Karnataka High Court
Dr Neha Bansal vs The State Of Karnataka on 14 July, 2014
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF JULY 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
Crl.P. No.576/2013
C/W
Crl.RP.Nos.505, 432, 348, 307, 375, 569, 553, 352 and
662/2011
Crl.P. No.576/2013:
BETWEEN:
Dr.Neha Bansal, 35 years,
D/o.Ashok Kumar Bansal
R/at No.7/19-301, Parvati Bagal Road
Tilak Nagar, Kanpur, Uttarpradesh. ...PETITIONER
(By Miss. Neetha.H.Y., for Mahesh and Company, Advocates)
AND:
The State of Karnataka
By Central Bureau of Investigation/A.C.B.
Bangalore, Represented by the Special
Public Prosecutor, High Court Building,
Bangalore. ...RESPONDENT
(By Sri.C.H. Jadhav, Senior Advocate;
Shri. Gururaj Joshi, Advocate for accused No.4)
2
This Crl.P. is filed under section 482 Cr.P.C. praying to
quash the charge sheet and its consequent investigation as
against the petitioner herein in Spl.C.C.No.106/08 initiated
by Central Bureau Investigation, pending on the file of XLVIII
Additional C.C. and S.J. and Spl.Judge for CBI Cases,
Bangalore.
IN CRL.RP.No.505/11:
BETWEEN:
Dr.Bhavani M. Hulinayakar, 33 years,
W/o.Dr.Stalin Ramprakash
R/o.3rd Cross, Shiva Deepti
Someshwarapuram, Tumkur-572 102.
2.Dr.Raman.M.H., 30 years,
S/o.Dr.M.H.Hulinayakar
R/o.Shiva Deepthi, 3rd Cross, S.S.Puram
Tumkur-572 102. ...PETITIONERS
(By Sri.A.H.Bhagavan, Advocate)
AND:
State by CBI
CBI Office, Bellary Road
Bangalore. ...RESPONDENT
(By Sri.C.H. Jadhav, Senior Advocate)
This Crl.RP is filed under Section 397 read with
Section 401 Cr.P.C. to set aside the order dated 9.2.2011
passed by the XLVIII Addl.C.C. and S.J. and Spl.Judge for
CBI cases, Bangalore, in Spl.C.C.No.106/08.
IN CRL.RP.No.432/11:
BETWEEN:
Dr.B. Mekhala Dwarakanath,
M.B.B.S., M.S., DGO., Aged about 33 years,
D/o.Sri.B.S.Dwarakanath R/o. of premises
3
Bearing No.237, A.Ramaskanda
4th Main Road, Ganganagar
Bangalore-32. ... PETITIONER
(By Sri.A.N.Radhakrishna for Sri.C.V.Nagesh Associates,
Advocates)
AND:
State by Central Bureau of Investigation
Bellary Road, Ganganagar,
Bangalore. ...RESPONDENT
(By Sri.C.H.Jadhav, Senior Advocate)
This Crl.RP is filed under Section 397 read with
Section 401 Cr.P.C. to set aside the order dated 9.2.2011
passed by the XLVIII Addl.C.C. and S.J. and Spl.Judge for
CBI cases, Bangalore, in Spl.C.C.No.106/08 directing
framing of charges against petitioner for an offence which is
made penal under Section 120-B read with Section 420 and
409 of IPC and U/s.13(2) read with Section 13(1)(d) of the
Prevention of Corruption Act, 1988 and further be pleased to
order her discharge in the case.
IN CRL.RP.No.348/11:
BETWEEN:
Dr.Girish.B.
S/o. Late Biligiri Gowda, 38 years, Doctor,
No.79, 2nd Floor,4th Main, MIG,
1st Stage, KHB Colony, Bangalore-79. ...PETITIONER
(By Sri.K.Shasi Kiran Shetty, Sr. Advocate)
AND:
Central Bureau of Investigation,
ACB,Bangalore. ... RESPONDENT
(By Sri.C.H. Jadhav, Senior Advocate)
4
This Crl.RP is filed under Section 397(1) to set aside
the order dated 9.2.2011 passed by the XLVIII Addl.C.C. and
S.J. and Spl.Judge for CBI cases, Bangalore, in
Spl.C.C.No.106/08 insofar as it relates to petitioner
(Annexure-"A").
IN CRL.RP.No.307/11:
BETWEEN:
Dr.V.I. Hukkeri, 53 years,
Professor & Principal,
P.S.P. Sanstha's Indira Institure of Pharmacy,
A/P:Sadavali(Devrukh)
Taluk Sangmeshwar,
District Ratnagiri-415 804
Maharashtra State. ... PETITIONER
(By Sri.Kiran S. Javali, Advocate)
AND:
State by Central Bureau of Investigation,
CBI Office, Bellary Road,
Bangalore. ... RESPONDENT
(By Sri.C.H. Jadhav, Senior Counsel)
This Crl.RP is filed under Section 397 read with
Section 401 Cr.P.C. to set aside the order dated 9.2.2011
passed by the XLVIII Addl.C.C. and S.J. and Spl.Judge for
CBI cases, Bangalore, in Spl.C.C.No.106/08.
