Madras High Court
Dr.S.Murukesan vs The Deputy Superintendent Of Police
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDERS RESERVED ON :
Crl.OP No.17027 of 2014 on 19.03.2019
and Crl.OP No.3177 of 2019 and Crl RC No.579 of 2015 on 15.03.2019
PRONOUNCING ORDERS ON : 26.03.2019
CORAM
THE HON'BLE MR.JUSTICE N.ANAND VENKATESH
Crl.OP No.17027 of 2014
and
Crl.O.P.No.3177 of 2019 and Crl.RC No.579 of 2015
Dr.S.Murukesan ..Petitioner / Accused No.1
in Crl.OP No.17027 of 2014
Dr.R.Gunaseelan ..Petitioner /Accused No.2
in Crl.OP No.3177 of 2019
in Crl.RC No.579 of 2015
Vs.
The Deputy Superintendent of Police,
CBI / Anti Corruption Branch,
Nungambakkam, Chennai - 14 ..Respondent in
in Crl.OP No.17027 of 2014
State by the Deputy Superintendent of Police,
CBI / ACB, Chennai .. Respondent/Complainant
in Crl.OP No.3177 of 2019
in Crl.RC No.579 of 2015
Prayer in Crl.OP No.17027 of 2014 : This Criminal Original petition is filed
to call for the records in CC No.13 of 2014 on the file of the Hon'ble IX
http://www.judis.nic.in
2
Additional Special Judge for CBI cases and quash the same.
Prayerr in Crl.RC. No.579 of 2015 : This Criminal Revision Petition is filed
to set aside the order dated 26.05.2015 made in Crl.MP No.5054 of 2014 in
CC No.13 of 2014 on the file of the IXth Additional Special Judge for CBI
Cases, Chennai.
Prayer in Crl.OP No.3177 of 2019 : This Criminal Original petition is filed
to set aside the order of framing of charges as against the petitioner herein
by the learned IX Additional Special Judge for CBI cases, Chennai in CC
No.13 of 2014 dated 22.01.2019.
For Petitioner : Mr.N.R.Elango, Senior Counsel
in Crl OP No.17027 of 2014
Mr.B.Kumar, Senior Counsel
in Crl OP No.3177 of 2019
For Respondents : Mr.K.Srinivasan,
Special Public Prosecutor
ORDER
The petitioner in Crl.RC No.579 of 2015 and Crl.OP No.3177 of 2019 has been ranked as A2 and Criminal Revision Petition was filed challenging the dismissal of the discharge petition filed in Crl.MP No.5054 of 2014. While this revision petition was pending, the Court below proceeded to frame the charges and therefore, the Criminal original petition has been filed challenging the framing of charges in CC No.13 of 2014. http://www.judis.nic.in 3
2. The petitioner in Crl.OP No.17027 of 2014 is ranked as A1 and the said petition has been filed challenging the proceedings in CC No.13 of 2014, pending on the file of the XI Additional Sessions Judge for CBI Cases, Chennai.
3. The case of the prosecution is that the Annamalai University in its meeting held on 16.08.2011, appointed A1 as the Member of Dental Faculty in Raja Muthaiah Dental College and Hospital and also made him as a Member representing Annamalai University in the Dental Council of India. A2 is a Medical Director of Rajan Dental Clinic, Chennai and he was nominated as the Member of the Dental Council of India by the Tamil Nadu State Government. The Executive Committee of the Dental Council of India accepted A2 as a Member to the Dental Council of India w.e.f.10.07.2011.
4. The Asan Memorial Association submitted an application on 24.09.2008 for starting a Dental College for the academic year 2009- 2010. The application was returned by the Ministry stating that there are certain deficiencies and directed the association to rectify the same within fifteen days. The Association sought more time and it was rejected. The http://www.judis.nic.in 4 Association again submitted an application in the year 2009 and once again, it was returned citing certain deficiencies and directed the Association to rectify the deficiencies. In the meantime, the Government of Tamil Nadu on 13.11.2009 issued Essentiality Certificate for starting a Dental College to Asan Memorial Association. The Association also received a consent of affiliation on 31.12.2009 and the concerned Ministry forwarded the application to the Dental Council of India.
5. The Executive Committee of the Dental Council of India in its meeting held on 03.06.2010 after considering the entire records decided to recommend to the Central Government to disapprove the application for establishment of a new Dental College to the Association. On 15.07.2010, the Ministry informed the Association, that the Central Government decided to disapprove the application in view of the recommendation of the Dental Council of India.
6. The Association filed a writ petition before this Court in WP No.17666 of 2010 and this Court by an order dated 14.09.2010, set-aside the order of the Ministry and remitted for reconsideration and also directed the Dental Council of India to constitute an inspection team to verify the http://www.judis.nic.in 5 facilities available in the college. Pursuant to the orders passed by this Court, an inspection was conducted by the Dental Council of India at Asan Memorial Dental College and again several deficiencies were found. Therefore, the Executive Committee recommended to the Central Government not to grant permission for establishment of the Dental College to the Association. This was in turn informed by the Central Government to the Association.
7. Once again, the Association filed a writ petition before this Court in WP No.22398 of 2010 challenging the denial of permission. This Court again passed an order dated 23.12.2010 and directed a fresh inspection to be conducted and thereafter, appropriate orders be passed within a time frame. The Inspection Committee visited the college and conducted an inspection and submitted a report. The Dental Council of India on 12.06.2011, considered the inspection report and recommended to the Central Government to disapprove the application of the Association. The concerned Ministry concurred with the Association and vide letter dated 06.07.2011, informed the Association about the rejection of the approval.
8. Again, the Association filed a writ petition before this http://www.judis.nic.in 6 Court in WP No.18465 of 2011, challenging the rejection of approval. This Court by an order dated 09.09.2011, set-aside the order of disapproval and directed re-inspection to be conducted and decision to be taken within a period of two weeks. This was necessitated, since the last date for admission for the academic year 2011-2012, fell on 30.09.2011.
9. One Dr.Mazumdar, became the president of Dental Council of India during April 2011 and a felicitation meeting was arranged by A1 and A2 at the Presidency Club, Chennai on 28.05.2011 to felicitate Dr.Mazumdar. This felicitation function was also attended by the Principal of number of Dental Colleges. It was also attended by Dr.Jaganathan, the Principal of the Association. He informed Dr.Gautham Babu (Approver) and Smt.Shymala Jayaprakash (Approver), who were working with the institution about the felicitation function and it was decided to explain the grievances to Dr.Mazumdar. Accordingly, Dr.Jaganathan met Dr.Mazumdar and appraised the problems faced by the Association in getting the approval for starting the Dental College.
