Madras High Court
State Represented By vs M.K.Rajagopalan on 6 August, 2014
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.08.2014
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
Crl.RC.No.943 and 985/2013
State represented by
CBI/ACB, Chennai Petitioner in all Crl.RCs
Vs
1. M.K.Rajagopalan Respondent/A1-Crl.RC.943/2013
2. Dr.D.R.Gunasekaran Respondent/A2-Crl.RC.985/2013
Prayer:- These Criminal Revision Cases are filed to set aside the order dated 17.04.2013 passed by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai in Crl.MP.Nos.804 and 805/2012 respectively in CC.No.2411/2012.
For Petitioner : Mr.N.Chandrasekharan, SPP
For Respondents : Mr.A.Ramesh, SC for for Mr.A.S.Balaji
COMMON ORDER
The above criminal revisions are filed by the CBI to set aside the common order dated 17.4.2013 in Crl.MP.Nos.804 and 805/2012 in CC.No.2411/2012 respectively, discharging the Respondents/A1 and A2 passed by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai.
2. M.K.Rajagopalan (A1 in Crl.RC.No.943/2013 ) is the Chairman of Shri Sathya Sai Medical College and Research Institute, Chennai and Chancellor of Sri Balaji Vidhyapeeth, a Deemed University at Pondicherry and Managing Trustee of Sri Balaji Educational and Charitable Public Trust. Dr.D.R.Gunasekaran (A2 in Crl.RC.No.985/2013) is the Vice Chanchellor of Sri Balaji Vidyapeeth, a Deemed University of Pondicherry, in which Sri Sathya Sai Medical College and Research Institute at Ammapettai, Nellikuppam is an entitty.
3. The brief facts, which are essential to dispose of these revisions, are given below:-
(a) Sri Balaji Educational and Charitable Public Trust was established on 28.08.1996 and it was a registered Trust. On 30.08.2007, A1 submitted an application to the Ministry of Health and Family Welfare for establishment of a new Medical College under the name and style of Shri Sathya Sai Medical College and Research Institute with an annual intake of 150 MBBS Students. On 31.5.2008, the Medical Council of India conducted Letter of Intent inspection at Shri Sathya Sai Medical College and Research Institute as per the Establishment of Medical Colleges Regulations, 1999. After rectification inspection by the Medical Council of India, permission was granted to commence the Institution. In 2008, Shri Sathya Sai Medical College and Research Institute was established by Sri Balaji Educational and Charitable Public Trust (Off Campus of Sri Balaji Vidyapeeth, a Deemed University at Pondicherry). Shri Sathya Sai Medical College and Research Institute admitted the first batch of MBBS Students for the academic year 2008-2009.
(b) On 01.05.2009 and 02.05.2009, the Medical Council of India conducted first renewal inspection at Shri Sathya Sai Medical College and Research Institute for granting permission for admitting second batch of 150 MBBS Students for the academic year 2009-2010 and the same was granted. The Medical Council of India also granted second renewal for admitting third batch of 150 MBBS students for the academic year 2010-2011 after conducting renewal inspection on 16th and 17th May 2010. The report disclosed 0.67% deficiencies in teaching faculty, as one teaching faculty was absent during inspection. However, second renewal permission was granted to the College for admitting third batch of students for the academic year 2010-2011.
(c) Based on the source information, the CBI conducted surprise verification on 26.06.2010 in the campus of Shri Sathya Sai Medical College and Research Institute in order to ascertain the genuineness and correctness of the Medical Council of India inspection report dated 16th and 17th February 2010 pertaining to 2nd renewal inspection. The surprise verification disclosed deficiencies in (a) teaching faculties, (b) infrastructure facilities and (c) clinical materials. On 24.9.2010 CBI registered the First Information Report in Cr.No.RCMA-1-2010-A-0034 against five persons, namely 3 Inspectors of Medical Council of India, and M.K.Rajagopalan (A1) Chairman and Mr.Dr.D.R.Gunasekaran (A2) Vice Chancellor for the offence under Section 120B read with 420 of IPC and the same was filed before the learned Principal Special Judge, Chennai.
(d). In the meanwhile, between 03.02.2011 and 04.02.2011, the Medical Council of India Inspectors conducted third renewal inspection in the campus of Shri Sathya Sai Medical College and Research Institute for granting permission for admission of 4th batch of MBBS Students and on 7.5.2011, Ministry of Health and Family Welfare granted permission for the 4th batch of admission of MBBS Students. On 27.2.2012 and 28.2.2012 Medical Council of India conducted fourth renewal inspection in the campus of Shri Sathya Sai Medical College and Research Institute for granting permission for admission of 5th batch of MBBS Students and on 23.6.2012 the Ministry of Health and Family Welfare granted permission for 5th batch of admission of MBBS Students. However, strangely, on 22.5.2012, without an order from the Higher Court, the CBI filed the charge sheet against M.K.Rajagopal and Dr.Gunasekaran arraying them as A1 and A2 before the Additional Chief Metropolitan Magistrate at Egmore Chennai under Section 120B read with 420 of IPC, exonerating the MCI Inspectors.
