Bangalore District Court
State By Lokayukta Police Station vs Rajith K S/O Dr.A Radha on 29 December, 2016
IN THE COURT OF THE LXXVIII ADDL.CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE (PCA), AT
BENGALURU
(CCH-79)
Present: Sri. D.T.Devendran, B.A. LL.B.
LXXVIII City Civil & Sessions Judge
& Special Judge, Mayo Hall Unit,
Bengaluru.
Dated this the 29th day of December 2016.
SPl.C.C. No: 142/2004
Complainant: State by Lokayukta Police Station,
Bangalore.
(By Public Prosecutor)
- Vs -
Accused: 1. Rajith K S/o Dr.A Radha, 20 years,
Brindavan, Alamipally, P.O.
Kanhangad, Pin-671315 Kasaragode,
D.T.Kerala.
2. Dr.M.V.Ramana, S/o Varagalappa,
The then Deputy Director of Medical
Education and Chairman of Selection
Scrutiny Committee, Bengaluru.
R/o No.825, 24th main, II nd Phase,
JP Nagar, Bengaluru - 73.
(Abated)
2 Spl.C.C.No.142/2004
3. Dr.A.R.Jairenukaya, S/o L.Revannaiah,
Aged 51 years, the then Deputy Director
of Medical Education and Member
Secretary of Selection Scrutiny
Committee, Now working as Prof : in
Anatomy, Bengaluru Medical College,
Bengaluru. R/o No.2591, 18th main,
11th cross, Indiranagar, Bengaluru.
4. M.R.Prakash, S/o Late M.,R. Raju,
Aged 47 years, FDA, Bengaluru Medical
College, Bengaluru. R/o No.426,
5th cross, IInd Stage, JP Nagar,
Bengaluru.
(Split up)
5. Dr.Lakshmipathi Babu, S/o
Narasimhaiah, Aged 44 years,
Private Medical Practitioner,
R/o No.242, 1st cross,
IInd Block, IIIrd Stage, Banashankari,
Bengaluru-85.
(A.1 - By Sri. B.C.Venkatesh;
A.3 - By Sri. M.Sharass Chandra;
A.5 - By Sri. A.Sampath; Advocates)
Date of commission of Prior to 19.02.1994
offence
Date of report of occurrence 19.02.1994
Date of arrest of accused:
Accused No.1 Not known
Accused No.3 14-02-1995
Accused No.5 Not known
3 Spl.C.C.No.142/2004
Date of release of accused
on bail:
Accused No.1 05-08-2004
Accused No.3 14-02-1995
Accused No.5 06-07-2004
Date of commencement 31-03-2011
of evidence
Date of closing of 29-06-2016
evidence
Name of the complainant M.Gangi Reddy
Offences complained of U/S.120B, 420, 468,
109 IPC and u/s 8, 9,
12 13(1)(d)(i) r/w 13
(2) of PC Act, 1988.
Opinion of the Judge Acquittal
Date of Judgment: 29-12-2016
....
JUDGMENT
The Dy.S.P. City Division, Karnataka Lokayukta, Bengaluru has filed this charge sheet against accused persons for the offences punishable under Sections 120B, 420, 468, 109 of IPC and under Sections 8, 9, 12, 13(1)(d)(i) r/w 13(2) of the Prevention of Corruption Act, 1988.
2. This is one among the cases relating to the irregularities and malpractices committed in selection of 4 Spl.C.C.No.142/2004 candidates for the first year MBBS course for the year 1993-94. The selection of candidates for MBBS course has its own history. Prior to 1985 admission to the professional colleges was based on the marks obtained in the PUC or equivalent qualifying examination. From the academic year 1985 the Karnataka State Government has introduced Common Entrance Test (hereinafter called as CET) for this purpose. A committee constituted by the Government took a decision to conduct CET for the year 1993-94 for admission to the professional courses on 16.07.1993 and 17.07.1993. In the meanwhile as the private colleges were charging exorbitant fees several enactments and many Government orders have been issued. This resulted in number of cases being filed before the courts across the country. The Constitutional Bench of the Hon'ble Supreme Court in the case of Unnikrishnan -Vs- State of UP reported in 1993(1) SCC 6 has formulated a scheme to be followed by the state Governments for admission to the professional courses. In the light of said directions our 5 Spl.C.C.No.142/2004 Government has framed the Karnataka Selection of candidates for admission to Engineering, Medical, Dental, Pharmacy and Nursing Courses Rules, 1993 (herein after referred as Rules for brevity). Pursuant to the said Rules the Government vide its order dated 10.03.1993 has constituted the Entrance Test Committee consisted of Prof. M.I.Savadatti, Vice Chancellor, University of Mangalore as the Chairman, Prof. P.V.Bhandari, the Director of Technical Education, Bengaluru as Member Secretary, Dr.M.V.Ramanna, the Director of Medical Education, Bengaluru, Heads of the Science and Technical Departments of Indian Institute of Science, Bengaluru as the members. The committee has authorized the member Secretary to make preliminary arrangements for conducting the test and in its meeting dated 10.05.1993 has ratified the decision of the earlier committee to conduct Entrance Examination on 16.06.1993 and 17.06.1993.
6 Spl.C.C.No.142/2004
3. After conducting the examination the valuation of answer papers was done through computers at JC College, Mysuru, headed by Prof. Hariharan. The ranks were awarded to the students on the basis of marks secured in the qualifying examination and in CET. The percentage of marks in both the examinations was taken on an average and the candidate's rank was fixed. Though Rule 9 mandates publication of merit list atleast in two daily newspapers, in violation of the Rules the results were published on 07.08.1993 in the office of Director of Technical Education, Nodal Centers, Directorate of Technical Education of various States and the Karnataka Bhavana, New Delhi. The first selection list under payment category was published in the newspapers on 15.10.1993 showing the allotment of seats of candidates and the colleges allotted. The second list was published on 24.10.1993 and the admission for the second list was commenced from 26.10.1993. The Director of Medical Education has also called the candidates upto the rank of 6000 for spot allotment on 29.10.1993. In the 7 Spl.C.C.No.142/2004 meantime as the Government received certain complaints and also on the proposal of the Director of Medical Education in pursuance of Rule 14, the Government vide its order dated 09.09.1993 has formed a Selection Scrutiny Committee consisting of the deceased accused No.2 who was the Director of Medical Education as Chairman, accused No.3 the then Deputy Director of Medical Education as Member Secretary, the Joint Director of Medical Education, Principals of Bengaluru Medical College, Dental College, Pharmacy College and Nursing College as members to scrutinize the candidature of selected students. As there were allegations against the Chairman and Member Secretary of the Selection Scrutiny Committee they were asked to go on leave placing Dr. S.Kantha as in-charge Chairman who was one of the members. Dr. S.Kantha the in- charge Chairman while comparing the records found that 26 candidates who secured low ranking numbers conspiring with accused No.2 to 5 putting higher rankings illegally secured the 8 Spl.C.C.No.142/2004 medical seats and thereby denied opportunity to the meritorious students.
4. Immediately she took steps to cancel the illegal admissions of 26 candidates. Challenging the cancellation of their admissions many students have approached the Hon'ble High Court. Though at the first instance the Hon'ble High Court has granted stay order, later has dismissed the writ petitions. Aggrieved by the dismissal of writ petitions some of the candidates have approached the Hon'ble Supreme Court and by virtue of the orders passed in the case of Anil Baipadithaya and ors -Vs- State of Karnataka reported in (1995) 6 SCC 531 they continued their studies. In the meantime Dr. S.Kantha has written a letter to the Government for referring the matter to the Lokayukta enquiry. Accordingly, the Government vide its letter dated 03.02.1994 invoking Sec. 7(2)(A) of the Karnataka Lokayukta Act, 1984 has sent a proposal to make a detail enquiry, preferably by the Upa-Lokayukta. However, it appears contrary to the proposal of Government the Superintendent of 9 Spl.C.C.No.142/2004 Police, Karnataka Lokayukta on the basis of reference made by the Government has conducted a preliminary enquiry and found that accused No.5 a private practitioner who was old student of Bengaluru Medical College (BMC) conspired with the Selection Scrutiny Committee members to give fake rank number to accused No.1 to get a medical seat. It is also found that the Selection Scrutiny Committee has wrongly left its function to be performed by accused No.3 enabling him to issue selection intimation and admission letters. In pursuance of conspiracy accused No.3 has issued admission letter and selection intimation using a fake rank number for obtaining admission. Thus, having found material in the reference made by the Government that there was large amount of malpractices and irregular admissions, he has prepared a report and directed the Dy.S.P. to register the separate cases in respect of each candidate. Accordingly, several cases came to be registered including the present one showing Dr. S.Kantha as one of the accused. Then, the Lokayukta Police conducted investigation, 10 Spl.C.C.No.142/2004 made search of the houses of accused Nos.2 & 3, the houses and clinic of accused No.5 and seized certain documents. During the course of investigation, the Lokayukta police have examined several witnesses and colleted number of documents. The accused Nos.2 to 5, have obtained anticipatory bail. Later the accused No.2 reported dead. Therefore, the investigating agency obtaining sanction order to prosecute accused Nos.3 and 4 the public servants has filed the present charge sheet showing accused No.2 as abated.
5. After receipt of charge sheet, the court took cognizance of the offences, securing the presence of accused Nos.1 & 3 to 5 has released them on bail. As the accused No.4 jumped out of bail and his presence could not be secured, by an order the case against him came to be split up with a direction to file separate charge sheet. The accused are duly represented through their counsel. As required under Sec.207 of Cr.P.C. the copies of prosecution papers have been furnished. Then hearing both sides by an order dated 11 Spl.C.C.No.142/2004 18.04.2005 it has been held that there are sufficient grounds to frame charge. Challenging the said orders accused No.1 has filed Criminal Revision Petition No.1005/2005 before the Hon'ble High Court. Vide its order dated 19.08.2009 the Hon'ble High Court has dismissed the Revision petition upholding the order to frame charge. Thereafter, charge against accused Nos.1, 3 & 5 came to be framed for the offences punishable under Sections 120B, 420, 468 of IPC and under Sections 8, 9, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 which was read over and explained. As all the three accused have denied the charges levelled against them, the matter was posted for trial.
