus, submitted on behalf of the opposite parties that the act of the Applicant as head of the SHUATS in affirming and reaffirming reconciliation of transactions relating to accounts of the University, referable to the period when fraud in its account was detected by the Bank, through their letters dated 03.01.2017 and 10.01.2017, strongly indicates a positive circumstance pointing to a conspiracy of which the Applicant, the Head of the Institution, was a part.

46. Learned counsel for the opposite parties have further referred to the statement of Mallappa Devappa Patil, recorded under Section 164 Cr.P.C. which reveals that he went to the University on 24th April 2017, and had a meeting with the Applicant and other top officials of the University. He requested the Applicant to jointly lodge an FIR regarding the fraud which was to the tune of Rs. 22.4 crores, but the Applicant refused to lodge the FIR. Learned counsel for the opposite parties pointed out that the Applicant's blank refusal to take any concrete step in the matter and, in particular, to lodge an FIR jointly with the Bank, despite a suggestion in that behalf by Mallappa D. Patil, is one recorded before the Magistrate under Section 164 Cr.P.C., and very much a part of the charge-sheet. Its admissibility is not at all in doubt.

47. Learned counsel for the opposite parties have further submitted that the second opposite party delivered a complaint on 28.04.2017 to the police at P.S. Civil Lines, Allahabad against the accused nominated. They submit that though the complaint was delivered on 28.04.2017, an FIR could be registered after intervention of higher police officials on 05.05.2018. About this, it is said that the delay occurred on account of the Applicant and his clout with the local police, showing the Applicant to be hand in glove with the perpetrators.

48. It is next submitted by learned counsel for the opposite parties that after the fact of fraud had come to light ostensibly committed by Rajesh Kumar, the Accountant of the University, though he was placed under suspension an armed guard was provided to the said disgraced accountant and a nominated accused in the FIR vide order dated 12.03.2017 passed by Vinod B Lal, Director Administration of the SHUATS and a brother of the Applicant. The armed guard was provided to the said accused on a round the clock basis, deliberately with an intention to protect him after the multi-crore embezzlement by him had come to the Applicant's knowledge. It is submitted that this clearly and beyond reasonable doubt shows that the Applicant and his brother's complicity in the crime, who some how wanted to suppress the same by placing the witness under vigil, though under the garb of providing him security. It is submitted that it is amply borne out from the material on record and circumstances indicated thereby that there is a direct nexus between the crime and the role of the Applicant. This is so as the Applicant, being the Vice-Chancellor is the Chairman of the Board of Management, the Academic Council of University and the Finance Committee under the Act of 2016, who has actual control over the financial decisions of the University. He has purposefully misled the Bank on several occasions, and curtailed facts from being verified by the Bank relating to the fraudulent withdrawals. This has been done by issue of letters dated 03.01.2017 and 10.01.2017, jointly signed by the Pro Vice-Chancellor/Registrar and the Director of Finance Planning and Management/Finance Comptroller of the University, addressed to the Bank, on each occasion showing that their accounts have been tallied and reconciled on the basis of their book of accounts with the Bank statements. It is clearly written in the letters that the two officials have placed their signatures at the last page of the statements of accounts to verify them. One of them is B.S.Lal, co-accused, Director, Financial Planning and Management and Finance Comptroller by the University. It is submitted that these letters and action of the Applicant when approached by Mallappa D Patil to lodge an FIR jointly with the University by refusing to do so, clearly indicates the active involvement of the Applicant in the fraud of which he is the beneficiary. The fact of being part of the conspiracy is clearly established by the Applicant's inaction as aforesaid on the one hand, and letters confirming accounts that had fraudulent withdrawals written by high ranking officials of the University on the other.

49. It is submitted by the learned Additional Advocate General, again in one voice with the learned counsel for the opposite party no. 2 that bank accounts from which huge funds have been embezzled, include grants given by the State Government and the UGC, received for the benefit of students. As such, it is a grave offence falling in the category of economic offences. These offences have wide ramification in society and are not akin to disputes affecting an individual. These offences stand on a different footing and have to be dealt with a heavy hand. Learned Additional Advocate General has submitted that one cannot be oblivious to the fact that such offences are driven by cool, calculated and deliberate design, with an eye on personal wrongful gains. The offence under consideration is one that should be dealt with firmly so as to set the right precedent in society, and to assure the public at large that such offenders cannot abuse the process of law and swindle away public money with no fear of the law.

