@JUDGMENTTAG-ORDER
Aruna Jagadeesan, J.@mdashCrl.O.P. 12751/2014 is filed by Dr. M.C.R. Vyas, the then Whole Time Inspector of Medical Council of India, New Delhi (for the academic years 2008-2009 and 2009-2010) who is arrayed as A6 in Special C.C. No. 2/2012 on the file of the learned Special Judge, Pondicherry, Crl. O.P. 12754/2014 is filed by M/s. Sri Lakshmi Ammal Educational Trust, represented by its Managing Trustee, Sundeep Anand, who is arrayed as A1.
2. Crl. O.P. 12755/2014 is filed by G. Vairakumar, Employee of the above said Institution, who is arrayed as A5.
3. Crl. O.P. 12756/2014 is filed by the then Dean, M/s. Sri Lakshmi Narayana Institute of Medical Sciences, Pondicherry from July 2005 to 31.12.2007, who is arrayed as A7.
4. Crl. O.P. 12757/2014 is filed by Dr. A. Vaithialingam @ Vaithu, Deputy Medical Superintendent, M/s. Sri Lakshmi Narayana Institute of Medical Sciences, Pondicherry, who is arrayed as A3.
5. Crl. O.P. 12758/2014 is filed by Dr. Arunachala Damodara Edukondalu @ Elumalai, Deputy Medical Superintendent of the above said Institution, who is arrayed as A4.
6. Crl. O.P. 12759/2014 is filed by Dr. Somasekhar I. Tulanur, Dean of M/s. Sri Lakshmi Narayana Institute of Medical Sciences, Pondicherry, who is arrayed as A2.
7. Crl. O.P. 12760/2014 is filed by Dr. S.B. Agrawal, the then Whole Time Inspector, Medical Council of India, New Delhi (for the academic year 2010-2011), who is arrayed as A8.
8. The Prosecution case is that all the accused conspired together and cheated the Medical Council of India and Ministry of Health and Family Welfare and obtained renewal permission for the College for the admission of 3rd, 4th and 5th batch M.B.B.S. students, for the academic years 2008-2009, 2009-2010 and 2010-2011. It is alleged that declaration forms, appointment orders and joining orders of the Faculties/Doctors were forged and fabricated without the knowledge of the Faculties/Doctors for obtaining renewal permission. It is further alleged that A2 and A7, the Dean of the College attested the same as genuine and A6 and A8, who are the Inspectors of the Medical Council of India, under conspiracy failed to point out the discrepancies in the declaration forms and shortage in the teaching faculties. It is alleged that A5, who is the General Manager of the College, fabricated Form 16 and failed to remit professional tax to the local body of Pondicherry for the Staff of the Medical College from the Inspector of Medical College.
9. Originally, the case was registered on source information and one Dr. Ketan Desai, the then President of Medical Council of India, had figured as the first accused in the First Information Report and the Respondent/CBI while filing the charge sheet had deleted the name of the said Dr. Ketan Desai and that of the other Doctors of Medical College Institution who had accompanied the Inspectors, A6 and A8 for inspecting the Institution for renewal of permission, on the ground that Dr. Ketan Desai has no role to play, since forwarding the proposal for renewal of a College is based on the collective decision of the Executive Committee of the Medical Council of India based on the reports submitted by the MCI Inspectors. The Respondent/CBI had also stated that the other MCI Doctors, who had accompanied A6 and A8, had no role to play and do not have much say in the inspection and had further stated that the Respondent/CBI had recommended for regular departmental action against those MCI Doctors. The CBI has filed the charge sheet as against the Petitioners.
10. The Petitioners in the Criminal Original Petitions were charge sheeted for the offences under Section 120B read with 420, 468 read with 471 of IPC and under Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act. 1988 before the learned Special Judge. Pondicherry and the same had been taken on file in Special C.C. No. 2/2012.
11. The Petitioners/A1 to A8 thereupon filed petitions as referred to above under Section 482 of Cr.P.C. for quashing the criminal proceedings in Special C.C. No. 2/2012 on the file of the learned Special Judge, Pondicherry on the following grounds:
A. Unauthorised and illegal investigation.
B. Non compliance of Section 6A of the Delhi Special Police Establishment Act, 1946 (hereinafter referred to as DSPE Act).
C. Non compliance of CBI Manual.
D. No complaint by Medical Council of India or Ministry of Health and Family Welfare.
E. Pick and choose investigation. Hence, violation of Articles 14 and 21 of the Constitution of India.
F. No evidence of forgery.
G. A6 and A8 are not public servants
H. Trust is not liable for day today affairs of the College.
I. Discriminatory action by the Respondent/CBI.
J. Maintainability of quash petition.
12. Before dealing with the merits of the petitions for quashing the criminal proceedings, it is necessary to consider the nature and scope of the inherent power of the High Court under Section 482 of Cr.P.C. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. There is no doubt that ordinarily, criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at the stage of framing charges against the accused. It is not possible desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction.
13. The Honourable Supreme Court has discussed in its earliest decision
(i) There may be cases where it may be possible for the High Court to take the view that Institution or continuance of criminal proceedings against an accused person may amount to the abuse of process of the court or that quashing the impugned proceedings would serve the ends of justice.
(ii) if the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the Institution or continuance of the said proceedings, the High Court would be justified in quashing the proceedings on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category.
(iii) Cases may also arise where the allegations in the First Information Report or the complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter of merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused persons.
