Rajasthan High Court - Jodhpur
Dr. R. N. Prasad vs State on 30 May, 2016
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
<p align="center"><b><font face="verdana" size="2">Case No. CRLMP - 1048 of 2015</font></b></p><br />
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
ORDER
(1)Dr. Bhanwar Singh Rajpurohit Vs. State of Rajasthan
S.B. Criminal Misc. Petition No. 2744/2014
(2) Dr. R.N. Prasad Vs. State of Rajasthan
S.B. Criminal Misc. Petition No. 1048/2015
(3) Professor Narendra Avasthi and Ors.
Vs.
State of Rajasthan
S.B. Criminal Misc. Petition No. 2745/2014
Under Section 482 Cr.P.C. for quashing of FIR No. 269/2014 dated 4th August, 2014 P.S. ACB CPS, Jaipur.
Date of Order : : 30.5.2016
PRESENT
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Mr.M.S. Singhvi, Sr. Counsel Assisted by Mr. Sachin Acharya, for the petitioner/s.
Mr.Mahesh Bora, Sr. Counsel assisted by Mr. Nishant Bora)
Mr. Rajesh Panwar) AAG for the non petitioner/s.
BY THE COURT:
1.These Criminal Miscellaneous Petitions have been preferred under Section 482 Cr.P.C. for quashing of FIR No. 269/2014 dated 04.8.2014 Police, ACB, C.P.S. Jaipur.
2. The factual matrix of the cases are that the selection process for selecting Associate Professor and Assistant Professor, for different faculties at JNV University, Jodhpur was initiated by issuance of advertisement no. 73/2011-12 and 74/2011-12. The last date for submitting the application was 24th January 2012 and 25th January, 2012 respectively. In all 114 posts of Assistant Professor and 56 posts of Associate Professor were advertised. The interview took place from December, 2012 to Feb. 2013 and thereafter the selections were made.
3. In the FIR No. 269/2014 dated 4.8.2014 Police ACB, C.P.S. Jaipur lodged by ACB on the basis of preliminary enquiry institution on the complaint of Virendra Singh Bhati one of the candidates for selection on the post of Assistant Professor in the faculty of Arts. It is alleged that the persons who have become eligible after cut-off date have been interviewed. The other allegation is that out of the person selected, six persons are related to the professors of the University and Syndicate member. Yet other allegation in the FIR is relating to the delay in making selections and rejection of applications of eligible candidates.
4. These selections were challenged by way of writ petition but since the petitioner therein did not implead the selected candidates the writ petition was dismissed.
5. One of the selected candidates Rajshree Ranawat moved the court for grant of regular pay scale and her writ petition was allowed. The Committee constituted by the Government to make an enquiry with regard to process of selection vide communication dated 15.4.2015 was held to be redundant. The Govt. withdrew the letter vide which the committee was constituted and decided not to file appeal against the order passed in Rajshree Ranawat's case.
6. In all 157 selections were made, out of which five are stated to be related to the Professors and Syndicate member of University. Selected candidates who are related to the Professors and Syndicate member have also been arrayed as accused.
7.Counsel for the Vice Chancellor, Mr. Mahendra Singh Singhvi, Sr. Advocate assisted by Mr. Hemant Dutt has argued that the last date for submission of the application form was 25th January, 2012. All drafts and all the applications were received prior to that date. So there was no favouratism and nepotism as no form was accepted after the last date. It is argued that the advertisement did not make a mention as to the date on which the eligibility is to be adjudged and as per the past practice, the qualification till the date of interview were considered. In all 51 persons became eligible after the date of submission of application form and all were considered. Out of these 51 persons who became eligible after the last date of submission of application form 11 have been selected and out of these six are related to the employees of the University. It is argued that Mr. Ram Chandra Singh Rajpurohit, Dean, Faculty of Commerce who is a accused in this case and was member of Selection Committee, yet his daughter Kavita has not been selected and there were 39 applicants who were related to the employees who have not been selected, therefore, the allegation that employees' kith and kin have been selected has no force.
8.With regard to the delayed selection, the learned counsel has stated that during that period elections were held in the University, there were regular examinations and admissions. The selection process having been undertaken after almost 20 years there were around 5000 applicants, the time was consumed in scrutinising the list, nomination of nominees by the Chancellor, State and Syndicate but that nowhere points out towards any criminal mens rea of the petitioner.
9.My attention has been drawn towards the advertisement No. 74/2011-12 wherein it is mentioned that the last date of submission of application form would be 25th January, 2012 upto 5p.m. And applications received after this date will not be entertained in any circumstance. The process of selection as adopted by the University was that the Scrutiny Committee would look into the applications and from those applications short listing would be done and then the applicants would be interviewed by the Selection Committee headed by the Vice Chancellor. The Selection Committee would consist of the Vice-Chancellor, Dean, Head of the Department, three experts one nominee of Chancellor, one nominee of State and one nominee of Syndicate.
10.Mr. Singhvi has argued that the allegations did not disclose about the commission of cognizable offence and the complaint being frivolous, the proceedings are required to be quashed.