6. In support of its case while giving up some of the witnesses who reported dead, P.V.Bhandari whose presence could not be secured because of his illness and others as not necessary prosecution in all examined PWs 1 to 14, through them got marked documents as per Ex.P.1 to P.13 and closed 12 Spl.C.C.No.142/2004 its side. Then the accused Nos.1, 3 and 5 have been examined under Section 313 of Cr.P.C. and questioned about incriminating evidence appearing against them. Accused Nos.1 and 5 have totally denied the prosecution evidence as false. Except that the Government has formed Selection Scrutiny Committee wherein he was the Member Secretary accused No.3 has also denied all other evidence. None of the accused has chosen to lead any defence evidence. Hence, the matter was posted for arguments.
7. Heard learned Public Prosecutor for the State and the learned counsel for the accused persons and perused the case papers and the brief notes of arguments.
8. On perusal, the following points arise for my consideration:
1. Whether prosecution proves beyond reasonable doubt that on or about 27.10.1993 accused No.1, 3 and 5 along with deceased accused No.2 and split up accused No.4 entered into an agreement with the fraudulent 13 Spl.C.C.No.142/2004 intention to secure MBBS seat for accused No.1 in payment category got up fraudulent selection committee letter by providing higher CET ranking thereby committed an offence punishable under Sec. 120B of IPC?
2. Whether prosecution proves beyond reasonable doubt that in pursuance of common malafide intention of helping to obtain admission to MBBS course though accused No.1 has secured rank number of 10609 falsely represented that he has secured rank number 1669 belonging to some other candidate making use of it induced the CET to allot payment seat thereby committed an offence punishable under Sec. 420 r/w 34 of IPC?
3. Whether prosecution proves beyond reasonable doubt in pursuance of conspiracy the accused have fabricated fraudulent selection committee letter intending to use it for the purpose of obtaining admission to accused No.1 in AIMS, Bellur and thereby committed an offence punishable under Sec. 468 r/w 34 of IPC?
4. Whether prosecution proves beyond reasonable doubt that on or about 27.10.1993 accused No.3 being a public servant abusing his position by 14 Spl.C.C.No.142/2004 corrupt or illegal means obtained a valuable thing or pecuniary advantage to procure a seat for first year MBBS course to accused No.1 thereby committed an offence punishable under Sec. 13 (1)(d) r/w 13 (2) of Prevention of Corruption Act?
5. Whether prosecution proves beyond reasonable doubt that accused No.5 obtained illegal gratification from accused No.1 as a motive or reward for inducing by corrupt or illegal means accused No.3, the deceased accused No.2 and split up accused No.4 the public servants to provide higher ranking and to fabricate false selection committee letter in exercise of their official function and thereby committed an offence punishable under Sec. 8 of Prevention of Corruption Act?
6. Whether prosecution beyond reasonable doubt that accused No.5 has accepted or obtained illegal gratification as a motive or reward by exercising his personal influence to induce accused No.3, the deceased accused No.2 and split up accused No.4 the public servants to provide higher ranking and to issue fraudulent selection committee letter to accused No.1 and thereby committed an 15 Spl.C.C.No.142/2004 offence punishable under Sec. 9 of Prevention of Corruption Act?
7. What order?
9. My findings to the above points are as under:
Point No.1: In the Negative,
Point No.2: In the Negative,
Point No.3: In the Negative,
Point No.4: In the Negative,
Point No.5: In the Negative,
Point No.6: In the Negative,
Point No.7: As per the final order for the
following:-
REASONS
10. Point Nos.1 to 3:- The prosecution has alleged that accused No.1, 3 and 5 along with deceased accused No.2 and split up accused No.4 have conspired to secure medical seat for accused No.1 and in furtherance of their conspiracy have assigned higher rank number, forged the documents and thereby committed cheating. Since, these three points related to each other, for the purpose of convenience and to avoid repetition, I have taken up their discussion together. 16 Spl.C.C.No.142/2004
11. Before going to analyze and appreciate the evidence adduced in the case it is necessary to have a look on the scheme evolved by the Constitutional Bench of Hon'ble Supreme Court in Unnikrishnan's case (Supra).
SCHEME
206. The scheme evolved herewith is in the nature of guidelines which the appropriate Governments and recognising and affiliating authorities shall impose and implement in addition to such other conditions and stipulations as they may think appropriate as conditions for grant of permission, grant of recognition or grant of affiliation, as the case may be. We are confining the scheme for the present only to 'professional colleges.'
207. The expression Professional colleges' in this scheme includes:
(i) Medical colleges, dental colleges and other institutions and colleges imparting Nursing, Pharmacy and other courses allied to Medicine, established and/or run by private education institutions,
(ii) Colleges of engineering and colleges and institutions imparting technical education including electronics, computer sciences, established and/or run by private educational institutions, and
(i) such other colleges to which this scheme is made applicable by the Government, recognising and/or affiliating authority."17 Spl.C.C.No.142/2004
208. The expression "appropriate authority" means the Government, University or other authority as is competent to grant permission to establish or to grant recognition to a professional college.
209. The expression 'competent authority' in this scheme means the Government/University or other authority, as may be designated by the Government/University or by law, as is competent to allot students for admission to various professional colleges in the given State.
210. It is made clear that only those institutions which seek permission to establish and/or recognition and/or affiliation from the appropriate authority shall alone be made bound by this scheme. This scheme is not applicable to colleges run by Government or to University colleges. In short, the scheme hereinafter mentioned shall be made a condition of permission, recognition or affiliation, as the case may be. For each of them viz., grant of permission, grant of recognition, grant of affiliation, these conditions shall necessarily be imposed, in addition to such other conditions as the appropriate authority may think appropriate. No Private educational institution shall be allowed to send its students to appear for an examination held by any Government or other body constituted by it or under any law or to any examination held by any University unless the concerned institution and the relevant course of study is recognised by the appropriate authority and/or is affiliated to the appropriate University, as the case may be.
(1) A professional college shall be permitted to be established and/or administered only by a Society registered under the Societies Registration Act, 1860 (or the corresponding Act, if any, in force in a given State), or by a Public Trust, religious or charitable, registered under the Trusts 18 Spl.C.C.No.142/2004 Act, Wakfs Act (or the corresponding legislation, if any, e.g., Tamil Nadu Religious and Charitable Endowments Act and A.P. Religious and Charitable Endowments Act). No individual, firm, company or other body of individuals, by whatever appellation called except those mentioned above will be permitted to establish and/or administer a professional college. All the existing professional colleges which do not conform to the above norm shall be directed to take appropriate steps to comply with the same within a period of six months from today.
In default whereof, recognition/affiliation accorded shall stand withdrawn. (In this connection reference may be had to Rule 86(2) of Maharashtra Grant-in-aid code (referred to in State of Maharashtra v. Lok Shikshan Sanstha, [1971] Suppl. S.C.R. 879 which provided that schools which are not registered under the Societies Registration Act, shall not be eligible for grant. Grant of recognition and affiliation is no less significance).
(2) Atleast, 50% of the seats in every professional college shall be filled by the nominees of the Government or University, as the case may be, hereinafter referred to as "free seats". These students shall be selected on the basis of merit determined on the basis of a common entrance examination where it is held or in the absence of an entrance examination, by such criteria as may be determined by the competent authority or the appropriate to authority, as the case may be. It is, however, desirable and appropriate have a common entrance exam for regulating admissions to these colleges/institutions, as is done in the State of Andhra Pradesh. The remaining 50% seats (payment seats) shall be filled by those candidates who are prepared to pay the fee prescribed therefor and who have complied with the instructions regarding deposit and furnishing of cash security/Bank guarantee for the balance of the amount. The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats. 19 Spl.C.C.No.142/2004 There shall be no quota reserved for the management or for any family, caste or community which may have established such college. The criteria of eligibility and all other conditions shall be the same in respect of both free seats and payment seats. The only distinction shall be the requirement of higher fee by the 'payment students'. The Management of a professional college shall not be entitled to impose or prescribe any other and further eligibility criteria or condition for admission either to free seats or to payment seats. It shall, however, be open to a professional college to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating University. Such reservations, if any, shall be made and notified to the competent authority and the appropriate authority atleast one month prior to the issuance of notification calling for applications for admission to such category of colleges. In such a case, the competent authority shall allot students keeping in view the reservations provided by a college. The rule of merit shall be followed even in such reserved categories.
(3) The number of seats available in the professional colleges (to which this scheme is made applicable) shall be fixed by the appropriate authority. No professional college shall be permitted to increase its strength except under the permission or authority granted by the appropriate authority.
(4) No professional college shall call for applications for admission separately or individually. All the applications for admission to all the seats available in such, colleges shall be called for by the competent authority alone, along with applications for admission to Government/University colleges of nature. For example, there shall be only one notification by the competent authority calling for applications for all the medical colleges in the State and one notification for all the engineering colleges in the State and so on. The application forms for 20 Spl.C.C.No.142/2004 admission shall be issued by the competent authority (from such offices, centres and places as he may direct). The application form shall contain a column or a separate part wherein an applicant can indicate whether he wishes to be admitted against a payment seat and the order of preference, up to three professional colleges.
(5) Each professional college shall intimate the competent authority, the State Government and the concerned University in advance the fees chargeable for the entire course commencing that academic year. The total fees shall be divided into the number of years/semesters of study in that course. In the first instance, fees only for the first year/semester shall be collected. The payment students will be, however, required to furnish either cash security or bank guarantee for the fees payable for the remaining years/semesters. The fees chargeable, in each professional college shall be subject to the ceiling prescribed by the appropriate authority or by a competent Court. The competent authority shall issue 'a brochure, on payment of appropriate charges, along with the application form for ad- mission, giving full particulars of the courses and the number of seats available, the names of the colleges their location and also the fees chargeable by each professional college. The brochure will also specify the minimum eligibility conditions, the method of admission (whether by entrance test or otherwise) and other relevant particulars.
(6)(a) Every State Government shall forthwith constitute a Committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges, as the case may be. The Committee shall consist of a Vice- Chancellor, Secretary for Education (or such Joint Secretary, as he may nominate) and Director, Medical Education/Director Technical Education. The committee shall make such enquiry as it thinks 21 Spl.C.C.No.142/2004 appropriate. It shall however, give opportunity to the professional colleges (or their association(s), if any) to place such material, as they think fit. It shall, however, not be bound to give any personal hearing to anyone or follow any technical rules of law. The Committee shall fix the fee once every three years or at such longer intervals, as it may think appropriate.
