Cbi vs 1. Amal Kumar Roy on 1 October, 2013

[Cites 22, Cited by 0]

Delhi District Court

Cbi vs 1. Amal Kumar Roy 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. 21/10
RC No. RC2(S)/96/ CBI/SCBI/ND

CBI            Vs            1.   Amal Kumar Roy
                                  s/o Late Sh. Jnanad Kishore Roy
                                  Then Secretary to the Chief Minister
                                  of Tripura, Agartala (since retired)
                                  R/o 63, Ruby Park (East), 
                                  Rajdanga Road, Calcutta100 078.

                             2.   Smt. Rupa Ghosh
                                  D/o Sh. Amal Ghosh
                                  R/o Jagannath Bari road, 
                                  Near Colonel Chowmohani, Agartala,
                                  Tripura.  

Date of Institution              : 02.01.1998
Date of conclusion of arguments: 02.09.2013
Date of judgment                 : 19.09.2013

JUDGMENT:

1. Both the accused, A.K.Roy and Smt. Rupa Ghosh were chargesheeted for offence punishable U/S 120B r/w Sections 420, 468,471 IPC and Section 13(1)(d) r/w Section C C No.21/10 1/70 2 13(2) of Prevention of Corruption Act, 1988. Accused no.1, A.K.Roy was further chargesheeted for substantive offences punishable U/S 468 IPC and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act, 1988. Accused no.2, Smt. Rupa Ghosh was further chargesheeted for substantive offences punishable U/S 420 IPC and 468 r/w Sec. 471 IPC.

2. The case relates to admission of accused no.2, Ms. Rupa Ghosh in the first year MBBS course in Medical college, Trichur, Kerala for the academic year 19891990 on the basis of a nomination letter no. F.3(12)CM/PS/89 dated 03.10.1989 issued by accused no.1, A.K.Roy in her favour. Accused no.1, A.K.Roy was Secretary to the then Chief Minister of Tripura.

3. The facts, in brief, are that State of Tripura was not having any medical college of its own at the relevant time. Ministry of Health and Family Welfare, Government of India, used to request State Governments/Union Territories and other Medical Institutions for contribution of seats for the central pool. From the Central Pool so established, Ministry of Health and Family Welfare, Government of India used to allocate C C No.21/10 2/70 3 MBBS/BDS seats to the States/Union Territories, not having colleges of their own, and to other specified institutions. Apart from that State of Tripura also used to get some seats made available by the Regional Medical College, Imphal, Manipur, apart from the seats allocated by the Ministry of Health and Family Welfare, Government of India. MBBS and BDS seats so alloted to the State of Tripura, used to be provided to the eligible students on the basis of merits.

4. In December 1988, Government of Tripura, constituted Tripura Board of Joint Entrance Examination(TBJEE) for selection of candidates through Joint Entrance Examination (JEE) conducted every year, and then nomination of the candidates for admission in MBBS & BDS Courses in various medical colleges, were made on the basis of the merit. Criteria for deciding the eligibility of the candidates were laid down in the Tripura Board of Joint Entrance Examination Regulations, 1989.

5. As per the Regulation no.4 of the aforesaid Regulations, the elgibility conditions were that applicant must be an Indian Citizen and a permanent resident of Tripura in C C No.21/10 3/70 4 terms of Memorandum No. F.28(31)rev/87 dated 12.12.1988 of the Revenue Department, Government 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/Central Board of Secondary Education or equivalent. In case, a candidate was not a permanent resident of Tripura, he or she was still eligible to appear for the Joint Entrance Examination in case his/her parent was an officer on deputation to the Govt. of Tripura/officer of the Central Govt. working in Tripura, having served in Tripura for a period of not less than 3 years and had passed Higher Secondary Examination from an Institution of Tripura.

6. 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 as per the instructions, the children of (i) permanent residents of the State/UT concerned, (ii) the employees of the State/UT concerned, (iii) the employees of Central/other State/UT Govt. on deputation to the State/UT concerned, and (iv) the employees of Central/other States/UT Govt. posted in and C C No.21/10 4/70 5 having their HQs with the State/UT concerned were also eligible. Apart from that, reservations were made for students belonging to Scheduled Castes and Scheduled Tribes, of that State/UT.

7. After constitution of Tripura Board of Joint Entrance Examination(TBJEE) in December 1988, the procedure adopted was that for the purpose of selection of candidates for admission in Professional Degree Courses, including MBBS & BDS Courses, separate merit list were prepared for General Category, Scheduled Caste candidates and Scheduled Tribes candidates in each group i.e. EPCM (English, Physics, Chemistry and Maths) and EPCB ( English, Physics, Chemistry and Biology). All the seats available against the above mentioned two groups were to be made available to the TBJEE for admission of the candidates on the basis of merit position, secured in the Joint Entrance Examination 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 nomination. The nomination letters were required to be issued by the designated authority C C No.21/10 5/70 6 for each group and in respect of MBBS & BDS seats, the Director of Health Services, Govt. of Tripura, was the only designated authority for issuing nomination letters and, therefore, prescribed proforma for nomination letters in the office of Director of Health Services, Government of Tripura was made available.

8. For the Academic year 198990, Ministry of Health and Family Welfare, Government of Tripura, initially allotted 22 MBBS and 2 BDS seats to the State of Tripura from the Central Pool. These seats were placed at the disposal of Tripura Board of Joint Entrance Examination(TBJEE), and same were allotted to the candidates, category wise, on the basis of merit. Nomination for admission in respect of these candidates were duly issued by Director of Health Services, Government of Tripura, Agartala. Further, in addition, vide letter of allocation no. U14014/15/89ME(UG) dated 14.09.1989, Ministry of Health and Family Welfare, Government of India, allocated 5 MBBS and 2 BDS seats to Government of Tripura, 4 MBBS seats in Medical College, Trichur, Kerala, 1 MBBS seat in Nalanda Medical College, C C No.21/10 6/70 7 Patna, 1 BDS seat in Government Dental College, Patna, Bihar.

9. It is the case of the prosecution that 4 additional MBBS seats in Medical College, Trichur, Kerala and 1 BDS seat in Government Dental College, Bihar were not placed at the disposal of TBJEE and Director of Health Services, Government of Tripura, which were in fact altogether suppressed from the said authorities. It is also the case of the prosecution that initially, even MBBS seat allocated in Nalanda Medical College, Patna, Bihar, was also suppressed from the concerned authorities.

10. The case of prosecution is that accused no.1, A.K.Roy, acting as Secretary to the Chief Minister of Tripura, Agartala in the year 1989, entered into a criminal conspiracy with accused no.2, Ms. Rupa Ghosh D/o Sh. Amal Ghosh, R/o Jagannath Bari Marg, Near Col.Chowmohani, Agartala, Tripura and pursuant to the said conspiracy, suppressed Department of Health, Ministry of Health and Family Welfare, Govt. of India's letter No.U14014/15/89ME(UG) dated 14.09.1989 during the academic session 19891990 from C C No.21/10 7/70 8 Tripura Board of Joint Entrance Examination and other concerned authorities. Further, case of the prosecution is that accused no.1, A.K.Roy, fraudulently, dishonestly, unauthorisedly and by abusing his official position, as public servant, issued a nomination letter no. F.3 (12)CM/PS/89 dated 03.10.1989 in favour of accused no.2, Ms. Rupa Ghosh for her admission in Ist year MBBS course in Medical College, Trichur, Kerala. It is the case of prosecution that accused no.1, A.K.Roy was fully aware while issuing nomination letter dated 03.10.1989 in favour of accused no.2, Ms. Rupa Ghosh, that accused no.2, Ms. Rupa Ghosh was in no way eligible for said nomination as a nominee of Tripura nor he himself was authorised and competent to sign and issue the said nomination letter dated 03.10.1989. It is further the case of prosecution that accused no.2, Ms. Rupa Ghosh had appeared at the said Joint Entrance Examination conducted by TBJEE in 1989 but her name figured low in the merit list, and in the normal course her name could not have been considered for admission in MBBS course as nominee of Tripura.

11. Charge for the offence punishable U/S 120B r/w C C No.21/10 8/70 9 Section 420 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988 was framed against both the accused on 27.04.2007. Accused no.1, A.K.Roy was further charged for substantive offences punishable U/S 420 IPC and under Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. Additional charge for substantive offence punishable U/S 420 IPC was framed against accused no.2, Rupa Ghosh. Both the accused pleaded not guilty of the charges framed and claimed trial.

