Cbi vs 1. Gurdial Singh on 1 October, 2013

[Cites 30, Cited by 0]

Delhi District Court

Cbi vs 1. Gurdial Singh on 1 October, 2013

                                   1

       IN THE COURT OF SH. J.P.S MALIK :SPECIAL   JUDGE 
              CBI03 (PC ACT):  TIS HAZARI: DELHI


Corruption Case No. 06/10
RC No. RC2(S)/96/ CBI/SCBI/ND

CBI           Vs            1.   Gurdial Singh
                                 s/o Sh. Gopal Singh
                                 Then Resident Commissioner
                                 Govt. of Tripura, 
                                 Tripura Bhawan, New Delhi
                                 Now IG CID Crime and Railways
                                 State of Gujrat, 09, 
                                 New Mental Compound
                                 Meghani Nagar, Ahmedabad
                                 R/o Bunglor No.33, Shahi Bagh, 
                                 Ahemdabad, Gujrat.

                            2.   Sudhir Ranjan Majumdar (since expired)
                                 s/o Late Sh. Anand Chandra Majumdar
                                 the then Chief Minister of Tripura, Agartala
                                 Now M.P.(Rajya Sabha)
                                 r/o 13, Gurudawara Rakabganj, New Delhi.
                                 (permanent address: Town Bordowali,
                                 Agartala, Tripura)


                            3.   Kanshi Ram Reang (since expired)
                                 s/o Late Sh. Mungthunaha Reang
                                 Then Health Minister, Govt. of Tripura,
                                 Agartala,
                                 r/o Krishna Nagar, Advisor, Chowmohani,
                                 Agartala. (Permanent address: Lakhi Charai
                                 P.S Bhaikhora, Bilonia, South Tripura.


CC No.06/10                                                            1of 86
                                     2



                           4.     Smt. Gita Banik
                                  D/o Sh. Ratan Lal Banik
                                  r/o Krishna Nagar, West Tripura,
                                  Agartala.


Date of Institution                   : 31.07.2000
Date of conclusion of arguments: 29.08.2013
Date of judgment                      : 19.09.2013

JUDGMENT:

1. Chargesheet was filed for commission of offence punishable U/S 120B r/w Sections 420, 468, 471 IPC and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988 against all the accused. Apart from that, chargesheet for substantive offences punishable U/S 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act was filed against accused no.2, S.R.Majumdar and accused no.3, Kanshi Ram Reang. Chargesheet for substantive offences punishable U/S 468 IPC and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988 was filed against accused no.1, Gurdial Singh. Chargesheet for substantive offences punishable U/S 420 and Section 468 IPC was filed against CC No.06/10 2of 86 3 accused no.4, Smt. Gita Banik.

2. The case relates to the admission of accused no.4, Smt. Gita Banik to the first year MBBS course in Darbhanga Medical College, Laheriasarai, Bihar as a nominee of Tripura for the academic year 19901991. Accused no.1, Gurdial Singh was the Resident Commissioner, Govt. of Tripura in New Delhi at the relevant time. Accused no.2, Sudhir Ranjan Majumdar, was the Chief Minister of Tripura and accused no. 3, Kanshi Ram Reang was the Health Minister, Govt. of Tripura, at the relevant time. Accused no.2, S.R. Majumdar and accused no.3, Kanshi Ram Reang have since expired and proceedings against them have abated. Accused no.4, Smt. Gita Banik was the candidate who had taken admission in Darbhanga Medical College, Laheriasarai, Bihar as a nominee of State of Tripura for academic year 19901991.

3. In brief, the facts are that Govt. of India in the Ministry of Health & Family Welfare, had been requesting every year the States/UT governments and certain other medical institutions for their contribution of MBBS/BDS seats to central pool and then allocate the same to the States/UTs CC No.06/10 3of 86 4 without medical colleges of their own, as also to some other specified categories. Pursuant to the confirmation of the contribution of MBBS/BDS seats from different States/UTs, vide letter no. U.14014/15/90ME(UG) dated 03.05.1990, addressed to the Secretary, Health & Family Welfare department, Govt. of Tripura, Govt. of India, allocated 16 MBBS seats and 2 BDS seats to the State of Tripura. Again, following further contribution by States/UTs who had not confirmed their confirmation earlier, vide letter no. U. 14014/15/90ME(UG) dated 31.07.1990, Ministry of Health & Family Welfare, Govt. of India allocated 4 MBBS seats and 2 BDS seats to the Govt. of Tripura in different medical colleges/dental colleges in different States, in following colleges: MBBS seats

(i) Darbhanga Medical College, Laheriasarai, Bihar 1 seat.

(ii) Patna Medical College, Patna, Bihar 1 seat.

(iii) K.G's Medical College, Lucknow, U.P 1 seat.

(iv) Medical College Gwalior, Gwalior, M.P. 1 seat.

CC No.06/10                                                               4of 86
                                       5

      BDS seats

(i) Government Dental College, Patna 2 seats.

Further, vide letter no. U.14014/15/90ME(UG) dated 22.08.1990, one more MBBS seat was allocated to the State of Tripura, which was in Magadh Medical College, Gaya( Bihar).

4. The case of the prosecution is that out of the MBBS/BDS seats allocated to the State of Tripura by Govt. of India, 5 MBBS seats and 2 BDS seats were concealed and were suppressed from Tripura Board of Joint Entrance Examination and the Directorate of Health Services, Govt. of Tripura, Agartala and nominations were made unauthorisedly for those seats.

5. Further, the case of the prosecution is that State of Tripura was not having any medical college of its own and was allocated MBBS and BDS seats, every year from the central pool, by the Ministry of Health & Family Welfare, Govt. of India, in various colleges throughout the country. Some seats were also made available to the State of Tripura by the Regional Medical College, Imphal, Manipur and the CC No.06/10 5of 86 6 seats, so made available, were allocated to the selected candidates on the basis of merit.

6. In December, 1988, Govt. of Tripura constituted Tripura Board of Joint Entrance Examination (TBJEE) for selection of candidates through Joint Entrance Examination (JEE) conducted every year and nomination of the candidates in MBBS/BDS courses in various colleges were made on the basis of merit. Criteria for deciding the eligibility of the candidates were laid down in Tripura Board of Joint Entrance Examination Regulations, 1989. As per Regulation no.4 of the aforesaid Regulations, the eligibility for admission to the examination, interalia, was that applicant must be an Indian citizen and a permanent resident of Tripura in terms of memorandum No.F.28(31)rev/87 dated 12.12.1988 of the Revenue Department, Govt. of Tripura and have passed, appeared/due to appear in the year of the examination, at the Higher Secondary Examination of Tripura Board of Secondary Education/CBSE or equivalent examination. In case a candidate was not a permanent resident of Tripura, he was eligible to appear in the said examination, if his/her CC No.06/10 6of 86 7 parent was an officer on deputation to the Govt. of Tripura/officer of the Central Govt. working in Tripura having served for a period of not less than 3 years and had passed Higher Secondary Examination from an Institution of Tripura.

7. Ministry of Health & Family Welfare, Govt. of India had also issued detailed instructions in this regard vide letter No.U14014/84/86ME(UG) dated 09.12.1986 and criteria interalia was that only children of (i) permanent residents of the State/UT concerned, (ii) the employees of the State/UT concerned, (iii) the employees of the Central/other State/UT Govt. on deputation to the State/UT concerned, (iv) the employees of Central/other States/UT Govt. posted in and having their HQs with the State/UT concerned, will be eligible. Reservations were also made for Scheduled Castes and Scheduled Tribes candidates.

8. The procedure adopted after the constitution of Tripura Board of Joint Entrance Examination for the purpose of selection of candidates in professional degree courses including MBBS and BDS courses, was that on the basis of result of said examination, separate merit lists were prepared CC No.06/10 7of 86 8 for general category, Scheduled Caste candidates and Scheduled Tribes candidate in each group i.e. EPCM (English, Physics, Chemistry and Maths) and EPCB ( English, Physics, Chemistry and Biology). All the seats available against the two groups were to be made available to TBJEE and the Board was required to recommend the names of the candidates on the basis of seniority in each category in the merit lists for nominations. The nomination letters were required to be issued by the designated authority for each group and in respect of MBBS and BDS seats, the Director of Health Services, Govt. of Tripura was the only designated authority for issuing the nomination letters and was having the prescribed proforma of the nomination letters in which nominations were issued.

9. Further, case of the prosecution is that on receipt of a letter from the Principal of Darbhanga Medical College, Laheriasarai, Bihar, intimating the allocation of one MBBS seat in the said college for the State of Tripura by the Central Govt., one Scheduled Caste candidate from the merit list prepared after the Joint Entrance Examination held by TBJEE, CC No.06/10 8of 86 9 Sh. Uttam Kumar Das, was nominated by the Directorate of Health Services, Govt. of Tripura vide letter No.F II(105)ET/MS/90 dated 16.11.1990. However, nomination of Sh. Uttam Kumar Das was not accepted by the Principal of Darbhanga Medical College, Bihar on the ground that Ms. Gita Banik had already been admitted in the said Medical College against the seat allocated by Govt. of India. The matter was raised by Sh. Uttam Kumar Das on return to Agartala from Laheriasarai, Bihar and also by the Directorate of Health Services, Department of Higher Education and also by the Director for Welfare for Scheduled Caste. Accused no. 2, S.R.Majumdar and accused no.3, Kanshi Ram Reang, who were the Chief Minister and Health Minister of Tripura, respectively, at that time, passed orders on the file for continuance of Ms. Gita Banik against the said medical seat and they also blocked any further investigation in the matter.

10. Further, the case of the prosecution is that Ms. Gita Banik, D/o Sh. Ratan Chand Banik, R/o Krishna Nagar, P.O Agartala, West Tripura was not eligible for admission in first year MBBS course in Darbhanga Medical College, CC No.06/10 9of 86 10 Laheriasarai, Bihar against the Govt. of India reserved seat for Tripura Govt. as her name did not figure in the merit list of selected candidates prepared by TBJEE for the academic session 19901991. It was accused no.1, Gurdial Singh who had issued a nomination letter bearing No.F.II(105) ET/MS/90 dated 10.09.1990 fraudulently and dishonestly by using the prescribed proforma of the Directorate of Health Services, Govt. of Tripura, under his seal and signatures. It is the case of the prosecution that accused no.1, Gurdial Singh being the Resident Commissioner of Govt. of Tripura in New Delhi at that time, was not authorised to issue said nomination letter in the name of accused no.4, Gita Banik, which was done by him in collusion with accused no.2, S.R.Majumdar (since expired), the then Chief Minister of Tripura and accused no.3, Kanshi Ram Reang (since expired), the then Health Minister of Tripura and accused no.4, Gita Banik.