IN CRL.RP.No.375/11:
BETWEEN:
Dr.P.S. Prabhakaran, 63 years,
S/o.Subramanian, R/at NO.558/1, 15th Cross
16th Main, 4th Sector
HSR Layout, Bangalore. ... PETITIONER
(By Sri S.Balan, Advocate)
5
AND:
The State of Karnataka
By Central Bureau of Investigation,
Represented by Spl.Public Prosecutor. ...RESPONDENT
(By Sri.C.H. Jadhav, Senior Advocate)
This Crl.RP is filed under Section 397 read with
Section 401 Cr.P.C. to set aside the order dated 9.2.2011
passed by XLVIII Addl.C.C. and S.J. and Spl.Judge for CBI
cases, Bangalore, in Spl.C.C.No.106/08 rejecting the prayer
of discharge & etc.
IN CRL.RP.No.569/11:
BETWEEN:
Dr.S.K.Harsh,
S/o.Dr.S.H. Keshava Murthy
Adarsha Nursing Home, Sharada Devi Nagar
Tumkur-572 102. ...PETITIONER
(By Sri. Prakash Singh,B.J., Advocate)
AND:
State by Central Bureau of Investigation,
No.32, Bellary Road, Ganganagar,
Bangalore-36. ...RESPONDENT
(By Sri.C.H.Jadhav, Senior Counsel)
This Crl.RP is filed under Section 397 read with
Section 401 Cr.P.C. to set aside the order dated 9.2.2011
passed by the XLVIII Addl.C.C. and S.J. and Spl.Judge for
CBI cases, Bangalore, in Spl.C.C.No.106/08 and to
discharge the petitioner/accused No.15.
6
IN CRL.RP.No.553/11:
BETWEEN:
Dr.Sida Tagore, 36 years,
D/o.Sadashivan,
R/o.No.481, HMT Layout
6th Main, R.T. Nagar
Bangalore-32. ... PETITIONER
(By Sri.Mahesh R. Uppin, Advocate)
AND:
State of Karnataka
By Central Bureau of Investigation,
ACB, Bangalore. ... RESPONDENT
(By Sri.C.H. Jadhav, Senior Advocate)
This Crl.RP is filed under Section 397 to set aside the
order dated 9.2.2011 passed by the XLVIII Addl.C.C. and
S.J. and Spl.Judge for CBI cases, Bangalore, in
Spl.C.C.No.106/08 and to allow the crl.r.p. in so far as the
petitioner is concerned.
IN CRL.RP.No.352/11:
BETWEEN:
Dr.Sumanth Hegde, 59 years.
S/o.K.A. Hegde, R/o.No.15/22, Nandi Gardens
Stage-II, Alahalli Post, J.P.Nagar IX Phase
Bangalore. ...PETITIONER
(By Sri.S.K. Venkatesh Reddy, Advocate)
AND:
State of Karnataka
By Central Bureau of Investigation,
ACB, Bangalore. ...RESPONDENT
(By Sri.C.H. Jadhav, Senior Advocate)
7
This Crl.RP is filed under Section 397 read with
Section 401 of Cr.P.C. to set aside the order dated 9.2.2011
passed by the XLVIII Addl.C.C. and S.J. and Spl.Judge for
CBI cases, Bangalore, in Spl.C.C.No.106/08 and
consequently allow the said application filed under Section
227 Cr.P.C. by discharging the petitioner/accused-20 as
prayed for in the said application.
IN CRL.RP.No.662/11:
BETWEEN:
S.G. Rajagopal Reddy
S/o.Govinda Reddy, 57 years,
R/at No.19, "Shivashankar Nilaya"
7th Cross, 17th "E" Main Road,
6th Block, Koramangala
Bangalore-75. ... PETITIONER
(By Sri. C.Rajakumar, Advocate)
AND:
Union of India by
Central Bureau of Investigation,
Bellary Road, Bangalore-32. ... RESPONDENT
(By Sri.C.H. Jadhav, Senior Advocate)
This Crl.R.P. is filed under Section 397 read with Section
401 Cr.P.C. to set aside the order dated 9.2.2011 passed by the
XLVIII Addl.C.C. and S.J. and Spl.Judge for CBI cases, Bangalore,
in Spl.C.C.No.106/08.
These petitions coming on for orders this day, the Court
made the following:-
8
ORDER
The petitioners are arrayed as accused 1, 2, 6, 8, 11, 12, 15, 16, 18, 19 & 20 along with accused 3 to 5, 9, 10, 13, 14 & 17 in Special C.C.No.106/2008, registered for offences punishable under sections 120B, 420, 409 and also for an offence punishable under section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short, 'the Act').
