Madhya Pradesh High Court
Ashutosh Shrivastava vs State Of M.P. on 19 October, 2015
1 M.Cr.C.No.7285/2011
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
JUSTICE SUJOY PAUL
M.Cr.C. No.7285/2011
Ashutosh Shrivastava
Vs.
State of Madhya Pradesh & Ano.
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Shri V.K. Bhardwaj, Senior Advocate with Shri Anvesh Jain,
Advocate for the petitioner.
Shri Kamal Jain, Government Advocate for the respondent
No.1/State.
None for the respondent No.2, despite service.
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ORDER
(19/10/2015) The petitioner has invoked the jurisdiction of this Court under Section 482 of CrPC to challenge the FIR dated 03.12.2010 in Crime No.416/2010 registered at Police Station University, Gwalior.
2. Brief facts as stated by Shri V.K. Bhardwaj, learned senior counsel are that the petitioner-Institute is affiliated with Vinayak Mission University. The said institute is having recognition from Indira Gandhi National Open University (IGNOU) and University Grants Commission (UGC). The respondent No.2 lodged a FIR dated 03.12.2010 mainly on the strength of Section 7 (2) of Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 (for brevity, the 'Adhiniyam').
3. Shri Bhardwaj, learned senior counsel assisted by Shri Anvesh Jain submits that admittedly, Vinayak Mission University is situated outside the territory of State of Madhya Pradesh. Thus, the first question which goes to the root of the matter is that whether on the strength of 2 M.Cr.C.No.7285/2011 Section 7 (2) of Adhiniyam, any FIR can be lodged against the petitioner-Institute. Admittedly, the petitioner has not taken affiliation from any University, which is governed by Adhiniyam. He submits that this point is no more res integra. The constitutionality of Section 7 (2) of Adhiniyam was challenged before the Principal Seat in a batch of petitions including Writ Petition No.18151/2010 (Developers Institute of Computer Technology and others vs. State of Madhya Pradesh and others). These petitions were decided by a common order dated 13.09.2011. The Division bench framed the question
- "whether under Section 7 (2) of Adhiniyam, it is open to the State Government to prohibit running of the study centers ?" Shri Bharadwaj by taking this court to operative portion of the judgment contended that the Division Bench did not strike down Section 7 (2) of Adhiniyam but deemed it proper to read it out. He relied on para 11 & 12 of the judgment, which reads as under:-
"11. In view of this, we hold that Section 7 (2) of the 1973 Act only deals with Universities which has been created by or under the authority of any enactment of State Legislature of Madhya Pradesh and in order to save the vires of that Statute, the words "incorporated by any law in India" as used in Section 7 (2) of the 1973 Act must be read down so as to apply only to such Universities which are created by or under the authority of an enactment of Madhya Pradesh Legislature and not to Universities created by or under the authority of Legislatures of other States or a Central Enactment.
12. The orders of the State Government under challenge are accordingly set aside to the extent to which they are in conflict with the law laid down above. However, because we have not adjudicated upon whether the study-centres violate any other enactments or any authoritative rules or guidelines of the DEC or the UGC, and accordingly, if such study-centre or colleges (by whatever name called) are not permissible because of any such enactments or other binding guidelines or rules, it will be open to the concerned body (including the Government of Madhya Pradesh) to take such action as may be permissible under the law for said violation."