11. Learned counsel has placed reliance on Rajshree Ranavat Vs. State and Ors decided by a Coordinate Bench of this Court on 4.11.2015 bearing writ petition No.11314/2015. Reliance has also been placed on Professor M K Vyas Vs. State of Rajasthan bearing SB Criminal Misc. Petition no. 1360/2014 and other connected miscellaneous petitions decided on 17.8.2015 those were cases where prayer was made for quashing the FIR lodged by the ACB against the petitioners. The Division Bench of this Court in a special appeal directed the Principal Secretary to depute a team of Officers to enquire into the record of JNV University, Jodhpur for detecting any misuse of fund of Student Union. Pursuant to that a Committee headed by the Director, Treasury inspected the record and gave a report that there has been a forgery and misappropriation of huge amount by the office bearers of the Student Union. The Division Bench directed the State Government to initiate action against the Officers, Teachers and Students against whom there was prima facie case of forgery, abatement, misappropriation of huge Students' Union Fund. The ACB consequently registered a FIR.
12. While disposing of the miscellaneous petitions, the Hon'ble High Court observed that even assuming that the petitioners therein were members of the committee and failed to detect the forgery in the bills submitted by the Student Union at the most the petitioner can be said to be not careful and negligent but their action cannot be said to have been acted with criminal intent. The Court held that even assuming that certain irregularities have been committed by the petitioners in approving the expenses incurred in the International Youth Festival or they failed to follow the procedure then also such a commission of irregularities or breach of procedure did not mean fraud or any other criminality. In the absence of any evidence of criminal intent the court quashed the FIR against the petitioners.
13. Reliance has also been placed on State of West Bengal And Ors. Vs. Swapan Kumar Guha and Ors. reported in 1982 Vol.1 SCC 561. Para 21 to 23 of which is reproduced hereunder:-
21.The position which emerges from these decisions and the other decisions which are discussed by brother A.N. Sen is that the condition precedent to the commencement of investigation under Section 157 of the Code is that the FIR must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under Section 157 of the Code. Their right of enquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the FIR, prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on and the rule in Khwaja Nazir Ahmad will apply. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. On the other hand, if the FIR does not disclose the commission of a cognizable offence, the court would be justified in quashing the investigation on the basis of the information as laid or received.
22.There is no such thing like unfettered discretion in the realm of powers defined by statutes and indeed, unlimited discretion in that sphere can become a ruthless destroyer of personal freedom. The power to investigate into cognizable offences must, therefore, be exercised strictly on the condition on which it is granted by the Code. I may, in this behalf, usefully draw attention to the warning uttered by Mathew,J. In his majority judgment in Prabhu Dayal Deorah V. D.M. Kamrup to the following effect:
We say, and we think it is necessary to repeat, that the gravity of the evil to the community resulting form anti-social activities can never furnish an adequate reason for invading the personal liberty of a citizen, except in accordance with the procedure established by the Constitution and the laws. The history of personal liberty is largely the history of insistence on observance of procedure. And observance of procedure has been the bastion against wanton assaults on personal liberty over the years. Under our constitution, the only guarantee of personal liberty for a person is that he shall not be deprived of it except in accordance with the procedure established by law.
23. For these reasons, which, frankly, are no different from those given by my learned brother A.N. Sen, I am of the opinion that the investigation which has been commenced upon the First Information Report is without jurisdiction and must, therefore, be quashed. I do accordingly and direct that no further investigation shall take place in pursuance or on the basis of the FIR dated December 13, 1980 lodged by the Commercial Tax Officer, Bureau of Investigation, with the Deputy Superintendent of Police, Bureau of Investigation, Madan Street, Calcutta.
14. Reliance has also been placed on Prashant Bharti Vs. State (NCT of Delhi) 2013 V. 9 SCC 293 wherein the Court cited the preposition of law pertaining to quashing of criminal proceedings by the High Court under Section 482 Cr.P.C. reported in Rajeev Thapar Vs. Madanlal Kapoor reported in 2013 3 SCC 330. Relevant portion whereof reads as under:-
30.Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C.
30. 1. Step One: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2. Step Two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?
30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 Cr.P.C. such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.
15. Reliance has also been placed on P.S. Rajya Vs. State of Bihar (1996) 9 SCC 1 wherein the Court observed that standard of proof required to establish the guilt in a criminal case is far higher then the standard of proof required to establish the guilt in the departmental proceedings. In the case before the Hon'ble Apex Court the charge in the departmental proceedings and in the criminal proceedings was one and the same. The court held that if the charge which is identical in a departmental proceedings and is not proved there remains nothing to proceed against the appellant in criminal proceedings. At para 20 of the Judgment, the Court observed as under:-
20. At the risk of repetition, we may state that the charge had not been proved and on that basis the appellant was cleared of departmental enquiry. In this connection, we may also usefully cite a decision of this Court in State of Haryana V. Bhajan Lal. This Court after considering almost all earlier decisions has given guidelines relating to the exercise of the extraordinary power under code of Criminal Procedure for quashing an FIR or a complaint. This Court observed as follows:
16. Reliance has also been placed on C K Jaffer Sharief V. State 2013 Cr.L.J. 341 wherein the Hon'ble apex Court has held that dishonest intention is an essence of offence. Criminal guilt would attach to a man for a violation of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens sit rea. It signifies that their can be no crime without a guilty mind. To make a person criminally accountable it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a illegally blameworthy attitude of mind. Thus, there are two component of every crime, a physical element and a mental element, usually called actus reus and mens rea respectively:.