11. Charge for offences punishable U/s 120B r/w Sections 420,467,468,471 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act was framed against accused no.1, Gurdial Singh, accused no.2, S.R.Majumdar CC No.06/10 10of 86 11 (since expired) and accused no.4, Smt.Gita Banik. Accused no.3, Kanshi Ram Reang had expired before the stage of framing of charge against the accused persons. Apart from that, accused no.1, Gurdial Singh was also charged for substantive offences punishable U/S 420, 467, 468, 471 IPC as well as U/S 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act. Additional charge for offences punishable U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act was framed against accused no.2, S.R.Majumdar (since expired). Accused no.4, Smt. Gita Banik was also charged for substantive offences punishable U/S 420 and U/S 471 IPC. Accused persons pleaded not guilty and claimed trial.

12. Vide order dated 10.07.2007, 5 cases being CC No. 06/10(Old case no. 2/2000), CC No.07/10 ( Old case no. 3/2000), CC No.10/10 ( Old case no.4/2000), CC No. 09/10(Old case no.23/2000) and CC No.08/10 (Old case no. 24/2000), were directed to be consolidated to the extent that evidence would be recorded in CC No. 6/10( Old case no. 2/2000), and same was to be read in all other matters.

13. Prosecution has examined 30 witnesses in order CC No.06/10 11of 86 12 to substantiate the allegations against the accused persons.

14. PW1 Sharda Prasad, Joint Secretary in the Ministry of Labour and Employment, in February 2003, was working as Joint Secretary, CenterState in the Ministry of Home Affairs and has deposed in regard to the sanction granted to prosecute the accused Rasheed Masood(accused in CC No. 08/10, 09/10, 11/10), the then Minister of State, Independent charge, Ministry of Health and Family Welfare, Government of India. The witness has authenticated the sanction order.

15. PW2 P.S. Pillai was working as Under Secretary in the Ministry of Home Affairs, Government of India, New Delhi and had authenticated the Sanction Order Ex. PW2/A to prosecute the accused, Gurdial Singh.

16. PW3 Ms. Amarjeet Kaur, Deputy Director General in the Ministry of Labour and Employment, Government of India, was posted as Deputy Secretary in the Ministry of Health and Family Welfare at the relevant time till May 1991, and accused Rasheed Masood(accused in CC No.08/10, 09/10, 11/10) was the Minster of Health and Family CC No.06/10 12of 86 13 Welfare, Government of India. The Witness has deposed in regard to forging of her signatures on a letter dated 23.11.1990, Mark A in file of case titled CBI Vs. Rajesh Madu, RC No. 296(A), chargesheet no. 14/97 in the Court of ACMM, Karkardooma Courts and certified copy of the file given Ex. PW3/A for identification.

17. PW4 Inspector Bir Singh (Retired), was posted as SHO, P.S. Chanakya Puri in the month of February 1996. The witness has deposed in regard to the registration of a case FIR No. 31 dated 09.02.1996 U/s 420/468/471/420 IPC. The witness has also deposed as regard the forwarding of copy of FIR and original documents in the case to Director, CBI, New Delhi, as per the order passed by Hon'ble Assam High Court at Guwahati(Agartala Bench). The witness has deposed as regard the FIR dated 09.02.1996 having been registered on a complaint made by Hardhan Sinha, Assistant Director, Health Services, Government of Tripura, Agartala.

18. PW5 Inspector Babbar Bhan, SHO, P.S. Chanakya Puri, New Delhi, has proved the carbon copy of FIR No. 31/96 dated 09.02.1996, and carbon copy of the same CC No.06/10 13of 86 14 is Ex. PW5/A.

19. PW6 B.B. Dev Verma, was the Deputy Resident Commissioner, Govt. of Tripura from 1982 till year 1992, and deposed as regard accused Gurdial Singh being Resident Commissioner, Government of Tripura, Tripura Bhawan, New Delhi, during the period 199091, and has proved the nomination letters signed by accused Gurdial Singh in favour of candidates for admission in different medical colleges against the seats allocated by Government of India, Ministry of Health and Family Welfare. The witness had also handed over documents to Inspector Richhpal Singh vide seizure memo Ex. PW6/K.

20. PW7 Sukhamoy Dey, Protocol Officer at Tripura Bhawan, New Delhi, testified that he was working in Tripura Bhawan since year 1980, and had worked as Protocol Assistant while accused Gurdial Singh was Resident Commissioner, Government of Tripura, New Delhi. The witness has identified signatures of accused Gurdial Singh on nomination letters in favour of candidates for admission in different medical colleges on the basis of allocation made by CC No.06/10 14of 86 15 Ministry of Health and Family Welfare, Government of India for State of Tripura, for the Academic Year 199091.

21. PW8 is R.D. Shukla, Retired Sr. Assistant from office of Principal, K.G. Medical College, Lucknow, U.P. The witness has proved the signatures of Principal Dr. P.K. Mishra on letter to SP, CBI dated 14.05.1996 Ex. PW8/A. PW8 also proved the signatures of Principal V.K. Khanna on nomination letter dated 06.08.1990 pertaining to candidate Pawar Sandeep Trilok Chand(accused in CC No.09/10) Ex. PW7/A for admission in first year MBBS course for academic session 199091 as nominee of Tripura Government.

22. PW9 is Pravin Srivastava, Joint Secretary, Government of India, Ministry of Culture, deposed that in December 1997, he was posted as Secretary, Government of Tripura, Agartala and had proved the Sanction Order Ex. PW9/A to prosecute the accused Gurdial Singh, Ex. PW9/B to prosecute the accused S.R. Majumdar( since deceased) Ex Chief Minister of Tripura, and Ex. PW9/C to prosecute accused Kanshi Ram Reang, Ex Health Minister, Government of Tripura.

CC No.06/10                                                             15of 86
                                     16

23. PW10 Trilok Chand, is the father of candidate Pawar Sandeep Trilok Chand(accused in CC no.09/10), who was admitted to K.G. Medical College, Lucknow, U.P., as a nominee of Tripura State, against reserved seats allocated to Tripura State by Ministry of Health and Family Welfare, Government of India for the Academic Year 199091.

24. PW11 is Mohd. Aftab Alam, being a clerk from Government Dental College, Patna, Bihar, and has testified as regard admission of accused Bipul Kanti Rakshit( accused in CC no.07/10) and accused Sonia ( accused in CC no.10/10) to the BDS course as nominee of Tripura, against the seats allocated to Tripura State by Ministry of Health and Family Welfare, Government of India, for admission in BDS course for the Academic year 199091.

25. PW12 is Kanwar Singh, Inspector( retired), CBI, who had gone to Government Dental College, Patna, Bihar on 30.05.1996, and had seized documents pertaining to admission of accused Sonia( accused in CC no.10/10) and accused Vipul Kanti Rakshit( accused in CC no.07/10) in BDS course for Academic Year 199091.

CC No.06/10                                                             16of 86
                                      17

26. PW13 is Dr. S.S. Srivastava, in July, 1996 was posted as Principal Darbhanga Medical College, Laheriasarai, Bihar, and had deposed as regard the admission of accused Ms. Gita Banik (accused in CC no.06/10) in Darbhanga Medical College, Laheriasarai, Bihar, in year 199091. The witness had also sent documents to CBI vide letter dated 11.07.1996.

27. PW14 J.N. Jha was posted as Admission Clerk in May 1997 in Patna Medical College, Patna, Bihar. PW14 has testified that accused Adnan Masood( accused in CC no. 08/10) was admitted in Patna Medical College on 21.11.1990 against Roll No. 84 for the Academic year 199091. The witness had also proved seizure memo Ex. PW14/B vide which documents were seized by CBI on 23.05.1997. The witness has also proved letter no. U.14014/15/90ME(UG) dated 31.07.1990 received from Government of India, Ministry of Health and Family Welfare signed by Ms. Amarjeet Kaur, Deputy Secretary, Ex. PW14/C.

28. PW15 is C.L. Bhatia, and had retired as Deputy Secretary from Government of India. The witness worked in CC No.06/10 17of 86 18 the Ministry of Health and Family Welfare, Government of India from 1968 to December, 2000. The witness worked as Desk Officer in Medical Education Desk from year 1985 to year 1991. Accused Rasheed Masood( accused in CC no. 08/10, 09/10, 11/10 ), was State Minister of Health and Family Welfare, Government of India, during year 199091. PW15 has proved letter no. U.14014/15/90ME(UG)dated 03.05.1990 signed by him Ex. PW15/B vide which 16 MBBS and 2 BDS seats were allocated to State of Tripura, and testified that copy of the same was sent to Incharge, Tripura Bhawan, New Delhi. PW15 also proved letter no. U. 14014/15/90ME(UG) dated 31.07.1990, signed by Ms. Amarjeet Kaur, Deputy Secretary, Department of Health, Ex. PW15/C, allocating 4 MBBS and 2 BDS seats to Government of Tripura. The witness also deposed as regard allocating of one more MBBS seat on 22.08.1990 vide letter no. U. 14014/15/90ME(UG) dated 22.08.1990 to the Sate of Tripura, copy/endorsement of the same being Ex. PW15/D and Ex. PW15/E. PW15 also proved noting by the accused Rasheed Masood(accused in CC no.08/10, 09/10, 11/10) on CC No.06/10 18of 86 19 Note no. 20 and Note no. 16, both signed by accused Rasheed Masood(accused in CC no.08/10, 09/10, 11/10) , being Ex. PW15/F and Ex. PW15/G.

29. PW16 is Dr. Haradhan Sinha, who retired as Assistant Director of Health Services, Government of Tripura, and has deposed in regard the procedure being adopted in the State of Tripura at the relevant time for selection of students to be nominated for admission in Medical/Engineering Colleges. PW16 also deposed as regard fraud in admission of students as nominee of Tripura Government, for the Academic Year 198990 as well as 199091, and also proved complaint Ex. PW4/C, lodged by him at P.S. Chanakaya Puri, New Delhi on 09.02.1996, as per the orders of Government of Tripura.

30. PW17 is Dr. Bikash Roy, who retired as Director of Health Services, Government of Tripura. The witness was Director of Health Services, Tripura from year 1996 to year 1998, and had proved the note Ex. PW17/M for approval for lodging FIR in the matter.

31. PW18 Darshan Singh, is father of accused CC No.06/10 19of 86 20 Sonia( accused in CC no.10/10).

32. PW19 is Ashok Kumar Majumdar, UDC, Government of Tripura, Tripura Bhawan, Guwahati. The witness was posted as LDC in the office of Resident Commissioner, Tripura Bhawan, New Delhi from year 1990 to April 2001. Deposition of this witness remained in conclusive.

33. PW20 is Dr. Nilmoin Deb Barman, who retired as Director, Health Services, Tripura. The witness was Director of Health Services, Government of Tripura, from year 1984 to year 1991. The witness deposed that prior to year 1988, there was no written test being held for selection of the candidates to be nominated to different Medical/Engineering Colleges, and selection used to be made on the basis of the marks obtained by students in 10 +2 examination. PW20 deposed that Director, Health Services, used to issue nomination letters of selected candidates. PW20 also testified that as from year1988 to year 1992, selection used to be made on the basis of an exam conducted by Tripura Joint Entrance Examination Board. Board used to send list on the basis of CC No.06/10 20of 86 21 merit to Director Health Services, State of Tripura, and Director, Health Services, used to nominate candidates on the basis of the merit list, so received.