(Emphasis Supplied) 3 M.Cr.C.No.7285/2011 On the strength of this finding, it is urged that the whole FIR is founded upon Section 7 (2) of Adhiniyam and therefore, it needs to be set-aside. Shri Bhardwaj, learned senior counsel also relied on an order passed by this Bench in W.P.No.5548/2010 (Apark Institute of Employment Education & Research v. Vinayaka Mission Research Foundation & Ano.). It is argued that this Court issued certain directions to the University to issue mark-sheet to the successful students whose names figure in the lists. Thus, the genuineness and authority of the petitioner-Institute cannot be called in question. Shri Bhardwaj, learned senior counsel submits that a plain reading of FIR with the statements recorded under Section 161 CrPC makes it clear that even if the story of the prosecution is accepted on its entirety, no offence under relevant sections of IPC is made out against the petitioner. The FIR does not disclose any cognizable offence. The evidence collected and produced with the challan papers, by no stretch of imagination, can be called as "legal evidence". He further contended that no ingredients to attract Sections 420, 353, 183, 467 of IPC are available in the FIR which is supported by challan papers. He relied on various annexures filed along with the petition to contend that petitioner-institute has a valid authority under the Memorandum of Understanding (MOU) to impart education on certain subjects. Shri Bhardwaj, learned senior counsel submits that in view of judgments of Supreme Court in AIR 1963 SC 1572 (Dr. Vimla v The Delhi Administration); AIR 2010 SC 663 (P. Vijayan v. State of Kerala and another) and (2011) 10 SCC 705 (Shiji alias Pappu and others vs. Radhika and another), it is clear that no case is made out by the prosecution to proceed against the petitioner. If prosecution is permitted to proceed, it will be abuse of the process of Court. He relied on the judgment dated 4 M.Cr.C.No.7285/2011 20.01.2015, passed by 10th Additional Sessions Judge, Gwalior in Criminal Revision No.433/2014 (Deepesh Shrivastava v. M.P. State). It is urged that the said order squarely covers the present case. The only difference in the said case with the present case is that the petitioners are different. The Institutes which have recognition/affiliation with the same Vinayak Mission University are different in both the cases. He relied on certain paragraphs of this judgment. Shri Bharadwaj also placed reliance on the admission form (Annexure A/4).
4. Shri Kamal Jain, learned Government Advocate submits that at this stage, no interference is warranted by this Court. He read out the whole FIR and argued that it discloses cognizable offence. By taking this court to the challan papers, statement of witnesses and other documents, he urged that there are sufficient evidence on which prosecution can be permitted to proceed. It cannot be said that it is like a house of cards. The prosecution has every right to lead evidence to establish its case. At this stage, no interference is required. This Court is not obliged to examine the adequacy of the evidence at this stage. He relied on the notice issued by Vinayak Mission University along with the plaint of civil suit filed by Vinayak Mission University. On the strength of said documents, it is contended that even Vinayak Mission University with whom affiliation is claimed in the notice and plaint has stated that its period has expired. On the strength of this notice and civil suit, it is stated that it is for the court below to adjudicate whether petitioner is guilty of any fraudulent activity and whether relevant sections of IPC are attracted.
5. In rejoinder submission, Shri V.K. Bhardwaj, learned senior counsel relied on Annexure A-7 (Page 50) to 5 M.Cr.C.No.7285/2011 contend that Vinayak Mission University has renewed the petitioner's center for two years from 14.03.2009 to 13.03.2011. The civil suit was filed in the year 2010. Hence, in view of renewal, the civil suit has lost its complete shine and it cannot be a legal material for the purpose of maintaining the FIR.
6. No other point is pressed by the parties.
7. I have heard learned counsel for the parties and perused the record.
8. It is seen that Division Bench in Writ Petition No. 18151/2010 (supra) and other connected matters held that section 7(2) of the Adhiniyam shall be applicable to such Universities which are created by or under the authority of an enactment of Madhya Pradesh Legislature and not the Universities created by or under the authority of Legislatures of other States or Central enactment. Admittedly, in the present case, the petitioner claims some arrangement with Vinayak Mission University, constituted at Salem (Tamil Nadu). Thus, Section 7(2) of the Adhiniyam cannot be invoked against the petitioner. To this extent, the petitioner deserves to succeed. The underlined portion of the order passed by Division Bench in Developers Institute of Computer Technology (supra) makes it clear that this Court has not adjudicated upon the issue whether the study centrea violate any other enactments or authoritative rules or guidelines of UGC etc. Thus, this Court has left this question open whether such study centres or colleges (by whatever name called) can run such institution and Government was given liberty to take action in accordance with law.
9. It is necessary to examine the FIR carefully. In the FIR, it is mentioned that the petitioner is running an institution at City Centre, Gwalior. It is providing admission 6 M.Cr.C.No.7285/2011 to students and running classes of MBA, BSC, BA, BCA, BCOM, MA, PGDCA, MSW, B.Lib. etc. The petitioner is extracting fees illegally and taking undue benefits. It is specifically mentioned that the petitioner is running institution unauthorisedly and illegally on the basis of MOU of Information Centre. It is further alleged that at the time of inspection by Govt. Authorities, the persons present at the institution created hindrance in the inspection. It is also mentioned that the petitioner institution is unauthorisedly giving marksheets and certificates from the said institution.
