Bangalore District Court
State By Lokayukta Police Station vs Kum. Bala.R D/O G.Radhakrishnan on 2 January, 2017
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 2nd day of January 2017.
SPl.C.C. No: 144/2003
Complainant: State by Lokayukta Police Station,
Bengaluru.
(By Public Prosecutor)
- Vs -
Accused: 1. Kum. Bala.R D/o G.Radhakrishnan,
27 years, R/o No.5, Kanthappa Street,
Sarjapura, Anekal Taluk, Bengaluru
District.
(Transferred to JJB)
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)
3. Dr.A.R.Jairenukaya, S/o L.Revannaiah,
Aged 51 years, the then Deputy Director
2 Spl.C.C.No.144/2003
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. K.Dilip Kumar;
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.3 11-08-1998
Accused No.5 23-02-1995
Date of release of accused
on bail:
Accused No.3 11-08-1998
Accused No.5 23-02-1995
Date of commencement 04-06-2010
of evidence
3 Spl.C.C.No.144/2003
Date of closing of 10-11-2016
evidence
Name of the complainant M.Gangi Reddy
Offences complained of U/S.120B, 420, 468,
109 of 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: 02.01.2017
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 the selection of 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 4 Spl.C.C.No.144/2003 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 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 5 Spl.C.C.No.144/2003 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.
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 6 Spl.C.C.No.144/2003 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 candidate's seats and the colleges. 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 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, 7 Spl.C.C.No.144/2003 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 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 the candidates have approached the Hon'ble Supreme Court 8 Spl.C.C.No.144/2003 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 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 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 9 Spl.C.C.No.144/2003 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, 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 collected number of documents. The accused Nos.1 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 against 5 accused showing accused No.2 as abated. 10 Spl.C.C.No.144/2003
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 charge against accused Nos.1, 3 & 5 came to be framed for 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 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. At this stage by an order dated 29.02.1994 on the application filed by accused No.1 under Section 7A of the Juvenile Justice (Care and Protection of children) Act, 2000 finding that the accused No.1 was minor as on the date of 11 Spl.C.C.No.144/2003 commission of offence, case against her came to be transferred to Juvenile Justice Board and the matter has been proceeded against accused No.3 and 5 only.
7. 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 some others as not necessary prosecution in all examined PWs 1 to 15, through them got marked documents as per Ex.P.1 to P.23 and closed its side. Then the accused Nos. 3 and 5 have been examined under Section 313 of Cr.P.C. and questioned about incriminating evidence appearing against them. Accused No.5 totally denied the prosecution evidence as false. Accused No.3 has filed written submission. However, both accused has not chosen to lead any defence evidence. Hence, the matter was posted for arguments.
8. 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. 12 Spl.C.C.No.144/2003
9. On perusal, the following points arise for my consideration:
1. Whether prosecution proves beyond reasonable doubt that on or about 29.10.1993 accused No.3 and 5 along with Child in Conflict with Law, deceased accused No.2 and split up accused No.4 entered into an agreement with the fraudulent intention to secure MBBS seat for Child in Conflict with Law in the 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 Child in Conflict with Law has secured rank number of 7088 falsely represented that she has secured rank number 1798 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 13 Spl.C.C.No.144/2003 fabricated fraudulent selection committee letter intending to use it for the purpose of obtaining admission to Child in Conflict with Law in Dr.Ambedkar Medical College, Bengaluru 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 29.10.1993 accused No.3 being a public servant abusing his position by 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 Child in Conflict with Law 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?14 Spl.C.C.No.144/2003
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 Child in Conflict with Law and thereby committed an offence punishable under Sec. 9 of Prevention of Corruption Act?
7. What order?
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 Child in Conflict with Law (hereinafter called as CCL), accused No. 3 and 5 along with deceased accused No.2 and split up accused No.4 have conspired to secure medical seat 15 Spl.C.C.No.144/2003 for CCL 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.
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). For ready reference the relevant extract is reproduced as follows;
SCHEME
206. The scheme evolved herewith is in the nature of guidelines which the appropriate Governments and recognizing 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.' Xxxx
208. The expression "appropriate authority" means the Government, University or other authority as is competent to 16 Spl.C.C.No.144/2003 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.
xxxx
210. xxxx (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.
xxxx (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 17 Spl.C.C.No.144/2003 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 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 18 Spl.C.C.No.144/2003 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. (Emphasis by me)
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 19 Spl.C.C.No.144/2003 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 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.20 Spl.C.C.No.144/2003
(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.