34. PW21 is Sh. Rattan Chander Banik, father of accused Gita Banik. He had deposed regarding admission of accused Gita Banik in Darbhanga Medical College in first year MBBS Course for Academic Year 199091.

35. PW22 is Sh. S.S. Sharma, retired as Secretary to Government of India. The witness was Principal Secretary, Incharge of Health and Forest Departments, State of Tripura from December, 1989 to February 1991. The witness has testified that Director of Health Services was the authority empowered by State Government to issue nomination letters on the basis of the merit list forwarded to the Director of Health Services by Board of Entrance Examination. PW22 also testified that to his knowledge, no discretionary quota was available to anyone and no one, except the Director of Health Services, had authority to issue the nomination letters in respect of MBBS and BDS seats, during the period.

36. PW23 is Sh. Richhpal Singh, who was posted as CC No.06/10 21of 86 22 SI, CBI, SCB, New Delhi, in year 1996. The witness has testified that after the case was transferred to CBI from P.S. Chanakya Puri, New Delhi, case RC No. 2/96 was assigned to him for investigation, and he had seized certain documents during the period, he was investigating the case. The witness testified that investigation after 3 / 4 months, was handed over to Deputy Superintendent of Police, S.B. Sinha.

37. PW24 Dr. Irshad Masood( Uncle of accused Adnan Masood, accused in CC No.08/10), has testified as regard receiving of nomination letter in favour of accused Adnan Masood (accused in CC no. 08/10) for admission in first year MBBS course at his address in Roorkee, Uttarakhand.

38. PW25 Sh. S.B. Sinha, was working as Deputy Superintendent of Police in Special Crime Branch, New Delhi, during the period from 1996 to 2000. The witness has deposed as regard the receiving of investigation of the case from SI Richhpal Singh, and had done the major part of the investigation in the case.

39. PW26 is Sh. S.L. Mukhi, Retired Principal CC No.06/10 22of 86 23 Scientific Officer, CFSL, New Delhi. The witness has deposed as regard examination of certain documents, and has proved his report Ex. PW25/J, submitted in the matter.

40. PW27 is Sh. Shashi Prakash, Member, Central Administrative Tribunal, Allahabad Bench, and has testified that from November 1991 to October 1992, he was posted as Commissioner, Department of Health, Government of Tripura, and was also holding the charge of Secretary to Governor, Tripura. The witness has testified as regard the procedure being adopted at that time for admission of candidates of Tripura in various medical colleges of the country, which was on the basis of Joint Entrance Examination conducted by Department of Higher Education. The witness testified that nomination of MBBS and BDS seats used to be made by Director of Health Services based upon the list received from the Directorate of Higher Education. The witness also testified as regard the matter having been brought to his notice from orders of Hon'ble High Court regarding suppression of certain number of MBBS and BDS seats and proved the letter dated 16.07.1992 received CC No.06/10 23of 86 24 from Sh. Sudhir Sharma, Commissioner, Higher Education, Ex. PW22/A, in that regard. The witness further testified as regard administrative steps taken by him in that regard.

41. PW28 Sh. Anil Misra, was posted as Commissioner and Secretary, Health Department, Government of Tripura, in year 1995. He had deposed as regard cancellation of 9 MBBS and 3 BDS seats unauthorisedly, allocated for admission in different medical colleges of the country for the Academic Year 19891990 and 199091. PW28 further deposed that only Director of Health Services, was competent to issue nomination letters to the candidates for admission in first year MBBS & BDS Course at the relevant time.

42. PW29 is Sh. Pradeep Kumar Sarkar, Lokayukt, State of Tripura, in year 199091, was posted as District and Sessions Judge, Tripura (West), and had made inquiries after having received the orders passed by Agartala Bench of Hon'ble Assam High Court at Guwahati.

43. PW30 HC Ramesh Chandra, CBI, SCIII, New Delhi, has deposed as regards the summons given to him for CC No.06/10 24of 86 25 service of Vipin Bihari Mathur, a witness, cited by prosecution. The witness also proved the fax copy of Death Certificate Ex. PW30/D to the effect that witness Vipin Bihari Mathur had died on 04.02.2002.

44. Letter dated 06.09.1990 Ex. PA, issued by S. Chakarvorty, PA to Chief Minister, Tripura, was admitted by accused Gurdial Singh, who had admitted that said letter was handed over by him to IO on 07.02.1997 vide seizure memo Ex. PB dated 07.02.1997.

45. Accused were examined under Section 313 Cr. P.C and their statement recorded.

46. In his statement recorded U/S 313 Cr. P.C, accused Gurdial Singh, denied the allegations of any conspiracy with the coaccused or anyone else and has denied any role by him in suppression of additional 5 MBBS seats and 2 BDS seat allocated to Government of Tripura by Ministry of Health and Family Welfare, Government of India, New Delhi. Accused Gurdial Singh, further took the stand that being a Resident Commissioner, apart from liasioning CC No.06/10 25of 86 26 between the Central Government and State of Tripura, his job was to carry out the orders of CM, Governor and the Councils of Ministers of State of Tripura. Further, accused Gurdial Singh, had taken the stand that there was no gazetted notification or any other written orders laying down that only Director, Health Services was empowered to issue nomination letters to the candidates for Ist year MBBS and BDS Course as nominee of Tripura. He had signed the nomination letters on the instructions and orders from the Chief Minister's office. The orders were carried out by him in good faith and bonafide belief following the instructions of the Chief Minister. Further, accused Gurdial Singh did not dispute the signing of nomination letter in favour of coaccused Gita Banik for admission in first year MBBS course in Darbhanga Medical College, Bihar for the Academic Year 199091. Accused Gurdial Singh also took the stand that allottment of seats which are allocated to State of Tripura by Central Government, Ministry of Health and Family Welfare, Government of India, was done in a transparent manner and the nomination letters were issued on the instructions and CC No.06/10 26of 86 27 orders from the Chief Minister's office. Accused Gurdial Singh, has denied having misused his position as a public servant stating that he had obtained no gain to himself, denying any personal interest with regard to nomination of the candidates concerned. No witness was examined by the accused no.1, Gurdial Singh, in his defence.

47. In her statement U/S 313 Cr. P.C, accused Gita Banik denied the allegations of any conspiracy between her and other coaccused or anyone else for her admission on the basis of a nomination letter, as nominee of Government of Tripura in Ist year MBBS course in Darbhanga Medical College, Bihar, for the Academic year 199091. Accused Gita Banik took the stand that there was no notification or any document showing that it was only Director of Health Services, who was empowered to issue nomination letter in favour of the candidates for admission to MBBS or BDS course, as nominee of State of Tripura. Accused Gita Banik denied the allegations that coaccused Sudhir Ranjan Majumdar( since expired) the then Chief Minister of State of Tripura, was interested in her admission in MBBS course, CC No.06/10 27of 86 28 having written letters to Chief Ministers of 3 States stating that neither she nor her father, was known to the Chief Minister of Tripura at that time. Accused Gita Banik, also denied the allegations of suppression of any list from Department of Health, Chairman of TBJEE or Directorate of Health, of 5 MBBS and 2 BDS seat, which were allocated by Government of India later on, claiming that all the authorities in Tripura, were aware of the additional seats allocated by Ministry of Health and Family Welfare, Government of India. Accused Gita Banik, had taken the stand that nomination letter in her favour was a genuine document. Accused Gita Banik also claimed that she had appeared in the examination conducted by TBJEE in the year 1990. Initially, she was not nominated for MBBS or BDS Course. Her father continued to visit the office of Directorate of Health and enquiring about the upto date position of the nomination of the candidates for MBBS and BDS courses and after sometime, her father was told by an official of Directorate of Health, to submit 3 or 4 passport size photographs of herself, which were submitted by her, and after 1012 days, nomination letter in her favour for CC No.06/10 28of 86 29 Ist year MBBS Course in Darbhanga Medical college, Bihar, was received from office of Directorate of Health, and her father had acknowledged the receipt of nomination letter by signing Peon Book/Dispatch Register of Directorate of Health. She had taken admission on the strength of nomination letter, so received.

48. One witness was examined by accused Gita Banik in her defence. DW1 Dr. Debabratakar, Assistant Public Information Officer, Health Director, Government of Tripura, deposed regarding the photocopy of a letter dated 24.04.1991 alongwith photocopy of the list of the candidates nominated to different medical colleges by the Government of Tripura. The witness has proved Ex. DW1/A, office copy of letter no. F11(105) ET/ MS/90 dated 24.04.1991, alongwith list of nominated candidates Ex. DW1/B.

49. Arguments were heard on behalf of the prosecution and the accused persons. Written submissions were also placed on record on behalf of the accused persons.

50. As per the Government of Tripura, Education Department Notification dated 07.04.1989, published in the CC No.06/10 29of 86 30 Extraordinary Issue of Tripura Gazzeette, Tripura Board of Joint Entrance Examination, was constituted for conducting Joint Entrance Examination for admission to Engineering, Medical, Dental, Agricultural, Veterinary, and other Professional Degree Courses, against seats served for the State of Tripura including the seats of Tripura Engineering College. Eligibility for admission to the Joint Entrance Examination was prescribed in Regulation 4 of the same, which reads as under:

"4. Eligibility for admission to Examination: The applicant must be an Indian Citizen and a permanent resident of Tripura in terms of Memorandum No. F.28(31)REV/87 dated 12.12.1988 of the Revenue Department, Government of Tripura, which stipulates that the applicant or his/her parents must have stayed in Tripura for a continuous period of 10 (ten) years or more till the date of issue of the Certificate by the DM/ADM/SDO, and have passed/appeared/due to appear in the year of the examination at the Higher secondary Examination of Tripura Board of Secondary Education/Central Board of Secondary Education or equivalent with the subject in which he/she desires to appear at the Joint Entrance CC No.06/10 30of 86 31 Examination.

In case a candidate is not a permanent Resident of Tripura but his/her parent is an Officer on deputation to the Government of Tripura/Officer of the Central Government working in Tripura and has served in Tripura for a period of 3 years or more and passed Higher Secondary Examination from an Institution of Tripura he/she is eligible for seats of Tripura Engineering College. Children of all India services Officers borne in Manipur Tripura cadre will be eligible to appear at the examination irrespective of their prior stay in Tripura".

