IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF MARCH, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION No.642 of 2012 c/w CRIMINAL REVISION PETITION No.679 of 2012 & CRIMINAL REVISION PETITION No.669 of 2012 IN CRL.RP.No.642 Of 2012 BETWEEN 1. DR. JEEVAM JYOTHI SIDHANA, W/O. MOHINDER PAI SIDHANA, PRINCIPAL, CHEEMA COLLEGE OF EDUCATION, KISHANKOT, NEAR GHUMAN, AMRITSAR-MEHTA-HARGOBINDPUR, R/O. No.38-B, RANI KA BAGH, GOVERNMENT COLLEGE FOR WOMEN ROAD, AMRITSAR, PUNJAB.
2. DR. I.S. SURI, S/O. SITA RAM SURI, PROFESSOR (RTD) STATE COUNCIL OF EDUCATIONAL RESEARCH & TRAINING (SCERT), NEW DELHI, R/O. L-1/168 B, DDA FLATS, ALAKHNANDA, NEW DELHI.
... PETITIONERS (BY SRI BIPIN HEGDE, ADVOCATE) AND STATE OF KARNATAKA, THROUGH CBI, REPRESENTED BY SENIOR ASSISTANT PUBLIC PROSECUTOR, SESSIONS COURT, BANGALORE.
... RESPONDENT (BY SRI P. PRASANNA KUMAR, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397(1) AND 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 05.06.2012 PASSED BY THE XLVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES, BANGALORE IN SPECIAL C.C.No.234/2009 AND ALLOW THE APPLICATION FILED BY THE PETITIONERS BY DISCHARGING THE PETITIONERS OF THE ALLEGED CHARGES.
IN CRL.RP.No.679 of 2012 BETWEEN PROF. S.K. THAKUR, S/O. SRI RAGHUVEER SINGH THAKUR, AGED ABOUT 63 YEARS, RETIRED PROFESSOR AND FORMER VICE-CHAIRMAN OF THE NATIONAL COUNCIL FOR TEACHERS’ EDUCATION, NEW DELHI AND R/O. F/4/18, 1ST FLOOR, OPP. NAINI LAKE, MODEL TOWN-1, DELHI – 110 009.
... PETITIONER (BY SRI GURURAJ JOSHI, ADVOCATE FOR SRI K.C. SHANTHA KUMAR, ADVOCATE) AND THE STATE OF KARNATAKA, REPRESENTED BY THE INSPECTOR OF POLICE, CBI/ACB, BELLARY ROAD, BANGALORE.
... RESPONDENT (BY SRI P. PRASANNA KUMAR, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 AND 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 05.06.2012 (THE ORDER UNDER REVISION) IN SPECIAL C.C.No.234/2009 ON THE FILE OF THE XLVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES, AT BANGALORE CITY.
IN CRL.RP.No.669 of 2012 BETWEEN N.M. THEERTHE GOWDA, S/O. MATADAIAH, AGED ABOUT 50 YEARS, SECRETARY, DR. RADHAKRISHNA TEACHERS EDUCATIONAL INSTITUTION, DEVANAHALLI, BANGALORE (RURAL), BANGALORE, R/O. 141/B, 6TH MAIN, 4TH BLOCK, RAJAJINAGAR, BANGALORE – 560 010.
... PETITIONER (BY SRI M.S. RAJENDRA PRASAD, SENIOR COUNSEL) AND THE STATE BY CENTRAL BUREAU OF INVESTIGATION, ACB, BANGALORE.
... RESPONDENT (BY SRI P. PRASANNA KUMAR, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 05.06.2012 IN SPECIAL C.C.No.234/2009 ON THE FILE OF THE XLVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES, BANGALORE CITY.
THESE CRIMINAL REVISION PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.02.2019 AND COMING ON FOR PRONOUNCEMENT, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
O R D E R The petitioners in Crl.R.P.No.642/2012 are accused Nos.4 and 5, the petitioner in Crl.R.P.No.679/2012 is accused No.1 and the petitioner in Crl.R.P.No.669/2012 is accused No.2 before the Trial Court in Spl.C.C.No.234/2009.
2. These petitioners have challenged the legality, propriety and correctness of the order passed by the XLVII Additional City Civil and Sessions Judge and Special Judge for C.B.I cases, Bengaluru on the application filed by them under Section 239 of the Code of Criminal Procedure, which came to be dismissed on 05.06.2012.