(iv) A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In the cases falling under this category, the allegations made against the accused persons do constitute an offence alleged, but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between cases where there is no legal evidence or where there is evidence, which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on appreciation may or may not support the accusation question.
14. In exercising its jurisdiction under Section 482 of Cr.P.C., the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the Magistrate and ordinarily it would not be open to any party to invoke the High Court''s inherent jurisdiction and contend that on reasonable appreciation of the evidence, accusation made against the accused would not be sustained.
15. The learned Special Public Prosecutor Mr. N. Chandrasekaran cited a catena of decisions wherein the Honourable Supreme Court has laid down certain parameters to be observed while exercising the inherent power under Section 482 of Cr.P.C. by the High Court, that is, either to prevent abuse of process of any court or otherwise to secure the ends of justice and a note of caution while exercising power of quashing criminal proceedings restated. In one such decision rendered in the case of
16. The said stand was upheld by the Honourable Supreme Court in
17. At the stage of framing charge, probative value of materials on record cannot be gone into, as held in State And Corruption Bureau, Hyderabad and Another v. P. Suryaprabakar, (1999) SCC Crl. 373, wherein the Honourable Supreme Court observed that at the stage of framing charge, what the Trial Court is required to and can consider are only the police report under Section 173 of Cr.PC and documents sent with it. This position was again confirmed by the Honourable Supreme Court in
18. Citing the above said decisions, the learned Special Public Prosecutor, inter alia, contended that the Petitioners have already filed an application in the court of Special Judge for their discharge and that this court should not interfere in the criminal proceedings which are at the threshold. I am unable to subscribe my view to the said submission made by the learned Special Public Prosecutor as I am of the opinion that merely on filing of an application for discharge, it cannot be said that the High Court cannot exercise its jurisdiction under Section 482 of Cr.P.C. The said view of mine gained strength from the decisions of the Honourable Supreme Court and reference may be made to two such decisions of the Honourable Supreme Court reported in
19. In
20. The inherent power of the High Court is not conferred by Statute, but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction of the High Court would be held to be barred only because that the accused have filed applications for discharge. In the present case, it is brought to the notice of the court that the Petitioner/A1 on the earlier occasion filed an application to quash the First Information Report in Cr. O.P. No. 19154/2010 and the same was dismissed. As against which, an SLP was filed before the Honourable Supreme Court in SLP. No. 3173/2012 and the same was disposed of on 30.7.2012 observing as follows:
"At this stage, it is not possible for this court to go into the question whether the First Information Report is liable to be quashed or not. All the contentions raised by the Petitioner with regard to the quashing of the First Information Report are kept open."
21. Admittedly, the Petitioners filed an application for discharge before the Special Court, but the same has been withdrawn. The learned senior counsel for the Petitioners placed reliance on a three Judges Bench decision of the Honourable Supreme Court reported in State of Orissa v. Dabendra Nath Padhi (supra) and later followed in
22. In
23. However, in paragraph 29 of the judgment, it accepted the arguments advanced on behalf of the accused that the width of the powers of the High Court under Section 482 of Cr.P.C. is unlimited and the High Court can consider the materials produced by the accused which is of unimpeachable character of sterling quality and pass such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice. The larger Bench made a conscious distinction between a proceeding under Section 227 of Cr.P.C. before the Trial Court and a proceeding under Section 482 of Cr.P.C. and made a reference to the court''s power to consider material other than those produced by the Prosecution in a proceeding under Section 482 of Cr.P.C. In a later decision of the Honourable Supreme Court rendered in the case of Rukmini Narvehar v. Vijaya Satardekar (supra), the Honourable Supreme Court referred to the larger Bench decision in approval of the view expressed therein.
24. The question that yet remains for consideration in this case is whether there are materials of unimpeachable character of sterling quality which convincingly demonstrate that the essential ingredients of the offence charged are missing and the very essentials were nonexistent.
25. The allegations against the accused is that A1 to A5 colluding with A6 and A8 who are whole time Inspectors from the panel of Inspectors with Medical Council of India cheated Medical Council of India and Ministry of Health and Family Welfare. Indisputably, no complaint has been lodged by the aggrieved parties i.e. either Medical Council of India or Ministry of Health and Family Welfare.
26. Establishment of a New Medical College is governed under Section 10A of the Indian Medical Council Act. 1956. Section 10A, which provides for terms and conditions to be fulfilled before starting or establishing a Medical College or starting higher courses makes it clear that what is postulated thereunder is evaluation of application made by the Institution concerned by the Central Government in the first instance and then forwarding the same to the Medical Council of India for its further examination. As observed by the Honourable Supreme Court in Medical Council of India v. Rajiv Gandhi University of Health Sciences. AIR 2004 SC 2603 : (2004) 6 SCC 76 : LNIND 2004 SC 467 there are various steps envisaged under the scheme such as (a) issuance of letter of intent by the Central Government on the recommendation of the Council: (b) issuance of letter of permission by the Central Government on the recommendation of the Council for starting admissions; (c) issuance of annual renewal to be granted by the Central Government on the recommendation of the Council; (d) at the stage of the 1st batch of students admitted in M.B.B.S. Course go for final year examination, grant of formal recognition by the Central Government on the permission of 1st batch of students, any College fails to fulfill the minimum norms in any successive year, as per the statutory regulations, further admissions are liable to be stopped at any stage.