10. In the FIR, offence under Sections 420, 353, 186 and 467 of IPC and Section 7(2) of the Adhiniyam were alleged against the petitioner.
11. The FIR shows that specific allegation against the petitioner is that he is running institution for aforesaid courses, giving admission to the students, conducting classes and issuing mark sheets and certificates of its own. In my view, if the petitioner does not have authority to run the institution, give admission, impart education and issue mark sheets/certificates , it is a serious matter.
12. The Apex Court in (2005) 5 SCC 420 (Prof. Yashpal v. State of Chhattisgarh), expressed its concern about quality of education. It also expressed its concern about mushrooming growth of fake educational institutions. The relevant portion reads as under:-
"The possibility that such universities which award degrees without having any teaching facility and without imparting any education will do so only for the purpose of making money is writ large. The fact that the amendments made in the Act in 2004 (referred to later in para 51 of the judgment) making it mandatory to create an endowment fund of Rs 2 crores and having provision of 15 acres of land have been challenged by many universities speaks volumes of their intention. Preparing a project report on paper is not a difficult job and any number of sponsoring bodies can be 7 M.Cr.C.No.7285/2011 created or formed in order to take advantage of the easy opportunity made available by the impugned Act. Persons with absolutely no knowledge in the subject may be awarded high degrees or other distinctions like a PhD, DLitt, or DSc. This is bound to create havoc with the system of higher education in the country and would result in nullifying the main object for which University Grants Commission has been established and would render many provisions of the UGC Act unworkable and otiose. Moreover, a university cannot be established only to provide consultancy to industry and public organisations.
What is necessary is actual establishment of institutions having all the infrastructural facilities and qualified teachers to teach there. Only such colleges or institutions which impart quality education allure the best students. Until such institutions are established which provide a high level of teaching and other facilities like well-equipped libraries and laboratories and a good academic atmosphere, good students would not be attracted. In the current scenario, students are prepared to go to any corner of the country for getting good education. What is necessary is a large number of good colleges and institutions and not universities without any teaching facility but having the authority to confer degrees.
Thus, The framers of the Constitution having adopted (with some modification) the legislative entries on universities from the Government of India Act, 1935 made by the British Parliament, the full content and amplitude of the entry can be comprehended by examining how a university is understood and what is its concept in UK and USA whose pattern was followed in several matters and which the founding fathers had in their mind.Further, Keeping in view the principles of legislative practice, the word "university" should be given the same meaning as it was generally understood at the relevant time having due regard to what is ordinarily treated as embraced within that topic or subject, namely, with proper facilities for teaching of higher level and continuing research activity.
A university is a whole body of teachers and scholars engaged at a particular place in giving and receiving instruction in higher branches of learning; and as such persons associated together as a society or corporate body, with definite organisation and acknowledged powers and privileges and forming an institution for promotion of education in higher or more important branches of learning and also the colleges, building and other property belonging to such body. Other necessary attributes of a university are plurality 8 M.Cr.C.No.7285/2011 of teachers teaching more than one higher faculties and other facilities for imparting instruction and research, provision for residence and must have certain standard of instruction providing for graduate and postgraduate levels of study. It presupposes existence of a campus, classrooms, lecture theatres, libraries, laboratories, offices, besides some playgrounds and also sports facility for overall development of personality of the students.
The primary function of the universities is teaching and research and to provide trained and qualified personnel for the progress of the nation. He indeed must be blind who does not see that, mighty as are the political changes, far deeper are the fundamental questions which will be decided by what happens in the universities. Everything is being brought to the test of reason, venerable theologies, ancient political institutions, time-honoured social arrangements, a thousand things which a generation ago looked as fixed as the hills. If India is to confront the confusion of our time, she must turn for guidance, not to those who are lost in the mere exigencies of the passing hour, but to her men of letters, and men of science, to her poets and artists, to her discoverers and inventors. These intellectual pioneers of civilisation are to be found and trained in the universities, which are the sanctuaries of the inner life of the nation."