50. Learned counsel appearing for opposite party no. 2 and learned Additional Advocate General for the State, in support of their contetnion that the Court should be extremely slow and loath to interfere in cases of prosecutions involving economic offences, that include Bank frauds and defalcation of public funds, have relied upon a decision of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and others vs. State of Gujarat & another8, where the Hon'ble Supreme Court about this class of offence, while dealing with the issue generally as to what kind of prosecutions can be quashed on the basis of a compromise held as follows:

"16.10. There is yet an exception to the principle set out in propositions 16.8. and 16.9. above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."

51. Learned counsel appearing for the opposite parties have further placed reliance on the decision of the Supreme Court in Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation9 and Ram Narayan Popli vs. Central Bureau of Investigation10 to submit that cases involving economic offences causes a widespread harm to the community which deserve to be dealt with firmly by the Court.

52. Learned Additional Advocate General Sri Vinod Kant has referred to the following observation in Ram Narayan Popli's case (supra):

"382. The cause of the community deserves better treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye, unmindful of the damage done to the national economy and national interest, as was aptly stated in State of Gujarat v.Mohanlal Jitamalji Porwal [(1987) 2 SCC 364 : 1987 SCC (Cri) 364 : AIR 1987 SC 1321].

53. Likewise, reliance has further been placed upon on a decision in Rathinam vs. State of Tamil Nadu and another11, in support of the same proposition. The opposite parties have also relied upon authorities to show that this Court cannot embark upon an inquiry to find out the truthfulness of the allegations in exercise of its jurisdiction under Section 482 of the Code. They have relied upon a decision of the Hon'ble Supreme Court in Central Bureau of Investigation vs. K.M. Sharan12 and that in State of Kerala vs. O.C. Kuttan13. There is no quarrel about the proposition that there are limitations on the exercise of jurisdiction under Section 482 of the Code in matters where sifting of evidence is required. It is equally true that in matters involving economic offences such as Bank frauds, exercise of power under Section 482 of the Code to scuttle a prosecution should almost always be eschewed, except where the case falls in a category where exercise of the power to quash becomes imperative to secure the ends of justice.

54. This Court has keenly considered the rival submissions of parties. No doubt, it is trite that in a case where there is no legal evidence against the head of an institution about his involvement in defalcation of institutional funds by one or the other employee of the institution, there is no principle of vicarious liability on the foothold of which he may be criminally held liable, just because he happens to be the head of the institution that becomes the victim of a Bank fraud. But, the case here is not one of holding the Applicant liable vicariously for the act of a subordinate functionary, acting in connivance with the Bank officials to siphon off institutional funds from their Bank accounts. It is about the prima facie evidence of a criminal conspiracy to which the Applicant is alleged to be a party, may be the key player, and wherein co-accused Rajesh Kumar or the other co-accused, Kamal Ahsan or the other Bank officials involved are only active agents. The prosecution say that on the evidence collected the Applicant and the other high ranking officials of SHUATS are the brains behind this fraud, of which those against whom direct evidence has surfaced, like Rajesh Kumar and Kamal Ahsan are the operating hands. This Court is aware of the well recognized rule that it is not the province of this Court in an application to quash proceedings under Section 482 of the Code to do a fine weighment of evidence, but one limited to see on principles well known to law that where no triable case against the Applicant is made out, or the case falls under some other principle acceptable to the exercise of jurisdiction under Section 482 of the Code, proceedings are liable to be quashed.

55. To the above end some survey of facts and circumstances, and then the law applicable to the offences attributed to the Applicant in regard to his role of conspiracy is necessary to arrive at a just decision.

56. In order to assess if there is any prima facie case, or so to speak legally admissible evidence available against the Applicant, the Court does not intend to look at the confessional statement of co-accused Rajesh Kumar to begin with, as much has been made on behalf of the Applicant as to the admissibility of such evidence against him. But, that is not to say that this Court intends to do a blindfold acceptance of the Applicant's contention that the evidence of co-accused Rajesh Kumar cannot be read against him, it being confessional in nature vis-a-vis Rajesh Kumar. The issue of its admissibility and relevance limited to the purpose of this Application, would be dealt with in the course of this judgment.