10. During June - July 2011, A2 is said to have entered into a conspiracy with A1 to demand illegal gratification from M/s.Asan Memorial http://www.judis.nic.in 7 Educational Institution as a motive for influencing Dental Council of India in getting approval through corrupt and illegal means to M/s.Asan Memorial Dental College and Hospital. In furtherance of the conspiracy, A1 is said to have met the Principal of the Association and informed him that he will make arrangements for getting permission for starting the Dental College. A1 also is said to have met Dr.Gautham Babu (Approver) and asked him to meet him at his clinic. The said Dr.Gautham Babu (Approver) met A1 in his clinic and A1 is said to have demanded Rs.1 Crore as illegal gratification for recommending to the Dental Council of India for grant of approval to start the College. Dr.Gautham Babu (Approver) told A1 that he will inform about it to the Executive Committee of the Association. This demand is said to have been rejected by the Executive Committee. Thereafter, the Association received a communication from the Dental Council of India that they have decided to recommend to the Central Government to disapprove the application. Again, the meeting of the Executive Committee of the Association was convened and the Executive Committee again decided not to comply with the illegal demand.
11. In the meantime, A1 had became a Member, Dental Faculty at Raja Muthaiah Dental College and Hospital and also a Member http://www.judis.nic.in 8 representing Annamalai University in Dental Council of India. Again A1 approached Dr.Gautham Babu (Approver) and demanded for the illegal gratification and also told him that if the money is not paid, the Association will never be able to start the Dental College.
12. Left with no other alternative, the Association decided to yield to the demand of A1 to pay illegal gratification of a sum of Rs.1 Crore. However, it was decided to pay half of the amount demanded initially and to pay the balance amount after the receipt of the permission from the Central Government. A sum of Rs.50 lakhs was arranged and Dr.Gautham Babu (Approver) took this amount to the clinic of A1 on 14.09.2011 and handed over the same to A1. The Dental Council of India appointed Dr.T.Murali Mohan (LW9) as Inspector by letter dated 20.09.2011 and he conducted the inspection on 21.09.2011 and found no deficiencies in the facilities available in the college and submitted a report to the Dental Council of India. On 23.09.2011, A2 is said to have gone to Calcutta to attend the General Body Meeting of the Dental Council of India held on 24.09.2011 and in the said meeting, the Inspection report was considered and the Executive Committee of the Dental Council of India recommended for the approval of the proposal of Asan Memorial Association to start a new Dental College and the Central http://www.judis.nic.in 9 Government approved and sent a communication dated 29.09.2011 informing the Association about the approval.
13. Dr.Gautham Babu (Approver) is said to have again met A1 at his clinic on 03.10.2011 and paid him the balance amount of Rs.50 lakhs.
14. A2 was arrested in another case where an FIR was registered by the respondent. During interrogation, he is said to have revealed that he had received a sum of Rs.75 lakhs as his share from A1 for getting the approval for M/s.Asan Memorial Dental College and Hospital and other colleges. A2 had further confessed that he had paid the amount of Rs.75 lakhs to one Sri.Arjun lal who is staying at Chennai. Based on the confession, an amount of Rs.75 lakhs was recovered from Shri.Arjun Lal on 18.01.2013. Initially an FIR was registered against these petitioners and two other accused persons. In the course of investigation, Mr.Gautham Babu (A3) and Shymala Jayaprakash (A4) turned approvers and gave their confession statement before the Magistrate. Subsequently, on completion of the investigation, a final report came to be filed against the petitioners for an offence under Section 120 B IPC r/w Sections 7, 8, 12 and 13(2) R/w 13(1)
(d) of Prevention of Corruption Act, 1988.
http://www.judis.nic.in 10
15. Mr.N.R.Elango, learned Senior Counsel appearing on behalf of the petitioner in Crl.OP No.17027 of 2014 made the following submissions :-
a) The petitioner became a public servant only on 10.01.2012 when his membership was accepted by the Dental Council of India and was communicated to him and therefore, the provisions of the Prevention of Corruption Act cannot be applied against the petitioner, since the entire incident is said to have taken place in the year 2011.
b) The important provision that has been applied against the petitioner is Section 13(1)(d) of the Prevention of Corruption Act. This provision has been omitted by the Amendment Act 16 of 2018 which came into effect from 26.07.2018 and there is no saving clause in the amended act and therefore, this provision cannot be used against the petitioner. Even if Section 6 of the General Clause Act 1897 is relied upon, it will only apply to repealed provision and will not apply to omissions. In order to substantiate this submission, the learned Senior Counsel relied upon the following judgements :-
(i) [Shree Bhagwati Steel Rolling Mills Vs. the Commissioner of http://www.judis.nic.in 11 Central Excise and another] reported in 2016 (3) SCC 643
(ii) [Fibre Boards Private Limited, Bangalore Vs. Commissioner of Income tax, Bangalore] reported in 2015 (10) SCC 333
(iii) [General finance Co. and another Vs. the Assistant Commissioner of Income Tax, Punjab] reported in 2000 (7) SCC 1.
(iv) [General finance Co. and another Vs. the Assistant Commissioner of Income Tax, Punjab] reported in 2000 (7) SCC 1.
(v) [Kolhapur Canesugar Works Ltd., and another Vs. Union of India and others] reported in 2000 (2) SCC 536.
(vi) [Messrs. Rayala Corporation (P) Ltd., and another Vs. Director of Enforcement, New Delhi] reported in 1969 (2) SCC 412.
The learned Senior counsel also relied upon the parliamentary debate that took place before the amendment was passed in the parliament.
c) The entire case of the prosecution is completely vague, since the materials collected by the prosecution does not even reveal the proximate time period during which the conspiracy is said to have taken place between A1 and A2.
http://www.judis.nic.in 12
d) The order of approval is as a result of the order passed by this Court and the report submitted by Dr.T.Murali Mohan (LW9) and therefore, there is no question of any illegal gratification being collected for the approval.
e) The entire investigation is attended with malafides, since this petitioner was arrested and subjected to harassment and inhuman treatment and this was brought out by the petitioner in the affidavit filed by him before this Court in Crl.OP No.1571 of 2013 and that is the reason why, the respondent has proceeded to file a final report in this case without any materials.
f) The prosecution is wholly relying upon the statement given by the approvers and their statement goes completely contrary to the available records. Their confession cannot be taken into account, since there is no inculpatory statement against them.
g) The statement of Dr.T.Murali Mohan (LW9) shows that all the requirements were satisfied by the college and therefore, the http://www.judis.nic.in 13 recommendation was made for approval and this was accepted by the Central Government.
