Delhi District Court
Central Bureau Of Investigation (Cbi) vs T. Dileep Kumar on 12 January, 2022
IN THE COURT OF SH. M. K. NAGPAL
SPECIAL JUDGE (PC ACT), CBI-09 (MPs/MLAs Cases)
ROUSE AVENUE DISTRICT COURT, NEW DELHI
CC No. (New) 58/2019
CC No. (Old) 50/2012 & 06/2018
CNR No. DLCT11-000139-2019
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI
U/s 120B/420/468/471 IPC & SEC 13(2) R/w 13(1) (d) of
the PC Act, 1988
CENTRAL BUREAU OF INVESTIGATION (CBI)
Versus
1. T. Dileep Kumar
S/o Late Sh. A.T. Thimmappa
E-103, Prince Apartment,
IP Extension, Delhi.
The then President of Indian Nursing Council & Advisor to
Govt. of India, Ministry of Health & Family Welfare, Nirman
Bhawan, New Delhi.
2. Ms. K.D. Varyani
D/o Late Sh. Dharamdas
R/o 12-B, Mahavir Flats, Near Rachna School,
Shahibad, Ahmedabad-4, Gujrat.
The then Vice President, Indian Nursing Council, Govt. Of India
Ministry of Health & Family Welfare, Nirman Bhawan,
New Delhi.
(Proceedings against her stand cancelled/abated vide
order dated 30.07.2012)
3. Dr. Balbir Singh Nadha
S/o Sh. Ujagar Singh
R/o Shahid Udham Singh School of Nursing,
Ratia, Fatehabad, Haryana.
The then Secretary, Shahid Udham Singh School of Nursing,
Ratia, Fatehabad, Haryana.
(Proceedings against him stand abated vide order
dated 01.03.2021)
4. Jagdeesh
S/o Sh. G. Srinivasulu
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 1 of 148
R/o 110, I-A, Crossroad, I-A Main Road,
Nagarabhavi, I-Block, 2nd Stage, Bengaluru-560072.
The then Secretary, Priyadarshini School of Nursing,
No.96, Maruti Industrial Estate, Bengaluru-560058.
5. K.T. Govind Gowda
S/o Late Sh. Thimme Gowda
R/o 341, 16th Main MC Layout,
Vijyanagar, Bengaluru-560040.
The then Chairman of National School of Nursing,
Srigandadakaval, Yeswhanthapura Hobli, Heganahali Cross,
Sunkadakatte, Vishwaneedan Post, Bengaluru-560091.
6. Dr. Gokaraju Ganga Raju
S/o Late Sh. Ranga Raju
R/o 40-25-19/18, Kongantivari Street,
Padamata Lanka, Vijaywada, Krishna District, Andhra Pradesh.
The then Vice Chairman, Alluri Sitarama Raju Education
Society, Eluru, West Godavari District (Asram College of
Nursing), Eluru, Andra Pradesh-534004.
7. Dr. Manjit Singh Dhillon
S/o Sardar Balkar Singh Dhillon
R/o Baba Farid Complex, Faridkot Road,
Kotkapura, Punjab-151204.
The then General Secretary, Baba Farid Medical Institute of
Nursing, Faridkot Road, Kotkapura, Punjab-151204.
8. Jaideep Gupta
S/o Sh. S.N. Gupta
R/o 5404, ATS Greens II, Sector 50,
Noida, Uttar Pradesh.
The then Chief Executive Officer, Indraprastha Medical
Corporation Ltd., Sarita Vihar, Delhi-Mathura Road, New Delhi.
Date of institution of case : 01.10.2009
Date of conclusion of arguments : 03.12.2021
Date of pronouncement of judgment : 12.01.2022
JUDGMENT
1. The factual matrix of this case is that on the basis of a source information alleging some irregularities and malpractices by the RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 2 of 148 accused no.1 (A-1) T. Dileep Kumar, the then President of Indian Nursing Council (INC - also referred to as Council), New Delhi and other unknown members of the Executive Committee of INC in granting recognition/feasibility certificates to 23 Nursing Institutions located in Punjab, Haryana, Uttar Pradesh and Karnataka during the period from 2001 to 2004, the CBI had registered a preliminary inquiry vide No. PE- 1 (A)/06 dated 05.01.2006. It was alleged that A-1 permitted enhancement of seats and granted feasibility certificates to 2 Nursing Schools even though these institutions did not fulfill the suitability criteria as per INC regulations and the same were granted against decision of the Executive Committee of INC thereby violating the laid down norms/guidelines of the Council.
2. After completion of inquiry, it was revealed that A-1 and accused no.2 (A-2) Ms. K.D. Varyani, the then Vice President of INC (since deceased), while functioning in their above capacities, had colluded with the promoters/management of six Nursing Institutions and they both had dishonestly replaced the adverse evaluation proforma reports with new and fabricated evaluation proforma reports and recommended that these training institutes were suitable for enhancement of seats or recognition, in spite of the reports of ad-hoc Inspectors showing various weak points and short comings of these institutions. It was also revealed that the above forged evaluation proforma reports were prepared by them with dishonest intentions and these were placed by them before the Executive Committee/ General Body of INC for granting recognition/suitability certificates or enhancement of seats and they had thereby cheated INC.
3. In light of the above findings of preliminary inquiry, CBI had registered a regular case vide RC-DAI-2007-A-0011 on 23.02.2007 RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 3 of 148 U/S 120B read with Sections 420/468/471 of the Indian Penal Code (IPC) and U/S 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 (PC Act) against A-1 and A-2 as well as the promoters/management of above six Nursing Institutions and other unknown persons.
4. During investigation of the case, it has been revealed that INC was constituted under the Indian Nursing Council Act, 1947 (INC Act) with an objective to establish a uniform standard of training for nurses, midwives and health visitors and Section 10 (2) of the said Act empowered the Council to declare/fix and recognize the qualifications for different courses for the purposes of the Act. As per Section 3 of the Act, a General Body of the Council was to be formed consisting of 70 members to be drawn from all 23 Nursing State Councils in country at that time and besides the above, 4 members were to be nominated by the Central Government and 3 members to be taken from the Parliament, i.e. 2 from Lok Sabha and 1 from Rajya Sabha. Apart from above, all the Directors of Health Services were to act as ex-officio members of this Council and some members were also to be taken from the Medical Council of India (MCI), Trained Nursing Association of India and Indian Medical Association (IMA) etc. It was also revealed during investigation that as per provisions of the said Act, an Executive Committee consisting of 9 members was also to be formed for looking after day to day work of the Council (Section 9 of the Act) and out of these 9 members, 7 members were to be elected by the General Body and President and Vice President of the Council, who were elected by General Body of Council, were to be the ex-officio members of this Committee.
5. It was further revealed during investigation of the case that in the RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 4 of 148 year 2001, the INC had revised the syllabus and regulations for Diploma in General Nursing and Midwifery course (GNM) and also the minimum physical facilities and academic staff etc. required for the said course. The allegations made to this effect on internal pages 11 & 12 of the chargesheet are being reproduced herein below:-
"Investigation further revealed that in 2001, the INC revised the syllabus and regulations for Diploma in General Nursing and Midwifery Training. It mentions that minimum land area for a school of nursing is four acres of land owned and possessed by the applicant who wishes to set up the proposed nursing school. For a school with an annual admission capacity of 20 students, the constructed area of the School should be 4000 square feet. For every additional 10 seats an additional area of 2000 square feet should be increased. Constructed area can be increased in a phased manner between 1st and 2nd year.
The minimum physical facilities as per the revised syllabus and regulations for the Diploma in General Nursing and Midwifery training programme are listed below:-
i) Classrooms (at least four)
ii) Laboratories (at least four)
iii) Auditorium
iv) Multipurpose Hall
v) Library (a minimum of 500 nursing books)
vi) Office requirements
vii) Common rooms
viii) Record Room
ix) Store Room
x) Room for audio visual aids
xi) Other facilities
xii) Garage
xiii) Fire Extinguisher
xiv) Playground With regard to faculty, it is mentioned that for an annual intake of 20 students, at least 1 senior tutor and 5 tutors are required and for an annual intake of 50 students, minimum 3 senior tutors and 12 tutors are required. Further, the regulation clearly states that the INC shall not permit more than 60 students per batch. The qualification of teaching staff is also prescribed as below:-
1. Principal : M. Sc. Nursing with 6 years of teaching experience or B.Sc Nursing (Basic/Post Basic) with 8 years of teaching experience.
2. Vice Principal: M.Sc. Nursing with 4 years of teaching RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 5 of 148 experience or B.Sc. Nursing (Basic/Post Basic) with 6 years of teaching experience.
3. Senior Tutor : M.Sc. Nursing with 2 years of teaching experience or B.Sc. with 4 years of teaching experience.
4. Tutors : M.Sc. Nursing or B.Sc. Nursing (Basic/Post Basic) or Diploma in Nursing Education and Administration or its equivalent with 2 years of professional experience after graduation.
6. Thus, it has also been revealed that INC has prescribed syllabus and guidelines for various other courses, i.e. Auxiliary Nursing and Midwifery (ANM), GNM, B.Sc. and M.Sc. (Nursing) and the above guidelines and criteria were to be followed by the institutions seeking recognition, enhancement of seats and up-gradation etc. In order to achieve this end, the Executive Committee of INC used to appoint ad- hoc Inspectors for inspection of these Nursing Institutions and these inspectors were appointed from amongst senior faculty members in different Nursing Colleges and they used to conduct physical verifications of these institutions for finding out if these guidelines or criteria have been complied with or not and the reports given by these ad-hoc Inspectors were used to be placed and scrutinized by a Committee termed as Evaluation Committee constituted by the Council and then on the basis of recommendations of the Evaluation Committee, the Executive Committee of the Council was to take decisions for grant of approval or otherwise in respect of recognition of these Nursing Institutions or enhancement of seats etc.
7. It has further been revealed that the Evaluation Committee comprised of 3 persons and President & Vice President of the Council were to act as President & Vice President respectively of the Evaluation Committee also and besides them, Secretary of the Council was the third member. It has been alleged that since the post of Secretary of the Council remained vacant after November, 2005, the RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 6 of 148 Evaluation Committee consisted of only 2 members at the relevant time, i.e. A-1 & A-2. The report given by ad-hoc Inspectors, besides the report of Evaluation Committee given in printed proforma, was considered by the Executive Committee in taking its decision in the matter and final decision of the Executive Committee was reflected in minutes of meeting of the Committee, though a detailed discussion on the matter was not reflected in the said minutes. The decision of Executive Committee granting recognition or enhancement of seats etc. was then conveyed to the concerned Institution by the Secretary of INC.
8. As already discussed, it is the case of CBI that A-1 & A-2, while acting dishonestly and fraudulently and in collusion with promoters/management of these six Institutions, had replaced the adverse evaluation reports given in prescribed proformas by them as members of the Evaluation Committee with fake and favourable reports so as to help the above six Institutions in grant of recognition or enhancement of seats. The names and other details of these six Institutions and the shortcomings reflected in original evaluation reports given by them, as mentioned on internal page nos. 14 to 20 of the chargesheet, are being reproduced herein below:-
"(1) Shaheed Udham Singh School of Nursing, Raita, Haryana:-
Investigation has revealed that Shaheed Udham Singh School of Nursing, Ratia, Haryana applied for recognition and permission to start General Nursing and Midwifery (GNM) course to the Indian Nursing Council, New Delhi vide their letter dated 07.07.04 enclosing inspection fee, Government order and project report. Thereafter, correspondence took place between Ms. S.K. Chug, Secretary of the INC and Director of the Nursing School (Dr. B.S. Nada) for completing the necessary formalities. The school was inspected and the inspection report was received in the INC which was evaluated by the Evaluation Committee and the same was put up in the Executive Committee Meeting held on 07.10.04. The EC RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 7 of 148 permitted the Nursing School to start the GNM course for 1 year with an intake of 30 students per year. The nursing school was permitted to continue with the same intake during 2005-06. It applied again for increase of seats. The inspection was conducted by ad-hoc inspectors namely Dr. Mrs. Kanwaljit Gill, Principal, Shaheed Kartar Singh Sarabha College of Nursing, Sarabha, Ludhiana and Dr. Rajender Kaur Mahal, Professor, College of Nursing, Christian Medical College, Ludhiana and they submitted their report to the INC. They pointed out that fundaments of nursing need improvement e.g. linen, ice cap, bed accessories etc. The inspection report was evaluated by Ms. KD Varyani, Vice-
President as one of the members of the Evaluation Committee who observed that the parent hospital to which the school is affiliated has 75 beds. Distance is more than the requirement and the school does not fulfill requirement of distance for clinical experience. The parent hospital should increase beds. Enhancement of seats is not permitted. First let them increase the beds of parent hospital. Nursing lab needs improvement with supply of more equipments. The proforma of evaluation bears signatures of Ms. K D Varyani, Vice-President. However, the said evaluation report was not put up to the Executive Committee for consideration. Instead, it was replaced from the file with another evaluation proforma wherein Ms. KD Varyani observed enhancement of seats is agreed from 30 to 40 suppressing shortcomings in file no. 18-2/1683-INC by Sh. T. Dilip Kumar, President and Ms. K.D. Varyani, Vice-President, INC recommended and got approved for enhancement of seats.
(2) Priyadarshini School of Nursing, No. 96 Maruti Industrial Estate, Banaglore:-
Investigation further revealed that in file No. 18-15/2592-INC Principal, Priyadarshini School of Nursing, Bengalore vide their letter dated 13.04.05 applied to the Indian Nursing Council for permission to run GNM course. The school was inspected in June, 2005 by two ad-hoc Inspectors who submitted their report. In the EC meeting held on 07.07.05 the school was found unsuitable to start the course. All the three members of the Evaluation Committee unanimously agreed that the school was unsuitable and recommended accordingly. At the request of the nursing school, the school was again inspected in March 2006 by two different ad-hoc inspectors who submitted their report. In the proforma for evaluation both President and Vice-President observed that the institute was unsuitable. The said institute which had applied for recognition requested for re-inspection claiming that deficiencies pointed out earlier have been removed. The school was once again inspected by Ms. Valsamma Joseph, Professor, Govt. College of Nursing, Kottayam and Ms. J. Daisy, RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 8 of 148 Associate Professor, College of Nursing, Thiruvananthapuram on 17.06.06. They submitted their report pointing out that there is no permanent building for the nursing school and hostel. The students are temporarily accommodated in the first floor of a leased building which is used for classes. As regards teaching faculty, they observed that number and experience of the faculty is inadequate and not as per INC norms. Most of the teaching faculty are not registered with Karnataka Nurses and Midwives Council.
There is no separate office staff for nursing school and college nor separate library, laboratories and examination hall for the school and the school is utilizing the facilities of the nursing college which is being run in another leased building. The hostel for female students is congested and unsafe. Based on this inspection report, Ms. K.D. Varyani, Vice-President made observations in the evaluation proforma that both clinical and infrastructure is inadequate. Many institutions are affiliated to the same hospital. Hence, the school is unsuitable. This proforma does not contain the observations of the President. This evaluation proforma was replaced with another evaluation proforma wherein Ms. K.D. Varyani, Vice-President and Sh. T. Dilip Kumar, President observed that the school is suitable for 60 students this year and 40 students next year.
(3) National School of Nursing, Yeswhanthan Pura, Bengalore:-
Investigation further disclosed that as per file no. 18- 15/1583-INC Secretary, National School of Nursing, Bengalore wrote a letter dated 14.06.04 to the INC, New Delhi requesting for recognition of their school of nursing. The school was inspected in July 2004 by ad-hoc Inspectors who submitted their report which was evaluated and put up in EC meeting held on 17.7.04 and the institute was found unsuitable for starting GNM course. The school was again inspected in June 2005 and the ad-hoc inspectors submitted report that there should be separate building for school and college as they were found sharing the building. The said report was evaluated and put up in EC meeting held on 7.7.05 and school was found unsuitable for GNM course as on the earlier occasion. The school again requested for reconsideration of the order of the INC and accordingly, surprise inspection was conducted on 25.8.05. The ad-hoc inspectors pointed out in their report that a number of institutes were found running in same campus. The evaluation report was placed in the EC meeting held on 15.9.05 and the school was not permitted for GNM course. After receipt of re-inspection fee, the school was again inspected on 2.05.06 by ad-hoc Inspectors, Ms. Prasanna Kumari, Professor & Head, College of Nursing, Medical College, Kottayam and Ms Moly KT, Associate Professor, College of Nursing, Medical RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 9 of 148 College, Kozhikode. They submitted report pointing out that the address of National College of Nursing and National School of Nursing is same as that of KTG as it is functioning in the same building. They were shown 7 class rooms but these were not exclusively for National College of Nursing and School of Nursing. The infrastructure was being used for 2 schools of nursing, 3 colleges of Nursing, a general school from standard 1 to 10, BPT, MPT and DMLT. As regards faculty, they observed that Principal and Vice-Principal are not having adequate experience and most of them have been found for the purpose of inspection. More than 90% of staff is not registered in the Karnataka Nursing Council. The hostel is common for 8 programmes and 39 institutions are affiliated to the same institutions for clinical facilities. The said report was evaluated by Ms KD Varyani, Vice-President who mentioned in the proforma for evaluation that faculty for BSc has also been shown in GNM course. Principal and Vice-Principal are same in both the places. Classes are taken together with National KTG and Aunradha. Physical facilities are not true. This evaluation report which could be the basis for rejection of application for recognition of the INC was substituted by another evaluation proforma in which both President and Vice President observed that the school is suitable for 40 seats and this evaluation proforma was placed in the EC meeting held on 22.07.06 which approved the recommendation and granted permission to the school with an intake of 40 seats.
(4) Asram College of Nursing, D No. 24 B-19, Durga Nilayam, Ramchandra Raopet, Eluru, Distt. Warangal, Andhra Pradesh:-
Investigation further revealed that as per file No. 18- 02/1075-INC, Prof. P.V. Chandrasekharan, Superintendent of Alluri Sitarama Raju Academy of Medical Science, Eluru, West Godavari District, A P, vide his letter dated 20.10.03 applied to the INC, New Delhi for permission to start BSc nursing course. The college was inspected by two ad-hoc Inspectors namely Mrs Margatham, Principal, Dr. Mahalingam College of Nursing, Sakhi Nagar, Erode and Mrs. Jayaseealan M Davadason, Dean, Annai J KK College of Nursing, Namakkal Distt on 11-12/06/2004 who submitted their report. The members of Evaluation Committee i.e. the President, Vice-President and Secretary observed that the institute was unsuitable for starting the BSc nursing course and the recommendation was approved in the EC meeting held on 17.4.04. The college was again inspected in 2005 by Ms. R. Kamla Nehru, Professor, Srirama Krishna College of Nursing, Coimbatore and Ms. Shaberabanu, Professor, Matha College of Nursing Manamadurai who submitted their report. The evaluation-
committee members recommended to permit the college to start RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 10 of 148 the course with an intake of 40 students and the same was approved by the EC in its meeting held on 29.4.05. The Vice- Chairman of the society running the nursing college wrote a letter to the INC for enhancement of seats to 100. This letter was put up by Ms. Sakashi Gandhi who observed that the INC can allot maximum 60 seats as 100 seats are alloted to such nursing college which has parent medical college hospital. The college was inspected in June 2006 by Prof. S.F. Billalli, Principal, Bapuji College of Nursing, Devangere and Ms Shameem Gulnazunissa, Lecturer, Navodaya College of Nursing, Raichur who submitted their report observing that some more nursing Journals need to be added to the library. The said report was evaluated by Ms K D Varyani, Vice President, one of the members of the evaluation committee who mentioned in the proforma for evaluation that the parent hospital has 500 beds. While university has sanctioned 40 seats, government has sanctioned 100 seats. Teachers and students in the ratio of 1:10 need to be followed. 100 seats cannot be given as university sanction is required. There are no common rooms and no MCH lab. The college needs more nursing journals. Only last year the college was alloted 40 seats. This report was removed from the concerned file and a new evaluation report was placed in the file wherein it was mentioned by Ms K D Varyani that enhancement of seats to 100 is agreed with conditions. Sh. T Dilip Kumar, President observed that enhancement of seats to 100 is agreed as the society has a medical college. This report was put up in EC meeting that approved the recommendation.
(5) Baba Farid Medical Institute for Nursing, Faridkot Road, Kotak Pur, Punjab:-
Investigation disclosed that in the file No. 18-96/2001- INC, Secretary, Baba Farid Education & Medical Research Society, Kotakpura, Punjab submitted a proposal to the INC for starting GNM nursing course vide their letter dated 9.9.02. The school was inspected in Dec 2002 and the evaluation proforma/ report was put up in the EC meeting which allowed the school to start the course with intake of 30 students per year. The school again applied for increase of seats in 2003. The school was inspected, report was received and the evaluation proforma/ report was placed in the EC meeting held on 9.12.03 which approved increase of seats to 50. The school once again applied for increase of seats from 50 to 60. The school was inspected by Mrs Pushpa Mehta, Principal, School of Nursing, Ambala City, Haryana and Mrs. Meenakshi Soni, Lecturer, College of Nursing, SMS Medical College, Jaipur who submitted their report to the INC pointing out that the hostel and school building for both the courses i.e. GNM and ANM is same and faculty is also common for both the courses. The said report was evaluated by Ms KD RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 11 of 148 Varyani, Vice President who observed in the proforma for evaluation that school has no parent hospital and no separate faculty and the faculty is common for both GNM and ANM. The hostel and school building is same. There are 173 students against 11 teachers. Teacher student ratio should be 1:10. Hence enhancement of seats in not permitted as the same has been permitted from 20 to 50 in 2003. The school is suggested to have a parent hospital. This proforma for evaluation was removed from the concerned file and a new proforma was inserted wherein it was mentioned by both the President and Vice President that enhancement of seats to 60 is permitted. The said evaluation proforma/report was put up in the EC meeting held on 22.7.06 which approved the recommendation.
(6) College of Nursing, Indraprastha Apollo Hospital Sarita Vihar, Delhi, Mathura Road, New Delhi:-
It was revealed that Apollo School of Nursing, Indraprastha Apollo Hospital, New Delhi applied to the INC for recognition in 2001. The school was inspected on 25.5.01 and it was placed in the category of feasible in the EC meeting held on 11.6.01. A letter was received from the school seeking clarification on the number of students to be admitted in academic year 2001-2002. The school was inspected in April 2004 and in the EC meeting held on 23.04.04, the institute was found suitable for GNM course for one year with an intake of 50 students per year. Suitability letter was issued by the Secretary, INC to the institute. Thereafter, the school requested vide their letter dated 30.01.06 for enhancement of seats from 50 to 60. A letter was also received in INC requesting for up gradation of school to a nursing college. The school was inspected by Prof. Renuka Das, Principal, PG College of Nursing, Gwalior, MP and Dr (Mrs.) Jyoti Sarin, Principal, MM College of Nursing, Mullana, Ambala, Haryana who submitted their report pointing out that faculty is not as per INC norms. The said report was evaluated by Ms. K.D. Varyani, Vice-President who observed in the evaluation proforma that no dates have been given for joining the faculty. Besides, the school is also without affiliation and needs to appoint two M.Sc. teachers. Despite such adverse observations she recommended to permit up gradation with 50 students. The President Sh. T. Dilip Kumar also recommended to permit with the same intake. This evaluation proforma was substituted by another evaluation proforma where no adverse comments were passed by both the President and Vice-President in the evaluation proforma except recommending permission for up gradation with an intake of 60 students. It is pertinent to mention that a suitability letter with 50 intake was issued to the nursing college which was then substituted by another letter wherein permission for 60 students was given."RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 12 of 148
9. It has further been revealed during investigation of the case that though the original evaluation reports in prescribed proformas, in respect of above six Nursing Institutions, containing adverse comments were removed from the files pertaining to these Institutions by A-1 & A-
2, but the same were not destroyed and these were seized by CBI during the course of preliminary inquiry and in the CFSL report, it has also been confirmed that these evaluation reports were actually removed from the said files and were replaced with favourable reports as the experts concerned had noted that indentations and torn pieces in the files matched physically with removed pages. Further, even handwriting of A-1 & A-2 in these replaced original evaluation reports containing adverse remarks as well as the favourable reports has been found to be matching.
10. Thus, the investigation carried out by CBI established that negative evaluation reports of these six Institutions were replaced with favourable reports by A-1 & A-2, in collusion and conspiracy with the promoters/management of these six Nursing Institutions and with the sole intention to cause undue favors to these Nursing Institutions and hence, A-1 & A-2 while observing their duties as Evaluation Committee members were found guilty of cheating and commission of forgery of documents by way of replacement of adverse evaluation reports with favourable reports and therefore, they both with heads of above six Nursing Institutions have been chargesheeted in the present case for commission of offence punishable U/S 120B read with Sections 420/468/471 of the IPC and Section 13 (2) read with 13 (1) (d) of the PC Act.
11. The chargesheet against accused persons was filed before this court on 01.10.2009 with submissions that since A-1 was a public RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 13 of 148 servant, sanction for his prosecution has been applied with the competent authority and the same was still awaited and a supplementary chargesheet in respect of him will be filed as and when the sanction for his prosecution is received. Further, it was also stated in the chargesheet that since A-2 had already retired from her post, no sanction for her prosecution was required.
12. Vide order dated 09.11.2009, this court, on careful perusal of contents of the chargesheet and documents enclosed therewith, had found that there was enough material on record to proceed against accused persons and accordingly, it had also taken cognizance of the case and directed issuance of summons to all the accused persons, except A-1. On 15.02.2012, the CBI had filed a supplementary chargesheet in the matter stating therein that the concerned Ministry of Health & Family Welfare (MoH&FW), on advice of Department of Personnel & Training (DoPT), had communicated to them that since A- 1 stood already retired from his post on 30.06.2011 and ceased to be a public servant, no sanction for his prosecution in this case was required. Hence, on the same date, this court had summoned A-1 also as an accused in this case.
13. During the course of proceedings, A-2 had expired and factum of her death was taken on record on 15.03.2012 and after getting her death verified, the proceedings against her were directed to be cancelled vide order dated 30.07.2012 and hence, the same are deemed to have been abated.
14. Subsequently, A-1 had filed one application before this court on 04.05.2012 for dropping of proceedings against him on ground that though he stood retired from the post of Nursing Advisor to the Government of India, MoH&FW, but he was holding the post of RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 14 of 148 President of INC at that time and hence, he was still a public servant and could not have been prosecuted in the absence of a sanction given for his prosecution by the competent authority U/S 19 of the PC Act and also U/S 197 of the Code of Criminal Procedure (Cr.P.C.). The said application was dismissed by this court vide order dated 15.12.2012 holding that no sanction U/S 197 Cr.P.C. for his prosecution was required for commission of the offences of this case and further, that since he also stood retired from his post as per the information furnished by his competent authority, no sanction for his prosecution was even required U/S 19 of the PC Act.
15. The above said order dated 15.12.2012 of this court was assailed by A-1 in Criminal M.C. No. 250/13 filed before the Hon'ble High Court, but the said petition was disposed of by the Hon'ble High Court vide order dated 26.09.2013 with liberty to petitioner/A-1 to take all the pleas before this court, at the time of arguments on charge.
16. It is also gathered from records that on 04.04.2014, the CBI came up with an application giving 'the present position with respect to sanction for prosecution of A-1'. It was submitted by CBI in this application that during the course of hearings before the Hon'ble High Court, they were in receipt of one other letter dated 26.06.2013 from the MoH&FW regarding status and post held by A-1 and in this letter, it has been clarified that prior to his retirement as Nursing Advisor of INC on 30.06.2011, A-1 also stood re-elected as President of the INC w.e.f. 26.06.2011 and hence, he was a public servant at the relevant time when he was summoned as an accused. However, it was further submitted in the said application by CBI that since it emerged out from their communication with the MoH&FW that no removal authority of A-1 from the post of President of INC was given under the INC Act, no RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 15 of 148 sanction U/S 19 of the PC Act for his prosecution was required. The above application of CBI was disposed of by this court vide order dated 21.01.2015 and it was observed by this court that as per provisions contained in the PC Act as well as the INC Act, A-1 fell under the definition of a 'public servant' and hence, sanction for his prosecution was required and INC was the competent authority to grant the said sanction. Since this court also observed in the said order that there was no sanction for prosecution of A-1 granted by INC on record and further that the other accused persons have been chargesheeted along with A-1 only for the offence of criminal conspiracy punishable U/S 120B r/w Sections 420/468/471 IPC and Section 13 (2) r/w 13(1) (d) of the PC Act, the proceedings in this case could not continue even against the other accused persons for want of sanction for prosecution of A-1 and hence, it was directed by the court that proceedings against all the accused were being dropped with directions to adjourn the case sine-die.