57. One important evidence, again all prima facie, comes from the statement of Malappa D. Patil, Deputy Vice-President, Financial Crime Management, Axis Bank, recorded under Section 164 of the Code before the Chief Judicial Magistrate, Allahabad. His statement aforesaid tells much about the nature, extent and manner in which the fraud was perpetrated. In this regard, the following part of his rather long and detailed statement (under Section 164 of the Code) is relevant:

"कमाल अहसान व राजेश कुमार दोनों ने मिलकर शुआट्स के तीन एकाउन्टस में से कैश विड्राल किया और की अन्य ट्रान्सफर अपनी पत्नी, माता-पिता, मित्रों व रिश्तेदारों के खाते में किये। इसने कई अन्य बैंकों में RTGS/ NEFT से पैसा भेजा। इसने 24 करोड़ सात लाख रू० का ट्रांसफर इधर उधर करके मुख्य एकाउन्ट से फर्जी रूप से हटाया। उसमें से 18.23 करोड़ अपने परिवार व मित्रों के खाते में जमा किया। 391 ट्रान्जेक्सन इसके द्वारा किए गये थे। करीब 23 कर्मचारी बैंक वालों ने इस ब्रान्च में काम किया था जिनका इन ट्रांजेक्सन में जाने अन्जाने योगदान रहा था। इसमें 369 ट्रांजक्शन बिना चेक प्राप्त किए ही कर दिए गये थे। पांच ट्रांजक्शन ऐसे थे।

एस० डी० अपठित 					एस०डी० अपठित 
 
 							26-9-17
 

जिनमें किसी चेक नम्बर या बाउचर के अपने रिश्तेदारों के खातों में किए गये थे। कर्मचारियों के पूछने पर इसने कहा था कि चेक लाया हूँ रखा है अभि दे दूंगा। राजेश कुमार शुआट्स का एकाउन्टेन्ट था। मैंनें शक होने पर उससे कहा था कि अपने बैंक का 31-12-16 का बैलेंस एक्सिस बैंक के बैलेंस के साथ मिलान करके हमें पुष्टि करो। राजेश ने अपने प्रो-वाइस चांसलर व फाइनेंस कन्ट्रोलर के दस्तखत किया हुआ 03-1-17 से पुष्टि कर हमें दे दिया। यह पुष्टिकरण हमारे कहने के 2-3 दिन बाद ही बहुत जल्दी आ गया था। मुझे शक हुआ तो मैने 2013 से 2016 तक हर तिमाही का सही बैलेंस पुष्टीकरण करने के लिए कहा। उसने 10-1-17 को प्रो-वाइस चांसलर व फाइनेंस कन्ट्रोलर के हस्ताक्षर के साथ हर क्वार्टर का पुष्टिकरण किया। मुहर यूनिवर्सीटी की लगाकर दिया था। 24.07 करोड़ के एकाउन्ट का फ्राड 391 एन्ट्रीज में पाया गया। जांच पूरी होने के बाद शुआट्स अथारिटी ने हमें 24-4-17 को बताया कि 23.92 करोड़ का अन्तर पाया गया है।"

58. It is further detailed about the sums of money transferred illegally to different accounts by Rajesh Kumar and Kamal Ahsan, and the modus operendi of illegal transfer of funds running into crores from the institutional accounts of the SHUATS:

"5 ट्रांजक्शन बिना चेक बिना बाउचर 22.60 लाख रू० 17 ट्रांजक्शन चेक द्वारा- 2,80,79000 रू० केवल चेक नं० के अधारा पर (बिना चेक) 21,03,31000 रू० कुल 24,0671000 रू० राजेश कुमार एकाउन्टेन्ट शुआट्स के कहने पर कमाल अहसान ने शुआट्स के खाते में 22 करोड़ 60 लाख रूपये निकाला। जिसमें न चेक था न कस्टमर की अनुमति थी। दोनों ने मिलकर 2,80,70000 रू० का कैश तथा डी०डी० एवं ट्रान्सफर 17 फर्जी चेक द्वारा किया। 11 करोड़ 99 लाख 61 हजार रू० की राशि बिना चेक के राजेश के कहने पर शुआट्स के तीन एकाउन्ट से कैश निकाला गया। अहसान कमाल व राजेश ने मिलकर 6 करोड़ तीन लाख 70 हजार रूपये 59 RTGS/NEFT के द्वारा यूनियन बैंक ऑफ अन्डिया, इलाहाबाद बैंक,