3. For the sake of convenience, the rank of the parties before the Trial Court is retained.
4. The respondent-CBI filed the charge sheet against accused persons 1, 2, 4 and 5 (A3 is not before the Court) for the offences punishable under Sections 120-B, 420, 468 and 471 of IPC and Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act 1988 (hereinafter referred as “P.C. Act”).
5. I have heard the arguments of learned counsel for the petitioners and the Special Public Prosecutor appearing for the respondent-CBI.
6. The brief facts of the case of the prosecution is that accused No.2-N.M.Theerthe Gowda, who is the Secretary of Dr. Radhakrishna Teachers Educational Institution, Devanahalli, Bengaluru(Rural), Bengaluru made three applications before M/s. NCTE (National Council for Teacher Education), SRC (Southern Regional Committee) for grant of recognition to conduct B.Ed, D.Ed and CP.Ed., courses. The Southern Regional Committee rejected the applications on 23.09.2005. Accused No.2 preferred three appeals to the Appellate Authority, Delhi. Accused No.1- Thakur being the acting Chairman of the Appellate Authority had appointed accused Nos.3 to 5 as a sub- committee to inspect the institution run by accused No.2 and to submit the report. Accordingly, accused Nos.3 to 5 have inspected the institution and gave report by recommending for granting of recognition to start the D.Ed course, even though, there was no physical infrastructure available at the institute run by accused No.2. Based upon the report, accused No.1 recommended and accorded recognition for D.Ed course to the institution run by accused No.2 and in turn, accused No.2 admitted the students by collecting huge amount. It is further alleged that, accused No.2 also created three fake fixed deposit receipts for Rs.15,00,000/-(Rupees Fifteen Lakh only) and presented to the NCTE, SRC for obtaining the recognition and accused Nos.1 and 3 to 5 in conspiracy with accused No.2 granted the recognition to start D.Ed course to the institution of accused No.2 without having proper infrastructure. The CBI Officer suo-moto registered a case in R.C.No.21(A)/2008 against the accused and after the investigation, filed the charge sheet against all the accused persons for the offences as stated supra.
7. The learned counsel for the petitioner in Revision Petition No.679/2012 who is appearing for accused No.1 argued that accused No.2 filed applications for conducting three courses, all the applications were came to be rejected and he has preferred an appeals to the NCTE, Delhi. The chairman of the NCTE appointed inspection committees. The first committee gave report for rejection of the application, later a second committee has been appointed. In fact, the second committee recommended for D.Ed course on 02.09.2005. However, the appeal has been remitted back to the Southern Regional Committee, but the Southern Regional Committee again rejected the applications on 18.10.2005. Again appeal came to be filed before the Appellate Authority. The Appellate Authority appointed the inspection committee consisting of three members i.e., CWs.64 to 66. They have inspected and gave report on 29.11.2005. The same was placed before accused No.1 for rejecting the appeal and the matter was placed before the Appellate Authority and in the meeting, all three appeals were rejected. Later, accused No.1 said to be the member and Vice-Chairman in the meeting rejected the appeal and it is alleged that later he became in-charge chairman of the NCTE. When file was brought before him, he said to be ordered for de novo hearing of the appeal and he has appointed accused Nos.3 to 5 as fresh Inspection Committee. Accordingly, accused Nos.3 to 5 submitted the report for recommending to recognize D.Ed course with an intake of 50 students for the academic year 2006-2008. Based upon the report, accused No.1 disposed the appeals by rejecting the application for two courses and remanded the matter to the Southern Regional Committee in respect of D.Ed course. Thereafter, the Southern Regional Committee accorded the recognition to conduct D.Ed course. Therefore, accused No.1, being Appellate Authority, has acted in good faith under the provisions of the NCTE Act and he has remitted the matter to the Southern Regional Committee (SRC) and in turn, the SRC allowed the application. Even the SRC could have rejected the application and accused No.1 not at all granted any recognition to accused No.2. There is no allegation that he has acted in corrupt manner or received any gratification. Accused No.1 being the Appellate Authority, disposed off the matter by exercising the power as per the NCTE Act. There is no chance for accused No.1 to conspire with any of the accused while passing the order. He never acted in a fraudulent manner, who passed the order as a quasi-judicial authority in good-faith. There is a protection available to the accused as per Section 28 of the NCTE Act. Absolutely, there is no prima facie material against accused No.1 to frame the charges against him.