51. PW15 C.L. Bhatia, was the Desk Officer in the Medical Education Desk of the Ministry of Health and Family Welfare, Government of India, Nirman Bhawan, New Delhi, during the period 199091, had proved the letter no. U. 14014/15/90ME(UG) dated 03.05.1990, Ex. PW15/B, according to which 16 MBBS and 2 BDS seats for admission to the first year courses, were allotted to State of Tripura by the Central Government in various medical and dental colleges mentioned therein. PW15 C.L. Bhatia, further proved letter no. U.14014/15/90ME(UG) dated 31.07.1990, CC No.06/10 31of 86 32 Ex. PW15/C, signed by Smt. Amarjeet Kaur, Deputy Secretary, Department of Health, Government of India, vide which 4 MBBS and 2 BDS seats were allocated to the Government of Tripura. PW15 C.L. Bhatia, further proved that again vide letter no. U.14014/15/90ME(UG) dated 22.08.1990, one more seat was allocated to Government of Tripura, from Central Pool, by the Central Government in Magadh Medical College, Gaya. A spare copy and endorsement on the letter had been proved by the witness as Ex. PW15/E. Endorsement was, "delivery of 3 endorsements, original copy and office copy given to Sh. Laxman, Peon to Deputy Secretary(M) for handing it over to OSD, HFM, office copy awaited", and this endorsement was made by him on Ex. PW15/E, and endorsement has been proved as Ex. PW15/D. PW15 C.L. Bhatia, has thus proved that for the Academic Year 199091, 21 MBBS seats and 4 BDS seats for admission in Ist Year MBBS/BDS Course from the Central Pool, were allocated to State of Tripura. PW15 C.L. Bhatia, had also proved the detailed guidelines issued by Central Government vide letter no. U.14014/84/86ME(UG) dated 09.12.1986, Ex.

CC No.06/10                                                              32of 86
                                         33

PW15/M (Photocopy of guidelines) broadly defined eligibility conditions of the candidates, to be nominated by States/UTs against the seats allocated to them by Central Government, which were particularly for the residents of the particular State/UT, or the children of the employees working therein.

52. PW27 Shashi Prakash, was posted as Commissioner, Department of Health, Government of Tripura at Agartala during the period November 1991 to October 1992, and had testified that in July, 1992, he had received a confidential communication from Sh. Sudhir Sharma, Commissioner, Higher Education, regarding a matter under consideration of Hon'ble High Court, relating to suppression of number of MBBS and BDS seats. The letter has been proved by PW27 Shashi Prakash, as Ex. PW27/A. After some internal exercise having been done, it was found that there was a shortfall of 4 MBBS and 1 BDS seat, and in a note to Director of Health Services, had confirmed that they were having knowledge of only 22 MBBS and 2 BDS seats. Note endorsed by Sh. K.L. Roy, then Director of Health Services, CC No.06/10 33of 86 34 Government of Tripura, has been proved by the witness as Ex. PW27/E. 4 MBBS and 1 BDS seat were not communicated to the Joint Entrance Board for nomination of the candidates and intimation was sent by the witness to Union Health Ministry, and note Ex. PW27/F in that regard has been proved.

53. PW28 Anil Misra, was posted as Commissioner and Secretary, Health Department, Government of Tripura in 1995. PW28 Anil Misra has deposed as regard note Ex. PW17/N14( Note no.14) in File No.F.11(105)ET/MS/90 Sub File III, vide which he proposed for sending all the communications to different medical colleges where 9 MBBS and 3 BDS seats were unauthorizedly allocated, cancelling the allocations and lodging of FIR. PW28 Anil Misra, also deposed that incorrect allocations were made by Sh. A.K.Roy, and Sh. Gurdial Singh, for the Academic Year 198990 and 199091 respectively. PW28 Anil Misra, also deposed that after proposals were approved by the Health and Family Welfare Minister, Tripura, he had sent the file vide his note Ex. PW17/N16, to Directorate of Health Services for further CC No.06/10 34of 86 35 action.

54. PW22 is S.S. Sharma, who was the Principal, Secretary, Incharge of Health and Forests Department, State of Tripura from December 1989 to February 1991, and deposed that during that period, Health Department files were moving through him. PW22 S.S. Sharma, deposed that vide Note no. 18 dated 27.11.1990, in file No. F11(105)/E.T/MS/90 Volume II, ( sub file) D21, pertaining to admission for study in MBBS Course for Session 199091, which was submitted by then Special Secretary stating that SC candidate Uttam Kumar Dass, out of the list furnished by Chairman TBJEE, was nominated for the allotted seat at Darbhanga Medical College, Laheriasarai, Bihar, however, said Uttam Kumar Dass, was refused admission by the Principal on the ground that one Ms. Gita Banik, had already been admitted against the reserved seat on the strength of nomination letter dated 10.09.1990. Note No. 18 dated 27.11.1990, has been proved by the witness as Ex. PW22/N. PW22 S.S. Sharma, has further deposed that then Special Secretary, Dr. R. Dutta , further submitted that no nomination CC No.06/10 35of 86 36 letter was issued in favour of Ms. Gita Banik, from Directorate of Health Services nor did she qualify nor her name was included in the merit list published by TBJEE.

55. PW22 S.S. Sharma, has also proved a note, later on scored off, being Ex. PW22/O, below the note dated 12.12.1990, which was scored off subsequently, written by the Chief Minister in his own handwriting to the effect that: " As she is already admitted, she may continue". The witness has also proved note dated 27.11.1990 under signature of Sh. N.C. Singh, then Deputy Secretary of Health Department and noting being Ex. PW22/P, to the effect that Director, Health had not issued any nomination in favour of Ms. Gita Banik, further mentioning that said Ms. Gita banik did not qualify herself in the Joint Entrance Examination, and her name was not included in the merit list of Tripura Board of Joint Entrance Examination. PW22 S.S. Sharma, also proved another noting by then Chief Minister dated 03.12.1990 vide Note no. 23, to the effect "As she is admitted, she may continue". PW22 S.S. Sharma, further proved that Note No. 35 dated 06.12.1990 by the then Chief Minister S.R. CC No.06/10 36of 86 37 Majumdar, to the effect " As Smt. Banik already admitted, Sh. Dass may be given first priority in the next session". Signatures of then Chief Minister and Endorsement Ex. PW22/V2, has been proved by him.

56. PW20 Dr. Nilmoin Deb Barman, worked as Director, Health Services, Government of Tripura from year 1984 to year 1991. PW20 Dr. Nilmoin Deb Barman, has deposed as regard the selection of candidates of State of Tripura for nomination to the Medical and Dental Colleges seats, allocated to the State of Tripura by Central Government, and deposed that uptill 1988, there was no written test and nomination used to be made on the basis of marks obtained by the candidates in 10 +2 examination or Equivalent examination and after 1988, Tripura Joint Entrance Examination Board was constituted, and seats used to be allotted to the candidates on the basis of their position in the merit list, prepared for admission in MBBS and BDS Course. The witness has proved the notings made by Sh. R. Dutta, Special Secretary, Health, at the relevant time relating to the action taken on behalf of the department in regard to the issue CC No.06/10 37of 86 38 in different files.

57. PW17 Bikas Roy, deposed that nomination letter used to be issued to the candidates, on the basis of the merit list, sent by TBJEE by Director of Health Services, State of Tripura, and no, other person except the Director of Health Services, State of Tripura, was competent to nominate the students for admissions in MBBS and BDS Course against State quota seats. The witness had worked as Director Health Services, from year 1996 to year 1988. The result of Joint Entrance Examination, 1990 arranged in order of merit under signature of A.K. Misra Ex. PW17/D( copy has been proved by the witness). Separate list for General candidates, SC candidates and ST candidates for Academic year 199091 by TBJEE had also been proved by this witness. The witness also deposed as regard the cancellation of the candidature of candidates, who were given the nomination unauthorizedly by accused Gurdial Singh, and for earlier year by Sh. A.K. Roy, the then Secretary to the Chief Minister for which a separate prosecution is going on, launched by CBI.

58. The prosecution case is that 4 MBBS and 2 BDS CC No.06/10 38of 86 39 seats allocated to State of Tripura as per letter dated 31.07.1990 Ex. PW15/C, and one MBBS seat allocated to State of Tripura vide letter dated 22.08.1990 Ex. PW15/E, were concealed from the authorities in the Health Department of Government of Tripura, and were not placed for making recommendations before Tripura Board of Joint Entrance Examination, and instead, accused Gurdial Singh made nominations in favour of noneligible candidates, not entitled to be nominated to those seats as nominee of Tripura.

59. PW7 Sukhamoy Dey, being Protocol Officer, Government of Tripura, had proved the nomination letter no. F.11(105)E.T./MS/90 dated 10.09.1990 in favour of accused Ms. Gita Banik for admission in the first year MBBS Course in Darbhanga Medical College, Laheriasarai, Bihar for Academic year 199091. Even otherwise, nomination letter in her favour dated 10.09.90 Ex. PW6/B under signature of accused no. 1, Gurdial Singh, is not disputed either by accused no.1, Gurdial Singh, or by accused no.4, Ms. Gita Banik.

60. The stand taken on behalf of accused no.1, CC No.06/10 39of 86 40 Gurdial Singh, is that no specific authority had been proved by the prosecution through the deposition of the witnesses, to the effect that there was a particular or specific authority of the State Govt. competent to issue nomination letter to the students seeking admission in MBBS/BDS courses against the seats reserved from the Central Pool. It has been further contended that there is a complete ambiguity about the specific authority, which was competent to issue nomination letter and in the circumstances, he was competent to sign the nomination letter on the instructions of the Chief Minister and other senior officers. It has been contended by the accused Gurdial Singh that as Resident Commissioner, he was bound to follow the instructions of Chief Minister, Council of Ministers and other senior officers from the State of Tripura. Further contention on behalf of accused no.1, Gurdial Singh is that no complaint has been made by any statutory authority or any individual against the nomination letter or the admission process. Further contention of accused no.1, Gurdial Singh, is that there is no documentary or oral evidence on record to suggest that he had ever met the students in question or other CC No.06/10 40of 86 41 coaccused and prosecution failed to bring prior concert or arrangement between Gurdial Singh and coaccused namely Ms. Gita Banik or that was in touch with other coaccused.

61. The contention on behalf of accused no.4, Ms. Gita Banik are that FIR registered in the matter has no relevancy since no complaint was ever filed by State Govt. of Tripura or Ministry of Health, Union of India or any other person in regard to any discrepancy or irregularity pertaining to MBBS seat in Darbhanga Medical College, wherein she was admitted. FIR was lodged in connection of 3 MBBS seats pertaining to (1) Bhagalpur Medical College, Bhagalplur, Bihar, (2) Medical College Gwalior and (3) Patiliputra Medical College, Bihar with the allegations that admission has taken place on the basis of forged nomination letter dated 24.11.1990. Further, it is contended that there was no concealment on the part of accused no.4, Ms. Gita Banik, in relation to her particulars for obtaining admission and she had been granted admission in Darbhanga Medical College pursuant to nomination letter Ex.PW6/B after verifying the papers submitted by her, by the Principal of the college.

