Madhya Pradesh High Court
Dr. Ajay Goenka vs Central Bureau Of Investigation on 21 February, 2024
Author: Rohit Arya
Bench: Rohit Arya
(1)
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
M.Cr.C. No. 39055/2021
BETWEEN :-
DR. AJAY GOENKA S/O SHRI S3.P.GOENKA,
AGED ABOUT 57 YEARS, OCCUPATION :
DOCTOR, R/O 11, PROFESSOR'S COLONY,
BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AJAY GUPTA - SENIOR ADVOCATE WITH SHRI
SANJAY SHUKLA, SHRI ISHAN PRADEEP AND SHRI DEVRAJ
DIXIT - ADVOCATES)
AND
CENTRAL BUREAU OF INVESTIGATION, B-
1, PROFESSOR'S COLONY, BHOPAL
(MADHYA PRADESH) - 462001
....... RESPONDENT
(BY SHRI RAJU SHARMA AND SHRI AVINASH SHARMA -
ADVOCATES)
--------------------------------------------------------------------------------------
Reserved on : 12/02/2024
Delivered on : 21/02/2024
(2)
This petition coming on for hearing this day, Hon'ble Shri
Justice Rohit Arya passed the following:
JUDGMENT
This petition, under section 482 of the Cr.P.C., is filed seeking
quashment of charge-sheet filed by the CBI in FIR No.
RC2172015S0009 registered at CBI Bhopal against the petitioner, as
well as, annulment of order dated 7/1/2021 passed by IV Additional
Sessions Judge, Gwalior designated as Special Judge (CBI) in Special
Sessions Trial No. 1/2021, whereby cognizance has been taken against
the petitioner for the offences punishable under sections 120B read
with 201, 204, 408, 419, 420, 468, 471, 477A of the IPC, Sections
13(1)(d) and 13(2) of the Prevention of Corruption Act and section 4/3-
D(1)(2) of the Madhya Pradesh Pareeksha Adhiniyam.
2. Relevant facts leading to filing of this case may be summarized
thus:
(i) A written complaint was received at Police Station Jhansi
Road, Gwalior made by one Ashish Kumar Chaturvedi with regard to
alleged irregularities being committed in the Pre Medical Test
Examination 2011 and its counselling sessions, mentioning therein that
he had been instrumental in unearthing this scam since long and in the
process had met a medical student of 2010 batch of G.R. Medical
College, Gwalior namely Jai Pakash Baghel at PMT 2011 counselling
session, who had come to get his, as well as that of some of his friends'
candidature cancelled. Medical Student J.P.Baghel informed the
complainant that he had been asked by his old friend Savendra Jadon to
re-appear in PMT 2011 examination and get his candidature cancelled
after getting a seat allotted in Private Medical College through
counselling, as it would result in blocking of the said seat which would
ultimately get transferred to payment quota thus benefitting the private
Institution, and in lieu whereof he and Sabendra Jadon would receive
substantial consideration from the concerned Private College. In
pursuance of said set-up for participating in the counselling, J.P.Baghel
obtained his original documents through Parmanand Wadhwa,Clerk at
G.R.Medical College on payment of illegal gratification of Rs.35,000/-
and thereafter got a seat allotted at Chirayu Medical College, Bhopal
and subsequently got the same cancelled on receiving a sum of
Rs.1,25,000/- from Chirayu Medical College, while an equal amount
was also received by Savendra Jadon. It is further alleged therein that
information as to complicity of students in such scam was well within
the knowledge of clerks of Medical Colleges including G.R.Medical
College and the entire conspiracy was hatched in collusion with Private
Medical Colleges. On receiving such complaint, offence was registered
as Crime No.271/2014 on 7/7/2014 at Police Station Jhansi Road,
Gwalior.
(ii) However, the investigation of the said case was transferred by
STF to CBI in pursuance of order dated 9/7/2015 passed by Hon'ble
Supreme Court in W.P. (Civil) No. 417/2015 (Digvijay Singh and
Others Vs. State of M.P.) and connected matters, treating it to be a
Vyapam Scam Case. Pursuant to transfer of the aforesaid FIR of P.S.
Jhansi Road, Gwalior, CBI registered FIR No. RC2172015S0009. After
investigation supplementary charge-sheet was filed by the CBI before
the learned Court below on 17/01/2021
(iii) On 7/1/2021, the learned trial Court passed the impugned order
accepting the charge-sheet and taking cognizance against the petitioner
and other accused persons. Hence, this petition.