एस०डी० अपठित एस०डी० अपठित

26-9-17

बैंक ऑफ इन्डिया, स्टेट बांक ऑफ इन्डिया में ट्रांसफर किए जिसका विवरण इस प्रकार है।

सैय्यद यावर हुसैन	 		- 	4 करोड़ 41 लाख रू०
 
जरीफ मोहम्मद 			- 	25 लाख रू०
 
नाजिमी रिजवी 			- 	57 लाख 70 हजार रू०
 
मो० कासिम 				- 	16 लाख 88 हजार रू०
 
किशन कुमार 			- 	25 लाख रू०
 
राजेश कुमार शुआट्स कर्मचारी 	- 	25 लाख रू०
 
अबरार उल हक बिना चेक 	- 	1करोड़ 26लाख 54 हजार रू०
 

 

ये सभी ट्रजक्शन बिना चेक के किए गये है। ये ट्राजक्शन अहसान कमाल ने या तो खुद Approve किये हैं या दूसरे कर्मचारियों से विश्वास में लेकर कराये गये हैं। मेकर व चेकर दोनों ने क्रास वेरीफाई किए बिना ही ट्राजक्शन करवाये हैं। शाखा प्रबन्धक तथा आपरेशन के मुख्य हेड ने यह नहीं देखा कि इतने चेक मिसिंग हैं। कमाल अहसान करेली का रहने वाला है। मध्यम परिवार का है। तीन चार साल में उसका लाइफ स्टाइल बहुत चेंज हो गया था उसने हमें बताया था कि उसके पास चार गाड़ियां है। 2-3 ड्राइवर इसने रखे थे करेली में दो मकान खरीद रखे हैं। अपने गांव में अपने व पत्नी के नाम पर जमीन खरीदी। एक फ्लैट नोएडा में भी खरीदा।"

59. It is further said in this statement:

"राजेश कुमार कर्मचारी शुआट्स ने हमें लिखकर दिया कि उसने व अहसान कमाल ने मिलकर शुआट्स के एकाउन्टस में से धोखाधड़ी से पैसा निकाला है। यह काम 2013 से अपनी निजी जरूरतों व सम्पत्ति, गाड़ियां खरीदने व निवेश करने के लिए चल रहा था। यह भी कहा कि हमसे गलती हो गयी है हम दोनों बैंक का पूरा पैसा 15-3-17 तक वापस कर देंगे। यह भी बताया कि इस मामले में उनकी यूनिवर्सिटी के कई बड़े अधिकारियों का भी सहयोग रहा।

कमाल अहसान ने लिखित पत्र द्वारा बताया कि उसने राजेश के कहने पर ये पैसा निकाला तथा दोनों ने मिलकर बंटवारा किया पैसा निकालने में जो 17 चेक प्रयोग किए गये हैं उन पर हस्ताक्षर फर्जी होने का संदेह ही उनके खाता धारकों ने अपने हस्ताक्षर होने से मना किया है। कमाल अहसान ने हमें 29 Blank Cheque चेक दिए जो उसे राजेश कुमार ने दिए थे। शुआट्स के अधिकारियों ने हमें बताया कि उनके पास 288 फिजिकल चेक हैं जो राजेश ने कैंसल होने के बाद भी उनका रूपया निकाला।"

(Emphasis by Court)

60. The most important part of the statement of this witness recorded under Section 164 of the Code, that may have some particular bearing upon the Applicant's case, is towards the closing chapter of this otherwise rather longwinded statement, replete with facts and figures, and that is to the following effect:

 
"हमने यह फ्राड शुआट्स के वाइस चांसलर, प्रो वाइस चांसलर व अन्य बड़े अधिकारियों को लखनऊ में मीटिंग करके 09-3-17 को बताया था। शुआट्स वालों ने कहा था कि हम वसूली करेंगे। मिलकर F.I.R. लिखायेंगे। बैंक के साथ सहयोग करेंगे। उन्होंने हमें 24-4-17 को हिसाब किताब के मिलान के लिए यूनिवर्सिटी के आफिस में बुलाया तथा कहा कि हमारा 23.92 करोड़ रूपया मय ब्याज अविलम्ब वापस कर दो 
 