(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. 21 Spl.C.C.No.144/2003
(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.
(Emphasis by me)
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 CCL has filled the Ex.P.4 admission letter in her 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 22 Spl.C.C.No.144/2003 goes to show that CCL succeeded in getting admission without her admission letter passing through the usual screening process. By no stretch of imagination it can be said that due to oversight the CCL has wrongly mentioned her CET rank Number. It is his submission that CCL being the beneficiary it can safely be presumed that she willfully misrepresented her CET rank number in order to wrongfully claim MBBS payment seat for which she 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. 23 Spl.C.C.No.144/2003 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 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. 24 Spl.C.C.No.144/2003
15. Per contra the learned counsel appearing for accused No.3 and 5 submits that the prosecution has failed to prove the charges alleged against accused. Nobody has lodged complaint alleging that accused have committed cheating they have not deprived rights of any other student. The candidates were not known their rankings, the authorities have not published the merit list and select list as required under the scheme and the rules. Dr. S.Kantha was the main person behind these incidents, even though the Hon'ble Supreme Court and Hon'ble High Court of Karnataka have directed to hold proper investigation and to bring out the truth, the investigating agency giving clear chit to her has filed the charge against other accused. Accused No.3 being subordinate to Chairman has signed the documents without any malafide intention. There is no material to connect the accused No.5 to the alleged offence. Under the circumstance, both the counsel prayed for acquit accused Nos.3 and 5. In view of rival submission made, let me turn to the evidence adduced in the case.
25 Spl.C.C.No.144/2003
16. Among 15 witnesses examined in the case PW.3 Khasim Sab and PW.2 Narayana were deputed by PW.1 Dr. S.Kantha to assist Selection Scrutiny Committee as requested by deceased accused No.2. PW.3 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. From this witness the prosecution has not elicited the form which he was distributing. PW.2 in his evidence has said that 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.3 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 26 Spl.C.C.No.144/2003 write the college code and put his initials, sending the candidates before the Selection Scrutiny Committee. He has identified the admission letter of CCL as per Ex.P4.
17. PW.1 Dr. S.Kantha who was one of the Member of Selection Scrutiny Committee, later was placed in-charge of the post of Chairman. She in her evidence deposed about the procedure in detail and identified Ex.P.1 as the selection intimation. According to her, CCL though secured the rank of 7088 willfully she has mentioned her rank as 1798 to wrongfully claim the medical seat. It is also her evidence that the accused have entered into a criminal conspiracy and played a game of fraud for the consideration of illegal monetary gain. She further deposed about unearthing the malpractices in 26 cases, canceling the admissions as per Ex.P.3 and writing a letter to the Government as per Ex.P.2 seeking Lokayukta enquiry. Though this witness has said that CCL has secured rank number of 7088, to substantiate the same no material has been brought in evidence. This witness has categorically admitted that Government has not 27 Spl.C.C.No.144/2003 issued any orders, instructions and guidelines for selection of students. Under the circumstances, it is very difficult to believe that she has unearthed the irregularities committed in the case. She herself admits that there was shortage of time for publication of rank list and even there was short time for candidates to appear. Further, in view of her admission that after scrutinization there was no review how under what power she has verified the documents is not made clear. At this stage a question would arise as to the power of PW.1 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 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. 28 Spl.C.C.No.144/2003
18. PW.13 G.Basavaraju, the then SP, Karnataka Lokayukta, Bengaluru in his evidence has said that on receipt of a reference as per Ex.P.23 sent by the Government. He made preliminary enquiry having found the material to proceed against has prepared report as per Ex.P.21 and directed PW.12 M.Gangi Reddy to register the case. During the course of cross-examination this witness has said that he has not made any efforts to know how the Director of Technical Education has prepared the rank list, who are all assisted him and he has not collected any documents in this regard. He has also said that he has gone through the powers of Selection Scrutiny Committee explained in Rule 14 and established under Government Order dated 09.09.1993. Though he has identified Ex.P.21 the report prepared after holding preliminary enquiry as it is rightly said by the counsel for accused it is nothing but culled out portion of the report alleged to have been submitted by PW.1 to the Government.
