Kerala High Court
Bail Appl./4137/2020 on 30 September, 2020
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P.V.KUNHIKRISHNAN, J
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B.A.No.3945/2020, B.A.No.4136/2020,
B.A.No.4137/2020 & B.A.No.4138/2020
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Dated this the 30th day of September, 2020
ORDER
REPORT SUBMITTED AS PER ORDER DATED 16.07.2020 IN B.A.NO.3945/2020 This report is submitted as per the direction of this Court on 16.07.2020 in B.A.No.3945/2020. A short history of the case is necessary.
2. Some parents of the students seeking admission to MBBS/MD course, submitted a complainant before the Admission Supervisory Committee for medical education in Kerala, alleging that, huge amount is collected from them, promising admission in Dr. Somervel Memorial CSI Medical College, Karakkonam. The Admission Supervisory Committee, after considering the complaint, passed the following Orders, which is extracted hereunder.
"The college officials as well as the office 2 bearers, viz Dr Bennet Abraham, Sri P Thankaraj, Rt Rev A Dharmaraj Rassalam (The Bishop)have virtually admitted the collection of amounts from the parents of the students aspiring MBBS/MD course, promising the admission but the college had not provided admission to the students. As per the provision in the prospectus, non keralite students were not eligible for the admission of MBBS/BDS/MD courses, in Kerala and the college authorities were fully aware that many of the non keralite students were ineligible for admission, yet they collected money promising admission to non keralites. The evidence would indicate that Dr Bennet Abraham was controlling the admission and most of the complainants paid the amount after meeting Dr Bennet Abraham. All the office bearers and Dr Bennet Abraham were fully aware of the situation and virtually it was willful cheating. The matter was placed before the Admission Supervisory Committee constituted under Act 15 of 2017 and as amended by Act 4 of 2019 in its meeting held on 26.07.2019. The committee decided to place the matter before the government and to recommend for necessary action as the committee felt doubt as to whether the collection of money from the aspirants of the parents could not be treated as capitation fee as defined under section 2(b)of Act 15 of 2017".
3. The Admission Supervisory Committee found that, the collection of huge amount from aspiring students in 3 advance, promising admission is not a healthy practice and that cannot be permitted to be continued. Hence the committee recommended that the above practice will have to be put an end. Thereafter, the committee recommended like this;
"On a consideration of the complaints, evidence and all the circumstances, the committee recommend the government under section 8(4) of Act of 2017 to take appropriate steps against the college to refund the amount collected from the complainants and to initiate criminal proceedings against the college officials and the office bearers, viz the Bishop Rt Rev A Dharmaraj Rassalam, Dr Bennet Abraham, and Sri Thankaraj in accordance with law. The complaints and records shall be forwarded to the Government as and when required".
4. Based on the recommendation of the committee, the government passed an Order on 23.12.2019. The Order is extracted hereunder;
"I am to invite your attention to the references cited. In exercising the powers under section 8(4) of the Kerala Medical Education (Regulation and control of admission to Private Medical Educational Institutions) Act 2017, you are directed to refund the amount mentioned in the proceedings cited 1st paper above to the complainants/Parents within two months. If you 4 fail to adhere the time limit, Government shall initiate recovery proceedings as per the provisions of Act mentioned above".
5.Subsequently, some of the aggrieved party filed private complaints before the Jurisdictional Magistrate Court and all those cases were referred to the Police Station concerned under Section 156 (3) of Cr.P.C. Accordingly, jurisdictional Police Station registered cases. Subsequently, some of the aggrieved party approached this Court and this Court directed the Crime Branch to investigate all these cases. The Crime Branch registered the following cases. Case 1: Cr.41/CB/TVPM/R/2020(Vellarada PS Cr.379/19) U/s 120B.420.406.403 &34 I.P.C. Case 2: Cr.42/CB/TVPM/R/2020(Vellarada PS Cr.589/19) U/s 120B.403.406.378.380& 34 I.P.C. Case 3: Cr.43/CB/TVPM/R/2020(Vellarada PS Cr.957/19) U/s 420 &34 I.P.C.
Case 4: Cr.44/CB/TVPM/R/2020(Vellarada PS Cr.1072/19) U/s 420 &34 I.P.C.
Case 5: Cr.45/CB/TVPM/R/2020(Vellarada PS Cr.1169/19) U/s 406.420 &34 I.P.C.
Case 6: Cr.46/CB/TVPM/R/2020(Vellarada PS Cr.1170/19) U/s 406.420 &34 I.P.C.
Case 7: Cr.47/CB/TVPM/R/2020(Vellarada PS Cr.1175/19) U/s 420 &34 I.P.C.
Case 8: Cr.48/CB/TVPM/R/2020(Vellarada PS 5 Cr.1191/19) U/s 420 &34 I.P.C.
Case 9: Cr.49/CB/TVPM/R/2020(Vellarada PS Cr.1042/19) U/s 420 &34 I.P.C.