एस० डी० अपठित					 एस०डी० अपठित
 
								26.9.17
 
संयुक्त F.I.R. कराने से मना कर दिया। उसमें वाइस चांसलर, प्रो० वाइस चांसलर, रजिस्ट्रार, आडीटर व जांच कमेटी के सदस्य व अन्य अधिकारी भी थे।"
 

61. So far as the dimensions of the fraud are concerned, the statement above quoted gives a fair and revealing account of it. This Bank official's statement indicates that indeed, Rajesh Kumar and Kamal Ahsan were the active agents, through whom the entire fraud was pulled involving 391 fraudulent transactions in the Bank accounts of the SHUATS. The money syphoned off was a total of Rs.24,06,71,000/-. The most startling part that has figured throughout this statement, which is based on accounts maintained in the ordinary course of business of the Bank, shows that these huge sums of money were syphoned off to private accounts, in different banks on the basis of cheque numbers against which vouchers were drawn, without those cheques being physically presented to the Bank. Other transactions were done through RTGS and NEFT. All the more important is the fact that these fraudulent withdrawals were continuing since the year 2013, and during this entire period from 01.04.2013 to 17.11.2016, a big establishment like the SHUATS, who have not only a well staffed and equipped Finance Department, but also a quarterly settlement and reconciliation of accounts for myriad purposes, such as payment of taxes etc., could not detect these mammoth discrepancies in their accounts depriving the institution of crores of rupees. The said fact can prima facie be lawfully believed, if not as direct evidence of the Applicant's involvement, certainly as a circumstance to point that as the charge d'affairs of the SHUATS, the Applicant turned a Nelson's eye to this gross and continuing fraud in the Institution's Bank accounts.

62. The next circumstance indicative of the Applicant's complicity figures in the closing part of the Bank official's statement under Section 164 of the Code, where he says that when the Bank official intimated the Applicant, besides the Pro-Vice Chancellor and other high ranking officials of the SHUATS on 09.03.2017, they told the Bank official that amongst other steps, they would lodge an FIR along with the Bank. In the same part of the statement dated 26.09.2017, it is said by this Bank Official that the Bank officials were called to the University on 24.04.2017 to reconcile accounts, where they asked the Bank officials to forthwith refund Rs.23.92 crores with interest, but the University officials refused to lodge an FIR. It is specifically said that the Vice-Chancellor (the Applicant), the Pro-Vice Chancellor, the Registrar, Auditor, were all present (at the time of this refusal to lodge an FIR). In the normal conduct of affairs, assuming that the Applicant was not aware about this multi-crore fraud of Institutional moneys extending over a good three years, one would expect the Applicant as head of the defrauded Institution to have lodged the FIR, without the slightest delay upon being informed of it by the Bank official on 09.03.2017. The fact that the Applicant came to know of the fraud through the Bank officials on 09.03.2017 at 6 p.m. at University Camp Office at Lucknow is admitted in paragraph 18 of the affidavit filed in support of 482 Application. The fact that the Applicant did not promptly lodge an FIR in a matter of a multi-crore financial fraud, relating to the Institutional moneys of the SHUATS is again a circumstance that prima facie points out to the Applicant's complicity.

63. To add to it is the conduct of the Applicant, referred to in the opening part of this judgment, which shows that after the Applicant himself was summoned by the Investigating Agency through notices under Section 160 of the Code, as late as on 29.07.2017, he made efforts to lodge an FIR in relation to the same crime where investigation had already made headway with the single handed efforts of the Bank. Those efforts too have been referred to earlier which involve the Bank being driven to file a Writ Petition before this Court, leading to a monitoring of that investigation by a Division Bench, that ultimately led an extremely lethargic police to set up an SIT along side the regular Investigating Officer. The act of the Applicant in attempting to lodge an FIR relating to this Bank fraud, when investigation had reached an advanced stage concerning the same and was being monitored by this Court is again indicative prima facie of conduct to deflect the course of investigation. It is hard to believe, though again prima facie, that a man of the Applicant's accomplishment would not know or be well advised that lodging an FIR about a crime regarding which investigation had progressed into extensive detail, through an application under Section 156(3) of the Code, is to say the least, ridiculous. Rather, it prima facie shows, as already said, that this belated recourse is again an inculpatory circumstance vis-a-vis the Applicant.