19. PW.1 and 13 have deposed with regard to constitution of Selection Scrutiny Committee vide 29 Spl.C.C.No.144/2003 Government Order dated 09.09.1993. PW.1 said that apart from her Dr.Shivarathna Savadi, Prof. S.S. Dhir and Smt. Radha Shenoy were also members. PW.13 did not say about the other members. Unfortunately as could be seen from the statement of other members recorded in the course of investigation reveals that they were unaware of making them as members of the Selection Scrutiny Committee. Thus, there arises a doubt about who constituted the Selection Scrutiny Committee.
20. The functions of Selection Scrutiny Committee clearly 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.30 Spl.C.C.No.144/2003
(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 ¥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 and the order dated 09.09.1993 the copy of which is available in the case file 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 supposed to appear before the Selection 31 Spl.C.C.No.144/2003 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.
21. At this stage it is relevant to mention here that during the pendency of cases, the Hon'ble Supreme Court has directed our Hon'ble High Court to nominate a District Judge to hold an enquiry. Accordingly, our 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. 32 Spl.C.C.No.144/2003
22. It has been alleged by the prosecution that CCL has entered her fake rank number in Ex.P.4 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. Before going to hold that accused have assigned the fake rank number, the burden was on the prosecution to prove that CCL was assigned with a particular rank number. No doubt PW.1 and 13 in their evidence have said that CCL actually held the rank of 7088 to establish the same no material has been produced before the court. In the result, I am not agreeable with the prosecution that by filling Ex.P.4 with the alleged fake rank number accused have committed the offences as alleged against them.
23. PW.6 Gangaboraiah has been examined to prove Ex.P.16 and seizure of 39 documents from the house of accused No.3. No doubt PW.6 has said about drawing of Ex.P.16 in his presence none of those seized documents are produced before the court to know how they relate to the offences alleged against accused No.3. PW.5 Smt. 33 Spl.C.C.No.144/2003 A.Bharathi & PW.8 M.S.Jayananda have been examined to prove the signatures of accused No.3 as per Ex.P.4, P.8 and P.9. PW.8 has also said about seizure of Ex.P.8 and P.9 under Ex.P.19 mahazar. The investigating agency has sent the signatures for expert opinion. In this case accused No.3 has not seriously disputed his signatures.
24. In order to connect accused No.5 to the alleged offences the prosecution examined PW.4 Girish a panch witness who in his evidence said that on 23.02.1994 police having conducted search of house of accused No.5 and seizure of 24 documents under Ex.P.5. But none of the documents have been produced before the court to show how the seized documents related to this case and establish the guilt of accused No.5. PW.4 has also spoken about conducting search in the clinic and another house as per Ex.P.6 and Ex.P.7 but no documents relating to case were found. Thus, it clearly goes to show that there is no nexus between accused No.5 and other accused and thereby I do 34 Spl.C.C.No.144/2003 not find any support in the say of prosecution that accused No.5 had a role and involved in the selection.
25. PW.7 D.Thimmappa in his evidence has said about 19 to 20 documents seized under Ex.P.17. The said documents are also not produced before the court. PW.9 Smt. Gowramma in her evidence has simply said about as instructed by PW.1 having issued receipts to candidates after collecting demand drafts.
26. PW.12 M.Gangi Reddy, the then Dy.S.P. in his evidence has said about on receipt of Ex.P.21 from PW.13 registering the case and submitting FIR as per Ex.P.22. PW.14 S.K. Hegde, the then Dy.S.P. in his evidence has said about examining and recording the statement of number of witnesses, collecting the copies of documents produced by one Kendaiah and then preparing the final report. PW.10 M.Shivakumara Swamy the then Under Secretary to the Government, Medical Education Department in his evidence identifying Ex.P.20 has said about issue of sanction order to prosecute. PW.11 Narayanappa the then Dy.S.P has said 35 Spl.C.C.No.144/2003 about receiving sanction order whereas PW.15 Ashok L.Sadalagi has said about submitting charge sheet.
27. 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 No. 5 has denied the entire evidence adduced against him. 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 by filing written statement. When accused Nos.3 and 5 have denied the evidence alleged against them, the statement of the accused is of no assistance to the prosecution. Thus, on appreciation of the evidence adduced before the court, I am of the opinion that the prosecution has failed to establish that accused Nos. 3 and 5 have conspired with other accused, forged the 36 Spl.C.C.No.144/2003 documents for the purpose of cheating. Accordingly, the point Nos.1 to 3 raised for my consideration are answered in the Negative.