17. Thereafter, CBI came up with another application on 08.06.2017 seeking rectification/review of the above order dated 21.01.2015 of this court and in the said application, reference was made to some subsequent letters dated 21.10.2016, 03.03.2017 and 25.05.2017 of the MoH&FW clarifying the status of post held by A-1 and the authority competent to grant sanction for his prosecution. It was submitted in the said application that MoH&FW in their subsequent letters has clarified that the sanctioning authority for prosecution of A-1 was the President of India/Central Government and not INC. This application of CBI was disposed of vide order 21.07.2017 of this court with the observations that no order from this court was required by the CBI to name the sanctioning authority of A-1 and it was also observed by the court therein that further investigation in this case would be now U/S 173 (2) RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 16 of 148 Cr.P.C. and further evidence obtained (in this case, sanction, if granted) will be forwarded to the court. It was further observed that the CBI can approach whosoever is the competent authority to grant sanction for prosecution of A-1, being unaffected by observations made by this court with regard to sanctioning authority of A-1 in its previous order dated 21.01.2015 as the final directions contained in the said order were only that "this court cannot proceed with the case in absence of sanction for prosecution from competent authority". Further, it was also clarified by the court in its above order dated 21.07.2017 that the previous order dated 21.01.2015 was neither being reviewed nor rectified and even otherwise, this court has no power to review or rectify its order.
18. Subsequent thereto, the CBI had obtained sanction for prosecution of A-1 from the President of India/Central Government vide sanction order no. C-13011/03/2005-Vig dated 09.10.2017 and it was issued under signatures of Sh. B.S. Murthy, Director, MoH&FW and all the relevant documents pertaining to grant of sanction were filed in the court on 15.12.2017 by CBI with an application containing a prayer to summon all the accused persons and vide order dated 08.02.2018 of the court, all the accused persons were summoned for their appearance before this court, except A-2 Ms. K.D. Varyani, who had since expired.
19. An application was then filed by A-1 on 27.09.2018 seeking his discharge in the case on ground that sanction for his prosecution has not been obtained from the competent authority. Though a reply thereto was also filed on behalf of CBI, but the application was not taken up for disposal separately and after ensuring the compliance of provisions of Section 207 Cr.P.C., the matter was fixed for arguments on charge.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 17 of 14820. Vide order dated 19.02.2019, this court has held that a prima facie case was made out from the chargesheet and documents placed on record against A-1 for the offence of criminal misconduct punishable U/S 13(2) r/w Section 13(1) (d) of the PC Act and he was also liable to be charged for the offences punishable U/S 420/468/471 IPC. It was further observed by this court that apart from the above substantive offences, A-1 was also liable to be charged for the offence of criminal conspiracy along with A-2 K.D. Varyani (since deceased), as well as with A-3 to A-8 individually, for commission of the offence of criminal conspiracy punishable U/S 120B r/w Sec 13(2) & 13(1) (d) of the PC Act and also r/w Sections 420/468/471 IPC. Accordingly, separate charges for the offence of criminal conspiracy punishable U/S 120B IPC r/w Section 13(2) r/w Section 13(1) (d) of the PC Act and r/w Sections 420/468/471 IPC against A-1 & A-3, A-1 & A-4, A-1 & A-5, A-1 & A-6, A-1 & A-7 and A-1 & A-8 were framed and besides the above, charges for the above said substantive offences were also framed against A-1 on the same day. It was also specifically observed by this court in its above order that the main conspiracy was between A-1 & A-2 K.D. Varyani (since deceased).
21. On the issue of sanction qua A-1, the Ld. Predecessor of this court in its above order had observed that sanction from the competent authority, i.e. Central Government acting through the President of India, has already been obtained by the CBI as per advice given by the MoH&FW and DoPT. It was further observed that, moreover, since A-1 had already demitted the office of President by the time cognizance was taken against him, which he had abused in the present case, going by the law laid in the case of Abhay Singh Chautala Vs. CBI, Criminal Appeal No. 1257/2011 decided by the Hon'ble Supreme Court vide order dated 04.07.2011 and the case of Prakash Singh RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 18 of 148 Badal Vs. State of Punjab, 2007 (1) SCC 1, no sanction for his prosecution was required even though he stood re-elected to the office of President of INC by the time he was summoned as an accused vide order dated 08.02.2018.
22. One Criminal Revision Petition No. 278/2019 was then filed by A- 1 before the Hon'ble High Court on sanction issue and vide order 10.02.2021, the said petition was permitted to be withdrawn on request of A-1 made to this effect that in the meanwhile, trial of case had progressed and was at the stage of defence evidence. The Hon'ble High Court had, however, again given liberty to petitioner to raise all pleas before this court at the stage of final arguments as were raised by him in the said petition. Further, it was also directed by the Hon'ble High Court that it would be open for petitioner to raise all other issues also before this court, as arose during the trial, and findings given by this court in the impugned order on charge dated 19.02.2019 will have no bearing on final decision.
23. It is necessary to mention here that A-6 and A-8 had also filed Criminal Writ Petition No. 1486/2019 and Criminal Revision Petition No. 313/2019 respectively against the above order dated 19.02.2019 of this court on the point of charge. The Criminal Writ Petition filed by A-6 was permitted to be withdrawn on request of the petitioner/accused vide order dated 14.02.2020 with liberty to argue all contentions before the trial court. The Criminal Revision Petition filed by A-8 was also dismissed on the same day vide a separate order of the Hon'ble High Court as evidence of prosecution was almost complete by that time and the matter had reached at a final stage. Hence, the Hon'ble High Court did not think it proper to interfere with the impugned order and the petition was dismissed with observations that this court shall RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 19 of 148 consider the case on merits, uninfluenced by any observations made in the said order.
24. The prosecution in support of its case has examined on record total 25 witnesses and the names & other details, as well as the gist of depositions made by these witnesses and the purpose of their examination are being given as under:-
(i) PW1 Sh. B.S. Murthy is the then Director (Vig.), MoH&FW on 09.10.2017 and he had signed sanction for prosecution of A-1 in this case on behalf of the President of India on being requested by CBI. He has stated that the President of India was the competent authority to remove the President of INC and to grant sanction for his prosecution and he has also proved the sanction order dated 09.10.2017 as Ex.PW1/B, which he signed in name of the President of India. He has further proved another letter of even date as Ex.PW1/A, vide which two copies of the above sanction order were forwarded by him to CBI and also three other letters dated 21.10.2016, 03.03.2017 and 25.05.2017 as Ex.PW3/C, Ex.PW3/D and Ex.PW3/E respectively, which were written by him in response to certain queries raised by CBI on the issue of competency of the authority for granting sanction for prosecution of A-1.
(ii) PW2 Sh. Harish Kumar was posted as Senior Assistant in Ward No. 5 (4) of the Income Tax Office, New Delhi on 08.04.2018 and on directions of his senior officers, he had joined investigation of this case on the said date and he is a witness of the specimen handwritings/signatures of A-1 Ex.PW2/A (colly) appearing on pages 30 to 52 of D-20, which were taken by the Investigating Officer (IO) in CBI office. However, he has stated RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 20 of 148 that as 11 years have passed since then, he was not able to identify the person whose specimen handwritings/signatures were taken in his presence though the said person gave it voluntarily.
(iii) PW3 Sh. V.P. Sharma was posted as Assistant Secretary (Administration) in the office of INC at the relevant time. He had dealt with the files of above six Institutions in his official capacity, which were put up before him by the dealing clerks. He stated that he further used to put up the files before the Secretary INC, or in absence of the Secretary, to the President of INC. He has also deposed about the legal status of INC and constitution and status of the Evaluation and Executive Committees for grant of approvals for recognition/feasibility certificates and enhancement of seats etc. to various nursing schools and colleges under the INC Act and rules framed thereunder. He is also a witness to the document D-2 i.e. production-cum-seizure memo dated 05.06.2007, vide which he had handed over the documents/files mentioned in the said memo to IO/Inspector S.Q. Ali of CBI and has proved it as Ex.PW3/A. On being shown, the documents/files D-8, D-7, D-6, D-4, D-5 and D-3, he had identified these files as the same files which he had handed over to the IO vide above memo and these files pertain to Institutes mentioned at serial no. 1, 4, 5, 3, 6 and 2 respectively in para 16.2 and on internal pages 14 to 20 of the chargesheet (as also reproduced on pages 7 to 12 of this judgment).
Further, on being shown the documents contained in these files, he has not only identified his signatures and the signatures and handwritings of A-1 & A-2, Ms. S.K. Chug, the previous RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 21 of 148 Secretary of INC, but also of various other officials including Ms. K.S. Bharti, the then Statistical Assistant and the LDCs/dealing hands namely Ms. Sakshi, Mr. Bhagwat, Mr. Man Mohan, Mrs. R. Gujral, Mr. Nanak Chand and Ms. Rajshree Rawat etc. and has thus exhibited/ proved on record the documents and notings contained in these files of above institutes. The depositions of this witness and the documents deposed about by him shall be discussed lateron and Institution-wise, while appreciating the evidence led on record in entirety.
(iv) PW4 Sh. Ram Saran was working as a peon in the office of MMTC located at Scope Complex, Lodhi Road, New Delhi at the relevant time and on 25.03.2008, he had joined investigation of this case in CBI office on directions of his senior officers and witnessed the taking of specimen handwriting and signatures (S1 to S29) of A-2 (since deceased) and also identified his signatures on the said sheets which have been exhibited as Ex.PW4/A (colly) (D-19). However, he did not name the said accused in his statement, though he stated that she was an old lady and she gave her handwriting and signatures voluntarily.
(v) PW5 Dr. Ms. Kanwaljit Gill, the then Principal, Shaheed Kartar Singh Sarabha College of Nursing, Village Sarabha, Ludhiana, Punjab and PW15 Dr. Rajinder Kaur Mahal, the then Professor, Christian Medical College and Hospital, Ludhiana, Punjab, were both ad-hoc Inspectors appointed by the INC to conduct inspection of Shaheed Udham Singh School of Nursing, Ratia, Fatehabad, Haryana. After inspection, they submitted their report dated 30.06.2006 Ex.PW3/E (on pages 220-247 of file D-
8) and had proved it on record by identifying their signatures.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 22 of 148(vi) PW6 Ms. Pushpa Mehta, the then Principal & Tutor, School of Nursing Ambala, Ambala City, Haryana and PW14 Ms. Meenakshi, the then Lecturer, Government College of Nursing, Jaipur, Rajasthan, were both ad-hoc Inspectors appointed by the INC to conduct inspection of Baba Farid Medical Institute and Hospital of Nursing, Kotkapur, Punjab. After inspection, they submitted their report dated 06/07.07.2006 Ex.PW3/AB (on pages 397-410 of file D-6) and had proved it on record by identifying their signatures.
(vii) PW7 Sh. Rakesh Balaji Likhar was posted as a LDC in Publication Cell of INC in the year 2008 and he stated that the prescribed syllabus of INC for nursing schools and colleges was being sold through him. On being shown D-24 (on pages 8 to
22), he identified the same to be the syllabus and regulations for Diploma in GNM course and also containing guidelines for the said course as well as B.Sc. (Nursing) course. He further deposed about the posts of President, Vice President and Secretary of INC, their tenures as well as the constitution of Evaluation and Executive Committees.
(viii) PW8 Dr. Ms. Jyoti Sarin, the then Principal, MM College of Nursing, Mullana, Ambala, Haryana and Prof. Renuka Das, the then Principal, PG College of Nursing, Gwalior, MP (not examined as a witness as her whereabouts were not traceable), were both ad-hoc Inspectors appointed by the INC to conduct inspection of Apollo College of Nursing, Indraprastha Hospital, Sarita Vihar, New Delhi. After inspection, they submitted their report dated 27.04.2006 Ex.PW3/BL (on pages 541-554 of file D-5) and she proved it on record by identifying her signatures as well as the signatures of Prof. Renuka Das.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 23 of 148(ix) PW9 Ms. J. Daisy, the then Associate Professor, Government College of Nursing, Trivandrum, Kerala and PW18 Ms. Valsamma Joseph, the then Professor, Government College of Nursing, Kottayam, Kerala were both ad-hoc Inspectors appointed by the INC to conduct inspection of Priyadarshini School of Nursing, Banglore. After inspection, they submitted their report dated 17.06.2006 Ex.PW3/CL (on pages 669-682 of file D-3) and had proved it on record by identifying their signatures.
(x) PW10 Ms Moly KT, the then Principal, Amrita College of Nursing, Amrita Institute of Medical Sciences, Kochi, Kerala and Ms. Prasana Kumari, the then Professor & Head, College of Nursing, Medical College, Kottayam, Kerala (not examined), were both the ad-hoc Inspectors appointed by the INC to conduct inspection of National School of Nursing, Hugli, Karnataka. After inspection, they submitted their report dated 02.05.2006 Ex.PW3/AR (on pages 459-486 of file D-4) and she proved it on record by identifying her signatures as well as the signatures of Ms. Prasana Kumari.
(xi) PW11 Sh. Aman Abraham was posted as a Stenographer in the office of INC in year 2008 and it was his duty to assist the Secretary and Assistant Secretary etc. in taking notes of minutes of different meetings and other works and even also to get implemented the decisions taken in such meetings. He says that he had worked with Ms. Bhattacharya, the then President of INC in the year 1995 and also with A-1 & A-2 in their above capacities and during their respective tenures. He had also identified signatures and handwritings of A-1 & A-2 as appearing on evaluation proformas of above six Institutions i.e. D-9 to D-14 RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 24 of 148 and D-15/1. He further identifies the signatures of PW3 Sh. V.P. Sharma on letters D-15/2 and D-15/3 and also states that all the above documents were handed over to Sh. Somnath Biswas, Inquiry Officer of CBI in this case, by him as well as by one dealing assistant Sh. Bhagwat Singh.
(xii) PW12 Sh. Bhagwat Singh is the dealing assistant of files of above six Institutions and he was posted as a LDC in office of INC at the relevant time. He has deposed about constitution of Evaluation and Executive Committees of INC and also about the procedure for grant of approvals for recognition and enhancement of seats etc. to such institutions, based on inspections conducted by the panel inspectors of INC. He further identifies the signatures of A-1 & A-2 as appearing on evaluation proformas D-9 to D-15 and D-15/1 of these six Institutions as contained in files D-3 to D-8 of the above institutions.
(xiii) PW13 Prof. S.F. Billalli, the then Principal, Bapuji College of Nursing, Davangere, Karnataka and PW16 Ms. Shameem Gulnazunnisa, the then Assistant Professor, Navodaya College of Nursing, Raichur, Karnataka, were both ad-hoc Inspectors appointed by the INC to conduct inspection of Asram College of Nursing, Eluru, Andra Pradesh. After inspection, they submitted their report dated 26/27.06.2006 Ex.PW3/N (on pages 610-623 of file D-7) and had proved it on record by identifying their signatures. They had also proved the letter Ex.PW13/A, vide which they had forwarded the said report to the Secretary INC.
(xiv) PW17 Ms. Manju Vatsa was posted as Principal of the College of Nursing at AIIMS, New Delhi at the relevant time and she was also elected as a member of the General Body of INC in RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 25 of 148 year 2000 and further, as a member of the Executive Committee of INC in year 2003. She also talks about composition of Evaluation and Executive Committees of INC and their working etc. and also the working of General Body of INC. She stated that the Evaluation Committee consisted of A-1 & A-2 only at the relevant time.
(xv) PW19 Sh. Somnath Biswas was posted as a Sub Inspector in the office of ACB, CBI, Delhi at the relevant time and he was assigned the preliminary inquiry of this case. On being shown the documents D-9 to D-14 and D-15/1 contained in files D-3 to D-8, he states that these documents were handed over to him by PW11 and PW12 during the course of inquiry. He further states that on his transfer from ACB, CBI, New Delhi to ACB, CBI, Kolkata, he had handed over all these documents to his successor Sub Inspector Sh. J.S. Yadav.
(xvi) PW20 Sh. Rajendra S. Shukla was posted as Joint Secretary in the MoH&FW in September, 2011 and he was also working as the Chief Vigilance Officer (CVO) for the said Ministry. He has only identified his signatures on a letter dated 02.09.2011 Mark PW20/A intimating CBI that the proposal of sanction for prosecution of A-1 was pending before the DoPT.
(xvii) PW21 Sh. Ravindra Pattar was the Director (Vigilance) in MoH&FW in December, 2011 and he has also simply identified his signatures on a letter dated 07.12.2007 Ex.PW21/A sent to the Director, CBI intimating that no sanction for prosecution of a retired government servant was required.
(xviii) PW22 Dr. S. Ahmed was posted as Assistant Government RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 26 of 148 Examiner of Questioned Documents (AGEQD), Office of GEQD, Shimla, Himachal Pradesh in December, 2008 and he had examined the questioned handwriting and signature of A-1 & A-2 as contained in files/ documents D-3 to D-8 and D-9 to D-15 and also the specimen handwritings and signatures of these two accused contained in D-20 and D-19 respectively and had given their report in this regard, as well as the reasons for said report. He has also proved the said report as Ex.PW22/B (D-21), which he had signed along with his colleague Dr. B. A. Vaid, the then Deputy GEQD, as well as the reasons for said report/opinion given by them as Ex.PW22/D (D-21). He further identified the signatures of Dr. B.A. Vaid on forwarding letter for the said report and proved it as Ex.PW22/A. He also stated that the above documents were examined and report given in response to the request letter of CBI Ex.PW22/C (D-18).
(xix) PW23 Dr. Rajindra Singh was posted as Principal Scientific Officer at CFSL, CBI, Lodhi Road, New Delhi in August, 2008 and in response to the CBI letter dated 01.05.2008 Ex.PW23/A, he had examined and analyzed scientifically the evaluation proformas D-9 to D-15 with reference to the evaluation proformas being part of D-3 to D-8, of the above six Institutions and had given an opinion that the torn portions appearing on certain marked portions of these documents could have been removed from certain other marked portions of the said documents.
(xx) PW24 Sh. S.Q. Ali is the main IO of this case and he has identified the signatures of the then SP, ACB, CBI, New Delhi on FIR of this case and proved it as Ex.PW19/DX1. He says that this case was initially entrusted for investigation to Sh. J. S. RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 27 of 148 Yadav, on whose transfer the investigation of case was assigned to him in March, 2007. He took over all the relevant documents of case from the previous IO vide handing over memo dated 20.03.2007 Ex.PW24/A (D-23).
During investigation of the case, he had also seized the files pertaining to above six Nursing Institutions from PW3 vide seizure memo dated 05.06.2007 Ex.PW3/A. He has also examined various witnesses and recorded their statements, some of which he got recorded through another officer, and had further sent the questioned documents of this case for opinion to Government Examiner of Questioned Documents, Shimla as well as to the Director, CFSL, CBI, New Delhi for comparison of specimen and questioned handwritings and signatures of A-1 & A-2 and for the other purposes and further received the reports thereof. He also identified signatures of the then SP, ACB, CBI, New Delhi on letters Ex.PW22/C and Ex.PW23/A forwarding the above documents to these laboratories. On conclusion of investigation, he though came to a conclusion that the original evaluation reports of these six Institutions depicting their correct state of affairs were replaced with positive reports to grant approvals and undue favors to these Institutions, but he could not prepare and file charge-sheet in the case as he stood transferred from the office of ACB, CBI, New Delhi.
(xxi) PW25 Sh. Pramod Kumar is the successor of PW24 and he was assigned investigation of this case on 30.01.2009 on transfer of PW24. He stated that pending grant of sanction for prosecution of A-1, he had filed the charge-sheet before court on 01.10.2009, along with list of witnesses and documents, and exhibited the same as Ex.PW25/A (colly). He has also RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 28 of 148 subsequently filed a supplementary charge-sheet against A-1 along with list of witnesses and documents on 15.02.2012 and exhibited it as Ex.PW25/B (colly). He further identified the signatures of the then SPs Sh. N.M. Singh and Sh. Ghanshyam Upadhyaya as appearing on these charge-sheets.
25. On conclusion of prosecution evidence, all the material evidence led on record was put up to the accused persons (except A-2 K.D. Varyani who stood already expired) in their separate statements recorded U/S 313 Cr.P.C. and they had denied all the incriminating evidence put to them to be either being incorrect or beyond their knowledge. All of them claimed in their statements that charge-sheet as well as the supplementary charge-sheet are both containing false allegations made on wrong appreciation of facts and law and none of the alleged offences is made out against them. They had also submitted that they have been falsely implicated by CBI in the present case and charge-sheet has been filed against them on the basis of some rough papers containing facts, which are of no significance and ought to have been discarded. They had also submitted that except their false implication or depositions made by the CBI officials in the present case, no other witness has deposed against them. They had also specifically denied having any knowledge of internal working of the office of INC with respect to approvals sought by them for grant of recognition or enhancement of seats etc. for different courses for their respective institutes. They had also expressed their ignorance regarding alleged substitution of adverse evaluation proformas filled or written by A-1 & A-2 in respect to grant of such approvals or recognitions etc. of their respective institutes and also about replacement of these proformas with favourable/positive proformas, though they admitted that they had applied for said approvals or RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 29 of 148 recognitions and their institutes were also inspected by the panel Inspectors of INC. They had also submitted that the expert evidence led on record is not based on proper reasoning and is against basic principles of forensic science and even the forensic experts were not competent enough to examine the documents of this case and to give opinions sought for by the CBI. They had also submitted that the investigation conducted by IO was biased and it was conducted with the sole motive of implicating them falsely in the present case.
26. A-1 T. Dileep Kumar in his statement had further submitted that the above approvals or recognitions etc. were though given by INC and he was President of INC at the relevant time, but the removal authority of President of INC is the Council itself as INC is a statutory body and its President is elected by members of the General Body of INC from amongst themselves. He had also submitted that only the first President of INC was to be appointed by the Central Government for a term of 5 years as per provisions of the INC Act and hence, the Central Government was the competent authority to grant sanction for prosecution of the President of INC only for the tenure of the first President of INC and therefore, it was not competent to grant sanction for his prosecution in the present case. He had further submitted that sanction for his prosecution granted in the present case by the Health Minister, MoH&FW, Government of India, on behalf of the President of India, is not a valid sanction as it has not been granted by the authority competent to grant it. He had further submitted that even all the relevant documents and material of this case were not forwarded or provided for perusal of the Minister of MoH&FW for taking his decision in this regard and hence, the Minister had not properly applied his mind in deciding to grant sanction for his prosecution. It had also been submitted that even PW1 Sh. B.S. Murthy was not competent to sign RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 30 of 148 his sanction order on behalf of the President of India.
27. Further, A-8 has also submitted in his statement that he was only a salaried employee of the Indraprastha Medical Corporation Ltd. (IMCL) and was neither a promoter nor owner of the said Corporation and hence, he has been wrongly prosecuted in the present case. He also submitted that the Corporation had always been headed by a Managing Director (MD) and it was divided in around 20 departments at the relevant time and these departments were being headed by separate Head of Departments (HoDs) and Apollo School of Nursing had always been headed by its Principal and Ms. Chander Kiran Matoo was the Principal of school at the relevant time. He further submitted that the school was never upgraded as a college till date and was still being run as a school. He also submitted that Ms. Anne Marie Moncure resigned as MD on 25.04.2006 and a new MD joined after around 7 months and the post of MD had thus remained lying vacant for a period of about 7 months and he being the Chief Executive Officer (CEO) of the Corporation had simply signed some correspondence sent by the Principal of school in connection with grant of approval pertaining to their institute, though proposal in this regard was initiated by the Principal of school and all the previous correspondence initiated by the Principal was sent to the INC under signatures of the MD. He further submitted that powers of MD were never delegated to him.
28. Only A-8 Jaideep Gupta has led evidence in his defence and though initially A-1 had also chosen to lead defence evidence, but subsequently on 02.02.2021, it was stated on his behalf by the Ld. Counsel representing him that the said accused did not want to lead any defence evidence and his defence evidence may be closed. Hence, in view of the above submissions made on behalf of A-1, his defence evidence was closed on that day itself.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 31 of 14829. A-8 Jaideep Gupta had examined on record total 4 witnesses in his defence and their names, other details and brief purpose of examination etc. are being stated as under:-
(i) DW1/A8 Sh. Vishwa Bhusan Srivastava is an officer of H.R. Department of IMCL, Sarita Vihar, New Delhi and on being summoned, he has produced in court record in respect of assumption of charge by Ms. Anne Marie Moncure as MD of the said Corporation w.e.f. 16.08.2004 as Ex.DW1/A8/A, record pertaining to appointment of A-8 Jaideep Gupta as Chief Operating Officer (COO) of the Corporation as Ex.DW1/A8/B (colly), record in respect of appointment of Ms. Chander Kiran Matoo as Principal of Apollo School of Nursing Ex.DW1/A8/C (colly) and of her resignation from the said post as Ex.DW1/A8/D.
(ii) DW2/A8 Sh. C.P. Tyagi is the Chief Financial Officer of IMCL and he deposed that 7-8 major departments of Corporation were being headed by the same MD. He also deposed about the appointment as MDs of Ms. Anne Marie Moncure and Mr. Richard Leroy Larison with effect from the given dates and further that the school of Nursing was being headed by its Principal.
(iii) DW3/A8 Sh. Priya Darshan Walia is the Team Member of Link Intime India Pvt. Ltd. at Janakpuri, New Delhi, which is the Registrar and Transfer Agent of IMCL and look after its shares. He states that in response to an email received from Sh. Nitin Mehra of IMCL, it was replied by their company vide Ex.DW3/A8/A that A-8 or his wife were not holding any shares of the said Corporation since 2005.
(iv) DW4/A8 Sh. Priya Ranjan is the Associate Vice President-
Corporate Affairs and Legal, and also working as Company RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 32 of 148 Secretary of IMCL, having joined it as such on 01.06.2020. He has produced before this court a register containing minutes of meetings of the Board of Directors of Corporation from 20.05.2004 to 29.01.2008 and also produced in evidence attested copies of minutes of the meetings of the Board of Directors dated 20.05.2006 as Ex.DW4/A8/A (colly) pertaining to resignation of Ms. Anne Marie Moncure as MD of the Corporation w.e.f 26.04.2006 and also promotion of A-8 Jaideep Gupta as Chief Executive Officer (CEO) of the Corporation w.e.f. 06.03.2006, minutes of meeting of the Board of Directors of the Corporation dated 29.01.2007 pertaining to appointment of Mr. Richard Leroy Larison as MD of Corporation w.e.f 01.12.2006 Ex.DW4/A8/B (colly) and minutes of Meeting of Board of Directors dated 25.01.2006 regarding upgradation of School of Nursing to the College of Nursing as Ex.DW4/A8/C (colly). He further stated that contents of document/page nos.424/337 of D-5 filed marked as Mark PW3/AV were part of the minutes of meeting of Board of Directors held on 25.01.2006.
30. I have heard the extensive final arguments advanced and submissions made by Sh. Pankaj Gupta Ld. Sr. PP for CBI as well as Dr. Sushil Kumar Gupta, Ld. Counsel for A-1 assisted by Sh. R. S. Ahuja, Advocate; Sh. Rajesh Khanna, Ld. Counsel for A-4 to A-7 assisted by Sh. Vikrant Nilesh Goyal, Advocate and Sh. N. Hariharan, Ld. Senior Counsel for A-8 with Ms. Manisha Sharma, Sh. Pramod Jalan, Sh. Varun Deshwal, Sh. Sidharth Das, Ms. Astha Nigam and Sh. Neeraj Chaudhari, Advocates. I have also carefully perused the entire record of the case, including the written submissions and case law filed on behalf of the parties.