12. On the joint request of Sh. V.N.Ojha, Spl.PP for CBI as well as counsels for accused persons, in all the cases arising out of same RC bearing No.2(S)/96, vide order dated 30.08.2010, it was directed that evidence will be recorded only in one case being CC No.18/10, copy of which shall be placed on other three files being CC No.02/10, 20/10 and 21/10. Deposition of the witnesses have been recorded accordingly in CC No.18/10 and copy of the same has been placed on the record of other files.

13. Prosecution examined 18 witnesses in order to substantiate the allegations against the accused persons. C C No.21/10 9/70

14. PW1 is Ms. Amarjeet Kaur, Deputy Director General, in the Ministry of Labour and Employment, who was working as Deputy Secretary in the Ministry of Health and Family Affairs from October, 1989 to May 1991. The witness has deposed as regards the procedure followed in allocating the seats in the medical colleges to the States/UTs which were not having medical colleges of their own. The witness testified that letter dated 23.11.1990 addressed to Secretary, Health & Family Welfare Department, Govt. of Tripura, Agartala, purported to be signed by her, in fact was not signed by her. Photocopy of the same was given the marking as Ex.PW1/A for the purpose of identification only.

15. PW2 is Retired Inspector Beer Singh, who was working as SHO PS Chanakya Puri, New Delhi on 09.02.1996 and has deposed as regards the registration of an FIR on the basis of a complaint made by Hardan Sinha, Assistant Director, Health Services (Education and Training), Govt. of Tripura being FIR No.31/1996. The witness also testified as regards the sending of said FIR and other documents to Director CBI, C C No.21/10 10/70 11 New Delhi in terms of orders passed by Hon'ble Assam High Court at Guwahati, Agartala Bench, on 13.02.1996.

16. PW3 is Najeeb, Accounts Officer in T.D Medical College, Alleppey, Kerala. The witness was working as UDC at the Trichur Medical College, Kerala in year 1997 and has produced the documents relating to the nomination as well as admission of candidates Geeti Puri, Rupa Ghosh, Kumari Kriti and Hemant Saluja, for the academic year 19891990, which were handed over by T. Ramacharan Nair, the then Principal of the Medical College vide letter dated 03.05.1996.

17. PW4 is C.L.Bhatia, who was a Desk Officer in Ministry of Health & Family Welfare, Govt. of India from the year 19851986 to 19901991. The witness has deposed as regards the procedure for allocation of central pool seats to the States/UTs which were not having medical /dental colleges of their own. The witness also testified that during the academic year 19891990, State of Tripura was not having any medical/dental college of its own and seats from central pool were allocated to the State of Tripura. It was further testified by the witness that procedure for selecting the eligible C C No.21/10 11/70 12 candidates was to be completed by the concerned State. The witness has proved the letter no. U14014/15/89ME(UG) dated 14.09.1989, Ex.PW4/A vide which 5 MBBS seats and one BDS seat was allocated to the Govt. of Tripura. The witness has also proved the standing instructions vide letter no. U14014/84/86ME(UG) dated 09.12.1986 Ex.PW4/B issued by the Govt. of India in the Ministry of Health & Family Welfare and deposed that the concerned States/UTs /agencies were to follow the standing instructions when the seats from Central Govt. are allocated to them.

18. PW5 is P. Srivastava, who was working as Secretary to the Govt. of Tripura in December, 1997. The witness has testified as regards the sanction of prosecution accorded by the Governor, Tripura for prosecution of accused A.K.Roy and the sanction letter Ex.PW5/A has been proved by the witness, which was signed by him as an authenticating officer.

19. PW6 is Kanwar Singh, who was posted as Inspector in SCBI, CBI, CGO Complex, New Delhi in year 1996 and has testified as regards his visit to Govt. Dental C C No.21/10 12/70 13 College, Patna in May, 1996 for seizure of certain documents pertaining to accused Uday Shankar Sharma (accused in CC No.02/10).

20. PW7 is Sh. Badri Parshad, who retired as Head Clerk from Government Dental College, Patna and has testified as regards the seizure of documents pertaining to accused Uday Shankar Sharma. Original documents were placed in another matter titled as Gurdial Singh & Ors., CC No.06/10 and copy of the same was proved by the witness in the present case.

21. PW8 is Dr. Hardhan Sinha, who retired as Assistant Director from Health Services, Tripura and was posted as Zonal Leprosy Officer since 1989 in the office of Directorate of Health Services, Govt. of Tripura, Agartala till 1995. The witness has testified as regards the process to be adopted for selection of candidates for nomination against the seats allocated to the State of Tripura through examination of Tripura Joint Entrance Examination Board. Relevant Rules has been proved by the witness as Ex.PW8/A. The witness also testified that nomination letters for admission of the C C No.21/10 13/70 14 candidates in the first year MBBS/BDS course were to be issued by the Director of Health Services, Govt. of Tripura only and no other authority, except the Director of Health Services, Govt. of Tripura can issue such nomination letters. The witness also testified that no authority was having any discretionary power to issue nomination letters for the admission of the candidates in first year professional courses. The witness has also lodged FIR in the matter in regard to the fraud committed in the admission of first year MBBS/BDS course in the case, with PS Chanakya Puri, New Delhi. The witness has proved complaint Ex.PW2/A (Photocopy) lodged by him. The witness has proved the merit list Ex.PW8/B issued, following the examination conducted by Tripura Joint Entrance Examination Board for the year 198990, signed by Dr. Bikas Roy, the then Director of Health Services, Govt. of Tripura. The witness also testified as regards the nomination letters issued by accused A.K.Roy in favour of coaccused Uday Shankar Sharma, Kumari Kriti, Geeti Puri, Roopa Ghosh and Hemant Saluja(accused in different CCs).

22. PW9 is Dr.Somendra Chandra Chakravorty, who C C No.21/10 14/70 15 retired as Joint Director, Health Services, Govt. of Tripura and in the year 1996, was serving in the Directorate of Health Services, Govt. of Tripura as Joint Director. The witness has testified as regards the nomination of the candidates to be made against the seats allocated by the Central Govt. on the basis of merit list prepared following the examination conducted by Joint Entrance Examination of Tripura Board. The witness has testified that as Head of Department, Director Health Services, had the authority to nominate the selected candidates for admission in MBBS/BDS courses and had categorically stated that no discretionary quota was available to any authority to issue nomination letters for admission in MBBS/BDS courses in year 19891990. The witness has also deposed as regards the merit list prepared, following the examination conducted by TBJEE for the year 19891990 relating to MBBS/BDS courses separately for General category, Scheduled Tribes as well as Scheduled Castes candidates. The witness also deposed that list of nominated candidates for the first year MBBS/BDS courses for the year 19891990 was kept in a file and they used to keep the details C C No.21/10 15/70 16 of original nomination letters of the candidates nominated for admission of first year MBBS/BDS course for the year 19891990.

23. PW10 is Sh. Sumit Chakravorty, who in May, 1997 was posted at National Atlas and Thematic Maping Organisation, Salt Lake, CGO Complex, Calcutta64 and had joined investigation of this case as the office of the witness was situated in the same building where office of CBI was situated. The witness has deposed as regards the specimen writing and signatures of accused no.1, A.K.Roy taken in his presence on 26.05.1997.

24. PW11 is Ravindra Nath, being father of accused Kriti (accused in CC No.18/10). The witness has deposed that neither he nor any member of his family including his daughter Kriti ever resided or worked in the State of Tripura. As regards admission of accused Kriti in Trichur Medical College, Kerala, PW11 Ravindra Nath deposed that he was interested in his daughter Kriti taking admission in a MBBS course and he being posted as Information Officer or Field Publicity Officer, was connected with Press and he had requested a C C No.21/10 16/70 17 senior correspondent of Hindustan Times for arranging admission of his daughter and in this way, nomination letter for admission in first year MBBS course for academic year 19891990 in Medical College, Trichur, Kerala, was received.

25. PW12 is Chander Mohan Puri, father of accused Geeti Puri (accused in CC No.20/10). PW12 Chander Mohan Puri testified that nomination letter Ex.PW9/F was received from the office of State of Tripura issued by A.K.Roy, Secretary to the Chief Minister, Tripura.

26. PW13 is Dr. Bikas Roy, who had worked as Director, Health Services, Govt. of Tripura from year 1996 to 1998 and has testified that there was no medical or dental college in the State of Tripura during year 19981991. The witness has testified as regards the procedure to be adopted for selection of the candidates for nomination for the seats allocated by the Central Govt. to the State of Tripura and also testified as regards the documents produced by him to the Superintendent of Police, CBI, Delhi, vide different seizure memos. The witness had joined Directorate of Health Services, Govt. of India in year 1975. The witness also C C No.21/10 17/70 18 testified as regards the actions taken in the department, after the irregularities in the nomination of the candidates came to light.