17. That was a case where allegation was that the minister prevailed upon the public sector undertaking to send employees abroad in connection with his medical treatment and thereby caused loss to PSUs. Evidence however was to the effect that the concerned employees have assisted the minister in performing his official duties. The Apex Court observed that the minister has not abused his position to get pecuniary advantages for himself and others. The Act of minister may be extravagant, improper or contrary to the norms but certainly not dishonest- Prosecution against the minister was thus quashed by the Apex Court.
18. Reliance has also been placed upon (2015) 6 SCC 363 (Kalyani Mathivanan Vs. K.V. Jeyaraj & Ors.) wherein the Hon'ble Apex Court has held that the UGC Regulations 2010 are Directory for the Universities, Colleges and other higher educational institutions. As the matter has been left to the State Government to adopt and implement the scheme, thus, the court observed that UGC Regulations are partly mandatory and partly directory. The contention thus is that even if it is found that certain regulations have not been followed, the criminal mens rea is lacking therefore, there is no justification in allowing the proceedings to continue.
19. Learned Sr. counsel Mr. Mahesh Bora assisted by Mr. Nishant Bora for Dr. R.N. Prasad, Faculty of Law while supporting the contention raised by the learned Counsel for Dr. Bhanwar singh has argued that the only allegations against Dr. R.N. Prasad is relating to the selection of Sunil Asopa as the Assistant Professor and the allegation is that he is son of Mr. S N Sharma, retired Professor and Dean, faculty of Law. Being Dean and member of the selection committee, he has been arrayed as an accused in the FIR.
20. The counsel has argued that there were three posts for which 12 forms were received, all were called for interview and two were selected. Mr. Sunil Asopa has joined but the other selected candidate has not joined. The appointment of Sunil Asopa has not been challenged by any one. It is also argued that out of 9 members in the selection committee only Vice chancellor, Dean and Head of the Department and the persons who have been appointed have been made accused. The Experts', Nominee of his Excellency the Governor, Nominee of the State and Nominee of the Syndicate have not been made accused in the FIR which goes to show that the ACB is bent upon disturbing the fabric of the University as the Vice Chancellor, three Deans and six Head of the Department have been made accused in this case.
21. The contention of learned Additional Advocate General, Mr. Rajesh Panwar in support of the FIR is that the Division Bench which was seized with the matter relating to the appointment have not dealt with the merit and allegations in the FIR and only on technical grounds the writ petition was dismissed in liminie as selected candidates were not made party therefore, the decision in writ petition do not debar the ACB to prosecute the petitioners.
22. It is argued that as per the rules the applications were to be submitted to the Registrar within the time prescribed and it was the Vice Chancellor alone who could condone the delay in filing of applications. It was argued that one Mr. Deepak moved an application for condonation of delay in submitting the application but the same was rejected by the Vice Chancellor. The contention of the learned Addl. Advocate general is that the Vice Chancellor being head of the institution and head of the Selection committee should have followed the rules and regulations, the selections being done in violation of rule tantamounts to criminal misconduct. It is argued that Rule 5 was not followed and list of candidates who were to be called for interview was not prepared. It is argued that the time prescribed for interviewing was not observed. The case diary has been placed before me for perusal and it is argued by learned Addl. Advocate General that the Governor Nominee Mr. MM Roy on a particular date left at 1.15 p.m. And signed on the next day. My attention has also been drawn to the statement of Dr. Suresh Nath Modi, Dr. Keshwanand, Dr. Kalpana Purohit, Nahar Singh, Akhil Ranjan and Murari Mohan Roy.
23. It is argued that candidates who were not eligible have been made eligible on the basis of qualifications acquired by them after the last date of submission of application form. It is further contended that the investigation in this case has continued as per the direction of Hon'ble Court and ACB is in the process of seeking instruction for filing the charge-sheet thus, if there is any grievance the petitioners can raise them before the learned trial court.
24. Reliance has been placed on M. Narayanan Nambiar Vs. State of Kerala reported in AIR 1963 SC 1116 wherein the Apex Court while dealing with the provisions of the Prevention of Corruption Act observed as under: -
There is no reason why when a comprehensive Statute was passed to prevent corruption this particular category of corruption should have been excluded therefrom because the consequences of such acts are equally harmful to the public as acts of bribery. On a plain reading of the express words used in the clause, we have no doubt that every benefit obtained by a public servant for himself, or for any other persons by abusing his position as a public servant falls within the mischief of the said clause.