REQUIREMENT AND VALIDITY OF SANCTION FOR PROSECUTION OF A-1 T. DILEEP KUMAR RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 33 of 148
31. As already discussed, vide its orders dated 10.02.2021 passed in Criminal Revision Petition No. 278/2019 filed by A-1 against the order on charge of this court, the Hon'ble High Court had given liberty to the said accused to raise all the pleas before this court, including the pleas on the point of sanction, at the stage of final arguments. It was also directed by the Hon'ble High Court that findings given by this court in the impugned order dated 19.02.2019 will have no bearing on final decision. Thus, the issue of sanction and legality thereof is still wide open and has to be determined by this court, in the light of rival contentions advanced from both sides and the evidence brought on record.
32. As also discussed earlier, when charge-sheet was initially filed in the case before this court on 01.10.2009, the CBI had already applied for grant of sanction for prosecution of A-1 and the same was still awaited and hence, it was stated in the charge-sheet that a supplementary charge-sheet in respect of the said accused will be filed as and when the sanction for his prosecution was received. The supplementary charge-sheet was filed by CBI on 15.02.2012 with a submission that MoH&FW, on advice of DoPT, had communicated to them that since A-1 stood already retired from his post on 30.06.2011 and ceased to be a public servant, no sanction for his prosecution was required. Therefore, on the same day, the court had directed for issuance of summons to the said accused.
33. However, as also discussed above, subsequently, it had transpired that at the above relevant time, A-1 was actually holding two posts, i.e. post of the President of INC as well as the post of Nursing Advisor to the Government of India, MoH&FW, and though he stood retired from the post of Nursing Advisor w.e.f. 30.06.2011, but he was RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 34 of 148 also re-elected as the President of INC w.e.f. 26.06.2011 and hence, he was holding the post of President of INC and thus was admittedly a public servant at the relevant time, when he was directed to be summoned by the court as an accused vide its above order dated 15.02.2012.
34. It is well settled that sanction U/S 19 of the PC Act is required from the competent authority of that office of accused which the public servant is alleged to have abused and the relevant point of time in reference to obtaining or producing the said sanction is the time when the court is called upon to apply its mind for taking cognizance against the said accused for the offences which have been alleged against him. It is so because without a valid sanction accorded by the competent authority of the accused public servant, a court cannot take cognizance of the alleged offences in terms of provisions contained in Section 19 of the PC Act. Reference in this regard can also be made to the judgments of the Hon'ble Supreme Court in cases Prakash Singh Badal (Supra) and Abhay Singh Chautala (Supra). Hence, in considered opinion of the undersigned, the relevant date for considering the requirement of a valid sanction against the accused in present case is not 08.02.2018 as observed by the Ld. Predecessor of this court in his order on charge dated 19.02.2019 and rather, the same is 15.02.2012. It is so because 15.02.2012 is the date when the CBI had presented the supplementary charge-sheet before this court and the court had directed for summoning A-1 as accused in this case for the first time. As far as the date 08.02.2018 is concerned, it is actually the date when the court had redirected for summoning the said accused, as well as the remaining accused, on an application moved by CBI, when the proceedings of the case were lying adjourned sine- die and after the CBI had obtained the sanction for prosecution of A-1 RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 35 of 148 from the President of India i.e. the Central Government.
35. However, still the position or question remains the same as to whether the accused was holding the same office of President of INC which he had abused or a different office at the time when cognizance of alleged offences qua him was taken and he was summoned as an accused because admittedly, the re-election of accused to the office of President of INC took place in the year 2011 and he was re-elected as President of INC w.e.f. 26.06.2011, whereas the cognizance qua him was taken and he was summoned as an accused by the court only thereafter i.e. on 15.02.2012. The alleged offences in this case are stated to have been committed during the years 2006-2007 and 2007- 2008 and thus, the accused was still holding the post of President of INC when he was summoned as an accused in this case, but it was not the same office as the term of office which he is alleged to have misused expired in the year 2010 or 2011 and he stood re-elected to the same post w.e.f. 26.06.2011. The exact date on which the tenure of his previous office expired has not been made clear from the records pointed out and the submissions made from both the sides.
36. As held in the cases of Prakash Singh Badal (Supra) and Abhay Singh Chautala (Supra), if the public servant was holding two or more offices at the relevant time when he was summoned as an accused, then it is for the competent authority of the office which he is alleged to have misused to grant permission for his prosecution under the PC Act because the competent authority of the other office, which the accused may be holding at the point of time when sanction for his prosecution is required by the prosecuting agency, may not be in a position to apply its mind appropriately to the facts and circumstances of the case or to decide whether the prosecution intended to be lodged RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 36 of 148 against the public servant is actually bonafide or genuine or the same is frivolous or tendentious, which may even defeat the very object of incorporation of the said provision relating to sanction in Section 19 of the Act to accord protection to public servants acting in discharge of their official duties from such frivolous prosecutions.
37. It has been argued by Ld. Sr. PP for CBI that since the accused had already demitted his office which he had abused in the present case, no sanction at all for his prosecution was required as was also held by this court in its above order on charge, on the basis of observations made in cases of Prakash Singh Badal (Supra) and Abhay Singh Chautala (Supra). On the other hand, it has been argued by Ld. Counsel representing A-1 that even if the accused had demitted the said office by the time cognizance of alleged offences against him was taken by this court and he was summoned in the case vide order dated 15.02.2012, a sanction for his prosecution was very much required as he stood re-elected as President of INC w.e.f. 26.06.2011, though for a different term. In this context, he has also referred to the amendment effected by the Parliament in Section 19 (1) of the PC Act by the Amendment Act No. 16 of 2018, by which the protection contained under the above provision has also been extended to public servants who stand retired or are no more holding the office which they are alleged to have abused.
38. To appreciate the rival submissions being made on this issue, the relevant provisions of Section 19 of the PC Act, as it existed prior to the above amendment, are being reproduced herein below:-
"19. Previous sanction necessary for prosecution. - (1) No Court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013],-RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 37 of 148
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974);
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation. - For the purposes of this section, -
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
39. The provisions presently contained in Section 19 of the PC Act, after being amended by the above Amendment Act of 2018, is also being reproduced herein below:-
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 38 of 148"19. Previous sanction necessary for prosecution:- (1) No court shall take cognizance of an offence punishable under sections 7, 11, 13 and 15 alleged to have been committed by a public servant except with the previous sanction, save as otherwise provided in the Lokpal and Lokayuktas Act, 2013 -
(a) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed, or as the case may be, was at the time of commission of the alleged offence employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for taking cognizance by the court of any of the offences specified in this sub-section, unless-
(i) such person has filed a complaint in a competent court about the alleged offences for which the public servant is sought to be prosecuted; and
(ii) the court has not dismissed the complaint under section 203 of the Code of Criminal Procedure, 1973 and directed the complainant to obtain the sanction for prosecution against the public servant for further proceeding:
Provided further that in the case of request from the person other than a police officer or an officer of an investigation agency or other law enforcement authority, the appropriate Government or competent authority shall not accord sanction to prosecute a public servant without providing an opportunity of being heard to the concerned public servant.
Provided also that the appropriate Government or any competent authority shall, after the receipt of the proposal requiring sanction for prosecution of a public servant under this sub-section, endeavour to convey the decision on such proposal within a period of three months from the date of its receipt.RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 39 of 148
Provided also that in case where, for the purpose of grant of sanction for prosecution, legal consultation is required, such period may, for the reasons to be recorded in writing, be extended by a further period of one month.
Provided also that the Central Government for the purposes of sanction of prosecution of a public servant, prescribe such guidelines as it considers necessary.
Explanation.- For this purpose of sub clause (1), the expression "public servant" includes such person--
(a) who has ceased to hold the office during which the offence is alleged to have been committed;
(b) who has ceased to hold the office during which the offence is alleged to have been committed and is holding an office other than the office during which the offence is alleged to have been committed.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974);
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
(4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation. - For the purposes of this section, -
(a) error includes competency of the authority to grant sanction;RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 40 of 148
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
(Emphasis supplied)
40. As is clear from the above two sets of provisions in force at different points of time, the amendment which has been effected by the legislature by the above Amendment Act of 2018, inter-alia, provides protection not only to public servants holding office when they were sought to be prosecuted for some alleged acts of abuse of their office, but also to public servants who have already ceased to hold the said office, irrespective of the fact whether they are holding any other office or not at the time when they are being sought to be prosecuted.
41. It is the contention of the Ld. Defence Counsel that the amendments brought in force in Section 19 of the PC Act on this aspect by the Amendment Act of 2018 are only explanatory or declaratory in nature as the provision pertaining to sanction is not a part of the substantive law, but is a part of the procedural law and hence, amendments have to be given a retrospective effect and therefore, sanction for prosecution of A-1 in this case was very much required even it is held that the term of his earlier office allegedly abused by him stood expired in the year 2010 or 2011 and he stood re- elected or was holding a new office w.e.f. 26.06.2011. In support of his above arguments, he has also referred to and relied upon the judgments in cases Kapur Chand Pokhraj Vs. State of Bombay, AIR 1958 SCC 993; Commissioner of Income Tax Vs. Podar Cement Pvt. Ltd., (1997) 5 SCC 482; Allied Motors (P) Ltd. Vs. Commissioner of Income Tax, (1997) 3 SCC 472; Brij Mohan Das Laxman Das Vs. Commissioner of Income Tax, Allahabad, (1997) 1 SCC 352 and Jamshedpur Motor Accessories Stores Vs. UOI & RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 41 of 148 Ors., 1990 SCC OnLine Pat 369.
42. It has been observed that none of the above judgments has been given with reference to the provisions of sanction or of the PC Act. Moreover, the Hon'ble Supreme Court in the case of State Of Telangana Vs Managipet @ Mangipet Sarveshwar has specifically dealt with this issue and has observed vide its judgment dated 06.12.2019 that sanction for prosecution of a retired accused public servant is not required if the offence is committed before amendment in the PC Act on 26.07.2018 by the Amendment Act of 2018. The relevant propositions of law laid down by the Hon'ble Supreme Court in the said case are being reproduced herein below:-
"Mr. Guru Krishna Kumar further refers to a Single Bench judgment of the Madras High Court in M. Soundararajan v. State through the Deputy Superintendent of Police, Vigilance and Anti Corruption, Ramanathapuram 20 to contend that amended provisions of the Act as amended by Act XVI of 2018 would be applicable as the Amending Act came into force before filing of the charge sheet. We do not find any merit in the said argument. In the aforesaid case, the learned trial court applied amended provisions in the Act which came into force on 26 th July, 2018 and acquitted both the accused from charge under Section 13(1)
(d) read with 13(2) of the Act. The High Court found that the order of the trial court to apply the amended provisions of the Act was not justified and remanded the matter back observing that the offences were committed prior to the amendments being carried out. In the present case, the FIR was registered on 9th November, 2011 much before the Act was amended in the year 2018. Whether any offence has been committed or not has to be examined in the light of the provisions of the statute as it existed prior to the amendment carried out on 26 th July, 2018."
(Emphasis supplied)
43. Therefore, in view of law laid down by the Hon'ble Supreme Court in the above said case, this court is not in a position to accept the arguments of Ld. Defence Counsel and to hold that the above amendment effected by the legislature in Section 19 of the Act is only RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 42 of 148 declaratory or explanatory in nature or a part of the procedural law and hence, it requires to be given retrospective effect and rather, the same has to be treated as amendment in substantial provisions of the Act and can only be given prospective operation.
44. Thus, as has been held by the Hon'ble Supreme Court in the cases of Prakash Singh Badal (Supra) and Abhay Singh Chautala (Supra), which in fact reiterate the law laid down in the case of R.S. Nayak Vs. A.R. Antulay & Ors., (1984) 2 SCC 183 being relied upon by Ld. Counsel for A-1 himself, there was no requirement for the prosecuting agency for obtaining sanction for prosecution of the said accused from the concerned competent authority on date 15.02.2012, i.e. when cognizance of offences qua him was taken and he was directed to be summoned as an accused by the court, as on that day he was holding a different office of President of INC for a different term commencing from 26.06.2011, than the office which he is alleged to have abused during his previous term as President of the said Council which ended in 2010 or 2011.
45. Now, coming to the other aspect pertaining to legality of the sanction, though this court has already arrived at a conclusion that no sanction U/S 19 of the PC Act for prosecution of A-1 was actually required in this case, but since a sanction has already been obtained by the CBI for his prosecution in this case and the same has been granted vide order dated 09.10.2017 Ex.PW1/B on record, it also becomes necessary to deal with legality thereof in light of the rival submissions advanced on this aspect from both sides. The said sanction order is found to be signed by PW1 Sh. B. S. Murthy, the then Director (Vigilance), MoH&FW, on behalf of the Central Government acting through the President of India. PW1 has stated on record that as RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 43 of 148 per the Business Authentication Rules of Ministry of Home Affairs, Government of India, 2002, he being Director was one of the officers who were authorized to sign the sanction order on behalf of the Hon'ble President of India and it was done after the approval of Hon'ble President was already taken to this effect in the note-sheet file.
46. It has been vehemently argued by Ld. Counsel for A-1 that since INC was a statutory body incorporated under the INC Act, 1947 and the accused was elected as President thereof by members of the said Council consisting of around 70 members, as per proviso to Section 3 (2) of the INC Act it was the Council itself which was competent to grant sanction for prosecution of the accused and the Central Government or the President of India had nothing to do with affairs of the Council and hence, it was not within their competence to grant the sanction for prosecution of accused in the present case. It is also his submission that since the CBI had obtained sanction for prosecution of accused from the Central Government, i.e. President of India, going by the view taken by the MoH&FW, as per advice given by the Ministry of Law and Justice and DoPT that Central Government was the competent authority to grant sanction, the above sanction granted by the Central Government was not a valid sanction. It has also been argued that sanction from Central Government was obtained by CBI in violation of the order dated 21.01.2015 of this court, vide which it was specifically observed that INC was the competent authority to grant sanction for prosecution of A-1 and hence, the above sanction has to be declared illegal. Admittedly, the CBI did not even challenge the above order dated 21.01.2015 of this court before the Hon'ble High Court, though an application for rectification/modification of the said order was moved by them before this court and it was dismissed by the court, as already discussed.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 44 of 14847. On the other hand, Ld. Sr. PP for CBI has argued that sanction for prosecution of accused granted by the President of India is a valid sanction taken by the CBI as per advice given by the Ministry of Law and Justice and DoPT and the stand taken by the competent authority of the concerned MoH&FW, which was the controlling authority of INC as the INC was functioning under the supervisions and guidelines of the MoH&FW. It is also his contention that even if it is held that INC was the competent authority to grant sanction in this case, the sanction for prosecution of accused granted by the President of India cannot be challenged or held illegal as the President of India is the head of nation and holds the highest constitutional office.
48. Before appreciating the rival submissions being advanced from both sides on this issue, it is necessary to reproduce here the provisions contained in Section 3 (2) of the INC Act:-
"(2) The President of the Council shall be elected by the members of the Council from among themselves:
Provided that for five years from the first constitution of the Council the President shall be a person nominated from amongst the members of the Council by the Central Government, who shall hold office during the pleasure of the Central Government."
49. It is also necessary to reproduce here the provisions of Section 6 (1) of the said Act and the same are as under:-
"6. Term of office and casual vacancies.
(1) Subject to the provisions of this section, an elected or nominated member, other than a nominated President, shall hold office for a term of five years from the date of his election or nomination or until his successor has been duly elected or nominated, whichever is longer."
50. The above Act was enacted in the year 1947 and as per provisions contained in Section 1 of the said Act, it came into force 'at RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 45 of 148 once'. As per Section 2 of the said Act, 'the Council' means 'Council constituted under this Act' and 'States Council' means 'a Council constituted under the law by a State to regulate the registration of nurses, midwives or health visitors in the State. Section 3 (1) of this Act deals with constitution and composition of the 'Council', i.e. Central Council constituted under the above Act, and it says that the Central Government shall as soon as may constitute a Council consisting of members from different streams, as has been provided under the said Section, and though total number of members of the Council is not found stated in the above sub-section, but it has been stated that the Council consists of 70 members in total, which include four members nominated by the Central Government and three members elected by the Parliament. It has been stated that the first Council was constituted in the year 1947 itself and A-1 is stated to have been elected as President of the Council for the first time in the year 2000, though it is also stated that he had been re-elected as President of Council on various subsequent occasions. It is also the admitted case of prosecution that the INC Act is silent about the authority or procedure for removal of its President. The Vice President and Secretary etc. of the Council are also elected by members of the Council from amongst themselves.
51. As already discussed, when the proceedings of this case were adjourned sine-die by the court vide order dated 21.01.2015 while observing, inter-alia, that the competent authority to grant sanction for prosecution of accused was the INC itself, the CBI had come up with an application dated 08.06.2017 seeking rectification/review of the above order and it was submitted therein that the MoH&FW had now clarified that the sanctioning authority of A-1 was the President of India/ Central Government and not INC and this application was disposed off RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 46 of 148 by this court vide order dated 21.07.2017 with observations that no order from the court was required by the CBI to name the sanctioning authority and the sanction can be obtained by CBI from whatsoever authority the CBI considers competent to grant the same and it can be filed before this court U/S 173 (2) Cr.P.C. in the form of supplementary charge-sheet, though the court also observed therein that it was not rectifying or modifying its earlier order. In any case, the observations made by this court regarding competence of the authority entitled to grant prosecution sanction qua A-1 in its orders dated 21.01.2015 and 21.07.2017 are no more relevant as the Hon'ble High Court vide its above order dated 10.02.2021 passed in the above Criminal Revision Petition No. 278/2019 filed by A-1 has left the issue of sanction wide open and has permitted the accused to raise all his pleas on the said issue before this court during the course of final arguments.
52. It has been observed by this court that apart from proving the sanction order Ex.PW1/B and its forwarding letter Ex. PW1/A, PW1 Sh. B.S. Murthy has also duly proved on record three other letters dated 21.10.2016, 03.03.2017 and 25.05.2017, which were sent under his signatures to the concerned SP of CBI during the course of correspondence between CBI and the MoH&FW. A perusal of contents of these letters makes it crystal clear that the view that it was the Central Government or the President of India which/who was the authority competent to grant sanction for prosecution of A-1 was finalized by the Ministry after it had taken the opinions and advice of the offices of CVC of the Ministry, DoPT and the Ministry of Law and Justice. The Ministry of Law and Justice vide their note dated 21.01.2016 is stated to have opined that Section 3 (2) of the INC Act prescribes that the President of Council shall be elected by members of the Council from among themselves and proviso to this Section RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 47 of 148 specifies that President shall be a person nominated from amongst the members of the Council and his tenure will be to the pleasure of the Central Government. Further, they also opined that as per Section 16 of the General Clauses Act, 1897, the power to appoint includes power to suspend and dismiss also and hence, it was the Central Government who was competent to remove the President of INC.
53. The above advice of the Ministry of Law and Justice was though not binding upon the MoH&FW, but still the MoH&FW had communicated this advice to the CBI and acting on its basis, the CBI had also obtained the sanction for prosecution of A-1 in the case from the Central Government i.e. the President of India. However, in considered opinion of this court, the above advice tendered by the Law Ministry to the MoH&FW is based on misinterpretation of the provisions contained in Section 3 (2) of the INC Act, its proviso and other provisions of the said Act. It is so because as per provisions of Section 3 (1) of the Act, the Central Government was competent to constitute only the first Council under the said Act and members of the said Council were to be taken from different fields or streams as stated in that Section itself. Though as per the provisions contained in sub- section (2) of Section 3 of the Act, the President of the Council is to be elected by members of the Council from amongst themselves, but it is very much clear from the language of the proviso to sub-section (2) that it was only for the first five years from the first constitution of the Council, the President of Council was to be a person nominated by the Central Government from amongst the members of the Council and he was to hold office during pleasure of the Central Government. As stated above, the first Council under the said Act was constituted in the year 1947 itself and hence, the provisions contained in the above proviso lost its significance after the tenure of President of the first Council RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 48 of 148 nominated by the Central Government from amongst the members of the Council was completed.
54. As also discussed above, according to Section 6 of the Act, an elected or nominated member, other than a nominated President, was to hold office for a term of five years from the date of his election or nomination or until his successor was duly elected or nominated. Thus, though according to Section 6 of the Act, the above time limit was not to be made applicable to a nominated President, but it is not the case of prosecution that A-1 is a nominated President of the Council by Central Government as admittedly, he is an elected President of the Council and was elected as such for the first time in the year 2000, i.e. after more than 50 years from the constitution of the first Council. Hence, the Central Government cannot be said or considered to be the appointing authority of A-1 as per provisions contained in the said Act and rather, it is the Council itself which has to be treated as his appointing authority in terms of Section 3 (2) of the Act as a President of the Council is elected by members of Council from amongst themselves. Again, the Council is also to be taken as the removal authority of the President in terms of Section 16 of the General Clauses Act. Moreover, Section 19 (2) of the PC Act, as reproduced earlier, also states that where for any reason whatsoever any doubt arises about the competence of an authority to grant sanction for prosecution of an accused public servant then sanction shall be given by that authority who is competent to remove such public servant from his office. Reference in this regard can also be made to the judgment of Hon'ble Supreme Court in the celebrated case of Dr. Subramanian Swamy Vs. Dr. Manmohan Singh & Anr., SLP (Civil) No. 27535/2010 decided on 31.01.2012. Hence, it is the Council, i.e. INC, which is/was competent to grant sanction for prosecution of A-1 and not any RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 49 of 148 other person or authority as per the mandate contained in INC Act.
55. However, now we have to see if the sanction for prosecution of accused which has been given in name of the President of India, on behalf of Central Government and under signatures of PW1 being Director of MoH&FW, is a valid sanction or not. It is the contention of Ld. Sr. PP for CBI that the President of India being head of the nation was very much competent to grant sanction for prosecution of A-1, whereas the argument of Ld. Defence Counsel is that the above sanction cannot be treated as a legal or valid sanction as the Central Government or President is not the appointing authority of A-1 and the sanction was to be granted by the appointing authority only and the sanction cannot be treated as valid or legal even if it has been granted by an authority which is higher in rank to the sanctioning authority.
56. It cannot be ignored that the President of our country is head of the nation and Union Government is headed by him. He also holds the highest constitutional post. It is now well settled that though prejudice may be caused to an accused public servant if sanction for his prosecution is granted by an authority inferior to or lower in rank to his appointing authority, but no such prejudice is caused to him when sanction for his prosecution is granted by an authority which is superior in rank to his appointing authority. In the case of Sampuran Singh Vs State of Punjab, AIR 1982 SC 1407, the issue before the Full Bench of the Hon'ble Supreme Court was whether the sanction for prosecution of a Sectional Officer (Overseer) in PWD (Irrigation Department) of the Government of Punjab granted by the Chief Minister of State was a valid sanction or not because as per applicable rules the same was required to be granted by Chief Engineer of the said Department and the Hon'ble Supreme Court had upheld the said RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 50 of 148 sanction granted by Chief Minister of the State. The relevant observations made by their Lordships in the said case are being reproduced herein below:-
"22. In the present case we are called upon to decide the question whether the authority according sanction was competent to do so with in the meaning of Section 6(c) of the Prevention of Corruption Act. Section 6(c) contemplates that the sanctioning authority must be competent to remove the person from his office. Rule 8 of the Punjab Public Works Department (Irrigation Branch) Overseers Engineering State Service, Class III, Rules 1955, however, provides that the appointing authority of the Sectional Officer is the Chief Engineer. Therefore, removing authority could not be inferior or subordinated rank to the Chief Engineer in view of Article 311(1) of the Constitution. The Chief Minister concerned is not inferior or subordinate to the Chief Engineer. Article 311(1) of the Constitution enjoins that no person who is a member of a civil service of the Union or an all- India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Under this Article the authority to remove should not be subordinate to that by which he was appointed. That does not mean that the power can not be exercised by an authority higher then the appointing one.
23. The true legal position is clarified in the following decisions. In Mahesh Prasad v. The State of Uttar Pradesh this Court held:
In view of Article 311(1) of the Constitution of India and Rule 1705(c) of the Indian Railway Establishment Code, Volume I (1951 Edition) a sanction under Section 6(c) of of the Prevention of Corruption Act, 1947(as it existed prior to August 12, 1952) may be given either by the very authority who appointed the public servant or by an authority who is directly superior to such appointing authority in the same department. But such sanction is also legal if it is given by an authority who is equal in rank or grade with the appointing authority. Sanction is invalid if it is given by one who is subordinate to or lower than the appointing authority.
24. In The State of Uttar Pradesh and Ors. v. Babu Ram Upadhya dealing with the pleasure of the President under Article 310 of the Constitution this Court summarised the legal position thus:
The position with regard to the tenure of public servants and to the taking of disciplinary action against them under the present Constitution was as follows:
(i) Every person who was a member of a public service described in Article 310 of the Constitution held office during the pleasure of the President or the Governor.RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 51 of 148
(ii) The power to dismiss a public servant at pleasure was out side the scope of Article 154 and, therefore, could not be delegated by the Governor to a subordinate officer, and could be exercised by him only, in the manner prescribed by the-Constitution.
(iii) This tenure was subject to the limitations of qualifications mentioned in (iv) Parliament or the Legislature of States could not make a law abrogating or modifying this tenure so as to impinge upon the overriding power conferred upon the President or the Governor under Article 310, as qualified by Article 311. (v) Parliament or the Legislatures of States could make a law regulating the conditions of service of such a member which included proceedings by way of disciplinary action, without affecting the powers of the President or the Governor under Article 310 read with Article 311.
(vi) Parliament and the Legislatures also could make a law laying down and regulating the scope and content of the doctrine of "reasonable opportunity" embodied in Article 311 but the said law was subject to judicial review.
(vii) If a statute could be made by Legislatures within the foregoing permissible limits, the rules, made, by an, authority in, exercise of the power conferred there under would likewise be efficacious within the said limits.
25. In view of the. proposition laid down in the case no law by the Parliament or by the State Legislature could abrogate or modify to impinge upon the over riding power conferred on the President or the Governor tinder Article 310 read with Article 311 of the Constitution."
(Emphasis supplied) Reference on this issue can also be made to the subsequent judgments of the Hon'ble Supreme Court in cases of Surjit Ghosh Vs. Chairman & Managing Director, United Commercial Bank & Ors., AIR 1995 SC 1053; Balbir Chand Vs. FCI Ltd & Others, AIR 1997 SC 2229; A. Sudhakar Vs. Post Master General, Hyderabad & Anr, (2006) 4 SCC 348 and The Secretary, Ministry of Defence & Ors. Vs. Prabhash Chandra Mirdha, AIR 2012 SC 2250.
57. The judgment in case of Hussein Ghadially Vs. State of Gujarat, (2014) 8 SCC 425, being relied upon by Ld. Counsel for A-1 on this aspect is of no help to the case of said accused as the above judgment is found to have been given with reference to interpretation of RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 52 of 148 provisions of Section 20-A of the Terrorist and Disruptive Activities (Prevention) Act, 1987, dealing with prior approval of District Superintendent of Police for recording of any information pertaining to commission of offences under the said Act and it has not been given with reference to interpretation of Section 19 of the PC Act. Moreover, even otherwise, the same cannot be applied in view of the above Full Bench decision of the Hon'ble Supreme Court in the case of Sampuran Singh (Supra).
58. Now, coming to another aspect pertaining to sanction, it is also well settled now that the decision to grant or refuse sanction lies with the sanctioning authority itself and the courts should not try or attempt to unnecessarily find faults in the sanction order, unless sanction order itself shows or reflects complete non application of mind on the part of sanctioning authority. It is also required that the entire material and records should be placed before the sanctioning authority to enable it to apply its mind to the facts and circumstances of the case and to take a decision about grant or refusal of the sanction.