CC No.06/10                                                               41of 86
                                        42

Further contention of accused Gita Banik is that there was no concealment of letter dated 31.07.1990 Ex.PW15/C, as the letter was addressed to the Secretary, Health, Tripura and as per the General Clauses Act, the letter when dispatched, must have been received by the other side. It is also contended on behalf of accused Gita Banik that prosecution has failed to prove that only the Director of Health Services, Govt. of Tripura, was empowered and competent to issue nomination letter for first year of MBBS and BDS courses and no other official was authorised to issue the same and relied upon a document Ex.PW17/DX2 being note no.16 dated 29.01.1993 in file no. F1(I)COMM/HFW/92, where in January, 1993, Director of Health Services, Dr.K.L.Roy suggested that nominating authority should be specified and same be communicated to the Principals of concerned colleges and also published in official gazette and notified. It is also contended on behalf of the accused no.4, Ms. Gita Banik that the Chief Minister had discretionary powers to direct nomination for admission of MBBS/BDS courses and the Chief Minister used to exercise his discretionary power, since CC No.06/10 42of 86 43 same was not specifically barred by any regulation or statute or any other law. It is also contended on behalf of accused Ms. Gita Banik that Ministry of Health, Union of India used to publish utilization list every year in which, there was a mention of total MBBS/BDS seats allocated to different States, also giving the information about the seats allocated having been fully utilized or not and utilization list was published for academic year 19901991 which was Ex.PW15/PX and Ex.PW25/DX.

62. As regards the contention on behalf of accused persons that Chief Minister, Tripura at that time was having the discretion and had been exercising that discretion in allocation of seats, reference in this regard has been drawn on behalf of accused no.1, Gurdial Singh to the testimony of PW17, Dr. Bikas Roy. Reference is to the cross examination of PW17, Dr. Bikas Roy, who was Director of Health Services, Govt. of Tripura from year 1996 to year 1998 and was working in the Directorate of Health Services, Tripura in the relevant year also, conducted on behalf of accused no.1, CC No.06/10 43of 86 44 Gurdial Singh, wherein in response to a suggestion, the witness had stated that it was correct that at that point of time, the Chief Minister used to exercise his discretion for nomination/allocation of seats. However, in the same breath, the witness had stated that Chief Minister at that time had no discretionary power to nominate students for admission of MBBS/BDS courses or having any discretionary quota. The witness had also reiterated that during his cross examination, he had reiterated several times that the Chief Minister of Tripura was not having any discretionary quota at the relevant time i.e. year 19901991. Apart from the testimony of PW17, PW20 Dr. Nilmoin Deb Barman, who was Director of Health Services, Govt. of Tripura from year 1984 to year 1991, has reiterated specifically in his deposition that no one, including the Chief Minister of State of Tripura or Health Minister of Central Govt. had any discretionary powers to nominate the students for admission in the first year MBBS/BDS courses against the seats allocated to State of Tripura, reiterating that only Director of Health Services used to issue nomination letters to the selected candidates and, the selection was to be CC No.06/10 44of 86 45 made as per the procedure which has been detailed in preceding paras of the judgment. PW22, S.S.Sharma, who was Principal Secretary, Incharge of Health & Forest Departments, State of Tripura from December, 1989 to February, 1991 had also deposed that it was only the Director of Health Services, the authority empowered by the State Government to issue nomination letters on the basis of merit list forwarded to the Director of Health Services by the Board of Joint Entrance Examination. PW22, S.S.Sharma further testified that to his knowledge, there was no discretionary quota available to anyone. PW27, Shashi Prakash, who was posted as Commissioner, Department of Health, Govt. of Tripura at Agartala during November, 1991 to October, 1992, also testified that to the best of his knowledge, no authority had any discretionary powers for issuing nomination letters for admission of candidates in the first year MBBS/BDS courses against the seats allotted by Central Government, Ministry of Health.

63. It was also argued on behalf of accused Ms. Gita Banik that in another case titled as 'CBI Vs A.K.Roy & Ors.', CC No.06/10 45of 86 46 one witness examined on behalf of accused, DW2, Dulal Krishan De, who was Joint Resident Commissioner situated at Calcutta had stated that Chief Minister being the chief functionary of the State, had the discretionary powers to nominate the candidates for MBBS/BDS courses. It was also contended on behalf of accused no.1 Gurdial Singh that there was no specific bar on the Chief Minister of Tripura to use his discretionary powers in any manner. Reliance in this regard has been placed on a case decided by Hon'ble Supreme Court titled as "R. Sai Bharathi Vs J. Jayalalitha & Ors." JT 2003(9) SC 343 wherein in Para nos. 39 & 40 of the judgment, it was held by Hon'ble Supreme Court that "39. The law, which is pointed out is the code of conduct for Ministers, issued in G.O.Ms.No.1350 dated 26.07.1968 by the Govt. of Tamilnadu in the name of Governor. Para 2(b) thereof enjoins that a Minister, so long as he remains in the office, shall refrain from buying or selling to the Government, any immoveable property except where such property is compulsorily acquired by the Government in usual course.

40. A perusal of the code would indicate that they lay down guidelines or norms of conduct which the Minister must observe. The rules also prescribe the authority which shall ensure compliance of the code and to whom various statements have to be furnished. The procedure to be CC No.06/10 46of 86 47 followed is left to the discretion of that authority in case of breach of the code. That authority is the Chief Minister." It was further held by Hon'ble High Court in Para no.41 of the said judgment that: "41. In our view, the code of conduct in having a statutory force and not enforceable in a Court of law, nor having any sanction or procedure for dealing with a contravention by the Chief Minister, cannot be construed to impose a legal prohibition against the purchase of a property of the Government so as to give rise to a criminal offence punishable U/S 169 of IPC. In law, there must be a specific provision prohibiting an act to make it illegal. A code of conduct prescribed by the Government under certain notification by itself cannot be elevated to the level of law........."

64. The facts of the present case, it is respectfully submitted are totally distinct. It is not the case of the prosecution that the Chief Minister of Tripura was having any discretion and was to exercise the said discretion according to certain guidelines, provided for exercise of that discretion the same had been violated. In the case cited on behalf of accused and quoted earlier, the Minister or the Chief Minister of the State as a citizen, had the right to own and acquire the property, but while being a Minister, the code of conduct provided that they should not deal with the property belonging CC No.06/10 47of 86 48 to Government, nor should they sell any personal property to the Government, so long they continue to be Minister, so as to ensure probity in public life.

65. There is nothing on record to suggest that the Chief Minister of Tripura was having any discretionary powers in nomination of candidates, to the first year of MBBS/BDS courses during the year 199091.

66. In regard to the authority of the Director, Health Services to nominate the candidates for the seats allocated by Central Government as nominees of Tripura Government, it has been argued on behalf of accused persons that no specific authority for that has been proved on record by the prosecution. No notification issued by the Govt. of Tripura or any other document have been produced. Attention was drawn on behalf of accused no.1, Gurdial Singh to the testimony of PW13, S.S.Srivastav, wherein in his cross examination, he had stated that no guidelines had been issued by Govt. of India, who further, in his cross examination conceded that no specific authority by State Government was indicated in their letters, entitling them, to issue such CC No.06/10 48of 86 49 nomination letters. Attention was also drawn to the document being note no.16 dated 29.01.1993 in file no. F1(I) COMM/HFW/92, wherein Sh. K.L.Roy, the then Director of Health Services had suggested that nomination issuing authority may be specified by a Government notification and copies of such notification be sent to the concerned colleges Principals.

67. As regards the contention that no guidelines had been issued by Govt. of India in that regard, the Govt. of India was also not expected to issue any such guidelines as it was for the Govt. of Tripura to select its nominees as per the general guidelines vide letter no. U14014/84/86ME(UG) dated 09.12.1986, Ex. PW15/M, for the seats allocated to it, by the Govt. of India and to determine the authority by whom the nomination letters were to be issued. As regards, the contention that no specific authority of State Government of Tripura was indicated in their letters, the same was not required as authority to issue nomination letters has to be decided by the State Government and unless the suspicions are raised that the nomination letters are issued, CC No.06/10 49of 86 50 unauthorisedly by an authority not competent, there should be no such requirement. It was business being carried out by the State Government in its normal course, that the nomination letters issued by the competent authority, are to be respected by the Principals of the colleges, when produced by the candidates. Accused no.1, Gurdial Singh himself was aware of the fact that it was the Director, Health Services, Govt. of Tripura who was competent to issue the nomination letters and that is, why a format prescribed for and used by Directorate of Health Services, Govt. of Tripura was used by accused no.1, Gurdial Singh while issuing nomination letter Ex.PW6/B in favour of accused no.4, Ms. Gita Banik for admission in Darbhanga Medical College, Laheriasarai, Bihar. Apart from that, the Government of Tripura officers, who had appeared as witnesses in the case, had deposed specifically in that regard, stating that it was Director, Health Services, Govt. of Tripura, who alone was competent to issue nomination letters. Reference is particularly drawn in this regard to the deposition of PW17 Dr. Bikash Roy, who was Director of Health Services, Govt. Of Tripura from year 1996 to year CC No.06/10 50of 86 51 1998, PW20 is Dr. Nilmoin Deb Barman, who was Director of Health Services, Govt. of Tripura from year 1984 to year 1991, PW22, S.S.Sharma, who was Principal Secretary, Incharge of Health & Forest Department, State of Tripura from December, 1989 to February, 1991 and PW28, Anil Misra, who was Commissioner and Secretary, Health Department, Govt. of Tripura in year 1995 as discussed in preceding paras. It makes no difference that any specific authority was not designated by the Govt. of Tripura to issue nomination letters, as it was a fact in common knowledge, known to all concerned, having a say in the affairs of the State of Tripura at that time. The letters allocating the seats for MBBS/BDS courses, Ex.PW15/B, Ex.PW15/C and Ex.PW15/E, were all addressed to the Secretary, Health & Family Welfare Department, Govt. of Tripura. There was a detailed procedure adopted by the Govt. of Tripura, for selection of the candidates as per the notification, being known as Tripura Board of Joint Entrance Examination Regulations, 1989. Merely because a specific authority had not been designated or that same had not been communicated CC No.06/10 51of 86 52 to accused no.1, Gurdial Singh, acting as Resident Commissioner, State of Tripura at the relevant time, does not mean that accused no.1, Gurdial Singh was also entitled to issue nomination letters for admission in MBBS/BDS courses against the seats allocated by Govt. of India in the Ministry of Health & Family Welfare to Govt. of Tripura. The testimony of PW22, S.S.Sharma and the relevant notes in the said file, clearly proves that nobody has questioned the authority of Health & Family Welfare Department, Govt. of Tripura and the authority of Director, Health Services to nominate candidates against the seats allocated by the Central Government.