(b) It would be appropriate if the U.G.C. frames regulations under Section 12A (3) of the U.G.C. Act, regulating the fees which the affiliated colleges, operating on no-grant-in- aid basis, are entitled to charge. The Council for Technical Education may also consider the advisability of issuing directions under Section 10 of the A.I.C.T.E. Act regulating the fees that may be charged in private unaided educational institutions imparting technical education. The Indian Medical Council and Central government may also consider the advisability of such regulation as a condition for grant of permission to new medical colleges under Section 10-A and to impose such a condition on existing colleges under Section 10- C.
(c) The several authorities mentioned in sub-paras (a) and ((1) shall decide whether a private educational institution is entitled to charge only that fee as is required to run the college or whether the capital cost involved in establishing a college can also be passed on to the students and if so, in what manner. Keeping in view the need, the interest of general public and of the nation, a policy decision may be taken. It would be more appropriate if the Central Government and these several authorities (U.G.C., I.M.C. and A.I.C.T.E.) coordinate their efforts and evolve a broadly uniform criteria in this behalf. Until the Central Government, U.G.C., I.M.C. and A.I.C.T.E. issue order/regulations in this behalf, the committee referred to in the sub-para (a) of this para shall be operative. In other words, the working and orders of the committee shall 22 Spl.C.C.No.142/2004 be subject to the orders/regulations, issued by Central Government, U.G.C., I.M.C. or A.I.C.T.E., as the case may be.
(d) We must hasten to add that what we have said in this clause is merely a reiteration of the duty nay, obligation placed up on the Governments of Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu by their respective legislatures to wit, Section 7 of Andhra Pradesh Act 5 of 1983, Section 4 of Maharashtra Act 6 of 1988, Section 5 of Karnataka Act of 1984 and Section 4 of Tamil Nadu Act 57 of 1992. Other States too may have to have similar provisions, carrying statutory force.
(7) Any candidate who fulfils the eligibility conditions would be entitled to apply for admission. After the free seats in professional colleges are filled up, atleast 10 days' time will be given to the candidates (students) to opt to be admitted against payment seats. The candidates shall be entitled to indicate their choice for any three colleges (if available). In such a case, he shall comply with the deposit and cash security/Bank guarantee - taking the institution charging the highest fees as the basis within the said period of ten days. If he is admitted in an institution, charging less fee, the difference amount shall be refunded to him. (The cash security or Bank guarantee shall be in favour of the competent authority, who shall transfer the same in favour of the appropriate college if that student is admitted).
(8) The results of the entrance examination, if any, held should be published atleast in two leading newspapers, one in English and the other in vernacular. The payment candidates shall be allotted to different professional colleges on the basis of merit-cum-choice. The allotment shall be made by the competent authority. A professional college shall be bound to admit the students so allotted. The casual vacancies or unfilled vacancies, if any, shall also be filled in the same manner. The 23 Spl.C.C.No.142/2004 management of a professional college shall not be permitted to admit any student other than the one allotted by the competent authority whether against free seat or payment seat, as the case may be. It is made clear that even in the matter of reserved categories, if any, the principle of inter se merit shall be followed. All allotments made shall be published in two leading newspapers as aforesaid and on the notice boards of the respective colleges and at such other places as the competent authority may direct, along with the marks obtained by each candidates in the relevant entrance test or qualifying examination, as the case may be. No professional college shall be entitled to ask for any other or further payment or amount, under whatever name it may be called, from any student allotted to it whether against the free seat or payment seat.
(9) After making the allotments, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test/examination. The said list shall be followed for filling up any casual vacancies or 'drop-out'-vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the competent authority. Any vacancies still remaining after such date can be filled by the Management.
211. It is made clear that it shall be open to the appropriate authority and the competent authority to issue such further instructions or directions, as they may think appropriate not inconsistent with this scheme, by way of elaboration and elucidation.
212. This scheme shall apply to and govern the admissions to professional colleges commencing from the academic year 1993-94.
24 Spl.C.C.No.142/2004
12. Pursuant to the said directions our state Government has framed the Rules, the relevant provisions are extracted as follows;
6. Determination of Merit : - The merit shall be determined by taking the marks obtained in the Entrance Test and the optional subjects in the qualifying examination in equal proportion.
xxx Provided that where the merit of two or more candidates is the same, the interse merit shall be determined with reference to the marks obtained in the Entrance Test in Mathematics in the case of Engineering and allied courses and in Biology in the case of Medical and allied courses and where the marks obtained in such cases are equal, then the interse merit shall be determined on the basis of marks obtained in Physics in the case of Engineering and the allied courses and in Chemistry in the case of Medical and allied courses. Where the marks obtained for equal again the interse merit shall be determined on the basis of the age of candidate, the older candidate placed above the younger.
7. Procedure for Selection of Candidates:- The procedure for the selection of candidates for admission to Institutions against ' free seats' shall be as follows:-
xxx
9. Preparation and Publication of General Merit List:-
(1) The Entrance Test Committee constituted under sub-
rule (1) of Rule 8 shall prepare the general merit list of all candidates who have appeared for the Entrance Test in 25 Spl.C.C.No.142/2004 accordance with Rule 6 and cause the publication of the said list in atleast two daily newspapers-one English and the other Kannada having vide circulation in the State and in the Notice Board of all the Universities in the State and the office of the Director and such other public places as may be determined by the said committee. The General Merit List shall be forwarded to the Director who shall sent the same to all the Institutions.
11. Selection of Candidates against 'payment seats':-
(1) The following candidates shall be eligible for selection for admission to the 'payment seats':-
(a) Candidates who have been selected for admission to a seat in any Institution under the 'free seats' category who have also obtained for 'payment seats', or payment of such cash security or Bank Guarantee, as specified by the Committee, within 10 days from the date of publication of the list under Rule 10.
(b) Candidates remaining in the general merit list and who have already exercised option to be considered for selection under 'payment seats' category and within 10 days from the date of publication of the list prepared under Rule 10 furnish cash security or bank guarantee as specified by the Committee.
(c) xxx
(d) The Director of Technical Education shall prepare a list of all the applicants who have appeared in the Entrance Test and opted for being considered for Selection under 'payment seats'.
(e) A list called the 'select list for payment seats' shall be prepared from among the candidates noted above based on merit and the allotment of courses or institutions shall be done in the order of merit based on the preferences of the candidates and the availability of seats in the preferred Institution or Course.26 Spl.C.C.No.142/2004
(f) A second list called the 'eligibility list of remaining candidates' shall be prepared in the order of merit and the said list shall be followed for filling up any casual or drop out vacancies after giving change of Institution/course to higher merit candidates already admitted. No admission to these seats shall be made after the last day fixed by the Government.
xxx
13. List of Selected Candidates:-
(1) The Director shall prepare a list of candidates finally selected for admission to various courses in the institutions and send copies thereon to the principals of the institutions for giving wide publicity not exceeding ten days before the last date of admission as fixed by the Government. This list shall contain not only the names but also the rank in the merit list, the class of reservation, if any. The selections shall be notified by the Director by publication in atleast two daily newspapers -
one English and the other Kannada - having wide circulation in the state or letters by registered post to the candidates to facilitate the candidates to report to the respective institutions fixing a date before which the candidate should get admitted to the institution. If the candidate fails to get himself admitted within the date fixed, the admission shall automatically stand forfeited without any further notice to the candidate.
(2) All selections made shall be subject to verification of the original marks card and physical fitness by the principals of the concerned institutions to which they are admitted and also by the concerned University.
14. Selection Scrutiny Committee and its functions:-
(1) There shall be a Selection Scrutiny Committee constituted by the Government with the Director as the Chairman and such other members as may be specified. The 27 Spl.C.C.No.142/2004 Chairman also may invite specialist in the field as invitees to assist the Committee.
(2) The Selection Scrutiny Committee shall scrutinize all the documents required to be produced by the candidates under these rules and shall record its views in the matter.
(3) In all matters under sub-rule (2) above, the decision of the Committee shall, subject to any general or special orders of Government in this regard be final.
13. The learned Public Prosecutor taking me through the evidence adduced in the case submits that the act of conspiracy though not apparently visible it can very well ascertained from the relevant facts of the case. It is his submission that the accused No.1 has filled the Ex.P.6 admission letter in his own handwriting and submitted it before the scrutiny committee. The committee approving the same allotted seat assorting the rank number of another student. This clearly goes to show that accused no.1 succeeded in getting admission without his admission letter passing through the usual screening process. By no stretch of imagination it can be said that due to oversight the accused no.1 has wrongly 28 Spl.C.C.No.142/2004 mentioned his CET rank Number. It is his submission that accused No.1 being the beneficiary it can safely be presumed that he willfully misrepresented his CET rank number in order to wrongfully claim MBBS payment seat for which he was not otherwise entitled to. The learned public prosecutor submits that the facts go to show the hidden agreement between the accused. It is his submission that there was league between parties, to do a punishable act by illegal means, to secure seat in the college by depriving the public. Since conspiracy is secretly planned and direct evidence is difficult to produce submits that the conspiracy has to be presumed, even under Sec.20 of the Prevention of Corruption Act. I do not agree with the learned Public Prosecutor with regard to drawing presumption under Section 20 of the Prevention of Corruption Act, as in the case of B.Jayaraj -Vs- State of A.P. reported in (2014) 13 SCC 55 it has been held that in so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of 29 Spl.C.C.No.142/2004 the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act.
14. The learned Public Prosecutor submits that even though the petitions filed by some of the candidates were allowed by the Supreme Court in its judgment reported in (1995)6 SCC 531 has held that 'we strongly decry and condemn the fraud played by the applicants, the present is not an occasion where any punishment is deserved at the behest of one who is not prepared to punish the main culprit, as the members of SSC have to be regarded, because, but for their active role, the appellants would not have succeeded in their highly objectionable and deplorable act'. Such being the findings there is no need for further proof of the offences alleged against the accused.