27. PW14 is S.S.Sharma, who joined Govt. of Tripura as Principal Secretary, Health & Forest Department in the month of November/December, 1989 and continued as such till February, 1991 when he was promoted as Chief Secretary, State of Tripura. The witness has testified that vide a letter dated 20.03.1990 Ex.PW7/DX21, being letter No. 26/MDA, Dr. Moti Lal, Principal Nalanda Medical College, Patna, addressed to the Secretary, Health & Family Welfare Department, Govt. of Tripura, informed that one Tanveer Alam S/o Dr. M.A.Alam nominated for MBBS Course in their college from the Chief Minister's Secretariat, did not fulfill the eligibility criteria for admission and requested to nominate another candidate from the State for the seat. When the officials in the Department were asked to put up the matter, he was informed by Director, Health Services, State of Tripura that no record was available in the Directorate for nomination of Tanveer Alam. The witness also testified that one Ms. C C No.21/10 18/70 19 Manojaba Ray was sponsored by the Chairman, Joint Selection Committee, for the seat.

28. PW15 is Richhpal Singh, Deputy SP CBI and has deposed that in 1996 he was posted as SI CBI, Spl. Crime Branch, New Delhi. Initially, the investigation was handed over to this witness and later on, same was transferred and handed over to Sh. S.B.Sinha, the then Deputy SP CBI, SCB, New Delhi.

29. PW16 is S.B.Sinha, who was posted as Deputy Superintendent of Police in Special Crime Branch, Delhi from mid 1996 till 2002. After receiving the investigation of this case from SI Richhpal Singh, investigation of this case was conducted by this witness.

30. PW17 is S.L.Mukhi, Retired Principal Scientific Officer, CFSL, New Delhi, who had examined the documents received by him during investigation of the case and has proved his report Ex.PW16/G.

31. PW18 is Anil Misra, who was posted as Commissioner and Secretary, Health, Govt. of Tripura in year 1995. The witness has testified that certain irregularities were C C No.21/10 19/70 20 found in the allotment of seats during period 19891990 and 19901991 and pursuant to the orders passed by Hon'ble Assam High Court at Guwahati, Agartala Bench, he had recommended to the then Health Minister, suggesting the disciplinary action against the officers, who had committed irregularities and lodging of FIR in the related matter.

32. Accused persons were examined U/S 313 CrPC and their statements were recorded, except accused no.1, A.K.Roy, who had been seeking exemption from personal appearance on the ground of illness. Questions put U/S 313 CrPC were answered by Sh. G.C.Tyagi, Adv., his counsel pursuant to accused no.1, A.K.Roy giving an authority vide letter dated 31.01.2013 Ex.CX. As per the answers given by Sh. G.C.Tyagi, Adv., on behalf of accused no.1, A.K.Roy, the accused A.K.Roy has denied the allegations of any conspiracy between him and other accused in signing the nomination letter no. F.3(12)CM/PS/89, Ex. PW3/PX21 in favour of accused no.2, Rupa Ghosh. Further, the stand taken on behalf of accused no.1, A.K.Roy is that the nomination letters of the five candidates were signed by him as per the instructions given by C C No.21/10 20/70 21 the Chief Minister of Tripura at that time. There was nothing fraudulent in signing the nomination letters. The nomination letters given by accused no.1, A.K.Roy were genuine documents. Accused no.1, A.K.Roy had also taken the stand that Chief Minister was within his right to nominate candidates for admission in medical colleges/dental colleges, as he was having the discretion to do so, being Chief Minister of the State. It was also the stand taken on behalf of accused no.1, A.K.Roy that there was no notification or any document showing that only Director of Health Services was empowered to issue nomination letters to the candidates for first year MBBS/BDS courses. One witness was examined by accused no.1, A.K. Roy, in his defence.

33. In her statement U/S 313 CrPC, accused no.2, Ms. Rupa Ghosh has denied the allegations of any conspiracy with coaccused A.K.Roy or anyone else in obtaining the nomination letter Ex. PW3/PX21, unauthorisedly signed by accused no.1, A.K.Roy for admission in first year MBBS course in medical college, Trichur, Kerala. The stand taken on behalf of accused no.2, Ms. Rupa Ghosh is that she had C C No.21/10 21/70 22 appeared in the Joint Entrance Examination conducted by TBJEE in year 1989 and her name appeared in the merit list prepared. It is the case of accused Ms. Rupa Ghosh that the merit list which was prepared on the basis of Joint Entrance Examination conducted in year 1989, were not produced by the prosecution and instead the merit list placed on record being Ex.PW9/C, Ex.PW9/D, Ex.PW9/E and Ex.PW9/H relating to different categories are incomplete, unsigned and fabricated documents. Accused no.2, Ms. Rupa Ghosh has also denied the allegations that coaccused A.K.Roy, the then Secretary to the CM of Tripura was not empowered to issue nomination letter claiming that her nomination letter was a genuine document. Further stand taken on behalf of accused no.2, Ms. Rupa Ghosh is that she was a teenager in year 1989 when she had appeared for examination conducted by TBJEE and her position in the merit list was at Sr.No.50. Accused no.2, Ms. Rupa Ghosh further stated that since she was not able to get admission in first year MBBS course, she had taken admission in B.SC course in M.B.B College, Tripura, but after about two months, she had received a nomination for MBBS course in C C No.21/10 22/70 23 Trichur medical college and she had taken admission there at the insistence of her father, though she was not ready to go to such a far away place. Accused no.2, Ms. Rupa Ghosh further claimed that after taking admission in Medical College, Trichur, she felt home sickness in the strange atmosphere and requested her father after 10 days of admission, to take her back as she was not interested to pursue the medical course in that particular college and thus, surrendered her medical seat after 10 days of her admission. Accused no.2, Ms. Rupa Ghosh also stated in her statement that neither she nor her father knew coaccused A.K.Roy, personally at any point of time.

34. One witness being DW2, Sh. Dulal Krishan De was examined on behalf of accused no.1, A.K.Roy, who was posted at Tripura Bhawan, Calcutta as a Joint Resident Commissioner of Tripura State in the year 1990 and 1991. DW2, Dulal Krishan De had testified that he had worked with the then Chief Minister of Tripura, Sh. Sudhir Majumdar during 19881991 and he used to be in attendance when the Chief Minister happened to be on way to Delhi and happened C C No.21/10 23/70 24 to be in Calcutta. The witness also testified that he used to make the note of instructions in writing given by Chief Minister and used to take approval from him, later on. The witness has also identified the signature of then Chief Minister, Sh. Sudhir Majumdar on document marked DZ1.

35. No witness has been examined on behalf of accused no.2, Ms. Rupa Ghosh.

36. Arguments were heard on behalf of both, the prosecution and the accused persons. Written submissions have also been placed on record on behalf of accused persons.

37. PW4, C.L. Bhatia, was working as Desk Officer in Ministry of Health & Family Welfare, Govt. of India from the year 19851986 to 19901991. Apart from explaining the process undertaken for allocation of Central Pool seats to the States/UTs, not having their own medical/dental colleges, PW4 has deposed that it was for the concerned States/UTs, to select the eligible candidates for nomination to the concerned Medical/ Dental Colleges against the Central Pool seats, as per the standing guidelines/instructions issued by Central Government. It was also deposed by PW4, C.L. Bhatia that C C No.21/10 24/70 25 admission procedure was to be done by the competent authority of concerned State/UT Government. PW4, C.L. Bhatia, further proved that vide letter no. U14014/15/89 ME(UG) dated 14.09.1989, under the signatures of the witness, Ex. PW4/A, State of Tripura was allocated 5 MBBS and one BDS seat and with that, the total allocation to the State of Tripura for MBBS course was 26, and 3 for BDS course for Academic Year 198990. Standing instructions by the Government of India in the Ministry of Health dated 09.12.1986 Ex. PW4/B, were also proved by the witness.