4. The allegations as found in the charge sheet, based on which the CBI seeks to prosecute the Respondents/A1 and A2 under Section 420 read with 120B of IPC are as follows:-
(a) A1 and A2 had hatched conspiracy and they deliberately concealed from the MCI Inspectors about the status of the 26 adhoc faculties during the second renewal inspection in order to obtain Nil Deficiency Report.
(b) The Management had arranged number of faculties on adhoc basis showing them as regular faculties with appointment orders, joining reports and declaration forms and made them to appear before the MCI Inspectors and thereby, on false representation, obtained the Nil Deficiency Report.
(c) A1 and A2 had hired for 26 medical faculties (out of which three Doctors were working with Chennai Port Trust Hospital) and made them to appear before the MCI Inspectors for obtaining Nil Deficiency Report.
(d) A1 and A2 submitted declaration forms with concocted appointment orders and previous experience certificates for 17 Doctors for the year 2008-2009 and 2010-2011.
(e) A1 had issued fake appointment letters and Form 16 for a Government Doctor.
(f) A2 issued service certificates and relieving orders for two adhoc Doctors who appeared for inspection.
(g) A1 and A2 had knowledge about the fact that the faculties who had appeared for the inspection were not on regular appointments and that it was only an adhoc appointment.
5. Thus, the entire gamut of the Prosecution case rests on the fact that there was a shortage in the Faculties/Residents in the College and that it amounted to cheating, as the renewal permission had been obtained in pursuance of projecting adhoc faculties as regular faculties.
6. Mr.N.Chandrasekaran, the learned Special Public Prosecutor for CBI strenuously contended that the order of discharge passed by the Trial Court is erroneous, inasmuch as the Trial Court ought not to have threadbare examined as to whether the acts of the accused only amounted to violation of regulations of the Medical Council of India and there was no act amounting to cheating and conspiracy. The learned Special Public Prosecutor contended that the existence of specific rules and regulations will not oust launching prosecution for commission of offences attracting provisions of IPC. The learned Special Public Prosecutor contended that the case of the Prosecution rests on the fact that a fraud was played on the Medical Council of India by placing false declaration during the Inspection conducted by the Medical Council of India and the evidence collected, which were placed along with the final report, clearly established, prima facie, the offences against the accused. The learned Special Public Prosecutor pointed out that the Medical Council of India rules and regulations do not contain any preventive clause for launching prosecution for mis-declaration and therefore, the reasoning of the Trial Court that the CBI has no power to investigate and file a final report is totally a misconception.
7. The learned Special Public Prosecutor referred to a catena of decisions of the Honourable Supreme Court and emphasised the legal position laid down by the Honourable Supreme Court that at the time of framing charges all that is required is to see whether a prima facie case is made out or not and the question whether the charge framed will eventually stand proved or not can be determined only after evidence is recorded. The learned Special Public Prosecutor contended inter alia that the Trial Court grossly erred in not following the law laid down by the Honourable Supreme Court in i. The State of MP Vs. S.B.Johari and others (2000-Crl.LJ-944).
ii. The State of MP Vs. Awadh Kishore Gupta and others (2004-Crl.LJ-598) iii. The State of Orissa Vs. Debendranath Padhi (2004-Crl.LJ-465) iv. Shoraj Singh Ahlwat Vs. State of UP (2013-1-Crl.LJ-331).
v. State of Maharashtra Vs. Somnath Thapa (1996-4-SCC-659)
8. In response, Mr.A.Ramesh, the learned senior counsel for the Respondents/A1 and A2 argued on the authority of decisions of the Honourable Supreme Court in:-
i. Preeti Gupta and another Vs. State of Jharkhand and another (2010-7-SCC-667).
ii. Union of India Vs. Praffula Kumar Samal and another (1979-3-SCC-4) iii.Sajjan Kumar Vs. CBI (2010-9-SCC-368) iv.Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another (2008-2-SCC-561) that while considering an application for discharge, the court can examine the evidence on record and discharge the accused persons, if there is no possibility of the accused being found guilty on the basis of such evidence.
9. The learned senior counsel for the Respondents, pointing out to the clean chit give to the MCI Inspectors, who were arrayed as accused in the First Information Report registered by CBI, submitted that the Investigating Officer while submitting a report under Section 173 of Cr.PC should not record a finding nor can he give a clean chit which is a function and power of the Magistrate who will exercise the said power as provided in Cr.PC. The learned senior counsel placed reliance on the decision of the Honourable Supreme Court reported in 2009-16-SCC-785 (Hardeep Singh Vs. State of Punjab and others) in support of his submission. The learned senior counsel, thus, supported the impugned order of discharge passed by the Trial Court and contended that the learned Magistrate had applied his judicial mind to the facts of the case keeping throughout in view the essential ingredients of the offence for which the accused persons is sought to be charged and on consideration of materials and the provisions of the relevant law, he was justified in discharging the accused persons.