16. Mr.B.Kumar, learned Senior Counsel appearing on behalf of the petitioner (A2) has made the following submissions :-
a) In an unconnected case, this petitioner's house was searched and CBI recovered three promissory notes totalling a sum of Rs.75 lakhs, signed by one Arjun lal who is said to be a financier. The confession statement was recorded from the petitioner as if, the petitioner received a sum of Rs.75 lakhs from A1 as his share and given the same to Shri.Arjun lal on various occasions. The CBI thereafter goes to the house of Shri.Arjun lal and makes Arjun lal to go to his bank and withdraw a sum of Rs.75 lakhs and this was handed over to the CBI. A statement is taken from Arjun lal where he has accepted the receipt of the amount and the execution of the promissory notes. The case where the search was made and in which, this petitioner was also arrested, ultimately, the name of this petitioner was dropped in the final report, since there was no material. It is this recovery which is now relied upon in this case to rope in the petitioner as an accused.
http://www.judis.nic.in 14
b) The statements made by the approvers even if it is taken as a whole does not in any way attribute any criminal conspiracy against this petitioner.
c) The prosecution did not establish even a single fact against this petitioner to show that this petitioner contributed towards the Association getting approval and recognition for starting the Dental College.
d) The charge with regard to the conspiracy against this petitioner is totally vague and just because this petitioner had attended the felicitation function conducted for Dr.Mazumdar, that by itself cannot form the basis for the charge of conspiracy.
e) The entire proceedings is an abuse of process of Court and the petitioner should not be made to face a trial without their being any materials against him.
17. The learned Special Public Prosecutor appearing on behalf of the respondent made the following submissions :-
http://www.judis.nic.in 15
a) Insofar as A1 is concerned, the statement of the approvers prima facie makes out a case for framing of charges.
b) A1 has became a public servant immediately after he was appointed as a Member of the faculty of Dentistry by Annamalai University on 13.09.2011 and the nature of duty performed by A1 will clearly fall within the definition of a public servant under Section 2(c) of the Prevention of Corruption Act.
c) The operation of the Provision under the 1988 Act will continue even after the amendment Act 2018 coming into force, since an omission of a provision will also amount to an implied repeal and therefore, Section 6 of the General Clause Act will apply and thereby, the proceedings initiated under the old Act will continue.
d) Insofar as A2 is concerned, the recovery made from Arjun Lal based on the confession of A2 in an other case, can be used in the present case also, since it has resulted in a discovery of a fact under Section 27 of the evidence Act.
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e) The statement of Dr.Gautham Babu (Approver) read with the statement of Viji Joseph (LW22), prima facie makes out a case for conspiracy against A2, since A2 had attended the felicitation function of Dr.Mazumdar in May 2011 and A2 had told Dr.Jaganathan that some one will look into the problem faced by the College in getting the approval and it is thereafter, A1 went to the college and spoke with the Principal. This coupled with the subsequent developments leading to the ultimate approval granted to the College, makes out a prima facie case for conspiracy.
f) This Court at this stage cannot go into the probative value of the material on record and even if a strong suspicion is available, that itself is a ground for framing of charges.
e) In order to substantiate his submission, the learned counsel relied upon the Judgement of the Hon'ble Supreme Court reported in [Amit Kapoor Vs. Ramesh Chander and another] reported in 2012 9 SCC 460. http://www.judis.nic.in 17 Discussion:-
Crl.OP No.17027 of 2014
18. This Court will first consider the submissions made by the learned Senior Counsel with regard to the scope of the statements made by the approvers. Under Section 306 of Cr.PC tender of pardon can be made to any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies. It is now a settled law that the extent of culpability of the accomplice is not material. Useful reference can be made in this regard to the Judgement of the Hon'ble Supreme Court in [State of Rajasthan Vs.Balveer alias Balli and another] reported in AIR 2014 SC 1117. It is also not necessary that the accomplice should implicate himself to the same extent as the other accused persons. Useful reference can be made in this regard to the Judgement of the Hon'ble Supreme Court in [Suresh Chandra Bhari Vs. The State of Bihar] reported in 1995 Supp (1) SCC 80.
19. Once the accused accepts the tender of pardon on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence, he a). Ceases to http://www.judis.nic.in 18 be an accused b). becomes an approver and c). becomes a witness for the prosecution. Section 133 of the Evidence Act also says that an accomplice shall be a competent witness against an accused person. The credit worthiness of the evidence of the accomplice is also dealt with Under Section 114(b) of the Indian Evidence Act.
20. One important submission that has been raised by the learned Senior Counsel is that the statement recorded from the approvers does not inculpate them and therefore, their statement cannot be taken into account for the purpose of framing of charges. Since the case of the prosecution completely rests on the statement of the approver at this stage, the petitioner will have to be necessarily discharged from the case.
21. The effect of the statements of the approver has been broadly stated supra. The specific question that needs to be answered is whether the approver must implicate himself while giving the statement and in the absence of which, it cannot be relied upon?
22. The Judgement of the Bombay High Court in [Maosi Nainsi Jain and others Vs. State of Maharashtra] reported in 1985 Mah. http://www.judis.nic.in 19 LJ 469 will be of relevance to decide this issue. The relevant portions of the judgement is extracted hereunder :
9. It was next submitted on behalf of the applicants that the most essential ingredient of the offence is the intention or knowledge and on perusal of the two statements of Ajaykumar, it will go to show that he had neither any intention or knowledge in committing various alleged offences. It was hence contended that the two statement recorded under section 164 of the Code of Criminal Procedure of accused No. 13 Ajaykumar are not confessional in nature and as such the statements cannot help the prosecution to support its request to tender pardon to the accused. In other words, what is sought to be contended is that the pardon could be tendered only to a person who is an accomplice or who has implicated himself in the offence.
10. For granting permission under section 306(1) of the Code of Criminal Procedure it is not a pre-requisite condition that the statement of a person on whose behalf pardon is sought must be in the nature of confession or must implicate himself in the offence. The wordings of section 306(1) of the Code of Criminal procedure do not contemplate that the permission to tender pardon must only relate to a person who is an accomplice or has implicated himself in the offence.