27. Therefore, for establishment of a new-Medical College, the proposed College has to necessarily have proper facilities, infrastructure faculties and other requirements as provided under Section 10A(7) of the Act. There is no dispute that such permission for establishment of a Medical College was granted on 5.6.2006 in the instant case for the academic year 2006-2007 pursuant to the recommendation of the Ad hoc Executive Committee of the Medical Council of India to the Ministry of Health and Family Welfare. The Honourable Supreme Court in Civil Appeal No. 599/2002 by its order dated 2.11.2002 decided to appoint a Monitory Committee to assist and monitor the work of the Medical Council of India and appointed four eminent Doctors namely Dr. N. Rangabhashyam of Chennai. Professor P.N. Tandon of New Delhi, Dr. S. Kantha of Bangalore as members of Ad hoc Committee who along with the Executive Committee of the Medical Council of India recommended to the Ministry of Health and Family Welfare and the permission for establishment of Medical College was granted on 5.6.2006 after thorough inspection of the College and the relevant documents namely, the order of the Honourable Supreme Court dated 2.11.2002, letter of permission from Ministry of Health and Family Welfare dated 5.6.2006 which are filed in the common typed set filed by the Petitioners.
28. Even for the academic year 2007-2008 based on the recommendation made by the Ad hoc Committee appointed by the Honourable Supreme Court along with Executive Committee of Medical Council of India, the Ministry of Health and Family Welfare has granted renewal permissions to the Petitioners College which is evident from the Minutes of the Meeting of the Executive Committee of the Medical Council of India dated 28.4.2007 for the academic year 2007-2008.
29. Thereafter, under the Ordinance dated 15.5.2010 Board of Governors appointed by the Central Government superseded the Medical Council and the Central Government assigned all its powers of granting, renewing or refusing permission to Medical Colleges to the Board of Governors. In Cr. O.P. No. 19154/2010 filed by A1 to quash the First Information Report, counter has been filed by the Ministry of Health and Family Welfare wherein it has been stated as extracted below:
"3. I respectfully submit that the recommendations, on which decisions had been taken by the Central Government prior to promulgation of Indian Medical Council (Amendment) Ordinance 2010 dated 15.5.2010 have not been reviewed and only those recommendations which were pending with the 1st Respondent/CBI as on 15.5.2010 were sent to the Board of Governors. Medical Council of India for their consideration and decision as per the provisions made in the above said Ordinance. I submit that in the case of Petitioner, no review of the approval for admission for the academic year 2010-2011 granted by this Respondent/CBI was undertaken or recommended since the same was accorded prior to promulgation of Indian Medical Council (Amendment) Ordinance 2010)."
30. It is submitted by the learned senior counsel for the Petitioners that had there been any conspiracy or cheating on the part of the Petitioners College, the Ministry of Health and Family Welfare would not have stated that no review of the approval for the College was undertaken or recommended. It is further pointed out by the learned counsel for the Petitioners that after inspection by the Inspectors appointed by the Board of Governors, permission was granted on 11.5.2011 for starting higher course, namely MD (Bio Chemistry) Course. The letter of permission dated 11.5.2011 addressed to the Dean/Principal of Sri Lakshmi Narayan Institute of Medical Science shows that the permission has been granted by the Board of Governors for starting of MD (Biochemistry) Course for the academic year 2011-2012 under Section 10A of the Medical Council of India Act, 1956. Similarly, permission has been granted by the Board of Governors on 11.5.2011 for starting MD (Physiology) Course to the Petitioner''s College. That apart, after due inspection of the College by the Inspectors appointed by the Board of Governors of Medical Council of India and based on the recommendation of the Board of Governors, who took charge of the Medical Council of India, the Ministry of Health and Family Welfare recognised the College as established Medical College under the affiliation of "Bharat University" and had issued notification to that effect on 11.7.2011.
31. It is alleged that the Petitioners conspired together and cheated Medical Council of India and the Ministry of Health and Family Welfare for renewal of permission for the academic years 2008-2009, 2009-2010 and 2010-2011. The documents referred to above are all public documents and there cannot be any doubt that they are unimpeachable documents. No mala fide or motive is alleged against the authorities concerned. When the College was granted permission without any kind of allegation for establishment of College for the academic year 2006-2007 and for subsequent renewal of permission for the academic year 2007-2008, why should there be a necessity for the College to cheat the Medical Council of India or Ministry of Health and Family Welfare for the academic years 2008-2009, 2009-2010 and 2010-2011. The faculties, infrastructure and facilities which were available earlier in the College cannot vanish during the subsequent academic years. Moreover, it is an admitted fact that the Board of Governors specially constituted by the Central Government subsequent to the allegations made by the Respondent/CBI had inspected and recommended the College to be declared as a recognised Medical College to the Central Government.
32. Looking into the aforesaid materials/documents, which in my opinion, are of unimpeachable in other words undisputable documents, whereupon approval and renewal had been granted and subsequently the Petitioner''s Institution being awarded a "Recognised Medical College" which related to the period before and after the allegations attributed against the accused person would only suggest non existence of any conspiracy. The essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence, have to be considered to decide about the complicity of the accused.
33. In this context, it is worthwhile to refer to the observations made by the Honourable Supreme Court in
"The circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence."