28. 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 CCL 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 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 37 Spl.C.C.No.144/2003 follow 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.1 used to fill those documents. Accused No.3 used to 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 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 38 Spl.C.C.No.144/2003 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. Further as could be seen from the written explanation of accused No.3 the Government has initiated a departmental enquiry against him, a retired Judge after holding enquiry has exonerated him of all the charges. Under the circumstances, 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.
29. 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 deceased accused No.2 who 39 Spl.C.C.No.144/2003 prevailed upon 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.1 was 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.1) has been allowed to retire without any conditions and she has been rewarded with the post of Vice-Chancellor of the University. Under the circumstances, the Hon'ble High 40 Spl.C.C.No.144/2003 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.1 and filed charge sheet against the present accused.
30. The learned counsel submits that in order to connect accused No.5 to the alleged offences, the investigating agency has conducted search of house of accused No.5, his clinic and the house of his relative as per Ex.P.5 to P.7. No doubt PW.4 has said about conducting search of house of accused No.5 and seizing 24 documents under Ex.P.5 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 41 Spl.C.C.No.144/2003 one and the same the accused No.5 has not filed similar applications in all the cases. No material has been placed before the court to show accused No.5 has taken gratification to influence the public servants to secure medical seat to CCL 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.
31. 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.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, 1988.42 Spl.C.C.No.144/2003
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 2nd day of January 2017) (D.T.Devendran) LXXVIII Addl. City Civil & Sessions Judge, Mayohall Unit, Bengaluru.
ANNEXURE List of witnesses examined for the prosecution:
PW1: Dr.S.Kantha
PW2: T.Narayan
PW3: B. Kasim sab
PW4: Girish
PW5: A.Bharathi
PW6: S.Gangaboraiah
PW7: D.Thimmappa
PW8: M.S.Jayananda
PW9: Gowramma
PW10: M.Shivakumarswamy
PW11: Narayanappa
PW12: M.Gangi Reddy
PW13: G.Basavaraj
PW14: S.K. Hegde
PW15: Ashok L.Sadalgi
List of documents exhibited for the prosecution: 43 Spl.C.C.No.144/2003
Ex.P1: Selection Intimation
P.1(a) Signature of PW.3
P.1(b) Handwriting of M.R.Prakash
Ex.P2: Copy of Letter dtd. 13.12.93
P.2(a) Signature of PW.1
Ex.P3: Copy of paper publication
Ex.P4 Admission letter
P.4 (a) Signature of A.3
Ex.P.5 Copy of Mahazar dtd.23.02.94
P.5(a) Signature of PW.4
Ex.P.6 Copy of Mahazar dtd.23.02.94
P.6(a) Signature of PW.4
Ex.P.7 Copy of Mahazar dtd.23.02.94
P.7(a) Signature of PW.4
Ex.P.8 Specimen Signature of A2
P.8(a) Signature of A3
P.8(b) Signature of PW.8
Ex.P.9 Specimen Signature of A2
P.9(a) Signature of A3
P.9(b) Signature of PW.8
Ex.P.10
to : Selection Intimation letters
Ex.P.15
Ex.P10(a)
to : Signatures of PW.8
Ex.P15(a)
Ex.P.16 Copy of mahazar dtd.23.02.94
P.16(a) Signature of PW.6
Ex.P.17 Copy of mahazar dtd.05.09.94
P.17 (a) Signature of PW.7
Ex.P.18 Copy of mahazar dtd.18.11.94
P.18(a) Signature of PW.8
Ex.P.19 Copy of mahazar dtd.18.11.94
P.19(a) Signature of PW.8
Ex.P.20 Sanction order
P.20(a) Signature of PW.10
Ex.P.21 Memo (With FIR)
44 Spl.C.C.No.144/2003
P.21(a) Signature of PW.12
P.12(b) Signature of PW.13
Ex.P.22 FIR
P.22(a) Signature of PW.12
Ex.P.23 Copy of Reference letter
Evidence adduced on behalf of the defence:
- Nil -
Documents marked on behalf of the defence:
- Nil -
LXXVIII Addl. City Civil & Sessions Judge, Mayohall Unit, Bengaluru.45 Spl.C.C.No.144/2003 46 Spl.C.C.No.144/2003