15. Per contra the learned counsels appearing for accused submit that the allegations made are vague and general. The details of the conspiracy are conspicuously lacking. The charge 30 Spl.C.C.No.142/2004 sheet papers do not disclose as to who were the parties to the alleged conspiracy and what was the plan hatched by them and whether all or any of the parties had received any illegal gratification, if so, what is the unlawful gain made by each of the co-conspirators and whether all of them received illegal gratification, if so from whom. All these essential elements making out the offence under Sec. 120B are left to the imagination and merely by using the legal terminology, charges are foisted without there being any reliable and admissible material showing the involvement are overact of the accused.
16. The Learned counsel for accused No.1 has further argued that accused No.1 as well as other 25 candidates who are alleged to have obtained seat have already completed the MBBS course and their admission is upheld by the Supreme Court in a decision reported in (1995) 6 SCC 531 which presupposes that there was no fraud or criminal conspiracy or violation of any rules or regulations in securing admission to the 31 Spl.C.C.No.142/2004 MBBS course. It is also contended that the rank of the candidates was not widely published and under the said circumstances accused No.1 has given his ranking in the application form without any malicious intention and that the admission of accused No.1 is not challenged by any other eligible candidate and there is no material to show that accused No.1 has deprived any other meritorious student.
17. In support of their submission the learned counsels for accused relied on certain rulings. In the case of Hari Sao and Anr -Vs- the State of Bihar reported in 1969(3) SCC 107 the Hon'ble Supreme Court has held that under Sec.415 of the IPC a person is said to cheat when he by deceiving another person fraudulently or dishonestly induces the person so deceived to deliver any property to him or to consent that he shall retain any property or intentionally induces the persons so deceived to do or omit to do anything which he would not do or omit if he was not so deceived and which act or omission 32 Spl.C.C.No.142/2004 causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Considering the fact that there was no damage or harm caused to the Railways in that case, the Hon'ble Supreme Court has held that no question of cheating therefore arose. With regard to an offence under Sec.468 of IPC the learned counsel for accused No.1 relying on the ruling of Parminder Kaur -Vs- State of UP reported in (2010)1 SCC 322 submits that it is an aggravated form of forgery under Sec.463. The learned Public Prosecutor submits that Sec.468 does not require that accused actually commit the offence of cheating. What is material is the intention, purpose of the offender in committing forgery. The ingredient is committing of forgery with the particular intent, that intent being the documents forged should be used for the purpose of cheating. The Section does not require that accused should actually commit the offence of cheating of forgery which is an usual act done in furtherance of some criminal desire. In the 33 Spl.C.C.No.142/2004 light of rival submission addressed let me turn to the evidence adduced in the case.
18. Among 14 witnesses examined in the case PW.1 N.S.Rama Rao in his evidence has stated that in connection with CET exams held in the year 1993 as a nominee of Director of Technical Education he was supervising. He has further stated that he was assisting the Computer Section System Manager Prof. Hariharan (now deceased). He used to carry the answer sheets to JC College, Mysuru and was bringing back the rank list and handing it over to Director of Technical Education (DTE). In his cross-examination this witness has specifically stated that the selection scrutiny committee members have not visited the computer section of JC College, Mysuru where the rank list was prepared. As no rank list as stated by this witness has been produced before the court, his evidence is of no assistance to prove the charges alleged against accused. PW.4 Lokaraj the then under secretary to the Government, 34 Spl.C.C.No.142/2004 department of medical education in his evidence identifying Ex.P.7 has said that after necessary legal formalities he has issued the notification regarding constitution of Selection Scrutiny Committee. PW.9 Smt. Joyce Surendra, the then under Secretary to the Government, DPAR Services in her evidence has said that during her tenure she received complaint from the Principal, Bengaluru Medical College(BMC) a report was forwarded and the same was filed with Lokayukta police. During the course of cross-examination with witness has said that she had no any personal knowledge over the activities.
19. PW.2 Narayana and PW.8 Khasim Sab were deputed by PW.6 to assist Selection Scrutiny Committee as requested by deceased accused No.2. PW.8 said that as per the instructions, he was distributing the blank admission application form to the candidates with instructions to fill and hand over to PW.2. He has identified Ex.P.6 may be the form which he has distributed. PW.2 in his evidence has said that 35 Spl.C.C.No.142/2004 selection of second list under the payment category was conducted for the candidates of Karnataka as well as students from other States from 26.10.1993 to 29.10.1993 upto 2 p.m. It is also his evidence that the candidates after getting the blank form from PW.8 filling it used to come to him along with enclosures. He was verifying the documents at Sl. Nos.1 to 6 comparing with the CET selected ranking list which was supplied by the office of Director of Medical Education (DME). He used to see the candidate as well as his photo. After everything was found out to be correct, he used to write the college code and put his initials, sending the candidates before the Selection Scrutiny Committee. He has identified Ex.P1 (Subsequently marked as Ex.P.5 and Ex.P.6) the admission letter of accused No.1 and Ex.P2 the admission letter of one Kavitha Ramachandran. During the course of his cross- examination this witness has said that he had mentioned college code on all the application but put his signature on 36 Spl.C.C.No.142/2004 some of the applications and on some applications he has not put his signature.
20. PW.6 Dr. S.Kantha in her evidence has stated that Dr. Ramanna (Abated) was the Chairman of the Selection Scrutiny Committee in the capacity of Director of Medical Education. As there were complaints of malpractice and fraudulent acts he was asked to go on leave and she was asked to take charge of his place. It is her further evidence that during perusal of applications she entertained doubt, therefore started verifying the applications thoroughly. During her verification she has found there were 26 instances of misusing the ranks and ignoring the deserving candidates. The higher ranks were allotted to the candidates even though they had secured lower ranks and were not eligible for admission. Therefore, she has cancelled the admission of those 26 candidates including the admission of accused No.1 of this case and intimated to the concerned colleges. In this regard she has identified the copy of cancellation provisional admission 37 Spl.C.C.No.142/2004 letter as per Ex.P.9 and the copy of paper publication as per Ex.P.10.
21. The counsel for accused vehemently submitted that it is only this witness has caused illegalities and in order to cover up her misdeeds and to take revenge against Dr. Ramanna with whom she had personal differences has used the situation and wrote a letter to the Government. It is also their submission that even though the Hon'ble High Court of Karnataka and Apex Court has directed to hold further investigation nothing has been done. PW.6 in her evidence has admitted that some cases were filed against her in the courts and in three cases she has been shown as accused but, expressed her innocence about the directions issued by the Supreme Court to hold enquiry against her.
22. PW.13 G.Basavaraju is an important witness in his evidence has stated that on receipt of the reference of the Government through the Registrar for conducting an enquiry regarding malpractices at the time of admission to medical 38 Spl.C.C.No.142/2004 colleges for the year 1993. After going through the documents having found malpractices he has directed PW.10 to register the case. It is his evidence that during his enquiry it is revealed that by an order dated 09.09.1993 the Government has set up Selection Scrutiny Committee for scrutinizing the applications consisted of Dr.M.V.Ramanna as the Chairman, Dr.A.Jai Renukarya and Dr. S.Kantha, Principal, Bengaluru Medical College and others. According to him it was the duty of Selection Scrutiny Committee to verify the documents and if they are in order to issue admission letter. He has also spoken about the procedure and further deposed that on 29.10.1993 accused No.3 has issued admission letter to accused No.1 though who has secured rank number of 10609 by giving fake number as 1669. According to him there was credible information that accused No.5 had a criminal conspiracy with other accused to get a seat to accused No.1 and in this regard he has prepared a report as per Ex.P.12. During the course of cross-examination this witness has said that he has ascertained 39 Spl.C.C.No.142/2004 the procedure from accused No.3 but he has not mentioned the same in his report. It is his admission that he has not enquired with CET authorities about how they prepared the rank list. It is his specific admission that he has verified only the documents which were sent along with the reference. Though he has denied the suggestion that he has filed false report basing on the report of Dr. S.Kantha, on the close scrutiny of Ex.P.12 it clearly goes to show that it is edited copy of report alleged to have been submitted by PW.6 Dr. S.Kantha to the Government.
23. PW.3 A.Bharathi the then Secretary to Bengaluru Medical College (BMC) in her evidence has stated that she was acquainted with the signature of accused No.3 and accordingly she has identified the signatures of accused No.3 marked as Ex.P.3 in Ex.P.4, P.5 in Ex.P.6. In this case the prosecution has sent the signatures and handwritings of accused No.1 and 3 for expert opinion. PW.11 C.Ashwathappa the then Asst. Director (Questioned Documents) referring to Ex.P.13 has said that the 40 Spl.C.C.No.142/2004 signatures and the handwritings were of accused No.1 and 3. During the course of his cross-examination this witness has admitted that he has not personally analysed any documents sent for examination. In view of the fact that accused No.3 did not dispute his above signatures, evidence of these witnesses is of little assistance to the prosecution.
24. PW.5 Madhusudhan in his evidence has stated that on 23.02.1994 he accompanied the Lokayukta officials to the house of accused No.5 situated at Banashankari where the police conducted search operations and seized certain documents under a mahazar as per Ex.P.8. Though this witness has denied the suggestion that no mahazar was conducted in his presence, none of the documents alleged to have seized from the house of accused No.5 are produced before the court to know how they are relevant to this case. So, the evidence of this witness is of no help to prove the charges leveled against accused.
41 Spl.C.C.No.142/2004
25. PW.10 M.Gangireddy, the then Dy.S.P in his evidence has stated that on 19.02.1994 on receipt of report from PW.13 having registered the case in Cr.No.11/1994 and handing over the case file to P.K.Shivashankar, Police Inspector. PW.12 Narayanappa, the then Dy.S.P in his evidence has said about receipt of sanction order as per Ex.P.11. PW.7 M.Shivakumarswamy, the then Under Secretary, Health and Family Welfare Department in his evidence identifying Ex.P.11 has stated about issue of sanction order to prosecute.
26. PW.14 A.N.Rajanna the then Dy.S.P in his evidence has said that on 25.03.2004 he took up further investigation of this case from Ashok Sadalgi and on verification having found that draft charge sheet was prepared, he has submitted charge sheet to the court. During the course of cross-examination he has stated he has not conducted any further investigation pursuant to the directions issued in W.P.No.29434/1998 (ILR 42 Spl.C.C.No.142/2004 2000 KAR 4385 A.Ramadas -Vs- State of Karnataka). He has denied the suggestion that even though there was enough material instead of filing charge sheet against Dr. S.Kantha he made her as one of the witness to the case.
