Prof K Sudha Rao vs The State Of Karnataka
2021 Latest Caselaw 1927 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 20TH DAY OF APRIL, 2021

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

              CRIMINAL PETITION No.7312/2020

BETWEEN:

PROF K. SUDHA RAO,
W/O PROF. A. RAMESHA RAO,
AGED ABOUT 74 YEARS,
EX.VICE CHANCELLOR,
KARNATAKA STATE OPEN UNIVERSITY,
MUKTHAGANGOTRI,
MYSORE CITY-570006.

PRESENTLY R/AT:S-2,
STANBERRY COURT APARTMENTS,
60 FEET ROAD, SANJAY NAGAR,
BENGALURU-560 094.                           ... PETITIONER

     (BY SRI ASHOK HARANAHALLI, SENIOR COUNSEL FOR
             SRI SRINIVAS RAO S.S., ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA
       BY JAYALAXMIPURAM POLICE STATION,
       MYSURU-570 012.
       REPRESENTED BY ITS SPP,
       HIGH COURT BUILDING,
       BENGALURU-560 001.

2.     THE REGISTRAR,
       KARNATAKA STATE OPEN UNIVERSITY,
       MUKTHAGANGOTRI
       MYSURU CITY-570006.
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      REPRESENTED BY ITS REGISTRAR
      DR. RAMESH.                              ... RESPONDENTS

              (BY SRI SHOWRI H.R, HCGP FOR R-1;
                SRI V.F. KUMBAR ADVOCATE FOR
           SRI PRASAD HIREMATH ADVOCATE FOR R-2)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE FIR IN CR.NO.54/2019 AND
WRITTEN INFORMATION DATED 20.11.2019 REGISTERED BY
RESPONDENT NO.1 POLICE FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 406, 409, 420, 34 OF IPC AGAINST THE
PETITIONER WHO IS ARRAYED AS ACCUSED NO.1 PENDING ON
THE FILE OF THE LEARNED ADDITIONAL CIVIL JUDGE (SR.DN)
AND JMFC, JLB ROAD, MYSURU VIDE ANNEXURE-A AND B.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 30.03.2021, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                            ORDER

This petition is filed under Section 482 of Cr.P.C, praying

this Court to quash the FIR in Crime No.54/2019 and written

information dated 20.11.2019 registered by respondent No.1

police for the offences punishable under Sections 406, 409, 420

read with Section 34 of IPC against the petitioner who is

arraigned as accused No.1 pending on the file of the learned

Additional Civil Judge (Sr.Dn.) and JMFC, JLB Road, Mysuru and

grant such other reliefs.

2. The factual matrix of the case is that respondent

No.2 had lodged the complaint with the police on 20.11.2019

against this petitioner and other concerned former Vice

Chancellors of Karnataka State Open University, Mysuru and

various Academic Collaborative Institutions and their Study

Centres for having committed grave error in entering into MOUs

with private persons, etc. permitting them to admit the students

to various courses without seeking legal opinion from the

Government. It is alleged in the complaint that pursuant to the

directions of the Hon'ble Governor and the Chancellor of the

Universities i.e., communication from the Hon'ble Governor and

Chancellor of the University under Section 8(8) of the Karnataka

State Open University Act, 1992, the complainant was directed

to file the complaint. It is also alleged in the complaint that One

Man Committee was also constituted to enquire into the

irregularities and submitted the report right from the tenure of

this petitioner and in the report pointed out the committing of

the grave error by entering into MOUs with many private

persons. The specific allegation against this petitioner is that

from the year 2007, the KSOU started entering into MOUs with

private educational institutions beyond the territory of State of

Karnataka. But, the recognition accorded to the University does

not specifically refer to or say anything regarding the courses

offered by KSOU through Collaborative Institutes. Based on the

complaint, Crime No.54/2019 has been registered for the above

offences.

