Madras High Court
Dr.T.Arivudai Nambi vs The State Of Tamil Nadu on 22 November, 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 08.08.2023
Pronounced on : 22.11.2023
Crl.O.P.(MD).Nos.7108, 7650, 8175, 10278 and 10280 of 2023
and
Crl.M.P(MD).Nos.8174 and 8178 of 2023
Crl.O.P.(MD).No.7108 of 2023
Dr.T.Arivudai Nambi Petitioner
Vs.
The State of Tamil Nadu,
Rep by Inspector of Police,
Vigilance and Anti-Corruption Wing,
Thanjavur.
(Crime No.6 of 2022) Respondent
PRAYER: Criminal Original Petition has been field under Section 482 of
Cr.P.C., to call for the records pertaining to the Impugned FIR in Crime
No.6 of 2002 pending on the file of the respondent police and to quash
the same as for as the petitioner is concerned.
Crl.O.P.(MD).Nos.7108, 7650, 8175 of 2023
For Petitioner : Mr.Issac Mohanlal Senior Counsel for
Mr.S.Venkatesan
For respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
Page No.1/15
https://www.mhc.tn.gov.in/judis
Crl.O.P.(MD).Nos.10278 and 10280 of 2023
For Petitioner : Mr.C.Iyyapparaj
For Respondent : Mr.T.Senthil Kumar
Additional Government Pleader
COMMON ORDER
All the petitioners filed the petitions to quash the proceedings in
FIR in Crime No.6 of 2022.
2. The crux of the allegation in the FIR is that all the accused
conspired together and made an appointment to the post of the Assistant
Professor in Sri Pushpam College, situated at Poondi, Thanjavur District
without following the roster system and also made an appointment to A4
and A5 on the basis of the fake community Certificate. They also
committed offence of filling 19 vacant posts without following the
reservation policy and other procedure stated by the Government of Tamil
Nadu. The accused in Crl.O.P.(MD).7108 of 2023 is the Regional Deputy
Director of the Thanjaur District, he alone has the jurisdiction to appoint
the Assistant Professor.
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3. The learned senior counsel Thiru. Isaac Mohanlal
representing Thiru R.Venkatesan submitted that as per the private college
regulation Act, there is no necessity to follow the roster system. He is
only the approving authority and the selection was made by the selection
committee. After selection process, it is placed only for the approval and
for purpose of grant. In sum and substance, Regional Deputy Directors
are the supervising the appointments. In view of the above facutal
circumstances, the case of the prosecution is that he approved the
appointment of the persons with false community certificate, which is not
in accordance with law. The selection committee and the recruitment
authorities called for the posts under the category of the denotified
communities(DNC). After selection, it should be placed before him for
approval. However, he has no knowledge about the placement of fake
community certificate and hence, allegation against him in the FIR is
without any necessary ingredient to constitute the offence under Sections
120 (b) r/w 468, 465, 471, 477(A), 409 and 420 IPC r/w Section 13(2) r/w
13(i) C of the prevention of corruption Act.
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4. The learned Senior counsel has made the meticulous
submissions on the basis of the private college regulation Act and the
various provisions of the IPC and stated that the offence is not made out
against the petitioners. He also placed number of orders relating to the
appointment of the Assistant Professors.
5. The learned Additional Public Prosecutor submitted that the
appointed candidates are the old students of the college. They got
admission and completed their studies under the category of backward
community. Subsequently, they got the community certificate of DNC,
and both records were placed before the petitioner. Hence, he has not
perused the documents and granted the approval and thereby they were
allowed to withdraw the salaries and hence, his part of the conspiracy is
prima facie available. Further, it is in the investigation stage, apart from
the above materials the investigating agency collected materials to prove
the conspiracy about the involvement of the petitioners and also he is the
party to the illegal appointment to ineligible persons. At this stage, as per
the Hon'ble Supreme Court Judgment, the quash petition cannot be
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entertained. He relied number of judgments of the Hon'ble Supreme
Court. He also produced a file for perusal of this Court and seeks for
dismissal of the quash petition.
6. The petitioner in Crl.O.P.(MD).No.8175 of 2023 also
reiterated the above submissions and seeks for the quashment of FIR.