2. The allegations of the final report are as follows:-
"That Dr.P.S.Prabhakaran (A-1) was working as Vice Chancellor of the Rajiv Gandhi University of Health Sciences, Bangalore during the period from 01.06.2005 to 31.05.2008;
Dr.V.I.Hukkeri (A-2) was working as Registrar of Rajiv Gandhi University of Health Sciences, Bangalore during the period from 22.07.2005 to 21.07.2006 and Hanumantha Prasad was working as Assistant Registrar of the Rajiv Gandhi University of Health Sciences, Bangalore during the period from 10.04.2005 to 09.04.2006. Dr.P.S.Prabhakaran (A-1) and Sri.V.I.Hukkeri (A-2), Sri.Nitish.R.Desai (A-3), Sri.Anand Halyal (A-4), Sri.Giridhar S.A. (A-5), Smt.Mekhala 9 Dwarakanath B. (A-6), Sri.Sandeep B.E. (A-7), Ms.Neha Bansal (A-8); Sri.S.C.Ashoka (A-9); Sri H.Srinivas (A-10), Smt.Bhavani M Hulinayakar (A-11), Ms.Sida Tagore (A-12), Ms.R.Babitha (A-13), Smt.Nandita .D.Shetty (A-14), Sri Harsha S.K. (A-15), Sri.Raman M.H.(A-16), Sri.Shantanu Savkur (A-17), Sri.Girish B (A-18), Sri.Rajagopal Reddy (A-
19) and Sri. Sumant Hegde (A-20) with the active connivance of Dr.Hanumantha Prasad and Sri.Anil Kumar had entered into a criminal conspiracy at Bangalore and other places in Karnataka during the period 2005-06 in the matter of giving access to question papers of PGET-2006 prior to the conduct of the examination for enhancing their performance of PGET-
2006 for securing PG Course/PG Diploma Courses in Medical/Dental colleges in the State of Karnataka. In furtherance of the criminal conspiracy, A-1 and A-2 facilitated supply of copies of question papers of PGET-06 to A-3 to A-15 by dishonestly and fraudulently abusing their official position as public servants committed criminal misconduct, and by committing criminal beach of trust 10 thereby cheated the Govt.of Karnataka and other genuine e candidates of PGET-06.
2. That the Rajiv Gandhi University of Health Sciences (RGUHS), was established under Section 3 of RGUHS Act-1994 having its headquarters at 4th T-Block, Jayanagar, Bangalore having all the medical/dental colleges in Karnataka functioning under it. Sri.P.S.Prabhakaran (A-1) was working as Vice Chancellor from 01.06.2005 and he was the Principal Executive and Academic Officer of the University. The University conducts Post Graduate Entrance Test (PGET) every year for the purpose of admissions to PG Course/PG Diploma Courses in Medical/Dental Colleges. As per the provisions made under the Ordinance Governing conduct of Entrance Test for admission to Post Graduate Degree and Diploma (Medical & Dental) Courses-2002, a committee was constituted under the chairmanship of Sri.P.S.Prabhakaran (A-1), Vice Chancellor of RGUHS, Bangalore for the conduct of PGET-2006, Sri.V.I.Hukkeri (A-2), Registrar, RGUHS, Bangalore was the Member Secretary of the said committee. The said committee had issued notification dated 15.11.2005 for the conduct of PGET-2006.
11Sri.V.I.Hukkeri (A-2) had prepared a question bank out of which the Sri.P.S.Prabhakaran (A-1) had personally finalized 2-sets of question papers on 02.02.2006. Smt.Kavitha, PA to Sri.P.S.Prabhakaran and Smt.Jyothi, Stenographer of Sri.V.I.Hikkeri (A-2) had carried out the data entry into the computer kept in the office of Sri.P.S.Prabhakaran and the same was in his custody. Sri.P.S.Prabhakaran (A-1) had finalised 2-sets of question papers and the same was entrusted to Sri.V.I.Hukkeri (A-2) for getting it printed. After printing the same were kept in sealed trunks and were distributed to various centres on 11.02.2006 through route officers. PGET-2006 was held on 12.02.2006 and the results were announced on 17.02.2006. Sri.Nitish R.Desai (A-3) and 15-other candidates who had fared poorly in M.B.B.S had figured in the top-20 of the merit list.
3. That Sri.P.S.Prabhakaran (A-1), Shri.V.I.Hukkeri (A-2), Sri.Hanumanth Prasad had hatched a conspiracy with Sri.Rajgopal Reddy (A-19) residing at No.19, Shivashankara Nilaya, 7th Cross, 17th E-Main Road, 6th Block, Koramangala, Bangalore during January-2006 for 12 leaking the question papers of PGET-2006 to a select list of candidates. In furtherance of the said conspiracy, Dr.Hanumantha Prasad, Assistant Registrar, RGUHS, Bangalore had booked rooms in Hotel UD Residency, Basavanagudi, Bangalore for the stay of the candidates of PGET-06 on 11.02.2006 with the assistance of his friend, Sri.K.L.Anil Kumar, Proprietor of M/s. Xcelware Global INC, at No.248, 9th A Main, 3rd Block, Jayanagar, Bangalore. Sri.K.L.Anil Kumar had picked up the candidates namely Sri.Sandeep B.E. (A-7), Ms.Neha Bhansal (A-8) Sri.H.Srinivas (A-10), Ms.R.Babitha (A-13) and Smt.Nadita Shetty (A-14) from various parts of the city as per the list given by sri.Hanumantha Prasad and had brought them to Hotel U.D.Residency, Basavanagudi, Bangalore dated 11.02.2006. He had also co-ordinated with Sri.Rajagopal Reddy (A-19) in bringing candidates namely sri.Giridhar S.A. (A-5), Sri.S.C.Ashoka (A-
9), Smt.BhavaniM.Hulinayakar (A-11), Sri.S.K.Harsha (A-15), Sri.Raman M.H. (A-16) and Sri.Santhanu Savkur (A-17) to Hotel UD Residency, Basavanagudi, Bangalore. He had collected question papers of PGET-06 from 13 Sri.Hanumantha Prasad which was delivered to him by Dr.V.I.Hukkeri (A-2) and had distributed the same to the aforesaid candidates housed in Hotel UD Residency, Basavanagudi, Bangalore. The candidates were allowed to leave the hotel in the morning of 12.02.2006 for appearing for the examinations in various centres. Thus, Sri.Nitish Desai (A-3) and 15-other candidates had secured high marks in the examination and figured in the top-20 of the merit list.