59. Though, Ld. Counsel representing A-1 has also vehemently challenged the competency of the authority granting sanction for prosecution of A-1, but on the aspect of non application of mind the said challenge is not found as much strong as was on the other aspects already discussed. Moreover, PW1 Sh. B.S. Murthy in his statement made before this court has clearly deposed that as per the Business Transaction Rules of the Government of India, the MoH&FW was the competent authority to grant sanction for prosecution of A-1 as INC was directly working under supervision of the said Ministry. He has also stated that the decision for prosecution of A-1 was taken by the Hon'ble Minister of their department after examining records and RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 53 of 148 application of mind and his approval for this purpose was taken in the note-sheet file. He has further stated on record specifically that the sanction order, as per the Business Authentication Rules of Ministry of Home Affairs, Government of India, 2002 was signed by him as he being a Director in the said Ministry was one of the officers who were authorized to sign it on behalf of the President of India. Even the sanction order Ex. PW1/B states that the sanction for prosecution of A- 1 was given after facts and circumstances of the case were carefully examined by the competent authority and the competent authority had also gone through the files, statements of witnesses, documents and all other material placed before him in respect to allegations leveled against the said accused.
60. No serious flaws could be pointed out by Ld. Counsel for A-1 in the above sanction order and nothing could also be referred by him to enable this court to form an opinion or to draw an inference to the effect that the above sanction was granted by the Central Government without any application of mind or without examining any records and documents. Hence, simply because PW1 was not able to remember as to whether chargesheet previously filed by the CBI was placed before him or not when he had signed the said sanction order and also as to whether the sanction was previously applied by CBI with respect to the post of A-1 as Nursing Advisor to MoH&FW or as President of INC, no such inference regarding non application of mind on the part of sanctioning authority can legitimately be drawn by this court. Moreover, as already discussed, it lies within the sole prerogative of the sanctioning authority itself to take a decision in the matter after a careful examination of all the relevant records and evidence and that decision has not to be called in question or interfered with by the courts, unless some serious prejudice is shown to have been caused to RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 54 of 148 the accused as a result thereof. Hence, this court holds that the above sanction for prosecution of A-1 accorded vide sanction order Ex. PW1/B of the Central Government, acting through the President of India, was accorded after due application of mind and PW1 was also competent to sign it on behalf of the President of India.
61. As stated above, apart from offences under the PC Act, this accused has also been charged for commission of offences punishable U/Ss 420/468/471 IPC, with reference to the offence of criminal conspiracy made punishable by Section 120B IPC and also as substantive offences, but no separate sanction U/S 197 Cr.P.C. for prosecution of the accused for these offences has been taken by the CBI. It has already been discussed that when the accused had moved an application before this court on 04.05.2012 for dropping of proceedings against him, the issue of non obtaining of sanction U/S 197 Cr.P.C. against him by the CBI was also raised. Though, the said application was dismissed by this court vide order dated 15.12.2012, but the accused had challenged the said order before the Hon'ble High Court in Criminal M.C. No. 250/13, which was disposed off by the Hon'ble High Court with liberty to the accused to raise all the pleas before this court at the time of arguments on charge. However, though this issue or ground appears to have not been raised at the time of charge, but still in view of the subsequent order dated 10.02.2021 of the Hon'ble High Court passed in Criminal Revision Petition No. 278/2019, the said ground has also to be considered by this court.
62. It is now well settled that it is not a part of official duty of any public servant to commit the offences like cheating or forgery and hence, no sanction for prosecution of a public servant is required in respect of acts constituting these offences as sanction is required in RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 55 of 148 connection with only those acts or omissions which are done by public servants in discharge of their official duties or functions or are connected with the same, directly or indirectly. In the case of Prakash Singh Badal (Supra), the Hon'ble Supreme Court has made some observations touching upon this issue also and these are being reproduced as under:-
"Great emphasis has been led on certain decisions of this Court to show that even in relation to offences punishable under Section 467 and 468 sanction is necessary. The foundation of the position has reference to some offences in Rakesh Kumar Mishra's case (supra). That decision has no relevance because ultimately this Court has held that the absence of search warrant was intricately with the making of search and the allegations about alleged offences had their matrix on the absence of search warrant and other circumstances had a determinative role in the issue. A decision is an authority for what it actually decides. Reference to a particular sentence in the context of the factual scenario cannot be read out of context.
The offence of cheating under Section 420 or for that matter offences relatable to Sections 467, 468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence."
(Emphasis supplied)
63. Thus, in view of the above, it is held that non obtaining of sanction for prosecution of A-1 U/S 197 Cr.P.C. is also not fatal to the case of prosecution as no such sanction is or was legally required to be obtained in the present case. Moreover, the sanction order Ex. PW1/B itself states that sanction through the above order has been granted by the Central Government, i.e. the President of India, not only for offences under the PC Act, but for other offences also which are punishable under any other provisions of law in respect of the alleged acts of A-1.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 56 of 148CHARGES AGAINST A-1 T. DILEEP KUMAR
64. As stated above, only A-1 and A-2 Ms. K.D. Varyani (since deceased), amongst the accused herein, were public servants and rest of the accused persons are private individuals. A-1 was holding the post of President and A-2 was the Vice President of INC at the relevant time of commission of alleged offences and the other accused persons are the persons allegedly running affairs or directly connected with working or beneficiaries of the above six nursing institutes, which had approached the office of INC during the relevant time for grant of recognition or approval for the nursing courses or enhancement of seats of the said courses. A-1 has been charged in this case for the offence of criminal conspiracy punishable U/S 120B IPC r/w Section 13(2) & 13(1) (d) of the PC Act and Sections 420/468/471 IPC and apart from the above, he has also been charged for all the above substantive offences under the PC Act as well as IPC. The charge of criminal conspiracy for commission of the above offences has been framed against him as well as the other private accused persons separately and with reference to the acts allegedly done by him and the other private individuals in connection with the concerned nursing institutes and thus, apart from a charge framed against A-1 exclusively for substantive offences under the PC Act and IPC having four different heads, six other separate charges have also been framed jointly against him and each private individual heading or representing the above six nursing institutes for the offence of criminal conspiracy. However, no charge could be framed against A-2 Ms. K.D. Varyani as she stood already expired by that time. It is also necessary to mention here that even A-3 Dr. Balbir Singh Nadha, Secretary of Shahid Udham Singh School of Nursing, Ratia, Fatehabad, Haryana had subsequently expired and hence, the proceedings against him were also directed to RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 57 of 148 be abated vide order dated 01.03.2021 of this court on verification of his death, when the matter was at the stage of recording of defence evidence.
65. Now coming to the charges framed against A-1, the above charges have been framed on allegations that he along with deceased A-2, both being members of Evaluation Committee of the INC, had entered into a criminal conspiracy with the other accused persons to grant recognitions or approvals for starting nursing courses or enhancement of seats to the above nursing institutes, against the policy and guidelines of INC, and to achieve this illegal object he as well as the deceased A-2 had removed the evaluation proformas/ reports containing adverse remarks in respect to these Institutes, based on inspection reports given by the ad-hoc panel inspectors of INC, with favourable reports and the same had resulted in grant of such recognitions or approvals to these nursing institutes by the Executive Committee of the INC as well as the INC itself and in this way, they had abused their above offices of public servants and had caused undue favours or pecuniary advantages to these institutes. It has not been disputed by Ld. Counsels representing the accused persons that the above offices being held by A-1 and A-2 (since deceased) were the public offices or they were not public servants within the meaning of Section 2 (c) of the PC Act, at the relevant time of commission of above offences.
66. The admitted position which emerges out on perusal of provisions contained in the INC Act and the statements of witnesses produced before this court, from the office of INC as well as the police witnesses, is that the Evaluation Committee of INC is/was not a statutory body as the said Act did not contain any provision regarding RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 58 of 148 its constitution or mode of constitution etc. and it was only a facilitatory body brought into existence to help the Executive Committee of the Council in discharging its functions and performing its duties under the said Act. The Evaluation Committee consisted of three members and the President, Vice President as well as Secretary of the Council were members of the said Committee. It has also come on record during evidence that the post of Secretary of the Council was lying vacant at that time and hence, at the relevant time when the applications for recognitions or approvals were submitted in the office of Council by the above six nursing institutes and the same were dealt with by the Council, the Evaluation Committee consisted of only two members i.e. A-1 & A-2 (since deceased).
67. On the contrary, in terms of Section 9 of the INC Act, the Executive Committee of INC was a statutory body consisting of nine members in total, out of which seven members were elected by the Council from amongst its members and the remaining two members of this Committee were the President and Vice President of the Council, who were the Ex-officio members of said Committee. They both were also to act as President and Vice President of this Committee.
68. Further, it is also the admitted position that INC was constituted under the said Act with the motive of establishing uniform standards of training for nurses, midwives and health visitors and the Council was competent/empowered to recognize or declare the qualifications for different courses for the purposes of the Act. It is also on record that there was a panel of ad-hoc inspectors prepared and maintained by the INC and whenever a request was received from any nursing institute for grant of approval or recognition for any of the prescribed courses, the request application was to be accompanied with the requisite fee RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 59 of 148 for inspection of the said institute. A team of ad-hoc panel inspectors was then sent by the Executive Committee to the concerned institute for inspecting the infrastructure and other facilities available in the said institute and the report of inspectors was directly submitted to the Evaluation Committee and on the basis of this report, the Evaluation Committee then used to give its own report in a prescribed proforma to the Executive Committee. The inspection report given by the panel inspectors in respect to the said institute was also submitted to the Executive Committee with the report of Evaluation Committee.
69. Again, it has also come on record and has further not been disputed from both the sides that the report given or submitted by the Evaluation Committee to the Executive Committee of the Council was not final or binding upon the Executive Committee and the Executive Committee was competent to take its own decision on the issue. It has further come on record during the evidence that before the report of Evaluation Committee was submitted to the Executive Committee, the Evaluation Committee or members thereof were empowered to correct or rectify or modify the said report. The Executive Committee then used to take a decision in the matter to grant or refuse approval or recognition to the said institute and this final decision of Executive Committee was then communicated or conveyed to the concerned institute through a letter. The decision of Executive Committee used to be final in the sense that the Council or General Body of the Council consisting of 70 members, as already discussed, only used to rectify or approve that decision in its meeting held subsequently and the said meeting used to take place once in a year only. Further, the institute was also entitled to submit a request for re-inspection on removal of deficiencies which may have been communicated to the institute by the office of INC, based on the report of panel inspectors.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 60 of 14870. Now, this court has to analyze and appreciate the evidence led on record to find out if the prosecution has been able to prove its charges for commission of the alleged offences against A-1 or not.
71. As discussed above, the charges for commission of substantive offences under the PC Act by abuse of his office and the charge of criminal conspiracy for the said offences, as well as the charge for substantive offences under IPC, are all based upon role of this accused in replacing or getting replaced, the adverse evaluation reports/ proformas of the above nursing institutes with favourable reports, in order to help them in grant of approvals/recognitions or enhancement of seats applied for by the said Institutes and thereby to cause pecuniary advantage to these institutes. Before the evidence led on record by prosecution on this aspect is analyzed or appreciated on merits, it is necessary to first deal with challenges being made by Ld. Defence Counsels to the oral as well as documentary evidence, including the expert evidence, which has been led in respect to the above said evaluation proformas.
72. Coming to the expert evidence, D-9 to D-15 are the adverse evaluation proformas of the above six institutes which were allegedly replaced and substituted with favourable/new proformas. The adverse proformas of Shahid Udham Singh School of Nursing are D-9 and D-10 and the new/favourable proforma of this institute is available on page no. 248 of its file D-8. The adverse proforma of Priyadarshini School of Nursing is D-11 and the new/favourable proforma of this institute is available on page no. 685 of its file D-3. The adverse proforma of Asram College of Nursing is D-12 and the new/favourable proforma of this institute is available on page no. 627 of its file D-7. The adverse proforma of Baba Farid Medical institute for Nursing is D-13 and the RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 61 of 148 new/favourable proforma of this institute is available on page no. 411 of its file D-6. The adverse proforma of National School of Nursing is D-14 and the new/favourable proforma of this institute is available on page no. 490 of its file D-4. The adverse proforma of Apollo School of Nursing is D-15 and the new/favourable proforma of this institute is available on page no. 557 of its file D-5.
73. All the above adverse as well as favourable proformas of these institutes were forwarded by CBI to the Director, CFSL, CBI, New Delhi, along with File No. 18-15/2592/INC (File no. D-3) of Priyadarshini School of Nursing, File No. 18-15/1583/INC (File no. D-4) of National School of Nursing, File No. 18-96/2001-INC (File no D-6) of Baba Farid Medical Institute for Nursing and File No. 18-02/1075-INC (File D-7) of Asram College of Nursing, with a questionnaire for obtaining the opinion of forensic expert regarding some torn pieces of papers as well as the staple pin marks appearing on adverse evaluation proformas and on some documents of the said files. The forwarding letter of the concerned SP of CBI, ACB, New Delhi has been exhibited on record as Ex. PW23/A (D-16) during the course of depositions made by PW23 Dr. Rajindra Singh of CFSL, CBI, New Delhi, who had examined the above said documents for answering the questions marked as Q1 to Q56 asked by the CBI in the above said letter with reference to the said markings appearing on these documents.
74. The above questionnaire about nature of examination required during forensic examination is being reproduced herein below:-
1. Whether Q-32, Q-33 & Q-34 are parts of Q-9, Q-10 & Q-11 respectively?
2. Whether Q-40 is a part of Q-21?
3. Whether Q-22 has been removed from Q-39?
4. Whether Q-49 is a part of Q-18?RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 62 of 148
5. Whether Q-19 has been removed from Q-50?
6. Whether Q-14 has been removed from Q-56?
7. Whether Q-15 has been removed from Q-55?
75. The above documents with reference to the questions framed by the Investigating Agency were examined in Physics Division of CFSL, CBI, New Delhi by PW23, who at that time was working as Head of Physics Department of above Laboratory. The opinion or result of examination given by PW23 in respect to above questions through his report Ex.PW23/B (D-17) is also being reproduced herein below:-
"Result of Examination 1. Regarding query No. 1
(a) The laboratory examination of staple pin marked Q-32 and torn portion marked Q-9 reveal that staple pin marked Q-32 corresponds with the torn portion marked Q-9 in respect of the width of the cut portion. Hence, Q-9 could have been removed from Q-32.
(b) The laboratory examination of torn portion marked Q-33 and torn portion marked Q-10 reveal that the torn portion marked Q-33 physically fit point to point with the torn portion marked Q-10.
Hence, Q-33 is a part of Q-10.
(c) The laboratory examination of torn portion marked Q-34 and torn portion marked Q-11 reveal that the torn portion marked Q-34 physically fit point to point with the torn portion marked Q-11. Hence, Q-34 is a part of Q-11.
2. Regarding queries No. 2 & 3The laboratory examination of torn paper piece marked Q-40, one staple pin marked Q-39, torn portion marked Q-21 and torn portion marked Q-22 reveal that torn paper piece marked Q-40 physically fit point to point with the torn portion marked Q-21 and staple pin marked Q-39 correspond with the torn portion marked Q-22 in respect of dimensions and corresponding distance from Q-40. Hence, Q-40 is a part of Q-21 and Q-22 could have been removed from Q-39.
3. Regarding queries No. 4 & 5The laboratory examination of torn paper piece marked Q-49, one staple pin marked Q-50, torn portion marked Q-18 and torn portion marked Q-19 reveal that torn paper piece marked Q-49 physically fit point to point with the torn portion marked Q-18 and RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 63 of 148 staple pin marked Q-50 correspond with the torn portion marked Q-19 in respect of dimensions and corresponding distance from Q-49. Hence, Q-49 is a part of Q-18 and Q-19 could have been removed from Q-50.
4. Regarding queries No. 6 & 7The laboratory examination of torn paper piece marked Q-14, staple pin marked Q-56, torn portion marked Q-15 and torn portion marked Q-55 reveal that staple pin marked Q-56 corresponds with the torn portion marked Q-14 in respect of the width and torn portion marked Q-15 correspond with torn portion marked Q-55 in respect of the width and their corresponding inter- distances. Hence, Q-14 & Q-15 could have been removed from Q- 56 & Q-55 respectively. "
76. The above report of PW23 has been duly proved on record during the course of depositions made by this expert witness. He has also deposed before this court on the above lines of his report regarding the torn portions and staple pin marks being corresponding to the documents or sheets from where the same are alleged to have been removed as per the case of prosecution. Thus, the oral depositions made by this witness as corroborated by the contents of his above said report duly establish on record that the torn pieces of papers of above adverse evaluation proformas i.e. D-11 of Priyadarshini School of Nursing, D-14 of National School of Nursing and D-13 of Baba Farid Medical Institute for Nursing, pasted on or attached with new/favourable evaluation proformas of these institutes in file no. D-3 of Priyadarshini School of Nursing, file no. D-4 of National School of Nursing and file no. D-6 of Baba Farid Medical Institute for Nursing on pages 685, 490 and 411 respectively were part of the replaced adverse evaluation proformas. Similarly, staple pin marks appearing on adverse as well as new/favourable evaluation proformas of Baba Farid Medical Institute for Nursing and Asram College of Nursing were also found corresponding.
77. However, the Ld. Defence Counsels have vehemently RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 64 of 148 challenged the above opinion and findings given by PW23 in his above report on various grounds and they have also questioned the competency of the said witness to examine and report about the said documents. It has also been argued that the above documents should have been examined in the Document Division of CFSL and not in the Physics Division and hence, the above report cannot be given any weightage.
78. It has been observed from record that the above witness was highly qualified and experienced for the task assigned to him because in his examination-in-chief itself, he has stated that he had more than thirty years of experience in the field of Forensic Science and his educational qualifications were M.Sc (Phy), B.Ed., M.Phil (Phy) and Ph.D in Forensic Physics. He had joined CFSL in the year 1987 as Senior Scientific Officer, Gr.-II, through UPSC and thereafter, he had worked in different capacities in the said Laboratory and had even been the Director of the said institute at point one point of time. Even after his retirement from the said institute in the year 2016, he had been working as a Professor and Head of Department in a private University at Gurugram. He has also specifically stated on record that he had examined more than 3000 cases of various nature during the tenure of his service. Thus, so far as the question raised regarding competency of PW23 in the relevant field of examination is concerned, this court fails to find out any fault or flaw in the same.
79. Further, it is also observed from record that when PW23 was questioned by Ld. Counsel for A-1 to the effect that the above documents should have been examined in the Document Division of the Laboratory and not in Physics Division, he is found to have replied to it that the comparison of paper in respect of width, dimension, colour RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 65 of 148 etc. was the job of Physics Division. He has also specifically stated and replied that even the torn portion of any material are examined by the Physics Division and job of the Document Division is to examine the signatures and handwriting, ink examination, age of the document and further examination of fake currency notes etc. He has also specifically denied a suggestion given to him by Ld. Counsel representing the said accused that his above depositions were not correct or that the above documents should not have been examined in Physics Division of the Laboratory.
80. Further, it has also been argued by Ld. Defence Counsels that from the depositions made by this witness or from the contents of report given by him, the scientific method applied by the witness in examination of these documents is not clear and again, the witness has also admitted during the course of his cross examination that he had not mentioned measurement of the staple pin mark vis-a-vis the distance from the margin of the paper in his report. They have also argued that the witness was even not clear about the difference between a torn portion and a cut portion of a sheet of paper. However, it is observed that even these contentions being raised by Ld. Defence Counsels do not carry much weight as the witness has specifically stated on record that though the procedure adopted by him in examination of the above documents is not mentioned in the report, but he had adopted all the scientific procedures during the course of examination of these documents. He has also duly explained that normally, 'cut portion' is the portion which is cut by sharp edge instrument, while 'torn portion' is not necessarily cut by sharp instrument and further that 'torn portion' may be written as 'cut portion' and vice-a-verca as both represent the same meaning. He also denied contrary suggestion given to him in this regard by Ld. Counsel for A-1 RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 66 of 148 during the course of his cross examination. He even stated that though measurement of the staple pin mark and distance from the margin of the paper was not mentioned in the report, but during the course of examination, he had examined all these parameters. Hence, from analysis and appreciation of the testimony of this witness in entirety, this court fails to arrive at a conclusion or an inference that the questioned documents were not properly examined by this witness with reference to the relevant procedure or parameters or that he was not a competent witness. It is further observed from his above report that actually he had also opined through the said report that the above torn portions and staple pin marks were not only found corresponding in respect of dimensions, but even in respect of distance and hence, his oral depositions on this aspect are found contrary to his above opinion or report and the same are liable to be ignored.
81. It has also been argued by Ld. Defence Counsels that this witness in his cross examination itself has stated that staple pin mark cannot determine whether the paper belongs to the torn paper or not and hence, no reliance can be placed upon the report given by this witness. In this regard also this court is not ready to accept this argument of Ld. Defence Counsels because the report being given by this witness is not the only basis on which the court has to arrive at a conclusion regarding innocence or guilt of the accused and the report given by this witness is in the form of an expert opinion, which the court has to consider and analyze in light of other oral and documentary evidence led on record. Moreover, this court can also see with bare eyes that the torn pieces or portions of as well as staple pin marks appearing on these documents match and correspond the other documents as opined by this witness. Hence, this report and the opinion reflected therein are certainly to be considered by this court as RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 67 of 148 an incriminating circumstance against the accused persons and there is no reason or ground made out from the above to discard the said report. The judgments in cases Ramesh Chandra Aggarwal Vs. Regency Hospital Ltd., (2009) 9 SCC 709, Mohd. Hanif Shaikh Vs. State of Gujarat, 1994 SCC Online Guj 293 and State of H.P. Vs. Jai Lal & Ors., (1999) 7 SCC 280 being relied upon by Ld. Counsel for A-1 on the relevancy of expert evidence can be distinguished and hence, not found applicable in the present case.
82. Now, we have to analyze the oral evidence led on record as to when and from where and under what circumstances the above adverse evaluation proformas were replaced or removed from the files of above six nursing institutes, including the four institutes whose files were sent for forensic opinion about torn portions and staple pin marks, and further as to how the above replaced proformas or the files of these institutes have come in possession of the CBI.
83. As earlier discussed, the FIR of this case was preceded by a preliminary inquiry and the FIR Ex. PW19/DX1 was registered on 23.02.2007. The preliminary inquiry was conducted by PW19 Sh. Somnath Biswas, who had been posted as a Sub-inspector in CBI, Delhi from January, 2005 to February, 2007. As per depositions made by him in his examination-in-chief, during the course of preliminary inquiry he had summoned the officials of INC namely Sh. Bhagwat Singh and Sh. Aman Abraham and others and they had handed over to him the evaluation sheets prepared under the handwriting of A-2 Ms. K.D. Varyani (since deceased), the then Vice President of INC, in respect of the above six nursing institutes. He also stated that the officials of INC wanted to maintain anonymity when they handed over the documents to him as they apprehended reprisal and harassment RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 68 of 148 from the senior officers of INC. He further stated that at the time of his transfer from Delhi office to CBI office at Kolkata, he had handed over all the documents of this case to Sub-inspector Sh. J.S. Yadav, who was nominated to take over the preliminary inquiry from him. He also identified the above adverse/replaced evaluation proformas as well as the favourable proformas, with which the same were replaced, on being shown the said documents by Ld. Sr. PP for CBI during his statement made in the court. Thus, as per this witness, the above replaced evaluation sheets or proformas of above six institutes containing adverse remarks, i.e. D-9 to D-15, were handed over to him by the above officials of INC.
84. His depositions made to this effect are also substantially corroborated from the depositions made by PW11 Sh. Aman Abraham and PW12 Sh. Bhagwat Singh, though PW11 does not appear to be confident about as to whether these proformas were handed over to PW19 Sh. Somnath Biswas by PW12 Sh. Bhagwat Singh only or by both of them. It is so because in his initial examination though he had stated that they both handed over the said proformas to PW19, but later on, he went to state that when he was shown the above documents by the IO on being summoned during the course of investigation, he was told by the IO that the same were handed over to them by him i.e. PW11 or PW12 Sh. Bhagwat Singh. However, PW12 Sh. Bhagwat Singh on this issue was very much sure that the above documents were handed over to PW19 by him, when he was made to join the above preliminary inquiry. Thus, the above contradiction or discrepancy being pointed by Ld. Defence Counsels in the testimonies of these two witnesses on this aspect is not found material.
85. Further, it also emerges from testimonies of these three RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 69 of 148 witnesses that when the above documents, including adverse evaluation proformas D-9 to D-15, were handed over by PW12 to PW19 during the course of preliminary inquiry, no seizure memo in respect of the same was prepared by PW19 and got signed from PW12 or from any other witness and even no list of documents handed over to PW19 was prepared, either by PW12 and PW19 or any other official of INC. The contention of Ld. Defence Counsels is that in the absence of any seizure memo or list of these documents prepared and got signed from the officials of INC by PW19, the very source of acquisition or possession of these documents by the CBI officials comes under serious clouds and even the above documents become suspicious and have to be discarded outrightly and the same should not be considered in evidence against the accused persons. It is also their contention that the above preliminary inquiry was required to be conducted as per the CBI manual, which lays down that the inquiry officer has to follow the same procedure in respect of collection of documents and recording of statements etc. as is followed during the course of investigation and since the said procedure has not been followed, the above documents allegedly taken into possession or seized during the course of inquiry or investigation cannot be seen and considered in evidence for this reason also, as the same were seized or taken into possession in violation of the said manual, which is binding on the CBI officials. Reliance in this regard has been placed by Ld. Counsel for A-4, A-5, A- 6 & A-7 upon the judgment of the Hon'ble Supreme Court in the case of Shashikant Vs. Central Bureau of Investigation & Ors., AIR 2007 Supreme Court 351.
86. However, in considered opinion of this court, the directions or instructions contained in the CBI manual providing guidelines for the inquiry or investigating officers of CBI may though be binding upon RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 70 of 148 them and may even result into some disciplinary proceedings against them in case of their violation, in view of the observations made by the Hon'ble Supreme Court in the case of Vineet Narain and Others Vs. Union of India and Another, (1998) 1 SCC 226 referred to in the case of Shashikant (Supra), but any deviation therefrom or violation thereof cannot result in discarding the evidence collected in violation of the said guidelines contained in CBI manual. Though the court may view such evidence cautiously, but the above manual or instructions contained therein can never be considered as binding upon the courts. The oral evidence led on record by prosecution in the form of testimonies of above three witnesses is sufficient to establish the source of acquisition or possession of these documents by the CBI officials and the other evidence led on record during the course of trial also duly substantiates that the above adverse evaluation proformas were the same proformas which were removed or taken out from the files D-3 to D-8 of the above six institutes and replaced with favourable proformas. The said proformas have also been duly identified on record by the prosecution witnesses during the course of trial. Moreover, it is also well settled that even if there is any such defect, flaw or illegality in obtaining or acquiring any piece of evidence, then the same cannot adversely effect the evidenciary value of same and if that evidence is brought or proved on record as per rules of evidence, then the same has to be considered against the accused persons.
87. The next contention of Ld. Defence Counsels is that the above torn condition and staple pin marks on the above documents could also be the result of tampering with the said documents by the official witnesses of INC or by the CBI officials as the evidence led on record by prosecution fails to establish that the above documents or adverse evaluation proformas were in the same condition when these were RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 71 of 148 handed over by the official(s) of INC to the inquiry officer of CBI/PW19 and further that condition of these documents remained the same till these were examined by the CFSL Expert. They have also alleged some fabrication of record on the part of investigating agency, while pointing out that though as per depositions made by the IO/PW24 Inspector Sh. S.Q. Ali the above adverse evaluation proformas, along with other documents, were sent to CFSL on 01.05.2008 vide letter Ex. PW23/A (D-16), but the inquiry officer/PW19 Sh. Somnath Biswas is found to have stated in his statement recorded on 09.05.2008 U/S 161 Cr.P.C. by the IO/PW24 during the course of investigation that he was shown the above documents by the IO today i.e. on that day of recording of his statement. It is the submission of Ld. Defence Counsels that as per PW19, the documents were very much in possession of the IO/PW24 on 09.05.2008 and hence, the same could not have been sent to the CFSL on 01.05.2008 and it follows therefrom that the above documents were or could have been tampered by the IO/PW24 before the same were sent to CFSL for analysis.