What the section requires is to obtain statement of any person who is supposed to be directly and or indirectly concerned in or privy to the http://www.judis.nic.in 20 offence and such a person can be granted pardon on condition of his making a full and true disclosure of whole of the circumstances within his knowledge relative to the offence. I am supported in my view by a decision in Awatar Singh v. State of Punjab[AIR 1960 Punjab 364 :
1960 Cr LJ 898.] wherein it is laid down that according to section 337 of the old Criminal Procedure Code, which contains identical provision as in section 306 of the new Code of Criminal Procedure, any person who is supposed to have been directly or indirectly concerned in or privy to the offence mentioned in the said section can be granted a pardon on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence. It is not necessary that he should be an accomplice or that he should have implicated himself in the offence. The other decision which can be relied upon is Sumermal v. Union Territory of Tripura [AIR 1964 Tripura 41 : 1964 (2) Cr LJ 209.] . It is observed in that case that to enable a Magistrate to tender pardon to a person under section 337 (old Criminal Procedure Code), it is not necessary that the person should admit his complicity in the offence. Section 337 is intended to give pardon to any person who is supposed to have been directly or indirectly concerned in or privy to the offence. In my view, therefore, the submission made on behalf of the applicants is devoid of any substance and cannot be accepted.
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23. It will also be relevant to rely upon the Judgement in [Senthamarai Vs. S.Krishnaraj and another] reported in 2002 (1) CTC
143. The relevant portions of the judgement is extracted hereunder :
21. Though he had not stated that he took dominant role in the preparation of documents by putting forged signatures in the fabricated documents, for granting pardon under Section 306 Cr.P.C., it is not a pre-requisite condition that the statement of a person on whose behalf pardon is sought must be in the nature of confession or he must implicate himself fully in the offence.
What the section requires is to obtain statement from the person who is supposed to be directly or indirectly concerned in or privy to the offence and such a person can be granted pardon on the condition of his making a full and true disclosure of whole of the circumstance within his knowledge relative to the offence.
22. Section 306, Cr.P.C would provide that while granting of pardon, all that has to be seen by the court is as to whether the approver was directly or indirectly concerned with the offence or he was supposed to have been privy to the offence. The emphasis is on the word “supposed”. This word “ supposed” does not mean that such a person should have fully participated in the crime. Thus, the very basis of the section is that a person who applies for pardon under the provisions of Sections 306 and 307 can be assumed to be directly or indirectly concerned in the offence. Similarly, he may be assumed to be privy to the offence. Thus, the person applying may not be actual culprit, and there does not arise any question of exculpating one's own self. Further, such a person should be supposed to be directly or http://www.judis.nic.in 22 indirectly concerned or privy to the offence. Meaning of the term'concerned' also shows that such a person may be somehow directly or indirectly connected with the offence. He may have some interest therein or the incident which led to the offence may be of some importance to him.
24. A reading of the statement of the approvers namely Dr.Gautham Babu (LW1) and Dr.Shymala Jayaprakash (LW2) clearly shows the part played by them in handing over the bribe money to the petitioner. Therefore, it is not correct to say that the approvers have not stated anything about the part played by them in the entire transaction.
25. From the above judgements, it is clear that it is not a pre-requisite condition that the statement of a person on whose behalf pardon is sought, must be in the nature of confession or it must implicate the person concerned in the offences. It is enough if the statement of the approver reflects his or her involvement directly or indirectly or are privy to the offence. It does not require a full participation in the offence. This Court is completely in agreement with the judgements referred supra in this regard.
26. This Court therefore is not in agreement with the http://www.judis.nic.in 23 submission made by the learned Senior Counsel on this issue and the same is rejected.
27. It is true that the approval was granted to the college pursuant to the report submitted by Dr.T.Murali Mohan (LW9), who has specifically stated that the college satisfied all the requirements for grant of permission. This has again been reiterated by LW9 in the statement given before the Investigating Officer.
28. This again cannot come to the aid of the petitioner, since the money taken for giving report even in genuine cases where an institution satisfies all the requirements, obviously will satisfy the requirements of illegal gratification. The petitioner is said to have taken undue advantage of his position to enable the permission to be given on time to the dental college.
29. The issue raised by the learned senior counsel regarding the effect of omission of Section 13(1) (d) of the Prevention of Corruption Act by the amendment Act 2018 and whether it will be saved by virtue of Section 6 of General Clause Act is no more res-integra. Useful reference can http://www.judis.nic.in 24 be made to the judgements of the Hon'ble Supreme Court.
(i) [Fibre Boards Private Limited, Bangalore Vs. Commissioner of Income tax, Bangalore] reported in 2015 (10) SCC 333. The relevant potions are extracted hereunder :
23. But then Shri Arijit Prasad put before us two roadblocks in the form of two Constitution Bench decisions. He cited Rayala Corpn. (P) Ltd. v. Director of Enforcement [(1969) 2 SCC 412] which was followed in Kolhapur Canesugar Works Ltd. v. Union of India [(2000) 2 SCC 536] . He argued based upon these two judgments that an “omission” would not amount to “repeal” and that since the present case was concerned with the omission of Section 280-ZA, Section 24 would have no application.
24. Shri Prasad is correct in relying upon these two Constitution Bench judgments [(1969) 2 SCC 412] , [(2000) 2 SCC 536] for they do indeed say that in Section 6 of the General Clauses Act, the word “repeal” would not take within its ken an “omission”.
25. In Rayala Corpn. (P) Ltd. [(1969) 2 SCC 412] , what fell for decision was whether proceedings could be validly continued on a complaint in respect of a charge made under Rule 132-A of the Defence of India Rules, which ceased to be in existence before the accused were convicted in respect of the charge made under the said http://www.judis.nic.in 25 Rule. The said Rule 132-A was omitted by a Notification dated 30-3-
1966. What was decided in that case is set out by para 17 of the said judgment, which is as follows: (SCC p. 424) “17. Reference was next made to a decision of the Madhya Pradesh High Court in State of M.P. v. Hiralal Sutwala [1958 SCC OnLine MP 149 : AIR 1959 MP 93] but, there again, the accused was sought to be prosecuted for an offence punishable under an Act on the repeal of which Section 6 of the General Clauses Act had been made applicable. In the case before us, Section 6 of the General Clauses Act cannot obviously apply on the omission of Rule 132-A of the DIRs for the two obvious reasons that Section 6 only applies to repeals and not to omissions, and applies when the repeal is of a Central Act or Regulation and not of a Rule. If Section 6 of the General Clauses Act had been applied, no doubt this complaint against the two accused for the offence punishable under Rule 132-A of the DIRs could have been instituted even after the repeal of that Rule.”