34. In the instant case, as already discussed, the Ministry of Health and Family Welfare has granted permission to establish a Medical College and till date the said permission has not been withdrawn. On the other hand, the members of the Ad hoc Committee appointed by the Honourable Supreme Court and of the Executive Committee of the Council had considered the Council''s Inspector''s report dated 18th and 19th April 2007 and decided to recommend to the Central Government to renew the permission of 2nd batch of 150 M.B.B.S. students at the Institute for the academic year 2007-2008. During currency of the allegation even after registration of First Information Report the Central Government upon consideration of the recommendation dated 10.2.2010 of the Medical Council, accompanied by the Inspection report on the inspection made on 28th and 29th granted renewal of permission in the fifth batch of M.B.B.S. Course for the academic year 2010-2011 on the basis that most of the norms prescribed had been complied with. In fact, the Union of India expressly stated in the counter filed by it in Cr. O.P. No. 19154/2010 that there was no review of the approval granted to the Petitioner. More significantly, the Medical Council of India by letter dated 24.12.2012 appoints Dr. M.C.R. Vyas (A6), Dr. Dhananjay and Dr. P. Dileepan to carry out the inspection of the Petitioner''s Institute for the purpose of renewal of permission for admission of 3rd batch of M.B.B.S. students for the academic year 2008-2009. For the academic year 2009-2010, Dr. K. Ravi and Dr. Yamini Trivedi along with A6 Dr. M.C.R. Vyas have been appointed as Inspectors and Dr. K. Ravi and Dr. Yamini are neither shown as witness nor arrayed as an accused. In fact, all the three jointly conducted the inspection and the report thereon is signed by all those three inspectors. Like wise for the academic year 2010-2011, Dr. Agarwal (A8), Dr. Kirti Debey and Dr. Shilpa Rao, have jointly conducted inspection of the Petitioner''s Institute, but however, except Dr. Agarwal, the other two Doctors who jointly carried out the inspection are neither shown as witness nor as an accused.
35. Mr. Abdukumar Rajarathinam, the learned counsel appearing for some of the Petitioners, contended that the Respondent/CBI had charge sheeted the accused persons in a pick and choose manner. The learned counsel pointed out to the inspection reports jointly submitted by the Inspectors for the academic period in question, i.e. for 2008-2009, 2009-2010 and that the other Inspectors were not made as accused though they had inspected the College jointly and further pointed out that they had also signed the report. I see every force in the contention made by the learned counsel.
36. As per Section 17 of the India Medical Council Act 1956, the Committee shall appoint such member of medical Inspectors for inspecting any medical Institution. As per Regulations 2(e), 59(3), 59(5), 59(6)(a)(i), 59(6)(b)(ii), 59(7) and 59(11) of the Medical Council of India Regulations 2000, not less than three Inspectors should be appointed by the Executive Committee for inspection of medical Colleges and after joint inspection, their report shall be sent to the Executive Committee for its consideration and reporting to the Council. Further, after approval by the Council, the report sent by the Inspectors shall be forwarded to the Central Government for its action. Therefore, inspection of a Medical College is conducted by three Inspectors and their joint report is sent to the Medical Council and thereafter to Central Government for consideration of approval/renewal of Medical College. In the instant case, admittedly, Dr. Dhananjay and Dr. P. Dileepan (who jointly inspected with A6 Dr. M.C.R. Vyas) for academic year 2008-2009 and Dr. K. Ravi and Dr. Yamini Trivedi (who jointly inspected with A6) for academic year 2009-2010 were not made as accused, although admittedly they jointly carried out the inspection and signed the inspection report. Similarly, Dr. Kirti Dubey and Dr. Shilpa Rao (who jointly inspected with A8 Dr. Agarwal) were not made as accused. It is highly inconceivable without their knowledge A6 and A8 would have hatched conspiracy. It is important to note that those Doctors who have accompanied A6 and A8 during their respective inspection were not even enquired into and cited as a witness in this case which clearly suggest biased investigation done by the investigating agency. At this juncture, it becomes necessary to refer to the statement of L.W. 139 Dr. Amulya Navin Chandra Setalvad, the then Secretary, MCI, which would clearly indicate that only those Doctors who accompanied A6 and A8 during inspection were entrusted with the work of verifying the declaration forms (which according to the Prosecution is forged one) and they were responsible for any omission committed in that regard. For better appreciation, the relevant portion in her further statement recorded on 7.4.2011 is extracted below:
"As seen from the declaration forms. Dr. Kirti Dubey and Dr. Shilpa Rao have been entrusted with the work of verifying the declaration forms. While conducting inspection, Dr. Kirti Dubey and Dr. Shilpa Rao failed to verify the bona fideness of the faculty members available/present in the Medical College and also failed to verify/check whether the signatures of the faculty members of the Medical College in the declaration forms are identical and genuine. It is mandatory as per the prevalent norms of the Medical College of India that these Inspectors should obtain the signatures of the faculty members in their presence, either in the Attendance sheet or in the declaration form at the time of inspection, to verify the same with the signatures of the said faculty already seen in the declaration forms, received at the MCI earlier. In the instant case, though they have obtained the signatures of the faculty members in the Attendance Sheets dated 28.1.2010 as well as in the declaration forms, they failed to verify the signatures obtained in their presence with the signatures of the faculty members already available in the declaration forms. It is a gross misconduct committed by these MCI Inspectors by their negligence. Dr. S.B. Agarwal the whole time Inspector of MCI who was leading the inspection team should have ensured the same as he has more say being the leader of the inspection team, which he has failed miserably."