88. However, this court fails to accept the above contention of Ld. Defence Counsels and simply because it is found recorded in the above statement of PW19 made U/S 161 Cr.P.C. that today, i.e. on 09.05.2008, he was shown the said documents, no such inference of tampering with these documents by the IO/PW24 can be drawn as it appears to the court that the same could have happened due to some typographical or clerical mistake only. Moreover, the oral evidence against contents of documents cannot be accepted by this court. As stated above, the above documents were forwarded to CFSL for expert opinion by the IO/PW24 on 01.05.2008 vide forwarding letter Ex.PW23/A (D-16) and the said letter on page D-16/3 also contains a receiving of these documents in Physics Division of the CFSL. Hence, RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 72 of 148 when the documents stood already received by the CFSL for expert opinion on 01.05.2008, there was no question of showing of these documents by IO/PW24 to the inquiry officer/PW19, while recording the above statement U/S 161 Cr.P.C. Ex.PW19/DX of PW19. Therefore, the above discrepancy in the prosecution evidence cannot be given much weight by blowing it out of proportions.
89. Again, as per depositions made by the IO/PW24 Sh. S.Q. Ali, he took over investigation of this case from the previous IO SI J.S. Yadav and investigation was taken over by him in the month of March, 2007. As stated above, the FIR of this case was registered on 23.02.2007. IO/PW24 has also stated on record that the previous IO had handed over all the relevant documents of this case to him vide handing over memo dated 20.03.2007, which has also been proved on record by him as Ex. PW24/A (D-23). The Ld. Defence Counsels have also put a challenge to the prosecution case on ground that apart from not preparing any seizure memo of the above documents by PW19, when he took these documents from the INC officials, even no handing or taking over memo of these documents was prepared when the same were handed over by PW19 to his successor Sh. J.S. Yadav. However, in any case, for the reasons already discussed, the above flaw in story of prosecution also cannot be considered material enough or be made a ground to doubt the veracity of above documents, when evidence led on record clearly suggests that these documents originated and belonged to the files of the six nursing institutes being maintained in the office of INC. Further, it has also been argued that initial investigation conducted by SI J.S. Yadav in this case was illegal as he was not competent to conduct it as per provisions contained in the Special Police Establishment Act, 1941, but even this submission is of no help to the case of accused persons as no material investigation is RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 73 of 148 found to have been conducted by this IO.
90. Thus, the challenges put by Ld. Defence Counsels to the above documents, i.e. the adverse/replaced evaluation proformas D-9 to D-15 of the above six institutes, on various grounds do not hold any ground and cannot be made the basis for discarding the said documents or the other evidence led in respect to their veracity or contents etc. and these documents are to be considered and appreciated in evidence in the form in which these exist.
91. Now, coming to another important aspect of handwriting and signatures appearing in these adverse evaluation proformas, these adverse evaluation proformas D-9 to D-15 of the above six nursing institutes were also sent to the Government Examiner of Questioned Documents, Directorate of Forensic Science, MHA, Govt. of India at Shimla, H.P., along with the favourable evaluation proformas of these institutes available in their respective files D-3 to D-8 and the specimen handwritings and signatures of both the accused public servants i.e. A- 1 and A-2 obtained by the IO/PW24 during the course of investigation and an opinion was sought in respect of questioned handwritings and signatures appearing on both the above sets of evaluation proformas. The specimen handwriting and signatures of A-1 were obtained by the IO on sheets marked as S-30 to S-52 (D-20) in presence of PW2 Sh. Harish Kumar and these specimen signatures and handwriting of A-1 have also been duly exhibited and proved on record during the course of depositions made by PW2 as well as of the IO/PW24 as Ex.PW2/A (colly). Similarly, specimen handwriting and signatures of A-2 (since deceased) were also obtained by the IO/PW24 and these were obtained on sheets marked S-1 to S-29 (D-19) in presence of PW4 Sh.
Ram Saran and the same have been proved on record during the RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 74 of 148 course of depositions made by this witness as well as the IO/PW24 as Ex.PW4/A (colly). It is observed that though PW2 has stated on record that he cannot now identify the person whose specimen handwriting and signatures were taken in his presence and further, though, PW4 has also not been able to tell the name of the person whose handwriting and signatures were taken in his presence, but it does not adversely effect the case of prosecution as PW2 has also specifically stated on record that the said person was an old lady and both of these witnesses have further stated that the above specimen handwritings and signatures were given by the above persons voluntarily. Even the IO/PW24 corroborates them on this aspect. Moreover, during the course of recording of his statement U/S 313 Cr.P.C., even A-1 has not specifically denied the fact that the above specimen handwriting and signatures belong to him and this is also not found challenged during the course of trial.
92. Further, PW3 Sh. V.P. Sharma during the course of his examination was duly shown the above adverse evaluation proformas D-9 to D-15, as well as the favourable proformas placed in files D-3 to D-8 of the above six institutes, and on being asked, he has also identified the signatures as well as handwritings of A-1 and A-2 appearing in both sets of these proformas, as and where the same existed. Even PW12 Sh. Bhagwat Singh was shown both the above sets of evaluation proformas of these institutes and likewise PW3, he has also identified the handwritings and signatures of A-1 as well as A- 2 appearing in these proformas. PW11 Sh. Aman Abraham was also shown the adverse evaluation proformas D-9 to D-15 of these institutes and even this witness has identified the handwritings and signatures of both the above accused as and wheresoever appearing in these documents. As far as, the handwritings and signatures of these two RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 75 of 148 accused on the new or favourable evaluation reports of these institutes, which were placed in the files of above institutes as a replacement of the adverse evaluation sheets, are concerned, it is an admitted position that all these evaluation sheets bear the handwritings and signatures of both the above accused, which have not only been identified by PW3 and PW12 during the course of their examination but the same have also been proved on record from the expert evidence led on this aspect in the form of depositions made by PW22 Dr. S. Ahmad, Asst. Govt. Examiner, the report Ex.PW22/B and the reasons for opinion Ex.PW22/D given by him (D-21).
93. As discussed earlier, the new or favourable evaluation proformas of these institutes have been duly exhibited and proved on record during the course of depositions made by PW-3 and the favourable evaluation proforma of Shaheed Udham Singh School of Nursing is available on page 248 of file D-8 of the said institute, the favourable evaluation proforma of Priyadarshini School of Nursing available on page 685 of file D-3 of the said institute, the favourable evaluation proforma of Asram College of Nursing is available on page 627 of file D-7 of the said institute, the favourable evaluation proforma of Baba Farid Medical Institute for Nursing is available on page 411 of file D-6 of the said institute, the favourable evaluation proforma of National School of Nursing is available on page 490 of file D-4 of the said institute, the favourable evaluation proforma of College of Nursing, Indraprastha Apollo Hospital, New Delhi is available on page 557 of file D-5 of the said institute. These evaluation proformas have been exhibited and proved as Ex.PW3/G, Ex.PW3/CM, Ex.PW3/O, Ex.PW3/AC, Ex.PW3/AS and Ex.PW3/BM respectively.
94. However, in considered opinion of this court, what matters in RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 76 of 148 respect of the charges framed against this accused is not his handwriting and signatures appearing in the above new or favourable evaluation proformas, but it is his handwriting and signatures appearing in the old or replaced adverse evaluation proformas of these institutes, which are D-9 to D-15 on record and have been exhibited and proved as Ex.PW3/Q and Ex.PW3/R, Ex.PW3/CR, Ex.PW3/S, Ex.PW3/AG, Ex.PW3/AU and Ex.PW3/BX respectively. It is so because the basis of framing charges against him is that he in conspiracy with the other accused persons had replaced these adverse proformas with the favourable proformas and had thus, abused his office of President of INC in granting approvals or recognitions to these institutes.
95. When the evidence led on record is considered and appreciated in light of the above, it has been observed that the adverse evaluation proformas D-9, D-11, D-12, D-13 and D-14 do not even bear or contain any handwriting or signatures of A-1 and this fact has not only been established from the testimony of expert handwriting witness, but it has also been stated so by the other relevant prosecution witnesses examined on record to this effect. It is observed that all the handwriting containing adverse remarks in evaluation proforma D-9 in respect of the Shaheed Udham Singh School of Nursing, Haryana is found to have been given the questioned marking as Q-2 and the signatures appearing on this document have been given the questioned marking Q-1. As per the expert report Ex.PW22/B, the above questioned handwriting Q-2 of D-9 and the specimen handwriting in sheets S-1 to S-29 of A-2 have been written by one and the same person, though in respect of the signatures appearing at questioned point Q-1 it was stated in the report that no opinion was possible about it on the basis of material supplied to the expert. Similarly, in respect of evaluation proformas D-11 to D-14, it was opined that the questioned handwritings RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 77 of 148 which contained adverse remarks marked as Q-8, Q-13, Q-17 and Q- 20 respectively in respect of the concerned institutes were also written by the writer of specimen writings marked S-1 to S-29 i.e. A-2. Even PW-3, PW-12 and the inquiry officer/PW19 Sh. Somnath Biswas in their statements made before this court had identified the above handwritings appearing on these adverse evaluation proformas to be of A-2 (since deceased) only and not of A-1, though as per their depositions even the questioned signatures appearing on these documents D-9 and D-11 to D-14 were of A-2. Thus, it stands established from the above oral and documentary evidence that all the adverse remarks by way of these handwritings were made on these adverse evaluation proformas D-9 and D-11 to D-14 by A-2 K. D. Varyani (since deceased) only and not by A-1 T. Dileep Kumar as the oral evidence led on record to this effect is found duly corroborated and substantiated by the documentary evidence led in the form of expert evidence. Further, though the expert handwriting evidence has not been able to link the purported signatures of A-2 appearing at the questioned points on these five adverse evaluation proformas with the deceased A-2, but the oral evidence led on record on this aspect even establishes that these signatures are of A-2 only and not of A-1.
96. Now coming to the remaining adverse evaluation proformas, as discussed above, D-9 (Ex.PW3/Q) and D-10 (Ex.PW3/R) respectively, pertain to the same institute i.e. Shaheed Udham Singh School of Nursing, Haryana. However, though D-9 can be considered as an adverse proforma, but D-10 cannot be considered or marked as an adverse proforma because it has been observed that no adverse remarks or comments are found to have been given in this proforma. This proforma D-10, along with the other adverse proforma D-9, is alleged to have been replaced with a favourable proforma available on RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 78 of 148 page 248 of file D-8 (Ex.PW3/G) of the institute. As per depositions made by the above three official witnesses of INC i.e. PW3, PW11 and PW12, the proforma D-10 contains the signatures as well as handwritings of both the above accused public servants i.e. A-1 and A- 2 and these PWs have also identified the same during the course of their depositions made before this court. The purported signatures of A- 2 and A-1 appearing on this proforma have been given the questioned markings Q-3 and Q-6 respectively and their purported handwritings or remarks appearing on this document were given the questioned markings as Q-4 and Q-5 respectively. Though, in the expert report Ex.PW22/B given by the Govt. Examiner, no opinion was expressed in respect of questioned signatures of A-2 appearing on this document at point Q-3, but the questioned signatures at point marked Q-6 and the questioned handwriting at point Q-5 were opined to have been put or written by A-1, who was the writer and signatory of the specimen sheets marked S-30 to S-52 (D-20). The purported handwriting or remarks at point Q-4 of A-2 were also opined to have been put or given by the author of specimen sheets marked S-1 to S-29 (D-19).
97. The questioned handwriting or remarks proved to have been given by A-2 (since deceased) at point Q-4 on D-10 Ex. PW3/R were to the effect 'E.S.30 to 40-40 only' and the remarks or handwriting proved to be in handwriting of A-1 is 'ES agreed 50' and the figure '50' is found to have been deleted thereafter. This evaluation proforma or report is stated to have been replaced with the proforma/report Ex. PW3/G available on page 248 of file D-8 and the writing or remarks given in the said proforma by A-2 and A-1 respectively are to the effect 'E.S. agreed 40 - only - 30 to 40' and 'file seen ES agreed'. Thus, it is seen that in both these proformas i.e. D-10 Ex. PW3/R and Ex. PW3/G appearing on page 248 of file D-8, the writings and remarks given by both these RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 79 of 148 accused were in favour of enhancement of seats of the concerned nursing institute, i.e. Shaheed Udham Singh School of Nursing, Haryana and in the remarks given by A-2 (since deceased) in these proformas it was also specifically written that the seats were being enhanced from 30 to 40. Though, in the new evaluation proforma available on page 248 of file D-8, the specific number of seats to or from which the enhancement was agreed is not found given in the remarks or writing made by A-1, but in D-10, the enhancement was given up to 50 seats by him.
98. It has been argued by Ld. Counsel representing this accused that the new proforma available on page 248 of file D-8 appears to have been prepared and placed in the file of concerned institute simply because of the fact that there was some overwriting or deletion in the earlier proforma D-10 with regard to number of seats up to which enhancement was permitted to the said institute and not for any other reason because even the previous proforma D-10 bearing the above cutting or deletion mark did not contain any adverse remarks given by A-1 himself or by A-2 (since deceased). Hence, it is his contention that simply because a new proforma was prepared or filled and kept in the file of said institute, it cannot by any stretch of imagination be a ground to draw any inference against the said accused for his being a part of any conspiracy with the other accused persons for granting favours to them by abuse of his office, as has been alleged by the prosecution. This court is also completely in agreement with the above submission being made by Ld. Counsel representing A-1 and since the evaluation proforma D-10 (Ex.PW3/R) did not contain any remarks against the concerned institute, given either by A-1 or by A-2, it cannot be said to be an adverse evaluation proforma and hence, there was no question of its replacement with the favourable evaluation proforma Ex.PW3/G RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 80 of 148 available on page 248 of file D-8 for any malafide reasons, resulting from or causing an abuse of the office of A-1 and having been made with an intent to cause undue pecuniary advantage to the said institute.
99. Though, the Ld. Counsel for A-1 has also argued that PW3, PW11 and PW12 were not competent to identify the handwriting and signatures of A-1 or of A-2, but his above argument is found to have been raised merely for the sake of arguments and it has no merits because all these three witnesses have specifically stated on record that during the course of their ordinary work, they had seen the documents signed and written by these two accused or writing or signing them and hence, they were very much in a position to identify the handwritings and signatures of these two accused. It cannot be ignored that PW3 had been working with INC for a very long duration of around 38 years, PW11 for around 24 years and even PW12 had been working there for a period of around 6/7 years. Hence, this court fails to accept the above contention of Ld. Defence Counsel regarding the incompetency of these witnesses for identifying the handwritings and signatures of the above two accused. as well as of the other officials and officers of the INC working with, under or over them.
100. Now, coming to the second evaluation proforma D-15 or D-15/1 (Ex.PW3/BX) in respect to Apollo College of Nursing, Indraprastha Hospital, New Delhi and containing adverse remarks in respect to the said institute, as already discussed this evaluation proforma brought in evidence during the course of trial is not in original form and only a photocopy thereof has been brought on record and exhibited as such during the course of depositions made by PW3.This proforma was also sent for expert opinion to Government Examiner of Questions documents at Shimla, along with other documents, and was examined RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 81 of 148 by PW22 Dr. S. Ahmad of the said institute and the opinion of PW22 regarding the questioned handwritings and signatures on this document is also contained in his report Ex.PW22/B. As per above report, the remarks or handwriting appearing at questioned point Q-25 has been found to be of A-1, who is the author of specimen handwriting and signatures marked as S-30 to S-52. The said handwriting or remarks given by A-1 on this document are to the effect 'Permitted -50'. The adverse remarks purported to have been given by A-2 (since deceased) on this document at point Q-27 and her handwriting/remarks at questioned point Q-24 have also been confirmed as belonging to the said accused, though no opinion could be given by PW22 regarding the purported signatures of A-2 appearing at point Q-23.
101. However, as stated above, the above document D-15/1 has been brought in evidence in the form of a photocopy only and the original thereof has not been produced on record. It is well settled that the exhibition or marking of a document during the course of evidence by the court is simply for the purposes of identification and reference of such documents while appreciating the evidence and such exhibition or marking has nothing to do with its proof. A party producing such a document during the course of a trial shall not stand absolved from its liability of proving the said document as per requirements contained in the Indian Evidence Act, 1872 simply because it stands exhibited during the course of evidence. Further, in terms of the provisions contained in Sections 64 and 65 of the said Act, though the contents of a document can be proved by primary evidence or by secondary evidence, but the secondary evidence of a document cannot be led unless the conditions laid down in Section 65 of the said Act have been met. Section 65 of the said Act provides as under :-
"65. Cases in which secondary evidence relating to documents may RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 82 of 148 be given.--Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:--
(a) When the original is shown or appears to be in the possession or power --
of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;
(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
102. It has been vehemently argued by Ld. Counsel for A-1 that since the conditions and requirements laid down by Section 65 of the Evidence Act were not satisfied in this case by the prosecution before leading secondary evidence in respect to the above said document Ex.PW3/BX (D-15/1), it cannot be read in evidence. In this regard, he has also placed reliance upon the judgments in cases Ashok Dulichand Vs. Madahavlal Dube and Anr., (1975) 4 SCC 664; H. Siddiqui Vs. A. Ramalingam, (2011) 4 SCC 240 and U. Sree Vs. U. Srinivas, (2013) 2 SCC 114.
103. It has been observed by this court that no explanation RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 83 of 148 whatsoever has come on record from the side of prosecution for not producing or bringing in evidence the original of this document. It is also not their case that the original thereof was in possession of any of the accused as in such a case a notice for its production should have been given by the prosecution to such an accused for producing it, before they had led secondary evidence in respect of the said document. In the case of Ashok Dulichand (Supra), being relied upon by Ld. Defence Counsel, the Full Bench of the Hon'ble Supreme Court has made the following observations, while dealing with a case where the foundation for leading secondary evidence in terms of Section 65 of the Evidence Act was not laid down :-
"7. After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of the Indian Evidence Act, secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it. Clauses
(b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed photostat copy. Prayer was also made by the appellant that in case respondent No. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was, however, nowhere stated in the affidavit that the original document of which the photostat copy had been filed by the appellant was in the possession of respondent No. 1. There was also no other material on the record to indicate that the original document was in the possession of respondent No. 1. The appellant further failed to explain as to what were the circumstances under which the photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession of or having anything to do with such a document. The photostat copy appeared to the High Court to be not above suspicion. In RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 84 of 148 view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court."
(Emphasis supplied)
104. Further, in case of H. Siddiqui (Supra) also, the Hon'ble Supreme Court is found to have made the following observations on the above said issue :-
"12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endoresement thereon. (Vide Roman Catholic Mission v. State of Madras, AIR 1966 SC 1457, State of Rajasthan v. Khemraj, (2000) 9 SCC 241 : AIR 2000 SC 1759, LIC v. Ram Pal Singh Bisen (2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191 and M. Chandra v. M. Thangamuthu, (2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907.)"
(Emphasis supplied)
105. Hence, this court has no hesitation in arriving at a conclusion and holding that the above document Ex.PW3/BX (D-15/1) cannot be considered as a part of the prosecution evidence and therefore, the contents thereof cannot be read or considered as incriminating against A-1 or any other accused. Thus, it also follows from the above that A-1 cannot be legally connected with any of the above adverse evaluation reports D-9 to D-15 as four adverse evaluation reports D-11 to D-14 do not bear his handwriting or signatures, what to say of any adverse writings or remarks, out of the remaining two, i.e. D-9 & D-10 and D-
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 85 of 14815/1, D-9 also does not bear his handwriting/remarks or signatures, D- 10 though bears his handwriting and signatures but it is not an adverse report and D-15/1 is held inadmissible in evidence. Therefore, it also necessarily follows from the above that no inference can be drawn therefrom that A-1 was aware of the adverse remarks given by A-2 in the adverse evaluation reports/proformas and being aware of the same, he had replaced or got replaced the above adverse evaluation reports/proformas with favourable evaluation reports/proformas of the institutes connected with these adverse evaluation proformas.
106. The law of criminal conspiracy is well settled and it is settled that since conspiracies are hatched mostly behind the closed doors, very rarely any direct evidence showing the existence of such a conspiracy is available and more or less the existence of a criminal conspiracy has to be drawn or inferred from the facts of a particular case. It will be a question of fact in each case as to whether the acts done by accused have been done or performed in furtherance of any such criminal conspiracy or the objects thereof or the same are separate or individual acts of the accused persons, without sharing of any such common intent or object. Section 120A IPC defines criminal conspiracy in the following words :-
"S. 120A. Definition of criminal conspiracy.--When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence sh all amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
107. Thus, it is clear from the language used in Section 120A IPC that RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 86 of 148 the offence of criminal conspiracy consists in doing, agreeing to do or causing to be done of illegal act by two or more persons or an act which is not illegal in itself by illegal means. Thus, though an agreement to do or cause to be done an act which is per se illegal shall constitute a criminal conspiracy, but it will not amount to criminal conspiracy if the accused agree to do an act which is not illegal by itself unless it is agreed to be done by some illegal means. An agreement between the accused persons to do an illegal act or a legal act by illegal means is gist of the offence of criminal conspiracy. Once the evidence establishes the existence of a meeting of minds or an agreement between the accused persons for doing of an offence or an illegal act or a legal act by illegal means, then even the acts done individually by the accused persons have to be taken with reference to their common intent or design of the said criminal conspiracy. However, it is possible to draw such an inference regarding the prima facie existence of such a criminal conspiracy only when the facts and circumstances of a particular case reasonably permit to do so. In the Full Bench decision of the Hon'ble Supreme Court in the celebrated case of P. K. Narayanan Vs. State of Kerala, (1995) 1 SCC 142, being relied upon by Ld. Defence Counsel for A-8 also, their lordships had very well considered and laid down the scope of a criminal conspiracy and of drawing inference in this regard in the following words :-
"10. The ingredients of this offence 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 or for doing by illegal means an act which by itself may not be illegal. Therefore the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 87 of 148 those circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. Even if some acts are proved to have been committed it must be clear that they were so committed in pursuance of an agreement made between the accused who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. From the above discussion it can be seen that some of the circumstances relied upon by the prosecution are not established by cogent and reliable evidence. Even otherwise it cannot be said that those circumstances are incapable of any other reasonable interpretation."
(Emphasis supplied)
108. In the case of State of Maharashtra & Ors. Vs. Som Nath Thapa & Ors., Manu/SC/0451/1996, the following observations have been made by the Full Bench of Hon'ble Supreme Court :-
"24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use. When can charge be framed ?"
(Emphasis supplied)
109. In case Vijayan @ Rajan Vs. State of Kerala, 1999 Crl.L.J. 4164, their Lordships had observed that :-
"It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy."
(Emphasis supplied) RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 88 of 148
110. Even in the case Yogesh @ Sachine Jagdish Joshi Vs. State of Maharashtra, 2008 Cr.L.J. 3872, the following observations have been made by their lordships of the Hon'ble Supreme Court:-
"22. More recently, in State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru , making exhaustive reference to several decisions on the point, including in State Through Superintendent of Police, CBI/SIT Vs. Nalini & Ors., Venkatarama Reddi, J. observed thus:
"Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused (per Wadhwa, J. in Nalini's case at page 516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible." (Tanviben Pankajkumar case , SCC page 185, para 45). G.N. Ray, J. in Tanibeert Pankajkumar observed that this Court should not allow the suspicion to take the place of legal proof."
23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement."
(Emphasis supplied)
111. Thus, it can be safely held from the above that there is no evidence on record to conclude or draw an inference that A-1 was a party to any such criminal conspiracy for abuse of his office or the office of A-2 and for causing any undue favours or advantages to these institutes by replacement of any such adverse proformas with favourable reports/ proformas.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 89 of 148112. Though, some oral evidence has also been led on record in the form of depositions of PW11 and PW12 to the effect that the above adverse evaluation proformas in files of the above six institutes were replaced as per instructions or directions of A-1, but it has been observed that the depositions made by PW11 to this effect are only hearsay and even the depositions of PW12 made to this effect had remained unsubstantiated or uncorroborated and the same cannot solely be made the basis for drawing of any such inference regarding existence of a criminal conspiracy between A-1, A-2 and other accused persons or A-1's being privy or party to any such conspiracy.
113. Hence, it is held that evidence led by prosecution on record is not at all sufficient to prove the guilt of accused T. Dileep Kumar (A-1) for the alleged offence of criminal conspiracy punishable U/S 120B IPC r/w Sections 13 (2) & 13 (1) (d) of the PC Act and the same also fails to prove his guilt for the substantive offences punishable U/S 13 (2) r/w 13 (1) (d) of the PC Act and Sections 420/468/471 IPC.
CHARGE OF CRIMINAL CONSPIRACY FRAMED AGAINST THE OTHER ACCUSED PERSONS WITH REFERENCE TO SECTIONS 13 (2) R/W 13 (1) (d) OF THE PC ACT.
114. As already discussed, the charge of criminal conspiracy punishable U/S 120B r/w Section 13 (2) & 13(1) (d) of the PC Act and also r/w Sections 420/468/471 IPC has been framed separately against A-1 and each of the private accused persons representing the above six nursing institutes. A-2 could not be charged for any offence as she stood already expired. Even A-3 Dr. Balbir Singh Nadha, who was the then Secretary of Shahid Udham Singh School of Nursing, Haryana stood expired subsequently and proceedings against him had to be RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 90 of 148 abated. When the evidence led by prosecution on record has not been found sufficient to arrive at a conclusion of guilt in respect of A-1 for the above said alleged offences, now this court has to see whether any such criminal conspiracy was actually entered into or was in existence between the remaining accused persons or some of them and if so, whether the same was between A-2 and the above private accused persons.
115. As also discussed, the direct evidence of such a conspiracy is seldom found and existence of conspiracy has to be inferred or drawn from the facts and circumstances of a particular case because the conspiracies are never hatched in public and rather, the same are hatched in privacy or behind the closed doors. The facts and circumstances of a case have to be analyzed and appreciated to find out the existence of incriminating circumstances constituting the conspiracy and showing such privity or meeting of minds between the persons who are party to such a conspiracy for achieving the desired illegal common object.
116. Since A-1 could not be connected with the above criminal conspiracy or the alleged abuse of his office or of the office of A-2 and no other employee or official/officer of the INC has been chargesheeted before this court, it is the role of A-2 which needs to be scrutinized in light of the oral and documentary evidence which has been led on record. As stated above, the above evaluation proformas D-9 to D-15, except D-10, have been found to be containing adverse remarks given in the handwriting of A-2 only, though no opinion could be expressed about her signatures appearing on these documents. As per the case of prosecution, despite all these adverse remarks in the above evaluation reports/proformas, which were allegedly made on the basis RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 91 of 148 of inspections conducted by the panel inspectors, the said adverse evaluation proformas were replaced with favourable evaluation proformas to help these institutes in getting approvals or recognitions. Since a separate charge for offence of criminal conspiracy with reference to the substantive provisions of the PC Act and IPC has been framed against A-2, who is common in all such charges, as well as each of the private accused person representing these institutes, it becomes necessary to discuss and appreciate the evidence led on record institute-wise/accused-wise.
117. It is also necessary to mention here that while dealing with the plea of misjoinder of charges raised on behalf of accused persons at the time of framing of charges, this court had though observed that multiple criminal conspiracies can exist under the umbrella of a larger criminal conspiracy and had thus rejected the said plea, but it is found that separate charges against the private accused persons heading these institutes on one side and A-2 on the other side have been framed by the court in the present matter. As a result thereof also, the evidence led by prosecution on record in support of its case is required to be considered and appreciated separately and conspiracy-wise as because of the separate charges of criminal conspiracy framed against these accused, this court shall not be in a position to consider the acts or omissions of an accused of one conspiracy against the other accused persons of the similar conspiracies as per provisions contained in Section 10 of the Indian Evidence Act, 1872.