26. It will be clear from a reading of this paragraph that the Madhya Pradesh High Court judgment was distinguished by the Constitution Bench on two grounds. One being that Section 6 of the General Clauses Act does not apply to a rule but only applies to a Central Act or Regulation, and secondly, that Section 6 itself would apply only to a “repeal” not to “an omission”. This statement of law was followed by another Constitution Bench in Kolhapur Canesugar Works Ltd. case [(2000) 2 SCC 536] . After setting out para 17 of the earlier http://www.judis.nic.in 26 judgment, the second Constitution Bench judgment states as follows:
(SCC p. 550, para 33) “33. In para 21 of the judgment the Full Bench [Saurashtra Cement and Chemical Industries Ltd. v. Union of India, (1993) 1 Guj LR 5 :
(1995) 79 ELT 367] has noted the decision of a Constitution Bench of this Court in Chief Inspector of Mines v. Karam Chand Thapar [AIR 1961 SC 838 : (1961) 2 Cri LJ 1] and has relied upon the principles laid down therein. The Full Bench overlooked the position that that was a case under Section 24 of the General Clauses Act which makes provision for continuation of orders, notification, scheme, rule, form or bye-law, issued under the repealed Act or regulation under an Act after its repeal and re-enactment. In that case Section 6 did not come up for consideration. Therefore the ratio of that case is not applicable to the present case. With respect we agree with the principles laid down by the Constitution Bench in Rayala Corpn. case[(1969) 2 SCC 412] . In our considered view the ratio of the said decision squarely applies to the case on hand.”
27.Kolhapur Canesugar Works Ltd. [(2000) 2 SCC 536] judgment also concerned itself with the applicability of Section 6 of the General Clauses Act to the deletion of Rules 10 and 10-A of the Central Excise Rules on 6-8-1977.
28. An attempt was made in General Finance Co. v. CIT [(2002) 7 SCC 1] to refer these two judgements [(1969) 2 SCC 412] , [(2000) 2 http://www.judis.nic.in 27 SCC 536] to a larger Bench on the point that an omission would not amount to a repeal for the purpose of Section 6 of the General Clauses Act. Though the Court found substance in the argument favouring the reference to a larger Bench, ultimately it decided that the prosecution in cases of non-compliance with the provision therein contained was only transitional and cases covered by it were few and far between, and hence found on facts that it was not an appropriate case for reference to a larger Bench.
29. We may also point out that in G.P. Singh's Principles of Statutory Interpretation, 12th Edn., the learned author has criticised the aforesaid judgments in the following terms:
“Section 6 of the General Clauses Act applies to all types of repeals. The section applies whether the repeal be express or implied, entire or partial or whether it be repeal simpliciter or repeal accompanied by fresh legislation. The section also applies when a temporary statute is repealed before its expiry, but it has no application when such a statute is not repealed but comes to an end by expiry. The section on its own terms is limited to a repeal brought about by a Central Act or Regulation. A rule made under an Act is not a Central Act or Regulation and if a rule be repealed by another rule, Section 6 of the General Clauses Act will not be attracted. It has been so held in two Constitution Bench decisions. The passing observation in these cases that ‘Section 6 only applies to repeals and not to omissions’ needs http://www.judis.nic.in 28 reconsideration for omission of a provision results in abrogation or obliteration of that provision in the same way as it happens in repeal. The stress in these cases was on the question that a ‘rule’ not being a Central Act or Regulation, as defined in the General Clauses Act, omission or repeal of a ‘rule’ by another ‘rule’ does not attract Section 6 of the Act and proceedings initiated under the omitted rule cannot continue unless the new rule contains a saving clause to that effect.”(at pp. 697-98.)
30. In view of what has been stated herein above, perhaps the appropriate course in the present case would have been to refer the aforesaid judgment to a larger Bench. But we do not find the need to do so in view of what is stated by us herein below.
31. First and foremost, it will be noticed that two reasons were given in Rayala Corpn. (P) Ltd. [(1969) 2 SCC 412] for distinguishing the Madhya Pradesh High Court judgment [1958 SCC OnLine MP 149 :
AIR 1959 MP 93] . Ordinarily, both reasons would form the ratio decidendi for the said decision and both reasons would be binding upon us. But we find that once it is held that Section 6 of the General Clauses Act would itself not apply to a rule which is subordinate legislation as it applies only to a Central Act or Regulation, it would be wholly unnecessary to state that on a construction of the word “repeal” in Section 6 of the General Clauses Act, “omissions” made by the legislature would not be included. Assume, on the other hand, that the http://www.judis.nic.in 29 Constitution Bench had given two reasons for the non-applicability of Section 6 of the General Clauses Act. In such a situation, obviously both reasons would be ratio decidendi and would be binding upon a subsequent Bench. However, once it is found that Section 6 itself would not apply, it would be wholly superfluous to further state that on an interpretation of the word “repeal”, an “omission” would not be included. We are, therefore, of the view that the second so-called ratio of the Constitution Bench in Rayala Corpn. (P) Ltd. [(1969) 2 SCC 412] cannot be said to be a ratio decidendi at all and is really in the nature of obiter dicta.
32. Secondly, we find no reference to Section 6-A of the General Clauses Act in either of these Constitution Bench judgments. Section 6-A reads as follows:
“6-A.Repeal of Act making textual amendment in Act or Regulation.—Where any Central Act or Regulation made after the commencement of this Act repeals any enactment by which the text of any Central Act or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.”
33 [Ed.: Para 33 corrected vide Official Corrigendum No. F.3/Ed.B.J./51/2015 dated 5-11-2015.] . A reading of this Section http://www.judis.nic.in 30 would show that a repeal by an amending Act can be by way of an express omission. This being the case, obviously the word “repeal” in both Section 6 and Section 24 would, therefore, include repeals by express omission. The absence of any reference to Section 6-A, therefore, again undoes the binding effect of these two judgments on an application of the per incuriam principle. [ In Mamleshwar Prasad v. Kanhaiya Lal, (1975) 2 SCC 232 : (1975) 3 SCR p. 834, Krishna Iyer, J., succinctly laid down what is meant by the “per incuriam” principle. He stated: (SCC p. 235, para 7 : SCR p. 837)“7. … We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have sway of binding precedents. It should be a glaring case, an obtrusive omission. No such situation presents itself here and we do not embark on the principle of judgment per incuriam.”(emphasis supplied)An interesting application of the said principle is contained in State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 : (1991) 3 SCR 64, where a Division Bench of this Court held that one particular conclusion of a Bench of seven Judges [Synthetics and Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109] was per incuriam — see: the discussion at SCR pp. 80, 81 and 91: SCC pp. 151, 152 and pp. 161- 162, paras 36 to 42 of the said judgment.] http://www.judis.nic.in 31
34. Thirdly, an earlier Constitution Bench judgment referred to earlier in this judgment, namely, State of Orissa v. M.A. Tulloch & Co. [(1964) 4 SCR 461 : AIR 1964 SC 1284] has also been missed. The Court there stated: (SCR pp. 483-84 : AIR pp. 1294-95, para 21) “… Now, if the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded could there be any incongruity in attributing to the later legislation the same intent which Section 6 presumes where the word ‘repeal’ is expressly used. So far as statutory construction is concerned, it is one of the cardinal principles of the law that there is no distinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is no difference in intention or in substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals and implied repeals are brought about it appears to us to be both logical as well as in accordance with the principles upon which the rule as to implied repeal rests to attribute to that legislature which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Where an intention to effect a repeal is attributed to a legislature then the same would, in our opinion, attract the incident of the saving found in Section http://www.judis.nic.in 32 6 for the rules of construction embodied in the General Clauses Act are, so to speak, the basic assumptions on which statutes are drafted.”