38. PW9 Dr. Somendra Chandra Chakravorty, who was Joint Director, Health Services, Government of Tripura, in year 1996, had deposed as regards the procedure to be adopted for selection of candidates for nomination to the seats allocated in medical colleges to State of Tripura, by Government of India, through examination by TBJEE, deposing that there was no medical college in the State of Tripura, in the year 198990. PW9 Dr. Somendra Chandra Chakravorty, also deposed that as Head of the Department, Director of Health Services, had the authority to nominate the C C No.21/10 25/70 26 selected candidates for admission in MBBS/BDS Courses. PW9 Dr. Somendra Chandra Chakravorty, also deposed that there was no discretionary quota for nomination of any candidate to any MBBS/BDS Courses in year 19891990. The witness has also proved the signatures of accused no.1, A.K. Roy, on the nomination letter of accused Smt. Rupa Ghosh Ex. PW3/PX21, for admission of accused in first year MBBS Course in Medical College, Trichur, Kerala.

39. PW13 Dr. Bikas Roy, who was Director, Health Services, Government of Tripura, from year 1996 to year 1998, has deposed that no officer, other than Director of Health Services was authorised to issue any nomination letter for admission in Ist year MBBS or BDS Courses against seats allocated to the State of Tripura. PW13 Dr. Bikas Roy, also deposed specifically that neither Chief Minister nor Health Minister of the State had any discretionary powers to nominate any candidate for admission in MBBS or BDS Course, further testifying that the Central Health Minister had never issued any directions for issuance of nomination letter for admission in allocated MBBS/BDS seats to the State of C C No.21/10 26/70 27 Tripura, having no discretionary powers.

40. PW14 S.S. Sharma, was the Principal Secretary, Health & Forests Department, Government of Tripura from November/December 1989 till 1991. The witness has testified that File No. F.11(105)E.R/MS/89, regarding admission of all nominee students for study in MBBS Course in the year 19891990, was produced before him in regard to the letter dated 26.03.1990 Ex. PW7/DX21, received from Dr. Motil Lal, the Principal Nalanda Medical College, Patna, wherein it was informed by Principal that one Tanveer Alam S/o Dr. M.A. Alam , who was nominated for MBBS Course in their college by the Chief Minister's Secretariat, did not fulfill eligibility criteria for admission, and requested to nominate other candidate from the State. The witness deposed that when it was put up again, on his instructions, the then Director of Health Services, State of Tripura vide his Note no. 18 dated 30.03.1990 Ex. PW9/DX2, stated that Directorate was not aware about the said Tanveer Alam, and there was no record available in Directorate for his nomination.

41. PW18 Anil Misra, was posted as Commissioner C C No.21/10 27/70 28 and Secretary, Health, Government of Tripura, in year 1995, and deposed as regard the lodging of FIR after irregularities were pointed out in nomination of the candidates, against the allocated seats during the period 19891990 and year 19901991.

42. The contention raised on behalf of accused A.K. Roy is that this Court has got no jurisdiction in the matter, as no offence committed as alleged, was within the jurisdiction of the Court, as established under Section 3 of Prevention of Corruption Act, 1988, accused A.K. Roy, posted at Agartala, Tripura, and nomination letter had been issued in Chief Minister's Secretariat at Agartala, Tripura. Another contention on behalf of accused A.K. Roy, is that no previous sanction of the Central Government under Section 197 Cr. P.C or under Section 19 (1) of the Prevention of Corruption Act, 1988 has been taken and so, prosecution against accused no.1, A.K. Roy, who was an IAS officer, was not maintainable. It was also contented on behalf of accused A.K. Roy, that FIR in the matter registered, was not against accused A.K. Roy, and in case during investigation, it had come to the knowledge of the C C No.21/10 28/70 29 Investigating Officer that an offence had been committed by accused A.K. Roy, Investigating Officer was required to file separate FIR in the matter. It is also the case of the accused A.K. Roy, that there is no evidence on record to show that accused A.K. Roy, had any personal talk or agreement with any other person or any of the coaccused. It is claimed that accused no.1, A.K. Roy, had signed the nomination papers as per the directions of the Chief Minister of Tripura and the Chief Minsiter, had always been enjoying the discretionary quota.

43. The contention on behalf of accused Rupa Ghosh, is that FIR in the matter was lodged in connection with 3 medical/MBBS seats pertaining to (1) Bhagalpur Medical College, Bhagalpur, Bihar (2) Medical College Gwalior and (3) Patlipurtra Medical College, Bihar, on the basis of a fake letter under signatures of Ms. Amarjeet Kaur, the then Deputy Secretary, Ministry of Health and Family Welfare, Union of India, pertaining to Academic Year 199091, which had no relevancy in the present case as no complaint has ever been filed by the Government of Tripura or Ministry of Health & C C No.21/10 29/70 30 Family Welfare, Government of India or any other person in regard to the any discrepancy in admission in Medical College, Trichur, Kerala. Another contention on behalf of accused Ms. Rupa Ghosh, is that an offence as alleged, if at all, was committed at Agartala, Tripura, Trichur, Kerala and so, this Court has no jurisdiction to adjudicate the matter. It is further contended on behalf of accused Ms. Rupa Ghosh, that no student was ready to take the seats available in Medical College, Trichur, since it was unrecognized, and 4 seats were allocated to Medical College, Trichur, when the process for selection was almost completed by the State of Tripura. It was also contended on behalf of the accused Ms. Rupa Ghosh that she left her college after 10 days of the admission and requested her father to take her back as she was not interested to pursue the medical course in that particular college in the strange atmosphere, and was feeling home sickness. It was also contended on behalf of accused Ms. Rupa Ghosh that letter dated 14.09.1989, Ex. PW4/A, was not suppressed, and was well within the knowledge of the officials of Ministry of Health, Government of Tripura. Accused Rupa Ghosh, has also C C No.21/10 30/70 31 contended that it was not that Director, Health Services, alone was competent to issue the nomination letters or that accused no.1, A.K. Roy, was not competent to issue the nomination letters. Discretionary powers of the Chief Minister of the State, are also claimed on behalf of accused Ms. Rupa Ghosh.

44. As regards the suppression of letter no. U14014/15/89ME(UG) dated 14.09.1989, Ex. PW4/A, vide which 5 MBBS and one seat, were allocated to the Government of Tripura, by Ministry of Health and Family Welfare, Government of India, it has been contended on behalf of accused Ms. Rupa Ghosh that the allocation letter dated 08th /10th November, 1989, ( Ex. PW16/DZ1), which was issued by Ministry of Health, Government of India, clearly mentioned about the earlier allocation letter dated 14.09.1989, and since this document was seized by the IO PW16 S.B. Singh, from the Department of Health and Family Welfare, Government of Tripura, so the letter dated 14.09.1989 Ex.PW4/A was in the knowledge of Department of Health and Family Welfare, Government of Tripura. It has also been mentioned that as per Notes at page nos. 17 to 36 ( Ex. C C No.21/10 31/70

32 PW9/DX1 to Ex. PW9/DX16) in File No. F.11(105) E.T./MS/89(D14), in regard to the nomination made in favour of Tanveer Alam in the Nalanda Medical College, it is clear that officials of Health and Family Welfare, Government of Tripura, became aware of allocation letter dated 14.09.1989, since Tanveer Alam was also issued nomination letter in pursuance of the allocation letter dated 14.09.1989 Ex.PW4/A. The letter from the Principal, Nalanda Medical College, in regard to the admission of Tanveer Alam, in Ist Year MBBS Course, was first dealt with by the officials of Department of Health and Family Welfare, Govt. of Tripura, on 30th March, 1990, and Note in this regard is Ex. PW14/B, proved by PW14 S.S. Sharma, who was the Principal Secretary, Health and Forest Departments, State of Tripura, in the month of November/December 1989, by whom the letter dated 20th March, 1990, Ex. PW7/DX21, a letter from Sh. Moti Lal, Principal of Nalanda Medical College, Patna, has also been proved. It is clear from the Note Ex. PW14/B, that prior to that, Department of Health and Family Welfare, Government of Tripura, was not aware of the nomination in favour of said C C No.21/10 32/70 33 Tanveer Alam in Nalanda Medical College, Patna, by the Chief Minister's Secretariat. It is also clear that letter dated 14.09.1989, Ex. PW4/A, was not received in the Department of Health and Family Welfare, Government of Tripura, nor any action had been taken by that time by that Department on the letter. Nomination in favour of the candidates against the MBBS and BDS seats, allocated to State of Tripura, vide said letter Ex. PW4/A, was made by accused no.1, A.K. Roy. On behalf of accused Ms. Rupa Ghosh, it has also been contended that as per noting from Page no. 17 to Page no. 36(Ex. PW9/DX1 to Ex. PW9/DX16) in file no. F.11(105) E.T/MS/89(D14), relating to issuance of nomination letter in favour of Manojba Roy, that the letter nominating the seat of Tanveer Alam to Manojba Roy, was signed by the Secretary to the Chief Minister. It had happened on the insistence of Principal of Nalanda Medical College, as he wanted the same authority to cancel the nomination letter by whom the nomination letter had been issued in favour of Tanveer Alam, i.e., The Chief Minister's Secretariat.