10. I have carefully perused all the relevant materials and considered the rival submissions of the learned counsel on either side.
11. In order to appreciate the contentions made by the learned senior counsel for the Respondents that the final report submitted by the Investigating Officer under Section 173 of Cr.PC is not in consonance with law, it is necessary to look into the provisions under Section 173 of Cr.PC. The said section provides for submission of final report by the Police Officer on completion of investigation. Sub section (1) of Section 173 of the Code lays down that every investigation must be completed without unnecessary delay. Sub section (2) enacts that as soon as investigation is completed, the Officer in charge of the Police Station shall forward a report to the Magistrate empowered to take cognizance of the offence on a police report in the form prescribed by the State Government, stating
(i) the names of the parties,
(ii) the nature of the information,
(iii) the names of the persons who appear to be acquainted with the circumstances of the case,
(iv) whether any offence appears to have been committed and if so by whom,
(v) whether the accused has been arrested,
(vi) whether he has been released on his bond and if so whether with or without sureties and,
(vii) whether he has been forwarded in custody under Section 170. He shall also communicate to the informant the action taken by him.
12. The Honourable Supreme Court in Hardeep Singh Vs. State of Punjab and others (2009-16-SCC-785) has reiterated as to what should contain in the final report filed under Section 173 of the Code and indicated that the power is not available to the Investigating Officer to record findings of fact or give a clean chit to the accused in the said report. In paragraphs 67 and 68 of the said decision, it is held as follows:-
67. The report contemplated by Section 173 should contain the information required by the said provision. The Investigating Officer is not expected to record findings of fact nor to give clean chit by exercising power of a Court or judicial authority. In the instant case, however, the Superintendent of Police not only refers to investigation made by him and the statements recorded in the course of investigation but records a `finding' that the statements were `correct'. Vijay Preet Singh was not present at the place of offence when the incident took place but reached after the occurrence was over. Thereafter police had arrested him. Likewise, Jagtar Singh was not present at the spot at the time of occurrence. The report stated;
"However, Vijay Preet Singh is totally innocent because he came there after finalizing of the occurrence. The police had already been there after reaching him and the fight stood already finished. Moreover, Balbir Singh Dhanoa and Hardeep Singh named Jagtar Singh son of Suchha Singh resident of Fatehmajri later on. This fact is also totally wrong because the son-in-law of Joginder Singh was expired a few days earlier. He was found to be at the ceremony of taking the bones with other men and women. Except this, this fact has also come in the notice that Hardeep Singh has stated in FIR that he was taken this land on lease. He went there to cultivate but prior to the occurrence Davinder Singh party had already cultivated his corn yield and jantars in this land, which was already 2 feet in height. If he wanted to cultivate then he could cultivate this land alone. What was the necessity to come with these group of men. It is evident therefrom that these all men armed with their weapons came to get possession of this land forcibly after making a plan. The statement which was given by Balbir Singh Dhanoa that he had deposited his gun at Verma Gun House, Model Town, Patiala on 2.6.04 has been deposited with connivance. Because Inspector Rajesh Chijjar snatched gun from Balbir Singh Dhanoa with the help of his employees. Later on Dhanoa party got the weapons forcibly from the police due to a big gathering of men. It is recommended to take legal action against Verma Gun House, Patiala".
68. We may only state that the Investigating Officer was required to submit report in terms of Section 173 of the Code and nothing more. He should not record a finding nor he can give clean chit which is a function and power of the Magistrate who will exercise the said power as provided in the Code.
13. Therefore, it is explicit that upon receipt of a police report under Section 173(2) of Cr.PC, a Magistrate is entitled to take cognizance of the offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the Police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) of Cr.PC does not lay down that a Magistrate can take cognizance of an offence only if the investigation has made out a case against the the accused. The Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit in exercise of his power under Section 190(1)(b) of Cr.Pc and direct the issue of process to the accused.
14. The fact that in this case, the investigation had not originated from a complaint preferred to the Magistrate, but had been made pursuant to the source information to the police would not alter the situation in any manner. It has been held in Tula Ram Vs. Kishore Singh (AIR-1977-SC-2401) that if the police after making an investigation, send a report that no case was made out against the accused, the Magistrate could ignore the conclusion drawn by the police and take cognizance of a case under Section 190(1)(b) and issue process. It is the jurisdiction of a Magistrate and Magistrate alone to decide whether the material placed by the Prosecution with the report (charge sheet) was sufficient to take cognizance or not. The power of the Magistrate to take cognizance cannot be controlled by the investigating agency whose duty is only to investigate and place the facts and the evidence before the Magistrate.