3. Assailing the legality, validity and propriety of the impugned
order, learned Senior Counsel made the following submissions:--
(a) Allegations as levelled in the FIR, if taken in their entirety, relate
to alleged irregularity being committed by Private Medical Colleges in
granting admissions. The petitioner had no role to play, nor was
remotely connected with granting admissions in Chirayu Medical
College. In this regard, learned Senior Counsel referred to Rule 10 of
the Madhya Pradesh Medical Tatha Dental Snatak Pravesh Pareeksha
Niyam, 2011 (for short the "Rules of 2011") which reads thus:-
"10- izos'k & vH;FkhZ] dkmalfyax }kjk ikB~;dze ,oa egkfo?kky;
esa izos'k ds i'pkr~] vf/klwfpr fnukad ,oa le; ij lacaf/kr
egkfo?kky; ds vf/k"Bkrk@izkpk;Z dks viuh mifLFkfr dh lwpuk
nsxk A
10-1 egkfo?kky; dh izos'k lfefr esa vf/k"Bkrk@izkpk;Z] nks
izk/;kid rFkk de ls de nks vkjf{kr izoxksZa ds fpfdRlk f'k{kd
jgsaxs A ;g lfefr ewy nLrkostksa dk lR;kiu Hkh djsxh rFkk ikrz
ik;s tkus ij vH;FkhZ dks vkoafVr ikB~;dze ,oa egkfo?kky; esa
izos'k nsxh A"
Thus, an Admission Committee was required to be constituted in
pursuance of the above rule; responsible for granting admissions,
comprising of Dean/Principal, two professors and at least two Medical
Teachers of reserved category. The petitioner fell in none of the above
categories and was only a Secretary of Society viz. Chirayu Charitable
Foundation; a non profit earning Society engaged in social welfare and
public service. The Society runs many Institutes viz. Chirayu Medical
College and Hospital, Chirayu Nursing College, Chirayu Paramedical
Institute, Chirayu Cancer Hospital etc. Thus Chirayu Medical College
and Hospital is one of the many units of Chirayu Charitable
Foundation. The Society and its representative only looked after the
developmental activities, expansion, modernization, setting-up of
new/additional units and taking loans etc from bank to look after court
cases relating to allotment of land, pollution and other policy matters.
He has never been a Dean, neither a member of Admission Committee
nor involved into the admission processes at Chirayu Medical College
& Hospital in 2011. The day-to-day activities of admission, teaching in
college, running of hospital, hostel etc. are the responsibility of the
Dean and his team at every unit separately. To buttress his submissions,
learned Senior Counsel referred to the Resolution (Annexure P/8) of
the Society dated 7/7/2011, relevant portion whereof reads thus:-
"lHkk esa v/;{k }kjk ;g izLrko j[kk x;k fd laLFkk }kjk
lapkfyr fpjk;q esfZMdy dkyst ,oa vLirky ds lqpk: lapkyu
O;oLFkk ds laca/k esa laLFkk lfpo MkW0 vt; xks;udk dks laLFkk dh
vksj ls iw.kZ vf/kdkj nsrs gq, vf/kd`r fd;k tk,s ,oa esfMdy
dkWyst esa f'k{k.k O;oLFkk gsrq iz'kklfud ,oa izos'k funs'kd Jh
fxjh'k dkfuVdj ,oa dkWyst Mhu dks vf/kd`r fd;k tk,s fd os
esfMdy dkWyst esa izos'k ds fy;s 'kklu }kjk cuk;s x, fu;eksa dk
l[rh ls ikyu djrs gq, izos'k nsus dh izfdz;k dk lapkyu djsa A
fu;eksa dh vuns[kh gksus ij funs'kd] iz'kklfud ,oa izos'k Jh fxjh"k
dkfuVdj ,oa dkWyst Mhu oS/kkfud :i ls iw.kZr% ftEesnkj ,oa
tokcnkj gksaxs A"
(Emphasis supplied)
Thus, by virtue of the above resolution, it was not the petitioner who
was responsible for admissions, but Shri Girish Kanetkar and the Dean
of the College. Pursuant to the resolution, Dean, Chirayu Medical
College passed the order dated 4/8/2011 consituting Admission
Committee with Dr.Jitendra Kain as Chairman and Dr. Ravi Saxena,
Dr. Sushil Gour and Dr. A.K.Jain as members.
(b) As such, the appellant could not have been held responsible for
admission making process. Besides, he could also not have been made
vicariously liable, inasmuch as there is no room for vicarious liability
in criminal offences unless specifically provided by the legislation like
Negotiable Instruments Act, 1882, Drugs and Cosmetic Act, CGST Act
etc. There is no provision of vicarious liability in Indian Penal Code,
Prevention of Corruption Act or even in M.P. Registered Examination
Act. For this, learned counsel placed reliance on decisions of the Apex
Court in Maksud Saiyed Vs. State of Gujarat ((2008)5 SCC 668),
Sunil Bharti Mittal Vs. Central Bureau of Investigation ((2015)4
SCC 609) followed in Shiv Kumar Jatia Vs. State of NCT of Delhi
((2019)7 SCC 193) and Ravindranath Bajpe Vs. Mangalore Special
Economic Zone Ltd. And Others (2021 SCC OnLine SC 806) .
(c) That apart, even the petitioner could not have been roped in with
the aid of S.120B of the IPC as the ingredients of the offence of
criminal conspiracy are that there should be an agreement between the
persons who are alleged to conspire and the said agreement should be
for doing of an illegal act. In other words, the essence of criminal
conspiracy is an agreement to do an illegal act and such an agreement
can be proved by direct or circumstantial evidence. In the case in hand,
there is nothing in the chargesheet filed by the CBI as against the
present petitioner to infer that he was a party to agreement of such
nature. There is no document establishing proximity or complicity of
the petitioner. Petitioner's name has appeared in statements of only four
witnesses viz. PW34, PW40, PW47 and PW48 out of 97 prosecution
witnesses, but none of them have stated anything to connect the
petitioner with the alleged crime. PW34 Gagan Katare has only said -
"On being asked I state that I joined Chirayu
Medical College (CMC), Bhopal as Manager since 2011. I
look after the maintenance and smooth functioning of
Chirayu Medical College. I work under the Dean, Chirayu
Medical College, Dr. Ajay Goenka is the owner (Secretary
and Managing Trustee) of the College and Sh. Ravi Saxena
is the Dean presently......".