25. Reliance has also been placed on 2004 Vol.1 SCC 691 (State of M.P. Vs. Awadh Kishore Gupta & Ors.) wherein the Court was dealing with the power of the High Court under Section 482 Cr.P.C. The relevant portion reads as under:-
11. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no har-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. (See Janata Dal Vs. H.S. Chowdhary and Raghubir Saran (Dr) Vs. State of Bihar). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. (See Dhanalakshmi v.R. Prasanna Kumar, State of Bihar v. P.P. Sharma, Rupan Deol Bajaj V. Kanwar Pal Singh Gill) State of Kerala V. O.C. Kuttan, State of U.P. V. O.P. Sharma, Rashmi Kumar V. Mahesh Kumar Bhada, Satvinder Kaur V. State (Govt. of NCT of Delhi) and Rajesh Bajaj v. State NCT of Delhi.)
12.These aspects were also highlighted in State of Karnataka V. M Devendrappa.
13. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as it if was a trial Judge. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan V. Jawahar Lal it was observed that when the materials relied upon by a party are required to be proved, no interference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. When the factual position of the case at hand is considered in the light of principles of law highlighted, the inevitable conclusion is that the High Court was not justified in quashing the investigation and proceedings in the connected case (Crime No. 116 of 1994) registered by the Special Police Establishment, Lokayukta, Gwalior. We set aside the impugned judgment. The State shall be at liberty to proceed in the matter further.
26. Learned Addl. Advocate General has also placed reliance on AIR (2012) 10 SCC 155 (State of Madhya Pradesh Vs. Surendra Kori). The relevant portion reads as under:-
14.The High Court in exercise of its powers under Section 482 Cr.P.C. does not function as a court of appeal or revision. This Court has, in several judgments, held that the inherent jurisdiction under Section 482 Cr.P.C., though wide, has to be used sparingly, carefully and with caution. The High Court, under Section 482 Cr.P.C. should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material.
27. In M.M.T.C. Ltd. V. Meedchl Chemicals and Pharma (p) Ltd. This Court held as follows:
The law is well settled that the power of quashing criminal proceedings should be exercised very stringently and with circumspection. It is settled law that at this stage the Court is not justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the complaint. The inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.
28. Reliance has also been placed on (2002) 1 SCC 555 (Kamaladevi Agarwal Vs. State of W.B. And Ors.) wherein the Court has observed that inherent powers under Section 482 Cr.P.C. should be exercised sparingly and if the trial court has found that the complainant has made out a prima facie case against the accused persons of forgery of documents the High Court is not justified in quashing the criminal proceedings on the ground that the same document was under scrutiny before it in a civil proceedings initiated by the same complainant.
29. Reliance has also been placed upon (2014) ( 3) SCC 383 (Bhaskar Lal Sharma & Anr. Vs. Monica & Ors.). Relevant Para 11 reads as under:-
The facts, as alleged, therefore will have to be proved which can only be done in the course of a regular trial. It is wholly unnecessary for us to embark upon a discourse as regards the scope and ambit of the Court's power to quash a criminal proceedings. The appreciation, even in a summary manner, of the averments made in a complaint petition or FIR would not be permissible at the stage of quashing and the facts stated will have to be accepted as they appear on the very face of it. This is the core test that has to be applied before summoning the accused. Once the aforesaid stage is overcome, the facts alleged have to be proved by the complainant/prosecution on the basis of legal evidence in order to establish the penal liability of the person charged with the offence.
30. The learned Addl. Advocate General has also placed reliance on 2002 (6) Supp. 548 (M.L. Bishnoi Vs. M.K. Pandita & Ors.) wherein the larger Bench of the Hon'ble Apex Court has held that while dealing with the application under Section 482 Cr.P.C. for quashing of FIR, the Court is not required to deal with the entire matter including statement. The Court is only required to examine the allegations made in FIR.
31. The learned Addl. Advocate General has further contended that the record has been destroyed and certain record has been forged by the petitioners for which charge-sheet under Sections 201, 477, 420, 467, 468 and 471 IPC is proposed against the accused.
32. Learned counsel for the petitioner in rejoinder has stated that the TA Bill of Mr. M.M.Roy which has been relied upon by learned Addl. Advocate General to show that Mr. Roy was not available when the interview took place on a particular day pertains to the faculty of Fine Arts. None of the seven candidates for which the FIR has been filed is from fine Art thus even if Mr. Roy was not available and has signed the note sheet on the next date the same can only be considered as an irregularity. With regard to destroying the record, the learned Sr. Advocate for the petitioner Mr. Mahesh Bora assisted by Mr. Nishant Bora stated that new Vice Chancellor has been appointed seven months back, the investigating Officer could have obtained the record from the new Vice Chancellor. It is also stated that there is no allegation with regard to destroying of the record and the entire record was supplied to the Investigating Officer. It is also stated that out of 157 selections made the allegations pertains to only six appointments. It is also pleaded that there is no allegation of bribe and every wrong is not a criminal wrong and for charging the accused under Section 120B, there ought to be prior meeting of the mind of members of the Selection Committee. Out of 9 members of each Selection Committee only three have been made accused. None of the candidate who has been declared ineligible has filed any case against the petitioner. The petitioners have performed their duty in accordance with practice prevailing in the University and adopted from times immemorial. There being absence of mens rea the FIR should be quashed.