8. It is further contended that accused No.1 being Vice Chairman and acting Chairman while passing the order and the accused being a public servant passed the order while discharging an official duty, the alleged offences said to have committed. Therefore, to invoke the provisions under the Prevention of Corruption Act, the respondent required to obtain the sanction from the Central Government, who is appointing authority as required under Section 19 of the Prevention of Corruption Act and under Section 197 of the Code of Criminal Procedure for taking cognizance for the offence under the IPC. There is no allegation against accused No.1 for having taken any gratification. Therefore, it is argued when the protection under the act is available to accused No.1 under the NCTE Act and without obtaining any sanction, the Trial Court cannot proceed to take cognizance against the accused. Therefore, the order passed by the trial Court rejecting application is incorrect and illegal. Hence, prayed for setting aside the order and to discharge accused No.1 from the charges.
9. Sri. Rajendra Prasad, Senior counsel for accused No.2, argued that accused No.2 already facing trial before the Magistrate for the offences punishable under Sections 468, 471 and 420 of IPC in C.C.No.9283/2006 pending on the file of VI ACMM Court, Bengaluru for the same charges that he has created the fake fixed deposits(FDRs). Such being the case and the same charge had been made against him in this case which amounts to double jeopardy. The accused cannot be tried twice for the same offence committed by him. Therefore, prayed for discharging of accused No.2.
10. The counsel appearing for accused Nos.4 and 5 in Crl.R.P. No.642/2012, contended that accused Nos.3 to 5 were appointed by accused No.1. They never met accused No.1 at any point of time, after receipt of the order. They have visited the spot and gave report for recognizing the D.Ed course and to reject the other two courses. The report of this committee was same that of the report submitted by the second inspection committee. There is no meeting held between accused Nos.1 and 3 to 5 to frame the charges against them under Section 120(B) of the IPC. In fact, the report was rejected by the Appeal Committee, but later it was remitted back to the SRC, which granted the recognition. Therefore, there is no material placed on record to frame the charges against accused Nos.4 and 5. It is also contended that for taking cognizance, the sanction is required under the Act. Hence, prayed for allowing the revision petition.
11. Per contra, the learned counsel appearing for the CBI strenuously argued that, accused No.1 the then Chairman of the Appellate Authority of the NCTE and accused Nos.3 to 5 were Professors at the relevant time, but while filing the charge sheet all the four accused were retired from their office, therefore, no sanction is required. It is also contended that accused No.2 has fabricated the document i.e., FDR and placed before the public authority for gaining the order. Even though, there was no infrastructure available in the institution of accused No.2 but accused Nos.3 to 5 have given a false report for recommending to accord recognition to conduct D.Ed course. Based upon this report, accused No.1, who was already about to reject the application immediately, but without authority, he has ordered for fresh inspection by appointing accused Nos.3 to 5 and directing them to submit report within two days which itself goes to show that he has not acted in good faith and ordering for de novo hearing clearly goes to show that accused No.1 passed the order without any authority. Therefore, the Investigating Officer filed the charge sheet against accused Nos.1 and 3 to 5 to prosecute the accused persons and accused No.2 by creating the fake FDRs submitted to the authority for obtaining the order. While passing the order by the authority, it was brought to the notice that accused No.2 submitted the fake FDRs, in spite of the same according sanction which goes to show that the accused exceeded the jurisdiction while passing the order. Therefore, he has supported the order challenged under the Revision and prayed for dismissal of the Revision Petitions.