PW 40 Vaibhav Aggarwal made the following statement under
section 161, Cr.P.C. on 27/9/2017 about the petitioner Dr. Ajay Goenka
as under:-
"...... I further state that Dr. Ajay Goenka was
authorized to look after all the affairs pertaining to smooth
running of Chirayu Medical College and Hospital vide
Minutes of Meeting dated 07/07/2011. All the Office
bearers of Chirayu Charitable Foundation were present
during the meeting. In order to implement rules and
regulations during admissions of the candidates in the
college Sh. Girish Kanitkar and Dean of the College were
authorized......."
PW47 Mahendra Sharma has made the following statement
under S.161 of Cr.P.C. on 24/8/2017 about the petitioner Dr. Ajay
Golenka :
"I am as above on being asked it is stated that I
joined Chirayu Medical College in June 2010 as Cook/Tea
Maker. In the year 2010 Chirayu Medical College,
Bairagah was under construction. I met Dr. Ajay Goenka in
his office at CMCH, Bairagarh and requested for job in the
College. He enquired about my qualification and
experience. I informed him that I can prepare tea and also
have experience in cooking. He allowed me to join CMCH
and since then I am working in the College. Presently, I am
getting Rs.7000/- per month as salary from the
College......"
PW48 Pankaj Kumar Dubey made the following statement under
section 161 Cr.P.C. on 24/8/2017:
"I am as above on being asked I state that I joined
Chirayu Medical College in April 2010 as Accountant. In
the year 2010 Chirayu Medical College, Bairagarh was
under construction. I met Dr. Ajay Goenka in his office at
CMC, Bairagarh and requested for a job in the college. He
enquired about my qualification and experience. He sent
me to HR section and I was allowed to join CMC as
accountant and since then I am working as such. Presently
I am getting Rs.20,000/- per month as salary from the
College....."
A bare perusal of the above statements reflect that the same are
innocuous in nature and in no way link the petitioner with the
admission making process. Hiring a cook or an accountant is only in
line with the resolution for smooth running of the college and in no
way makes him liable for the admissions made, for which the
Admission Committee was responsible. Thus neither by direct
evidence nor by circumstantial evience, the CBI has been able to bring
home any ingredient of agreement against the petitioner.
(d) The last day admissions granted by the College were the need of
the hour and not an illegality, much less a scam as alleged by the CBI,
since medical seats cannot be allowed to go vacant as it would amount
to national waste of resources as held by Hon'ble Supreme Court in
catena of decisions including Index Medical College Vs. State of M.P.
(Civil Appeal No. 867 of 2021). Indeed in the Rules of 2011, there was
no provision for dealing with the situation as to what is to be done if
after all rounds of counselling the seats still remain vacant. Thus, in
absence of any specific provision, the College/Institute was in its right
to grant admission to the eligible candidates who had appeared in PMT.
In fact there are three government/statutory agencies which are
involved in the admission process - (i) VYAPAM which is responsible
for conducing entrance test and declaration of result; (ii) Director
Medical Education which is responsible for conducting counselling and
allotment of seats in various Medical Colleges and (iii) The Admission
and Fee Regulatory Committee (AFRC), a Supreme Court mandated
committee constituted under the statute which is responsible to
regulate the admission process. As per the directions of the Hon'ble
Supreme Court 30th September is the last date for granting Medical
admissions. After each counselling session, the vacant seats are
reported to the DME. However, even after last round of counselling,
some of the students take admission but do not report for variety of
reasons. The report about such students is sent to the DME, but as there
is no time left for conducting next counselling session by the DME,
College Level Counselling is conducted by the Colleges since the seats
cannot be allowed to go vacant. This has been an age-old practice and
if there is any irregularity in the such College Level Counselling, the
same can always be checked by the AFRC - the body responsible for
regulating Admissions including taking of fees/capitation fees by
Colleges. In the instant case, the AFRC did not object to any of the
admissions granted in College Level Counselling by the Chirayu
Medical College. As such, granting admissions in College Level
Counselling could not have been frowned upon by the CBI.
(e) In view of the above, it can safely be said that the learned Special
Judge has mechanically taken cognizance against the petitioner without
applying his mind. While referring to decision in the case of Pepsi
Foods Ltd. and another Vs. Special Judicial Magistrate and others
((1998)5 SCC 749), learned counsel further contended that summoning
of an accused in a criminal case is a serious matter. Criminal law
cannot be set into motion as a matter of course. 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. Further,
relying on a decision of the Apex Court in the case of Anand Kumar
Mohatta & Anr. Vs. State (NCT of Delhi) Department of Home &
Anr. ((2019)11 SCC 706) recently followed in C.V.K.Balakrishnan &
Anr. Vs. The State of Tamil Nadu & Anr (Special Leave Petition
(Crl.) No. 1733/2023), learned Senior Counsel submitted that powers
under section 482 of the Cr.P.C. can be exercised even at an advance
stage as abuse of process caused by FIR stands aggravated if the FIR
has taken the form of a chargesheet after investigation. The power is
undoubtedly conferred to prevent abuse of process of power of any
Court. Further, relying on the decision in the case of P.N.Poddar Vs.