27. PW.13 in his evidence has said that as per order dated 09.09.1993 the Government has set up Selection Scrutiny Committee consisting of Director of Medical Education i.e. Dr.Ramanna deceased accused No.2 as Chairman, Deputy Director of Medical Education, Dr.Jai Renukarya, Accused No.3 as Member Secretary and Dr. S.Kantha, the Principal, Bengaluru Medical College as member. PW.4 identifying the said order as per Ex.P.7 said that he only issued it. As could be seen from the order apart from three persons as stated by PW.13 the Joint Director of Medical Education, the Principals of Bengaluru Dental College, Pharmacy College and Nursing College were also Members. It is very unfortunate to note that except PW6 Dr. S.Kantha other members were totally un-aware of constituting Selection Scrutiny Committee nominating them 43 Spl.C.C.No.142/2004 as members. Thus, there arises doubt about who constituted the Selection Scrutiny Committee.
28. PW.6 in her evidence has further said that after coming to know the irregular admission, she has cancelled the admissions and intimated the concerned colleges. At this stage a question would arise as to the power of PW.6 to cancel the admissions. No material has been produced before the court to show that she had any such powers or she has taken permission from the Government to do so. Therefore, challenging the cancellation of their admissions some of the candidates have approached the Hon'ble High Court of Karnataka and got the stay order. Though the Hon'ble High Court later has dismissed the writ petitions, some of the candidates had approached the Hon'ble Supreme Court and got further stay. During the pendency of such cases, the Hon'ble Supreme Court has directed our Hon'ble High Court to nominate a District Judge to hold an enquiry. Accordingly, our 44 Spl.C.C.No.142/2004 Hon'ble High Court appointed Sri. T.Mahesh Hegde, District Judge to conduct an enquiry. The said District Judge in his enquiry report apart from finding that the Chairman and Member of Selection Scrutiny Committee were guilty has noticed the non-publication of merit list and also held that the candidates were otherwise eligible to be selected have not deprived other merited students of their legitimate seats.
29. In this case the prosecution has not produced the general merit list and select lists to know what was the rank number assigned to the accused No.1. The Supreme Court judgment and the Rules mandated for publication of ranks atleast in two daily newspapers. It has been argued by the counsel for accused that there was violation of rules. The burden is on the prosecution to prove that the accused No.1 has secured a particular rank number but he has entered the fake number. No doubt PW.6 and PW.13 have said that accused No.1 was holding rank of 10609 to substantiate their evidence no material has been produced. No doubt 45 Spl.C.C.No.142/2004 prosecution in this case has filed an application under Section 294 of Cr.P.C. calling upon the other side either to admit or deny the documents. But the prosecution has not produced the relevant documents to show the ranking secured by accused No.1. Under the circumstances, it is very difficult to accept that the candidates were aware of their ranking. It has been alleged by the prosecution that accused No.1 has entered the fake rank number in Ex.P.1 (subsequently again marked as Ex.P.5 and P.6) the admission letter. In my opinion it has to be issued by the authorities. Therefore, the candidates were not supposed to fill up the details therein. In the result, I am not agreeable with the prosecution that by filling Ex.P.1 with fake rank number accused have committed the offences as alleged against them.
30. Now the next point requires to be answered is the power of Selection Scrutiny Committee. As already said pursuant to the Rules the Government has formed the Selection Scrutiny Committee. The functions of Selection Scrutiny 46 Spl.C.C.No.142/2004 Committee fairly spell out in Rule 14. The Rule reads as follows:-
14. Selection Scrutiny Committee and its functions:-
(1) There shall be a Selection Scrutiny Committee constituted by the Government with the Director as the Chairman and such other members as may be specified.
The Chairman also may invite specialist in the field as invitees to assist the Committee.
(2) The Selection Scrutiny Committee shall scrutinize all the documents required to be produced by the candidates under these rules and shall record its views in the matter.
(3) In all matters under sub-rule (2) above, the decision of the Committee shall, subject to any general or special orders of Government in this regard be final.
The operative portion of order dated 09.09.1993 issued pursuant to Rule 14 reads as follows:-
¸ÀPÁðj DzÉÉñÀ ¸ÀASÉå B DPÀÄPÀ 56 JA¦J¸ï 93 ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ B 9-9-1993 47 Spl.C.C.No.142/2004 ¥Àæ¸ÁÛªÀ£ÉAiÀÄ£ÀÄß ¥Àj²Ã°¸À¯ÁV, PÀ£ÁðlPÀ gÁdåzÀ ªÉÄrPÀ¯ï, qÉAl¯ï, ¥sÁgÀä¹ ºÁUÀÆ £À¹ðAUï PÁ¯ÉÃdÄUÀ½UÉ 1993-94£Éà ¸Á°£À°è DAiÉÄÌ ºÉÆA¢zÀ C¨ÀsåyðUÀ¼À ¥Àj±ÉÆÃzÀs£ÉUÁV ªÉåzÀåQÃAiÀÄ ¤zÉðñÀPÀgÀ CzÀsåPÀëvÉAiÀÄ°è, ¥Àæ¸ÁÛªÀ£ÉAiÀÄ°è ¸ÀÆa¹zÀ DAiÉÄÌ ¥Àj±ÉÆÃzÀs£Á ¸À«ÄwAiÀÄ£ÀÄß gÀa¸À®Ä ªÀÄAdÆgÁwAiÀÄ£ÀÄß ¤Ãr DzÉñÀ ºÉÆgÀr¸À¯ÁVzÉ. [Emphasis by me] From the combined reading of the Rule 14 with Ex.P.7 the order dated 09.09.1993 the Selection Scrutiny Committee was asked to scrutinize the candidature more particularly testimonials of selected candidates. Thus, it is clear that only the selected candidates were suppose to appear before the Selection Scrutiny Committee for the purpose of verification.
Therefore there arises doubt about the power of Selection Scrutiny Committee to select the candidates. When the Selection Scrutiny Committee had no power to select the candidates it cannot be believed that the Selection Scrutiny Committee has committed malpractices in the selection of candidates for admission to the First Year MBBS Course.48 Spl.C.C.No.142/2004
31. The learned counsel appearing for accused submitted that the Selection Scrutiny Committee and others were under tremendous pleasure as there was direction from the Hon'ble Supreme Court and the orders of State Government prescribing the date for completion of selection and admission process.
32. In this case, the learned Public prosecutor submitted that the statement of accused recorded under Sec.313 of Cr.P.C. may be used against them as they were not able to explain or furnish good grounds to get out of circumstances may be relied upon for conviction. As could be seen from the statement of accused recorded under Sec.313 of Cr.P.C. the accused Nos.1 and 5 have denied the entire evidence adduced against them. Accused No.3 except that the constitution of Selection Scrutiny Committee wherein he was the Member Secretary has denied all other incriminating evidence appeared against him. Under the circumstances, the burden is on the 49 Spl.C.C.No.142/2004 prosecution to establish the offences alleged against accused beyond all reasonable doubts.
33. The learned counsel for accused No.1 submits that accused no.1 ihails from Kerala. He was an aspirant to secure medical seat in Karnataka. His mother with that purpose had drawn money much earlier to constitution of Selection Scrutiny Committee. Under the circumstances, accused No.1 and his mother had no intention to cheat anyone. On the other hand, on the guise of providing medical seat they have been duped with money. They are the real victims. It is his submission that after smelling something accused No.1 has given up his seat and after vesting two three his precious years later, secured a seat in different college. Thus, he is not a beneficiary of the alleged irregularities or malpractices. The learned counsel in support of his submission has relied on the ruling reported in AIR 2008 SC 515 in the case of Mahmood - Vs- State of UP and contended that the delay in lodging 50 Spl.C.C.No.142/2004 complaint is fatal. No doubt in this case there is delay in lodging complaint. In a cases like this nature without making a preliminary enquiries and due deliberations and consultations cases cannot be registered. Therefore, the delay itself will not affect the prosecution case. In the case of S.W. Palanitkar -Vs- State of Bihar reported in AIR 2001 SC 2960 with regard to ingredients of an offence of cheating it has been held that there should be fraudulent or dishonest inducement of a person by deceiving him to deliver any property to any person or to consent that any person shall retain any property. The person so deceived should intentionally induce to do or omit to do anything which he would not do or omit if he were not so deceived. Further it has been held that in order to secure conviction of a person for the offence of cheating, mens rea on that part of that person must be established. Though the learned counsel has relied on the rulings reported in 2010 (5) RCR Criminal and AIR 1987 SC 1713 on facts are not relevant to the case on hand. Thus, on appreciation of the 51 Spl.C.C.No.142/2004 evidence adduced before the court, I am of the opinion that the prosecution has failed to establish that accused Nos.1, 3 and 5 have conspired together, forged the document for the purpose of cheating. Accordingly, the point Nos.1 to 3 raised for my consideration are answered in the Negative.
34. Point No.4 : The prosecution has alleged that accused No.3 being a public servant abusing his position by corrupt or illegal means obtained a valuable thing or advantage from accused No.1 to procure a seat for the first year MBBS course under payment category by providing higher CET ranking by fabricating a fraudulent selection committee letter and thereby committed an offence punishable under Sec.13(1)(d) r/w 13 (2) of Prevention of Corruption Act. In view of my findings on Points 1 to 3 holding that prosecution has failed to establish that accused have conspired together, forged the documents for the purpose of cheating, the next question remains for consideration is whether accused No.3 has 52 Spl.C.C.No.142/2004 obtained a valuable thing or advantage to attract the specific charge alleged against him. The learned counsel appearing for accused No.3 submits that committee was constituted for the first time. No guidelines were issued to followed by the committee. In view of the direction of Hon'ble Supreme Court all the admissions were to complete by 30.10.1993. There was paucity of time. No doubt accused No.3 has signed both admission letter and selection intimation, split up accused No.4 who was deputed by PW.6 used to fill those documents. Accused No.3 use put his signature believing the staff that they have verified the genuineness. No documents connected to this case and no money has been recovered from accused No.3. It is not in dispute that accused No.3 was the public servant, he was also the Member Secretary of Selection Scrutiny Committee. No doubt it has been alleged that accused No.3 has issued admission letter on selection intimation under his signature the learned counsel for accused No.3 submitted that accused No.3 being subordinate has put signatures on the 53 Spl.C.C.No.142/2004 directions of deceased accused No.2. It is also his submission that before issuance of admission letter under selection intimation letter by accused No.3 there were other persons who have verified the testimonials. The learned counsel submits that there may be negligence on the part of accused No.3. For his negligence he cannot be punished under the provisions of the Prevention of Corruption Act. I do find force in the submission and in the absence of material to show that he has obtained any pecuniary advantage or he has obtained any valuable thing the offence under Sec.13 (1)(d) is not attracted and he cannot held guilty. Accordingly, the point raised for my consideration is answered in the negative.
