Madhya Pradesh High Court
Dr. Ajay Goenka vs Central Bureau Of Investigation on 10 February, 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SURESH KUMAR KAIT,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VIVEK JAIN
MISC. CRIMINAL CASE No. 53251 of 2024
DR. AJAY GOENKA
Versus
CENTRAL BUREAU OF INVESTIGATION
Appearance:
Shri Vivek Tankha and Shri Ajay Gupta - Senior Advocates assisted by Shri Rajeev
Mishra and Shri Harshit Bari - Advocates for the applicant.
Shri Vikram Singh - Advocate for the respondent.
ORDER
(Reserved on : 20.01.2025)
(Pronounced on : 10.02.2025)
Per: Hon'ble Shri Justice Vivek Jain, Judge.
The present petition under Section 482 Cr.P.C. has been filed for
quashing of charge sheet in FIR No.RC2172015A0108 and criminal
proceedings consequential thereto against the applicant pending as S.T.
No.740/2014 before learned Special Judge ( VYAPAM cases), Bhopal.
2. It is contended by learned Senior Counsel for the applicant that the
matter pertains to alleged irregularities in Pre Medical Test (for short 'PMT,
2012') held in June, 2013 conducted by M.P. Professional Examination Board,
popularly known as VYAPAM. It is argued that acting on a tip off on
06.07.2013 certain students were apprehended by Indore Police belonging to
different States other than Madhya Pradesh camping in some hotels in Indore on
the eve of PMT Test, 2013 and FIR No.539/2013 was registered in Police
Station Rajendra Nagar, Indore. During investigation by local police, it was
revealed to prosecution that some students disclosed a similar fraud was
committed by them during preceding years PMT examinations as well and then
the STF, Bhopal registered FIR No.12/2013 against 11 accused persons
including four officials of VYAPAM on 30.10.2013 and during the course of
investigation; STF arrayed 575 more persons as accused.
3. Later on, the investigation was transferred from STF to CBI under the
orders of the Hon'ble Supreme Court in W.P. (C) No.417/2015 dated
09.07.2015 (Digvijay Singh and others vs. State of M.P. and others). It is argued
that thereafter the scope of investigation was wrongfully expanded by the CBI
and the matter of VYAPAM scam, which was relating to the students
wrongfully qualifying the competitive examination by allegedly resorting to
appearance of impersonators in the examination as solvers and middleman for
the said purpose, manipulation with the answer seats and results, etc. was
extended wrongfully to the last date admissions taken Private Medical Colleges,
which was having no connection with the VYAPAM scandal in the matter of
conducting PMT Examination as it is not a matter connected with the conduct
of examinations by VYAPAM.
4. It is further argued that the practice of last day admissions in Private
Medical Colleges is well established so as to provide wasting of seats in such
medical colleges on account of non-reporting/withdrawal of admissions by
students allotted to such medical colleges. It is argued that such last date
admissions have not been held to be illegal though the matter has been raised
time and again and subjected to judicial review before the High Courts and the
Supreme Court of India. The said practice has not even been held to be illegal,
much less held to be a criminal offence.
5. Also argued that as per M.P. Medical and Dental Undergraduate
Entrance Examination Rules, 2013 vide Notification dated 10.5.2013 the
process to govern admission to MBBS and BDS Courses was set up by the
State. Under these rules, PMT-2013 was conducted. Rules provided for
allocation of seats in Private Medical Colleges through Online Counseling
conducted by the Counseling Committee of the State comprising of highly
placed government officials chaired by Director of Medical Education, Madhya
Pradesh as per Rule-9 of the said Rules of 2013. The students were allotted to
the Medical College with which the applicant has been alleged to be associated
and the admissions granted have not been held to be illegal. It is argued that
after blocking their seat in the first round of counseling some students used to
withdraw the candidature at a later stage due to getting better college in
subsequent rounds of counseling or getting Government College in said
subsequent rounds or for taking a gap year for preparation to get a better
college, because medical education in private colleges is costly.
6. Such withdrawals led to the seats falling vacant which ultimately had
to be filled up by the Private Medical Colleges by offering last day admissions
and this practice did not prejudice the right of any deserving meritorious
candidate. It is argued that final list of admitted students including last day
admissions was duly sent to be Medical Council of India and other statutory
authorities and none of the authorities had taken any objection that the Medical
College concerned, i.e. Chirayu Medical College had resorted to any illegality
in the matter of admissions.
7. It is further argued that Chirayu Charitable Foundation is a non-profit
organization functioning through registered Society and Chirayu Medical
College and Hospital is one of the many units set up by the said foundation. The
present applicant is one of the Members and Secretary of the Chirayu
Charitable Foundation and is not concerned with the day today activities of
Chirayu Medical College, which is only one of the many units run by the
foundation.