45. As regards the authority designated to issue C C No.21/10 33/70 34 nomination letters in favour of the candidates for MBBS and BDS seats, allocated by Government of India, it has been testified by PW8 Hardhan Sinha, by whom the complaint was made and FIR got registered at P.S. Chanakya Puri, New Delhi, by PW9 Dr. Somendra Chandra Chakravorty, who was serving in the Directorate of Health Services, Government of Tripura, as Joint Director in year 1996, by PW13 Dr. Bikas Roy, who had worked as Director Health Services, Government of Tripura, from year 1996 to year 1998 and by PW14 S.S. Sharma, who was the Principal Secretary, Health and Forest Departments in Government of Tripura from November/ December 1989 to February 1991, as per their depositions discussed earlier in preceding paras, that it was Director of Health Services alone, who was competent to issue nomination letters in favour of candidates, on the basis of a selection list forwarded by the Chairman of Joint Entrance Examination Board. Apart from that, on behalf of accused no. 1, A.K. Roy, copy of Rules of Executive Business, Government of the State of Tripura, 1972, have been placed on record, and as per the Rules under heading "Departments under C C No.21/10 34/70 35 jurisdiction of Health and Family Welfare Department", the subject of "Medical Education" was inserted by the 53rd Amendment Rule, 2005.

46. It was also contended on behalf of accused Ms. Rupa Ghosh that nomination letter dated 03.10.1989 Ex. PW3/PX21 issued under signatures of Secretary to the Chief Minister, namely accused no.1, A.K. Roy, was never disputed by the officials of Medical College, Trichur, which was accepted as correct. That by itself, cannot be held as making accused no.1, A.K. Roy, competent to sign the nomination letters in favour of candidates, since it was not open to the concerned Principals of the Medical/Dental Colleges, to question the authority of an officer, signing the nomination letters on behalf of State Government of Tripura, as the same had not been communicated to the Medical Colleges, and in ordinary course of doing things, unless there are some suspicions, Principals are not expected to raise such questions. Secretary to the Chief Minister, is nowhere, while transacting the business of a particular Department as Rules of Executive Business, Government of the State of Tripura, 1972, copy of C C No.21/10 35/70 36 which has been placed on record, as per Rule 28, ParaIII, states that, in case of a question arising as to the Department to which a matter belongs, the matter was to be referred for decision of the Chief Secretary, who in turn, if necessary, could obtain the orders of the Chief Minister. As per Rule 53 of PartIV( Supplementary) Rules of Executive Business of the Government of the State of Tripura, 1972, Secretary of the Department concerned in the case, is to be responsible for the proper transaction of business and the observance of the rules. Thus, accused no.1, A.K. Roy, acting as Secretary to the Chief Minister, was not competent to sign the nomination letters, which was to be done, only by the Director of Health Services, Government of Tripura.

47. As regards the discretionary powers of the Chief Minister of Tripura, to allot seats to the candidates against the seats received from the Central Pool, as discussed in preceding paras, the Officers of Government of Tripura in know of things like PW8 Dr. Hardhan Sinha, PW9 Dr. Somendra Chandra Chakravorty, PW13 Dr. Bikas Roy, PW14 S.S. Sharma, consistently deposed that Chief Minister, C C No.21/10 36/70 37 Tripura, was having no discretionary powers to allot seats of MBBS/BDS Courses.

48. On behalf of accused Ms. Rupa Ghosh, it has been argued that prosecution through the deposition of PW10 Sumit Chakravorty, PW16 S.B. Sinha, IO and DW3 Alok Kumar Dixit, is making out a case than even Central Health Minister had no discretionary quota, and prosecution had been trying to prove that even the Chief Minister of Tripura, did not have any discretionary quota or powers to allocate the seats in Medical Colleges, from the seats allocated by the Central Government. It is claimed that story of the same is falsified from the Judgment of Hon'ble Supreme Court in case titled as Common Cause, a Registered Society Vs. Union of India & Ors. VI (1999) SLT 442, Paras 94,95,96,97 of Pages 497,498 and 499, wherein it is held by Hon'ble Supreme Court that the Health Minister had a discretionary quota. In the said Judgment, at pages no. 497,498 and 499, Hon'ble Supreme Court, has set out the list of discretionary quotas available with the Prime Minister and other Ministers, which was placed before the Hon'ble Supreme Court, and same has been C C No.21/10 37/70 38 reproduced. In para 95 of the said Judgment, it was also held by Hon'ble Supreme Court that the Philosophy behind the "Discretionary quota" available to the Prime Minister and other Ministers or Members of Parliament, appears to be to provide immediate relief in a case of acute personal hardship. Nowhere, in the said Judgment, Hon'ble Supreme Court has held that Prime Minister and other Ministers enjoyed discretionary quota, being entitled to that by virtue of the positions they are holding, but in fact commented on a fact, placed before it by the Central Government. The discretionary allotments exercised by the Prime Minister as well as other Ministers, provided for, are to be exercised as per the guidelines for the decisions taken by the concerned authorities from time to time, for the purpose, for mitigating the personal hardships of the individuals. But it cannot be assumed that since Prime Minister and Central Ministers are enjoying certain discretionary allotments, the Chief Minister of a State also becomes automatically entitled to make discretionary allotments. Same needs to be provided specifically. It is also clear from the contention on behalf of accused Ms. Rupa C C No.21/10 38/70 39 Ghosh that vide Note no. 20 in file No. F. 1(9).COMM(HFW/92 (D26) ( PW7/DX23), wherein the Joint Secretary, Health and Family Welfare, Government of Tripura on 26th February, 1993, sought to know, if any, medical seat is left at the discretion of the Chief Minister in other States, and if so, whether there were any guidelines in that regard. Letters were issued to the Resident Commissioner of Tripura at Guwahati, Calcutta and Delhi. It clearly shows that there was no discretionary quota being enjoyed by the Chief Minister of Tripura by that time, for making allotments for medical seats, out of seats allocated by Government of Tripura, and there were no guidelines, whatsoever, in that regard and that is why, Government of Tripura, was trying to know the position in regard to that in other States.

49. As regards, accused no.1, A.K. Roy, issuing the nomination letter in favour of candidate Ms. Rupa Ghosh Ex. PW3/PX21 for admission in Medical College, Trichur, Kerala, he was aware of the fact that the issue had been dealt with by the Department of Health and Family Welfare, Government of Tripura earlier, and so, also aware of the fact C C No.21/10 39/70 40 that he was not the competent person to issue the nomination letter. Accused no.1, A.K. Roy, has relied upon the ordersheet dated 03.10.1989, in the file ( Ex. PW9/DZ1) (DZ1), to prove the bonafide of his official act. Ex. PW9/DZ1, is not a document proved, as it was only a photocopy. Even if, for the sake of argument, the document is accepted as correct, though not admitted, it will show that letter No. U 14014/15/89 ME(UG), dated 14.09.1989 from the Ministry of Health and Family Welfare, Government of India, Ex. PW4/A, was dealt with in the Chief Minister's Secretariat, the note being initiated by accused no.1, A.K. Roy, himself with no feedback from the concerned department and it cannot be ignored that the letter dated 14.09.1989 Ex. PW4/A, was addressed to the Secretary, Health and Family Welfare Department, Government of Tripura. There is nothing on record, how the letter reached accused no.1, A.K. Roy. In case, the Chief Minister of Tripura, was having any discretionary power, there was no occasion for accused no. 1 A.K. Roy, or for that matter for the Chief Minister of Tripura, to act secretly, Department of Health and Family Welfare, Govt. of Tripura having no knowledge of the C C No.21/10 40/70 41 nomination being made against the seats allocated by Government of India. Accused no.1, A.K. Roy, as Secretary to the Chief Minister was only to follow the lawful orders given by the Chief Minister, which were within the jurisdiction or purview of accused no.1, A.K. Roy, during the course of his public duties. Accused no.1, A.K. Roy, cannot take the shelter that he was merely following the orders of Chief Minister when he was aware of the fact that he was not the competent person to issue the nomination letter as all the relevant correspondence from the concerned department to the Chief Minister, had been routing through the Secretary to the Chief Minister and he, was also expected to follow the Rules of the Executive Business of the Government of the State of Tripura, 1972, to the extent, it was relevant for discharge of his duties as such.