35. Point Nos.5 & 6: The learned Public Prosecutor submitted that accused No.5 is a private medical practitioner, he is the old student of Bengaluru Medical College where the selection for first year MBBS course for the year 1993-1994 was held. It is his submission that accused No.5 was close to 54 Spl.C.C.No.142/2004 deceased accused No.2 who prevailed on accused No.2 to secure medical seats to ineligible candidates. Though it has been alleged that accused No.5 has secured the medical seats to ineligible candidates and obtained money in reward or as a motive nothing has been established before the Court. The learned counsel appearing for accused No.5 submits that the allegation was manipulation of ranks. The name of PW.6 found in all the reports. Pursuant to the orders of Hon'ble Supreme Court Sri. T.Mahesh Hedge, the then District Judge has submitted a report but the Government has not taken any action on that report. In the case of A.Ramadas -Vs- State of Karnataka reported in ILR 2000 KAR 4385 the Hon'ble High Court observing that fraud played in securing admission has held that the Government must see that such things do not occur and further held that inspite of material available on record at every point of time respondent No.6 (PW.6) has been allowed to retire without any conditions and she has been rewarded with the post of Vice-Chancellor of the University. 55 Spl.C.C.No.142/2004 Under the circumstances the Hon'ble High Court has directed to hold a proper investigation. It is his submission that inspite of directions issued by the Hon'ble Supreme Court and Hon'ble High Court of Karnataka the investigating agency conveniently left out PW.6 and filed charge sheet against the present accused.
36. The learned counsel submits that the prosecution relied on the evidence of four witnesses. Among them CW.10 Smt. Yashoda could not examined before the court as she is reported dead. PW.2 Narayana though in his statement recorded under Sec.161 of Cr.P.C. has said about conspiracy nothing is elicited during his examination before Court. PW.13 G.Basavaraju in his evidence has said about credible information. To substantiate the same no material has been produced. In order to connect accused No.5 to the alleged offences, the investigating agency has conducted search of house of accused No.5 as per Ex.P.8 No doubt PW.5 has said about conducting search of house of accused No.5 and drawing 56 Spl.C.C.No.142/2004 Ex.P.8 none of the documents have been produced before the court. Under the circumstances, it can only be said that the prosecution has failed to prove the alleged offences. At this stage, it is relevant to mention here that in one of the series of these cases accused No.5 has filed an application for discharge. After hearing both sides, the court in Spl.C.C.No.130/2003 passed an order discharging accused No.5. Even though the allegations made in all the cases are one and the same the accused No.5 has not filed similar applications in all the cases. Except PW 13 stating that there was credible information that the accused No.5 involved in the case nothing has been produced before the court to show that accused no.5 has played any role in securing medical seat to accused No.1 and thereby committed an offence punishable u/s. 8 and 9 of Prevention of Corruption Act. Accordingly, these two points raised for my consideration are answered in the negative. 57 Spl.C.C.No.142/2004
37. Point No.7: In view of my above discussion and findings on Point Nos. 1 to 6 held in the negative, I proceed to pass the following:
ORDER Acting u/s 235(1) of Cr.P.C. the accused No.1, 3 and 5 are acquitted from the offences punishable under Sections 120B, 420, 468 r/w 34 of IPC and under Sections 8, 9, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988.
The bail bonds executed by accused and their sureties stands cancelled.
The accused are set at liberty.
(Dictated to the Judgment-writer, transcribed by her, corrected by me and then pronounced in the open court on this the 29th day of December 2016) (D.T.Devendran) LXXVIII Addl. City Civil & Sessions Judge & Special Judge (PCA), Bengaluru.58 Spl.C.C.No.142/2004
ANNEXURE List of witnesses examined for the prosecution:
PW.1: N.S.Rama Rao
PW.2: T.Narayan
PW.3: A.Bharathi
PW.4: M.Lokaraj
PW.5: Madhusudan
PW.6: Smt.S.Kantha, Doctor
PW.7: M. Shivakumaraswamy
PW.8: Kasim Sab B
PW.9: Joyce Surendra
PW.10: M. Gangireddy
PW.11: C.Ashwathappa
PW.12: Narayanappa
PW.13: G.Basavaraj
PW.14: A.N.Rajanna
List of documents exhibited for the prosecution:
Ex.P.1 Admission letter of A.1
(Subsequently marked as Ex.P5 & Ex.P6)
Ex.P.2 Admission letter of Kavitha Ramanathan
P.2(a) Endorsement portion of PW.2
Ex.P.3 Signature of A.3
Ex.P.4 Selection intimation
Ex.P.5 Signature of A.3 of Admission letter
Ex.P6 Admission letter (payment seat)
Ex.P.7 Copy of Government order dtd.09.09.1993
Ex.P.8 Copy of mahazar dtd.23.02.1994
Ex.P.9 Admission cancellation order letter
Ex.P.10 Copy of Paper Publication Notification
Ex.P.11 Sanction order
59 Spl.C.C.No.142/2004
P.11(a) signature of PW.7
Ex.P.12 FIR and the complaint enclosed
P.12(a)to
P.12(e) Signature of PW.10
P.12(d) Report
P.12(e) Signature of PW.13
Ex.P.13 The certificate of handwriting examination
P.13(a) signature of PW.11
Evidence adduced on behalf of the defence :
-Nil-
Documents marked on behalf of the defence :
-Nil-
LXXVIII Addl. City Civil & Sessions
Judge & Special Judge (PCA), Bengaluru.
60 Spl.C.C.No.142/2004
SCHEME
206. The scheme evolved herewith is in the nature of guidelines which the appropriate Governments and recognising and affiliating authorities shall impose and implement in addition to such other conditions and stipulations as they may think appropriate as conditions for grant of permission, grant of recognition or grant of affiliation, as the case may be. We are confining the scheme for the present only to 'professional colleges.'
207. The expression Professional colleges' in this scheme includes:
(i) Medical colleges, dental colleges and other institutions and colleges imparting Nursing, Pharmacy and other courses allied to Medicine, established and/or run by private education institutions,
(ii) Colleges of engineering and colleges and institutions imparting technical education including electronics, computer sciences, established and/or run by private educational institutions, and
(ii) such other colleges to which this scheme is made applicable by the Government, recognising and/or affiliating authority."
208. The expression "appropriate authority" means the Government, University or other authority as is competent to grant permission to establish or to grant recognition to a professional college.
209. The expression 'competent authority' in this scheme means the Government/University or other authority, as may be designated by the 61 Spl.C.C.No.142/2004 Government/University or by law, as is competent to allot students for admission to various professional colleges in the given State.
210. It is made clear that only those institutions which seek permission to establish and/or recognition and/or affiliation from the appropriate authority shall alone be made bound by this scheme. This scheme is not applicable to colleges run by Government or to University colleges. In short, the scheme hereinafter mentioned shall be made a condition of permission, recognition or affiliation, as the case may be. For each of them viz., grant of permission, grant of recognition, grant of affiliation, these conditions shall necessarily be imposed, in addition to such other conditions as the appropriate authority may think appropriate. No Private educational institution shall be allowed to send its students to appear for an examination held by any Government or other body constituted by it or under any law or to any examination held by any University unless the concerned institution and the relevant course of study is recognised by the appropriate authority and/or is affiliated to the appropriate University, as the case may be.
(1) A professional college shall be permitted to be established and/or administered only by a Society registered under the Societies Registration Act, 1860 (or the corresponding Act, if any, in force in a given State), or by a Public Trust, religious or charitable, registered under the Trusts Act, Wakfs Act (or the corresponding legislation, if any, e.g., Tamil Nadu Religious and Charitable Endowments Act and A.P. Religious and Charitable Endowments Act). No individual, firm, company or other body of individuals, by whatever appellation called except those mentioned above will be permitted to establish and/or administer a professional college. All the existing professional colleges which do not conform to the above norm shall be directed to take appropriate steps to comply with the same within a period of six months from today. In default whereof, recognition/affiliation accorded shall stand withdrawn. (In this connection reference may be had to Rule 86(2) of Maharashtra Grant-in-aid code (referred to in State of Maharashtra v. Lok Shikshan Sanstha, [1971] Suppl. S.C.R. 879 which provided that schools which are not registered under the Societies Registration Act, shall not be eligible for grant. Grant of recognition and affiliation is no less significance).
(2) Atleast, 50% of the seats in every professional college shall be filled by the nominees of the Government or University, as the case may be, hereinafter referred to as "free seats". These students shall be 62 Spl.C.C.No.142/2004 selected on the basis of merit determined on the basis of a common entrance examination where it is held or in the absence of an entrance examination, by such criteria as may be determined by the competent authority or the appropriate to authority, as the case may be. It is, however, desirable and appropriate have a common entrance exam for regulating admissions to these colleges/institutions, as is done in the State of Andhra Pradesh. The remaining 50% seats (payment seats) shaft be filled by those candidates who are prepared to pay the fee prescribed therefor and who have complied with the instructions regarding deposit and furnishing of cash security/Bank guarantee for the balance of the amount. The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats. There shall be no quota reserved for the management or for any family, caste or community which may have established such college. The criteria of eligibility and all other conditions shall be the same in respect of both free seats and payment seats. The only distinction shall be the requirement of higher fee by the 'payment students'. The Management of a professional college shall not be entitled to impose or prescribe any other and further eligibility criteria or condition for admission either to free seats or to payment seats. It shall, however, be open to a professional college to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating University. Such reservations, if any, shall be made and notified to the competent authority and the appropriate authority atleast one month prior to the issuance of notification @ for applications for admission to such category of colleges. In such a case, the competent authority shall allot students keeping in view the reservations provided by a college. The rule of merit shall be followed even in such reserved categories.