13. Shri Bharadwaj, learned senior counsel has taken pains and relied on various documents filed with the petition and contended that Vinayak Mission University is duly affiliated with UGC and IGNOU. However, these documents are filed along with the present petition. The prosecution before the court below has filed statements of various Government officers recorded under Section 161 of CrPC. Mr. U.N.Shukla deposed that from petitioner institution blank mark sheets and certificates were found. The petitioner institution made an effort to conceal relevant documents. The witnesses also deposed that petitioner misbehaved with them and hindrance was created in discharge of their official duty.
14. This is trite law that FIR cannot be an encyclopedia of the entire incident, which must disclose all facts and 9 M.Cr.C.No.7285/2011 details relating to the offence reported. The Apex Court in (2003) 6 SCC 175 (Superintendent of Police, CBI and others vs. Tapan Kumar Singh), opined that mentioning of a section in the FIR is not by itself conclusive, as it is for the Court to frame charges having regard to the material on record. In (2009) 9 SCC 719 (Jarnail Singh and others vs. State of Punjab), the Apex Court opined that if minimum/brief facts for initiating action are available in FIR, it is sufficient for the prosecution to proceed further.
15. Along with challan papers, the respondents have filed copy of legal notice dated 14.10.2010, sent by Vinayak Mission University to Police Station, University, Gwalior. The subject matter of this notice is relating to petitioner institution. In this notice, the said University has stated that the petitioner has no authority to continue to run the study centre under the banner of our University and a civil suit is filed in this regard. Copy of plaint of Civil Suit (OS No. 220/2010) is also filed with challan papers. In the said suit, the said University has contended that the present petitioner started indulging in malepractice which not only amounted to and against the terms of understanding but also in utter disregard, which was purposely done and directed to taint the reputation of the University. It is further averred that false advertisements were made in the name of plaintiff University but the courses are conducted in violation in the name of other institutes. The defendants have also printed pamphlets in those lines. It is a deliberate violation of the terms of the Memorandum of Understanding. It is averred that the defendant-institution (present petitioner) was preparing fake mark sheets for the students and was earning huge amount using the name of the University. The defendant institution was conducting examinations in a different 10 M.Cr.C.No.7285/2011 study centre which was not within the agreement. There are several other malepractices which was deliberately done by the defendant thinking that the University is at a distance and will not easily find out the frauds of the defendant. In para 11, it is averred that as per the letter and notice sent through lawyer, the Memorandum of Understanding has come to an end as on 14.3.2009. The defendants have lost their right to run the study centre using the name of plaintiff-University.
16. On a conjoint reading of FIR and challan papers, I am unable to hold that if allegations mentioned in the FIR are accepted on its face value, no offences as alleged in FIR are is committed by the petitioner. However, this will not include the allegation relation to section 7(2) of the Adhiniyam.
17. Shri Bharadwaj, during the course of his arguments, relied on admission form (A-4). Relevant portion of same reads as under:-
"IMPORTANT INSTRUCTION TO BE READ BY THE STUDENT AND HIS GUARDIAN APARK is a self-financed autonomous organization. It is a pioneer institute serving quality education for information technology, Management Journalism and other job oriented courses across the nation. All the course of APARK are designed as per the requirement of corporate sector only. Student may take admission at our franchisee, remote center or any business associate. Apark has separate educational system for non-government planning and resources. For any organization the acceptance of APARK certificate or mark sheet is a matter of dependency as per the requirement. The procedure, programs and educational system of APARK is quite different from other traditional system. APARK doesn't claim that its courses are accepted in any Government Job, Admission or any competition. All the APARK Corporate Certificate are just a job oriented program not a degree. APARK courses don't have any association with UGC, AICTE, NCTE, Department of higher Education, or any state act. Most of the job oriented courses doesn't come under the purview of UGC, AICTE, NCTE, Department of Higher Education or any state act. Student has to follow all the rules and 11 M.Cr.C.No.7285/2011 regulation of APARK. Any matter or dispute is subject to Gwalior jurisdiction only. For more details student must go through the website ww.aparkindia.org."
(Emphasis Supplied) Shri Bharadwaj also relied on various documents filed with the petition.