It is strange that the other Doctors who have conducted joint inspection and had signed the Report jointly were not even enquired into and cited as a witness. The Investigating Officer having found that there is a joint report by all the three Inspectors should have at least made an effort at investigating the cause and the circumstances resulting in the joint report and further whether they had any positive role. Not only the Investigating Officer did not do so, he did not even make an attempt at recording the statement of the Doctors. When there is soft pedaling in the investigation in respect of the Doctors who were similarly placed throws doubt on the impartiality of the investigating agency.
37. Another serious lapse on the part of the Investigating Officer is that as per the charge sheet, it is alleged that A7 Dr. M. Rajagopal was functioning as Dean from July 2005 till 31.12.2007 and he was said to be present during the inspection conducted by A6 Dr. M.C.R. Vyas on 26.12.2007 and on 27.12.2007. The fact remains that A7 Dr. M. Rajagopal (Petitioner in Cr. O.P. No. 12756/2014) attained superannuation on 10.12.2007 itself. Even according to the Prosecution, A7 committed the criminal acts as Dean of the Medical College for the Medical Council of India inspection conducted on 26th and 27th December 2007. On a perusal of the inspection report filed as Document No. 8, in the charge sheet, it is very clear that Dr. Manickavasagam was the person who was the Dean and the inspection was conducted only in his presence. But, he was not arrayed as an accused. The aforesaid instances would clearly show that there is no fair and impartial investigation.
38. In
39. The investigation into a criminal offence must be free from objectionable features or infirmities or otherwise it may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the Investigating Officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The Investigating Officer is not to bolster up a prosecution case with such evidence as may enable the court to record conviction but to bring out the real unvarnished truth. (Vide R.P. Kapur v. State of Punjab (supra);
40. In
"57. Investigation is a delicate painstaking and dexterous process. Ethical conduct is absolutely essential for investigative professionalism ..... Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the Investigating Officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court.
59..... Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power.
60..... The word personal liberty'' (under Article 21 of the Constitution) is of the widest amplitude covering variety of rights which goes to constitute personal liberty of a citizen. Its deprivation shall be only as per procedure prescribed in the Code and the Evidence Act conformable to the mandate of the Supreme Law, the Constitution. The investigator must be alive to the mandate of Article 21 and is not empowered to trample upon the personal liberty arbitrarily.
61..... An Investigating Officer who is not sensitive to the constitutional mandates may be prone to trample upon the personal liberty of a person when he is actuated by mala fides."
41. In
"17. The above discussion was made for emphasising the need for official investigation to be totally extricated from any extraneous influence..... All complaints shall be investigated with equal alacrity and with equal fairness irrespective of the financial capacity of the person lodging the complaint.
18.....A vitiated investigation is the precursor for miscarriage of criminal justice."
(emphasis added)
42. In
43. In
"197. ......The criminal justice administration system in India places human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance with the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India....
In the above state of affairs, I should also indicate that the noted contents of the First Information Report are totally contrary to the charge sheet. As per the First Information Report, Dr. Ketan Desai, the Chairman of MCI along with other unknown Officers/Officials of MCI and Others entered into conspiracy during January-February 2010 with the College and recommended renewal of permission to the College for the academic year 2010-2011 even though Dr. S.B. Agarwal, Inspector, MCI had pointed out lot of deficiencies in his inspection report against the college. Whereas the Respondent while laying charge sheet exonerated Dr. Ketan Desai from all charges and arrayed Dr. S.B. Agarwal as accused in the above case. In the charge sheet, the Respondent has stated that the investigation could not establish the criminal involvement of Dr. Ketan Desai and therefore, he has been discharged from all the charges. The discharge of Dr. Ketan Desai who had been arrayed as 1st accused in the First Information Report and arraying Dr. S.B. Agarwal (who as per the averment made in the First Information Report as a diligent officer) as accused in the charge sheet would only support the doubt entertained by this court.
44. The First Information Report was registered based on the reliable source information received by the Respondent/CBI Office. The Delhi Special Police Establishment Act 1946 (herein after referred to as the DSPE Act) is a special Statute. By reason of the said enactment, the CBI was constituted. My attention has been drawn to the provisions of the CBI Manual, from a perusal whereof, it appears that guidelines and procedures have been enumerated. If source information is received against an officer of high rank, even for verification of source information the Respondent/CBI has to get approval from the Competent Authority (in this case Director of CBI) and after such approval by Competent Authority, the verification officer shall submit his detailed report to the Competent Authority for obtaining orders. Then, after due application of mind, the Competent Authority shall pass orders for preliminary enquiry. The preliminary enquiry may either result in registration of regular case or in departmental action or refer to the concerned Department through a self contain note for such action. For registration of regular case in cases of officer of high rank, orders should be obtained from the Competent Authority. Chapter 8 of CBI Manual clearly states about the above said procedures to be followed.
45. Mr. Abdukumar Rajarathinam, the learned counsel for the Petitioners vehemently argued that the Respondent/CBI blatantly violated the mandatory provisions and pointed out that as per the mandatory provisions under Section 6A of the Delhi Special Establishment Act (herein referred to as DSPE Act), the CBI is not entitled to conduct any inquiry or investigation into the source information allegedly received by him or by his office, if the same pertains to prescribed officers described in Section 6A(1)(a)(b) of the Act. He contended that without obtaining approval from the Central Government, the Respondent/CBI had registered the First Information Report in R.C.MAI/2010A/0024 dated 21.5.2010 against Dr. Ketan Desai, who was the Chairman/President of Medical Council of India and on perusal of the First Information Report or the charge sheet laid down by the Respondent/CBI Police, there is no reasons or explanation adduced by the Respondent/CBI as to non compliance of mandatory provisions of Section 6A of the DSPE Act.