33. I have given my thoughtful consideration to the rival contentions of the parties.
34. The allegations against the Vice Chancellor is that he permitted qualifications to be added after the last date for submission of the applications i.e. 25.1.2012 and in doing so he was in connivance with the Deans and Head of the Department of various faculties.
35. The allegation against the scrutiny committee which consisted of Dean and Head of the Department of various faculties is that they rejected the application of eligible candidates.
36. Taking note of the judgment of the Hon'ble Apex Court delivered by three Judges Bench in M.L.Bishnoi. Vs. M.K. Pandita (Supra). I deem it proper to deal only with the allegations made in the FIR filed by the ACB. Learned Additional Advocate General has himself placed before me the judgment of the Hon'ble Apex Court in M.L. Bishnoi (supra) case wherein the Hon'ble Apex Court has held that the Court by deciding application under Seciton 482 Cr.P.C,. is not required to deal with the entire matter including the statement. The Court is required only to examine the allegations made in the FIR. In view of the pronouncement referred to by the learned Addl. Advo. General I am not inclined to discuss the statements of witness recorded by the Investigating Officer. The FIR was filed by the ACB on 04.8.2014 after conducting preliminary enquiry for about one and a half year.
37. The FIR makes a mention about Mr. Rishabh Gehlot who acquired qualification on 19.7.2012 and whose qualifications were directed to be taken on record by the Vice Chancellor. In relation to Rishabh Gehlot, the allegation is also against Dean Professor Mr. Narendra Avasthi and Head of the Department Dr. S.P. Gupta.
38. The other candidate who finds place in the FIR is Rajendra Singh who also obtained Ph.D degree on 15.12.2012 and the Vice Chancellor on his application permitted his degree to be taken on record. It is alleged that Mr. Rajendra Singh is the brother of Mr. Doongar Singh Khinchi, Member of the Syndicate, JNV University. The allegation with regard to scrutinizing his application is on Dean Professor Mr. Narendra Avasthi and Head of the Department Dr. Narendra Gupta.
39. The allegation also pertains to Smt. Sharad Shekhawat who also obtained requisite qualifications on 5.12.2012 and whose qualification was permitted to be taken on record on an application filed by her on 05.12.2012. It is also alleged that Smt. Sharad Shekhawat is wife of brother of Dr. Doongar Singh Khichi, Member of the Syndicate, JNV University. The allegation with regard to scrutinizing her application is on Dean Professor Mr. Narendra Avasthi and Head of the Department Dr. Bheem Singh Chouhan. The allegation with regard to Mr. Manish Vadera is that he appeared in NET Examinations on 24.6.2012 and he produced his mark-sheet dated 07.12.2012 and his Mark-sheet was directed to be taken on record by the Assistant Vice Chancellor Shri Shanti Prasad Ramdev. It is alleged that Mr. Manish Vadera is son of Dr. M.L. Vadera, Professor of Accounts.
40. Mr. Mohit Jeengar is yet another candidate who also appeared in NET on 24.6.2012 and submitted his mark-sheet dated 03.12.2012 to the University and whose qualifications were taken on record. Mr. Mohit is stated to be the son of Dr. Amrit Lal Jeengar, Professor `Vyavsaya Arthshastra and Viniyam (Business Economic and Exchange).
41. The allegations with regard to Mr. Vivek is that he acquired the qualifications on 22.12.2012 and who moved an application on 22.12.2012 stating that he is professionally qualified UGC NET, the Vice Chancellor directed that his qualifications be taken on record.
42. Mr. Sunil Asopa another candidate is stated to be the Son of Shri Shyam Sunder Sharma who was Professor in the Law Department and who retired on 31.7.2012. It is alleged that the experience certificate filed by the applicant was doubtful. The allegation with regard to scrutinizing his application is on Professor R.N. Prasad, Dean Faculty of Law.
43. In the FIR, the allegation has been levelled against all the Deans and the Head of the Department who were member of the Scrutinizing Committee for accepting the qualifications after the last date of submission of the application form.
44. The other allegation in the FIR is related to interviewing more persons and giving them less time. Yet another allegation pertains to rejecting the applications of persons who were holding requisite minimum qualifications. The allegation in this regard has been levelled against the Dean and Head of the Department who were members of the Scrutiny Committee.