State of Maharashtra and Others ((2007)15 SCC 705), learned
counsel contended that discharge can be sought even after filing of
charge-sheet and in the instant case relegating the petitioner to face trial
upon unfounded allegations, that too after 12 years of the incident in
question when all the students have already completed their degrees
and are practicing or pursuing specialization/super specialization is an
abuse of process of Court and liable to be interfered with, particularly
when no specific role of the petitioner is discernable from the evidence
brought on record. To buttress his submissions that inherent powers
under S.482 of the Cr.P.C. can be exercised to quash the prosecution in
absence of any specific role ascribed to the petitioner, learned counsel
placed reliance on decision in the case of Chunduru Siva Ram
Krishna and Another Vs. Peddi Ravindra Babu and Another
((2009)11 SCC 203).
(f) The transfer of case by STF to CBI in purported compliance of
Apex Court's order dated 9/7/2015 (Supra) was uncalled for, inasmuch
as by the said order cases related to VYAPAM Scam were directed to
be transferred to CBI, whereas the instant case did not relate to
VYAPAM Scam. The role of VYAPAM ended after the results were
declared. Counselling/College-level counselling are not in the domain
of VYAPAM and hence the instant case did not fall within the
definition of VYAPAM Scam cases.
(g) In fact, Chirayu Medical College has been singled out, while the
age old practice of giving last day admissions was there in all the
private medical colleges in Madhya Pradesh. In any case, it was for the
AFRC to object to any suspicious admission, but in the instant case no
such objection has ever been taken by the AFRC.
With the aforesaid submissions, the order impugned has been
sought to be annulled.
4. Per contra, Shri Raju Sharma, while referring to the reply filed
by the CBI made the following submissions:-
(a) So far as objection to jurisdiction of CBI to take-up this
case is concerned, the same has already been decided by a co-ordinate
Bench of this Court at the Principal Seat in M.Cr.C. No.26749/2017
(S.N. Vijaywargiya Vs. Central Bureau of Investigation); a petition u/s
482 challenging the order taking cognizance, wherein it has been
categorically held in paragraph 16 that illegalities in the process of
examination of VYAPAM were for admission only, therefore, the
VYAPAM scam starts from examination process and ends with the
admissions. Therefore, the CBI is competent to investigate the offences
relating to admissions of the candidates by the private medical colleges.
(b) The instant case relates to incorrect reporting of vacancies
by Chirayu Medical College after each round of PMT counselling. In
private medical colleges, 15% seats are allotted towards NRI quota and
out of remaining 85% seats, 50% seats are to be filled-up through PMT
Counselling while remaining 50% seats are to be filled-up by private
medical colleges. In no case, the private medical colleges can traverse
beyond their allocated quota of 50% seats. As a matter of practice,
candidates appearing in each round of PMT counselling are allocated
particular colleges and a date by which they have to take admission in
that college. If by that date the said student(s) has/have not taken
admission, the College is under obligation to report the vacancy to the
Director of Medical Education (DME). In the instant case, incorrect
number of vacancies have been reported by Chirayu Medical College
after each round of counselling. While referring to page 209 of the
charge-sheet, learned counsel submitted that out of 63 seats allocated to
Chirayu Medical College, after 1st round of counselling, 12 vacancies
were reported by the College as against actual vacancy of 51; after
second counselling only 1 vacancy was reported as against actual
vacancy of 48 and after third counselling no vacancy was reported as
against actual vacancy of 47 seats.
(c) In fact the petitioner is not only the Secretary but also the
CMD of Chirayu Medical College and hence he cannot wash his hands
of his liability. Out of 47 students who were allotted Chirayu Medical
College by Counselling Committee of MPPMT-2011 and vacated the
seats, learned counsel submitted that five candidates have been made
accused in the present case as they were already pursuing their studies
in Government Medical Colleges. The remaining candidates who did
not take admission, re-appeared in the next year and got admissions in
Govt. Medical Colleges. They were not made accused as they were not
found to be involved in any conspiracy. He further submitted that
during investigation it surfaced that DME and Joint DME were well
aware of incorrect reporting of vacant seats and hence they have also
been made accused in the case. Besides, the list of candidates admitted
in Chirayu Medical College in the academic session 2011-2012 was not
submitted to AFRC.
5. In response, learned counsel for the petitioner submitted that 57
candidates were allotted seat in Chirayu Medical College but it is false
allegation that college hid the exact vacancy position of 51 seats for the
second counselling. As of the first counselling, the date was 30/08/2011
and that of second counselling, the reporting was to be done on
27/09/2011. On 29/09/2011, the candidates allotted were not prepared
with their original documents and fees. Time was given to them up to 5
PM of 29/09/2011. As all the candidates who had taken time for the
submission of fees and documents did not report, it resulted in
vacancies on the last but one day of the admission and the matter was
reported to DME and AFRC and thereafter college level counselling
was started. While denying that petitioner was CMD of the College,
learned counsel submitted that he was merely Secretary of the Society
and as per resolution dated 7/7/2011, he was not authorized for making
admissions in Chirayu Medical College but was authorized on the
behalf of Society to take decisions in respect of legal matters and
infrastructure development of various institutes being run by the
society. Further, respondent/CBI has not been able to point out even a
single document executed by the petitioner or a single decision taken
by the petitioner regarding any stage or step of procedure involved in
granting admissions to the students in 2011 in Chirayu Medical
College. Respondent has not been able to point out any circumstance
or document that how the petitioner acted in conspiracy with anyone.