6. Thereafter, one of the accused approached this Court with the above bail applications apprehending arrest. When the bail applications came up for consideration, the Public Prosecutor opposed the bail applications. After hearing both sides, this Court granted bail to the 1st petitioner in that bail applications. The Public Prosecutor submitted that, the 2nd petitioner is not an accused in the case. The relevant portion of the Order dated 16.07.2020 in B.A No.3945/2020 passed by this Court is extracted hereunder.
"When these cases came up for consideration, the learned Public Prosecutor submitted that the second petitioner in all these Bail Applications are not an accused. The same is recorded. The first petitioner is admittedly, the Accountant of the College. A perusal of the report submitted by the investigating officer in this case, it is clear that notice was issued to the first petitioner under Section 41A Cr.P.C. She was questioned based on the 41A notice. Therefore, the first petitioner filed these Bail Applications 6 apprehending arrest. It is submitted by the learned Public Prosecutor that the first petitioner is the third accused in Crime No.49/CB/TVPM/D/2020 and in all other cases, the first petitioner is the fourth accused. The other accused are the office bearers of the college. According to the Prosecutor, first accused is the Chairman and the second accused is the Director of the College. A perusal of the report submitted by the investigating officer, it is clear that no investigation is conducted against accused Nos.1 to 3. The investigating officer is behind an employee of the college. The Admission Supervisory Committee found that there is evidence to show that the accused accepted capitation fees. The government also took notice of the same. Even then no case is registered. Thereafter, when the affected students approached the magistrate court, the learned magistrate forwarded the complaints and thereafter, cases are registered. Even now, the investigating officer has not raised his little finger against first and second accused which is clear from the report filed by the Deputy Superintendent, Crime Branch Central Unit I, Thiruvananthapuram on 1.7.2020. I am surprised to see that why the Crime Branch 7 Unit is behind the employees of the college and without taking any steps against the main accused in this case. Big sharks are swimming without any hindrance and the investigating officer is behind the employees of the college"
7. Based on the above direction, the Investigating Officer filed a report before this Court on 24.07.2020. The relevant portion of the report is extracted hereunder.
"8. The present investigating officer took over the investigation on 21/05/2020. On investigation, it is revealed that the accused persons also committed offences under section 2C(xii)& Sec.13(1)(d)(ii)r/w 13(2)of Prevention of Corruption Act 1988 in addition to the sections mentioned in the FIR. A separate report was sent to the Jurisdictional Court for adding the above sections in all the eight cases except in Cr.42/CB/TVPM/R/2020 (Vellarada PS Cr.589/19 U/s 120B.403.406.378.380&34 I.P.C.
9. As part of the investigation on 02.06.2020 a notice U/s 41 A Cr.P.C was served to Dr. Bennet Abaraham, who is an accused in all the nine cases, to appear before the investigating officer on 15.06.2020. On seeking 10 days extension for appearance from him a new notice was served on 22.06.2020 to 8 appear before the investigating officer on 30.06.2020. He appeared before the investigating officer and was questioned and recorded his statement in detail. The statements of Sri. Dharmaraj Rassalam, who is the Chairman of Medical College was also recorded in detail.
10. The above accused have admitted in their statement that they have received the amount as alleged by the complainants in the cases. They also claimed further that these amounts were given back to them and settled the issue. Since the complainants of the seven cases are residing in Tamilnadu and due to Covid-19 situation, their statements could not be recorded by the Crime Branch as part of the investigation of the Crime Branch. But the complainants had given statement before the local police in consonance with the allegations in the FIR. The defacto complainants were contacted through phone to clarify the genuineness of the statement with the accused. They admitted that they have got their money back from the medical college.
11. A notice U/s 41 A Cr.PC was served to Sri. Thankaraj, who is the third accused in these crime to appear before the investigating officer on 12.06.2020 but has sought for extension by citing Covid 19 lock down situation and his old age. Since he is residing in Kerala Tamilnadu border his statement could not be recorded.
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12. The statement of the first petitioner in this Bail Application Smt. Shiji, who is an accountant cum Clark in the Medical College Karakkonam, was recorded and she has stated that as per the instruction of Sri. Thankaraj, she used to count and keep the money in his safe custody which was collected by him from the parents who seek the admissions to the medical college.
13. Statements of other witnesses and employees of the medical college are also recorded during the course of investigation. The investigation is being continued in connection with the loss of cheque books from the office of the Karakonam medical college in Cr.42/CB/TVPM/R/2020(Vellarada PS Cr.589/19).
14. During the course of investigation, the statements of other accused, Dr. Madhusudhanan, The Principal, Sri.Jayaraj, Sri.MS Alex, Rev. Paulson and Dr. Ross Bist were also taken by the investigating officer. The statement of the defacto complainant in crime Cr.42/CB/TVPM/R/2020, Sri.Calvin Kisto is also recorded during the course of investigation.
15. Since 21.05.2020, the date on which the investigation of the cases have been taken over by Crime Branch, due to the Covid-19 lockdowns and the travel restrictions have made it much difficult to proceed with the investigation by taking the statements from the complainants of the seven cases, as they 10 are all residing in Tamilnadu.