15. In the instant case, the First Information Report was submitted before the Principal Special Judge for CBI Cases, Chennai, since the said court is the designated court for the cases triable for the offence under the Prevention of Corruption Act. The First Information Report was registered against the Respondents/A1 and A2 and other three MCI Inspectors for the offences under Section 120B read with 420 of IPC and 13(2) read with 13(1)(d) of the Prevention of Corruption Act. After investigation, the CBI has laid charge sheet only against the Respondents/A1 and A2, exonerating the said MCI Inspectors. Strangely, the First Information Report, which was pending on the file of Principal Special Judge for CBI Cases, was transferred to the Additional Chief Metropolitan Magistrate, Egmore without any order from the higher court and the charge sheet has been filed before the Additional Chief Metropolitan Magistrate, Egmore against the Respondents.
16. A Magistrate, who receives the case on transfer and takes cognizance, would not become incompetent to proceed as enjoined by the Criminal Procedure Code and he has been conferred with power to take cognizance by Section 190(1) of the Code and he would not be deprived of this power because the case has come to his file pursuant to some illegal order of the concerned court. At the time of taking cognizance, the Additional Chief Metropolitan Magistrate court has to exercise its judicial discretion and record reasons for accepting the police report as such. The opinion of the Investigating Officer as against the MCI Inspectors that the allegations contained in the First Information Report were not substantiated by the statements of witnesses recorded during investigation is not a proper one. The discretion of the police to prosecute is, thus cabined and confined and subject to appeal or revision and the Magistrate is made the final arbiter on this question. In the light of the decision of the Honourable Supreme Court stated supra, I am of the opinion that the submission of the learned senior counsel for the Respondents is well founded that it is not for the CBI to give clean chit to the MCI Inspectors, which power is provided with the Magistrate while taking cognizance.
17. The procedure adopted by the learned Special Judge is also contrary to the provisions of the Code of Criminal Procedure. In the case on hand, the First Information Report was registered on the source information against the Respondents and the MCI Inspectors for the offences under the Prevention of Corruption Act, which offence can only be tried by a Special court. A Special Judge is entitled to exercise all the powers of a Sessions Judge as provided under Cr.PC in relation to the proceedings under the Prevention of Corruption Act, 1988, so far they are not inconsistent with the provisions of the Prevention of Corruption Act. As per Section 4 of the Prevention of Corruption Act, 1988, notwithstanding anything contained in Cr.PC or in any other law for the time being in force, the offences specified in sub section (1) of Section 3 shall be tried by the Special Judge only. Section 5 of the Prevention of Corruption Act, 1988 empowers the Special Judge to take cognizance of the offences without the accused being committed to him for trial and while holding trial, he has to follow the procedure prescribed by Cr.PC for trial of warrant cases by Magistrate. So, the expressions, the Magistrate empowered to take cognizance of the offenceand the Magistrate having power to try such cases appearing in various sections of Chapter XII of Cr.PC would only mean the special judge appointed under the Prevention of Corruption Act, 1988. From the provisions of the Prevention of Corruption Act, 1988 and Cr.PC, it is not possible to hold that the Special Judge does not come in picture during the course of police investigation and prior to taking cognizance of the offences under the said Act. The Special Judge is entitled to exercise all the powers conferred on a Magistrate under Chapter XII of the Cr.PC as he has got exclusive jurisdiction to take cognizance and try the offences under the Prevention of Corruption Act, 1988.
18. In this case, it appears that the Investigating Officer had filed a petition before the learned Principal Special Judge, Chennai to transfer the First Information Report of this case along with the connected papers to the Additional Chief Metropolitan Magistrate Court without mentioning any of the provisions of Cr.PC as seen from the order of the Special Court. In the charge sheet, it is merely stated that MCI Inspectors had no knowledge about the irregular faculty members/junior residents in the strength of the Medical College admitted when he accepted the report of its Inspection team and granted the renewal of permission to admit the 3rd batch of MBBS students in the Medical College. Admittedly, no closure report is filed as against the Medical Council of India Inspectors. In such circumstances, it was for the Special Judge to have gone through the materials and satisfy himself about the correctness of the report filed by the CBI in so far as Medical Council of India Inspectors are concerned before transferring the file to the Court of Additional Chief Metropolitan Magistrate.
19. Now, after interpreting Section 193 together with Section 319 of Cr.PC, the Honourable Supreme Court has enlarged the scope of Section 193 of Cr.PC to include the power of Sessions Court to summon a person left over to face the trial even before framing of charge. Although calling upon a person to face the trial before framing of charge envisages an enquiry in the matter and the enquiry under the Code by the Court of Sessions is barred, yet the power of the Court, cannot be limited, after the words used in the new Code under Section 193 that the cognizance is taken after committal of the case and not after committal of the accused as was originally provided in Section 193 of the Code.