8. Learned Senior Counsel for the applicant has further argued that the
present applicant has been connected in the matter in a very far fetched manner
by the C.B.I. It is being alleged that certain students used to opt for Private
Medical Colleges in MBBS Course from State quota and used to block the State
quota seats through such admissions and those students never reported to
college and used to receive monetary payments through middlemen for blocking
the seats. In this manner the seats used to be kept blocked otherwise the seats
would have been filled up in the second or third round of counseling from
deserving candidates, but by blocking of such seats by candidates termed as
"Engine" candidates by the C.B.I. the seats used to be carried forward for giving
last date admissions. Learned Senior Counsel also argued that the entire
allegation against the applicant is based on mere presumption and conjectures
and there is no substantial material collected in the course of investigation
against the applicant to show that either such admissions were retained by
candidates for blocking the seats in collusion with the college or that the present
applicant was involved in the said process in any manner.
9. Learned Senior Counsel for the applicant further argued that in similar
circumstances FIR against the applicant, challan and consequential proceedings
have been quashed by the Co-ordinate Bench of this Court at Gwalior in
M.Cr.C. No. 39055/2021, which related to PMT Examination of 2011 and there
is no distinguishing feature in the present case from the aforesaid case except
that it relates to another year. Thus, it is prayed to quash the present charge seat
also by following the said order.
10. Per contra, learned counsel for the C.B.I. has vehemently opposed the
present petition and has referred to para 3.10, 3.13, 3.14 and 3.22 of the reply. It
is argued that the complicity of the applicant in the matter has been well
established in the course of investigation and the charge-sheet has rightly been
filed against him. It is argued that while dealing with the anticipatory bail
application of the present applicant certain observations have been made in
M.Cr.C. No.2796/2018 against the present applicant. It is further argued that the
students used to block seats in Chirayu Medical College so that those seats
could be got released on the last date so as to take admissions of the choice
candidates by charging some premium. It is further argued that false
information was submitted to the Director of Medical Education and also that
the Admission and Fees Regulatory Committee (AFRC) has imposed penalty on
the Medical College concerned in the same Academic Session 2013-14, which
has not been paid so far. It is further argued that the petitioner was involved
with all the activities of Chirayu Medical College.
11. Heard learned counsel for the parties.
12. The applicant has strongly relied on order of the Co-ordinate Division
Bench of this Court at Gwalior in M.Cr.C. No.39055/2021, wherein in the
matter related to the PMT-2011, and the said Bench has quashed the charge
sheet and consequential proceedings for the reasons mentioned therein and
primarily on the ground that the C.B.I. has not been able to point out any
material to establish proximity of the petitioner with the middlemen and also
that the applicant is not liable directly for admission making process and
vicarious criminal liability cannot be placed upon him and also that criminal
liability being a strict liability, any material for harboring such grave suspicion
is lacking in the instant case.
13. Learned counsel for the C.B.I. was not in a position to state that how
the findings as recorded by the Co-ordinate Division Bench in M.Cr.C.
No.39055/2021 relating to PMT Examination 2011 are not applicable to the
present case. Learned counsel for the C.B.I. was also at loss to state anything
when queried by the Court whether the aforesaid order has been put to challenge
before Hon'ble the Supreme Court.
14. In M.Cr.C. No.39055/2021, the Co-ordinate Division Bench has held
as under:-
"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-seat 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.................................. ."
15. Neither in the reply nor at the time of oral arguments, learned counsel
for the C.B.I. was able to distinguish the said order from the present case except
the position that the said order concerned PMT- 2011 while the present case
concerned PMT-2013. The counsel for the respondents also referred to some
observations made much earlier in MCRC No. 2796/2018, at the time of
deciding the anticipatory bail application. However, after completion of
investigation and filing of charge-sheet, a coordinate Division Bench in MCRC
39055/2021, by relying on the judgement in the case of State of Haryana Vs.
Bhajanlal (1992 Supp (1) SCC 335) quashed the charge-sheet and went on to
hold that if now at a distance of time of more than 12 years, the petitioner is
forced to underto the orderal of trial, in the obtaining facts and circumstances of
the case on unfounded material, in fact and in effect would tantamount to
travesty of justice. Hence, it held it to be a fit case warranting interference under
section 482 of the Cr.P.C. The Co-ordinate Division Bench has held in
categorical terms that the present applicant cannot be held vicariously liable
looking to his role in the foundation society as he is not connected with
activities of the Medical College by taking into consideration, the resolution
dated 07.7.2011. It has further been held that essential ingredients to commit an
offence of criminal conspiracy are lacking, because no material could be
pointed out to infer any agreement between the applicant and the students or the
College Management Committee to block the seats in order to reap pecuniary
gain to the college/society.
16. As no distinguishing features in the aforesaid matter have been
pointed out in the present case to establish vicarious criminal liability of the
applicant, the applicant is entitled to similar benefit in the present case also. We
have not made any comments on facts relating to allegations against the
Medical College concerned.
17. Consequently, the petition is allowed and the impugned charge sheet
and all proceedings consequential thereto against the applicant are quashed.
(SURESH KUMAR KAIT) (VIVEK JAIN)
CHIEF JUSTICE JUDGE
rj