68. As regards the suppression and concealment of allocation of 4 MBBS and 2 BDS seats, allocated vide letter no. U.14014/15/90ME(UG) dated 31.07.1990 Ex.PW15/C by the Ministry of Health & Family Welfare, Union of India to the Govt. of Tripura, from officers of Department of Health, Directorate of Health Services and Tripura Board of Joint Entrance Examination, the contention on behalf of accused persons is that there was no suppression of the same, as there CC No.06/10 52of 86 53 were directions by the Ministry of Health & Family Welfare, Union of India to the concerned colleges to intimate Government of India, the nominations of the students, who had taken admission within 7 days, the State Governments were also requested to send the consolidated list/lists to the Ministry of Health & Family Welfare, mentioning the nomination of candidates, colleges, dates of admission. It was also claimed that there was no dispute as regard the sending of letter Ex.PW15/C as same is deemed to have been delivered to the other side, as per the General Clauses Act when the letter was addressed to the Secretary, Health, Tripura. It was also claimed that Investigating Officer did not seize the diary and receipt register of the Department of Health, Tripura Govt. to prove receipt or otherwise of the letter Ex.PW15/C. Office copy of letter dated 31.07.1990, which has been proved as Ex.PW15/C by PW15, C.L.Bhatia shows that the copy marked to Resident Commissioner, Govt. of Tripura has been received by one Shripal Singh on 30.07.1990 itself, the letter being dated 31.07.1990. Also, the letter as such, showing on the front page addressed to the Secretary, Health & Family CC No.06/10 53of 86 54 Welfare Department, Govt. of Tripura, has been received by said Sh. Shripal Singh on 30.07.1990, the letter being dated 31.07.1990 and so, no inference can be drawn as having the letter reached the Secretary, Health & Family Welfare Department, Govt. of Tripura, as there is no proof of the letter having been dispatched at the address of Secretary, Health & Family Welfare Department at Agartala, Tripura, having been received in the office of Resident Commissioner, Tripura Government in New Delhi itself.

69. PW22, S.S.Sharma, who was Principal Secretary, Incharge of Health & Forest Department, Govt. of Tripura from December, 1989 to February, 1991 had deposed that note no.1 and note no.2 dated 17.10.1990 in file No.F11(105)/E.T/MS/90 which were exhibited as Ex.PW22/A, Director of Health Services had referred to a letter received from Principal, Darbhanga Medical College, Laheria Sarai, Bihar, regarding allotment of a MBBS seat. PW22 S.S.Sharma also deposed that vide note no.18 dated 27.11.1990 in the said file, the then Spl. Secretary had CC No.06/10 54of 86 55 submitted that a SC candidate Uttam Kumar Dass, out of the list furnished by the Chairman, TBJEE, was nominated for the seat allocated, to Darbhanga Medical College. However, said Uttam Kumar Dass was refused admission to the College by the Principal on the ground that Ms. Gita Banik had already been admitted against the reserved seat on the strength of nomination letter dated 10.09.1990. PW22, S.S.Sharma, further deposed that the then Special Secretary, further submitted that no nomination letter was issued to Ms.Gita Banik from the Directorate of Health Services nor she was qualified nor her name was included in the merit list published by TBJEE. PW22, S.S.Sharma, also proved note no.23 dated 13.12.1990 made by the then Chief Minister Ex.PW22/R to the effect "as she is admitted, she may continue". It is from the deposition of PW22, S.S.Sharma alongwith relevant notes in file No.F11(105)/E.T/MS/90, clear that Health & Family Welfare Department, Govt. of Tripura was not aware of the nomination of Ms. Gita Banik to Darbhanga Medical College, Laheria Sarai in MBBS first year course, which was the seat allocated to Govt. of Tripura as per letter dated 31.07.1990 till CC No.06/10 55of 86 56 Uttam Kumar Dass, the candidate nominated against the seat, by Govt. of Tripura reported back that he was refused admission on the ground that another candidate for the seat namely Ms. Gita Banik had been nominated and had got admission and it was at this stage, Health & Family Welfare Department, Govt. of Tripura came to know about the nomination letters having been signed by accused no.1, Gurdial Singh as Resident Commissioner for the seats allocated to the State of Tripura by Ministry of Health & Family Welfare, Govt. of India. The contention on behalf of accused persons is only for drawing inference as regard the knowledge of the concerned officers, because of the communications regarding utilization of seats, intimations by the Principals of Colleges, which was required to be given. The letter dated 31.07.1990, Ex.PW15/C, was not dealt with by the Department of Health & Family Welfare, Govt. of Tripura and it is not the case of the accused no.1, Gurdial Singh that he had been entrusted any file relating to the selection of candidates on the basis of which he made the nominations, but it is stated that he did so, at the instructions CC No.06/10 56of 86 57 of the Chief Minister. Thus, it is clear that the seats allocated to the State of Tripura vide letter dated 31.07.1990 Ex.PW15/C were not communicated to the Department of Health & Family Welfare, Govt. of Tripura nor they were placed before Tripura Board of Joint Entrance Examination, for making recommendations as regard the candidates to be nominated.

70. It was also contended on behalf of accused persons that Principals of the medical colleges, where the candidates were nominated, were also required to ensure that nomination letters issued in favour of the candidates, produced to them for admission were in order and genuine. The nomination letter Ex.PW6/B in favour of accused Ms. Gita Banik has been issued subject to the condition that the candidates had to fulfill the eligibility conditions of the particular medical college/BDS college where she had been nominated and the eligibility conditions can be, like the 10+2 examination, securing of minimum marks, age, medical fitness etc. Whether or not a candidate fulfills the criteria for being nominated as a nominee of Tripura State, is to be CC No.06/10 57of 86 58 decided by the Govt. of Tripura and not by the Principal of the concerned College. The Principal of the concerned college may be aware of the general conditions as regard the nomination of the candidates as nominee of a particular State, but he cannot sit in judgment over a decision by a State Government, whether or not a particular candidate is to be nominated as nominee of that particular State.

71. As regards the contention that utilization lists were sent to the Central Govt. and name of Ms. Gita Banik also appeared in those utilization lists, the same cannot be given much weightage, as it is a case of conspiracy and the persons being in position apart from the accused, might have some role to play in the matter. Mere knowledge of a fact amounts to nothing, as a public servant is expected to deal with the matter before him and not to act as a social activist, even if he comes to know about any illegality or irregularity, being committed by some other Department or officer, which may or may not be prohibited by any law or rule, even when the concerned public servant thinks so.

72. Accused persons have been charge for offence CC No.06/10 58of 86 59 punishable U/S 120B IPC r/w Sections 420/467/468/471 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. Criminal conspiracy has been defined in Section 120A IPC and is made punishable under Section 120B IPC. Section 120A IPC reads as under:

S. 120A. Definition of criminal conspiracy. When two or more persons agree to do, or cause to be done, (1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more partners to such agreement in pursuance thereof.

Explanation. It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

As regards the existence of conspiracy in the matter, the matter would not have seen the light, perhaps, but for the letter written by Dr. S.S.Srivastav, Principal, Darbhanga Medical College, Laheriasarai, Bihar, intimating the CC No.06/10 59of 86 60 Secretary, Health & Family Department, Govt. of Tripura, Agartala, being letter Ex.PW22/U4 about the seat allocated by Govt. of India, Ministry of Health & Family Welfare, of one MBBS seat for Tripura in Darbhanga Medical College, Laheriasarai, Bihar, vide their letter dated 31.07.1990 Ex.PW15/C. Pursuant to the letter Ex.PW22/U4, received from Dr. S.S.Srivastav, Principal Darbhanga Medical College,Laheriasarai, Bihar, Director of Health Services, Government of Tripura, nominated one Uttam Kumar Dass, a Scheduled Caste candidate against the seat in Darbhanga Medical College, Laheriasarai, Bihar vide letter dated 16.11.1990. However, said Uttam Kumar Dass was denied admission and vide letter dated 22.11.1990, Dr. S.S.Srivastav, Principal Darbhanga Medical College, intimated the Directorate of Health Services, Govt. of Tripura that they have already nominated Ms. Gita Banik vide their letter No.F. 11(105)E.T./MS/90 dated 10.09.1990 and she had been admitted on 15.09.1990. Nomination in favour of Uttam Kumar Dass was not accepted by the Darbhanga Medical College, Laheriasarai, Bihar. On return, Sh. Uttam Kumar CC No.06/10 60of 86 61 Dass, made representation to various Govt. authorities and when nothing came out, he approached Hon'ble Assam High Court, Guwahati (Agartala Bench) and where after hearing about irregularities in making nominations, Hon'ble Assam High Court, Guwahati (Agartala Bench), vide orders dated 17.07.1991, directed an enquiry to be conducted by Sh.

P.K.Sarkar, the then District & Sessions Judge, Tripura (West) and after the enquiry report, was submitted, it came to light that various irregularities were committed for admission to MBBS/BDS seats allocated to State of Tripura for the academic year 19891990 and also year 19901991. It was after an enquiry was conducted by CBI, pursuant to the directions given by Hon'ble Assam High Court, Guwahati (Agartala Bench), vide order dated 01.02.1996, for transferring the case to CBI for investigation from P.S Chanakya Puri, New Delhi, where the FIR was initially registered, the matter had been unearthed.

73. Accused no.1, Gurdial Singh is the visible face of the conspiracy, since he was not competent to issue nomination letters, being a Resident Commissioner and his CC No.06/10 61of 86 62 job confined only to the liasoning work between the Govt. of India and State Govt. of Tripura. It was well within knowledge of accused no.1, Gurdial Singh while signing the nomination letter Ex.PW6/B in favour of coaccused Ms. Gita Banik, since nomination letters were issued by him on the proforma of Directorate of Health & Family Welfare Department, Govt. of Tripura. As a high ranking government officer, he cannot seek shelter that instructions were given by Chief Minister, Tripura for signing the nomination letters in favour of the candidates and he had signed the same. Letter dated 31.07.1990 Ex.PW15/C, which was addressed to the Secretary, Health & Family Welfare, Govt. of Tripura, did not reach the place and perusal of the letter Ex.PW15/C, shows that copy addressed to the Resident Commissioner, Govt. of Tripura as well as the letter itself, were both received by one Shripal Singh meaning thereby that both, the letter as well as the copy thereof, were delivered at the office of Resident Commissioner, Govt. of Tripura in New Delhi. It was also claimed on behalf of accused Gurdial Singh that he had gone by the precedent, since in the past also, nomination letters had CC No.06/10 62of 86 63 been signed by his predecessor. When pointed out that A.K.Roy, Secretary to the then Chief Minister, Tripura, Agartala, was not his predecessor, it was contended on behalf of accused Gurdial Singh that Tripura is a small place and officers were aware of the action being taken by different branches of the government. If that be the case, accused no.1, Gurdial Singh, should also have been aware that nomination letters are being issued by Director, Health Services, Government of Tripura, and in fact, Director Health Services had been issuing the nomination letters, but for the two cases, pertaining to the academic year 19891990 and 19901991, which were signed once by the Secretary to the Chief Minister and on another occasion, by accused no.1, Gurdial Singh, acting as Resident Commissioner, Govt. of Tripura, New Delhi. Then, there is a clinching evidence of conspiracy since endorsement to Desk Officer, Ministry of Health and Family Welfare, Govt. of India of nomination letter Ex.PW6/B in favour of Gita Banik, the reference is to letter dated 03.05.1990 Ex.PW15/B but the medical seat in Darbhanga Medical College, Laheriasarai, Bihar was not allotted to Govt.

CC No.06/10                                                               63of 86
                                     64

      of Tripura, vide letter Ex.PW15/B.