20. The law on this point was laid down by the Honourable Supreme Court in two cases, wherein the Honourable Supreme Court has considered the scope of Sections 193 and 319 of Cr.PC in the case of Kisun Singh Vs. State of Bihar (1993-SCC-Crl-470) and held that scope of Section 193 includes the power of the Court of Sessions to summon an accused, who is left over by the investigating agency and by the Magistrate in the committal order before commencement of the trial. The same view has been reiterated by the Honourable Supreme Court in the case of Nisar Vs. State of UP (1995-SCC-Crl-306) wherein the Honourable Supreme Court held that the scope of Section 193 was wide enough to include inherently the power of the Court of Sessions to summon a person to face the trial even before the commencement of the trial when the court is satisfied that he is left over by the investigating agency.
21. In this case, the learned Special Judge should have considered that the similarly placed accused have been left out and the CBI has acted in a pick and choose manner. In the final report, except stating that the investigation had not revealed that MCI Inspectors had any knowledge of the irregular faculty members in the strength of the College when the Medical Council of India accepted the report of the investigation team, it has not been pointed out that in what respect the said conclusion is arrived at. The statement is very vague in nature and it only shows the partisan attitude of the CBI Police. As the investigation has not been conducted fairly, such vitiated investigation would only lead to the miscarriage of criminal justice.
22. There is no indication that the final report was submitted before the learned Special Judge and he has accepted the same. There is no specific order to that effect and there is no indication that the learned Special Judge after considering all the relevant materials and applying his mind, transferred the First Information Report to the file of the Additional Chief Metropolitan Magistrate. Therefore, the learned Special Judge has committed gross illegality in sending the First Information Report to the file of Additional Chief Metropolitan Magistrate on CBI just asking for transferring the file to the other court.
23. It need hardly be emphasised that in the conduct of the warrant cases by the Magistrates, the stage, at which the Magistrate is required to consider whether to discharge or to frame a charge against an accused, is of vital importance both from the point of view of the Prosecution as also the accused. The provisions under Sections 239 and 240 of the Code demand that the Magistrate must consider the police report and all the documents furnished by the police along with such report, if need be, to examine the accused and hear the arguments of both the Prosecution and the accused and then, arrive at his conclusion, independent of and uninfluenced by the police opinion; if accepted at its face value, would furnish a reasonable basis or foundation for the accusation.
24. There cannot be any doubt whatsoever that the Trial Court under Section 239 is not called upon to embark upon an enquiry as to whether evidence in question is reliable or not or evidence relied upon is sufficient to proceed further or not. However, if upon the admitted facts and the documents relied upon by the Prosecution and without weighing or sifting of evidence, no case is made out, the criminal proceedings instituted against the accused are required to be dropped.
25. In Runil Dhar Vs. State of WB (2009-6-SCC-364), it has been held that complicity of accused person is required to be taken into consideration for purpose of determining application for discharge upon taking a realistic view of the matter. While considering application, it is for the judge to go into the details of allegations made against accused persons so as to form an opinion as to whether any case at all is made out, as a strong suspicion regard thereto shall subserve the requirements of law.
26. The point, which falls for examination and determination, is as to whether there is any material collected during investigation justifying putting the Respondents on trial or whether those materials, taking on their face value make out any prima facie case against the Respondents.
27. Even accepting the Prosecution case on its face value, it only reveals violation of regulation framed by the Medical Council of India and they cannot ex-facie give rise to a criminal liability, as such misconduct may give rise to refusal of permission/ recognition for two consecutive academic years.
28. The Indian Medical Council Act 1956 and the Regulations framed thereunder provides for periodical Inspection of Medical Institutions for noticing the irregularities in the running of the Medical Institution without conforming to the standards of medical education prescribed by the Medical Council of India and its regulations. The provisions of the Act also provide for rectifying the irregularities and complying with the requirements needed for running the medical Institution to maintain the standard of education prescribed by the Medical Council of India.
29. A perusal of the various provisions of the Indian Medical Council Act 1956 therefore would make it clear that the Act and the regulations framed thereunder form a complete Code by themselves providing for every contingency regarding the running of medical Institution, the periodical Inspection to be carried out and also the action to be taken in the event of the council not doing its work properly. Under Section 10A of the Act, it is the Central Government which is the authority empowered either to grant or refuse to grant approval for starting any Medical College or for any increase in the intake. The Medical Council of India is the recommendatory body recommending to the Central Government for the approval or disapproval of the permission required for starting and running the Medical Institution. Section 19 of the Act provides for withdrawal of recommendation, when the staff, equipments, accommodation, training and other facilities for instructions and training provided in any University or Medical Institution appears to the Central Government that they do not satisfy the standards prescribed by the Council.
30. Section 30 of the Act provides for enquiry being conducted by a Commission of enquiry consisting of three persons, two of whom shall be appointed by the Central Government, one being a Judge of a High Court and one by the Council in the event of the Council not complying with any of the provisions of the Act.