4. That under the directions of Dr.V.I.Hukkeri, Dr.Hanumantha Prasad booked 6-rooms for 11.02.2006 & 12.02.2006 in the name of a "Marriage Party" in Hotel UD Residency for the stay of the candidates of PGET-06.
Dr.Hanumantha Prasad had used the visiting cards of his friend Sri.Anil Kumar. He had also obtained 3-SIM cards by using the employee data of 2-employees of M/s.Xcel Globalware, Jayanagar, Bangalore and the same were used by Dr.Hanumantha Prasad, Dr.V.I.Hukkeri and Sri.Anil Kumar for coordinating with the candidates for the leakage of question papers. On 11.02.2006 around noon, a list of candidates was passed on to Sri.Anil Kumar by Dr.Hanumantha 14 Prasad who were to be picked up from various locations in Bangalore and dropped in Hotel UD Residency. Sri.Anil Kmar picked them up in the evening around 7 pm and lodged them in Hotel UD Residency. Later, Dr.V.I.Hukkeri (A-2) went to hotel Ramanashree along with Dr.Hanumantha Prasad and he had given a list of candidates to Dr.Hanumantha Prasad and had asked him to co- ordinate with Sri.Rajagopal Reddy (A-19) for mobilizing those candidates. Accordingly, Sri.Hanumantha Prasad had passed on the list of the candidates and the telephone number of Sri.Rajgopal Reddy to Sri.Anil Kumar for bringing the candidates to Hotel UD Residency.
Sri.Rajgopal Reddy had brought Sri.Giridhar S.A. (A-5), Sri.S.C.Ashoka (A-9), Smt.Bhavani M Hulinayakar (A-1), Sri.Harsha S.K. (A-15), Sri.Raman M.H. (A-16) and Sri.Shanthanu Savkur (A-17) in a car to a place near Lalbagh West Gate, Bangalore and they were picked up by Sri.Anil Kumar and were brought to Hotel UD Residency.
5. That Dr.V.I.Hukkeri (A-2) was staying at Hotel Ramanshree on 11.02.2006 and had handed over a packet containing of question papers as well as hall tickets of the candidates to Dr.Hanumantha 15 Prasad for distributing the same to the candidates housed in Hotel UD Residency. Dr.Hanumantha Prasad had handed over the said copies of question papers to Sri.Anil Kumar near R.V.Teacher's Training College Road, Bangalore. Sri.Anil Kumar then went with the copies of question papers collected from Dr.Hanumantha Prasad to Hotel UD Residency and distributed the same to the candidates lodged there. The candidates were allowed to leave the hotel after returning the copies of question paper to Sri.Anil Kumar on 12.02.2006 in the morning for appearing for the examination. The copies of question papers which were collected back next morning were returned to Dr.Hanumantha Prasad on 12.02.2006. Dr.Hanumantha Prasad returned these copies to Dr.V.I.Hukkeri (A-2) in the same evening. Sri.Anil Kumar had collected Rs.10 lakhs from Ms.R.Babitha (A-13) and had handed over the same to Dr.Hanumantha Prasad on 11.02.2006 as a consideration for providing question papers of PGET 2006.
6. That the call data analysis of telephone/mobile numbers of Sri.P.S.Prabhakaran (A-1) and Sri.V.I.Hukkeri (A-2) during the relevant period 16 has revealed that they were in touch with Sri.Rajgopal Reddy (A-19), Sri.Nitish R Desai (A-3) and other candidates directly and indirectly for facilitating the fraud. Investigation has revealed that Sri.Rajagopal Reddy (A-19) was in touch with Sri.K.L.Anil Kumar, Proprietor of M/s. Xcelware Global Incorporation, No.248, 9th A Main Road, 3rd Block, Jayanagar, Bangalore and some of the aforesaid candidates. They had acted as middle men in mobilizing the aforesaid candidates for leaking the question papers of PGET-2006.
