H.P. Sandesh, J
1. This petition is filed under Section 482 of Cr.P.C, praying this Court to quash the FIR in Crime No.54/2019 and written information dated
20.11.2019 registered by respondent No.1 police for the offences punishable under Sections 406, 409, 420 read with Section 34 of IPC against the
petitioner who is arraigned as accused No.1 pending on the file of the learned Additional Civil Judge (Sr.Dn.) and JMFC, JLB Road, Mysuru and
grant such other reliefs.
2. The factual matrix of the case is that respondent No.2 had lodged the complaint with the police on 20.11.2019 against this petitioner and other
concerned former Vice Chancellors of Karnataka State Open University, Mysuru and various Academic Collaborative Institutions and their Study
Centres for having committed grave error in entering into MOUs with private persons, etc. permitting them to admit the students to various courses
without seeking legal opinion from the Government. It is alleged in the complaint that pursuant to the directions of the Hon'ble Governor and the
Chancellor of the Universities i.e., communication from the Hon'ble Governor and Chancellor of the University under Section 8(8) of the Karnataka
State Open University Act, 1992, the complainant was directed to file the complaint. It is also alleged in the complaint that One Man Committee was
also constituted to enquire into the irregularities and submitted the report right from the tenure of this petitioner and in the report pointed out the
committing of the grave error by entering into MOUs with many private persons. The specific allegation against this petitioner is that from the year
2007, the KSOU started entering into MOUs with private educational institutions beyond the territory of State of Karnataka. But, the recognition
accorded to the University does not specifically refer to or say anything regarding the courses offered by KSOU through Collaborative Institutes.
Based on the complaint, Crime No.54/2019 has been registered for the above offences.
3. The learned Senior Counsel appearing for the petitioner in his arguments vehemently contend that this petitioner was appointed as Vice Chancellor
for the period from 2003 to 2007 and only two MOUs are entered during the tenure of this petitioner. The learned counsel would contend that the
opinion of the Additional Solicitor General of India was also taken and the opinion is clear that the petitioner has not committed any offence as alleged
and it is pointed out that the One Man Committee report observed that there was an ambiguity in the law. The learned counsel would contend that the
Governor’s direction does not pertain to the MOU entered into by this petitioner. The learned counsel would contend that the UGC permission
was withdrawn in 2014 and the petitioner who has discharged duties as Vice Chancellor, is now aged about 76 years. The complaint averments do not
attract any of the ingredients of the offences which have been invoked against the petitioner.
4. The learned counsel in support of his arguments relied upon the judgment of the Apex Court in the case of COMMON CAUSE, A REGISTERED
SOCIETY v. UNION OF INDIA AND OTHERS reported in (1999) 6 SCC 667 and brought to the notice of this Court paragraph No.168 of the
judgment wherein it is held that a trust contemplated by Section 405 would arise only when there is an entrustment of property or dominion over
property. There has, therefore, to be a property belonging to someone which is entrusted to the person accused of the offence under Section 405. The
entrustment of property creates a trust which is only an obligation annexed to the ownership of the property and arises out of a confidence reposed
and accepted by the owner. The learned counsel also brought to the notice of this Court that the Apex Court discussed in detail in paragraph Nos.168
to 170 the judgment of the Apex Court in the case of Rashmi Kumar v. Mahesh Kumar Bhada with regard to the essential ingredients for
establishing the offence of criminal breach of trust, as defined in Section 405 and also referred the judgment in the case of Pratibha Rani v. Suraj
Kumar. In the case of Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore-Cochin, it is held that every breach of trust in the
absence of mens rea or dishonest intention cannot legally justify a criminal prosecution.
5. The learned counsel referring this judgment would contend that in the case on hand, there is no any mens rea or dishonest intention and MOU was
entered without any mens rea or dishonest intention and the present petitioner was the first Vice Chancellor who entered into the MOU and only two
MOUs are entered into during the tenure of this petitioner. Hence, the ingredients of the offences under Sections 405 or 409 of IPC does not attract in
the case on hand. The petitioner has exercised the power within her domain as she was the first Vice Chancellor and the direction given by the
Governor is not in respect of this issue. Hence, it requires interference of this Court.
6. Per contra, the learned counsel for respondent No.2 would vehemently contend that MOU was entered into without any support of the statute and
there was no any basis to enter into the MOU. The opinion given by the Additional Solicitor General of India is not helpful to the petitioner. The
learned counsel would contend that the petitioner is not disputing the fact that she has entered into MOU and further contend that as this petitioner
entered into MOU, the same was continued from the other Vice Chancellors subsequent to the present petitioner. The One Man Committee
constituted by the Governor has also submitted the report regarding violation of the powers vested with the petitioner herein. Hence, there cannot be
any quashing of the proceedings against the petitioner.