31. More importantly, Clause 8(3) of the Establishment of Medical College Regulations, 1999 contemplates penal action in case any Institute is found to have employed a teacher and submits a declaration form of such a teacher with fake/forged document. Sub clause (d) of clause 8(3) reads as under:-
(d) Colleges which are found to have employed teachers with faked/ forged documents:
It is observed that any Institute is found to have employed a teacher with faked/forged documents and have submitted the declaration form of such a teacher, such an Institute will not be considered for renewal of permission/ recognition for award of MBBS Degree/ processing applications for post graduate courses for two academic years i.e. that academic year and the next academic year also.
32. Therefore, on this ground, the criminal Prosecution of the Respondents with the allegations that the declaration forms submitted by the faculties contained false and misleading information as to the undertaking that they were full time faculties when they were not permanent staff is of no criminal consequence nor does it make out any prima facie criminal case against the Respondents/accused. The shortfall in faculties and the submission of fake/forged declaration forms is not considered to be 'cheating' according to the legislators in so far as the Medical Council of India and its procedures are concerned. If the Medical Council of India had to treat fall outs in faculties as an offence, then the same would have been provided so in the regulations. But, rather the statutory body seeks to take only corrective action and affords time to the College to rectify its defect, in order to prevent scores of medical students being affected. Also, the errant Medical Doctors would be dealt with accordingly by the Indian Medical Council Act whereby the names of defaulters are liable to be removed from the State Medical Register, thus debarring them from engaging themselves in this profession.
33. When a statute or the statutory body is not inclined to treat violation or lapses as an offence, no penal law can be invoked for the shortfalls in the faculty and the submission of false declaration forms.
34. In this context, it is relevant to refer to the law laid down by the Constitutional Bench of the Honourable Supreme Court in Dr.Preeti Srivatsva and another Vs. State of MP and others (1997-7-SCC-120) wherein the Honourable Supreme Court at paragraph 57 has concluded as follows:-
In the case of Medical Council of India v. State of Karnataka & Ors. ([1998] 6 SCC 131) a bench of three judges of this Court has distinguished the observations made in Kumari Nivedita Jain (supra). It has also disagreed with Ajay Kumar Singh & Ors. v. State of Bihar & Ors (supra) and has come to the conclusion that the Medical Council Regulations have a statutory force and are mandatory. The Court was concerned with admissions to the M.B.B.S. Course and the Regulations framed by the Indian Medical Council relating to admission to the M.B.B.S. course. The Court took note of the observations in State of Kerala v. Kumari T.P. Roshana & Anr. ([1979] 1 SCC 572 at page 580) to the effect that under the Indian Medical Council Act, 1956, the Medical Council of India has been set up as an expert body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. There is, under the Act an overall vigilance by the Medical Council to prevent sub-standard entrance qualifications for medical courses. These observations would apply equally to post-graduate medical courses. We are in respectful agreement with this reasoning.
35. In view of the statutory provisions of the Medical Council Act which is a self contained Act and when there are specific provisions in the Act to deal with the misconduct committed by the Institution and if it submits fake/forged declaration forms, it would be improper to resort to Section 420 of IPC altogether ignoring those provisions.
36. Reference may also be made to the relevant portions from the Establishment of Medical College Regulations, 1999 (Amended upto September 2011). Clause 8(3) of the said Regulation deals with the grant of permission for establishment of a new Medical College which is given below:-
8(3)(1) The permission to establish a Medical College and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical College and expansion of the hospital facilities are completed and a formal recognition of the Medical College is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled.
The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.
Provided that in respect of
(a) Colleges in the stage upto II renewal (i.e. Admission of third batch):-
If it is observed during any regular inspection of the Institute that the deficiency of teaching faculty and/or residents is more than 30% and/or bed occupancy is <60% such an Institute will not be considered for renewal of permission in that academic year.
(d) Colleges which are found to have employed teachers with faked/ forged documents:-
If it is observed that any Institute is found to have employed a teacher with faked/forged documents and have submitted the declaration form of such a teacher, such an Institute willnot be considered for renewal of permission/ recognition for awrd of MBBS Degree / processing the applications for postgraduate courses for two academic years i.e. That academic year and the next academic year also.
However, the office of the Council shall ensure that such inspections are not carried out at least 3 days before upto 3 days after important religious and festival holidays declared by the Central/State Government.