7. The learned counsel petitioner Crl.O.P.(MD).No.10280 of
2023, made a submission that on the basis of the supreme Court Judgment
reported in 2021 5 SCC 469 in the case of Charansingh vs. State of
Maharastra and others., without conducting enquiry and giving
opportunity to the petitioner, the FIR was registered. The FIR is without
any basic ingredients. He further stated that proper notification was issued
and proper selection process was made and appointment was made and
hence, there is no case of conspiracy to commit the offence under
Sections 465 and 468 IPC and other offences. When the appointment was
made as per the procedure, there is no criminality in the procedure.
Therefore he seeks to quash the FIR.
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8. The learned Additional Public Prosecutor submitted that the
community certificate is genuine one or not is in the stage of
investigation. If the community certificate is a forged one or with false
particulars, officers involving in the said process are to be added as
accused. He further submitted that the investigation is proceed on correct
line and whether the selection process itself was made with the conspired
act of all the accused or not is to be investigated. The compliance of the
judgment of the Hon'ble Supreme Court reported in 2021 5 SCC 469 in
the case of Charansingh vs. State of Maharastra and others., is
misplaced in this case. Subsequently, the issue was considered by the
Hon'ble Three Member Bench of the Supreme Court in AIR 2021 SC
5041 (2021 SCC Online 923) in the case of CBI Vs Thommandru
Hannah Vijayalakshmi @ T.H.Vijayalakshmi The Larger Bench clearly
stated that before registration of the case, it is not necessary to consider
the defence of the accused. At the stage of FIR, if there is a reason to
believe that the allegation constitutes the offence, then the investigation is
allowed to be conducted.
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9. In this case, there is a serious allegation against the petitioner
particularly on the allegation that they produced the community certificate
with the false particulars and got an appointment. In the said
circumstances, only after the investigation, the allegation made in the FIR
can be found to be true or false. Hence, he seeks for quashment of FIR.
10. This Court considered the rival submissions made on either
side and perused the materials available on record and precedents relied
upon by them.
11. There are two allegations in the FIR. The appointment was
made to number of accused on the basis of the fake community certificate.
Another allegation is that through the appointment of ineligible persons,
salary amount was disbursed. In continuation of the said allegation, some
false report was produced before the University Grants Commission as if
a number of persons have been working for 24 months and collected the
amount of Rs.11,68,896/-. The appointment file contains the community
certificate of the candidates. The candidates produced two community
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certificates. One is backward community and another is the DNC
certificate. On the basis of the DNC certificate, an appointment was made.
When both the documents are available before the authorities their duty is
to verify the community status of each appointee. But, the petitioner did
not verify the same and hence, ineligible persons got appointment. i.e., the
post meant for DNC allotted to the BC Community and thereby the right
of DNC community has been deprived. Hence, the offence under Section
13(1) c of the prevention of corruption Act and other IPC offence are
clearly made out. It is not necessary to prove that the petitioner gained
something through the appointment as held by the Hon'ble Constitution
Bench Judgement of the Supreme Court in the case of M. Narayanan
Nambiar v. State of Kerala, reported in AIR 1963 SC 1116:
10......On a plain reading of the express
words used in the clause, we have no doubt that
every benefit obtained by a public servant for
himself, or for any other person by abusing his
position as a public servant falls within the mischief
of the said clause.
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Further more, whether the petitioner made the intentional act to give an
appointment on knowing the factum of misrepresentation of the
community certificate is a matter for investigation and evidence of
appreciation.
12. This case is in the stage of FIR. The Hon'ble Supreme Court
in 2023 6 SCC 559 stated that the power of the Court under Section 482
to quash the FIR in the case of Corruption is applied only in the
exceptional circumstances ie., to sparingly exercise its power under
Section 482 of Cr.P.C., to entertain the quash petition. The Hon'ble
Supreme Court further held that in the case of Corruption, the Court must
made the hand off approach in entertaining the quash petition. The
Hon'ble Supreme Court insisted not to entertain the quash petition and
allow the investigation to go on either on the positive side or the negative
side on the basis of the material collected by them.
In the case of State of Chhattisgarh v. Aman
Kumar Singh, reported in (2023) 6 SCC 559
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80.Having regard to what we have observed above
in paras 47 to 50 (supra) and to maintain probity in
the system of governance as well as to ensure that
societal pollutants are weeded out at the earliest, it
would be eminently desirable if the High Courts
maintain a hands-off approach and not quash a first
information report pertaining to “corruption”
cases, specially at the stage of investigation, even
though certain elements of strong-arm tactics of the
ruling dispensation might be discernible. The
considerations that could apply to quashing of first
information reports pertaining to offences
punishable under general penal statutes ex proprio
vigore may not be applicable to a PC Act offence.