Refuting the contention that AFRC did not receive the list of
candidates, learned counsel while referring to Annexure P/18 submitted
that the list of students admitted was submitted to the Director Medical
Education, as well as, the AFRC between 3 rd and 6th October, 2011 and
also on 30/11/2011.
6. Heard learned counsel for the parties.
7. Before adverting to the rival contentions touching the merits of
the case, it would be expedient to recapitulate the law as regards taking
cognizance and framing of charges in criminal matters.
8. S.227 of the Cr.P.C. deals with discharge and provides that i f,
upon consideration of the record of the case and the documents
submitted therewith, and after hearing the submissions of the accused
and the prosecution in this behalf, the Judge considers that there is not
sufficient ground for proceeding against the accused, he shall discharge
the accused and record his reasons for so doing.
Further, S.228 provides that if, after such consideration and
hearing, the Judge is of opinion that there is ground for presuming that
t as aforesaid he accused has committed an offence, he may proceed for
framing of charge.
Thus, for framing the charge, after hearing the accused, the
Court should have sufficient material against the accused for
presuming that he has committed the offence. In State of
Karanataka Vs. L.Muniswamy ((1977)2 SCC 699), a three-
Judge Bench of the Apex Court had observed that at the stage of
framing the charge, the Court has to apply its mind to the question
whether or not there is any ground for presuming the commission of
the offence by the accused. As framing of charge affects a person's
liberty substantially, need for proper consideration of material
warranting such order was emphasized.
It is well settled that the nature of evaluation to be made by the
court at the stage of framing of the charge is to test the existence of
prima-facie case. At the stage of framing of charge, the court has to
form a presumptive opinion as to the existence of factual ingredients
constituting the offence alleged and it is not expected to go deep into
probative value of the material on record and to check whether the
material on record would certainly lead to conviction at the conclusion
of trial (State of Maharashtra Vs. Som Nath Thapa (1996) 4
SCC 659 and the State of MP Vs. Mohan Lal Soni (2000) 6 SCC
338, referred to). The Apex Court in the case of Union of India Vs.
Prafull Kumar Sama ((1979)3 SCC 4), in this behalf, held as
under:-
"10. Thus, on consideration of the authorities mentioned
above, the following principles emerge;
(1) That the Judge while considering the question
of framing the charges under Section 227 of the Code has
undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie
case against the accused has been made out.
(2) Where the materials placed before the court
disclose grave suspicion against the accused which has not
been properly explained the court will be fully justified in
framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By and
large however if two views are equally possible and the
Judge is satisfied that the evidence produced before him
while giving rise to some suspicion but not grave suspicion
against the accused, he will be fully within his right to
discharge the accused.
(4) That in exercising his jurisdiction under
Section 227 of the Code the Judge under the present Code
is a senior and experienced Judge cannot act merely as a
post office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the total effect
of the evidence and the documents produced before the
court, any basic infirmities appearing in the case and so on.
This however does not mean that the Judge should make a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial."
In the case of State of M.P. Vs. S.B.Johari ((2000)2 SCC
57)
"4. In our view, it is apparent that the entire approach of
the High Court is illegal and erroneous. From the reasons
recorded by the High Court, it appears that instead of
considering the prima facie case, the High Court has
appreciated and weighed the materials on record for
coming to the conclusion that charge against the
respondents could not have been framed. It is settled law
that at the stage of framing the charge, the Court has to
prima facie consider whether there is sufficient ground for
proceeding against the accused. The Court is not required
to appreciate the evidence and arrive at the conclusion that
the materials produced are sufficient or not for convicting
the accused. If the Court is satisfied that a prima facie case
is made out for proceeding further then a charge has to be
framed. The charge can be quashed if the evidence which
the prosecutor proposes to adduce to prove the guilt of the
accused, even if fully accepted before it is challenged by
cross examination or rebutted by defence evidence, if any,
cannot show that the accused committed the particular
offence. In such case, there would be no sufficient ground
for proceeding with the trial. In Niranjan Singh Karam
Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and Others
etc. reported in (1990) 4 SCC 76, after considering the
provisions of Sections 227 and 228, Cr.P.C., Court posed a
question, whether at the stage of framing the charge, trial
court should marshal the materials on the record of the case
as he would do on the conclusion of the trial? The Court
held that at the stage of framing the charge inquiry must
necessarily be limited to deciding if the facts emerging
from such materials constitute the offence with which the
accused could be charged. The Court may peruse the
records for that limited purpose, but it is not required to
marshal it with a view to decide the reliability thereof. The
Court referred to earlier decisions in State of Bihar v.
Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla
Kumar Samal (1979) 3 SCC 4 and Supdt. &
Remembrancer of Legal Affairs, West Bengal v. Anil
Kumar Bhunja (1979) 4 SCC 274, and held thus: -
"From the above discussion it seems well settled that at
the Sections 227-228 stage the court is required to
evaluate the material and documents on record with a
view to finding out if the facts emerging therefrom
taken at their face value disclose the existence of all the
ingredients constituting the alleged offence. The court
may for this limited purpose sift the evidence as it
cannot be expected even at the initial stage to accept all
that the prosecution states as gospel truth even if it is
opposed to common sense or the broad probabilities of
the case."
(Emphasis supplied)
Recently, in the case of Ravindranath Baje Vs. Mangalore
Special Economic Zone Ltd. And Others ((2021 SCC OnLine SC
806), the Apex Court reiterated with approval the observations made in
Pepsi Foods Ltd. Vs. Special Judicial Magistrate ((1998)5 SCC 749)
as infra :
26. As observed by this Court in the case of Pepsi
Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC
749 and even thereafter in catena of decisions,
summoning of an accused in a criminal case is a serious
matter. Criminal Law cannot be set into motion as a
matter of course. In paragraph 28 in Pepsi Foods
Limited (supra), it is observed and held as under:
"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."
9. In the context of controversy in hand, Madhya Pradesh Niji
Vyavasayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka
Nirdharan) Adhinyam, 2007 assume importance; published in the
Official Gazette dated 4th August, 2007. Chapter II of the said Rules
contemplate constitution of Admission and Fee Regulatory Committee
("AFRC" for short). Rule 4(2) provides that the Committe shall be
presided by a Chairperson who has been a Vice-Chancellor of a Central
University or a State University or an institution deemed to be
University or a senior administrative officer not below the rank of
Principal Secretary to the State Government or Joint Secretary to the
Government of India and shall include four other members having
expertise in the matters of finance, administration of law, technical
education and medical education. Rule 4(9) confers exclusive
jurisdiction upon the Committee in the following terms:-
"9. The Committee may hear complaints with regards to
admission in contravention of the provisions contained herein,
collecting of capitation fee or fee in excess or fee determined
or profiteering by any institution, and if the Committee after
enquiry finds that there has been any violation of the
provisions for admission on the part of the unaided
professional colleges or institution, it shall make appropriate
recommendations for returning any excess amount collected to
the person concerned, and also recommend to the Government
for imposing a fine upto rupees ten lakhs, and the Government
may on receipt of such recommendation, fix the fine and
collect the same in the case of each such violation or decide
any other course of action as it deem fit and the amount so
fixed together with interest thereon shall be recovered as if is
an arrear of land revenue, and the committee may also declare
admission made in respect of any or all seats in a particular
college or Institution to be dehors merit and therefore invalid
communicate the same to the concerned university, and on the
receipt of such communication, the University shall debar such
candidates from appearing in the examination and cancel the
results of the examination already appeared for."
(Emphasis supplied)
Thus ample powers have been provided under the statute to the
AFRC to examine the complaints regarding collection of capitation fee
or excess fee or profiteering by any Institution and the Committee can
also declare the said admissions dehors merit and debar such
candidates from appearing in the examination and also cancel the
results of the examination already appeared for. It is noteworthy that no
such action has been taken by the AFRC against the Institution or any
of the students for the Academic Year 2011 at any point of time.
10. This brings us to the pivotal question as to the role of the
petitioner in the admission process. The meeting of Management
Committee of Chirayu Charitable Foundation was held on 7/7/2011.
The Committee vide its resolution of the even date, specifically
authorized Shri Girish Kanitkar and College Dean to supervise the
process of granting admissions in Medical College in accordance with
the rules framed by the State while categorically making them liable for
legal repercussions in the event of deviation from the rules. At the same
time, the Committee authorized the present petitioner Dr. Ajay Goenka
to supervise legal and financial matters of all the units of Society, as
well as, to ensure smooth functioning of Chirayu Medical College and
Hospital. In pursuance of the said resolution, the Dean vide order
dated 4/8/2011 (Annexure P/5) constituted Admission Committee of
the Chirayu Medical College for the year 2011-2012 with Dr. Jitendra
Kain as Chairman and Dr. Ravi Saxena, Dr. Sushila Gour and Dr.
A.K.Jain as members. The said Admission Committee draws statutory
force from Rule 10.1 of the Rules of 2011, as quoted above.
11. From the resolution of the Society brought on record, as well as
the order of the Dean, as indicated above, it is apparent that the
petitioner, being Secretary of the Society with specific diverse role
other than managing admission process, cannot be held liable directly
for admission making process. At this juncture, it is to be seen whether
vicarious or joint liability can be saddled upon him in any way. In this
behalf the observations of Hon'ble Apex Court in Maksud Saiyed
(Supra) assume relevance viz;
"13. Where a jurisdiction is exercised on a complaint
petition filed in terms of Section 156(3) or Section
200 of the Code of Criminal Procedure, the Magistrate is
required to apply his mind. The Penal Code does not
contain any provision for attaching vicarious liability on
the part of the Managing Director or the Directors of the
Company when the accused is the Company. The learned
Magistrate failed to pose unto himself the correct
question viz. as to whether the complaint petition, even if
given face value and taken to be correct in its entirety,
would lead to the conclusion that the respondents herein
were personally liable for any offence. The Bank is a
body corporate. Vicarious liability of the Managing
Director and Director would arise provided any
provision exists in that behalf in the statute. Statutes
indisputably must contain provision fixing such vicarious
liabilities. Even for the said purpose, it is obligatory on
the part of the complainant to make requisite allegations
which would attract the provisions constituting vicarious
liability.