45. As regard the allegation pertaining to acquiring minimum qualification after the last date of submission of application form, it is to be noted that as many as 51 candidates submitted their requisite documents pertaining to their qualifications after the due date and they were all taken on record. It is to be noted that the Syndicate of the University in the year 1976 authorized the Vice Chancellor to receive the application form after last date of submission of the application forms. The relevant Rule reads as under:- The applications must be submitted to the Registrar within the time prescribed. The Vice Chancellor, may, however condone the delay in receipt of applications The Scrutiny Committee consisting of Deans of the Faculties and the Heads of the Departments held on 1.12.2007 reiterated the spirit of above rule and resolved vide Clause 4 as under-
4. Documents like Mark-sheets, NET, SLET, Ph.D., SC/ST Certificates etc, received after due date, be accepted.
46. The Vice Chancellor was thus, authorized to condone the delay in submission of the forms. The petitioner Vice Chancellor in his petition has pointed out to the recruitment process carried out in the earlier years where after the date of submission of the application form the qualifications were considered.
47. This assertion has not been refuted by the State. Even the learned Addl. Adv. General agrees that the Vice Chancellor is authorized to accept the forms after the due date. Thus in view of the above Rule and past practice adopted by various Vice Chancellor, the qualifications were permitted to be added after the due date of submission of form.
48. The inclusion of the qualification after the last date cannot be considered to be malafide on the part of the Vice Chancellor, he being authorized to condone the delay and that being the past practice in the University. However, it is also relevant to note that the candidates moved proper application for taking their qualification on record and orders were passed thereon by the Vice Chancellor. Thus, everything was done in black and white and it is not the case of the State that the qualifications were added without proper sanction by the Vice Chancellor. The practice being adopted for each and every applicant and taking on record the qualifications of 51 applicants also goes to show that was no discrimination.
49. As regards the allegation pertaining to the rejection of application forms of candidates who were holding requisite qualifications. The allegation in this regard has been raised against the Dean and Head of the Department who were members of the Scrutiny Committee. It is to be noted that as many as 5000 applications were received for appointment to the post of Associate Professor and Assistant Professor in the University. None of the candidates whose form has been rejected by the Scrutiny Committee has challenged his rejection. Had there been any objection by the rejected candidate, the University would have immediately considered his application and would have passed appropriate orders with regard to interviewing the candidate. Even assuming for the sake of arguments that few candidates who had requisite qualifications were not called for interview, this cannot be considered as a criminal act which would constitute an offence under Prevention of Corruption Act. The candidates whose applications were rejected having not challenged the rejection, the only inference that can be drawn is that the rejections were rightly made.
50. The other allegation in the FIR pertains to interviewing a large number of candidate on a single day. The learned Addl. Advocate General has pointed out that in the time schedule as provided, particular time is to be given to each candidate who has been called for interview. In this regard, it may be noted that the Interview Board constituted of Vice Chancellor, Dean, Head of the Department, three experts' nominee of His Excellency the Governor, nominee of the State and nominee of the Syndicate. It is stated in the petition that the interviews started early morning at 9 a.m. and lasted till late night as per the number of the candidates. Less time being given to the candidates in interview can be considered as irregularity or non-compliance of the rule but it cannot be considered as a crime. Moreover, the FIR is not against the experts and nominees of his Excellency the Governor and the State and the Syndicate who also constituted the Selection Committee. The selection process being initiated after a lapse of 20 years and the fact that there were many candidates giving of less time cannot be considered to constitute offence under prevention of corruption Act. Further, there are many faculties in which number of candidates were called for interview but there is no allegation of selected candidates being appointed dehors the Rules in these recruitments. Giving of less time to a candidate do not constitute an offence under the prevention of corruption Act. Thus, this allegation in the FIR does not implicate the petitioners.
51. The other allegation in the FIR pertains to delay in completion of Selection process.
52. The advertisement mentions the last date of receipt of application as 24.12.2011 and 25.12.2011. The interview took place from 23.12.2012 to 12.2.2013. The petitioner Vice-Chancellor in his petition has mentioned that 5000 applications were received. The sorting out was done by the establishment section and the forms were segregated department wise and the entire process was over by 11.5.2012. The sorting out took time as gist of every individual application form was prepared and entered into the record of the University. The establishment section itself scrutinized the list department wise so that the application may be sent to the scrutinizing committee.
53.It is also submitted by the Vice Chancellor that the list of experts for the individual subject was prepared by the Departmental Council of the relevant department which varied from experts numbering 30 to 50 from all over India in each subject. The Departmental Council submitted the list to the Academic Council for its approval. The Academic Council approved the list and same was placed before Syndicate for approval. Further short listing of the experts was finally done by the Committee of the State Government and one nominee nominated by the State Government from RPSC. Letters were sent to RPSC for nominating the member and the list of 12 experts in each subject was finalized in August, 2012.
54.The Vice Chancellor has also mentioned that during this period the regular examination, the admission process and the election of the Students Union were held. The examination process was initiated in February, 2012 and lasted upto July, 2012. The admission process was initiated in January, 2012 and lasted upto 30th September, 2012. The Student Union Election took place in August, 2012 thus, entire University was busy during this period with the examination, admission and election of the Students Union. 52. The Vice-Chancellor has also cited case of Rajasthan University where Advertisement No. 3/12 for vacancies of teachers in various Departments was issued and the last date for submission of application form was 31.12.2012. The interview in all Departments of University took place only form January, 2014 except few departments where interviews were held in Sept-Oct., 2013. Illustration of previous selection of JNV University is also there wherein the last date of submission of application form was 31.5.2015 and the interview started in the month of April, 2016. Another advertisement bearing No. 18/02-03 issued for Assistant Professor and Associate Professor where last date of submission was 30.7.2002 and interview could be taken only form August, 2003 has also been cited.