35. The two later Constitution Bench judgments [(1969) 2 SCC 412] , [(2000) 2 SCC 536] also did not have the benefit of the aforesaid exposition of the law. It is clear that even an implied repeal of a statute would fall within the expression “repeal” in Section 6 of the General Clauses Act. This is for the reason given by the Constitution Bench in M.A. Tulloch & Co. [(1964) 4 SCR 461 : AIR 1964 SC 1284] that only the form of repeal differs but there is no difference in intent or substance. If even an implied repeal is covered by the expression “repeal”, it is clear that repeals may take any form and so long as a statute or part of it is obliterated, such obliteration would be covered by the expression “repeal” in Section 6 of the General Clauses Act.
36. In fact in Halsbury's Laws of England, Fourth Edn., it is stated that:
“So far as express repeal is concerned, it is not necessary that any particular form of words should be used. (R. v. Longmead [(1795) 2 Leach 694 : 168 ER 448] , Leach at 696). All that is required is that an intention to abrogate the enactment or portion in question should be clearly shown. [Thus, whilst the formula ‘is hereby repealed’ is frequently used, it is equally common for it to be provided that an enactment ‘shall cease to have effect’ (or, If not yet in operation, ‘shall not have effect’) or that a particular portion of an enactment ‘shall be http://www.judis.nic.in omitted’.]” 33
37. At this stage, it is important to note that a temporary statute does not attract the provision of Section 6 of the General Clauses Act only for the reason that the said statute expires by itself after the period for which it has been promulgated ends. In such cases, there is no repeal for the reason that the legislature has not applied its mind to a live statute and obliterated it. In all cases where a temporary statute expires, the statute expires of its own force without being obliterated by a subsequent legislative enactment. But even in this area, if a temporary statute is in fact repealed at a point of time earlier than its expiry, it has been held that Section 6 of the General Clauses Act would apply. (See State of Punjab v. Mohar Singh [(1955) 1 SCR 893 :
AIR 1955 SC 84 : 1955 Cri LJ 254] , SCR at p. 898.)
38. In CIT v. Venkateswara Hatcheries (P) Ltd. [(1999) 3 SCC 632] , this Court was faced with an omission and re-enactment of two Sections of the Income Tax Act. This Court found that Section 24 of the General Clauses Act would apply to such omission and re- enactment. The Court has stated as follows: (SCC p. 638, para 12) “12. As noticed earlier, the omission of Section 2(27) and re- enactment of Section 80-JJ was done simultaneously. It is a very well- recognised rule of interpretation of statutes that where a provision of an Act is omitted by an Act and the said Act simultaneously re-enacts a new provision which substantially covers the field occupied by the repealed provision with certain modification, in that event such re- http://www.judis.nic.in 34 enactment is regarded having force continuously and the modification or changes are treated as amendment coming into force with effect from the date of enforcement of the re-enacted provision. Viewed in this background, the effect of the re-enacted provision of Section 80-JJ was that profit from the business of livestock and poultry which enjoyed total exemption under Section 10(27) of the Act from Assessment Years 1964-1965 to 1975-1976 became partially exempt by way of deduction on fulfilment of certain conditions.”
39. For all the aforesaid reasons, we are therefore of the view that on omission of Section 280-ZA and its re-enactment with modification in Section 54-G, Section 24 of the General Clauses Act would apply, and the Notification of 1967, declaring Thane to be an urban area, would be continued under and for the purposes of Section 54-G.
(ii) [Shree Bhagwati Steel Rolling Mills Vs. the Commissioner of Central Excise and another] reported in 2016 (3) SCC
643. The relevant portions of the judgement are extracted hereunder :-
14. The learned counsel's second argument that Section 6-
A of the General Clauses Act when it speaks of an “omission” only speaks of an “amendment” which omits and, therefore does not refer to a repeal, is equally fallacious. In Bhagat Ram Sharma v. Union of India [Bhagat Ram Sharma v. Union of India, 1988 Supp SCC 30 :
1988 SCC (L&S) 404 : (1988) 6 ATC 783] , this Court held that there is no real distinction between a repeal and an amendment and that “amendment” is in fact a wider term which includes deletion of a provision in an existing statute. In the said judgment, this Court held:
http://www.judis.nic.in 35 (SCC pp. 40-41, paras 17-18) “17. It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. Such deletion has the effect of repeal of the existing provision. Such a law may also provide for the introduction of a new provision. There is no real distinction between ‘repeal’ and an ‘amendment’. In Sutherland's Statutory Construction, 3rd Edn., Vol. 1 at p. 477, the learned author makes the following statement of law: ‘The distinction between repeal and amendment as these terms are used by the courts, is arbitrary. Naturally the use of these terms by the court is based largely on how the legislatures have developed and applied these terms in labelling their enactments. When a section is being added to an Act or a provision added to a section, the legislatures commonly entitled the Act as an amendment…. When a provision is withdrawn from a section, the legislatures call the Act an amendment particularly when a provision is added to replace the one withdrawn. However, when an entire Act or section is abrogated and no new section is added to replace it, legislatures label the Act accomplishing this result a repeal. Thus as used by the legislatures, amendment and repeal may differ in kind—addition as opposed to withdrawal or only in degree—abrogation of part of a section as opposed to abrogation of a whole section or Act; or more commonly, in both kind and degree—addition of a provision to a section to replace a provision being abrogated as opposed by abrogation of a whole section of an Act. This arbitrary distinction has been followed by the courts, and they have developed separate rules of construction for each. However, they have recognised that frequently an Act purporting to be an amendment has the same qualitative effect as a repeal—the abrogation of an existing statutory provision—and have therefore applied the term “implied repeal” and the rules of construction applicable to repeals to such amendments.’ http://www.judis.nic.in 36
18. Amendment is, in fact, a wider term and it includes abrogation or deletion of a provision in an existing statute. If the amendment of an existing law is small, the Act professes to amend; if it is extensive, it repeals a law and re-enacts it. An amendment of substantive law is not retrospective unless expressly laid down or by necessary implication inferred.”