7. That the academic performance of 16- candidates vis-à-vis their performance in PGET- 2006 and COMED-K test was analysed by experts from Indian Statistical Institute, Bangalore. It was revealed that poor performance in COMED-K associated with lower MBBS marks except those holding higher ranks in PGET-2006. Bigger COMED-K ranks shows poor performance were associates with higher ranks in PGET-06. In the case of the performance in PGET-06 against the corresponding MBBS and COMED-K 2006 performance it was found that on leaving out the 16 suspected candidates, the performance in PGET-2006 of the remaining candidates depended 17 on better performance in MBBS. By comparing PGET-06 marks against MBBS and COMED-K marks against PGET it was concluded that the 16 suspected candidates do not belong to the general population of candidates in that their performance in PGET-06 was not compatible with the rest of the candidates. It was further found that those questions of PGET-06 which were found to be difficult by candidates who had performed very well in MBBS and COMED-K were generally answered by suspected candidates where as those questions which were correctly answered by top achievers in MBBS and COMED-K were generally left unanswered or incorrectly answered by the suspected candidates. Thus, the 16 candidates did not belong to the class of top achievers in MBBS and COMED-K and that they must have received good amount of help for finding the correct answers for difficult questions.
8. That Sri.Nitish.R.Desai (A-3) and 15-other candidates had fared poorly in their academic career and had performed extremely well to figure in top-20 of PGET-06 as shown below:
18Table-1:Academic performance of A-3 to A-18:
Rank Name of Academic Performance in various No. of the accused examinations attempts made in MBBS for clearing the exam (I-
II-III-IV
Phases)
X PGET MBBS COMED-K
Std (% 2006 (Aggreg (Rank/
of (Rank/ ate % marks)
marks) marks) of
marks)
1 Dr.Nitish.R. 86.08 0001 66.2 3607 1-1-1-1
Desai 194/200 66/180
(A-3)
2 Dr.Anand 85.92 0001 61.7 3023 1-1-1-1
Halyal 194/200
77/180
(A-4)
3 Dr.Giridhar 83.5 0001 59.7 2505 1-1-1-2
S.A. (A-5) 194/200
86/180
4 Dr.Mekhal 74.3 0001 59.7 3276 1-2-1-2
Dwaraka 194/200
73/180
nath.B(A-6)
5 Dr.Sandeep 86.24 0002 62.1 0007 1-2-1-2
B.E. (A-7) 193/200
157/180
0
6 Dr.Neha 71 0003 62.4 1819 1-1-1-1
Bansal 190/200
97/180
(A-8)
7 Dr.S.C. 89.28 0003 62.3 1457 2-1-1-1
Ashoka 190/200
103/180
(A-9)
8 Dr.H. 75.84 0004 68.6 2295 1-1-1-1
Srinivas 189/200
89/180
(A-10)
19
9 Dr.Bhavani. 85.92 0004 57.6 1528 1-1-1-1
M 189/200
102/180
Hulinayakar
(A-11)
10 Dr.Sida 64.16 0004 59.1 2928 2-1-1-1
Tagore 189/200
79/180
(A-12)
11 Dr.Babitha 79.84 0005 58.9 2817 1-2-1-1
R 187/200
81/180
(A-13)
12 Dr.Nandita 70.33 0006 57.3 3742 4-2-2-4
D Shetty 181/200
63/180
(A-14)
13 Dr.Harsha 82.56 0007 60.9 2628 1-1-2-2
S.K. (A15) 177/200
84/180
14 Dr.Raman 88.16 0008 656 2610 2-1-1-1
M.H 176/200
84/180
(A-16)
15 Dr.Shanta NA. 0011 677 Nil 1-1-2-1
nu Savkur 170/200
(A-17)
16 Dr.Girish. B 66.5 0012 54.7 Nil 3-4-3-3
(A-18) 169/200
It is evident that the aforesaid 16-candidates were average/below average students during their academic career and they were able to figure at the top of the merit list of PGET-06 as they had fraudulently gained access to question papers of PGET-06 before the conduct of the examination leading to enhanced performance. Their performance in COMED-K test which was held on 20 29.01.2006 was poor though the difficulty levels of the 2-tests were comparable.
9. That Sri.Nitish.R Desai (A-3), Sri.Anand Halyal (A-4), Sri.Giridhar S.A. (A-5), Sri.Neha Bansal (A-
8), Sri. S.C.Ashoka (A-9), Sri.H.Srinivas (A-10), Smt.Bhavani M.Hulinayakar (A-11), Ms.Sida Tagore (A-12), Ms.R.Babitha (A-13), Sri.Harsha S.K. (A-15), Sri.Raman M.H.(A-16) and Sri.Shantanu Savkur (A-17) were subjected to polygraph test and brain mapping tests and the same have revealed that they are the beneficiaries of leakage of question papers of PGET-06. Sri.P.S.Prabhakaran (A-1), was also subjected to polygraph test and brain mapping and the same has revealed that he had knowledge about the leakage of question papers and had participated in the commission of crime.