12. Upon hearing the rival contentions of the learned counsel for the petitioners as well as respondents and perused the order and the charge sheet materials, it is an admitted fact that accused No.2 who is the Secretary of Dr. Radhakrishna Teachers Educational Institution filed three applications for conducting B.Ed, D.Ed and CP.Ed courses. All these applications were rejected by the NCTE, SRC, Bengaluru. Against three orders, accused No.2 filed three appeals before the NCTE, Delhi which is Appellate Authority. The Section Officer, Under Secretary, Deputy Secretary and Member Secretary had made recommendations to reject the applications on the ground that accused No.2 had filed application after expiry of the last date and submitting fake and forged Fixed Deposit receipts. On hearing the same, the Appellate Authority remanded the matter to the SRC for re-processing the application after re-inspection. It is also admitted that the SRC constituted two members inspection team to inspect the premises of the institution and to submit the report and the SRC issued notice to accused No.2 to comply the inadequacies in the Educational Institution and accused No.2 sent the reply on the same day. The second inspection committee noted various short comings. Therefore, the SRC rejected the applications. It is also an admitted fact accused No.2 preferred three appeals before the Appellate Authority, Delhi. On 07/09.11.2005, the Appellate Authority directed to re-inspect the institution by constituting sub-committee consisting of three members. The said sub-committee submitted report before the Appellate Authority for rejection of the appeal. When the matter was placed before the Appellate Authority, as per the Minutes of the Meeting, the appeals were above to reject. However, during that time, the Chairman of the Appellate Authority retired from the service and accused No.1 who was the Vice-Chairman of the NCTE became Acting Chairman as appointed by the Central Government on 27.01.2006. When the matter was placed before accused No.1, he has ordered for de novo hearing of the appeal and accused No.1 appointed the sub-committee consisting of three members i.e., accused Nos.3 to 5 to inspect and submit the report. Accordingly, accused Nos.3 to 5 conducted the inspection and submitted the report on 08.06.2006 by recommending to accord recognition for starting D.Ed course with intake of 50 students for the academic year 2006-2008. After the recommendation of the inspection committee, the appeal was remitted back to the SRC for fresh consideration. The communication has been sent to the SRC based upon the inspection report. The SRC accorded the recognition for starting D.Ed course by accused No.2.
13. The arguments of the learned counsel for accused No. 1 was of two fold. He has argued mainly on the sanction required to prosecute accused No.1, who was Vice Chairman and became acting Chairman during the relevant period of passing the order and he being the quasi judicial authority, passed the order in good faith while discharging the official duty. Therefore, there is protection available to him under Section 28 of the NCTE Act and without sanction, taking cognizance is bad in law. In support of his argument, the learned counsel for accused No.1 relied upon the judgment of the Hon’ble Supreme Court in the case of GOONDLA VENKATESWARLU Vs. STATE OF ANDHRA PRADESH AND ANOTHER reported in 2008 STPL 17997 SC : (2008) 9 SCC 613, wherein the Hon’ble Supreme Court laid down the ratio in respect of interfering of the order of Trial Court to quash the proceedings when the proceedings were abuse of process of law by relying upon the judgment of the Hon’ble Supreme Court in the case of STATE OF HARYANA AND OTHERS Vs. BHAJAN LAI AND OTHERS reported in JT 1990(4) SC 650. On the other hand, the counsel for the respondent relied upon the Judgment of Hon’ble supreme Court in the case of ASIAN RESURFACING OF ROAD AGENCY PRIVATE LIMITED AND ANOTHER Vs. CBI reported in AIR 2018 SUPREME COURT CASES 2039, in respect of staying the proceedings of the trial Court or quashing the proceedings in respect of Prevention of Corruption Act, wherein the Hon’ble Supreme Court held challenging the order of charge should be entertained in rarest of the rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter. In another case relied upon by the counsel for the respondent in the case of STATE OF RAJASTHAN Vs. FATEHKARAN MEHDU reported in (2017) 3 SCC 198, wherein, the Hon’ble Supreme Court laid down the principle in respect of scope of interference of the High Court under Section 397 of Code of Criminal Procedure in respect of framing of charge. In the case of STATE OF TAMIL NADU Vs. N. SURESH RAJAN AND OTHERS reported in (2014) 11 SCC 709, the Hon’ble Supreme Court has held as hereunder:
“A. Criminal Procedure Code, 1973-Ss. 227, 239 and 240 – Framing of charges/Discharge of accused – Exercise of jurisdiction/power by court – Scope of – No mini trial is contemplated at stage of considering discharge application – Court to proceed with assumption that materials brought on record by prosecution are true – Only probative value of materials has to be gone into to see if there is a prima facie case for proceeding against accused – Court is not expected to go deep into the matter and hold that materials would not warrant a conviction – If court, on basis of materials, thinks that accused prima facie might have committed offence, it can frame the charge.
B. Criminal Procedure Code, 1973 – Ss.227, 239, 244 and 245 – Provisions relating discharge of accused – Difference in language employed in Ss. 227, 239 and 245 – Effect – Common approach to be adopted by court – held, notwithstanding differences in provisions relating to discharge under Ss. 227, 239 and 245 and whichever provisions may be applicable, court at this stage of considering discharge of accused is only required to see if there is a prima facie case for proceeding against accused.”