46. To counter the said argument, the Investigating Officer filed an affidavit stating that D. Ketan Desai was only elected by the members of the Council amongst themselves and not appointed by the Central Government like Joint Secretary and other Government appointees. It is, further stated that by the time this case was registered i.e. on 21.5.2010, Dr. Ketan Desai ceased to be the President of Medical Council of India, following his arrest on 22.4.2010 and consequent dissolvement of Medical Council of India on 15.5.2010 by the President of India.
47. In the light of the submissions made by both the parties, I am constrained now to consider whether there is any violation of mandatory provisions of the DSPE Act by virtue of which CBI is constituted by a notification under Section 3 of the DSPE Act. Section 6A of the DSPE Act reads as under:
"6A Approval of Central Government to conduct any enquiry or investigation: (1) The Delhi Special Police Establishment shall not conduct any enquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1998) except with the previous approval of the Central Government where such allegation relates to:
(a) the employees of the Central Government of the level Joint Secretary and above; and
(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Government.
(2) Notwithstanding anything contained in sub section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the explanation to Section 7 of the Prevention of Corruption Act, 1988 (49 of 1988)".
48. Section 6A(1)(b) says that Delhi Police Establishment cannot conduct inquiry or investigation, except with the previous approval of the Central Government where allegations relates to such officer as are appointed by the Central Government in Corporations established by or under any Central Government, Government Companies, Societies and local authorities owned or controlled by the Government. Admittedly, the source information disclosed serious allegations against Dr. Ketan Desai, which is the foundation of the present case. The Medical Council of India is constituted by the Central Government and as per Section 3A of the Medical Council of India Act, the Central Government has got powers to supersede the Council by constituting a Board of Governors. As per Section 6 of the Medical Council of India Act, the Council constituted under Section 3 of the Act shall be a body corporate by the name of the Medical Council of India. As per Section 6A of the DSPE Act, the CBI being constituted under DSPE Act is not entitled to conduct any enquiry or investigation into the source information received by CBI pertaining to Dr. Ketan Desai who was the Chairman/President of Medical Council of India. Admittedly, no previous approval of the Central Government has been obtained in this case before proceeding to conduct inquiry or investigation into the source information received by CBI. Therefore, the investigation done by the Respondent/CBI is in violation of the mandatory provisions of the DSPE Act. I will not delve on this point any further, as the matter is referred to a larger Bench in the case of
49. Mr. R. Thiagarajan, the learned senior counsel appearing for some of the Petitioners strenuously contended inter alia reiterating the arguments advanced by other learned counsel appearing for the Petitioners that even the provisions of the CBI Manual have not been followed in the present case. The learned senior counsel pointed out that as per the Chapter 6 of the CBI Manual, the Director of CBI should be informed of all important matters and his advice/instructions should be obtained wherever it is necessary. He would submit that if there is any source information by CBI or its office with regard to persons described in paragraph 6.2.1 (c) then the source information has to be immediately referred to the Director, CBI and the CBI Directors after due application of his mind shall take decision as to whether there is any basis for further verification of the referred source of information. The learned senior counsel also referred to Chapter 8 of the CBI Manual which deals with the complaints and source information and submitted that no complaint shall be initiated for verification, unless the same is approved by the Competent Authority. He also referred to the other provisions of the CBI Manual and submitted that the Respondent/CBI has registered First Information Report in violation of paragraph 8.27, 8.28, 8.29 and 8.33 of Chapter 8 of the CBI Manual which has caused serious prejudice to the accused/Petitioners. According to him, if the Respondent/CBI had followed the above mentioned provisions, the Competent Authority would not have approved for further verification/investigation of the case against the Petitioners.
50. Before going into the merits of the arguments advanced by the learned senior counsel, we have to see whether the provisions of the CBI Manual is mandatory or directory. In determining the said question, the subject matter, the importance of the provision, the relation of that provision to the general object intended to be served by the Act will decide whether the provision is mandatory or directory. The provisions referred to above would use the words ''shall'' and ''must'' and as such it can hardly be directory, since the use of such language is per se indicative of the intent that the provision is mandatory. The effect of non compliance with the rule if could deprive the right of the person, then serious prejudice would be caused to the said person.
51. As pointed out by the learned senior counsel, the CBI have failed to perform their duties and legal obligations inasmuch as they have failed to properly investigate matters involving Dr. Ketan Desai. The facts and circumstances of the present case do indicate that it is of utmost public importance and the CBI entrusted with the duty to discharge their functions and obligations in accordance with law, must do so, bearing in mind constantly the concept of equality enshrined in the Constitution. Investigation, into every accusation made against each and every person, must be conducted on a reasonable basis, irrespective of the position and status of that person, and completed expeditiously.
52. In Vineet Narain v. Union of India (supra), the Honourable Supreme Court held as under:
"The CBI Manual based on statutory provisions of Cr.P.C. provides essential guidelines for the CBI''s functioning. It is imperative that CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions, like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned."
53. In Nirmal Singh Kahlon v. State of Punjab (supra), it is held as follows:
"Lodging of a First Information Report by CBI is governed by a manual. It may hold a preliminary enquiry; it has been given the said power in Chapter VI of the CBI Manual. A prima facie case may be held to have established only on completion of a preliminary enquiry."