50. In regard to the contention on behalf of accused A.K. Roy, that no previous valid sanction for prosecution was obtained from the Central Government U/S 197 Cr. P.C and U/S 19(1) of the Prevention of Corruption Act, 1988, contending that action by accused A.K. Roy, on 03.10.1989, in C C No.21/10 41/70 42 respect of issuance of nomination letter no. F.3(12)CM/PS/89 dated 03.10.1989 Ex.PW3/PX21, as per approval of the Chief Minister, Tripura, was an official act by him in discharge of performance of his official duty and the acts of commission for which accused A.K. Roy, has been charged, had reasonable connection with discharge of his official duty.

51. Sanction under Section 19 (1) of Prevention of Corruption Act, 1988, was not obtained by the prosecution since, accused no.1, A.K. Roy, had by that time retired from his service. Sanction was obtained by the prosecution from the Government of Tripura, and the sanction accorded by the Governor Ex. PW5/A was approved by PW5, P.Shrivastava. However, on behalf of the prosecution, reliance has been placed on a case decided by Hon'ble Supreme Court titled as S.S. Dhanoa Vs. Municipal Corporation of Delhi 1981 Crl. Law Journal 871 (SC). On behalf of prosecution, reliance has also been placed on a case decided by Hon'ble Chattisgarh High Court titled as Om Prakash Singh Vs. State of Chattisgarh 2012 Crl. Law Journal (NOC) 395 (CHH), wherein it was held that no sanction U/S 197 Cr. P.C was C C No.21/10 42/70 43 necessary when the public officer was involved in offence of forgery of valuable security. Also, in case titled as Prakash Singh Badal & Anr. Vs. State of Punjab & Others (2007) 1 Supreme Court Cases 1, in Para 50 of the Judgemnt , Hon'ble Supreme Court has held as follows:

"50. The offence of cheating under Section 420 or for that matter offences relatable to Sections 467,468, 471 and 120B can by no stretch of imagination by their very nature be regarded as having been committed by any public servant while acting or purporting to act in discharge of official duty. In such cases, official status only provides an opportunity for commission of the offence".

52. Accused A.K. Roy, has been charged for offences punishable interalia under Section 120B IPC and so, grant of sanction is now only an academic issue. Accordingly, it is held that no sanction was required under Section 197 Cr. P.C, to prosecute the accused A.K. Roy, and it is immaterial if the sanction to prosecute the accused A.K. Roy, was obtained from Govt. of Tripura or from Government of India. C C No.21/10 43/70

53. As regards, the territorial jurisdiction of the Court, the contention on behalf of accused A.K. Roy, is that this court does not have the territorial jurisdiction, having been constituted under Section 3 of the Prevention of Corruption Act, 1988.

Section 3 of Prevention of Corruption Act, 1988 reads as follows:

"3. Power to appoint special Judges. (1) The Central Government or the State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas or for such case or group of cases as may be specified in the notification to try the following offences, namely:

(a) any offence punishable under this Act; and

(b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a)".

Further, Section 5 (3) of the PC Act, 1988 reads as follows:

"Save as provided in subsection (1) or sub section (2), the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall , so far as they are not inconsistent with this C C No.21/10 44/70 45 Act, apply to the proceedings before a special Judge..........."

54. There is no inconsistency in the provisions of Section 177 Cr. P.C. to Section 189 Cr. P.C, included in Chapter XIII of the Code of Criminal Procedure, 1973, with the provisions of Section 3 of Prevention of Corruption Act, 1988 and for determining the Jurisdiction of Special Court constituted under Section 3 of the Prevention of Corruption Act, provisions of Section 177 Cr. P.C to Section 189 Cr. P.C, are also relevant, particularly, Section 178(b) and Section 182 Cr. P.C, which are reproduced as under:

" S.178

(a).............

(b) Where an offence is committed partly in one local area and partly in another, or

(c) ..............

(d)..............

S.182. Offences committed by letters, etc. (1) Any offence which includes cheating may, if the deception is practiced by means of letters or telecommunication messages, be inquired into or tried by any Court within whose local jurisdiction such letters or messages were sent or were C C No.21/10 45/70 46 received; and any offence of cheating and dishonestly inducing delivery of property may be inquired into or tried by a Court within whose local jurisdiction the property was delivered by the person deceived or was received by the accused person.

(2)................."

55. The offence alleged against the accused persons, was in pursuance to letter dated 14.09.1989 Ex. PW4/A, issued by Government of India, Ministry of Health and Family Welfare, allocating 5 MBBS and one BDS seat to the State of Tripura, for which nomination letters dated 03.10.1989, were issued by accused no.1, A.K. Roy, in favour of the candidates/co accused, while withholding the letter Ex. PW4/A from the Department of Health and Family Welfare, Government of Tripura, who were to process the matter and issue the nomination letters for admission in MBBS/BDS Courses as per the established procedure by Government of Tripura. As per the case of the prosecution, this letter dated 14.09.1989 Ex. PW4/A, was suppressed by accused persons in conspiracy with each other, original of the letter alongwith endorsements C C No.21/10 46/70 47 issued by Ministry of Health and Family Welfare, Government of India. So, it is a case under Section 178 (b) Cr. P.C where an offence is committed partly in one local area and partly in another. Section 179 Cr. P.C, 1973, will also attracted since the act is an offences by reason of suppression of letter dated 14.09.1989 Ex. PW4/A, and issuance of nomination letter Ex.PW3/PX21, in favour of accused Rupa Ghosh and other students facing trial separately. Not only, that copy of the nomination letter Ex. PW3/PX21 dated 03.10.1989, was also sent to the Desk Officer, Government of India, Ministry of Health and Family Welfare by accused no.1, A.K. Roy, and so, the case also comes under Section 182 of Code of Criminal Procedure, since the offence in question apart from Calcutta, could also be stated to have been committed partly at New Delhi, as deception has been practised by means of letter (copy of nomination letter), which was delivered to the Desk officer, Government of India, Ministry of Health and Family Welfare. So, it is not correct to say that this Court does not have the territorial jurisdiction, to entertain the case filed against the accused persons.

C C No.21/10 47/70

56. As regards the contention on behalf of the accused persons that Investigating Officer had exceeded the jurisdiction in the case, as FIR in the matter was registered only to the extent of 3 MBBS seats pertaining to Bhagalpur Medical College, Medical College Gwalior and Patliputra Medical College, on the basis of a fake letter issued under the signatures of Smt. Amarjeet Kaur, Deputy Secretary, Government of India, Ministry of Health and Family Welfare, and the FIR was registered only against the then Resident Commissioner of Tripura, namely Gurdial Singh, whereas the Investigating Officer had proceeded to make inquiries even in regard to the nominations to MBBS/BDS seats made in year 19891990, whereas the FIR related to admissions made for Academic Year 19901991. FIR in the matter was registered pursuant to order dated 01.02.1996 passed by Hon'ble High Court of Assam at Guwahati ( Agartala Bench) in Civil Miscellaneous Case No. 53 of 1996 in Civil Rule No.35/96. One Geeta Banik was nominated to Darbhanga Medical College, Lahariasaria, Bihar as nominee of Tripura State, in which case also, the nomination letter was issued by Gurdial C C No.21/10 48/70 49 Singh, the then Resident Commissioner, the directions were given by Hon'ble High Court of Assam, Guwahati (Agartala Bench) that an FIR, which was sought to be filed by State Government at Chanakya Puri Police Station, New Delhi, may do so forthwith and be sent by Special Messenger and in case an FIR had been lodged with Chanakya Puri P.S, the Chanakaya Puri Police Station shall hand over the FIR and other papers to the Central Bureau of Investigation. CBI was directed to file an interim report within a month. Directions were also given to CBI to proceed and inquire in case FIR was not received by CBI within 10 days, and investigate the case and not to spare any officer or person whatever may be his rank or his position. Directions were further given that the results of the students including the petitioner(Smt. Geeta Banik) shall not be published till the investigation by the CBI is completed. Liberty was also given by the Hon'ble High Court of Assam, Guwahati (Agartala Bench) to the Petitioner to point out irregularities in the matter of admission at any point of time, so that the scope of inquiry and investigation by the CBI may be extended by the Court. So, it cannot be said C C No.21/10 49/70 50 that investigation in the case and the directions of Hon'ble High Court of Assam at Guwahti ( Agartala Bench) were restricted only to the inquiry or investigation by the CBI to the extent of FIR filed in the matter, relating to 3 Medical seats, which were allegedly on the basis of a fake letter dated dated 23.11.1990 by Smt. Amarjeet Kaur, the Deputy Secretary, Ministry of Health & Family Welfare, Govt. of India. The irregularities, had come to the notice of the Investigating Officer during investigation of the case FIR No. 36/99 dated 09.02.1996, later on, transferred to CBI for investigation, so, there had been no exceeding of powers and jurisdiction by the Investigating Officer to proceed against accused persons, who were found involved in making unauthorized nominations to the MBBS/BDS seats allocated to the State of Tripura, may be for year 19901991 or year 19891990.