74. The next question is whether the nomination letter dated 10.09.1990, Ex. PW6/B in favour of accused Ms. Gita Banik for admission in Darbhanga Medical College, Laheriasarai, Bihar, can be considered a forged document. Accused Gurdial Singh has been charged for the offences punishable U/S 467 as well as 468 IPC for forging nomination letter Ex. PW6/B dated 10.09.1990. The nomination letter Ex.PW6/B has been issued on the proforma of Govt. of Tripura, Directorate of Health Services and same has been signed by accused Gurdial Singh as Resident Commissioner, Govt. of Tripura, Kautilya Marg, Chanakya Puri, New Delhi and stamp of the Resident Commissioner has been affixed. It has been contended on behalf of accused no.1, Gurdial Singh that no forgery of any document, whatsoever is involved, as the document has been signed by accused no.1, Gurdial Singh under his own signature and stamp. Reliance in that regard has been placed on a case decided by Hon'ble Supreme Court of India titled as Mohd. Ibrahim & Ors. Vs State of Bihar & Anr. 2009 (4) Crimes 13 (SC) wherein after analysis of CC No.06/10 64of 86 65 Section 464 of the IPC, Hon'ble Supreme Court in Para 10 of the judgment stated that Section 464 IPC shows division of false documents into three categories "1. first category is where a person dishonestly or fraudulently makes or executes a document with an intention of causing it to be believed, that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows that it was not made or executed.

2. The second category is where a person dishonestly or fraudulently, by cancellation or otherwise alters a document in any material part, without lawful authority after it has been made or executed either by himself or by any other person.

3. The third category is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by any reason of (a) unsoundness of mind, (b) intoxication, or (c) deception practised upon him, knows the contents of the document or the nature of the alteration".

75. With due respect, it is submitted that the case law being relied upon on behalf of accused Gurdial Singh does not help his case in view of the facts of the case, since the nomination letter Ex. PW6/B in question is a document executed by accused Gurdial Singh on the proforma of Govt.

CC No.06/10                                                                    65of 86
                                     66

of Tripura, Directorate of Health Services and anyone looking at the document, will come to the conclusion that it has been executed by the authority of the Directorate of Health Services and so, it will be a case falling under the category no.1, as analysed by Hon'ble Supreme Court in the case law, being relied upon on behalf of accused no.1, Gurdial Singh.

76. On behalf of accused no.1, Gurdial Singh, it has been argued that prosecution as against him is null and void as the Sanction Order itself suffers from grave and inherent defect. The contention being raised on behalf of accused Gurdial Singh is that the sanctioning authority PW2 P.S. Pillai, in his crossexamination admitted that he did not undertake any independent inquiry with regard to the facts and figures brought by CBI. It has been further contended on behalf of accused no.1, Gurdial Singh, that The President of India, is the competent authority to grant sanction for prosecution, and no material is forthcoming to show that any steps were undertaken from the President's office to collect facts for according sanction to prosecute the accused Gurdial Singh. PW2 P.S. Pillai, was working as Under Secretary in CC No.06/10 66of 86 67 the Ministry of Home Affairs, Government of India, and has merely authenticated the order of the President of India according sanction, and Sanction Order Ex. PW2/A, has been proved by the witness. In his Examinationinchief, PW2 P.S. Pillai, also stated that he had also examined oral and documentary evidence in the case but PW2 P.S. Pillai, was not the sanctioning authority

77. It has been held by Hon'ble Supreme Court in a case titled as State Vs. K. Narasimhachary AIR 2006 Supreme Court 628(1), that order of sanction was an executive action of State, having been issued in the name of the Governor, and same was authenticated in the manner specified in the Rules of Executive Business. It was further held by Hon'ble Supreme Court that since the authenticity of the order had not been questioned, it was therefore, a public document within the meaning of Section 74 of the Evidence Act, and same can be proved in terms of Sections 76 to 78 of the Evidence Act. The sanction order Ex. PW2/A, is running into 5 pages, and details of the allegations constituting the offence against accused Gurdial Singh, had been given. The CC No.06/10 67of 86 68 order of sanction was thus issued by Government of India in discharge of its statutory functions in terms of Section 19 of the Prevention of Corruption Act, 1988 and under Section 197 of the Code of Criminal Procedure, 1973. There is no substance in the contention being raised on behalf of the accused Gurdial Singh, that prosecution against accused no.1, Gurdial Singh, was null and void.

78. Accused no.1, Gurdial Singh has been further charged for offence punishable U/S 420 IPC for the allegations that by signing the nomination letter no. F. 11(105)E.T./MS/90, Ex.PW6/B in favour of accused Ms. Gita Banik for admission in MBBS Course in Darbhanga Medical College, Laheriasarai, Bihar for the academic year 19901991, unauthorisedly without any competency to sign the same for admission of the student as nominee of Tripura, had consequently caused damage/loss to bonafide residents of State of Tripura alongwith Govt. of Tripura as such. Section 420 IPC reads as under: S. 420. Cheating and dishonestly inducing delivery of property Whoever cheats and thereby dishonestly induces the person deceived to deliver CC No.06/10 68of 86 69 any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.

The evidence brought on record and proved on behalf of prosecution is only to the extent of signing of the nomination letter Ex. PW6/B unauthorisedly on the basis of which accused no.4, Ms. Gita Banik had taken admission in the Darbhanga Medical College, Laheriasarai, Bihar. However, there is no evidence on record produced on behalf of prosecution that any inducement was ever made by accused no.1, Gurdial Singh to anyone for delivery of any property to any person or to cause wrongful gain to anyone or wrongful loss to anyone. It was a false document executed by accused no.1, Gurdial Singh and handed over to coaccused Ms. Gita Banik and whatever inducement or representation has been made, has been made by accused no.4, Ms. Gita Banik while seeking admission to the first year MBBS course in CC No.06/10 69of 86 70 Darbhanga Medical College, Laheriasarai, Bihar. So, ingredients of offence punishable U/S 420 IPC are not made out against accused no.1, Gurdial Singh.

79. Further, accused no.1, Gurdial Singh has been charged for offence punishable U/S 467 IPC. The question is whether the nomination letter Ex. PW6/B in favour of co accused Ms. Gita Banik is a valuable security or not. Section 30 of IPC defines valuable security as : " 30. Valuable Security The words "valuable security" denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right."

80. The nomination letter no. F.11(105)E.T./MS/90, Ex. PW6/B issued in favour of coaccused Ms. Gita Banik by accused no.1, Gurdial Singh was a document on the basis of which coaccused had sought admission in Darbhanga Medical College, Laheriasarai, Bihar, but the document itself is not creating any legal right as such nor any legal right is extended, transferred, restricted, extinguished, released nor purports to be doing that. The document also does not create CC No.06/10 70of 86 71 any acknowledgment against a person to the effect that he lies under legal liability or does not have a certain legal right. Nomination letter Ex. PW6/B in the hands of accused no.4, Ms. Gita Banik could be highly valuable thing entitling her to seek admission in MBBS course, but it by itself does not create, extend, transfer etc. any legal right and so, cannot be termed as a valuable security. Ingredients of offence punishable U/S 467 IPC as regard forging of a document which purports to be a valuable security etc. are not made out against accused no.1, Gurdial Singh.

81. Accused no.1, Gurdial Singh has also been charged for offence punishable U/S 471 IPC to the effect that while issuing the nomination letter Ex. PW6/B in favour of accused Ms. Gita Banik, accused no.1, Gurdial Singh used a genuine document, to wit, the nomination letter Ex. PW6/B knowing or having reason to believe the same to be a false or forged document. There is no evidence on record brought by prosecution to prove the said charge against accused no.1, Gurdial Singh.

82. Accused no.1, Gurdial Singh has been further CC No.06/10 71of 86 72 charged for offence punishable U/S 13(2) of the Prevention of Corruption Act, 1988 r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 charging him of criminal misconduct, being a public servant and thereby causing pecuniary advantage to himself or to coaccused Ms. Gita Banik.

Section 13(1)(d) of Prevention of Corruption Act reads as under: " (d) if he,

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or"

83. There is evidence on the record that accused no.1, Gurdial Singh was not competent or authorised to issue nomination letter Ex. PW6/B in favour of coaccused Ms. Gita Banik and by adopting corrupt means, he issued a CC No.06/10 72of 86 73 nomination letter in favour of accused and thus, obtained for coaccused Ms. Gita Banik, a valuable thing in the form of nomination letter by abusing his position as a public servant. As opined earlier, nomination letter Ex. PW6/B, cannot be termed as a valuable security, but it is a valuable thing, a very valuable thing in the hands of accused no.4, Ms. Gita Banik entitling her to obtain admission in Darbhanga Medical College, Laheriasarai, Bihar, and in fact, she got herself admitted in the said college. Thus, the ingredients of offence punishable U/S 13(2) of Prevention of Corruption Act r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 are made out against accused no.1, Gurdial Singh.

84. In regard to accused no.4, Smt. Gita Banik, being a party to the conspiracy for obtaining nomination letter Ex.PW6/B in her favour for admission in Darbhanga Medical College, Laheriasarai, Bihar, on her behalf, reliance has been placed on a case titled as S.Mohan Vs CBI 2008(2) JCC 1480, wherein it was held by Hon'ble Supreme Court that in a case where the prosecution evidence was only showing that a certain accused was involved in the transactions in question, CC No.06/10 73of 86 74 but there being no evidence or proof that there was any illegality in those transactions, case for conviction for offences U/S 411 r/w Section 120B IPC and Section 13(1)(c) and 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act not made out.

85. Reliance was also placed on another case reported as State Vs Ravi @ Munna 2000 Crl.L.J 1125 (Delhi High Court), wherein it was held by Hon'ble Delhi High Court that in absence of proof of planning or conspiracy, offence punishable U/S 120B IPC is not made out. Further, reliance was placed on a case decided by Hon'ble Supreme Court titled as CBI Hyderabad Vs K.Narayana Rao 2012 Crl.L.J 4610, wherein it was held by Hon'ble Supreme Court that circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Reliance was also placed on another case titled as P.K.Narayanan Vs State of Kerala (1995) 1 SCC 142, wherein it was held by Hon'ble Supreme Court that the circumstances must establish that the offence was committed in pursuance of an agreement between parties to the alleged conspiracy.

CC No.06/10                                                              74of 86
                                        75

86. On behalf of prosecution, reliance was placed on a case decided by Hon'ble Supreme Court titled as Shivanarayan Laxminarayan Joshi & Ors. Vs State of Maharashtra 1980 Crl.L.J 388, another case decided by Hon'ble Supreme Court titled as Yash Pal Mital Vs The State of Punjab 1978 Crl.L.J 189 and another case also decided by Hon'ble Supreme Court titled as State of Tamilnadu Vs Nalini & Ors. 1999 Crl.L.J 3124.