7. Having heard the learned counsel for the petitioner and the learned counsel for respondent No.2, this Court has to consider the allegations made in
the complaint. The relief sought in this petition is to quash the FIR. The Apex Court in the judgment in the case of DINESHBHAI CHANDUBHAI
PATEL v. THE STATE OF GUJARAT reported in 2018 (3) SCC 104 has held that once the FIR prima facie discloses the committing of an offence,
the Court should not invoke Section 482 of Cr.P.C. It is further observed that the High Court should not venture to interfere with the domain of the
Investigating Officer and also should not collect the evidence as an Appellate Court. The Investigating Officer has to probe and unearth the crime. In
view of the principles laid down in the judgment referred supra, this Court has to look into the averments made in the complaint.
8. On perusal of the complaint dated 20.11.2019 which is annexed as Annexure-B, specific allegation is made against this petitioner and other
concerned Former Vice Chancellors of the Karnataka State Open University. In paragraph No.3 of the complaint, specific allegation is made that the
University right from the tenure of Prof. K. Sudha Rao, the then Vice Chancellor and to date, committed a grave error in entering into the MOUs with
many private persons, firms, societies, trusts, Private Limited Companies, etc., permitting them to admit students to various courses without seeking
legal opinion from the State Government. The serious allegation against the KSOU is that it entered into MOUs with private institutions beyond the
jurisdiction of the State of Karnataka and that it has admitted students to various technical, para medical and online programmes, contrary to the
provisions of the Act, guidelines/instructions issued by the Human Resource Development (MHRD), DEB, UGC, regulatory bodies such as AICTE,
MCI, etc.
9. It is also an allegation in the complaint that One Man Fact Finding report also points out that during the tenure of this petitioner i.e. from 26.06.2003
to 25.06.2007, this petitioner started entering into MOUs, with private institution, situated at Hyderabad and New Delhi. It is also an allegation in the
complaint that sub-section(2) of Section 1 of the KSOU Act, 1992, restricts its jurisdiction to the whole of the State of Karnataka. Therefore, there
cannot be any provision in the KSOU Act, 1992, contrary to Section 1(2) of KSOU Act, 1992. It is also alleged in the complaint that the legal opinion
given by the Additional Solicitor General of India is neither binding on the University nor on the State Government. If the University had any doubt
relating to the provisions of the KSOU Act, it should have approached the State Law Department, through its Head of the Department, namely the
Principal Secretary in Higher Education Department of the State Government, for legal opinion, but it has not done so.
10. Having perused the complaint, specific allegation is made against this petitioner with regard to entering into MOUs and the enactment restricts the
jurisdiction and the petitioner is not disputing the fact that she has entered into MOU twice during her tenure. When there is a Fact Finding Committee
report available and interdicted and also when the direction was given by the Governor to look into the violations and take appropriate action, based on
the direction, the complaint is given. Having perused the material on record, there is a prima facie material to investigate the matter and I have already
pointed out that the Apex Court in the judgment in the case of Dineshbhai Chandubhai Patel (supra), categorically says that the High Court should
not venture to come in the way of investigation when the complaint prima facie discloses committing of the offence. No doubt, the learned counsel for
the petitioner brought to the notice of this Court the judgment in the case of Common Cause (supra), wherein interpretation was given with regard to
Section 405 entrustment of the property and here the question before this Court is with regard to entrustment of power to the Vice Chancellor and the
Vice Chancellor entering into MOU without any basis as alleged in the complaint. The allegation in the complaint is that without having any power to
enter into MOU outside the jurisdiction of the State, an agreement was entered in providing the distant education collaborative with other institutions.
When such being the allegations made in the complaint, the matter has to be probed and crime has to be unearthed. Hence, I do not find any
substance in the contention of the learned counsel for the petitioner that this Court has to invoke Section 482 of Cr.P.C. and quash the proceedings
initiated against the petitioner. If it is exercised, it amounts to premature and coming in the way of domain of the Investigating Officer. I have already
pointed out that in the complaint, specific allegations are made against this petitioner and entering into the MOU is commenced from the tenure of this
petitioner. I have already pointed out that two MOUs are entered into by this petitioner during her tenure and the same has not been disputed. The
allegation is made against the petitioner that the said MOUs are entered into in violation of the Act and the same is not permissible under the Act and
the same has to be probed.
11. In view of the discussions made above, I pass the following:
ORDER
(i) The petition is dismissed.
(ii) However, liberty is given to the petitioner to approach this Court after filing of the final report, if need arises.