64. To add to all this, is that red-pointer circumstance that two letters, one dated 03.01.2017 and the other dated 10.01.2017, were issued in response to queries from the Axis Bank regarding the tally and reconciliation about the Bank accounts, wherein fraud had already taken place, informing the Bank that on a tally and reconciliation with the Books of Accounts of the SHUATS and the Bank statement relative to each account, these have been verified and found to be in order. These letters are signed by the Pro-Vice Chancellor/ Registrar of the University and the Director, Financial Planning and Management/ Finance Comptroller. Normally and in every possible eventuality, it is difficult to accept that the SHUATS with all its resources on a virtual tip off from the Bank about something suspicious relating to the accounts in question would not have detected a multi-crore fraud, perpetrated as it is, in a crude and obvious manner. The Applicant as the head of the SHUATS would certainly be in the know of these letters being written by the Pro-Vice Chancellor and Finance Comptroller, one of whom is his brother. These letters from the SHUATS to the Branch Manager of the Axis Bank, dated 03.01.2017 and 10.01.2017 are part of CD no.68, dated 15.09.2017, which the Investigating Agency have filed in support of the material in the impugned charge sheet. At the stage at which the Applicant wants this Court to interdict proceedings, the circumstances noted so far alone, do not countenance that course of action. May be, at the stage of trial or still earlier while considering discharge, the Applicant may demonstrate his innocence or lack of involvement. But, as circumstances stand, it is not a case where this Court may step in to quash proceedings.

65. The prosecution case against the Applicant is all about his role in the criminal conspiracy that has led to a multi-crore fraud. It is not about vicarious liability for acts of commission or omission of employees of SHUATS such as Rajesh Kumar that the Applicant has been charge sheeted by the police, only because he is the head of the SHUATS. If that were so, Sri G.S. Chaturvedi would be absolutely right in his submissions on this score. But, it is not so. It is about the circumstances that prima facie point out to the Applicant's role in the criminal conspiracy that has led to the multi-crore Bank fraud being perpetrated, syphoning off institutional funds from its accounts.

66. In order to appreciate what the offence of criminal conspiracy is, the first to be looked into is the definition of the offence under Section 120-A IPC. Section 120-A, IPC reads:

120-A. Definition of criminal conspiracy.--When two or more persons agree to do, or cause to be done,--

(1) an illegal act, or

(2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

67. The Black's Law Dictionary (Ninth Edition) defines criminal conspiracy thus:

"conspiracy, n. (14c) An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement's objective, and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose. 18 USCA 371.

Conspiracy is a separate offense from the crime that is the object of the conspiracy. A conspiracy ends when the unlawful act has been committed or (in some states) when the agreement has been abandoned. A conspiracy does not automatically end if the conspiracy's object is defeated. See Model Penal Code --- 5.03(7); United States v. Jiminez Recio, 537 U.S. 270, 123 S.Ct. 819 (2003), - Also termed criminal conspiracy."

68. The essence of the offence of conspiracy lies in an agreement to commit an offence. It involves as often said the requirement of a meeting of minds, and, therefore, the offence is essentially about what goes on in the mind. It is punishable as the ingredients of Section 120-A IPC would show under Section 120-B IPC, the moment an agreement to commit an illegal act or an act which is not illegal, by illegal means is established. It is quite independent of the fact of the agreed offence being committed or not. It is punishable for the fact of such agreement being established. The most tricky part is about the establishment of the fact in issue that there was at all such an agreement on part of the accused, along with his conspirators. Going by the nature of the offence, direct evidence is difficult to come by. It is mostly to be inferred from circumstances as to how the accused have agreed to do an illegal act. If the act as aforesaid is in fact done, circumstances are always good evidence to trace its origin to those who are conspirators but have not ostensibly done anything. The nature of evidence on which the offence of conspiracy is expected by the law to be established has been succinctly exposited in Pratapbhai Hamirbhai Solanki vs. State of Gujarat and another14, where it is held:

23. In the said case it has been highlighted that in the case of conspiracy there cannot be any direct evidence. The ingredients of offence are that there should be an agreement between persons who are alleged to conspire and the said agreement should be for doing an illegal act or for doing by illegal means an act which itself may not be illegal. Therefore, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused.