Majorly, the proper course for the High Courts to
follow, in cases under the PC Act, would be to
permit the investigation to be taken to its logical
conclusion and leave the aggrieved party to pursue
the remedy made available by law at an appropriate
stage. If at all interference in any case is considered
necessary, the same should rest on the very special
features of the case.
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13. By following the above principles laid down by the Hon'ble
Supreme Court, this Court feels that there are prima facie materials to
continue the investigation against the petitioners. This Court further
clarified that the discussion made by this Court is for the continuation of
the investigation against the petitioners. The petitioners are at liberty to
agitate their points before the trial Court. The learned trial Judge, is
directed to decide the case of the petitioners independently uninfluenced
by the discussions made hereinabove in the case.
14. The learned counsel for one of the petitioner
Thiru.Ayyapparaj, submitted that before registering the case, preliminary
enquiry has to be conducted. Without conducting the preliminary enquiry,
the registration of the FIR itself is illegal. Hence, he seeks the quashment
of FIR. The said submission has no legs to stand in view of the law laid
down by the Hon'ble Supreme Court in AIR 2021 SC 5041 (2021 SCC
Online 923) CBI Vs Thommandru Hannah Vijayalakshmi @
T.H.Vijayalakshmi held as follows:
40. In view of the above discussion, we
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hold that since the institution of a Preliminary
Enquiry in cases of corruption is not made
mandatory before the registration of an FIR under
the CrPC, PC Act or even the CBI Manual, for this
Court to issue a direction to that affect will be
tantamount to stepping into the legislative domain.
Hence, we hold that in case the information received
by the CBI, through a complaint or a “source
information” under Chapter 8, discloses the
commission of a cognizable offence, it can directly
register a Regular Case instead of conducting a
Preliminary Enquiry, where the officer is satisfied
that the information discloses the commission of a
cognizable offence.
41. The above formulation does not take
away from the value of conducting a Preliminary
Enquiry in an appropriate case. This has been
acknowledged by the decisions of this Court in
P.Sirajuddin(supra), Lalita Kumari (supra) and
Charansingh (supra). Even in Vinod Dua (supra),
this Court noted that “[a]s a matter of fact, the
accepted norm - be it in the form of CBI Manual or
like instruments is to insist on a preliminary
inquiry”. The registration of a Regular Case can
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have disastrous consequences for the career of an
officer, if the allegations ultimately turn out to be
false. In a Preliminary Enquiry, the CBI is allowed
access to documentary records and speak to persons
just as they would in an investigation, which entails
that information gathered can be used at the
investigation stage as well. Hence, conducting a
Preliminary Enquiry would not take away from the
ultimate goal of prosecuting accused persons in a
timely manner. However, we once again clarify that
if the CBI chooses not to hold a Preliminary Enquiry,
the accused cannot demand it as a matter of right. As
clarified by this Court in Managipet (supra), the
purpose of Lalita Kumari (supra) noting that a
Preliminary Enquiry is valuable in corruption cases
was not to vest a right in the accused but to ensure
that there is no abuse of the process of law in order
to target public servants.
In the case of National Confdn. of Officers Assn. of Central Public
Sector Enterprises v. Union of India, reported in (2022) 4 SCC 764 :
reiterated the said principle and held as follows:
62. In CBI v.Thommandru Hannah
Vijayalakshmi [CBI v. Thommandru Hannah
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Vijayalakshmi, (2021) 18 SCC 135 : 2021 SCC
OnLine SC 923] , a three-Judge Bench of this Court
held that it is not mandatory to hold a preliminary
enquiry in all cases before registering an FIR
against a public official,
15. Accordingly, all the petitions dismissed with the above
observations. Consequently, connected miscellaneous petitions are
closed.
22.11.2023
NCC :Yes/No
Index :Yes/No
Internet :Yes/No
sbn
https://www.mhc.tn.gov.in/judis
K.K.RAMAKRISHNAN,J
sbn
Crl.O.P.(MD).Nos.7108, 7650, 8175, 10278 and 10280 of 2023
and
Crl.M.P(MD).Nos.8174 and 8178 of 2023
22.11.2023
https://www.mhc.tn.gov.in/judis