3. The learned Senior Counsel appearing for the

petitioner in his arguments vehemently contend that this

petitioner was appointed as Vice Chancellor for the period from

2003 to 2007 and only two MOUs are entered during the tenure

of this petitioner. The learned counsel would contend that the

opinion of the Additional Solicitor General of India was also taken

and the opinion is clear that the petitioner has not committed

any offence as alleged and it is pointed out that the One Man

Committee report observed that there was an ambiguity in the

law. The learned counsel would contend that the Governor's

direction does not pertain to the MOU entered into by this

petitioner. The learned counsel would contend that the UGC

permission was withdrawn in 2014 and the petitioner who has

discharged duties as Vice Chancellor, is now aged about 76

years. The complaint averments do not attract any of the

ingredients of the offences which have been invoked against the

petitioner.

4. The learned counsel in support of his arguments

relied upon the judgment of the Apex Court in the case of

COMMON CAUSE, A REGISTERED SOCIETY v. UNION OF

INDIA AND OTHERS reported in (1999) 6 SCC 667 and

brought to the notice of this Court paragraph No.168 of the

judgment wherein it is held that a trust contemplated by Section

405 would arise only when there is an entrustment of property

or dominion over property. There has, therefore, to be a

property belonging to someone which is entrusted to the person

accused of the offence under Section 405. The entrustment of

property creates a trust which is only an obligation annexed to

the ownership of the property and arises out of a confidence

reposed and accepted by the owner. The learned counsel also

brought to the notice of this Court that the Apex Court discussed

in detail in paragraph Nos.168 to 170 the judgment of the Apex

Court in the case of Rashmi Kumar v. Mahesh Kumar Bhada

with regard to the essential ingredients for establishing the

offence of criminal breach of trust, as defined in Section 405 and

also referred the judgment in the case of Pratibha Rani v.

Suraj Kumar. In the case of Chelloor Mankkal Narayan

Ittiravi Nambudiri v. State of Travancore-Cochin, it is held

that every breach of trust in the absence of mens rea or

dishonest intention cannot legally justify a criminal prosecution.

5. The learned counsel referring this judgment would

contend that in the case on hand, there is no any mens rea or

dishonest intention and MOU was entered without any mens rea

or dishonest intention and the present petitioner was the first

Vice Chancellor who entered into the MOU and only two MOUs

are entered into during the tenure of this petitioner. Hence, the

ingredients of the offences under Sections 405 or 409 of IPC

does not attract in the case on hand. The petitioner has

exercised the power within her domain as she was the first Vice

Chancellor and the direction given by the Governor is not in

respect of this issue. Hence, it requires interference of this

Court.

6. Per contra, the learned counsel for respondent No.2

would vehemently contend that MOU was entered into without

any support of the statute and there was no any basis to enter

into the MOU. The opinion given by the Additional Solicitor

General of India is not helpful to the petitioner. The learned

counsel would contend that the petitioner is not disputing the

fact that she has entered into MOU and further contend that as

this petitioner entered into MOU, the same was continued from

the other Vice Chancellors subsequent to the present petitioner.

The One Man Committee constituted by the Governor has also

submitted the report regarding violation of the powers vested

with the petitioner herein. Hence, there cannot be any quashing

of the proceedings against the petitioner.

7. Having heard the learned counsel for the petitioner

and the learned counsel for respondent No.2, this Court has to

consider the allegations made in the complaint. The relief

sought in this petition is to quash the FIR. The Apex Court in the

judgment in the case of DINESHBHAI CHANDUBHAI PATEL v.

THE STATE OF GUJARAT reported in 2018 (3) SCC 104 has

held that once the FIR prima facie discloses the committing of an

offence, the Court should not invoke Section 482 of Cr.P.C. It is

further observed that the High Court should not venture to

interfere with the domain of the Investigating Officer and also

should not collect the evidence as an Appellate Court. The

Investigating Officer has to probe and unearth the crime. In

view of the principles laid down in the judgment referred supra,

this Court has to look into the averments made in the complaint.