The Apex Court in Shiv Kumar Jatia Vs. State of NCT of Delhi
((2019)17 SCC 193), while referring to the decision in the cases of
Maksud Saiyed (Supra) and Sunil Bharti Mittal (Ibid), held thus:
"21. By applying the ratio laid down by this Court in
Sunil Bharti Mittal it is clear that an individual either as a
Director or a Managing Director or Chairman of the
company can be made an accused, along with the
company, only if there is sufficient material to prove his
active role coupled with the criminal intent. Further the
criminal intent alleged must have direct nexus with the
accused. Further in the case of Maksud Saiyed vs. State
of Gujarat & Ors. this Court has examined the vicarious
liability of Directors for the charges levelled against the
Company. In the aforesaid judgment this Court has held
that, the Penal Code does not contain any provision for
attaching vicarious liability on the part of the Managing
Director or the Directors of the Company, when the
accused is a Company. It is held that vicarious liability of
the Managing Director and Director would arise provided
any provision exists in that behalf in the Statute. It is
further held that Statutes indisputably must provide
fixing such vicarious liability. It is also held that, even for
the said purpose, it is obligatory on the part of the
complainant to make requisite allegations which would
attract the provisions constituting vicarious liability."
Similarly, in the case of Sushil Sethi Vs. Arunachal Pradesh ((2020)3
SCC 240), it has been held as under:-
"8.2. It is also required to be noted that the main
allegations can be said to be against the company. The
company has not been made a party. The allegations are
restricted to the Managing Director and the Director of the
company respectively. There are no specific allegations
against the Managing Director or even the Director. There
are no allegations to constitute the vicarious liability. In
the case of Maksud Saiyed v. State of Gujarat (2008) 5
SCC 668, it is observed and held by this Court that the
penal code does not contain any provision for attaching
vicarious liability on the part of the Managing Director or
the Directors of the company when the accused is the
company. It is further observed and held that the vicarious
liability of the Managing Director and Director would
arise provided any provision exists in that behalf in the
statute. It is further observed that statute indisputably must
contain provision fixing such vicarious liabilities. It is
further observed that even for the said purpose, it is
obligatory on the part of the complainant to make
requisite allegations which would attract the provisions
constituting vicarious liability. In the present case, there
are no such specific allegations against the appellants
being Managing Director or the Director of the company
respectively. Under the circumstances also, the impugned
criminal proceedings are required to be quashed and set
aside."
12. Thus, even if the argument of learned counsel for
respondent/CBI is accepted that petitioner was not the Secretary but
CMD of the College, then too he cannot be held vicariously liable in
terms of the aforesaid precedents. Moreover, learned counsel for the
respondent/CBI has not been able to point out any material to establish
proximity/link of the petitioner either with J.P.Baghel, Savendra Jadon
(the accused persons named in the FIR) or Middleman Pramod Sharma
who allegedly arranged the deal as per the charge-sheet filed by the
CBI or for that matter any other accused person/middleman. Learned
Special Court has taken cognizance against the petitioner for the
offences punishable under Ss. 120B read with 201, 204, 408, 419, 468,
471, 477 of the IPC, 13(1)(d) and 13(2) of the Prevention of Corruption
Act, 1988 and 4/3 D (1)(2) of the M.P Pareeksha Adhiniyam. It is trite
that essential ingredients to commit an offence of criminal conspiracy
is an agreement between two and more persons and the agreement
which is formed must be in relation to committing an illegal act or an
act done by illegal means. Surprisingly, learned counsel for the
respondent/CBI could not point out any material from record so as to
infer any agreement between the petitioner and the students or College
Management Committee or Admission Committee;statutory committee
to hire students for blocking seats in order to cause pecuniary gain to
the College/Society. What evidence/documents/electronic record have
been destroyed by the petitioner or which documents/electronic record
have been forged by him or which forged documents have been used
by him or which document has been cancelled/destroyed/defaced by
him so as to attract the provisions of Ss. 201, 204, 468, 471 and 477 of
the IPC is also not forthcoming. What property was entrusted to the
petitioner and how he committed criminal breach of trust so as to
attract the provisions of Ss.408 and 409, IPC is also not explained by
the learned counsel for respondent/CBI. Similarly no explanation has
been rendered with respect to the imputed provisions of PC Act and
Pareeksha Adhiniyam against the petitioner. The statements of PW34,
PW40, PW47 and PW48, quoted above, are not inculpatory as against
the petitioner. It is well settled that for taking cognizance there should
be grave suspicion against the accused leading to presumption.
Criminal liability being a strict liability, the material for harboring such
grave suspicion should be discernable from record, which is lacking in
the instant case as against the petitioner. It appears that the learned
Special Judge has mechanically taken cognizance against the petitioner
without applying his mind.