10. Thus Sri.P.S.Prabhakaran (A-1), the then Vice Chancellor, Rajiv Gandhi University of Health Sciences (RGUHS), Bangalore, Dr.V.I.Hukkeri (A-2), the then Registrar, Rajiv Gandhi University of Health Sciences (RGUHS), Bangalore and Sri.Hanumanth Prasad, Assistant Registrar, Rajiv 21 Gandhi University of Health Sciences (RGUHS), Bangalore had entered into a criminal conspiracy with Sri.Rajagopal Reddy (A-19), R/o No.19, 7th Cross, 17th E Main Road, 6th Block, Koramangala, Bangalore, Sri.Sumanth Hegde (A-20), R/o 15/22, Nandi Gardens, Stage-II, Alahalli Post, JP Nagar IX Phase, Bangalore and Sri.Anil Kumar, Proprietor of M/s. Xcel Globalware Inc., Jayanagar, Bangalore in the matter of leakage of question papers of PGET- 06 to a selected group of candidates for enabling them to secure admission papers to PG Course/PG Diploma Courses in Medical/Dental Colleges in the State of Karnataka. In furtherance of the said conspiracy, Sri.Hanumanth Prasad and Sri.Anil Kumar had booked rooms at Hotel UD Residency, Basavangudi, Bangalore had mobilized 11- candidates at the said hotel on 11.02.2006 and they were given copies of question papers of PGET- 06 leading to their enhanced performance in the examination and securing ranks within top-22 positions in the merit list. Sri.Nitish R Desai (A-3), Sri.Ganesh, No.45, Rajnagar, Near SBI Flat, Hubli- 580032; Sri Anand Halyal (A-4), Post Torgal, Taluk Ramdurg, District Belgaum, Sri Giridhar S.A. (A-5), Ankada, No.13, sy No.26/1-C, 3rd Main, 11th Cross, 22 Sandyagappa Reddy Layout, Hebbal Kempapura, Bangalore, Smt.Mekhala Dwarakanath B.(A-6), No.237 A, Ramaskanda, 4th Main Road, Ganganagar, Bangalore-32; Sri.Sandeep B.E (A-7) No.139, FF3, 3rd Main Road, Grahalakshmi Layout, II Stage, Basaveshwaranagar, Bangalore, Ms.Neha Bansal (A-8), PWD Colony, Sampad Road, Aligarh, UP; Sri S.C.Ashoka (A-9), No.640, 4th Cross, 6th Main, 2nd Block, BSK I Stage, Hanumanthanagar, Bangalore, Sri.H.Srinivas (A-10), No.934/12, 7th Cross, 13th Main, HMT Layout, Mathikere, Bangalore, Smt.Bhavani.M.Hulinayakar (A-11), r/o Shiv Deepti, 3rd Cross, S.S.Puram, Tumkur, Ms.Sida Tagore (A-12), r/o No.481, HMT Layout, 6th Main, R.T.Nagar, Bangalore; Ms.R.Babitha (A-13), r/o No.87, Kalidasa Road, V.V.Mohalla, Mysore; Smt.Nandita D Shetty (A-14), r/o No.15/22, Nandi Gardens, Stage-II, Alahalli Post, J.P.Nagar IX Phase, Bangalore; Sri Harsha S.K. (A-15), Adarsha Nursing Home, Sharada Devi Nagar, Tumkur; Sri Raman M.H. (A-16), r/o Shiva Deepthi, 3rd Cross, S.S.Puram, Tumkur, Sri. Shantanu Savkur (A-17), r/o G-3, Akashganga Apts, 4th cross, 5th Main Road, Ganga Nagar, Bangalore; Sri.Girish B (A-18), r/o No.79, 4th Main MIG, I Stage, KHB Colony, 23 Basaveshwara Nagar, Bangalore had conspired with Sri.Rajagopal Reddy (A-19) and others and had fraudulently gained access to question papers of PGET-06 prior to the conduct of the examination thereby cheating the University by fraudulently securing high marks thereby pushing the meritorious students down the merit list taking away their legitimate chances of securing seats for PG Courses/PG Diploma Courses. The aforesaid acts of Sri.P.S.Prabhakaran (A-1) and 19 others constitute offences punishable under Section 120-B IPC read with Sections 420, 409 IPC and 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act-1988 and substantive offences thereof."
3. Accused 1 to 20 pleaded for discharge before the trial court. The learned Special Judge for the reasons best known to him has passed five separate orders in respect of accused 1 & 2; accused No.6; accused 5, 7 to 13, 15 to 18; accused 14 & 20; and accused No.19. The learned Special Judge discharged accused 3 & 4 by a separate order.
244. Accused Nos.5, 9, 13 & 14 have not challenged the order of rejection of plea for discharge. The Central Bureau of Investigation (for short, 'the CBI') has not filed revision against the order of discharge of accused 3 & 4.
5. Accused 1, 2, 6, 8, 11, 12, 15, 16, 18, 19 & 20 have filed aforestated criminal petition and criminal revision petitions against the order of rejection of plea for discharge.
6. When the matters came up for hearing, this court noticing that CBI has not challenged the order of discharge of accused 3 & 4, issued suo motu notices to accused 3 & 4.