(3) The number of seats available in the professional colleges (to which this scheme is made applicable) shall be fixed by the appropriate authority. No professional college shall be permitted to increase its strength except under the permission or authority granted by the appropriate authority.
(4) No professional college shall call for applications for admission separately or individually. AD the applications for admission to all the seats available in such colleges shall be called for by the competent authority alone, along with applications for admission to Government/University colleges of nature. For example, there shall be only one notification by the competent authority calling for applications for 63 Spl.C.C.No.142/2004 all the medical colleges in the State and one notification for all the engineering colleges in the State and so on. The application forms for admission shall be issued by the competent authority (from such offices, centers and places as he may direct). The application form shall contain a column or a separate part wherein an applicant can indicate whether he wishes to be admitted against a payment seat and the order of preference, up to three professional colleges.
(5) Each professional college shall intimate the competent authority, the State Government and the concerned University in advance the fees chargeable for the entire course commencing that academic year. The total fees shall be divided into the number of years/semesters of study in that course. In the first instance, fees only for the first year/semester shall be collected. The payment students will be, however, required to furnish either cash security or bank grantee for the fees payable for the remaining years/semesters. The fees chargeable, in each professional college shall be subject to the ceiling prescribed by the appropriate authority or by a competent Court. The competent authority shall issue 'a brochure, on payment of appropriate charges, along with the application form for ad- mission, giving full particulars of the courses and the number of seats available, the names of the colleges their location and also the fees chargeable by each professional college. The brochure win also specify the minimum eligibility conditions, the method of admission (whether by entrance test or otherwise) and other relevant particulars.
(6)(a) Every State Government shall forthwith constitute a Committee to fix the ceiling on the fees chargeable by a professional college or class of professional colleges, as the case may be. The Committee shall consist of a Vice- Chancellor, Secretary for Education (or such Joint Secretary, as he may nominate) and Director, Medical Education/Director Technical Education. The committee shall make such enquiry as it thinks appropriate. It shall however, give opportunity to the professional colleges (or their association(s), if any) to place such material, as they think fit. It shall, however, not be bound to give any personal hearing to anyone or follow any technical rules of law. The Committee shall fix the fee once every three years or at such longer intervals, as it may think appropriate.
(b) It would be appropriate if the U.G.C. frames regulations under Section 12A (3) of the U.G.C. Act, regulating the fees which the affiliated 64 Spl.C.C.No.142/2004 colleges, operating on no-grant-in-aid basis, are entitled to charge. The Council for Technical Education may also consider the advisability of issuing directions under Section 10 of the A.I.C.T.E. Act regulating the fees that may be charged in private unaided educational institutions imparting technical education. The Indian Medical Council and Central government may also consider the advisability of such regulation as a condition for grant of permission to new medical colleges under Section 10-A and to impose such a condition on existing colleges under Section 10-C.
(c) The several authorities mentioned in sub-paras (a) and ((1) shall decide whether a private educational institution is entitled to charge only that fee as is required to run the college or whether the capital cost involved in establishing a college can also be passed on to the students and if so, in what manner. Keeping in view the need, the interest of general public and of the nation, a policy decision may be taken. It would be more appropriate if the Central Government and these several authorities (U.G.C., I.M.C. and A.I.C.T.E.) coordinate their efforts and evolve a broadly uniform criteria in this behalf. Until the Central Government, U.G.C., I.M.C. and A.I.C.T.E. issue order/regulations in this behalf, the committee referred to in the sub-para (a) of this para shall be operative. In other words, the working and orders of the committee shall be subject to the orders/regulations, issued by Central Government, U.G.C., I.M.C. or A.I.C.T.E., as the case may be.
(d) We must hasten to add that what we have said in this clause is merely a reiteration of the duty nay, obligation placed up on the Governments of Andhra Pradesh, Maharashtra, Karnataka and Tamil Nadu by their respective legislatures to wit, Section 7 of Andhra Pradesh Act 5 of 1983, Section 4 of Maharashtra Act 6 of 1988, Section 5 of Karnataka Act of 1984 and Section 4 of Tamil Nadu Act 57 of 1992. Other States too may have to have similar provisions, carrying statutory force.
(7) Any candidate who fulfils the eligibility conditions would be entitled to apply for admission. After the free seats in professional colleges are filled up, atleast 10 days' time will be given to the candidates (students) to opt to be admitted against payment seats. The candidates shall be entitled to indicate their choice for any three colleges (if available). In such a case, he shall comply with the deposit and cash security/Bank guarantee - taking the institution charging the highest fees as the basis within the said period of ten days. If he is admitted in an 65 Spl.C.C.No.142/2004 institution, charging less fee, the difference amount shall be refunded to him. (The cash security or Bank guarantee shall be in favour of the competent authority, who shall transfer the same in favour of the appropriate college if that student is admitted).
(8) The results of the entrance examination, if any, held should be published atleast in two leading newspapers, one in English and the other in vernacular. The payment candidates shall be allotted to different professional colleges on the basis of merit-cum- choice. The allotment shall be made by the competent authority. A professional college shall be bound to admit the students so allotted. The casual vacancies or unfilled vacancies, if any, shall also be filled in the same manner. The management of a professional college shall not be permitted to admit any student other than the one allotted by the competent authority whether against free seat or payment seat, as the case may be. It is made clear that even in the matter of reserved categories, if any, the principle of inter se merit shall be followed. All allotments made shall be published in two leading newspapers as aforesaid and on the notice boards of the respective colleges and at such other places as the competent authority may direct, along with the marks obtained by each candidates in the relevant entrance test or qualifying examination, as the case may be. No professional college shall be entitled to ask for any other or further payment or amount, under whatever name it may be called, from any student allotted to it whether against the free seat or payment seat.
(9) After making the allotments, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in the relevant test/examination. The said list shall be followed for filling up any casual vacancies or 'drop-out'-vacancies arising after the admissions are finalised. These vacancies shall be filled until such date as may be prescribed by the competent authority. Any vacancies still remaining after such date can be filled by the Management. 66 Spl.C.C.No.142/2004
As could be seen from para 209 it is the duty of competent authority to allot students for admissions to various professional colleges. Para 210 (8) mandates that the results of the entrance examination should be published atleast in two leading newspapers, one in English and the other in Vernacular. Further, it is held that all allotments made shall be published in two leading newspapers as aforesaid apart from publishing in the notice board of respective colleges and at other places as competent authority may direct, along with the marks obtained by each candidate in their relevant entrance test or qualifying examination as the case may be. In para 210(9) the Hon'ble Supreme Court has further held that after making the allotments, the competent authority shall also prepare and publish a waiting list of the candidates along with the marks obtained by them in 67 Spl.C.C.No.142/2004 the relevant test/examination. The said list shall be followed for filling up of any casual vacancies or 'drop-out' vacancies arising after the admissions are finalized. These vacancies shall be filled until such date as may be prescribed by the competent authority. The Hon'ble Supreme Court with abundant caution anticipating the difficulties which may be faced at the time of admissions has authorized the appropriate authority and competent authorities to issue such further instructions or directions, by way of elaboration and elucidation as they may think appropriate not inconsistent with the scheme.
Pursuant to the directions issued by the Hon'ble Supreme Court the State Government has promulgated the Karnataka Selection of candidates for admission to Engineering, Medical, Dental, Pharmacy and Nursing Courses Rules 1993. The same came to be published in the Karnataka Gazette on 15th March 1993. The relevant extract of the aforesaid Rules is as follows:- 68 Spl.C.C.No.142/2004
6. Determination of Merit : - The merit shall be determined by taking the marks obtained in the Entrance Test and the optional subjects in the qualifying examination in equal proportion.
xxx Provided that where the merit of two or more candidates is the same, the interse merit shall be determined with reference to the marks obtained in the Entrance Test in Mathematics in the case of Engineering and allied courses and in Biology in the case of Medical and allied courses and where the marks obtained in such cases are equal, then the interse merit shall be determined on the basis of marks obtained in Physics in the case of Engineering and the allied courses and in Chemistry in the case of Medical and allied courses. Where the marks obtained for equal again the interse merit shall be determined on the basis of the age of candidate, the older candidate placed above the younger.
7. Procedure for Selection of Candidates:- The procedure for the selection of candidates for admission to Institutions against ' free seats' shall be as follows:-
9. Preparation and Publication of General Merit List:-
(1) The Entrance Test Committee constituted under sub-rule (1) of Rule 8 shall prepare the general merit list of all candidates who have appeared for the Entrance Test in accordance with Rule 6 and cause the publication of the said list in atleast two daily newspapers-one English and the other Kannada having vide circulation in the State and in the Notice Board of all the Universities in the State and the office of the Director and such other public places as may be determined by the said committee.
The General Merit List shall be forwarded to the Director who shall sent the same to all the Institutions.
69 Spl.C.C.No.142/2004
11. Selection of Candidates against 'payment seats':-
(1) The following candidates shall be eligible for selection for admission to the 'payment seats':-
(a) Candidates who have been selected for admission to a seat in any Institution under the 'free seats' category who have also obtained for 'payment seats', or payment of such cash security or Bank Guarantee, as specified by the Committee, within 10 days from the date of publication of the list under Rule 10.
(b) Candidates remaining in the general merit list and who have already exercised option to the consider for selection under 'payment seats' category and within 10 days from the date of publication of the list prepared under Rule 10 furnished cash security or bank guarantee as specified by the Committee.
(c) xxx
(d) The Director of Technical Education shall prepare list of all the applicants who have appeared in the Entrance Test and opted for the considered for Selection under 'payment seats'.
(e) A list called the 'select list for payment seats' shall be prepared from among the candidates noted above based on merit and the allotment of courses or institutions shall be done in the order of merit based on the preferences of the candidates and the availability of seats in the preferred Institution or Course.
(f) A second list called the 'eligibility list of remaining candidates' shall be prepared in the order of merit and the said list shall be followed for filling up any casual or drop out vacancies after giving change of Institution/course to higher merit candidates already admitted. No admission to these seats shall be made after the last day fixed by the Government.