54. Following Vineet Narain v. Union of India (supra), the Honourable Supreme Court in
55. The Respondent/CBI during the course of argument filed an affidavit stating that the above case was registered based on the orders of Director of CBI. But, no such order has been filed or even been mentioned in any of the documents filed by the Respondent/CBI before the court till today.
56. It is well settled and laid down in
57. Mr. R. Thiagarajan, the learned senior counsel further urged that the various provisions of the Indian Medical Council Act, 1956 would make it clear that the Regulation framed thereunder have a statutory force and are mandatory in nature providing for every contingency regarding the running of medical Institution. Therefore, he would contend that Act being a complete code by itself, there is no room or jurisdiction in any external agency to investigate into the affairs of any medical Institution coming within the purview of the Medical Council of India. He drew the attention of this court to the various provisions of the Act in that regard.
58. In order to appreciate the submissions of the learned senior counsel, it is necessary to refer to the relevant provisions of Medical Council of India Act.
59. Under Section 10A, it is the Central Government which is the authority empowered either to grant or refuse to grant for starting any Medical College or for any increase in the intake. The Medical Council constituted under Section 3 of the Medical Council of India Act is the recommendatory body recommending to the Central Government for the approval or dis-approval of the permission required for starting and running the medical Institution. Section 19 of the Act provides for withdrawal of recommendation when the staff, equipments, accommodation, training and other facilities for instructions and training provided in any University or Medical Institution appears to the Central Government that they do not satisfy the standards prescribed by the Council. This power of Central Government is exercised on the recommendation made to it by the Medical Council.
60. A particular reference may be made to Section 30 of the Act which reads as follows:
"Section 30: Commission of Inquiry: (1) Whenever it is made to appear to the Central Government that the Council is not complying with any of the provisions of this Act the Central Government may refer the particulars of the complaint to a commission of inquiry consisting of three persons, two of whom shall be appointed by the Central Government, one being a Judge of a High Court and one by the Council, and such Commission shall proceed to inquire in a summary manner and to report to the Central Government as to the truth of the matters charges in the complaint and in case of any charge of default or of improper action being found by the commission to have been established, the Commission shall recommend the remedies if any which are in its opinion necessary.
(2). The Central Government may require the Council to adopt the remedies so recommended within such time as, having regard to the report of the Commission, it may think fit, and if the Council fails to comply with any such requirement, the Central Government may amend the regulations of the Council or make such provision or order to take such other steps as may seem necessary to give effect to the recommendations of the Commission.
(3) A Commission of inquiry shall have power to administer oaths, to enforce the attendance of witnesses and the production of documents, and shall have also such other necessary powers for the purpose of any inquiry conducted by it as are exercised by a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908)."
61. The above said provision makes it clear that in the event of the Council not complying with any of the provisions of the Act (including inspection by a team of its Inspectors) then the Central Government may refer the matter to the Commission of Inquiry consisting of three persons of whom one shall be a Judge of the High Court. The Commission shall proceed to inquire in a summary manner and to report to the Central Government and also recommend remedies for the lapses. On such report, the Central Government is empowered to take appropriate action since the inspection of the Medical Institution and its running are matters within the purview and jurisdiction of the Medical Council of India, its recommendations to the Central Government will have its effect. It is the Central Government which is the ultimate authority to initiate action for any lapses on the part of the Council arising out of the inspection of the Institutions through its agency viz. the Inspector.
62. On examination of the relevant provisions of the Medical Council of India Act, it is clear that the Act is a complete code by itself and it provides for rectifying the irregularities and complying with the requirements needed for running the Medical Institution to maintain the standard of education prescribed by the Indian Medical Council. The Indian Medical Council Act and the Regulations framed thereunder have a statutory force and are mandatory.
63. A Constitution Bench of the Honourable Supreme Court in Dr. Preeti Srivatsava v. State of MP, AIR 1999 SC 2894 : (1999) 7 SCC 120 : LNIND 1999 SC 665 has concluded as follows:
"57. In the case of Medical Council of India v. State of Karnataka, a Bench of three judges of this court has distinguished the observations made in Nivedita Jain. It has also disagreed that the Medical Council Regulations have a statutory force and are mandatory. The Court was concerned with admissions to the M.B.B.S. course and the regulations framed by the Indian Medical Council relating to admission to M.B.B.S. Course. The court took note of the observations in State of Kerala v. T.P. Roshana, (SCC at p. 580) to the effect that under the Indian Medical Council Act, 1956, the Medical Council of India has been set up an expert body to control the minimum standards of medical education and to regulate their observance. It has implicit power to supervise the qualifications or eligibility standards for admission into medical Institutions. There is, under the Act an overall vigilance by the Medical Council to prevent sub standard entrance qualifications for medical courses. These observances would apply equally to postgraduate medical courses. We are in respectful agreement with this reasoning."
64. The principle of law is settled down by the Honourable Supreme Court and held in
"It is settled Rule of interpretation of statues that when power is given under a statue to do a certain thing in certain way, the thing must be done in that way or not at all."
65. Reference may also be made to the relevant portions from the Establishment of Medical College Regulations, 1999 (Amended upto September 2011). Clause 8(3) of the said Regulation deals with the grant of permission for establishment of a new Medical College which is given below:
"8(3)(1) The permission to establish a Medical College and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Council of India for purpose of renewal six months prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical College and expansion of the hospital facilities are completed and a formal recognition of the Medical College is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled.