15. It is clear, therefore, that when this Court referred to Section 6-A of the General Clauses Act in Fibre Board case [Fibre Boards (P) Ltd. v. CIT, (2015) 10 SCC 333 : (2015) 376 ITR 596] and held that Section 6-A shows that a repeal can be by way of an express omission, obviously what was meant was that an amendment which repealed a provision could do so by way of an express omission. This being the case, it is clear that Section 6-A undisputedly leads to the conclusion that a repeal would include a repeal by way of an express omission.
30. It is clear from the above judgements that even though two earlier Constitution Bench Judgements were brought to the notice of the Hon'ble Supreme Court to impress upon the Court to hold that the word ''repeal'' under Section 6 of the General Clauses Act would not take within its fold an omission, the Hon'ble Supreme Court held that Section 6 (A) of the General clauses Act was not taken into consideration by the earlier Constitution Benches and therefore, those judgements were held to be per-
http://www.judis.nic.in 37 incuriam. The Hon'ble Supreme Court ultimately held that a repeal will also include a repeal by way of an express omission. Therefore, the omission of Section 13 (1)(d) in the amendment Act 16 of 2018, will not have any impact in the pending proceedings by virtue of Section 6 and 6(A) of General Clauses Act, 1987. Consequently, the Submission raised by the learned Senior Counsel in this regard also deserves to be rejected.
31. The next submission made by the learned Senior Counsel with regard to the fact that the petitioner became a public servant only on 10.01.2012 when his Membership was accepted by the Dental Council of India and therefore, the provisions of the Prevention of Corruption Act cannot be applied against him since the incident is said to have taken place in the year 2011, is also a matter of fact which can be decided only at the stage of trial. This is more so since according to the CBI, the petitioner has became a public servant immediately after he became a member of the faculty of Dentistry in Annamalai University, on 13.09.2011, by virtue of the nature of duty performed by him. This dispute can therefore only be resolved after the conclusion of the trial based on the evidence collected during trial. This issue cannot be gone into at the stage of discharge. http://www.judis.nic.in 38
32. Similarly the issue of malafides is also a matter of fact which cannot be decided at this stage, more particularly, since it will require evidence which can be collected only during the course of trial.
33. What is required to be considered by this Court in exercise of its jurisdiction under Section 482 of Cr.PC while interfering with the proceedings at the stage of framing of charges, has been clearly spelt out by the Hon'ble Supreme Court in the judgement in [Amit Kapoor Vs. Ramesh Chander and another] reported in 2012 9 SCC 460. The relevant portion of the judgement is extracted hereunder :-
27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
http://www.judis.nic.in 39 27.1. Though there are no limits of the powers of the Court under Section 482 of the Code 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 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. 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.
27.3. 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.
27.4. Where the exercise of such power is absolutely 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 loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
http://www.judis.nic.in 40 27.5. Where there is an express legal bar enacted in any of the provisions of the Code 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. 27.6. 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.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. 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. 27.9. 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.
http://www.judis.nic.in 41 27.10. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. 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. 27.12. 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 therewith by the prosecution.
27.13. 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. 27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
http://www.judis.nic.in 42 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiaei.e. to do real and substantial justice for administration of which alone, the courts exist. 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, 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.
34. From the above judgement, it is clear that the Court at this Stage is not concerned with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial could prove him guilty. This Court cannot hold a full fledged enquiry or appreciate evidence collected by the Investigating Agency to find out whether it is a case of acquittal or conviction. This Court is only concerned with the allegations http://www.judis.nic.in 43 taken as a whole, whether will constitute an offence.
35. 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 the prosecution rather than its quashing at an initial stage.
36. At this stage, the statements of the approvers make out a strong material against the petitioner, coupled with the attendant circumstances. These materials are enough for framing charges against the petitioner. It will be open to the petitioner to raise all the defence before the Court below during the course of trial and the Court below shall consider the same on its own merits and in accordance with law without being influenced with any of the findings of this Court touching upon the merits of the case.
Crl.O.P.No.3177 of 2019 and Crl.R.C.No.579 of 2015
37. This petitioner has been made as Accused No.2 in the final report and charges have been framed against him mainly for the offence under Section 120(b) of IPC and also under Section 7, 8 and http://www.judis.nic.in 44 Section 13(2) read with 13(1) (d) of the Prevention of Corruption Act. This petitioner was roped in on the ground that he attended the felicitation function given to Dr.Mazumdar at the Presidency Club in May 2011 and Dr.Jaganathan, Principal of the College explained him the difficulties faced by the college and this petitioner is said to have informed him that he will look into the matter. It is also alleged that this petitioner entered into a Criminal conspiracy with A1. This petitioner again comes into the scene, when he is said to have gone to Kolkatta to attend the General Body Meeting of the Dental Council of India held on 24.09.2011 and he was instrumental in getting approval for the association to start the Dental College. This petitioner is said to have received a sum of Rs.75 lakhs from A1 towards his share. After receiving this money, this petitioner is said to have induced by corrupt or illegal means, the officials of Dental Council of India to show favour in recommending grant of permission to start the Asan Memorial Dental College and Hospital and other colleges and thereby, this petitioner is alleged to have misused / abused his official position. http://www.judis.nic.in 45
38. This Court will first consider as to whether the approvers have stated anything about this petitioner in their statements.
39. Dr.Shymala Jayaprakash (LW2) does not state anything about this petitioner in her entire statement. Dr.Gautham Babu merely speaks about this petitioner attending the felicitation meeting at Presidency Club and Dr.Jaganathan being told by this petitioner that he will send somebody to look into it. In the same statement, the approver also specifically claims that A1 came to the college and introduced himself as a visitor appointed by the President, when he met the principal. Therefore, A1 did not state that he was sent by A2.
40. The next piece of material relied upon by the prosecution is the statement of Viji Joseph (LW22). This witness has merely stated that the wife of A2 namely Smt.Sangeetha Gunaseelan had booked the Hall at the Presidency Club for hosting the felicitation function of Dr.Mazumdar and had also paid the hall charges and the http://www.judis.nic.in 46 entire payment was received from Smt.Sangeetha Gunaseelan by way of a cheque for an amount of Rs.21,073/-. This statement is relied upon only to show that the petitioner (A2) also attended the felicitation function.