(4) Failure to seek timely renewal of recognition as requiredin sub clause (a) supra shall invariably result in stoppage of admissions to the concerned Undergraduate Course of MBBS at the said Institute. Thus, it is clear that Medical Council of India is a body which has its own code of conduct to be followed while granting approval or recommending for renewal. The shortfall in faculties and submissions of fake/forged documents would only disentitle the Institution from getting renewal of permission. Also, the errant medical Doctors would be dealt with accordingly by the Medical Council, whereby the names of defaulters can be removed from the State Medical Register, thus debarring them from engaging themselves in the profession. Also, the Medical Council of India Act provides for withdrawal of recognition granted to such College as per Section 19 of the Act. Nowhere it is stated either in Medical Council of India Act or the regulations that such vilation would result in penal consequences. The contravention of Rules and Regulations may be an offence against the statute, but is not a crime. It is pertinent to point that no complaint is preferred by Medical Council of India. Therefore, there is considerable force in the submission made by the learned counsel for the Petitioners that there is no room or jurisdiction in any external agency to investigate into the affairs of any medical Institution coming within the purview of the Medical Council of India.
37. Apart from that, there is no material, inasmuch the learned Special Public Prosecutor for CBI could not point out, from the materials placed along with the charge sheet or from anywhere on the record from which it can be gathered, that prima facie offences are made out against the accused persons. The Trial Court examined the materials placed on record on threadbare after referring to the statements recorded from various witnesses and decided to discharge the accused persons which in my view is justified. 38. It is alleged that the Petitioners conspired together and cheated Medical Council of India and the Ministry of Health and Family Welfare for getting second renewal permission for the academic year 2010-2011. After registration of the First Information Report, the Medical Council of India has subsequently granted renewal to the Medical College for the years 2011-2012 and 2012-2013 after due inspection at the college. No mala fide or motive is alleged against the authorities concerned. When the College was granted permission without any kind of allegation for establishment of College for the academic year 2008-2009 and for subsequent renewal of permission for the academic year 2009-2010, why should there be a necessity for the College to cheat the Medical Council of India or Ministry of Health and Family Welfare for the academic years 2010-2011. The faculties, infrastructure and facilities which were available earlier in the College cannot vanish during the subsequent academic years. Moreover, it is an admitted fact that Further, during 14th March 2014, the Executive Committee of the Medical Council of India has recommended to the General Body of the Medical Council for recognizing the College. On 28th March 2014 the General Body of the Medical Council of India has through a Board Meeting had 'Recognised' the Medical College. Thereby, now the College is Recognised by the Medical Council of India.
39. If the Medical Council of India had noted down any illegality or malpractice adopted by the Institutions in obtaining the renewal, as per the Medical Council of India Establishment of Medical College Regulations 1999, the Institution will not be considered for subsequent renewal for the next immediate year. But, the Medical Council of India had renewed twice after registration of the First Information Report and now, the Medical Council of India had granted Recognition to the Institution during March 2014.
40. Looking into the materials/documents, which in my opinion, are of unimpeachable in other words undisputable documents, whereupon approval and renewal had been granted and subsequently the Petitioner's Institution being awarded a Recognised Medical College which related to the period before and after the allegations attributed against the accused person would only suggest non existence of any conspiracy. The essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a mater of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence, have to be considered to decide about the complicity of the accused.
41. In this context, it is worthwhile to refer to the observations made by the Honourable Supreme Court in CBI Vs. K.Narayana Rao (2012-9-SCC-512), wherein it is observed as follows:-
The circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.
42. In the instant case, as already discussed, the Ministry of Health and Family Welfare has granted permission to establish a Medical College and till date the said permission has not been withdrawn. During currency of the allegation even after registration of First Information Report, the Medical Council of India has subsequently granted renewal to the Medical College for the years 2011-2012 and 2012-2013 after due inspection at the college on the basis that most of the norms prescribed had been complied with.
43. In this case, it has to be pointed out that the Medical Council of India had not preferred any complaint either against the Respondents or against the Institution. There is also no averment in the final report that the Respondents herein made any representation much less a deceptive one to anyone of the Medical Council Inspectors to deceive them and part with the nil deficiency report. More significantly, none of the Doctors who alleged to have filed declaration forms before the Medical Council of India, had been arrayed as accused. On a perusal of the declaration forms, it is evident that the particulars had been filled up by the individual Doctors and they affirm the correctness of the information so provided. It is countersigned by the Dean. The charge sheet states that 26 declaration forms submitted by the College are false declarations and on that premise, the Respondents are sought to be prosecuted. Those 26 Doctors and the Dean of the College have been left from the array of the accused, but the Respondents have been prosecuted for countersigning such declarations.
44. In the absence of the prime/principal offenders of an offence being prosecuted, seeking to fasten liability on the conspirators is opposed to rule of law. The learned senior counsel for the Respondents placed reliance on the dictum laid down by the Honourable Supreme Court in Ex-Sepoy Hardhar chakrabarty Vs. Union of India (UOI) and another (AIR-1990-SC-1210) that when the principal offender is acquitted of the offence being not established, then the person charged with offence of abetment of conspiracy of commission of offence also has to be acquitted.