16. During the course of investigation, steps have been taken to collect all the bank account details of the college. More steps are taken to find out the bank account details, property details and call details of all accused. It is humbly submitted that the investigation of the above cases which was taken over by me only on 21/05/2020 is progressing in a speedy manner by taking all the possible steps for the collection of documentary as well as oral evidence to ascertain the actual transaction behind the case, despite the prevailing Covid-19 scenario. The investigation of the case by the Crime Branch is in the preliminary stage and the petitioners in the bail application have been summoned as part of investigation for gathering information regarding the actual transaction and the circumstances involved in the case and also to ascertain the role of the other accused in these cases. The investigation conducted so far has revealed that the accused had accepted money from the complainants of the cases for admission to the MBBS and PG seats".
8. The report submitted by the Investigating Officer clearly states that, the investigation conducted so far revealed that the accused has accepted money from the complainants for admission to MBBS and 11 PG seats. But the Investigating Officer submitted that, the main accused in this case were already questioned and their statement were recorded and arrest is not recorded. It is now a well settled principle that in criminal cases the arrest is not necessary in all cases. It is the discretion of the Investigating Officer to decide whether an accused is to be arrested in connection with the investigation of a case. The Cr.P.C itself is amended recently, by which, the arrest of the accused in all criminal cases is not necessary during investigation unless it is needed for the purpose of investigation. Therefore, I see no illegality in the decision of the Investigating Officer in not recording the arrest of the main accused in this case. I agree with the report submitted by the Investigating Officer in this case.
9. But this is a matter to be taken by the Investigating Officer very seriously. When this report came up for consideration before this Court earlier, the Senior Counsel Adv. Sri. S. Sreekumar submitted that, he is instructed to appear for the accused No.1 to 3 in this case. He submitted that, he filed a 12 Criminal M.C before this Court to quash the entire proceedings. Therefore, this Court adjourned this matter. After Onam vacation, this matter again came up for consideration. At that stage, the senior counsel submitted that, he withdrew the Criminal M.C because it was submitted by the Public Prosecutor that, the offences under the Prevention of Corruption Act is deleted. Then, I directed the Public Prosecutor, to file a statement, whether the offences under the Prevention of Corruption Act is deleted in these cases.
10. Now,a statement is filed by the Investigating Officer on 22.09.2020 informing this court that, the offences under the Prevention of Corruption Act is not deleted from this case.
11. The Senior Counsel who appeared for the accused No.1 to 3 submitted that, the amount is received from the parishioners and well wishers of the Church as a trustee in law. The senior counsel submitted that, those amount is already returned. But I am not satisfied with this submission. When such an amount is collected in connection with the admission to colleges, there should be backing of law. Without backing of law, 13 if any amount is collected by a Public Servant, that will attract the offences under the Prevention of Corruption Act and the other provisions of the Indian Penal Code.
12. Moreover, I directed the registry to post the Judges Papers in Crl.M.C No.3323/2020. Today the entire file connected to Crl.M.C 3323/2020 was posted along with this case. I perused the Crl.M.C filed by the main accused in this case. In the Crl.M.C, it is very specifically admitted that, the amount is received from some of the parents in this case and they returned the amount to them.
13. I don't want to make any observation about the merit of the case. But I make it clear that,if a single pie is received illegally by a Public Servant, the offences under the Prevention of Corruption Act will attract. Simply because the same is returned, the offence will not be wiped off. I also make it clear that, the Investigating Officer should thoroughly investigate this matter. Simply because the amount collected illegally is returned, the offence will not be wiped off.
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14. Now a days it is general complaint that, the Higher Education institutions are accepting huge amount as capitation fee for admission to colleges. The Investigation so far conducted in this case is satisfactory. The investigation is going in the correct way. I trust the Investigating Officer in this case. But the investigation cannot continue indefinitely like this. If there is any offence made out, the Investigating Officer should conclude the investigation, after conducting a thorough investigation in this matter. Whether capitation fee is accepted or not is a matter to be investigated. But the investigation cannot go like this indefinitely. As I said earlier, collection of capitation fee in connection with the admission to Higher Education Courses, is a menace faced by the State. Such complaints should be handled with the long iron hands of law. By expediting the investigation in such cases, the state Police should give a signal to those people, who are collecting capitation fee for admission to colleges. I am happy that the investigation so far done in this case is going in the correct way. I once again 15 trust the Investigating Officer in this case. The Investigating Officer should give importance to this case. I direct the ADGP Crime Branch not to give any other serious work to the Investigating Officer in this case. The Investigating Officer will conclude the investigation within three months from today. The Investigating Officer should file a compliance report before the Registrar General of this Court immediately after filing the final report before the competent Court in accordance to law.
15. I make it clear that, the Investigating Officer should conduct the investigation in a fair and impartial manner. The Investigating Officer will conclude the investigation untrammelled by any observations in this Order.
Sd/-
P.V.KUNHIKRISHNAN JUDGE NB