14. In the case of STATE OF KERALA Vs.
V. PADMANABHAN NAIR reported in (1999) 5 SCC 690, the Hon’ble Supreme Court has held as under:
“A. Prevention of Corruption Act, 1947 – S.6- Accused ceasing to be a public servant on the date of taking cognizance of offences under the Act – Sanction not necessary – Criminal Procedure Code, 1973,S.197.
B. Criminal Procedure Code, 1973 – S.197 – Offences under Ss.406, 409 read with S.120-B IPC – Sanction under S.197 not necessary.”
15. In another case of ABHAY SINGH CHAUTALA Vs.
CENTRAL BUREAU OF INVESTIGATION reported in (2011) 7 SCC 141, the Hon’ble Supreme Court has held as under:
“B. Public Accountability and Vigilance – Prevention of Corruption Act, 1988 – S.19 – Sanction – When not required – Reiterated, if on the date of taking cognizance, accused continues to be a public servant but in a different capacity or is holding a different office than the one alleged to have been abused, then no sanction is required – Criminal Procedure Code, 1973,S.197.”
16. By keeping the principles laid down by the Hon’ble Supreme Court in mind, now coming to the first contention raised by the learned counsel for accused Nos.1, 4 and 5 in respect of obtaining sanction for prosecuting the accused persons, it is admitted fact, these accused persons were Professors worked in the different Government Universities. Accused No. 1 has been appointed by the Central Government under the provisions of the NCTE Act and accused No. 1, being the Chairman of the committee, by exercising the power under the Act, he has appointed the inspection team consisting of accused Nos.3 to 5, while filing the charge sheet, the Investigating Officer mentioned that all these accused persons were retired Professors, therefore, no sanction from the Government is required. Though the learned counsel for the petitioners strenuously contended that Investigating Officer willfully mentioned the name of the accused as retired Professors, even though they are in service and deputed from the parent department from the Universities, but till completion of arguments and even subsequent to the reserving the matter for arguments, the learned counsel for the petitioners in Crl.R.P.Nos.642/2012 and 679/2012 not at all produced any documents to show, whether they are in Government service till the date of taking cognizance by the trial Court. Even this Court insisted the Advocates in respect of date of their retirement to know whether they were in service at the time of taking cognizance or retired from the service prior to the filing of charge sheet itself. But they have not at all produced any document or informed to this Court, the date of retirement from their service. Therefore, there is no other option for this Court to accept the observation made by the Investigating Officer in the charge sheet that these petitioners were already retired from the service.
17. In view of the ratio laid down by the Hon’ble Supreme Court in the case of V. PADMANABAN NAIR (supra), when accused persons were already retired from the service and ceased to be a public servant, the question of obtaining sanction by the Investigating Officer for prosecuting the case does not arise.
18. The learned counsel for the petitioners also argued that the legislature brought an amendment to Section 19 of the PC Act that the sanction is required, in order to prosecute the public servant who was also retired from the service. The amendment brought to the Provisions of Section 19 of the PC.Act, but the amendment has been brought by the legislature very recently in the year 2018 with effect from 26.07.2018 and the amendment is always in prospective in nature. Whereas here in this case, the charge sheet came to be filed in the year 2009 itself and as per the contention of Investigating Officer, the accused were already retired from the service. The Trial Court also took the cognizance against the petitioners long back.
Therefore, the contention of the learned counsel for the petitioners taking cognizance without sanction is bad in law cannot be acceptable. On the other hand, this Court do not find any error in taking cognizance against the petitioners without sanction, as they ceased to be public servants.
19. The other contention taken by the learned counsel for accused No.1 was that there is no conspiracy and meeting of minds by the accused No.1 with the other accused persons for attracting Section 120(B) of IPC. There is a protection available to accused No.1 under Section 28 of the NCTE Act where he has acted in good faith while passing the order. In this regard, the learned counsel for the petitioners brought to the notice of the Court that the inspection team has submitted the report and in the minutes of the meeting, he has sought some modifications. Therefore, the same was placed before the Appellate Authority, by that time the petitioner-accused No.1 become in-charge chairman as per the order of the Central Government vide order dated 27.01.2006. Therefore, he has ordered for re-hearing the matter and later appointed accused Nos.3 to 5 as inspection team. Therefore, he has acted in good faith and hence, he cannot be prosecuted when he has acted by exercising power as Chairman of the Appeal Committee. On the other hand, the Special counsel for the respondent contended that, when the accused No.1 himself was a member of the committee, when he was Vice-Chairman, he wants to reject the appeal, but subsequently without any authority he has not approved in respect of rejection of the appeal, he kept the file pending for 23 days without forwarding the minutes of the meeting and after, he becoming acting Chair Person, he has ordered for de novo hearing and even though, it was brought to the notice about filing the fake FDRs and demand drafts by accused No.2 and more short comings in the infrastructure, but conspired with the other accused, he has accepted the appeal which cannot be considered as that the accused acted in good faith while discharging the duty and it is also brought to the notice that accused No.2 based upon the order, collected huge amount from the students without having any infrastructure including teaching and non-teaching staffs.