55. I have carefully considered the entire record placed before me. The recruitment process was undertaken by the University after about 20 years for large number of subjects and most of the departments were involved. The delay in holding the interviews where experts are to be called with the aid of nominees of Government and RPSC and where experts have to be called from all over India, the delay is inevitable, and this delay cannot be attributed as a criminal act moreover since on earlier occasions also, the interviews were held only after a lapse of one year of the last date of submission of application form and those were incidents when recruitments were to be held for few posts. The present being major recruitment process taken after almost 20 years, the delay is not material and cannot be considered to be one with a criminal intent.
56. With regard to selection of relatives by the Selection committee, it is to be noted that as many as 46 relatives appeared before the Selection committee, out of which the allegations pertains to only five relatives. It is also to be noted that one Miss Kavita Rajpurohit who happens to be daughter of Mr. Ram Chandra Singh Rajpurohit, Dean, Faculty of Commerce and who was member of selection committee and is made an accused in this case was not selected. Thus, had there been any nexus or favouritism only five relatives would not have been appointed and this figure would have been more. Further out of list of persons who have been made accused in the FIR, Vivek and Rishabh are not related to any of the University Employee. Each Selection Board was having 9 members Vice Chancellor, Dean and Head of the Department being three in number could not be considered to be in a position to prevail upon three experts and three nominees of the State, his excellency the Governor and the Syndicate, thus, selection of few relatives of employees of University cannot by any means be considered to be a criminal act so as to invoke the provisions of Prevention of Corruption Act.
57. As far as destruction of record is concerned, no mention of this has been made in the FIR lodged by the ACB after conducting preliminary enquiry for more than one year and the ACB has not mentioned as to what documents were not supplied to it and as to who has destroyed the record. Even after the change of the Vice-Chancellor, no record has been called form the present Vice Chancellor thus, it appears to be an after thought on the part of the investigating officer to have raised this ground. As regards allegation that one Mr. M.M. Rao who was member of the Selection Committee on a particular day left at 1.15 p.m. and came on the next date. A specific query was put to the investigating officer who was present in the Court as to whether any person was selected in the interview that was held in his absence to which he could not give any reply and his only reply was that on that day the interview for fine arts was held. In the present FIR, there is no allegation of appointment or favouritism in relation to the appointment in the faculty of fine arts. Thus, the discrepancy pointed out by the learned Addl. Advocate General in this regard has no merit.
58. I have carefully perused the judgment cited by the learned Addl. Advocate general. The provisions of the Prevention of Corruption Act is applied where a person abuses his position as a public servant to obtain a benefit for himself or for any other person as held in AIR 1963 SC 1116. But the fact remains that it has to be established that the public servant abuses his position to derive the benefit. The Vice Chancellor who has permitted taking of qualifications on record after the last date is said to have abused his position, similarly the Dean and Head of the Departments who were in the Scrutiny Committee are said to have abused their position by rejecting the applications of persons who were eligible and taking on record the qualifications acquired after 25.1.2012. As discussed by me in the foregoing paragraphs, this has been a constant practice of the University in considering the qualifications of the candidate on the date of the interview. The qualifications of as many as 59 applicants were taken on record prior to the date of interview and that being a general practice, prevalent from last many selections and the Vice Chancellor having taken on record the qualifications on applications filed by the applicants, it cannot be said that the same was done in the nature of back-door entry. The Dean and Head of the Departments who permitted inclusion of qualification did so on the instructions of the Vice Chancellor who is authorized to permit the applications after the last date mentioned in the advertisement. Thus, it cannot be said that there was any abuse of position by the public servant. The rejection of candidates who were holding requisite qualifications also do not fall under the ambit of abuse of position since none of the applicant whose application has been rejected has approached the University. It is also to be noted that there were as many as 5000 applications and the applications were scrutinized at different level and only the applications of eligible candidates were placed before the Scrutiny Committee. There was only one complaint by an eligible candidate and the University immediately considered his application and permitted him to appear in the interview thus even taking into consideration the judgment reported in AIR 1963 SC 1116 the abuse of position by the Public Servant is not made out.
59. As per the University Grants Commission all the applicants who are holding Ph.D. Before 2009 were required to clear NET. The resolution of the Syndicate was to the effect that applicants who who have done Ph.D before the year 2009 are not required to clear NET.
60. The contention of learned Addl. Advocate general that the University Grants Commission Regulation are to be applied do not have any force since in Kalyani Mathivanan's case the Hon'ble Ape Court has held that the University Grants Commission Regulation are partly mandatory and partly directory and once the Syndicate has taken a decision, acting the basis of that decision even cannot be said to be misuse of power or involving any criminal mens rea.