57. As regards, the contentions on behalf of accused A.K. Roy, that after the Investigating Officer had come to know the commission of any act, by accused A.K. Roy constituting an offence during the investigation of the case, he ought to have registered a separate FIR, and then proceeded to C C No.21/10 50/70 51 investigate the matter. It has been contended on behalf of accused A.K. Roy, that it was a case of noncompliance of mandatory provisions of Section 154 and Section 157 of Code of Criminal Procedure. Reliance in this regard on behalf of accused A.K. Roy, has been placed on a case decided by Hon'ble Supreme Court titled as Prakash Singh Badal & Anr. Vs. State of Punjab & Ors. (2007) 1 SCC 1, and Aleque Padamsee and Ors Vs. Union of India & Ors. (2007) 6 SCC

171. In the case titled as Prakash Singh Badal & Ors, Hon'ble Supreme Court in Paras 66 to 68 has held that when an information disclosing the cognizable offence is laid before an officer Incharge of a Police Station specifying the requirements of Section 154(1) of the Cr. P.C, the said Police Officer has no other option except to enter the substance thereof in the prescribed form. No where, it has been held by Hon'ble Supreme Court, in the case being relied upon on behalf of accused A.K. Roy, that whenever during investigation of a case, Investigating Officer is confronted with an evidence of involvement of other persons in that offence, he is required to register a separate FIR. Investigating Officer in the case was C C No.21/10 51/70 52 investigating the illegalities/irregularities committed in nominating the candidates against the seats allocated by Government of India to State of Tripura, and so, it was not required for the Investigating Officer to register a separate FIR in the matter before embarking on the investigation of the case against accused A.K. Roy. Similarly, in another case of Aleque Padamsee Vs. Union of India, the issue before the Hon'ble Supreme Court was only to the extent of remedy in case the police has failed to take any action, after information was given to police, regarding commission of cognizable offence.

58. Both the accused have been charged for offence punishable under Section 120B IPC r/w Section 420 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 120 B 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:

C C No.21/10 52/70

53 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.

It has been proved by prosecution witnesses that as per letter no. U14014/15/89ME(UG) dated 14.09.1989 Ex.PW4/A, 5 MBBS and 1 BDS seat were allocated to the State of Tripura by Government of India. It has also come on the record that letter Ex.PW4/A did not reach the Department of Health & Family Welfare, Govt. of Tripura nor the same was dealt with by Health & Family Welfare Department, Govt. of Tripura in regard to the MBBS and BDS seats allocated by the Govt. of India vide that letter. The issue would not have come to light, but for a letter written by Dr.S.S.Sriavastav, Principal, Darbhanga Medical College, Laheriasarai, Bihar, that one MBBS seat in the said college has been allocated by Govt. of India vide letter dated 31.07.1990, vide letter dated C C No.21/10 53/70 54 16.11.1990, Director of Health Services nominated Sh. Uttam Kumar Dass, a Scheduled Caste candidate, for admission in the first year MBBS course at Darbhanga Medical College, Laheriasarai, Bihar. However, Sh. Uttam Kumar Dass was denied admission in the said college and as per letter dated 22.11.1990, Dr. S.S.Srivastav, Principal, Darbhanga Medical College, Laheriasarai, Bihar, informed Director of Health Services, Govt. of Tripura that there was only one seat allocated to State of Tripura by Govt. of India and their Govt.

had already nominated Ms. Gita Banik vide letter no.F11(105)E.T./MS/90 dated 10.09.1990. The said Sh. Uttam Kumar Dass approached Hon'ble High Court, when the efforts by him to seek admission in Darbhanga Medical College, Laheriasarai, Bihar failed. Division Bench of Hon'ble Assam High Court at Guwahati, Agartala Bench, vide order dated 17.07.1991 in Civil Rule No. 225/1990, asked Sh. P.K.Sarkar, the then District & Sessions Judge, Tripura (West) to make a thorough enquiry in the procedure adopted for conducting the Tripura Board of Joint Entrance Examination and allotment of seats on the basis of merit list of such C C No.21/10 54/70 55 examination. Enquiry was conducted, and irregularities in allotment of seats were noted for both the years 19891990 and 19901991.

59. The entire modus operandi adopted in this case, which was followed the next year also for nomination of candidates for admission in medical and dental colleges, against the seats allocated by Govt. of India, came to light after the matter was investigated by CBI pursuant to the directions of Hon'ble Assam High Court at Guwahati, Agartala Bench, vide order dated 01.02.1996 for handing over the investigation of the case, to CBI from P.S Chanakya Puri, New Delhi, where case FIR was initially registered.

60. It has been argued on behalf of accused A.K.Roy that for charge of conspiracy U/S 120B IPC, it is required that there is an agreement between two or more persons by whom the agreement is effected and a criminal object. It has been argued that there is no evidence on record that accused A.K.Roy had any personal talk or agreement with the co accused or any of the coaccused and there is no evidence of proposal on one part and acceptance on the other part to attain C C No.21/10 55/70 56 criminal object. The direct evidence of the conspiracy between two or more persons is rarely available. However, conspiracy to do an illegal act or to do an act by illegal means can be inferred from circumstances. In the present case, accused no.1, A.K.Roy was not the person competent to make nominations in favour of candidates against the seats reserved for State of Tripura out of the seats allocated by Govt. of India, selection of which was to be done on the basis of merit list following a Joint Entrance Examination. Accused A.K.Roy proceeded with issuing nomination letters and in case, accused A.K.Roy was unconcerned or unconnected with the candidates in whose favour he had issued nomination letters, and no reason for him to do so, then there was no reason either for him to issue the nomination letters which was Ex.PW3/PX21, in the present case. Possibility of other persons, in addition to the coaccused in the matter being involved alongwith accused no.1, A.K.Roy in the conspiracy cannot be ruled out, but the evidence of being a part of the conspiracy, against accused no.1, A.K.Roy is clearly discernible. It is not necessary that two persons, being party to the conspiracy, must be present at a particular place or C C No.21/10 56/70 57 must have talked to each other directly and personally, in pursuance to the object, they were to achieve. Existence of conspiracy in the present case involving two or more persons is clearly established.

61. Accused no.1, A.K. Roy, has been further charged for offence punishable under Section 420 IPC, on the ground that nomination letter no. F.3(12)CM/PS/89 dated 03.10.1989 Ex. PW3/PX21, in favour of coaccused Ms. Rupa Ghosh for admission in Ist year MBBS Course in Medical College, Trichur, was issued by him despite knowing the fact that he was not authorized to issue the said nomination letter and in the process caused wrongful loss to the bonafide and eligible students of State of Tripura. 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 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.

C C No.21/10 57/70

58 Issuance of nomination letter dated 03.10.1989, itself does not amount to an offence punishable under Section 420 IPC, as in the process there had been no inducement, no representation as such, and it is only preparation of the nomination letter, which as per the case of the prosecution was used by coaccused Ms. Rupa Ghosh for seeking admission in the Ist year MBBS Course, in the Medical College, Trichur, Kerala, ingredients of substantive offence punishable under Section 420 IPC, are not made out against accused no.1, A.K. Roy.

62. Accused no.1, A.K. Roy, has been further charged for offence punishable under Section 13 (2) r/w Section 13 (1)

(d) of the Prevention of Corruption Act, 1988, charge of the criminal misconduct, being public servant, being Member of Indian Administrative Services, and working as Secretary to the Chief Minister of State of Tripura at the relevant time by corrupt and illegal means abusing his official position as such public servant, and obtaining for coaccused Ms. Rupa Ghosh a valuable thing, i.e. nomination for admission in Ist year MBBS Course in Medical College, Trichur in year 1989, against the C C No.21/10 58/70 59 reserved seats for eligible candidates of Tripura.