20. On perusal of the records, the earlier committee was appointed by accused No.1 for inspection of the institution. The said committed visited the institution of accused No.2 on 17.11.2005 and gave report stating that the institution of accused No.2 is not at all prepared to run any educational course at present. The report was forwarded and was placed before the present accused No.1 who was Vice Chairperson. The report of the sub-committee when placed before the Member Secretary where the Member Secretary recommended for rejecting the appeal as per Page 52 of the paper book and the same was placed before accused No.1 wherein he has mentioned that “please discuss” and forwarded the file to the Member Secretary and later, the order sheet goes shows that the Under Secretary one Sri Mruthyunjay Jha prepared the note and placed before the Deputy Secretary and again forwarded to accused No.1 through Member Secretary wherein, the accused No.1 noted as follows:
“Kindly submit these along with individual institutions, files in future also to be adhered”.
21. Later, the order sheet dated 02.01.2006 shows “the minutes are returned for bringing the correction as suggested” and further on 03.01.2006, the order sheet reveals as follows:
“This relates to minutes of the appeal committee meeting held on 13/14.12.2005 conversions as approved by VCP have been made prints are placed below for kind consideration and approval.”
which goes to show that the committee meeting was held and they are recommended for rejection of these appeals and it was placed before accused No.1 wherein accused No.1 passed an order on 04.01.2006 as follows:
“The minutes of the appeal committee held on 13 and 14 December 2005 is approved except for the Sl. Nos. 35, 41, 42 and 43 which have been withheld for certain modification for which the case file be provided to the VCP (the accused No.1 herein) and for the remaining the approval of the CP be obtained and order issued accordingly”.
22. Later, the file was ordered to be placed before the Chair person through accused No.1 which reveals in the order sheet dated 09.01.2006. When the file was placed before the Vice Chairperson-accused No.1, where he has mentioned stating that “corrected version of the minutes stands approved CP approval be sought”.
23. Accused No.1 signed on 19.01.2006, later a meeting was convened on 20.01.2006 at 3 p.m. That on 20.01.2006, the committee meeting was convened and accused No.1 shared the committee as Chairperson but he was Vice Chairman at that time. Later on 27.01.2006, by virtue of the notification of Central Government, he has given in-charge of chairperson until further orders. Thereafter on 03.02.2006, when he became the acting Chair person, the meeting was convened and a note was put up by the Member Secretary. Accused No.1 ordered to the Member Secretary to know the legal validity of the meeting of the Chairperson and subsequently, accused No.1 decided to allow the appeal in spite of the non- agreement by the two members on the Minutes of the Appeal committee as approved by the accused himself when he was Vice Chairperson. These documents goes to show that when accused No.1 himself being the members of the appeal committee was opined for rejection of the appeal as per the minutes of the meeting dated 07/09.11.2005, but he himself again decided to allow the appeal and ordered for de novo hearing as per the order dated 21.03.2006 after he became Acting Chairman. Therefore, he has appointed accused Nos.3 to 5 and obtained the report and allowed the appeal. Subsequently, the matter was remitted to Southern Regional Committee and recognition came to be accorded. From the records, it is clear that he himself recommended for rejection of the appeal and later, he himself after becoming Chairperson order for de novo hearing and appointed the fresh inspection team and accused Nos.3 to 5 submitted the report within two days for recommending the D.Ed course. Merely the accused Nos.1 and 3 to 5 were not directly met each other, it cannot be said they are not at all spoken with each other. Therefore, it cannot be presumed at this stage prior to trial to hold that there was no conspiracy between the accused persons. The prosecution required to prove out of the circumstances during the trial. There is sufficient material placed on record to frame the charges against the accused persons. The learned counsel for the respondent relied upon the judgment of the Hon’ble Supreme Court in the case of R. VENKATKRISHNAN Vs. CENTRAL BUREAU OF INVESTIGATION reported in (2009) 11 SCC 737., wherein it held in the case of criminal conspiracy, it is an offence which is independent of the other offences, it takes place when there is an agreement to do or causes to be done an illegal act or an act which may not be illegal but by illegal means. In the absence of agreement, mere thought to commit a crime does not constitute the offence. Conspiracy is generally hatched in secrecy direct evidence is therefore difficult to become available. It can be proved only on the basis of circumstantial evidence /or by necessary implication and in the case of CBI Vs. DR. ANUP KUMAR SRIVASTAVA reported in (2017) 15 SCC 560 wherein it is held:
“D. Penal Code, 1860 – S.120-B – Conspiracy – Proof – Agreement between two or more persons to do illegal act or act which is not illegal by illegal means – Object behind conspiracy is to achieve ultimate aim of conspiracy – Charge of conspiracy means knowledge about indulgence in either illegal act or legal act by illegal means – Intent of unlawful use being made of goods or services in question may be inferred from knowledge itself – Further, prosecution need not establish that particular unlawful use was intended, so long as goods and services in question could not be put to lawful use – Moreover, when ultimate offence consists of chain of actions, not necessary to establish that each conspirator had knowledge of what collaborator would do.”