13. List of Selected Candidates:-
(1) The Director shall prepare a list of candidates finally selected for admission to various courses in the institutions and send copies thereon to the principals of the institutions for giving wide publicity not exceeding ten days before the last date of admission as fixed by the Government. This list shall contain not only the names but also the rank in the merit list, the class of reservation, if any. The selections shall be notified by the Director by publication in atleast two daily newspapers -
one English and the other Kannada - having wide circulation in the state 70 Spl.C.C.No.142/2004 or letters by registered post to the candidates to facilitate the candidates to report to the respective institutions fixing a date before which the candidate should get admitted to the institution. If the candidate fails to get himself admitted within the date fixed, the admission shall automatically stand forfeited without any further notice to the candidate.
(2) All selections made shall be subject to verification of the original marks card and physical fitness by the principals of the concerned institutions to which they are admitted and also by the concerned University.
14. Selection Scrutiny Committee and its functions:-
(1) There shall be a Selection Scrutiny Committee constituted by the Government with the Director as the Chairman and such other members as may be specified. The Chairman also may invite specialist in the field as invitees to assist the Committee.
(2) The Selection Scrutiny Committee shall scrutinize all the documents required to be produced by the candidates under these rules and shall record its views in the matter.
(3) In all matters under sub-rule (2) above, the decision of the Committee shall, subject to any general or special orders of Government in this regard be final.71 Spl.C.C.No.142/2004
From the plain reading of Rule 11(1)(d) the Director of Technical Education has to prepare the list of all the candidates who have appeared in the entrance test and opted for being considered for selection under payment seats. Rule 11(1)(e) reads that a list called 'select list for payment seats' shall be prepared from among the candidates noted in the above, based on merit and the allotment of courses or institutions shall be done in the order of merit based on the preferences of the candidates and the availability of seats in the preferred institution or course. Further Rule 11(1)(f) reads that a second list called the 'eligibility list of remaining candidates' shall be prepared in the order of merit and the said list shall be followed for filling up any casual or drop out vacancies after giving change of institution/course to higher merit candidates already admitted and no admission to these seats shall be made after the last date fixed by the Government. Further, Rule 13 deals with selected candidates reads that the Director shall prepare a list of candidates finally selected for admission to various courses in the Institutions and send copies thereon to the Principals of the Institutions for giving vide publicity not exceeding 10 days before the last date of admission as fixed by the Government. Further the said Rule says that the list shall contain not only the names but also the rank in the merit list, the class of reservation, if any. The selections shall be notified by the Director by publication in atleast two 72 Spl.C.C.No.142/2004 daily newspapers one in English and other in Kannada having vide circulation in the State or letters by Registered post to the candidates to facilitate them to report the respective institutions fixing a date before which the candidates should get admitted. Thus, it is for the Director to select the candidates. As far as the functions of Selection Scrutiny Committee is concerned, Sec.14 deals with the same and their duty is only to scrutiny the documents required to be produced by the selected candidates under these Rules and shall record its views in the matter. Thus, it clearly goes to show that the Selection Scrutiny Committee was not empowered under the Rules, Scheme or orders of Government with Selection of candidates. Thereby, the say of prosecution that the Selection Scrutiny Committee has selected ineligible candidates holds no water.
Even though the Hon'ble Supreme Court held and re-iterated in the aforesaid Rules one P.Varadaraya Bhandari, the Member Secretary of CET who could not examine before the court, because of his illness, in his statement before the Investigating Officer has said that even though under Rule 9 the merit list was required to be published atleast in two daily newspapers, citing that it contained 800 pages, the same was not published. This is a clear violation of mandate of Rules and also the directions issued by the Hon'ble Supreme Court. If the concerned 73 Spl.C.C.No.142/2004 authority had published the list in the newspapers, the candidates would have come to know their rankings and if they were not in the selection zone, would not have appeared for selection. It is because of negligence on the part of authorities, the candidates are facing the ordeal of criminal proceedings.
The learned counsel for accused No.1 submits that prior to 1993 the non-Karnataka students were not allowed to appear for CET and for the first time in the year 1993 the non-Karnataka students were allowed to take CET. The Notification to conduct CET was issued on 28.04.1993, accused No.1 being the non-Karnataka student his parents were trying to obtain MBBS seat under Management Quota. His mother on 14.12.1992 i.e. much earlier to issue of notification to conduct CET had drawn money to make advance payment. So there was no conspiracy as alleged and accused No.1 has not forged or fabricated any document, he has not cheated or denied opportunity of any other deserving student. It is his submission that of accused No.1 infact is a victim of fraud whose parents have paid huge sum to secure the MBBS seat under management quota, but accused No.1 was given allotment under payment category. The learned counsel also submitted that on coming to know about the fraud had been played upon him accused No.1 has quit the seat and did not enjoy any illegal gains. It is his submission that again in the year 1996, 74 Spl.C.C.No.142/2004 accused No.1 secured seat in different college namely KIMS, Bengaluru. I do not fully agree with the submission of learned counsel for the simple reason that challenging his cancellation accused No.1 along with other students had approached the Hon'ble High Court of Karnataka. The Hon'ble High Court of Karnataka though at the first instance has granted stay orders later has dismissed the writ petitions. Challenging the dismissal of their cases some of the students including the accused No.1 have approached the Hon'ble Supreme Court and by virtue of orders continued their studies.
The learned Public Prosecutor submits that the act of conspiracy though not apparently visible it can very well ascertained from the relevant facts of the case. It is his submission that the accused No.1 has filled the form the expert opined that it was the handwriting of accused No.1, he has submitted it before the scrutiny committee, the committee approving the same allotted seat assort in a rank number of another student. Accordingly, all these facts go to show that the hidden agreement between the accused is very well evident. It is also his submission there was league between parties, such a leave was to do a punishable act by illegal means, multiple acts and sequences till to securing seat in the college and depriving the public. Since conspiracy is secretly planned and direct evidence is difficult to produce. It is his 75 Spl.C.C.No.142/2004 submission that the conspiracy has to be presumed, it may even presume under Sec.20 of Prevention of Corruption Act.
Conspiracy consists in the agreement of two or more persons to do an unlawful Act or to do a lawful Act by unlawful means. The elements of criminal conspiracy are can object to be accomplished, a plan or scheme embodying means to accomplish the object, an agreement understanding between two or more of the accused persons whereby they become definitely committed to co-operate the object by the means embody in the agreement or by any effectual means. The agreement may be expressed or implied, or in part express or in part implied. The conspiracy arises and offences committed as soon as the agreement is made and the offence continues to be committed so long as the combination persists, i.e. until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the execution of it. It is not enough that two or more persons pursued the unlawful object at the same time or in the same place, it is not necessary to show the meeting of minds, consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with each other. 76 Spl.C.C.No.142/2004
As far as cheating is concerned the learned Public Prosecutor submits that cheating by pretension to be some other person knowingly substituting one person by another representing he or any other person is a person other than he or such other person really is so the offence is committed. In this case the acts of accused Nos.1 and 3 signing the documents will show substitution of rank number pertaining to other person, filling up details, appending photo attesting and signing admission form would indicate the offence of cheating. Countering the said submission the other side has relied on the ruling reported in 1969(3) SCC 107. In the case of Hari Sao and Anr -Vs- the State of Bihar the Hon'ble Supreme Court has held that under Sec.415 of the IPC a person is said to cheat when he by deceiving another person fraudulently or dishonestly induces the person so deceived to deliver any property to him or to consent that he shall retain any property or intentionally induces the persons so deceived to do or omit to do anything which he would not do or omit if he was not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Considering the fact that there was no damage or harm caused to the Railways in that case, the Hon'ble Supreme Court has held that no question of cheating therefore arose. With regard to an offence under Sec.468 of IPC the learned counsel for accused No.1 relying on the 77 Spl.C.C.No.142/2004 ruling of Parminder Kaur -Vs- State of UP reported in (2010)1 SCC 322 submits that it is an aggravated form of forgery under Sec.463. The learned PP submits that Sec.468 does not require that accused actually commit the offence of cheating. What is material is the intention, purpose of the offender in committing forgery. The ingredient is committing of forgery with the particular intent, that intent being the documents forged should be used for the purpose of cheating. The Section does not require that accused should actually commit the offence of cheating of forgery which is an usual act done in furtherance of some criminal desire.
In this case, the learned Public prosecutor submitted that the statement of accused recorded under Sec.313 of Cr.P.C. may be used against them as they were not able to explain or furnish good grounds to get out of circumstances may be relied upon for conviction. As could be seen from the statement of accused recorded under Sec.313 of Cr.P.C. the accused Nos.1 and 5 have denied the entire evidence adduced against them. Accused No.3 except that the constitution of Selection Scrutiny Committee wherein he was the Member Secretary has denied all other incriminating evidence appeared against him. Under the circumstances, the burden is on the prosecution to establish the offences alleged against accused beyond all reasonable doubts.
78 Spl.C.C.No.142/2004
As already noticed if the authorities had published the merit list as well as select list as required under Rules there was no chance for committing offence. No doubt accused No.3 has issued admission letter and Selection intimation, his learned counsel submits that being subordinate of Chairman as a Member Secretary has obeyed the directions. No material has been placed before the court to show that PW.6 has participated in the selection process particularly with regard to admissions of 26 candidates. Though the principals of Dental, Nursing and Pharmacy College were made as members of Selection Scrutiny Committee unfortunately they were not aware of the same. Then the question comes who constituted the Selection Scrutiny Committee.
During the pendency of cases before it the Hon'ble Supreme Court has issued directions to our Hon'ble High Court for appointing a District Judge to conduct an enquiry. Accordingly, one T.Mahesh Hegde, the District Judge was nominated to hold an enquiry. Who in his report apart from finding out lapses on the part of Selection Scrutiny Committee including the Chairman has observed that the candidates were otherwise eligible to be selected and they have not deprived other merited student. From the evidence of PW.13 G.Basavaraj, Lokayukta S.P. and his report produced as per Ex.P.12 Dr. S.Kantha who was also named as an accused. However, leaving her the charge sheet came to be filed against 79 Spl.C.C.No.142/2004 present accused. So in the array of accused, deceased accused No.2 was the Chairman and accused No.3 was the Member Secretary. If the evidence of PW.6 is taken into consideration with the statement of other alleged members recorded during the course of investigation Selection Scrutiny Committee is constituted only by accused No.2 and 3 which is against to the Government Order. PW.6////////////// 80 Spl.C.C.No.142/2004 81 Spl.C.C.No.142/2004