8. On perusal of the complaint dated 20.11.2019 which

is annexed as Annexure-B, specific allegation is made against

this petitioner and other concerned Former Vice Chancellors of

the Karnataka State Open University. In paragraph No.3 of the

complaint, specific allegation is made that the University right

from the tenure of Prof. K. Sudha Rao, the then Vice Chancellor

and to date, committed a grave error in entering into the MOUs

with many private persons, firms, societies, trusts, Private

Limited Companies, etc., permitting them to admit students to

various courses without seeking legal opinion from the State

Government. The serious allegation against the KSOU is that it

entered into MOUs with private institutions beyond the

jurisdiction of the State of Karnataka and that it has admitted

students to various technical, para medical and online

programmes, contrary to the provisions of the Act,

guidelines/instructions issued by the Human Resource

Development (MHRD), DEB, UGC, regulatory bodies such as

AICTE, MCI, etc.

9. It is also an allegation in the complaint that One Man

Fact Finding report also points out that during the tenure of this

petitioner i.e. from 26.06.2003 to 25.06.2007, this petitioner

started entering into MOUs, with private institution, situated at

Hyderabad and New Delhi. It is also an allegation in the

complaint that sub-section(2) of Section 1 of the KSOU Act,

1992, restricts its jurisdiction to the whole of the State of

Karnataka. Therefore, there cannot be any provision in the

KSOU Act, 1992, contrary to Section 1(2) of KSOU Act, 1992. It

is also alleged in the complaint that the legal opinion given by

the Additional Solicitor General of India is neither binding on the

University nor on the State Government. If the University had

any doubt relating to the provisions of the KSOU Act, it should

have approached the State Law Department, through its Head of

the Department, namely the Principal Secretary in Higher

Education Department of the State Government, for legal

opinion, but it has not done so.

10. Having perused the complaint, specific allegation is

made against this petitioner with regard to entering into MOUs

and the enactment restricts the jurisdiction and the petitioner is

not disputing the fact that she has entered into MOU twice

during her tenure. When there is a Fact Finding Committee

report available and interdicted and also when the direction was

given by the Governor to look into the violations and take

appropriate action, based on the direction, the complaint is

given. Having perused the material on record, there is a prima

facie material to investigate the matter and I have already

pointed out that the Apex Court in the judgment in the case of

Dineshbhai Chandubhai Patel (supra), categorically says that

the High Court should not venture to come in the way of

investigation when the complaint prima facie discloses

committing of the offence. No doubt, the learned counsel for the

petitioner brought to the notice of this Court the judgment in the

case of Common Cause (supra), wherein interpretation was

given with regard to Section 405 entrustment of the property

and here the question before this Court is with regard to

entrustment of power to the Vice Chancellor and the Vice

Chancellor entering into MOU without any basis as alleged in the

complaint. The allegation in the complaint is that without having

any power to enter into MOU outside the jurisdiction of the

State, an agreement was entered in providing the distant

education collaborative with other institutions. When such being

the allegations made in the complaint, the matter has to be

probed and crime has to be unearthed. Hence, I do not find any

substance in the contention of the learned counsel for the

petitioner that this Court has to invoke Section 482 of Cr.P.C.

and quash the proceedings initiated against the petitioner. If it

is exercised, it amounts to premature and coming in the way of

domain of the Investigating Officer. I have already pointed out

that in the complaint, specific allegations are made against this

petitioner and entering into the MOU is commenced from the

tenure of this petitioner. I have already pointed out that two

MOUs are entered into by this petitioner during her tenure and

the same has not been disputed. The allegation is made against

the petitioner that the said MOUs are entered into in violation of

the Act and the same is not permissible under the Act and the

same has to be probed.

11. In view of the discussions made above, I pass the

following:

ORDER

(i) The petition is dismissed.

(ii) However, liberty is given to the petitioner to approach this Court after filing of the final report, if need arises.

Sd/-

JUDGE MD