118. The discussion and appreciation about evidence led on record institute-wise/accused-wise is as under:-
SHAHID UDHAM SINGH SCHOOL OF NURSING, HARYANA / A-3 DR. BALBIR SINGH NADHA RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 92 of 148
119. As stated above, A-3 representing the said institute in his capacity as the then Secretary of the institute and A-2 K.D. Varyani, who was the member of Evaluation Committee of INC at the relevant time in her capacity as Vice President of INC, stand already expired and proceedings against them stand abated. Even the third accused or conspirator as per the charge i.e. A-1 T. Dileep Kumar stands absolved of the said charge as per discussion held above. Hence, it will be a futile exercise to analyze and appreciate the evidence led on record in respect to this institute and therefore, this exercise is not being resorted to as none of the above three accused or conspirators of this conspiracy can be held guilty or convicted by the court. PRIYADARSHINI SCHOOL OF NURSING, BENGALURU/A-4 JAGDEESH
120. A-4 Jagdeesh was the then Secretary of Priyadarshini School of Nursing, Bengaluru. The adverse evaluation proforma of this institute is D-11 (Ex.PW3/CR) and it is alleged to have been replaced with a favourable proforma available at page no. 685 of file D-3 and the same is Ex.PW3/CM. File D-3 contains notings on pages 1 to 9 and correspondence documents from pages 1 to 689 and the said file is found to have been marked as Mark PW3/CA. As already discussed, the above adverse evaluation proforma D-11 was not bearing any handwriting or signatures of A-1 and though no opinion could be given about the purported signatures of A-2 appearing on this document, but it was opined in the CFSL report Ex.PW22/B (D-21) that the questioned handwriting/remarks given at point Q-8 of this proforma were in the handwriting of A-2. These remarks were to the following effect:-
"Clinical inadequate Infra structure inadequate Affiliated hospital many institutions affiliated Unsuitable"RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 93 of 148
121. On perusal of the oral and documentary evidence led on record, the admitted position which comes out therefrom is that this institute had applied for GNM course vide letter dated 13.04.2005 Ex. PW3/CB (on page 126 of file D-3) written by Principal of the said school to the Secretary, INC and the said letter also contained a request for inspection of the school. This letter was received in the office of INC on 15.04.2005 and was marked by the then Secretary Mrs. Chug to PW3 on the same day and PW3 had further marked it to Mrs. Bharti and Mrs. Rajshree on 16.04.2005. Ex. PW3/CC (on pages 268 to 284 of file D-3) is the inspection report given by panel inspectors of INC about this institute and the said inspection was conducted on 14-15.06.2005 and report thereof was received in the office of INC on 20.06.2005. Ex.PW3/CD is the evaluation proforma or report (on page no. 287 of file D-3) prepared on the basis of above inspection and it also contains the adverse remarks given in handwriting of A-2 recommending the institute as unsuitable for the said course. This report/proforma was counter signed by A-1 as well by the then Secretary Mrs. Chug. An intimation about unsuitability was conveyed to the said institute through a letter dated 08.07.2005 Ex. PW3/CE (on pages 288 & 289 of file D-3) by the then Secretary, INC, for the reasons as stated in the said letter itself, and vide another letter Ex.PW3/CF (on pages 290 & 291 of file D-3), the institute was further asked to comply with the deficiencies found in the above inspection report dated 16.06.2005, before approaching the INC again for recognition. (This letter appears to have been dated 19.07.2004 inadvertently as it should be 19.07.2005 because the inspection was conducted in the year 2005 only).
122. Further, it has also come on record during depositions of PW3 that then another letter dated 30.11.2005 Ex.PW3/CG (on page 322 of RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 94 of 148 file D-3) was received in the office of INC from the Principal of the above institute with a request for re-inspection of the institute and in response to the said letter, a team of panel inspectors had again visited the institute on 10-11.03.2006 and gave their report Ex.PW3/CH (on pages 588 to 601 of file D-3), which was received in the office of INC on 17.03.2006. However, again vide remarks given in the adverse evaluation report/proforma Ex.PW3/CI (on page 605 of file D-3), A-2 had recommended the said institute as unfit for the above course and even this report was countersigned by A-1. The letter dated 18.03.2006 Ex.PW3/CJ (on page 607 of file D-3) was then sent by PW3 to the said institute informing it about its unsuitability on the basis of above evaluation report.
123. It is also an admitted fact, which even emerges out from the evidence, that once again the above institute had applied for recognition of the above course through their letter dated 28.04.2006 Ex. PW3/CK (on page 622 of file D-3) addressed to the Secretary, INC with a request for re-inspection and this time, the institute was inspected by panel inspectors PW9 Ms. J. Daisy and PW18 Ms. Valsamma Joseph on 17.06.2006 and they submitted their inspection report Ex.PW3/CL (on pages 669 to 682 of file D-3) in the office of INC. As per remarks made in the evaluation proforma Ex.PW3/CM (on page 685 of file D-3), the said institute was now found suitable for 60 seats during that year i.e. the academic year 2006-07 and 40 seats next year. This evaluation proforma is the above referred favourable proforma which has allegedly been put or placed in file of this institute as a replacement of the earlier adverse evaluation proforma D-11. The remarks given by A-2 in this favourable evaluation proforma are found to be to the following effect:-
"Suitable 60 this year RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 95 of 148 40 next year"
Similar remarks are also found to have been given in the handwriting of A-1 on this proforma, as already discussed.
124. It is the contention of Ld. Defence Counsel representing the above accused/institute that the adverse remarks given in proforma D- 11 by A-2 have no basis and infact the same are contrary to the evidence led on record and these are not at all based on the inspection report Ex.PW3/CL given by PW9 and PW18. He has also drawn the attention of this court to the strong and weak points mentioned by the panel inspectors in respect to the above said institute in the above inspection report Ex.PW3/CL, in support of his argument that the adverse remarks contained in D-11 are not based on said the inspection report.
125. For proper appreciation of the above contention of the Ld. Defence Counsel, the comments given by the above two panel inspectors in their inspection report Ex.PW3/CL (on pages 669 to 682 of file D-3) on reverse side of last page of the report i.e. page 669 of file D-3 are also being reproduced herein below:-
"Strong points :- Clinical Facilities :- Nursing School is affiliated to one govt. hospital and 3 private hospitals. No other institutions are affiliated to these 3 private hospitals except Priyadarshini School and College of Nursing.
Classrooms :- Adequate in numbers.
Weak Points : (1) No permanent building for the Nursing School and hostel. Students are temporarily accommodated in the first floor of a leased building for classes. (2) Teaching Faculty :-
Number and experience of teaching faculty inadequate as per INC norms. Majority of teaching faculty is not registered in Karnataka Nurses and Midwives Council. No separate office staff for the Nursing School and College. No separate library, laboratories and examination hall for the school, utilising the facilities of Nursing College which is running in an another leased building. No direct telephone for the school Principal, has only extension facility. No RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 96 of 148 separate budget for the Nursing School. Female students hostel is congested and unsafe. No fax and internet facilities for the Nursing School.
Executive Summary :- Permanent school and hostel building should be constructed immediately and student should be shifted from the industrial area to a safe place. Experienced and adequate number of teaching faculty should be appointed as per INC norms. Separate budget should be allocated for the Nursing School. Safe hostel with adequate facilities should be provided for the students. Parent hospital should be constructed."
126. Ld. Defence Counsel has specifically pointed out that though in the adverse evaluation proforma D-11, A-2 had written that many institutions are affiliated with the hospital with which the above institute was affiliated, but the comments given by inspectors in 'strong points' against the head 'clinical facilities' clearly show that the above institute was affiliated to one government hospital and three private hospitals at the relevant time and no other institutions were affiliated to these three private hospitals. He has also referred to the answers given by the above two inspectors, i.e. PW9 and PW18, during the course of their cross examinations to the specific questions put to them in this regard, as to whether the fact that the above nursing institute was affiliated with one government hospital and three private hospitals was a negative point of the said institute or a positive point and reply of the witnesses was that it was a positive point.
127. However, the above fact alone cannot nullify the effect of adverse remarks given by A-2 in the evaluation proforma D-11 as it was only one of the points raised or adverse remarks given by A-2 in the adverse proforma D-11 that many institutes were affiliated with the same hospital. The other major adverse remarks given by her in the said proforma were to the effect that clinical and infrastructure facilities in the said institute were also inadequate. It is observed that these adverse remarks given by A-2 in evaluation proforma D-11 were very RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 97 of 148 much based on the above inspection report given by PW9 and PW18 as in the 'weak points' of said institute, as reproduced above, the inspectors had clearly written that not only the institute was without any permanent building for the school and hostel, but the teaching and other material infrastructure facilities required for operation of the institute, including a separate library, laboratories, examination hall etc. were also not available in the said institute. It further shows that the institute was not located at a safe place as the rented building in which it was temporarily being run was situated in an industrial area. Further, even the nursing college whose facilities this school or institute had to use was itself being run in a leased building. Hence, simply because Ld. Defence Counsel has tried to demonstrate from the documents submitted with the original application for recognition of this institute or with the subsequent applications for re-inspection that the said institute had already acquired separate land for the school and hostel etc. and even construction for the same had started, it will not falsify the report given by the inspectors to the effect that as on the date on which they both had inspected the said institute, the institute was being run in a rented building and was poorly lacking in almost all the material facilities and infrastructures as required for grant of recognition to the institution for the above said course, as per the norms and guidelines notified and being followed by the INC. Moreover, PW18 has also specifically stated on record that despite their stay at the institute for a period of around 8 to 10 hours while inspecting it, the Principal did not tell them that any such land stood acquired or building was under
construction for the school. The depositions made by both these inspectors during their cross examinations further show that they were well experienced and trained in conducting such type of inspections for the purposes of finding out suitability of the institutes for the said course as per the norms and guidelines of INC.RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 98 of 148
128. Moreover, the guidelines with respect to the minimum requirements for setting up of a school of nursing or for recognition of an institute for the GNM course etc., as contained in the booklet titled 'Syllabus and Regulations - Diploma in General Nursing & Midwifery' (D-24), have also been duly brought on record during the course of evidence through the depositions of PW7 Sh. Rakesh Balaji Likhar, who was a Clerk posted in the publication cell of INC and was dealing with the prescribed syllabus etc. for different nursing courses being run by such institutes with affiliation of the INC. The above booklet containing these guidelines and requirements has been duly exhibited as Ex.PW7/A during the testimony of this witness and the witness has also authenticated the contents and guidelines as contained this booklet. Though, it is also a contention of the Ld. Defence Counsels that the revised guidelines as appearing in the form of printouts on slips pasted on pages no. 8, 17 and 18 of this booklet cannot be considered as a part of the applicable guidelines as on the date of inspection of above institute because the witness has clearly stated on record that he himself had not pasted the above slips or revised guidelines, but this contention of Ld. Defence Counsels is also without merits as the witness has clearly stated that these pasted slips were in respect to the revised guidelines only and these were pasted on these pages after revision of the guidelines as per orders of the Secretary, INC and the above pasting of slips was done to avoid republication of the entire booklet. Further, he has even stated that the above corrected or pasted version was also got printed from the same printer who had printed the above booklet or guidelines. Even otherwise, if case of the accused persons was that any other guidelines were in operation as on the date on which these institutes were granted recognitions or approvals for the above said course or that the RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 99 of 148 guidelines or revised guidelines as contained in this booklet were not applicable, then some evidence in defence should have been led by the accused persons in respect of such guidelines or to rule out the applicability of guidelines or revised guidelines as contained in this booklet and in absence of that also, this court can safely draw an inference that the guidelines or revised guidelines as stated in this booklet were in operation as on the date of inspection of this institute and the institute was found not meeting or lacking in for the said requirements. Further, though, Ld. Defence Counsel has also raised an objection to identification of signatures of different officers/ officials of INC by PW3 and other official witnesses of INC examined on record, but for the reasons already discussed, this objection is also found unsustainable as witnesses examined before this court have been found to be well capable and in a position to identify the said signatures or handwritings of not only of A-1 & A-2, but also of other officers/ officials of the INC on account of their working under/over or with such officers/officials or having seen the handwritings or signatures of said officers/officials on documents during the usual course of their work. Hence, this court has no hesitation in concluding that as on the date of above inspection by PW9 and PW18, this institute did not have the requisite infrastructure and other facilities for being granted recognition for the above said course as per the norms and guidelines of INC in force at that time.
129. Though Ld. Defence Counsel has also referred to some depositions made by the above two inspectors during their cross examinations to the effect that previous report showing deficiencies in infrastructure facilities was not made available to them by the INC, but even this is of no help to the case of accused as PW18 has specifically stated that a letter of INC sent to the institute pointing out the said RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 100 of 148 deficiencies was made available to them.
130. Thus, it emerges out from the above discussion that the above adverse remarks given in D-11 by A-2 were very much based on the above inspection report Ex.PW3/CL given by PW9 and PW18 and there is no explanation furnished during the course of trial as to what resulted in substitution of the evaluation report D-11 containing the above adverse remarks with the favourable report or proforma Ex.PW3/CM as available on page 685 of file D-3.
NATIONAL SCHOOL OF NURSING, BENGALURU/A-5 K.T. GOVIND GOWDA
131. A-5 K.T. Govind Gowda is stated to be the then Chairman of National School of Nursing. The file of this school is D-4, which has been marked as Mark PW3/AH, and adverse evaluation proforma of the school is D-14 Ex.PW3/AU and favourable evaluation proforma of the institute is Ex.PW3/AS (on page 490 of file D-4). This file is stated to be containing notings on pages 1 to 9 and correspondence documents from pages no. 1 to 494.
132. As per the oral and documentary evidence led on record and also the admitted position which emerges out therefrom, the application dated 14.06.2004 for recognition of the said school for GNM course was submitted in the name of Principal of the school in office of the Secretary, INC, along with a request for inspection, and inspection of this school was firstly conducted on 08-09.07.2004 and the report given by inspectors is Ex.PW3/AI on record (on pages 96 to 110 of file D-4). The adverse evaluation proforma prepared by members of the then Evaluation Committee on the basis of the said report is Ex.PW3/AJ (on page 112 of file D-4) and the institute was recommended unsuitable for RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 101 of 148 the said course.
133. The second inspection of this institute was conducted by panel inspectors of INC on 27-28.06.2005 on the basis of a request for recognition and re-inspection dated 20.10.2004 Ex. PW3/AL (on page 133 of file D-4). The report of this inspection is Ex.PW3/AM (on pages 354 to 381 of file D-4) and as per note-sheet Ex. PW3/AN available on note page 5 of file D-4, the institute was again found unsuitable for the said course as per minutes of meeting of the Executive Committee of INC held on 07.07.2005.
134. The institute had again applied for re-inspection vide letter dated 25.11.2005 Ex. PW3/AO (on pages 396 to 400 of file D-4) and as per the noting Ex.PW3/AP on note page no. 7 of file D-4, a surprise inspection of this institute was again conducted on 25.08.2005 and its report was considered in the Executive Committee meeting held on 15.09.2005 and yet again institute was found unsuitable for the said course.
135. Another request for re-inspection of the institute through letter dated 18.04.2006 Ex.PW3/AQ (on page 446 of file D-4) was received in the office of INC on 20.04.2006 and the fourth inspection of institute was conducted on 02.05.2006 by the panel inspectors PW10 Ms. Moly KT and Ms. Prasanna Kumari (not examined as a witness) and the report given by these inspectors has been proved as Ex.PW3/AR on record (on pages 459 to 486 of file D-4). However, this time the institute was recommended to be suitable for an intake of 40 students for the said course vide remarks given in the evaluation proforma (favourable evaluation proforma) Ex.PW3/AS (on page 490 of file D-4) and as per noting proved on record as Ex.PW3/AT, the above report of Evaluation RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 102 of 148 Committee was accepted by the Executive Committee in its meeting held on 22.07.2006. Further, the letter dated 24.07.2006 Ex.PW3/ A5D1 (on page 491 of file D-4), letter dated 28.08.2006 Ex.PW3/A5D2 (on page 494 of file D-4) and suitability certificate dated 28.08.2006 Ex.PW3/A5D3 (on page 492 of file D-4) were also issued from the office of INC to the said institute communicating the above approval/ decision for recognition of the said course.
136. The adverse evaluation proforma D-14 (Ex. PW3/AU) of this institute contained the following remarks, which have been proved to be in handwriting of A-2:-
'Faculty filled for B. Sc.
Shown GNM also Name list-
Principal - 01 Vice - 01 Tutors 15 15 in B.Sc also Principal name and vice name both places different but page 10 remark shown that classes are taken together with National KTG + Anuradha page 14 _ "physical facilities not true".'
137. The favourable proforma of this institute appearing on page 490 of D-4 (Ex. PW3/AS) contained the remarks given below in handwriting of A-2:-
'suitable one year 40 seats' The remarks 'suitable 40' were also given on this proforma in the handwriting of A-1, besides the signatures of both these accused as appearing thereon.
138. The comments given by the above two panel inspectors in their inspection report Ex.PW3/AR (on pages 469 to 489 of file D-4) on last page of the report i.e. page 459 of file D-4 are as under:-
"Address of National College of Nursing and School of Nursing is the same as that of KTG as it is functioning in the RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 103 of 148 same building. Physical facility Shown 7 class rooms. But they are not exclusively for National College of Nursing and School of Nursing. The infrastructure is used for 3 Schools of Nursing, 3 Colleges of Nursing, a general School from Std 1-10th, BPT, MPT & DMLT.
Library. Books inadequate. No journals. Subscribed Librarian not qualified. Librarian is common for 3 Colleges & Schools of Nursing.
Faculty. Principal & Vice Principal - not having adequate experience. Most of them have joined for the purpose of inspection. But signed in the attendance register for many months. Senior faculty inadequate. More than 90% of staff are not registered in Karnataka Nursing Council. Hostel - Common for 8 programmes.
Clinical facility - 39 institutions are affiliated to the same institution. Not posted as per requirement. Students are not allowed to do any procedures by hospital authority."
139. Thus, it emerges out from the above that despite three consecutive adverse reports or recommendations of the Evaluation Committee given on the basis of three separate inspections of this institute conducted by different panel inspectors of INC, the institute was granted recognition for the above said course for an intake of 40 students based on remarks or recommendation contained in the favourable evaluation proforma Ex.PW3/AS (on page 490 of file D-4), which was put or placed in file of this institute as a replacement of the earlier adverse proforma D-14 Ex. PW3/AU, and both these proformas were prepared after the inspection report dated 02.05.2006 Ex.PW3/AR (on pages 459 to 486 of file D-4) had reached the office of INC. However, it can be seen on a bare perusal of the remarks given by panel inspectors on reverse side of last page of their report Ex.PW3/AR, i.e. on page 459 of file D-4, that even this institute was poorly lacking in all the basic requirements needed for starting the above said course because not even a single plus or positive point about this institute is found reported in the above inspection report and rather, the entire comments reflect upon or form the negative points of the institute only. It can be seen that apart from lacking in other RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 104 of 148 infrastructures, various institutions were found being run in the same building and the building being used for this school was actually being used by two other schools of nursing, three colleges of nursing, a general school from classes 1 to 10 and also for an institute running diploma courses in MPT & DMLT. Even hostel of the school was common for eight programmes and under the head 'clinical facility', 39 institutions have been reported to be affiliated to the same institution or hospital and students were not allowed to do any procedures by the hospital authority. The teaching faculty of this school was also reported to be lacking in experience and apart from all the above, the inspection report further suggests that the shown strength of teaching capacity was fake as it has been specifically stated in remarks against the head 'Faculty' that most of them had joined for the purpose of inspection only, but signed in the attendance register for many months.
140. Though, on the basis of depositions made by PW3 Sh. V.P. Sharma and PW10 Ms K.T. Moly during the course of their cross examinations, Ld. Counsel representing this institute/accused has tried to make a submission that two acres of land stood already acquired for construction of a separate building for the school and hostel etc. and further, even the copies of lease deed, site plan and photographs etc. of the construction started at the above piece of land were submitted in the office of INC in the form an undertaking-cum-letter dated 24.03.2006, but this is of no help to the case of accused and rather, it goes against their case as it establishes that as on the date when the above inspection dated 02.05.2006 of this institute was conducted and the above comments/remarks were given by the concerned inspectors in their report Ex.PW3/AR, the school or institute was not having a separate building or faculty or the other infrastructure facilities as pointed out by them. Further, simply because the above comments or RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 105 of 148 remarks have not been given by the inspectors in the form of 'strong points' and 'weak points' of institute, as is the case in respect of Priyadarshini School of Nursing discussed above, these comments/ remarks cannot be rejected or discarded and it cannot be accepted that the same were made by the inspectors on their own or while going against or ignoring the facilities existing at the time of their inspection. Even the remarks given in adverse evaluation report Ex.PW3/AU (D-
14) appear to be based on the remarks given by panel inspectors in their above report on some aspects as these remarks also show that different institutions were being run from the same building, from where this school had applied for starting GNM course, and further that even names of teaching faculty members of the school and college were found overlapping.
141. Thus, it is also established from evidence that despite the adverse remarks given by A-2 in the above evaluation proforma D-14 Ex.PW3/AU, which were based on the inspection report Ex. PW3/AR, the said proforma or report was replaced with the favourable proforma Ex.PW3/AS (on page no. 490 of file D-4) to favour the above institute in grant of recognition and no explanation has also emerged from the evidence for substitution thereof as both these proformas were prepared after the inspection report Ex.PW3/AR was received in the office of INC.
ASRAM COLLEGE OF NURSING, ELURU, ANDHRA PRADESH/A-6 DR. GOKARAJU GANGA RAJU
142. A-6 Dr. Gokaraju Ganga Raju, who is stated to have been subsequently elected as a MP of Lok Sabha in the year 2014, is stated to be the then Vice Chairman of Alluri Sitarama Raju Education Society, Eluru, West Godavari District, Eluru, Andhra Pradesh and this society is RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 106 of 148 claimed to be running the Asram College of Nursing, Eluru, Andhra Pradesh. The file to this institute is D-7 and the same has been marked as Mark PW3/D6-4. The adverse evaluation proforma of this institute is D-12 Ex.PW3/S and favourable evaluation proforma of this institute is on page no. 627 of file D-7, which is Ex. PW3/O. The above file is stated to be containing notings on pages 1 to 14 and correspondence documents from serial nos. 1 to 633.
143. As per the oral and documentary evidence led on record, the approval for starting B.Sc. (N) course with an intake of 40 students per year was granted to the said institute in meeting of the Executive Committee of INC held on 29.04.2005, on the basis of an application submitted by the said institute with this prayer, and the decision of Executive Committee in this regard was conveyed to the institute vide letter dated 05.05.2005 (on page 270 of file D-7), which has been exhibited as Ex. PW3/D6-1. The noting on page 7 dated 19.05.2005 of file D-7 Ex. PW3/I also speaks about the same.
144. Thereafter, one letter dated 10.05.2005, brought on record as Ex.PW3/D6-3 (on page 276 of file D-7) during cross examination of PW3, appears to have been sent on behalf of said institute to the Secretary of INC seeking some clarifications regarding existing INC norms and standards for having an intake of 100 students for the above said course if a nursing college is attached to a parent medical college. The undated letter Ex. PW3/D6-5 (on page 280 of file D-7) brought on record during cross examination of PW3 appears to be the faxed copy of above letter dated 10.05.2005 Ex.PW3/D6-3, which was dealt with in the office of INC as it bears the initials and remarks of officials/officers of INC as well as the seal of INC. Vide endorsement/ remarks found to have been made on this faxed letter, which have RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 107 of 148 been stated or admitted by PW3 to be in handwriting of the President of INC, it was directed that the institute be intimated about the relevant guidelines of INC on the issue. Another undated letter Ex. PW3/D6-2 (on page 277 of file D-7) also appears to have been sent on behalf of the institute to the Secretary, INC extending thanks for granting permission for starting the B.Sc. (N) programme in the said college. This letter was also dealt with by the concerned official on being received in the office of INC on 17.05.2005. The letter dated 02.06.2005 Ex. PW3/K (on page 279 of file D-7) appears to have been sent by the then Secretary of INC to the said institute in response to the faxed letter dated 10.05.2005 and clarifying the position for allotment of 100 seats and also asking them to deposit the requisite inspection fee for enhancement of the seats, besides sending some other documents.
145. The formal request for enhancement of seats from 40 to 100 students was submitted by the institute through their letter dated 26.05.2006 Ex. PW3/L (on page 302 of file D-7) and thereupon one letter dated 14.06.2006 Ex. PW3/M (on page 311 of file D-7) was sent by PW3 to the institute intimating about the proposed date(s) of inspection of the institute as 26-27.06.2006. The institute was inspected by the two panel inspectors of INC, i.e. PW13 Prof. S.F. Billalli and PW16 Ms Shameem Gulnazunissa, on 26-27.06.2006 and they had submitted their report Ex.PW3/N (on pages 610 to 623 of file D-7) to the office of INC, which is stated to have been received there on 30.06.2006. Vide the evaluation proforma/report (favourable) Ex.PW3/O (on page 627 of file D-7), the institute was recommended for enhancement of seats for the said course from 40 to 100 vide noting/ remarks given by A-1 and A-2. The noting exhibited as Ex.PW3/P on noting page no. 13 of file D-7 is also to the same effect (but due to RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 108 of 148 some mistake or inadvertence no exhibit mark on this note is actually found to have been placed) and it further shows that on the basis of above recommendations, the permission for enhancement of seats was granted to the institute in the Executive Committee meeting held on 22.07.2006.
146. The above factual position and documents have also been admitted by Ld. Defence Counsel representing the said accused/ institute during the course of arguments, though some unfounded objections are found to have been taken earlier to the exhibition of some notings and documents.
147. As is clear from the above, the adverse remarks in the evaluation proforma Ex.PW3/S (D-12) and the remarks in favourable evaluation proforma Ex. PW3/O (on page 627 of file D-7) are both found to have been made or given after inspection of the institute on 26-27.06.2006 and receipt of the inspection report Ex.PW3/N (on pages 610 to 623 of file D-7) in office of INC. As already discussed, the purported signatures as well as remarks/handwriting appearing on both these documents were sent for expert opinion and adverse remarks/ handwriting appearing on the adverse evaluation proforma D-12 have/ has been reported to be of A-2 and the questioned handwriting/remarks appearing on favourable evaluation proforma has/have been found to be of A-1 as well as of A-2, though their signatures could not be matched.
148. The adverse evaluation proforma Ex.PW3/S (D-12) of this institute contained the following remarks, which have been proved to be in handwriting of A-2,:-
'Parent hosp _____ 500 beds RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 109 of 148 University sanctioned seats 40 Govt sanc. seats 100 Principal - 01 Vice - 01 Reader - 03 Lect 07, clinical - 10 only Teacher students 1:10 to be followed Rule is there but 100 seats cannot be given University sanct require No common rooms No MCH lab Need more nursing journals only last year given 40 seats."
149. The favourable proforma of this institute appearing on page 627 of file D-7 (Ex. PW3/O) contained the remarks given below in handwriting of A-2:-
'E.S. agreed with conditions 100' The remarks 'Medical College E.S. approval 100' were also given on this proforma in the handwriting of A-1, besides the signatures of both these accused as proved during the course of trial.
150. The comments appearing on reverse side of last page of inspection report Ex. PW3/N, i.e. reverse side of page no. 610 of the file D-7, are also being reproduced herein below:-
"Strong Points : Physical Infrastructure : Own building with 4 class rooms can accommodate 100 students in each class room with well equipped laboratory.
Clinical Facility : Own Teaching Hospital having 500 bedded with all dept.
Teaching faculty : Principal, Vice Principal, 3 Readers, 7 Lecturers & 10 clinical instructors are appointed. Weak Points : Some more nursing journals to be added to the library"
151. As stated above, the only weak point mentioned in the above inspection report Ex. PW3/N given by the panel inspectors of this institute is that some more nursing journals needed to be added in the library of the institute. However, still vide her remarks given in the RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 110 of 148 alleged adverse evaluation proforma Ex. PW3/S (D-12), the deceased A-2 had mentioned that 100 seats cannot be given to the institute and besides the remark regarding teacher students ratio of 1:10 to be followed, she had also written that there were no common room and no MCH laboratory. This was apart from the requirement of nursing journals.