45. An offence of cheating cannot be said to have been made out unless the following ingredients are satisfied.
i. deception of a person either by making a false or misleading representation or by other action or omission.
ii. fraudulently or dishonestly inducing any person to deliver any property or iii. To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
46. For the purpose of constituting an offence of cheating, the Prosecution is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In Vir Prakash Sharma Vs. Anil Kumar Agarwal (2007-7-SCC-373) the Honourable Supreme Court held at paragraphs 13 to 15:-
"13. The ingredients of Section 420 of the Penal Code are as follows:
(i) Deception of any persons; (ii) Fraudulently or dishonestly inducing any person to deliver any property; or (iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
No act of inducement on the part of the appellant has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception.
14. What has been alleged in the complaint petition as also the statement of the complainant and his witnesses relate to his subsequent conduct. The date when such statements were allegedly made by the appellant had not been disclosed by the witnesses of the complainant. It is really absurd to opine that any such statement would be made by the appellant before all of them at the same time and that too in his own district. They, thus, appear to be wholly unnatural.
15. In law, only because he had issued cheques which were dishonoured, the same by itself would not mean that he had cheated the complainant. Assuming that such a statement had been made, the same, in our opinion, does not exhibit that there had been any intention on the part of the appellant herein to commit an offence under Section 417 of the Penal Code."
47. A perusal of the allegations would show that the basic ingredients required for falling within the four corners of cheating have not been made as against the accused. The lacunae in the allegations are as follows:-
i. what was the representation made the o the Medical Council of India Inspectors.
ii. who made the representation iii. Whether the representation was believed and acted upon by the Medical Council of India.
48. At this juncture, it is relevant to refer to the observations made by the High Court of Andhra Pradesh in the case of TGL.Groundnut Corporation and others Vs. The Agricultural Market Committee (1985-XXIV-MLJ-608). The relevant paragraph is extracted below:-
On a reading of the aforesaid section, it is clear from the words whoever commits that a person is made personally liable for an offence committed under the act and the liability cannot be extended to any other person merely by virtue of any office or position he holds in a Company of firm. In order to extend the liability for an offence committed under the Act to any individual, it has to be specifically averred in the petition of complaint that particular person is personally guilty of any act of commission or omission which tantamount to an offence punishable under the Act.
49. Further, a perusal of the statements of witnesses do not show that any of the Respondents had dishonest intention to cheat the Medical Council of India. The allegations as against the accused do not satisfy the essential criteria of whoever the basic requirement of cheating. For the offence of cheating, the stress is on the syllable whoever. The definition of whoever is the person or people who; any person who. Thus, it is imperative that the person who makes the representation, which he knows to be false can only be saddled with cheating.
50. On reading the charge sheet, it is seen that there is no averment in the charge sheet and its accompaniments even to suggest that the Respondents herein had made any representation much less a deceptive one to the Medical Council of India Inspectors. There is no sufficient material on the basis of which any charge could be framed against the Respondents.
51. The Respondents have been charge sheeted for the alleged offence of conspiracy under Section 120B of IPC. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing by illegal means, act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience, direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent and acceptable evidence.
52. Merely levelling charge of conspiracy, without mentioning how, where, when and which of the conspirators hatched the conspiracy is not sufficient to mulct criminal liability on the Respondents. The purpose or circumstances warranting an inference of existence of a conspiracy should be stated so as to bring the Respondents to face the trial in criminal court. A complaint should make out a prima facie case against the accused persons and one cannot have the construction of a fine superstructure without a foundation as observed in K.S.Narayanan Vs. Gopinathan (1982-Crl.LJ-1611). There must be prima facie evidence that a person was a party to the conspiracy and that there was an agreement for that purpose. Anything said or done or written by the conspirators after the formation of the conspiracy will be very material. Thus, to make out an offence of criminal conspiracy, it is not sufficient to establish that a number of persons had a common intention to commit an act opposed to or forbidden by the law and it has further to be proved that they agreed to commit the relevant act. Similarly, the law requires specific proof against each of the conspirators participating in doing a particular criminal offence.
53. There is nothing in the allegations or in the statements of witnesses which can be construed to show that there was a meeting of minds amongst the authorities of the College to commit an offence. Therefore, I am of the considered view that the conclusion arrived at by the learned Additional Chief Metropolitan Magistrate that there was no prima facie evidence to frame charges under Section 420 read with 120B of IPC is fully justified in taking the view and there is no perversity or illegality in the order of discharge passed by the said Court warranting interference by this Court.
54. In the result, these Criminal Revision Cases are dismissed.
06.08.2014 Index:Yes/No Web:Yes/No Srcm Note to Office:-
Issue on 06.08.2014 To:
1. Additional Chief Metropolitan Magistrate, Egmore, Chennai
2. The Additional Superintendent of Police, CBI, Anti Corruption Bureau, CBI/ACB, Chennai
3. The Public Prosecutor, Madras High Court, Madras ARUNA JAGADEESAN, J.
Srcm Pre-Delivery Order in Crl.RC.No.943 and 985/2013 06.08.2014