41. The statement of Dr.K.Jaganathan (LW13), who is the Principal of the College reveals the fact that he had explained the difficulties in getting the sanction to Dr.Mazumdar and in turn Dr.Mazumdar asked A2 to look into it and A2 had informed Dr.Jaganathan that he will send somebody to the College. Even he states that A1 who come to the college represented that he is a visitor appointed by the President. Even Dr.Jaganathan does not state that A1 was sent by A2 and A1 did not introduced himself to have been sent by A2. Even this witness at the best speaks about the presence of this petitioner during the felicitation function.
42. The next piece of material that is relied upon by the respondent is the statement of Arjunlal Sundarlal (LW21). He has stated that he knows the father of the petitioner who used to deposit http://www.judis.nic.in 47 money with him since he was doing finance business. Thereafter, the petitioner also started depositing money with him. The petitioner is said to have deposited a sum of Rs.75 lakhs during the year 2012 and he had executed three promissory notes in favour of the petitioner. The CBI arrested this petitioner in a different crime number and based on his confession, they had taken statement from witness and he was asked to withdraw a sum of Rs.75 lakhs from his bank and hand over to CBI. This was shown as a recovery in the other case. The witness further states that there is a balance of Rs.1.75 Crores which remains payable to the petitioner and these amounts were given prior to 2012.
43. In the case in which this recovery was made, the name of the petitioner was ultimately dropped at the time of filing final report, since the CBI was not able to find any materials against this petitioner. However, this recovery is sought to be relied upon in this case in order to prima facie establish that the petitioner has received a sum of Rs.75 lakhs from A1 towards his share and thereafter, handed it over to Shri.Arjunlal.
http://www.judis.nic.in 48
44. Mr.B.Kumar, learned Senior Counsel contended that this recovery can never be taken into account in the present case since it does not satisfy the requirements of discovery of fact under Section 27 of the Evidence Act. Section 27 is founded on the principle that even though the evidence relating to confession or other statements made by a person, whilst he is in the custody of a Police Officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered.
45. Whatever be the nature of the fact discovered, that fact must, in all cases, be itself relevant to the case, and the connection between it and the statement made, must have been such that the statement constitute the information through which the discovery was made, in order to render it admissible. The law on the point has been settled by the locus classicus in Puluikuri Kottaya case reported in AIR 1947 PC 67.
http://www.judis.nic.in 49
46. The Hon'ble Supreme Court in [Mehaboob Ali and another Vs. The State of Rajasthan], reported in 2015 4 MLJ Crl. 377, relied upon the decision in Puluikuri Kottaya and held that the term "fact" would include information that lead to the discovery of the other accused persons. Thus, the meaning of the term "fact" was not restricted to a material fact alone.
47. Keeping in mind these principles, it has to be seen whether the confession made by the petitioner in another case and the recovery of a sum of Rs.75 lakhs can be relied upon in the present case. It is clear from the statement of Arjunlal Sundarlal (LW21) that right from the time of the father of the petitioner, money used to be deposited with him and the petitioner also continued to deposit money with him in his financial business. Out of such deposit, the prosecution is trying to cull out a deposit of a sum of Rs.75 lakhs for which the petitioner has received promissory notes from LW21. It must be kept in mind that what was recovered were not the actual currency that was allegedly given by the petitioner, but the said amount was withdrawn by LW21 from his bank account and given to CBI. Therefore, in the http://www.judis.nic.in 50 strict sense, this cannot amount to discovery of a material fact.
48. The case in which this amount was recovered was ultimately closed insofar as this petitioner is concerned, since no materials were found against the petitioner and the name of the petitioner was dropped in the final report.
49. In order to make use of the confession statement and discovery of fact, the connection between the fact and the statement made must have been such that the statement constituted the information through which the discovery was made. By no stretch, this requirement is satisfied in this case, since the recovery itself did not pertain to the present FIR and it actually pertained to a different FIR in which the petitioner was arrested and ultimately, his name was dropped in the final report. Therefore, in the considered view of this Court, the so called recovery and the statement of Arjunlal Sundarlal (LW21) does not in any way make out a prima facie case against the petitioner to substantiate the fact that the petitioner received a sum of Rs.75 lakhs towards his share from A1 for inducing by corrupt or http://www.judis.nic.in 51 illegal means, to show favour in recommending grant of permission for the Dental College.
50. The statement of Dr.T.Murali Mohan (LW9) clearly shows that when he inspected the college on 21.09.2011, he found that the College had complied with all the six deficiencies pointed out in the earlier report and had therefore submitted his inspection report. This inspection report was considered by the executive committee of Dental Council of India and on 24.09.2011, it had recommended for approval of the proposal to start the Dental College. Based on this recommendation of the Dental Council of India, the Central Government granted the approval on 29.09.2011.
51. Just because, the petitioner is a Member nominated by the Tamil Nadu Government to the Dental Council of India and he had attended the General Body meeting of the Dental Council of India held on 24.09.2011, It cannot be stated that only due to his inducement, the approval was granted in favour of the College. It involved the entire body of the Dental Council of India and it will be http://www.judis.nic.in 52 too far fetched to consider the petitioner attending the meeting to form part of the entire conspiracy.
52. This Court is concious about the limitations while exercising its Jurisdiction under Section 482 of Cr.PC at the stage of considering the quashing of charges. This Court based on the controverted allegations as made out from the record of the case and the documents submitted therewith, is not able to find any prima facie material to frame charges against this petitioner. The materials available on record does not even create a strong suspicion that this petitioner has committed an offence for which, the final report has been filed against him.
53. This Court is of the considered view that it will be a futile exercise and an abuse of process of Court to make this petitioner suffer the ordeal of facing the trial in this case. In order to meet the ends of justice, the final report as well as the charges framed by the Court below deserves to be quashed insofar as this petitioner is concerned and accordingly, it is quashed.
http://www.judis.nic.in 53
54. In the result,
a) The petition filed in Crl.OP No.3177 of 2019 and Crl.R.C.No.579 of 2015 is allowed.
b) The petition filed in Crl.O.P.No.17027 of 2014 is hereby dismissed.
c) The Court below is directed to complete the proceedings in CC No.13 of 2014, within a period of three months from the date of receipt of copy of this order.
26.03.2019 rka Index : Yes Internet : Yes http://www.judis.nic.in 54 N.ANAND VENKATESH.,J rka Crl.O.P.No.3177 of 2019 and Crl.RC No.579 of 2015 and Crl.OP No.17027 of 2014 26.03.2019 http://www.judis.nic.in