152. But when the above remarks given by deceased A-2 in the above adverse evaluation proforma are considered and appreciated in light of the above inspection report and other evidence led on record, as demonstrated by Ld. Defence Counsel, it is observed that the said remarks were not based on the above inspection report and the flaws or deficiencies being pointed out in this evaluation proforma were actually not having any reasonable basis and the same had nothing to do with the grant of recognition or approval as sought for by the institute. It is so because the oral and documentary evidence led on record suggests that the paramount condition for grant of approval for enhancement of seats to this institute from 40 to 100 for the above course of B.Sc. (N) was that the institute should have a parent medical college or parent hospital with 500 or more beds and also having the requisite physical and teaching facility and this institute was meeting the above paramount requirement. During the course of cross examination of PW3 certain documents have been brought on record by Ld. Counsel representing this institute/accused and these documents reveal that prior to sending the letter dated 26.05.2006 Ex.PW3/L (on page 302 of file D-7), one other letter dated 16.01.2006 Ex.PW3/D6-7 (page 294 of file D-7) was also sent by this institute requesting enhancement of seats for the above course from 40 to 50 for the next academic year, i.e. 2006-07, and it also contained a request for inspection of the institute. This letter was replied by PW3 RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 111 of 148 vide his letter dated 24.02.2006 Ex.PW3/D6-8 (on page 296 of file D-7) and the institute was intimated that its inspection will be carried out in near future. The noting dealing with the above request of the institute has been proved on record as Ex.PW4/D6-9 (noting page no. 11 of file D-7) during the testimony of this witness. Another letter dated 23.02.2006 of the institute containing the similar request for renewal of permission and enhancement of seats from 40 to 50 has also been proved on record as Ex.PW3/D6-10 (on page 298 of file D-7) during cross examination of this witness.
153. Thus, it emerges from the above that enhancement of seats from 40 to 100 was requested or applied by the institute vide their letter dated 26.05.2006 Ex.PW3/L (on page 302 of file D-7), while their earlier request for enhancement of seats from 40 to 50, as stated above, was still pending and the same was applied as the institute claimed itself to be eligible for the said enhancement in terms of the conditions for such an enhancement as communicated to them by the then Secretary Mrs. Chug through her letter dated 02.06.2005 Ex. PW3/K (on page 279 of file D-7) and this letter specifically stated that though INC can allot maximum number of 60 seats only, but 100 seats can be alloted to the college of nursing, which have parent medical college hospital or parent hospital having more than 500 beds on the basis of physical or teaching facility. As already discussed, this letter appears to have been written in response to the faxed copy (undated) Ex.PW3/D6-5 of the letter dated 10.05.2005 sent by the institute seeking some clarifications regarding the norms for allotment or enhancement of the seats upto 100 and the remarks/endorsement given by the President of INC thereon directing communication of above conditions or norms to the institute. The relevant extracts of the above faxed copy of letter Ex.PW3/D6-5 (on page 280 of file D-7) sent RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 112 of 148 by the institute to the INC are being reproduced herein below:-
"We understand that as per existing Indian Nursing Council norms and standards, a Nursing College attached to parent Medical College can have 100 seats in take for B.Sc (N) Course.
Our 'ASRAM' College of Nursing is attached to our own "ALLURI SITARAMA RAJU ACADEMY OF MEDICAL SCIENCES" (Medical College with 500 Beds Hospital & with occupation ratio of 85%) established in the year 2000 and continuously obtaining required approvals from M.C.I. We are also planning to start Post Graduate medical Courses (M.D. / M.S.) from next Academic Year.
Our existing infrastructure, equipment and faculty (including newly recruited) is well sufficient for admissions of 100 seats students per year. If you kindly clarify this matter accordingly we can apply for 100 seats."
154. The relevant extracts of the reply of INC as contained in their letter dated 02.06.2005 (on page 279 of file D-7) are as under:-
"Indian Nursing council can allot maximum number of 60 seats only. However, 100 seats are alloted only to the College of Nursing who have parent medical college Hospital or parent hospital more than 500 beds that too on the basis of physical & teaching facility."
155. Thus, it is clear from above that the paramount condition for enhancement of seats upto 100 for the above course was the affiliation of the institute to a parent medical college hospital or parent hospital having 500 beds or more and it was specifically claimed by the institute in their above letter that they were having their own Alluri Sitarama Raju Academy of Medical Sciences (Medical College with 500 beds hospital and with occupation ratio of 85%), which was established in the year 2000 i.e. around 5½ years prior to sending of the above letter. It was also claimed in this letter that existing infrastructure, equipment and faculty (including newly recruited) was well sufficient for admission of 100 students per year and parent medical college of the institute was also planning to start post graduate medical courses (M.D./M.S.) from next academic year.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 113 of 148156. The above claim of this institute regarding its affiliation with the parent medical college hospital or parent hospital having 500 beds is found substantiated not only from the above inspection report Ex.PW3/N, but also from the oral and other documentary evidence led on record by the prosecution itself. As already discussed, the strong points of this institute stated in the above inspection report Ex.PW3/N clearly show that the institute was having their own teaching facility hospital having 500 beds with all departments and apart from this, the institute was also having its own building with four classrooms having capacity to accommodate 100 students in each classroom. Further, it was also reported that the institute was well equipped with laboratory and clinical facilitates. No deficiencies in the teaching faculty of the institute are also found to have been specifically reported by the inspectors in their above report. Hence, this court fails to understand as to how and on what basis, the above remarks contained in adverse evaluation report Ex. PW3/S (D-12) by deceased A-2 could have been given as even these remarks specifically state that the institute was having a parent hospital with 500 beds. Further, though it is also found stated in the said remarks that the university sanction of this institute was for 40 seats only, but the Ld. Defence Counsel has also demonstrated during the course of trial and arguments that the permission for enhancement of seats upto 100 stood already granted to the institute by the State Government and moreover, even enhancement of seats upto 100 permitted by the INC on the basis of favourable evaluation proforma Ex.PW3/O (on page 627 of file D-7 containing handwriting or remarks given by A-1 and A-2) was conditional only as the remarks given by A-2 in the said proforma were to the effect that 'E.S. agreed with conditions 100'.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 114 of 148157. Further, even during the course of examination of two inspectors i.e. PW13 and PW16, PW3 as well as the other INC witnesses, nothing material could be brought on record by prosecution to contradict or controvert the above position and even both PW13 and PW16 during their cross examinations have specifically stated that the above institute was not only affiliated to a parent medical college having 500 beds, but the same was also having a digital library containing eleven audio and visual devices. It has further been stated by them that there were 1238 books recently purchased by library of the institute and 8 journals were also subscribed by the institute. Though, they have still maintained that some Indian and international journals were not subscribed, but this in considered opinion of the court cannot be termed as a disqualification of the institute for enhancement of seats upto 100 when it was meeting all the other material requirements. Though PW13 was also permitted to be re-examined by the court on request of Ld. Sr. PP with regard to his depositions made during the cross examination that the institute was having Wi-Fi/internet facility and he had stated during his re-examination that had this facility been available, it would have been specifically mentioned in the report, but even during his cross examination conducted by Ld. Defence Counsel of this institute/accused subsequent to the above re-examination, he again went on to state that in his letter Ex.PW13/A (on page 626 of file D-7) submitting the above inspection report to INC, it was specifically stated that the internet facility was available in the institute. Hence, when the institute was already having a good number of books and journals subscribed and also having internet facility to access the e- digital library for Indian and International journals, the remarks given by the inspectors regarding non subscription for hard copies of some journals cannot be considered as a disqualification for the above enhancement of seats.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 115 of 148158. Again, though the guidelines and norms for the GNM course have been brought on record by the prosecution during the evidence as Ex.PW7/A (D-24) in the form of a booklet but the norms and guidelines led down by the INC for starting the B.Sc. (N) course or for upgradation of an institute from a school to a college have not been brought on record and in the absence of that, even it could not have been established as to how and to what extent this institute was not meeting the applicable norms and guidelines for the B.Sc. (N) course or for enhancement of seats for the same.
159. Thus, it comes out from the above oral and documentary evidence that there was no illegality in enhancement of seats of this institute from 40 to 100 for the course of B.Sc. (N) as the institute was fulfilling all the basic requirements or conditions for grant of the said enhancement or recognition as per the norms laid down by the INC.
BABA FARID MEDICAL INSTITUTE OF NURSING, PUNJAB/A7 DR. MANJIT SINGH DHILLON
160. A-7 Dr. Manjeet Singh was the then General Secretary of this institute when enhancement of seats was applied by the institute with the office of INC. The adverse evaluation proforma of this institute is D-13 Ex.PW3/AG and its favourable evaluation proforma is available on page 411 of file D-6 of this institute. The file D-6 is found marked Mark PW3/T and it contains notings from pages 1 to 20 and correspondence documents from pages 1 to 416.
161. As per the oral and documentary evidence led on record, this institute had applied for GNM course vide their letter dated 09.09.2002 Ex.PW3/U (on page 33 of file D-6) and this letter also contained a RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 116 of 148 request for inspection of the institute. As per noting on note page 3 of the above file proved on record Ex.PW3/V, the inspection of this institute was conducted on 28-29.12.2002 and the report of inspection was placed before the Executive Committee on 31.12.2002 and the institute was found suitable for an intake of 30 students per year for the said course.
162. Further, vide letter dated 23.08.2003 Ex. PW3/W (on page 90 of file D-6), the institute had sent a request for enhancement of seats from 30 to 60 and this request was received in the office of INC on 25.08.2003. The inspection of institute was now conducted on 28-29- 30.10.2003 and the inspection report Ex. PW3/X (on pages 181 to 191 of file D-6) was submitted by panel inspectors to INC on 06.11.2003. Vide evaluation proforma Ex. PW3/Y (on pages 194 and 195 of file D-
6), enhancement of seats was recommended up to 50 by the Evaluation Committee and it was also agreed by the Executive Committee of INC as per the noting on note page no. 8 of the said file, which though has been proved on record by PW3 but due to some mistake or inadvertence no exhibit mark on this note is found to have been placed. The above approval for an intake of 50 seats for the academic year 2003-04 was conveyed by INC to institute vide letter dated 05.01.2004 Ex. PW3/Z (on pages 199 and 200 of file D-6).
163. The institute had again applied for enhancement of seats for the above said course from 50 to 60 vide their letter dated 20.08.2004 Ex. PW3/AA (on page no. 203 of file D-6) and it was received in the office of INC on 26.08.2004. The inspection of institute this time was conducted on 06-07.07.2006 and the inspection report Ex. PW3/AB (on pages 397 to 410 of file D-6) was submitted to INC on 18.07.2006 by the two panel inspectors. Ex. PW3/AC is the favorable evaluation RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 117 of 148 proforma appearing on page 411 of the said file D-6 of this institute and it contains recommendations admittedly given in the handwriting of A-1 & A-2 for granting the above enhancement up to 60 seats and the noting Ex. PW3/AD on noting page 19 of this file shows the decision of the Executive Committee to grant the above enhancement in its meeting held on 22.07.2006. The above approval was conveyed to the institute vide letter Ex. PW3/AF (on pages 415 and 416 of file D-6) and the suitability certificate Ex.PW3/AE (on page 417 of file D-6) to this effect was also enclosed with this letter. The above favorable evaluation proforma Ex.PW3/AC is allegedly the replacement of adverse evaluation proforma D-13 Ex.PW3/AG of the above institute and both these evaluation proformas were admittedly prepared or filled by members of the Evaluation Committee after the above inspection report Ex. PW3/AB was received in office of the INC.
164. During the course of cross examination of PW3, one other letter dated 24.07.2006 (on page 413 of file D-6) has also come in evidence as Ex. PW3/A7D-1, which was sent by the INC to the said institute conveying the above approval for enhancement of 60 seats subject to certain conditions stated in the said letter. Further, the faxed copy of another letter dated 12.01.2005 has also come on record during cross examination of the said witness as Ex.PW3/A7D-2 (on page 216 of file D-6), which contains the comments/suggestions or compliance by the institute to the deficiencies pointed out in the previous inspection report dated 28-29.10.2003 (there appears to be some typographical mistake in date here because the month here is written as '11' instead of '10' as the previous inspection report Ex. PW3/X on pages 181 to 191 of file D-6 is actually dated 28-29.10.2003).
165. The adverse remarks proved to be in handwriting of A-2 as given RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 118 of 148 in the adverse evaluation proforma D-13 Ex. PW3/AG are being reproduced herein below:-
"No parent hosp. Affiliated 50 50 500 50 Principal -01 Vice-01 Tutors 02+09=11 No separate faculty for GNM Common faculty for both ANM + GNM Hostel + school building same Only 11 teachers and 153 GNM + 20 ANM =173 Inadequate faculty Teacher Student Ratio 1:10 with parent hosp two progs E.S. not permitted already E.S. given 20 to 50 2003 Suggested to have parent hosp."
166. The remarks given by A-1 and A-2 in the favorable evaluation proforma Ex.PW3/AC (on page 411 of file D-6) are also being reproduced herein below:-
"E.S. permitted 60"
167. The comments given by the panel inspectors on reverse side of last page of their report Ex.PW3/AB, i.e. reverse side of page no. 397 of file D-6, were to the following effect:-
"Strong points: 1. Has own school building as well as hostel spacious & well ventilated.
2. Clinical are i.e. urban or rural are well developed as per norms
3. All the labs are well equipped and library with sufficient no. of books.
4. Well established mess as well as canteen facilities are available within the school.
Weak points: 1. Faculty is common for both i.e. GNM & ANM.
Summary : 1. The hostel & school building for both courses i.e GNM & ANM is same.
2. Faculty is common for both i.e GNM & ANM."
168. It emerges out from above that the main or paramount objections taken or adverse remarks given by deceased A-2 in the above adverse evaluation proforma Ex.PW3/AG (D-13) were to the effect that no RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 119 of 148 parent hospital of the institute was there, strength of teaching faculty was also not as per norms and building for ANM & GNM courses and teaching faulty for both the said courses were same. However, Ld. Defence Counsel has been able to demonstrate during the course of trial and arguments that so far as the objections raised or adverse remarks given regarding parent or affiliated hospital in the above adverse evaluation proforma are concerned, the same are not having any ground or basis and the institute fulfilled these norms. It is pointed out that in the above faxed letter Ex.PW3/A-7D-2 (on page no. 216 of file D-6), it has been specifically claimed that affiliation with three hospitals namely Guru Gobind Singh Medical College & Hospital, Civil Hospital, Faridkot and Civil Hospital, Kotkapura has already been obtained by the institute. Even in the inspection report Ex.PW3/AB (on pages 397 to 410 of file D-6) prepared by two panel inspectors PW6 Ms. Pushpa Mehta and PW14 Ms. Meenakshi Soni, the names of four different parent or affiliated hospitals of this institute with their bed strengths are found stated (on reverse side of page 402 of file D-6) namely Baba Dayal Singh Civil Hospital (Govt.), Civil Hospital, Faridkot, Baba Farid Medical College and Rajan Hospital. Even during cross examination of the relevant witnesses, some depositions to this effect have come on record. Hence, the above objection regarding non affiliation or parent hospital is found to have been raised in the adverse evaluation proforma Ex.PW3/AG (D-13) by the deceased A-2 without any basis or ground.
169. However, the two major deficiencies resulting in violation of the prescribed norms of INC in respect of this institute are that the institute was having common building and teaching faculty for ANM & GNM courses and teacher student ratio of the institute was also not as per the norms as it was less than the prescribed ratio of 1:10. It has been RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 120 of 148 argued on behalf of the accused/institute that these deficiencies or violation were not actual and the same were only the result of some mistake on the part of inspectors as well as A-2 (since deceased) because the actual student strength of the institute was 130 only, i.e. 20 students for ANM course and 110 for GNM course. However, it is observed that there is no ground or material to substantiate this argument or submission as though PW6 was suggested so during her cross examination, but this suggestion was specifically denied by her as wrong. She was also suggested specifically that the existing strength of students for GNM course as 153 on reverse side of page 410 of the above report was wrongly written as there could not have been 60 students in first year for GNM course, 59 students in second year of the said course and 34 students in third year of the said course, thus making their total strength to 153, but even this suggestion was denied by the witness and she specifically stated that the above figures about number of students were mentioned in the report on the basis of information supplied by the institute at the time of inspection. Again, these depositions of PW6 rather show that the institute had gone to admit 60 students during the said academic year under inspection and even during the previous academic year, despite the fact that it was permitted by INC to admit only 50 students by that time. Had the above figures of 60 and 59 students for first and second year respectively of the said course been wrong, nothing prevented the said accused/ institute to bring on record the relevant documents or registers pertaining to the admission of students during these years and putting these documents to contradict the witnesses during their cross examination on this aspect or bringing the same on record for perusal of the court. Thus, the oral and documentary evidence led on record clearly establishes that not only the building and teaching faculty for both the above courses being run by this institute was same, but it also RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 121 of 148 establishes that the required teacher-student ratio was not there and thus, the norms and guidelines laid down by the INC to this effect stood violated or were not met by the institute.
170. Though Ld. Counsel of this accused/institute has also argued that the norms for GNM course were relaxed by the INC for the academic year 2005-06 and the institutes were permitted to use the same building for both the courses i.e. ANM and GNM and even the common teaching faculty was permitted for these courses and some reference has also been made in this regard to the depositions made by PW3 during the course of his cross examination, but in considered opinion of this court the documentary evidence with regard to contents of a document cannot be considered and accepted. Had there been any relaxation of norms to this effect by the INC or any statutory committee thereof, it should have been proved on record by way of documentary evidence. Though a copy of the minutes of meeting of the Executive Committee of Council allegedly held on 22.05.2007 has also been brought on record as Ex.PW17/D1, during the course of cross examination PW17 Ms. Manju Vatsa who was also a member of this Committee at the relevant time and a signatory to this document, and there is a mention in these minutes of meeting that norms of the Council to this effect were so relaxed in some previous meeting of the Committee, but here again the minutes of meeting in which these norms were actually relaxed so, prior to commission of the alleged offences, have not been brought on record and nothing also prevented the accused from summoning the said document or minutes of meeting from the office of INC for proving the above relaxation in norms and since it has not been done, the court can infer that no such relaxation in norms to this effect was given by the INC. Moreover, a bare perusal of the above minutes shows to this court that the above alleged RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 122 of 148 meeting dated 22.05.2007 of the Executive Committee was held to give cover and protection to the two senior officers of INC, after the registration of this case by CBI and hence, it can not be of any help to the case of accused as it could not have undone the effect or consequences of the alleged criminal acts of these two accused or of any other accused.
171. Hence, there is sufficient oral and documentary evidence led on record to conclude that the above enhancement of seats from 50 to 60 to this institute was also granted after replacing the above adverse evaluation proforma D-13 Ex. PW3/AG with the favourable evaluation proforma Ex. PW3/AC with some malafide intentions or designs and to help the above institute in getting the said enhancement.
COLLEGE OF NURSING, INDRAPRASTHA APOLLO HOSPITAL, NEW DELHI/A-8 JAIDEEP GUPTA
172. A-8 Jaideep Gupta was the then Chief Executive Officer of the Indraprastha Medical Corporation Ltd. (IMCL) at the relevant time, when this Corporation was allegedly granted undue favours by the INC by way of enhancement of seats for GNM course of its institute Apollo School of Nursing or upgradation thereof to the Apollo College of Nursing. The adverse evaluation proforma of this institute is D-15 or D- 15/1 Ex.PW3/BY and the favourable evaluation proforma of the institute is available on page 557 of its file D-5 which has been marked as Mark PW3/AV.
173. However, as already discussed, the above adverse proforma of this institute brought on record during the course of evidence as Ex.PW3/BY is only in the form of a photocopy and neither the original of this document has been brought or proved on record nor any RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 123 of 148 explanation has been furnished before this court regarding non production thereof. Hence, as the mandatory conditions required by Section 65 of the Evidence Act for leading secondary evidence with respect to this document were not fulfilled by the prosecution, the above document or photocopy of adverse proforma Ex.PW3/BY has already been held to be inadmissible in evidence. Since, the contents of this document can not be considered and read in evidence for any purposes, no question can also arise about considering the adverse remarks given at the questioned portion Q-27 of this document, which have been proved to be in handwriting of deceased A-2 as per the CFSL report Ex.PW22/B, in respect to the suitability of this institute for enhancement of seats or for upgradation to a college. Therefore, the replacement of this proforma by the other favourable proforma Ex.PW3/BM (on page 557 of file D-5) can not be held as illegal or to have been done or made with some malafide intentions or designs and against the norms and guidelines of INC on this issue.
174. Moreover, the case of this institute/accused can also be distinguished from the case of other institutes/accused on the basis of facts and evidence brought before this court. As per the oral and documentary evidence led on record, this institute was initially granted recognition for setting up of a school of nursing with an intake of 50 students for GNM course, on the basis of NOC issued by the Secretary (Health), Govt. of Delhi. A copy of the said NOC-cum-letter dated 27.03.2001 has been duly brought in evidence and proved on record as Ex.PW12/A8D1 (on page 34 of file D-5) and a copy of this NOC was sent by the IMCL to the Secretary, INC vide letter dated 19.05.2001 (on page 32 of file D-5). Though, this letter dated 19.05.2001 has not been proved during evidence, but since it has been filed by the prosecution itself the same can certainly be seen and considered against them.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 124 of 148Vide letter dated 26.05.2001 Ex.PW3/AW (on page 33 of file D-5), the INC was also intimated about deposit of the inspection fee and notings Ex.PW3/AZ on note page 1 of the above file show that the inspection of institute was scheduled to be conducted on 25.05.2001.
175. The inspection of the said institute was accordingly conducted on 25.05.2001 and inspection report Ex.PW3/AX (on pages 24 to 29 of file D-5) was received in the office of INC and vide evaluation proforma Ex.PW3/AY (on page 30 of file D-5), the institute was recommended to be feasible for starting the above course with an intake of 50 students per year. The above recommendation of the Evaluation Committee was placed before the Executive Committee in its meeting held on 12.06.2001 and the same was accepted. This feasibility was also conveyed to the IMCL vide letter dated 03.07.2001 Ex.PW3/BA of the INC (on page 23 of file D-5), which was originally addressed to the Secretary (Health), Govt. of Delhi and the Registrar, Punjab Nurses Registration Council, Punjab and a copy thereof was forwarded to the IMCL. Notings Ex.PW3/A8D1, Ex.PW3/A8D3 and Ex.PW3/A8D4 on note pages 2 and 3 of the said file are also to the same effect.
176. Further, it also emerges out from the evidence led on record that on the basis of inspection of this institute conducted on 12-13.04.2004, the institute was again recommended or approved for continuing the said course with an intake of 50 students only for the academic year 2003-04. The inspection report dated 12-13.04.2004 to this effect has been proved on record as Ex.PW3/BB (on pages 104 to 117 of file D-5) and the evaluation proforma prepared on its basis by the then Secretary Mrs. Chug and A-1 is Ex.PW3/BD (on page 120 of file D-5). Vide letter dated 19.05.2004 Ex.PW3/BC (on page 122 of file D-5), the above approval or suitability of the institute for an intake of 50 students RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 125 of 148 for the said academic year was also conveyed to IMCL by the INC.
177. It further emerges out from the evidence led on record that vide letter dated 01.03.2005 Ex.PW3/BE (on page 128 of file D-5), the institute had applied for enhancement of seats for the said course from 50 to 60 and inspection fee for the same was also deposited. Noting Ex.PW3/A8D6 on note page 8 of file D-5 is also to this effect. Inspection of the institute for this purpose was conducted on 25.04.2005 and the inspection report Ex.PW3/BF (on pages 180 to 194 of file D-5) was submitted by panel inspectors in the office of INC on 26.04.2005 and as per the evaluation proforma Ex.PW3/BG (on page 196 of file D-5) prepared by A-1 and Mrs. Chug, the enhancement of seats was not agreed or granted to the institute. This decision of Executive Committee of INC was conveyed to the institute vide letter dated 09.06.2005 Ex.PW3/BH (on pages 200 and 201 of file D-5) and a suitability certificate Ex. PW3/BI (on page 199 of file D-5) of even date for 50 seats only was again sent to the institute with the said letter.
178. It is also gathered from the evidence led on record that another letter dated 01.08.2005 Ex.PW3/BJ (on page 225 of file D-5) was then received from the institute on 06.08.2005 in the office of INC for enhancement of seats from 50 to 60 and during the pendency of this letter, one other letter dated 30.01.2006 Ex.PW3/BK (on pages 249 to 251 of file D-5) was also sent by the institute to INC seeking its upgradation from school to a college with an intake of 100 students per year and fee for inspection of the institute for this purpose was also claimed to have been deposited. The inspection of institute was conducted this time on 27.04.2006 and the report Ex.PW3/BL (on pages 541 to 554 of file D-5) was submitted by the panel inspectors PW8 Ms. Jyoti Sarin and Ms. Renuka Das (not examined as a witness) RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 126 of 148 in the office of INC on 15.05.2006 and as per the evaluation proforma, i.e. favourable evaluation proforma, Ex.PW3/BM (on page 557 of file D-
5) prepared by A-1 and the deceased A-2, the institute was recommended upgradation with 60 seats. After its approval by the Executive Committee, the above decision was conveyed to the institute by the INC vide letter dated 25.05.2006 Ex.PW3/BP (on page 559 of file D-5) intimating that the institute was permitted/suitable for B.Sc. (N) programme with an intake of 60 students. The letter dated 10.07.2006 Ex.PW3/BN (on pages 561 to 562 of file D-5) was also sent to the Secretary (Health), Government of Delhi & other concerned to this effect, along with a suitability certificate of even date Ex.PW3/BO (on page 560 of file D-5), and a copy thereof was again forwarded to the institute.
179. Further, it has also come on record during the evidence that vide letter dated 09.06.2006 Ex.PW3/BQ (on page 566 of file D-5, wrongly typed as 556 in statement of PW3) sent by the institute to INC, the validity proof for GNM course till the year 2009 was demanded for benefit of railway concession for their students of the said course and this letter was replied vide letter dated 08.08.2006 Ex.PW3/BR (on page 568 of file D-5) of the INC clarifying that the recognition or validity of the institute for the said course for 50 seats was only for the batch of academic year 2005-06. Another letter dated 08.05.2006 Ex.PW3/BT (on page 571 of file D-5) sent by A-8 in his capacity of Chief Executive Officer of IMCL has also come on record through the testimony of above witness intimating the INC that with regard to their pending request for upgradation, they had identified two M.Sc. (N) teaching faculty members for the B.Sc. (N) programme intended to be run by them for the academic year 2006-07. However, vide letter dated 30.08.2006 Ex.PW3/BU (on page 572 of file D-5) of A-8, the INC was RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 127 of 148 intimated that due to some unavoidable circumstances, the institute was not able to start the B. Sc. (N) programme, as planned earlier, and will continue with the GNM course only during the said academic year. Further, one other letter dated 04.10.2006 Ex.PW3/BW (on page 574 of file D-5, along with its draft of even date Ex.PW3/BV (on page 573 of file D-5) has also been brought on record during the evidence by prosecution itself showing that the INC had intimated to the said institute that during the academic year 2006-07, the institute was permitted to admit only 50 students for the GNM course as a one time measure and the B.Sc. (N) course should start in the academic year 2007-08 with an intake of 60 students and the necessary facilities regarding teaching and physical can be made available by them.
180. It thus emerges out from the above that after this institute was permitted to start GNC course in the year 2001 vide letter dated 03.07.2001 Ex.PW3/BA (on page 23 of file D-5) with an intake of 50 students per year, the enhancement of seats for the above said course was never permitted to the said institute from 50 to 60. It is so because not only vide letter dated 19.05.2004 Ex.PW3/BC (on page 122 of file D-5), after the inspection report dated 12-13.04.2004 Ex.PW3/BB (on pages 104 to 117 of file D-5) was submitted in the office of INC, the institute was re-informed about its suitability for an intake of 50 students only for the academic year 2003-04, but even thereafter the request for enhancement of seats of the institute as contained in their letter dated 01.03.2005 Ex.PW3/BE (on page 128 of file D-5) was not agreed by the INC and this decision was conveyed to the institute through the letter dated 09.06.2005 Ex.PW3/BH (on page 200 to 201 of file D-5) of the INC and a suitability certificate of even date Ex.PW3/BI (on page 199 of file D-5) for 50 seats only was sent to the institute with the said letter.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 128 of 148181. Again, even the subsequent request for enhancement made by the institute through their letter dated 01.08.2005 Ex.PW3/BJ (on page 225 of file D-5) was not accepted because the evidence led on record shows that instead of granting enhancement of seats for the GNM course from 50 to 60, as sought through the above letter, the institute was allowed upgradation from a school to college as requested vide the other letter dated 30.01.2006 Ex.PW3/BK (on pages 249 to 251 of file D-5), through the letter dated 25.05.2006 Ex.PW3/BP (on page 559 of file D-5) with an intake of 60 students. Further, even when the institute had conveyed to INC through their letter dated 30.08.2006 Ex.PW3/BU (on page 572 of file D-5) that they were not able to start the B.Sc. (N) course during the academic year 2006-07 and had sought permission to continue with the GNM course, the INC through their letter dated 04.10.2006 Ex.PW3/BW (on page 574 of file D-5) had intimated to the institute that they were permitted to continue with the GNM course during the said academic year with an intake of 50 seats only. Thus, no favour at all appears to have been done to this institute by any official or officer of INC in granting the recognition or approval sought for by the institute. The evidence duly reflects that even the permission granted to the institute for starting the B.Sc. (N) course was subject to grant of approvals by the State Council and University which subsequently should granted to the institute, though the institute didn't start the upgraded course of B.Sc. (N) during the said academic year.