(Emphasis by Court)

69. Again regarding the nature of evidence to be expected in relation to a charge of criminal conspiracy, the Hon'ble Supreme Court in Ram Narayan Popli (supra) held thus:

"346. ..... We are aware of the fact that direct independent evidence of criminal conspiracy is generally not available and its existence is a matter of inference. The inferences are normally deduced from acts of parties in pursuance of a purpose in common between the conspirators. This Court in V.C. Shukla v. State (Delhi Admn.) [(1980) 2 SCC 665 : 1980 SCC (Cri) 561] held that to prove criminal conspiracy, there must be evidence, direct or circumstantial, to show that there was an agreement between two or more persons to commit an offence. There must be a meeting of minds resulting in ultimate decision taken by the conspirators regarding the commission of an offence and where the factum of conspiracy is sought to be inferred from circumstances, the prosecution has to show that the circumstances give rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence. As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. The circumstances in a case, when taken together on their face value, should indicate the meeting of minds between the conspirators for the intended object of committing an illegal act or an act which is not illegal, by illegal means. A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy.

347. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available; offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference."

70. Tested on the above parameters of what could be evidence about an offence of criminal conspiracy on the basis of which the Applicant has been charge sheeted in the present case, the following circumstances, amongst others, stand out:

(i) The fact that moneys to the tune of Rs.24,06,71,000/- were syphoned off between the long period from 01.04.2013 to 17.11.2016 from the Bank accounts of the SHUATS of which the Applicant is the Vice-Chancellor, but given all the big finance establishment of the Institution, the quarterly tally and settlement of accounts, the Applicant remained culpably ignorant of this multi-crore Bank fraud.

(ii) The fact that on being apprised about the fraud by the Bank officials admittedly on 09.03.2017, the Applicant did not promptly lodge an FIR in the matter of a multi-crore financial fraud relating to institutional moneys of the SHUATS.

(iii) The conduct of the Applicant where after he was summoned by the Investigating Agency through notices under Section 160 of the Code, as late as on 29.07.2017, he made efforts to lodge an FIR in relation to the present crime, where investigation had already made headway with the single handed efforts of the Bank and that investigation is being monitored by a Division Bench of this Court, apparently to deflect the course of investigation.

(iv) The fact that in response to the Bank requiring the SHUATS to verify their accounts (where a multi-crore fraudulent withdrawal over three years past had taken place), two letters dated 03.01.2017 and 10.01.2017 were issued jointly signed by the Pro-Vice Chancellor and the Finance Comptroller of the SHUATS, one of whom is the Applicant's brother, and co-accused in this case, informing the Bank that on a tally and reconciliation with the Books of Accounts of the SHUATS and the Bank statements relative to each account, these have been verified and found to be in order.

71. These are some of the circumstances that appear in evidence against the Applicant on the basis of which he has been charge sheeted. Sri Chaturvedi, learned Senior Counsel for the Applicant has laid much emphasis on the fact that the confessional statement of a co-accused, is inadmissible in evidence against the Applicant. This is with reference to the evidence of co-accused, Rajesh Kumar, who has wholesomely disclosed inculpatory facts against the Applicant. This Court is afraid that the contention of the learned Senior Counsel that evidence of a co-accused in a confessional statement is inadmissible by virtue of Section 25 of the Evidence Act and the bar contained in Section 162 of the Code together, place it completely beyond the pale of consideration, is not an accurate statement of the law. Confession by a co-accused is a weak kind of evidence that may be taken into consideration, to lend assurance to the Court where there is doubt in the Court's mind about the culpability of an accused. Howsoever weak, it is evidence nevertheless useful at some stage. It is not barred by Section 25 of the Evidence Act, as it would be vis-a-vis the accused who makes the confession. It may be taken into consideration within the limitations of Section 30 of the Evidence Act.