61. The learned AAG has placed reliance on State of Madhya Pradesh Vs. Avadh Kishore Gupta and Ors. (Supra) which was a case where the Hon'ble Apex Court was dealing with the powers of the High Court under Section 482 Cr.P.C. The Hon'ble Apex Court held that powers under Section 482 of the Code are very wide but it requires a great caution and the very platitude of the power requires great caution in its exercise. The Court should be careful to see that its decision is based on sound principals. Similar is the view expressed in the State of Madhya Pradesh Vs. Surendra Kauri (Supra) wherein the Hon'ble Apex Court held that the inherent powers under Section 482 Cr.P.C. though wide has to be used sparingly, carefully and with caution. In MMTC Limited Vs. Mirchi Chemicals and Farma Private Limited the Court held that for quashing the criminal proceedings the power should be exercised very stringently and with circumspection. Similar is the pronouncement of 2002 (1) SCC 555 (Kamla Devi Aggarwal Vs. State of Bangal and Ors.). Undoubtedly the power restricted under Section 482 Cr.P.C. though wide are to be exercised carefully and with caution and it would depend upon facts and circumstances of each case where the discretion should be exercised.
62. The gist of the rulings cited by the rival parties broadly lead to the only conclusion that the powers of the High Court under Section 482 Cr.P.C. is very wide but the discretion is to be exercised with great caution. In the touchstone of the above pronouncement considering the present case where 5000 applications were received for appointment to the post of Associate Professor and Assistant Professor in four Departments and 27 subjects where Selection Committee consisted of Vice Chancellor, Deans, Head of the Department, three nominees one each of his Excellency the Governor of the State Government and of the Syndicate, three experts in each Selection Committee called from different parts of the country and 157 selections were made out of which allegations pertains to only seven persons out of which five are said to be relatives of the Professors and Syndicate member.
63. None of the appointments have been set aside by any competent court and in fact the writ petition filed against the appointment has been dismissed by the High Court. Further the writ petition filed by Dr. Rajshree Ranawat bearing writ petition No. 11314/2015 was allowed on 04.11.2015 and the non petitioners therein have been directed to grant confirmation/regularization of pay scales. The State Government has decided not to file appeal against the said order. Thus, the appointments made by the University have been held to be in order.
64. It is also pertinent to note that the communication dated 15.4.2015 vide which the Government constituted a committee to make an inquiry with regard to process of selection, has been withdrawn by the High Court. Thus, no inquiry on the administrative side is now pending with the Government.
65.There is no allegation of corruption in the selection process and no one has approached the Police or the Anti Corruption Department with regard to corruption. The Anti Corruption Department after about one year of the selection has lodged the FIR against the Vice Chancellor, three Deans and six Head of the Department of the University as well as 7 selected candidates. That being so, this Court having held in the foregoing paragraphs that none of the allegations point out towards criminal mens-rea considering the pronouncements of the Hon'ble Apex Court in C.R. Zafar Sharif's case (supra) that dishonest intention is an essence of offence. It necessary to invoke the jurisdiction under Section 482 Cr.P.C. as the continuation of proceedings in the FIR would not only destroy the fabric of the University but will also unnecessarily force petitioners to face a trial for an offence which is not made out. In coming to the said conclusion, I find support from P.S. Rajya Vs. State of Bihar (Supra) wherein the Apex Court held that if the charge-sheet which is identical could not be established in the departmental proceedings there remains nothing to proceed in a criminal case. Since in the present case the Government has dropped the proceedings/inquiry on the administrative side, there is no reason why the criminal proceedings should be allowed to continue. In C K Zafar Sharif's case (supra) the Hon'ble Apex Court held that there can be no crime without a guilty mind for holding a person criminally accountable. It must be proved that the Act which is forbidden by law has been caused by his conduct and the conduct accompanied by legal blameworthy attitude of mind. Both the physical element as well as mental element is missing in this case.
66. The Hon'ble Apex Court in Prashant Bharti (supra) held that when the proceedings with trial would result in abuse of process of court and would not serve the ends of justice the Judicial conscious of the High Court ought to have persuaded on basis of material available to quash the criminal proceedings. The Hon'ble Apex Court in that case referred to Rajeev Thapa's case wherein the Court delineated the steps referred in para 14 to determine the veracity of prayer for quashing the FIR. I am of the considered view that all the answers to the steps are in affirmative and no offence is made out from the allegations in the FIR. Further the proceedings with the trial would result in abuse of process of Court and would not serve ends of justice. The judicial conscience of the Court is thus, inclined to quash the FIR in exercise of powers vested under Section 482 of Cr.P.C.
67. In view of the discussion made here-in-above, I am inclined to allow these criminal miscellaneous petitions and quash the FIR bearing No. 269/2014 dated 4.8.2014 qua the petitioners as well as the persons arrayed as accused in the FIR.
(PANKAJ BHANDARI), J.
nd.
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