Accused No.4 has entered appearance and he is represented by Sri Gururaj Joshi, learned counsel. The CBI had received notice by hand for service on accused No.3. The CBI has not served notice on accused No.3.
7. I have heard the learned counsel for parties and I have gone through the impugned orders. The learned Special Judge having rejected the plea of discharge of accused 1, 2, 5 to 20 and accepted the plea of discharge made by accused 25 3 & 4 has not framed charges, on the other hand he has passed the following order:-
"The plea of discharge made by accused No.1 and 2 is dismissed.
The plea of discharge made by accused No.3 and 4 is allowed.
Accused No.3 and 4 are discharged from the offences punishable under sections 120-B r/w Sec.420, 409 of IPC and Sec.13 (2) r/w. Sec.13(1) (d) of Prevention of Corruption Act, 1988.
The plea of discharge made by accused No.5, 7, 8 , 9, 10, 11, 12, 13, 15, 16, 17 and 18 is dismissed.
The plea of discharge made by accused No.14 and 20 is dismissed.
The plea of discharge made by accused NO.19 is dismissed.
The plea of discharge made by accused No.6 is dismissed.26
Charge is directed to be framed against accused No.1 and 2 for the offences punishable under sections 120-B r/w Sec.420, 409 of IPC and Sec.13(2) r/w. Sec.13 (1) (d) of Prevention of Corruption Act, 1988.
Charge is directed to be framed against accused No. 5, 7, 8 , 9, 10, 11, 12, 13, 15, 16, 17 and 18 for the offences punishable under sections 120-B r/w Sec. 420, 409 of IPC and Sec.13(2) r/w Sec.13 (1) (d) of Prevention of Corruption Act, 1988.
Charge is directed to be framed against accused No.6 for the offences punishable under sections 120-B r/w Sec.420, 409 of IPC and Sec.13(2) r/w Sec.13 (1) (d) of Prevention of Corruption Act, 1988.
Charge is directed to be framed against accused NO.14 and 20 for the offences punishable under sections 12-B r/w Sec.420, 409 of IPC and Sec.13(2) r/w Sec.13 (1) (d) of Prevention of Corruption Act, 1988.
Charge is directed to be framed against accused No.19 for the offences punishable under 27 sections 120B r/w Sec.420, 409 of IPC and Sec.13 (2) r/w. Sec.13(1) (d) of Prevention of Corruption Act, 1988."
(underlining supplied)
8. In the first place, the learned Special Judge having rejected the plea of discharge should have framed charge under section 240 Cr.P.C. The learned Special Judge should not have created two stages, one for rejection of plea for discharge and the other for framing of charges. The order of learned Special Judge that charge is directed to be framed against accused for aforestated offences does not convey any meaning. The learned Special Judge cannot delegate the power of framing charges.
9. From the contents of order sheet dated 09.02.2011 and 03.03.2011 and 05.04.2011 (extracted supra), it is clear that learned Special Judge instead of framing charges simultaneously after rejecting the plea of discharge has adjourned the case from time to time, without assigning reasons for not framing charges.
2810. As could be seen from the contents of final report, accused are alleged to have committed offences in the same course of transaction. The learned Special Judge before considering the application for discharge or considering the final report to frame charge should have gone through the provisions of section 223(a) Cr.P.C., which read thus:-
"223. What persons may be charged jointly- The following persons may be charged and tried together, namely:--
(a) persons accused of the same offence committed in the course of the same transaction;
(b) persons accused of an offence and persons accused of abetment of, or attempt to commit, such offence;
(c) persons accused of more than one offence of the same kind, within the meaning of section 219 committed by them jointly within the period of twelve months;29
(d) persons accused of different offences committed in the course of the same transaction;
(e) persons accused of an offence which includes theft, extortion, cheating, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property possession of which is alleged to have been transferred by any such offence committed by the first-named persons, or of abetment of or attempting to commit any such last-named offence;
(f) persons accused of offences under sections 411 and 414 of the Indian Penal Code (45 of 1860) or either of those sections in respect of stolen property the possession of which has been transferred by one offence;
(g) persons accused of any offence under Chapter XII of the Indian Penal Code (45 of 1860) relating to counterfeit coin and persons accused of any other offence under 30 the said Chapter relating to the same coin, or of abetment of or attempting to commit any such offence; and the provisions contained in the former part of this Chapter shall, so far as may be, apply to all such charges:
Provided that where a number of persons are charged with separate offences and such persons do not fall within any of the categories specified in this section, the [Magistrate or Court of Session] may, if such persons by an application in writing, so desire, and if he is satisfied that such persons would not be prejudicially affected thereby, and it is expedient so to do, try all such persons together."