72. The extent and scope of the admissibility of evidence of a co-accused made in a confessional statement is authoritatively laid down by the Hon'ble Supreme Court in Haricharan Kurmi vs. State of Bihar15, where it is held:

11. .......When Section 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration, is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in Section 30 is not evidence under Section 3 of the Act. Section 3 defines "evidence" as meaning and including--

"(1) all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;

(2) all documents produced for the inspection of the court; such documents are called documents are called documentary evidence."

12. Technically construed, this definition will not apply to a confession. Part (1) of the definition refers to oral statements which the court permits or requires to be made before it; and clearly, a confession made by an accused person is not such a statement; it is not made or permitted to be made before the court that tries the criminal case. Part (2) of the definition refers to documents produced for the inspection of the court; and a confession cannot be said to fall even under this part. Even so, Section 30 provides that a confession may not be evidence as strictly defined by Section 3 of the Act, it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non-techinical way. But it is significant that like other evidence which is produced before the court, it is not obligatory on the court to take the confession into account. When evidence as defined by the Act is produced before the court, it is the duty of the court to consider that evidence. What weight should be attached to such evidence, is a matter in the discretion of the court. But a court cannot say in respect of such evidence that it will just not take that evidence into account. Such an approach can, however, be adopted by the court in dealing with a confession, because Section 30 merely enables the court to take the confession into account.

13. As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerburty [(1911) ILR 38 Cal 559 at p. 588] a confession can only be used to "lend assurance to other evidence against a co-accused". In re Periyaswami Moopan [(1913) ILR 54 Mad 75 at p. 77] Reilly. J., observed that the provision of Section 30 goes not further than this: "where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in Section 30 may be thrown into the scale as an additional reason for believing that evidence". InBhuboni Sahu v. King [(1949) 76 IA 147 at p. 155] the Privy Council has expressed the same view. Sir John Beaumont who spoke for the Board, observed that "a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in Section 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved the case; it can be put into the scale and weighed with the other evidence". It would be noticed that as a result of the provisions contained in Section 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense.......

(Emphasis by Court)

73. Thus seen, whatever be the worth of the confessional statement of the co-accused Rajesh Kumar, it is not something that is to be excluded from consideration in the manner of a confessional statement hit by Section 25 of the Evidence Act, as urged on behalf of the applicant. At this stage when the Court is seized of a petition to quash criminal proceedings, the said statement also cannot be kept out of consideration altogether.

74. All these circumstances, acts, omissions and conduct taken together, regarding all of which there is evidence in the case diary, in the considered opinion of this Court constitute a prima facie case to proceed against the Applicant. It is clarified here again, as said elsewhere, that this conclusion of the Court is limited to these proceedings that seek to quash the impugned charge sheet. Anything said here will not in any manner be construed as expression of opinion on the merits of the parties' case; be it the prosecution or the Applicant, or the non-applicant co-accused.

75. It has weighed with this Court that the Applicant is the Head of a University, that has now a Statute enacted by the State Legislature to regulate its functioning. The University has in its control immense funds coming to it from the public exchequer, even if it has resources of its own. It has been pointed out that the University has been given grant by the UGC and the State. After all the University is discharging functions of a public character which affect and impact the society in general. It is handling the State's function of providing education, and the sovereign function to confer degrees. In case the head of such an institution were not even called to answer charges where crores of rupees from the Institutional account have been embezzled over years, by granting him a premature reprieve from the process of criminal law, in the considered opinion of this Court it would be lending the process of court to abuse rather than preventing it. This is certainly not the purpose for which the powers of this Court under Section 482 of the Code are to be exercised.

76. It has further weighed with this Court that this matter relates to a multi-crore Bank fraud where investigation is still in progress, may be relating to the role of others. The investigation is being supervised by a Division Bench of this Court, considering the importance of the crime and its impact. To add to it, it is a matter where the Enforcement Directorate also have found it a fit case to investigate under the Prevention of Money Laundering Act, and have sent a notice to the Bank. In this conspectus, this Court is of firm opinion that quashing the charge sheet as against the Applicant would deliver a debilitating blow to the remainder of the investigation, necessary to unearth the entire fraud in its wholesome and complete detail.

77. In the result, this Court finds no force in this Application. It is, accordingly, dismissed.

Order Date :- 15.3.2019

Anoop/Deepak/BKM