87. Accused no.4, Smt.Gita Banik has claimed that neither she nor her father was known to the Chief Minister of Tripura at that time and she was not in any way helped by the Chief Minister of Tripura in obtaining nomination letter for admission in Darbhanga Medical College, Laheriasarai, Bihar. Personal Assistant, S.Chakravorty to the then Chief Minister of State of Tripura, wrote a letter dated 06.09.1990 Ex.PA to accused no.1, Gurdial Singh. Vide this letter, photograph and marksheet of accused no.4, Smt. Gita Banik was sent to accused no.1, Gurdial Singh and inter alia it is stated in the letter that " you are desired to try another two seats for MBBS." Thus, it was clear that seats were being arranged to CC No.06/10 75of 86 76 be manipulated for nomination of persons not entitled to be nominated to different courses as nominees of State of Tripura. Further, PW22, S.S.Sharma has proved note Ex.PW22/P dated 27.11.1990, note no.22 dated 28.11.1990 Ex.PW22/Q and note No.23 dated 13.12.1990 Ex.PW22/R made by coaccused Sudhir Ranjan Majumdar in file No.F11(105)/E.T/MS/90 subfileII, to the effect that since she had already taken admission in the college, she be allowed to continue her studies and it was only after a storm was raised in the State of Tripura relating to unfair nomination of candidates for admission in MBBS/BDS seats allocated by Central Govt. to the State of Tripura. Vide letter Ex.PA dated 06.09.1990, Personal Assistant to the then Chief Minister, Sh.S.Chakravorty has also sent an application form and the photograph of accused no.4, Smt. Gita Banik which was ultimately used by accused no.1, Gurdial Singh for issuing nomination letter Ex.PW6/B in her favour. Not only that, her photograph as such affixed on Ex.PW6/B was attested by accused no.1, Gurdial Singh himself. Thus, both, accused no. 1, Gurdial Singh and accused no.4, Gita Banik were acting for CC No.06/10 76of 86 77 a common object with a common design for obtaining a nomination in her favour for admission to a medical college against the seats reserved by Govt. of India for the candidates belonging to State of Tripura by illegal means. Merely because there is no evidence on record of accused no.1, Gurdial Singh and accused no.4, Smt. Gita Banik in direct contact of each other for accomplishing the said conspiracy, it cannot be inferred or concluded that they were not party to the conspiracy, which was being pursued by both of them for attaining the common design of obtaining nomination letter for admission to first year MBBS course unauthorisedly by corrupt and illegal means. Not only that, accused no.4, Smt. Gita Banik had acted to her favour after receiving the nomination letter Ex.PW6/B, unauthorisedly issued in her favour by accused no.1, Gurdial Singh, and had taken admission in Darbhanga Medical College, Laheriasarai, Bihar on the strength of the same, which was the ultimate object of the conspiracy. The evidence brought on record by the prosecution is sufficient to hold that accused no.4, Smt. Gita Banik was party to the conspiracy for obtaining a nomination CC No.06/10 77of 86 78 letter for her unauthorisedly and she on the basis of the said nomination letter Ex.PW6/B was able to induce the Principal of Darbhanga Medical College, Laheriasarai, Bihar, of the same being a valid nomination letter issued in her favour as a nominee of State of Tripura.

88. Accused no.4, Smt. Gita Banik has also been charged for the offence punishable U/S 420 IPC. The offence brought on record by the prosecution goes to prove that she had wrongfully gained and was able to get admission in Darbhanga Medical College, Laheriasarai, Bihar on the strength of an unauthorised nomination letter no. F.11(105) E.T./MS/90 dated 10.09.1990, Ex.PW6/B issued by accused no.1, Gurdial Singh in her favour resulting in corresponding loss to an eligible candidates being residents of Tripura or otherwise entitled to be nominated to the seat as a nominee of State of Tripura by convincing the officials of Darbhanga Medical College, Laheriasarai, Bihar that the nomination letter Ex.PW6/B has been issued by a person competent and authorised to sign the nomination letter Ex.PW6/B for admission of the students as nominees of State of Tripura.

CC No.06/10                                                              78of 86
                                       79

Ingredients of Section 420 IPC are made out against accused no.4, Smt. Gita Banik.

89. Further, accused no.4, Smt. Gita Banik has been charged for offence punishable U/S 471 IPC on the ground that she had used the forged nomination letter no. F.11(105) E.T./MS/90, Ex.PW6/B dated 10.09.1990 knowing or having reason to believe the same to be forged and false document and same has been used by her fraudulently or dishonestly. As held earlier, nomination letter Ex.PW6/B was a forged document executed by accused no.1, Gurdial Singh, but there is not sufficient evidence on record to show that accused no. 4, Smt. Gita Banik had been using the said nomination letter Ex.PW6/B knowing the same to be a forged document. It is one thing that a document has been executed by a person unauthorisedly, but it is a different thing that the document so executed, is a false document. Accused no.4, Smt. Gita Banik was knowing that accused no.1, Gurdial Singh was not the officer competent to issue nomination letter in her favour, but the knowledge of the nomination letter, so issued, to be a forged and false document, cannot be attributed to her. So, CC No.06/10 79of 86 80 the ingredients of offence punishable U/S 471 IPC are not made out against accused no.4, Smt. Gita Banik.

90. In view of above discussions, it is held that prosecution has been able to prove its case against accused no. 1, Gurdial Singh for the offence punishable U/S 120B IPC r/w Section 420, 468 IPC and Section 13(2) r/w Section 13(1)

(d) of Prevention of Corruption Act, 1988. Prosecution has also been able to prove the case against accused no.1, Gurdial Singh, for the offence punishable U/S 468 IPC and for the offence punishable U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988, beyond reasonable doubt. But prosecution has failed to prove its case against Accused no.1, Gurdial Singh for the offence punishable under Section U/S 420 IPC as well as U/S 467 and 471 IPC.

91. Prosecution has also been able to prove its case against accused no.4, Ms. Gita Banik for the offence punishable U/S 120B IPC r/w Section 420, 468 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 and also for the offence punishable U/S 420 IPC beyond reasonable doubt, but prosecution has failed CC No.06/10 80of 86 81 to prove its case against accused no.4, Ms. Gita Banik for the offence punishable U/S 471 IPC.

92. Accordingly, accused no.1, Gurdial Singh, is held guilty and convicted for the offence punishable U/S 120B IPC r/w Section 420, 468 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. Further, he is held guilty and convicted for the offence punishable U/S 468 IPC and also held guilty and convicted for the offence punishable U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. However, he is acquitted of the charge U/S 420 IPC as well as U/S 467 and 471 IPC.

93. Accused no.4, Ms. Gita Banik, is held guilty and convicted for the offence punishable U/S 120B IPC r/w Section 420, 468 IPC and U/S 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. Further, she is held guilty and convicted for the offence punishable U/S 420 IPC. However, she is acquitted of the charge U/S 471 IPC.

Announced in open court                       (J P S MALIK) 
On 19.09. 2013                                       SPECIAL JUDGE
                                           CBI03 (P C ACT)/ DELHI


CC No.06/10                                                             81of 86
                                     82

IN THE COURT OF SH. J.P.S MALIK :SPECIAL JUDGE CBI03 (PC ACT): TIS HAZARI: DELHI Corruption Case No. 06/10 RC No. RC2(S)/96/ CBI/SCBI/ND CBI Vs 1. Gurdial Singh s/o Sh. Gopal Singh Then Resident Commissioner Govt. of Tripura, Tripura Bhawan, New Delhi Now IG CID Crime and Railways State of Gujrat, 09, New Mental Compound Meghani Nagar, Ahmedabad R/o Bunglor No.33, Shahi Bagh, Ahemdabad, Gujrat.

2. Smt. Gita Banik D/o Sh. Ratan Lal Banik r/o Krishna Nagar, West Tripura, Agartala.



Arguments concluded on:  01.10.2013
Date of order                   : 01.10.2013

ORDER ON SENTENCE:

1. Both the convicts, Gurdial Singh and Smt. Gita Banik, were heard on point of sentence.

CC No.06/10                                                           82of 86
                                       83

2. Convict Gurdial Singh, has been held guilty for offence punishable under Section 120B IPC r/w Sections 420, 468 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, as well as for substantive offences punishable under Section 468 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act.

3. Convict Smt. Gita Banik, has been held guilty for offence punishable under Section 120B IPC r/w Sections 420,468 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, as well as for substantive offence punishable under Section 420 IPC.

4. On behalf of convict Gurdial Singh, it is submitted by Ld. Counsel appearing for him that he is a retired IPS Officer, had served the country honestly and at present is aged 69 years having various ailments. It is also submitted that convict Gurdial Singh was earlier in Indian Army having taken part in 1971 War. It is requested that a lenient view be taken.

5. On behalf of convict Smt. Gita Banik, it is submitted by the Ld. Counsel that she was a teenager as on the date of seeking admission in the Medical College and passing a CC No.06/10 83of 86 84 sentence of imprisonment shall disturb her life and family. Further it is submitted that she is a diabetic, have two school going children, to take care of. Request is made for a lenient view seeking to be enlarged on probation.

6. On behalf of prosecution, submissions were made by Sh. V. N. Ojha, Spl. PP for CBI as well as Sh. Brajesh Shukl, Sr. PP for CBI, and they argued for a severe punishment, consecutive in nature in view of the fact that deserving students of Far East have been denied their due by the person who were entrusted to work for their betterment.

7. In view of the circumstances of the case where the deserving students of State of Tripura were fraudulently denied of their due entitlements in Medical/Dental College pursuant to a conspiracy, taking a lenient view shall be a case of misplaced sympathy with the wrongdoers.

8. Accordingly, convict Gurdial Singh is sentenced to undergo RI for 4 years and a fine of Rs.10,000/ for offence punishable under Section 120B IPC r/w Section 420,468 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act.

CC No.06/10                                                                  84of 86
                                      85

Further convict Gurdial Singh is sentenced to undergo RI for 4 years and a fine of Rs.10,000/ for offence punishable under Section 468 IPC.

Further convict Gurdial Singh is sentenced to undergo RI for 4 years and a fine of Rs.10,000/ for offence punishable under Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act.

Substantive sentence awarded under different Sections of different Acts shall run concurrently. This is one of the 6 connected cases being CC No. 6/10, 7/10, 8/10, 9/10, 10/10 and 11/10 arising out of same RC no.RC2(S)/96/ CBI/SCB I/ND, and so it is directed that the substantive sentence awarded in all complaint cases shall run concurrently.

9. Convict Gita Banik, is sentenced to undergo RI for 1 year and a fine of Rs.20,000/ for offence punishable under Section 120B IPC r/w Section 420,468 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988.

Further convict Gita Banik, is sentenced to undergo RI for 1 year and a fine of Rs.20,000/ for offence punishable CC No.06/10 85of 86 86 under Section 420 IPC.

Substantive sentence awarded under different Sections of different Acts shall run concurrently.

Announced in open court                       (J P S MALIK) 
On 01.10. 2013                                       SPECIAL JUDGE
                                          CBI03 (P C ACT)/ DELHI




CC No.06/10                                                           86of 86

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

Cbi vs 1. Gurdial Singh on 1 October, 2013