11. As per investigation records, accused 1 to 20 are alleged to have committed offences in the same course of transaction. At the first instance, there was conspiracy between accused 1 & 2 to leak question papers of entrance examination of Post Graduation Courses in Medical Science held on 12.02.2006. Accused 3 to 18, who were prospective candidates of entrance examination of Post Graduation 31 Courses in Medical Science held on 12.02.2006, entered into conspiracy with accused 1 & 2 to have illegal advantage of leaked question papers from accused 1 & 2 on payment of illegal gratification and accused 3 to 20 were secured to a hotel at Bangalore, one day prior to examination and accused 1 & 2 leaked question papers to accused 3 to 18, who had illegally secured question papers well in advance and appeared for entrance examination and secured merit, though merit secured by them in the graduate examination was relatively low. Accused No.19 is alleged to have acted as a middleman. Accused No.20 was the fiance of accused No.14. He had also joined the conspiracy to help his fiancée (accused No.14).
12. The learned Special Judge has discharged accused 3 & 4 holding that they had appeared for entrance examination in examination centre at Hubli and it was not possible for them to be present at Bangalore on the previous day of examination and reach the examination centre at Hubli on the following day.
3213. As already stated, suo motu notice issued by this court was served on accused No.4 and he is represented by Sri Gururaj Joshi, learned counsel.
14. The learned counsel appearing for accused 1, 2, 6, 8, 11, 12, 15, 16, 18 to 20 would submit that learned Special Judge having discharged accused 3 & 4, who are also students, who are allegedly had illegal advantage of leaked question papers secured from accused 1 & 2 for consideration, should not have framed charges against accused 5 to 18 as the allegations contained in chargesheet against accused 3 & 4 and accused 5 to 18 are similar.
15. The learned counsel for accused No.4, relying on Constitution Bench Judgment of Supreme Court, reported in (2014) 3 SCC 92 (in the case of Hardeep Singh Vs. State of Punjab & others) would submit that accused No.4 has been discharged. The remedy left open to proceed against accused no.4 is under section 319 Cr.P.C.
3316. In the aforestated judgment, the Supreme Court has held:-
"116. Thus, it is evident that power under Section 319 Cr.P.C. can be exercised against a person not subjected to investigation, or a person placed in Column 2 of the charge-sheet and against whom congnizance had not been taken, or a person who has been discharged.
However, concerning a person who has been discharged, no proceedings can be commenced against him directly under Section 319 Cr.P.C. without taking recourse to provisions of Section 300(5) read with Section 398 Cr.P.C."
17. Accused No.3 has been discharged by trial court. As already stated, CBI had not filed revision petition against the order of discharge of accused No.3. This court issued suo motu notices to accused 3 & 4. The CBI has not been able to serve notice on accused No.3. Therefore, the order of discharge of accused No.3 cannot be reversed, however, CBI can invoke section 319 Cr.P.C., against accused No.3, if 34 evidence regarding complicity of accused No.3 is brought on record. In the circumstances, the submission of learned counsel for accused 1, 2, 6, 8, 11, 12, 15, 16, 18, 19 & 20 that they should have been discharged, in view of order of discharge passed against accused No.3 cannot be accepted.
18. As regards accused No.4, in the Constitution Bench Judgment reported in (2014) 3 SCC 92 (in the case of Hardeep Singh Vs. State of Punjab & others), the Supreme Court has held that power under section 319 Cr.P.C. can be exercised against a person, who had been discharged.
However, concerning a person, who has been discharged, no proceedings can be commenced against him directly under section 319 Cr.P.C., without taking recourse to provisions of section 300(5) r/w section 398 Cr.P.C.
19. Section 300 (5) Cr.P.C. reads thus:-
"300.(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other 35 Court to which the first-mentioned Court is subordinate."
20. Section 398 Cr.P.C., reads thus:-
"398. Power to order inquiry:- On examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 or sub-section(4) of section 204, or into the case of any person accused of an offence who has been discharged:
Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made."36
21. The case before the Sessions Court is a warrant case instituted upon police report. Therefore, discharge of accused is under section 239 Cr.P.C. In the circumstances, the question whether charge can be framed against accused no.4 is a matter for consideration by the trial court. Accused no.4 is at liberty to urge this contention before the trial court. The learned Special Judge has ignored the provisions of section 223 Cr.P.C., and has passed separate orders. The learned Special Judge having dismissed the plea of discharge of accused 1 & 2, 5 to 20 should have simultaneously framed charges. Therefore, impugned orders cannot be sustained.
22. In the result, I pass the following:-
ORDER Criminal Petition No.576/2013 and Criminal Revision Petition Nos.505, 432, 348, 307, 375, 569, 553, 352 & 662/2011 are accepted. The impugned orders and also the order of discharge of accused no.4 are set aside. The matters are remanded to the learned Special Judge for 37 reconsideration of plea of discharge of accused. It is made clear that accused by relying on investigation records are at liberty to contend before trial court that charge against them is groundless and the prosecution (CBI) is at liberty to contend before the trial court that there are grounds to presume that accused have committed offences alleged against them. The CBI can invoke section 319 Cr.P.C., against accused no.3 at appropriate stage by adducing evidence regarding complicity of accused no.3. Accused no.4 is at liberty to contend that there are no grounds to frame charges against him and the law laid down by the Constitution Bench of Supreme Court in the judgment reported in (2014) 3 SCC 92 (in the case of Hardeep Singh Vs. State of Punjab & others) is a bar to frame charges against accused no.4.
Sd/-
JUDGE SNN