18. The question is whether at this stage this Court can examine the said documents and conduct a mini trial parallely. This aspect is no more res integra. The Apex Court in (2012) 9 SCC 460 (Amit Kapoor vs. Ramesh Chander), opined that where the factual foundation for an offence has been laid, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. In the said case, the Apex Court laid down the relevant parameters, on the strength of which interference under Section 482 CrPC can be made. The said principles are as under:-
"1. Though there are no limits of the powers of the Court under Section 482 CrPC but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
2. The court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
4. Where the exercise of such power is absolutely 12 M.Cr.C.No.7285/2011 essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
5. Where there is an express legal bar enacted in any of the provisions of CrPC or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
8. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction.
9. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
10. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
11. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence 13 M.Cr.C.No.7285/2011 collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The court has to consider the record and documents annexed with by the prosecution.
13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
14. Where the charge-sheet, report under Section 173(2)CrPC, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
15. Coupled with any or all of the above, where the court finds that it would amount to abuse of process of CrPC or that interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist."
A combined reading of clauses 11 and 13 of said judgment makes it clear that at this stage, the court should not examine the facts, evidence and material on record to determine whether there is sufficient material, which may end in a conviction. The court is only concerned with the allegations taken as a whole whether they will constitute an offence. Similarly, under section 482 CrPC the court cannot take into consideration external materials given by an accused for arriving to a conclusion that no offence was disclosed or there was possibility of his acquittal. In the present case, there is no admitted material between the parties. The trial Court is best suited to examine the defence documents at appropriate stage. At this stage, no interference on the basis of defence 14 M.Cr.C.No.7285/2011 documents can be made.
19. Shri Bharadwaj relied on the judgments of Dr. Vimla, P. Vijayan and Shiji alias Pappu (supra). If the judgment of Dr. Vimla (supra) is examined, it will be clear that this judgment is not related with exercise of power under Section 482 CrPC. After complete adjudication, the matter was travelled till Supreme Court. The other judgments cited by Shri Bharadwaj are based on different factual matrix. Hence, the said judgments are of no assistance to the petitioner. Similarly, the order passed by this Court in Apark Institute of Employment Education & Research (supra) is of no help to the petitioner. In that case, this Court did not deal with the questions involved in the present case. This Court has not given any finding regarding authenticity, genuineness and correctness of mark sheets issued by the petitioner or by Vinayak Mission University. In the said case, this Court did not deal with the questions involved in the present case. Shri Bharadwaj also relied on a paragraph of admission form, reproduced in para 17 of this order. The said document is filed before this Court in the present petition filed under section 482 CrPC. The petitioner may file this document before the court below, which will be dealt with by the court below in accordance with law at appropriate stage. It will be open for the court below to examine the aspect highlighted by Shri Bharadwaj by taking assistance from the reproduced portion of admission form. This Court has no doubt that the court below at appropriate stage will examine the effect of petitioner's declaration that it does not claim that its courses are accepted in any Government job, admission or in competition. This declaration that all the APARK Corporate Certificates are just a job oriented program not a degree, with further declaration that APARK courses do not have any association with UGC, AICTE, 15 M.Cr.C.No.7285/2011 NCTE, etc., will also be looked into by the court below. This needs to be examined by the court below at appropriate stage because it is a matter of common knowledge that mark sheets and degrees in the courses of MBA, BSC, BA, BCA, BCOM, MA, PGDCA, MSW, B.Lib. etc. can be granted only by competent Institutions/University. If the said degrees/mark sheets in said courses are given without authority of law, it is a serious matter which needs to be examined by the court below. At this stage, no findings need to be given on this aspect.
20. After applying the acid test laid down by Supreme Court in Amit Kapoor (supra), I am of the considered view that the petitioner is entitled to succeed only to the extent that no action can be taken against him as per section 7(2) of the Adhiniyam. However, remaining portion of the FIR does not require any interference. I am unable to hold that the FIR does not disclose the offences under Sections 420, 353, 186 and 467 IPC. The trial Court at appropriate stage will consider the relevant aspects and decide the matter on merits. The petitioner is unable to make out a case under Section 482 CrPC for setting aside the entire FIR dated 3.12.2010.
21. On the basis of foregoing analysis, the FIR dated 3.12.2010 (Crime No.416/2010) is set aside to the extent the allegations relating to section 7(2) of the Vishwavidyalaya Adhiniyam, 1973 were made against the petitioner. No interference is made on the remaining portion of the FIR.
22. Petition is partly allowed to the extent indicated above.
(Sujoy Paul)
(Yog) Judge