Provisions of Section 13 (1) (d) of Prevention of Corruption Act, 1988, 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"

63. Prosecution has brought on record sufficient evidence to prove that accused A.K. Roy, being a public servant, had obtained a valuable thing for coaccused Ms.Rupa Ghosh in the form of nomination letter Ex. PW3/PX21 for admission in Ist year MBBS Course in Medical College, Trichur,Kerala, by resorting to corrupt and illegal means and abusing his position as a public servant as he was not authorized to issue the nomination letter. The ingredients of C C No.21/10 59/70 60 offence punishable under Section 13 (2) r/w Section 13 (1) (d) of the Prevention of Corruption Act, are made out against accused no.1, A.K. Roy.

64. As regards the involvement of accused Ms. Rupa Ghosh, in the conspiracy or being a party to that, it has been the case on behalf of accused Ms. Rupa Ghosh, that there was not sufficient evidence on record to establish that accused Ms. Rupa Ghosh, acted with a view to cheat the Government of Tripura or the Principal of Trichur Medical College, and that there was no meeting of mind between the accused persons. It was further contended on behalf of accused Ms. Rupa Ghosh that prosecution is required to establish the chain of events of conspiracy by cogent evidence produced in the proceedings of the case, and merely because, accused Ms. Rupa Ghosh, had taken admission on the basis of nomination letter issued by accused no.1, A.K. Roy, no conspiracy as such can be inferred. Accused Ms. Rupa Ghosh, was aware of the fact that she was not entitled to be nominated to the Medical College, Trichur, Kerala seat in the first year MBBS Course, as a nominee of Tripura, she not having qualified in the Joint Entrance C C No.21/10 60/70 61 Examination undertaken by her, had proceeded with obtaining of a nomination for that. The photographs affixed on the nomination letter Ex. PW3/PX21, were attested by the Chief Minister's Secretariat, Government of Tripura, and accused Ms. Rupa Ghosh, must have taken initiative for sending the documents including the photographs to the Chief Minister's Secretariat, directly or through some other person, as it is not the case of any of the accused that applications were called for by the Chief Minister's Secretariat, and accused Rupa Ghosh had submitted her photograph or any other document to the Chief Minister's Secretariat. Accused Rupa Ghosh, may claim that nomination letter was received by her father after about 2 months of the declaration of the result of Joint Entrance Examination conducted by TBJEE in year 1989, but the fact remained that nomination letter Ex. PW3/PX21, was issued by accused no.1, A.K. Roy, acting as Secretary to the Chief Minister, and also there, being no proof of the matter having been dealt by the Health and Family Welfare, Government of Tripura.

65. On behalf of accused Ms. Rupa Ghosh, reliance C C No.21/10 61/70 62 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, 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.

66. 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 C C No.21/10 62/70 63 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.

67. Both accused no.1, A.K. Roy and accused no.2, Ms. Rupa Ghosh, were working towards a common object and a common design for procuring nomination for a medical seat for accused Ms. Rupa Ghosh, despite knowing the fact that accused no.2, Rupa Ghosh was not entitled to the seat having not secured the position in the entrance test. It was also a fact that accused no.1, A.K.Roy was not competent to issue nomination letter in her favour, accused no.2, Rupa Ghosh being a resident of Tripura having participated in the process for selection of candidates for nomination. It is not necessary that the two persons should have been in direct contact with each other when there is an agreement between the two of achieving a common object and a common design.

68. Apart from that. Accused no.2, Ms. Rupa Ghosh, had also acted upon the nomination letter Ex. PW3/PX21 dated 03.10.1989, issued in her favour by accused no.1, A.K. C C No.21/10 63/70 64 Roy, and had taken admission in Medical College, Trichur, on the strength of a nomination letter Ex. PW3/PX21. Ingredients of offence punishable under Section 120B IPC, i.e. of that of conspiracy to commit an offence, are clearly made out against accused Ms. Rupa Ghosh, and it is immaterial that because of environment, she left or was forced to leave the studies at Medical College, Trichur, Kerala, after about 10 days of having got admission there.

69. Accused Ms. Rupa Ghosh, has also been charged for offence punishable under Section 420 IPC. As per the evidence brought on record by prosecution and the facts admitted by accused Ms. Rupa Ghosh also, she had taken admission in Medical College, Trichur, Kerala, on the strength of nomination letter dated 03.10.1989, Ex. PW3/PX21, issued by accused no.1, A.K. Roy, who was not authorized to issue the same and she had intentionally and fraudulently induced the officials of Medical College, Trichur, by dishonestly and fraudulently inducing them to believe that it was a valid nomination letter, having been issued by a person or by an officer competent to issue the nomination letters, in favour of C C No.21/10 64/70 65 the candidates for admission in professional courses as nominee of State of Tripura. In the process, accused Ms. Rupa Ghosh, caused wrongful gain to herself in the form of obtaining admission in Ist Year MBBS Course in Medical College, Trichur, Kerala, for Academic Year 199091, and caused resultant wrongful loss to the bonafide and eligible students of State of Tripura, entitled to be nominated as nominees of Tripura, against the seats reserved by Government of India for the students of State of Tripura.

70. In view of above discussions it is held that prosecution has been able to prove its case against accused no. 1, A.K.Roy for the offence punishable U/S 120B r/w Section 420 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 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, A.K.Roy for offence punishable U/S 420 IPC.

71. Prosecution has also been able to prove its case against accused no.2, Rupa Ghosh, for the offence punishable C C No.21/10 65/70 66 U/S 120B IPC r/w Section 420 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.

72. Accordingly, accused no.1, A.K.Roy, is held guilty and convicted for the offence punishable U/S 120B r/w Section 420 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. Further, accused no.1, A.K.Roy is 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.

73. Accused no.2, Rupa Ghosh, is held guilty and convicted for the offence punishable U/S 120B IPC r/w Section 420 IPC and Section 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act, 1988. Further, accused no.2, Rupa Ghosh, is also held guilty and convicted for the offence punishable U/S 420 IPC.

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

C C No.21/10                                                               66/70
                                       67

IN THE COURT OF SH. J.P.S MALIK :SPECIAL JUDGE CBI03 (PC ACT): TIS HAZARI: DELHI Corruption Case No. 21/10 RC No. RC2(S)/96/ CBI/SCBI/ND CBI Vs 1. Amal Kumar Roy s/o Late Sh. Jnanad Kishore Roy Then Secretary to the Chief Minister of Tripura, Agartala (since retired) R/o 63, Ruby Park (East), Rajdanga Road, Calcutta100 078.

2. Smt. Rupa Ghosh D/o Sh. Amal Ghosh R/o Jagannath Bari road, Near Colonel Chowmohani, Agartala, Tripura.

ORDER ON SENTENCE:

1. Both the convicts, Amal Kumar Roy and Smt. Rupa Ghosh, were heard on point of sentence.

2. Convict Amal Kumar Roy, has been held guilty for offence punishable under Section 120B IPC r/w Section 420 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, as well as for substantive C C No.21/10 67/70 68 offence punishable under Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act.

3. Convict Rupa Ghosh, has been held guilty for offence punishable under Section 120B IPC r/w Section 420 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 Amal Kumar Roy, it is submitted by Ld. Sr. Counsel appearing for him that he is a retired IAS Officer, had served the country honestly and at present is aged 80 years having various ailments. It is requested that a lenient view be taken particularly for the reason that elder son of convit Amal Kumar Roy, who was a Doctor, had expired last year.

5. On behalf of convict Smt. Rupa Ghosh, it is submitted by the Ld. Counsel that she had studied in the Medical College, Trichur, only for ten days, having taken admission there on the insistence of her father. Further it is stated that she is the only child of her parents and is having one child, no one else to take care of. Request is made for a lenient C C No.21/10 68/70 69 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 Amal Kumar Roy, 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 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act.

Further convict Amal Kumar Roy, 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 C C No.21/10 69/70 70 Prevention of Corruption Act, 1988.

Substantive sentence awarded under different Sections of different Acts shall run concurrently. This is one of the 5 connected cases being CC No. 02/10, 18/10, 19/10, 20/10, 21/10 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 Rupa Ghosh 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 IPC and Section 13 (2) r/w Section 13 (1) (d) of Prevention of Corruption Act, 1988.

Further convict Rupa Ghosh is sentenced to undergo RI for 1 year and a fine of Rs.20,000/ for offence punishable 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


C C No.21/10                                                               70/70

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Cbi vs 1. Amal Kumar Roy on 1 October, 2013