24. In view of the principles laid down by the Hon’ble Supreme Court in the above said cases merely accused No.1 and accused Nos. 3 to 5 not directly met together that itself cannot be a ground to discharge them from the charges under Section 120B of IPC prior to the trial. Hon’ble Supreme Court also held the Court required to quash the charges only in exceptional and rare cases in the interest of justice to avoid the abuse of process of the Court, but not otherwise.
25. Therefore, as held by the Hon’ble Supreme Court, while framing of charge, the Court cannot meticulously go into the merits of the case to appreciate or re-appreciate the charge sheet materials which is nothing but appreciation of evidence which could be done only after recording the prosecution witnesses. Therefore, for the above said reasons, I do not find any error in the impugned order passed by the trial court for framing of charges against accused No.1 and Accused Nos.4 & 5.
26. Hence, the Crl.R.P.Nos.642/2012 and 679/2012 deserves to be dismissed.
27. As regard to the contention taken by the petitioner in 669/2012 wherein his only contention is that this accused is already facing trial for creating fake FDRs before the VII Additional Chief Metropolitan Magistrate in CC No. 9283/2006, therefore, he cannot be again tried in this case and it is contended that which amounts to doubled jeopardy. The arguments of the learned counsel cannot be acceptable for the reason that once the accused is tried either acquitted or convicted for the same offence again he cannot be tried for the same offence. There is a bar u/s 300 of Cr.P.C., but here in this case, except the oral submission the learned counsel for the petitioner has not produced any document before this Court. If at all the accused able to get an acquittal either in this case or in that case, he can plead the same before the trial court. However, so far as conspiracy offences punishable under Section 120(B) of IPC, he was the beneficiary out of the order passed by accused No.1 and recommendation made by accused Nos.3 to 5. Therefore, once this accused has been charge sheeted in this case, he is at liberty to get the stay proceedings before the Magistrate. Therefore, on that ground, this accused cannot be exonerated from the charges.
28. Though the counsel for the petitioners contended that there was letter sent by the Central Ministry to dispose of the appeal pending before accused No.1 and therefore, he has forced to pass the order immediately which can be considered only during trial as a defence, but not at this stage.
29. For the above said reasons, without expressing any opinion on the merits of the case, I hold that there is sufficient material on record to frame the charges against the accused persons. The Hon’ble Supreme Court in the case of UNION OF INDIA VS. PRAFULLA KUMAR SAMAL AND ANOTHER reported in (1979)3 SCC 4 and in the case of SAJJAN KUMAR VS. CENTRAL BUREAU OF INVESTIGATION (Crl. Appeal No.6374 of 2010 DD 20.09.2010) have held that the Court cannot go into deep by verifying the materials for conviction or acquittal while framing the charges against the accused persons. Therefore, if at all any defence is available to the accused persons, they can agitate the same before the trial Court during the cross-examination and the trial Court has rightly rejected the applications filed by the petitioners. The petitions are devoid of merits and are liable to be dismissed.
30. Accordingly, all the three Criminal Revision Petition Nos.642/2012 c/w 679/2012 & 669/2012 are dismissed. The Trial Court is directed to dispose off the matter as early as possible.
Sd/- JUDGE GBB