13. In fact, in the matter at hand, last day admissions and College
Level Counselling conducted by Chirayu Medical College are under
the lens. The thrust of the allegations in the instant case stem from an
FIR made by one Ashish Kumar Chaturvedi alleging that a Medical
Student J.P.Baghel had informed him that he had been offered to re-
appear in PMT 2011 examination and get his candidature cancelled
after getting a seat allotted in Private Medical College through
conselling, in order to benefit the private Institution. As discussed
above, the present petitioner had no role either in admission making
process or for that matter reporting the number of vacant seats to the
DME as the same were not his domain as per the resolution and order
of the Dean (Annexure P/5).
As a matter of fact, last day admissions and College level
counselling are not an irregularity but a needed practice as medical
seats being national resource cannot be allowed to go waste. In fact, the
controversy already stands settled by the decision of the Apex Court in
the case of Index Medical College, Hospital & Research Centre
(Supra). In that case, constitutional validity of Rule 12(8)(a) of the
Madhya Pradesh Chikitsa Shiksha Pravesh Niyam, 2018 was under
challenge. The said Rule provided as under:-
"(8) (a) The vacant seats as a result of allotted candidates
from MOP-UP round not taking admission or candidates
resigning from admitted seat shall not be included in the
college level counseling (CLC) being conducted after
MOP-UP round"
In this backdrop, while declaring the said Rule ultra vires, the Hon'ble
Apex Court held as under:-
"24. There is no doubt that the object with which Rule 12
(8) (a) is made is appropriate as malpractice by students in
the admission process should be curtailed. Rule 12 (7) (c)
provides that students who do not take admission after
issuance of an allotment letter will not be entitled to seek
refund of the advance admission fee of Rs.2 lakhs which
would stand forfeited automatically. According to Rule 12
(8) (b), those students who do not join after being allotted
a seat through mop-up round will automatically be
declared ineligible for the next round of counselling. They
will not be entitled for admission to any other
medical/dental colleges. Suitable steps are taken to prevent
such students from participating in the next round of
counselling, forfeiting the advance admission fee and
making them ineligible for admission in any medical
college. However, the medical colleges who have no part
to play in the manipulation as detailed above are penalised
by not being permitted to fill up all the seats. The measure
taken by the Government of proscribing the managements
from filling up those seats that fall vacant due to non-
joining of the candidates in mop-up round is an excessive
and unreasonable restriction.
25. The right to admit students which is a part of the
management's right to occupation under Article 19 (1) (g)
of the Constitution of India stands defeated by Rule 12 (8)
(a) as it prevents them from filling up all the seats in
medical courses. Upgradation and selection of subject of
study is pertinent only to postgraduate medical course. In
so far as undergraduate medical course is concerned, the
upgradation is restricted only to a better college. Not
filling up all the medical seats is not a solution to the
problem. Moreover, seats being kept vacant results in huge
financial loss to the management of the educational
institutions apart from being a national waste of resources.
Interest of the general public is not subserved by seats
being kept vacant. On the other hand, seats in recognised
medical colleges not being filled up is detrimental to
public interest. We are constrained to observe that the
policy of not permitting the managements from filling up
all the seats does not have any nexus with the object
sought to be achieved by Rule 12 (8) (a). The classification
of seats remaining vacant due to non-joining may be based
on intelligible differentia but it does not have any rational
connection with the object sought to be achieved by Rule
12 (8) (a). Applying the test of proportionality, we are of
the opinion that the restriction imposed by the Rule is
unreasonable. Ergo, Rule 12 (8)(a) is violative of Articles
14 and 19 (1) (g) of the Constitution."
(Emphasis supplied)
Thus, no illegality can be attached to the last-day admissions or
College-level counseling unertaken by a Private Medical College.
14. In view of the above, it can safely be said that the instant case
falls within categories (1) and (3) as enunciated in paragraph 102 of the
celebrated decision in the case of State of Haryana Vs. Bhajanlal
(1992 Supp (1) SCC 335) followed in catena of decisions, warranting
exercise of powers under section 482 of the Cr.P.C. for preventing
abuse of process of Court as infra:
"(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the
accused.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support of
the same do not disclose the commission of any offence and
make out a case against the accused"
Besides, interference u/s 482 Cr.P.C. is also warranted for want of
ingredients of the charges imputed against the petitioner as discussed
above (Abhishek Saxena Vs. State of Uttar Pradesh and another
(2023 SCC OnLine SC 1711), referred to).
15. At this juncture, another important facet of the matter cannot be
lost sight of. The admissions pertain to the year 2011 and about 12
years have passed by. The medical students who took admission in the
year 2011, pursued their studies for 5 years. During this period no
action was taken against them or the College by the AFRC which is a
statutory body to look into the matter despite registration of instant FIR
in the year 2014. Now today, much water has flown under the bridge.
Besides, now at a distance of time of more than 12 years, if petitioner
is forced to underto the orderal of trial, in the obtaining facts and
cirumstances of the case;on unfounded material as discussed above, in
fact and in effect would tantamount to travesty of justice. Hence, it is a
fit case warranting interference under section 482 of the Cr.P.C.
Consequently, the instant petition is allowed. The CBI charge-
sheet, as well as, the impugned order dated 7/1/2021 taking
cognizance, so far as they relate to the present petitioner, stand
quashed.
(ROHIT ARYA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
(and)