182. Again, the oral as well as documentary evidence led on record also shows that this institute was equipped with all the facilities required for upgradation from a school to a college, except some alleged deficiency in the teaching faculty, and this fact stands specifically admitted by one of the panel inspectors namely Ms. Jyoti RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 129 of 148 Sarin examined as PW8 in this case and even during the depositions made by PW3. The remarks or comments given by the panel inspectors in their above report dated 27.04.2006 Ex.PW3/BL (on pages 541 to 554 of file D-5) against strong as well as weak points of the institute, on reverse side of page 541, are also being reproduced herein below :
"Strong points : To up-grade G.N.M
to College of Nsg. all the
facilities as per I.NC
is available.
Weak Points : Faculty as per the requirement
is not available as per I.NC.
norms.
Executive Summary: Fulfilling all facilities to upgrade
G.N.M. to B.Sc (N) programme."
183. Thus, it is clear that the panel inspectors had recommended for upgradation of the institute from a school to a college as it was having all the facilities as per the INC norms for upgradation. Though, it has been deposed by PW8 during her cross examination that the above remarks against 'weak points' were made by her on the basis of strength of the teaching faculty stated in the main report, but it has been submitted on behalf of this institute/accused that the above deficiency in teaching faculty should met or completed with appointment of two M.Sc. (N) faculty members by the institute as intimated to the INC through the letter dated 08.05.2006 Ex.PW3/BT (on page 571 of file D-5) of A-8.
184. On this aspect, it has been argued by Ld. Sr. PP for CBI that the above letter is a strong circumstance to show the existence of a criminal conspiracy between A-8 and the official/officers of INC as this letter was sent after the above deficiency in teaching faculty was RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 130 of 148 observed by the panel inspectors in their above said inspection report dated 27.04.2006. However, the evidence led on record does not suggest so as the above report was formally received through Dak in the office of INC only on 15.05.2006 i.e. after the above letter sent by A-8 to INC. Though even prior to that, in one noting dated 09.05.2006 Ex.PW3/A8D16 made by the dealing assistant Mrs. Bharti (on note page 17 of file D-5), she is found to have sought approvals for asking the institute to submit the requisite documents, but PW3 to this discrepancy had replied that since Mrs. Bharti was dealing with the planned inspections, the above deficiency could have come to her knowledge even prior to official submission of the inspection report. But still, there is nothing on record to suggest that the above report or deficiency came to knowledge of A-8 prior to sending of the above letter Ex.PW3/BT. If the explanation of PW3 regarding knowledge of Mrs. Bharti about the contents of report is accepted, then Mrs. Bharti should have been made the main culprit in this case as she might have been responsible for leaking the above deficiency or contents of the inspection report to A-8 or the institute and in this eventuality, even the panel inspectors should have been made accused. However, it has not been done and the evidence led on record also suggests that there is no such leakage or pilferage of information about the above deficiency or report from the side of inspectors or any official of INC to A-8. Further, even PW8 during her cross examination has specifically stated that the contents of above report or the deficiencies observed during the inspection were not disclosed to the institute and the evidence also nowhere suggests that the same were so disclosed to A-8 by any of the accused from INC. Moreover, the above letter Ex.PW3/BT of A-8 was sent to INC even prior to the above noting made by Mrs. Bharti on 09.05.2006 as this letter is dated 08.05.2006 and hence, no inference therefrom can be drawn that it was sent after the above deficiency or RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 131 of 148 discrepancy was brought to the notice of A-8 by any accused/official of INC, in furtherance of any such criminal conspiracy as has been alleged by the prosecution.
185. Again, as already discussed, though the guidelines and norms for the GNM course have been brought on record by the prosecution during the evidence as Ex.PW7/A (D-24) in the form of a booklet but the norms and guidelines led down by the INC for starting the B.Sc. (N) course or for upgradation of an institute from a school to a college have not been brought on record and in the absence of that, even it could not have been established as to how and to what extent the teaching faculty of this institute lacked in for upgradation from a school to a college or how the guidelines or norms in respect of upgradation stood violated and to what extent.
186. Apart from all the above, Ld. Defence Counsel has also demonstrated from the evidence led on record that even if some alleged offences might have been committed in the present case by some official or officer of this institute, A-8 Jaideep Gupta was not the appropriate person who could have been prosecuted as an accused in this case as the IMCL was/is a statutory body incorporated under the Companies Act and hence, a legal person. Though, even a corporation or a legal person can act through a person running its affairs and such person can be made accused for commission of such offences, but it is very much required that the individual person sought to be made an accused should be the person who was actually running the affairs of the said institute or was responsible for taking decisions on behalf of the institute. Through the testimonies of four defence witnesses examined in evidence on behalf of this institute/accused, it has been established that the appointment of A-8 in IMCL was only in the RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 132 of 148 capacity of a Chief Operating Officer w.e.f. 16.08.2004 vide letter of appointment Ex.DW1/A8/B (colly) and he was appointed as Chief Executive Officer of the Corporation on promotion only w.e.f. 06.03.2006, when the post of Managing Director of the Corporation was lying vacant. As already discussed, the post of MD of IMCL remained vacant for a period of around 7 months after resignation of Ms. Anne Marie Moncure on 25.04.2006 and appointment of Mr. Richard Leroy Larison as the new MD w.e.f. 01.12.2006. Hence, simply because A-8 happened to sign some correspondence during the above intervening period to pursue the pending requests of the institute for upgradation or enhancement of seats may not be sufficient to hold him liable for commission of any of the alleged offences or can turn him into a conspirator for commission of the said offences.
187. Further, Ld. Counsel representing this institute/accused has also argued that IMCL owning the Apollo group of hospitals was a joint venture of public and private sectors and the Apollo group was having only 25% share holding in the above corporation and 26% share holding or equity was of the government and 49% of the general public. It has also been demonstrated during the course of trial that all major decisions of the corporation were taken by its board of directors and as per constitution of the then board of directors, as reflected in document on page 272 of file D-5, which again is a document filed by prosecution itself, the then Chief Secretary of Govt. of Delhi was the Chairman of the Board and Principal Secretaries of Finance department and Health & Family Welfare department as well as the Lt. Governor of the Govt. of Delhi were amongst the directors of the said corporation at the relevant time and even MD of the corporation was only one of the directors. Hence, any decision with regard to the upgradation of institute from a school to a college or enhancement of seats could not RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 133 of 148 have been taken by A-8 and infact, the above decision for upgradation of the institute was actually taken by the board of directors and a copy of the resolution containing extracts of the meeting of board of directors of corporation held on 25.01.2006 Ex.PW3/A8D16A (on page 287 of file D-5) was also attached with the request letter dated 14.04.2006 Ex.PW3/A8D16 (on page 289 of file D-5) sent by the then MD of the corporation to INC for upgradation of the institute from school to a college.
188. Hence, in view of the above discussion, it is held that the evidence led on record duly establishes that neither this institute was actually granted any favours by the INC or any officer/official thereof in the matter of upgradation or enhancement of seats nor this institute/ accused was or could have been involved in any such criminal conspiracy for commission of the alleged offences or was a party to the same.
189. Thus, it is clear from the above discussion that only the institutes namely Priyadarshini School of Nursing, Bengaluru represented by A-4 Jagdeesh, National School of Nursing, Bengaluru represented by A-5 K.T. Govind Gowda and Baba Farid Medical Institute for Nursing, Faridkot, Punjab represented by A-7 Dr. Manjit Singh Dhillon are found to have been given undue favours by the officers/officials of INC in the matter of grant of recognitions or approvals sought for by them. No such favours or concessions are, however, found to have been given or granted to the three other institutes i.e. Shahid Udham Singh School of Nursing, Ratia, Haryana represented by A-3 Dr. Balbir Singh Nadha (since deceased), Asram College of Nursing, Eluru Distt. Warangal, Andhra Pradesh represented by A-6 Dr. Gokaraju Ganga Raju and IMCL, New Delhi represented by A-8 Jaideep Gupta for the reasons as RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 134 of 148 discussed above and hence, the accused representing these institutes can not be said or held to be part of any conspiracy to grant such favours or approvals.
190. As also discussed earlier, apart from the above accused representing these three institutes which were granted favours in recognitions or approvals, i.e. A-4, A-5 and A-7, only two officers of INC were chargesheeted and prosecuted in this case. Hence, the criminal conspiracy, as alleged, between the accused representing these institutes on one side had to be certainly with these two officers of INC or any one of them on the other side. As stated above, A-1 T. Dileep Kumar has already been held to be not a part of any such criminal conspiracy for the reasons discussed in detail, as emanating from the evidence led on record. Therefore, the criminal conspiracy apparently was between the accused representing these three institutes found beneficiary of the undue favours and concessions extended and the deceased A-2 K. D. Varyani. Though, A-2 stood subsequently expired even before charges for the alleged offences could be framed against her, but in any case this cannot be detrimental for the case of prosecution qua these three accused as the object and purpose of above criminal conspiracy hatched between her and the other accused representing these three beneficiary institutes was already achieved or accomplished with the grant of recognitions or approvals sought for by these institutes. As per the legal position discussed in earlier part of this judgment, a criminal conspiracy can come into existence between two or more persons if the object of such a conspiracy is to commit an illegal act or offence or to do an act which is not per se illegal by way of illegal means. Hence, the subsequent death of A-2 or the absolvement of A-1 by this court from the charges of criminal conspiracy, or of the substantive offences, in no way comes in the way of holding the RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 135 of 148 accused representing these three institutes i.e. A-4, A-5 and A-7, guilty for the charged offences. Further, as far as these three accused are concerned, the institutes represented by them are private institutes and this court has no doubt that in the capacities in which they were representing these institutes, they were not only authorized and responsible for running the affairs of the said institutes, but were also entitled to take decisions and to act on behalf of these institutes.
191. As discussed earlier, direct evidence of such a criminal conspiracy is seldom available and facts and circumstances of each case are required to be considered and appreciated for finding out the existence of such a conspiracy. It has been vehemently argued by Ld. Counsel representing these accused persons that even if the evidence led on record by prosecution is taken as true, the same is not sufficient to prove or draw an inference of a conspiracy between these accused persons and any officer or official of INC as, admittedly, none of these accused had ever met A-1 or A-2 or any other official of INC nor there had been any exchange of conversations between them. It has also been argued that even there is no evidence on record to show that any monetary benefit or other consideration was paid by any of these accused or institutes to any officer or official of INC or to A-1 or A-2 to seek the above recognitions or approvals and hence, the evidence led on record cannot be considered as sufficient to show any meeting of minds between any of these accused and the officials of INC for grant of any undue favours to these institutes in the matters of grant of recognitions or approvals.
192. In this context, it is well settled that such an agreement to do an illegal act or a legal act by illegal means or such a meeting of minds between the two persons constituting the conspiracy has to be inferred RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 136 of 148 from the facts and circumstances of that case only. For the offence of conspiracy, it is not necessary for the prosecution to prove that conspirators expressly agreed to do an illegal act and the agreement can be proved by necessary implication also. The circumstances and evidence brought on record during the course of trial of this case clearly establish that the above recognitions or approvals to these three institutes represented by A-4, A-5 and A-7 were granted by the Executive Committee of INC on the basis of recommendations made by the Evaluation Committee in the above favourable proformas of these institutes and these recommendations were made while going against the guidelines and norms laid down by INC and it was A-2 only who was responsible for the grant of above said favours. It is so because the evidence led on record clearly shows that it was A-2 only who used to give or fill up the detailed remarks in the above evaluation proformas and the other member or members of the Evaluation Committee only used to agree or concur with the conclusions arrived at or drawn in the remarks or observations made by A-2 regarding grant or refusal of such recognitions or approvals. Since, it was A-2 who is found to have given the adverse remarks about these three institutes represented by the above three accused in the adverse evaluation proformas pertaining to these institutes and then the fresh evaluation proformas favouring these institutes were also filled or prepared by her and placed in the files of these institutes, after having the concurrence of A-1, it can be legitimately inferred therefrom that it was done only to give undue favours to these institutes, while acting in furtherance of the common intent to achieve or accomplish the object of criminal conspiracy to grant such approvals or recognitions. Thus, even if no financial or pecuniary benefits are proved to have been derived by A-2 by replacing the above evaluation proformas containing adverse remarks with favourable proformas of these institutes, but since the RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 137 of 148 above replacement was done and the recognitions or approvals were recommended to be granted while going against the norms and guidelines laid down by INC, it is certain that A-2 had abused her office of the member of Evaluation Committee and had thus recommended the said institutes for recognitions or approvals, for concurrence of the then President, i.e. A-1 who was the other member of the Evaluation Committee at the relevant time, as well as for consideration of the members of the Executive Committee of INC and the said recommendations were even accepted and acted upon by the Executive Committee.
193. As already discussed, a separate charge was framed against each of the above three accused namely A-4 Jagdeesh, A-5 K.T. Govind Gowda and A-7 Manjit Singh Dhillon, jointly with A-2 & A-1 for the offence of criminal conspiracy punishable U/S 120 B IPC r/w Sections 13 (2) & 13 (1) (d) of the PC Act and also r/w Sections 420/468/471 IPC. Section 13 (2) of the PC Act, as it existed at the relevant time, infact laid down the punishment for commission of the offence of criminal misconduct by a public servant, as defined by clauses (a), (b), (c) and (d) of sub-section (1) of Section 13 of the said Act. Section 13 (1) (d), as it existed at the relevant time, provided as under:-
"13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,-
(a).............
(b)...........
(c) ...............
(d) if he, -
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 138 of 148 interest; or
(e)....
Explanation............."
194. It is clear from the above that the alleged acts of A-2 in recommending undue favours to the above three institutes/accused in matter of grant recognitions or approvals by way of replacing the adverse evaluation proformas with the favourable evaluation proformas of these institutes fall not only in sub-clause (ii) but also in sub-clause
(iii) of clause (d) of sub-section (1) of Section 13 of the above Act as the said acts of A-2 not only amounted to abuse of her position or office as a public servant, being member of the Evaluation Committee of INC, and resulted in causing undue pecuniary advantages or benefits to these accused/institutes, but these pecuniary advantages or benefits were also caused to the said accused/ institutes without any public interest.
195. The term 'abuse of position' came to be discussed and appreciated in the celebrated case of M. Narayanan Nambiar Vs State of Kerala 1963(2) Cri.L.J.186 decided by the Hon'ble Supreme Court and while dealing with this term, as it was contained in the then Section 5 of the PC Act, the relevant observations made by their Lordships are being reproduced herein below :-
"6. As the first contention turns upon the provisions of S.5(1), it will be convenient to read the same:
5.(1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in S.161 of the Indian Penal Code, or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 139 of 148 valuable things without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do, or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage.
We are concerned in this case with S.5(1) (d) of the Act. Under that clause if a public servant by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person valuable thing or pecuniary advantage, he will be guilty of criminal misconduct, punishable under S.5(2) of the Act with imprisonment for a term which shall not be less than one year and which may extend to 7 years, and shall also be liable to fine. The learned counsel contends that clause (d) being a penal provision, shall be strictly construed; and that if so construed, it would only take in cases of direct benefit obtained by a public servant for himself or for any other person from a third party in the manner described therein and does not cover a case of a wrongful loss caused to the Government by abuse of his power.
10. ................ . First taking the phraseology used in the clause, the case of a public servant causing wrongful loss to the Government by benefiting a third party squarely falls within it. Let us look at the clause "by otherwise abusing the position of a public servant," for the argument mainly turns upon the said clause. The phraseology is very comprehensive. It covers acts done "otherwise" than by corrupt or illegal means by an officer abusing his position. The gist of the offence under this clause is, that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. "Abuse" means mis-use i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word 'otherwise' has wide connotation and if no limitation is placed on it, the words 'corrupt', 'illegal', and 'otherwise' mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 140 of 148 colour from the preceding words along with which it appears in the clause, that is to say, something savouring of dishonest act on his part. The contention of the learned counsel that if the clause is widely construed even a recommendation made by a public servant for securing a job for another may come within the clause and that could not have been the intention of the Legislature. But in our view such innocuous acts will not be covered by the said clause. The juxtaposition of the word 'otherwise' with the words 'corrupt or illegal means', and the dishonesty implicit in the word "abuse" indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. Whether he abused his position or not depends upon the facts of each case; nor can the word 'obtains' be sought in aid to limit the express words of the section. 'Obtain' means acquire or get. If a corrupt officer by the said means obtains a valuable thing or a pecuniary advantage, he can certainly be said to obtain the said thing or a pecuniary advantage; but it is said that in clauses (a) and (c) the same word is used and in the context of those clauses it can only mean getting from a third party other than the Government and therefore the same meaning must be given to the said word in clause (d). 'Obtains' in clauses (a) and (b) in the context of those provisions may mean taking a bribe from a third party, but there is no reason why the same meaning shall be given to that word used in a different context when that word is comprehensive enough to fit in the scheme of that provision. Nor can we agree that as dishonest misappropriation has been provided for in clause (c), the other cases of wrongful loss caused to the Government by the deceit practised by a public officer should fall outside the section. There is no reason why when a comprehensive Statute was passed to prevent corruption this particular category of corruption should have been excluded therefrom because the consequences of such acts are equally harmful to the public as acts of bribery. 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."
196. The term 'without any public interest' as contained in sub-clause
(iii) of clause (d) of Section 13 (1) of the PC Act was well discussed and appreciated by the Hon'ble Delhi High Court in the well known case titled Runu Ghosh Vs. CBI Crl.A. 482/2002, P. Rama Rao Vs. CBI Crl.A. 509/2002 and Sukh Ram Vs CBI Crl.A. 536/2002 decided on 21.12.2011 and the relevant observations made by their Lordships in RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 141 of 148 the said case are as under:-
"66. This question lies at the core of the reference to this Division Bench. The material portion of the reference, while adverting to Sections 13(1)(d) and then dealing with the phraseology of Section 13(1)(d)(iii) and other preceding sub-clauses, reads thus:
Whether the absence of adverbs like wilfully, fraudulently, dishonestly, corrupt or illegal means to qualify the verb obtains in this clause would mean that a public servant commits criminal misconduct if he while holding such office obtains for any person (and not for himself) any pecuniary advantage which is without any public interest? The statute appears to offer no guidance as to what can be said to be a decision or act that is without public interest. Though the reference order elaborately lists out the salient facts in the Appeals, notes rival contentions, and even notices relevant case law, it is necessary to recapitulate the pre-existing law, i.e. Section 5(1)(d) of the 1947 Act, and juxtapose it with the 1988 Act. The controlling clauses, in both provisions, are in pari materia (a public servant is said to commit the offence of criminal misconduct if he ...). Section 5(1)(d) reads as follows:
(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage...Section 13(1)(d)(i), (ii) and (iii), on the other hand, read thus:
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.... It is clear from the above comparison that in clause (i), the reference to "corrupt or illegal" means, (of a public servant obtaining -for himself, or someone else-
any valuable thing or pecuniary advantage) has been retained. However, the reference to doing of such an act "otherwise" (which was there in the previous law, i.e. Section 5(1)(d) has been omitted. The latter parts of Section 5(1)(d), i.e. the public servant obtaining for himself or for any one else any valuable thing or pecuniary advantage, by abusing his position as a public servant has been retained, in Section 13(1)(d)(ii).
A new offence (or sub-species, of the existing offence) has been carved out, in Section 13 (1)(d)(iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else (any person) RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 142 of 148 benefitting by getting a valuable thing or pecuniary advantage, without any public interest. There is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has to establish, in accordance with law, is that the public officer, obtained for someone else-not necessarily by abusing his office, or using corrupt or illegal means -pecuniary advantage or a valuable thing -without public interest.
79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility? It is not every act which results in loss of public interest, or that is contrary to public interest, that is a prosecutable offence. There can be no doubt that all acts prejudicial to public interest, can be the subject matter of judicial review. In those cases, courts consider whether the decision maker transgressed the zone of reasonableness, or breached the law, in his action. However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public interest, which were avoidable, but for the public servants overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutabe under Section 13(1)(d)(iii). In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. The provision aims at ensuring efficiency, and responsible behaviour, as much as it seeks to outlaw irresponsibility in public servants functioning which would otherwise go unpunished. The blameworthiness for a completely indefensible act of a public servant, is to be of such degree that it is something that no reasonable man would have done, if he were placed in that position, having regard to all the circumstances. It is not merely a case of making a wrong choice; the decision should be one such as no one would have taken.
81. As noticed previously, the silence in the statute, about the state of mind, rules out applicability of the mens rea or intent standard (i.e. The prosecution does not have to prove that the accused intended the consequence, which occurred or was likely to occur). Having regard to the existing law Section 13(1)(e) (which does not require proof of criminal intent) as well as the strict liability standards prevailing our system of law, therefore, a decision is said to be without public interest, (if the other requirements of the provision, i.e. Section 13(1)(d)(iii) are fulfilled) if that RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 143 of 148 action of the public servant is the consequence of his or her manifest failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted."
197. Thus, it is clear from the propositions of law laid down in the above cases that it is not at all necessary that some actual financial or pecuniary advantages or benefits should be obtained by the accused public servant from the alleged acts amounting to commission of above said offences and it is sufficient if such advantages or benefits are caused to any other person as a result of such acts of the public servant, which are done by way of or amount to abuse of his position or office as a public servant or are done without any public interest. Further, there is also no force in the argument advanced by Ld. Defence Counsel representing these accused/institutes benefited by the above acts of undue favours of A-2 that no known or established pecuniary advantages or benefits are shown to have been caused to these accused/institutes because there is no doubt in mind of this court that the above favours extended to them by way of grant of undue recognitions or approvals for starting the above course of GNM or for enhancement of seats of the said course were the acts which were designed to result in such financial benefits or advantages. No proof of any actual or financial loss to the INC or government is also legally required in such a case.
198. Therefore, in view of the above discussion, it is held that the evidence led on record by prosecution is sufficient to establish the guilt of A-4, A-5 and A-7 and for proving its charge framed against these accused for the offence of criminal conspiracy punishable U/S 120 B IPC r/w Sections 13 (2) & 13 (1) (d) of the PC Act.
CHARGE OF CRIMINAL CONSPIRACY FRAMED AGAINST THESE RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 144 of 148 ACCUSED PERSONS WITH REFERENCE TO SECTIONS 420/468/471 IPC.
199. As already stated, the charge of criminal conspiracy framed against these three accused/institutes found guilty in this case has not only been framed with reference to the provisions of Sections 13 (2) & 13 (1) (d) of the PC Act, but it has also been framed with reference to the provisions of Sections 420/468/471 IPC. It has been vehemently argued by Ld. Defence Counsel representing these accused that there is no evidence or material at all on record to hold these accused persons guilty for the above charge of criminal conspiracy punishable U/S 120B IPC with reference to these three sections of IPC because the evidence brought on record is not sufficient to constitute the offence of cheating and forgery and since the forgery itself was not committed by A-2 (since deceased) or any of these accused, there was no question of using of any forged document also by any of these accused persons.
200. As already discussed, A-2 Ms K.D. Varyani (since deceased) had first made some adverse remarks against the institutes represented by these three accused in the adverse evaluation proformas pertaining to these institutes and then had replaced the adverse evaluation proformas of these institutes with favourable evaluation proformas or evaluation proformas containing favourable remarks and these remarks were admittedly made by her in her own handwriting and under her own signatures. She did not make these remarks or put her signatures on these documents in the name of any other person nor it was her intention that these remarks or signatures be taken to have been made or put by some other person. Hence, the above acts of A-2 do not fall within the definition of term 'making of a false document' as contained in Section 464 IPC and therefore, it cannot amount to forgery as RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 145 of 148 defined by Section 463 IPC. Therefore, it can be held that Ld. Defence Counsel representing these accused is right in making a submission that the offence of forgery as made punishable by Section 468 IPC for the purposes of cheating and the consequent offence of use of a forged document as genuine as made punishable by Section 471 IPC have not been committed in the present case.
201. However, as far as the offence of cheating punishable U/S 420 IPC is concerned, this court is unable to accept the submission of Ld. Defence Counsel that the above acts of A-2 did not even amount to cheating within the meaning of Section 420 IPC. It is so because the evidence led on record clearly establishes that the above acts of A-2 in replacing the adverse evaluation proformas with favourable evaluation proformas were done with a fraudulent or dishonest intention to induce the members of Executive Committee of INC to grant the recommended approvals or recognitions to these institutes represented by the above accused, which the Executive Committee members would not have otherwise granted had these adverse evaluation proformas or adverse remarks given by A-2 been there before them and had these adverse proformas been not replaced with the other proformas containing remarks favouring the grant of such recognitions or approvals. Hence, the above acts of A-2 (since deceased) clearly amounted to cheating within the meaning of Section 415 IPC and since the above acts were committed for the sole purpose of inducing the members of Executive Committee to agree to or grant the above said recognitions or approvals, it can be said that the prosecution has also successfully brought home the guilt of A-4, A-5 and A-7 for the offence of criminal conspiracy punishable U/S 120 IPC with reference to the offence of cheating as made punishable by Section 420 IPC.
RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 146 of 148202. Though, it has also been argued by Ld. Defence Counsel that no member of the Executive Committee or even of the INC had complained about the above acts or alleged offences of A-2 or of the other accused persons and rather, the general body of INC in its subsequent meeting held on 22.05.2007 vide minutes Ex.PW17/D1 had defended the above acts of A-2 & A-1, but this in considered opinion of this court cannot absolve the deceased A-2 or the accused persons who have been held guilty in the present case because the Executive Committee of INC was a statutory body constituted under the provision of INC Act and INC itself was a statutory body or a legal person acting through different bodies or officials. The very purpose of establishment of INC was to maintain uniformity in the standards for training of nurses, midwives and heath visitors throughout the country and to prescribe or lay down uniform qualifications for such courses. Hence, any deviation from these norms or standards laid down by the INC as a result of any dishonest or fraudulent acts of any officer or official of INC would have adversely affected the public health and public confidence which was reposed in constitution of the INC and other statutory bodies working under it. Therefore, if any of the criminal acts of an outsider or a member of the INC itself affected or violated the standards laid down by the INC then it was bound to shatter the public confidence and thus, every public person connected with working of INC can be stated to have been affected or cheated by the above criminal acts or offences committed by the accused.
CONCLUSION OR FINDINGS
203. As a result of the above, A-4, A-5 and A-7 are held guilty and convicted for the offence punishable U/S 120 IPC r/w Sections 13 (2) & 13 (1) (d) of the PC Act and Section 420 IPC. However, they are not held guilty and accordingly acquitted for the offence punishable U/S RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 147 of 148 120B IPC r/w Sections 468/471 IPC. A-6 and A-8 representing the other two institutes charged with all the above offences are being held not guilty and acquitted of all the charges farmed against them. Similarly, A-1 is also held not guilty and acquitted of the charge framed against him for commission of the offence punishable U/S 120 IPC r/w Sections 13 (2) & 13 (1) (d) of the PC Act and 420/468/471 IPC as well as of the charges for the substantive offences punishable U/S 13(2) r/w Section 13(1) (d) of the PC Act and Sections 420/468/471 IPC.
Digitally signedMANOJ by MANOJ KUMAR KUMAR Date: NAGPAL NAGPAL 2022.01.12 Announced in open court (M. K. NAGPAL) 15:51:56 +0530 on 12.01.2022 Special Judge (PC Act), CBI-09 (MPs/MLAs Cases), RADC, New Delhi : 12.01.2022 RC No. DAI/2007/A0011/CBI/ACB/NEW DELHI Page 148 of 148