The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.
Provided that in respect of
(a) Colleges in the stage upto II renewal (i.e. Admission of third batch):
If it is observed during any regular inspection of the Institute that the deficiency of teaching faculty and/or residents is more than 30% and/or bed occupancy is <60% such an Institute will not be considered for renewal of permission in that academic year.
(d) Colleges which are found to have employed teachers with faked/forged documents:
If it is observed that any Institute is found to have employed a teacher with faked/forged documents and have submitted the declaration form of such a teacher, such an Institute will not be considered for renewal of permission/recognition forward of M.B.B.S. Degree/processing the applications for postgraduate courses for two academic-years i.e. That academic year and the next academic year also.
However, the office of the Council shall ensure that such inspections are not carried out at least 3 days before upto 3 days after important religious and festival holidays declared by the Central/State Government.
(4) Failure to seek timely renewal of recognition as required in sub clause (a) supra shall invariably result in stoppage of admissions to the concerned Undergraduate Course of M.B.B.S. at the said Institute."
66. Thus, it is clear that Medical Council of India is a body which has its own code of conduct to be followed while granting approval or recommending for renewal. The shortfall in faculties and submissions of fake/forged documents would only disentitle the Institution from getting renewal of permission. Also, the errant medical Doctors would be dealt with accordingly by the Medical Council, whereby the names of defaulters can be removed from the State Medical Register, thus debarring them from engaging themselves in the profession. Also, the Medical Council of India Act provides for withdrawal of recognition granted to such College as per Section 19 of the Act. Nowhere it is stated either in Medical Council of India Act or the regulations that such violation would result in penal consequences. The contravention of Rules and Regulations may be an offence against the statute but is not a crime. It is pertinent to point that no complaint is preferred by Medical Council of India. Therefore, there is considerable force in the submission made by the learned counsel for the Petitioners that there is no room or jurisdiction in any external agency to investigate into the affairs of any medical Institution coming within the purview of the Medical Council of India.
67. At this juncture, it is relevant to mention that the preliminary reports in respect of Teerthankar Mahaveer Medical College, Moradabad and Muzaffarnazar Medical College, Musaffar Nazar would show that those Medical College management placed false information/false documents and fraudulent information before the inspection team to obtain approval, however, the CBI advised Medical Council of India to take appropriate action against the said College as per the norms. So it is evident that the Respondent/CBI has violated Article 14 of the Constitution of India and acted discriminately against the Petitioners.
68. The learned counsel for the Petitioners argued that there is no legal evidence which is manifestly and clearly consistent with the accusation made against the Petitioners. They contended that in the interest of justice and in order to avoid unnecessary harassment to the accused, this court should examine the material on record to decide whether the said evidence can be considered as a legal evidence. The learned counsel took me through the relevant material and also referred to the statements and conduct of the parties for obtaining renewal permission. It is alleged that A2 and A7 who are Dean of the College alleged to have attested the same as genuine and with regard to A5, the General Manager of the College, it is alleged that he fabricated form 16 and failed to remit professional tax to the local body of Pondicherry for the Staff of the Medical College from the inception of the Medical College. For proving forgery various disputed signatures of faculties/doctors along with the specimen signatures and handwritings of the Petitioners were sent for expert opinion.
69. However, except A3, Dr. Vaithialingam, neither the specimen signatures nor the specimen writings of the Petitioners tallied with the forged signatures of the Faculties/Doctors. Therefore, there is no material evidence against the Petitioners to connect them with the alleged forged documents in the above case. With regard to Dr. A. Vaithialingam his specimen handwriting obtained by the Respondent/CBI was similar with that one forged signature of Dr. Varadharajan which is marked as Q. 384. It appears that inasmuch as 505 questioned documents and 545 specimen documents were subjected to forensic expert opinion, as per the forensic science laboratory report only one questioned document marked as Q. 384 was found similar with that of specimen signature of A3 Dr. A. Vaithialingam.
70. Section 311A has been inserted and come into force with effect from 23.6.2006 which provides for investigation of the case and powers of the Magistrate to issue directions to any person including an accused person to give specimen signatures and writings pursuant to the pronouncement of the Honourable Supreme Court in
"43. The learned counsel for the Appellant would contend that the specimen signature from the accused and witnesses were not taken as per Section 311A of Cr.P.C. wherein it has specifically been provided that the specimen signature and handwriting of the accused shall be taken before the Judicial Magistrate. But in this case there is absolutely no evidence on record to show that the specimen signatures of the accused under Ex. P84 were taken in the presence of a Magistrate. Hence, the learned counsel for the Appellant would contend that no reliance can be placed on Ex. P85 opinion or on Ex. P86 report of the Expert to sustain the conviction and sentence awarded by the learned trial judge. Section 311A of Cr.P.C., 1973 runs as follows:
If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwritings he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwritings; provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceedings."
44. The learned counsel for the Appellant relying on a judgment of this court in 1993 (Vol. XXXVII) MLJ Reports-Criminal-98 (T.S. Antony v. State of Tamil Nadu by Public Prosecutor, High Court, Madras) would contend that the comparison of the admitted signatures of the accused in Ex. P84 with that of the disputed signatures contained in Q1 to A46 by Expert P.W. 30 cannot worth credence because the signatures obtained from the accused under Ex. P84 were not taken before the Judicial Magistrate as contemplated under Section 311A of Cr.P.C. which procedure has been deprecated by this court in the above said ratio. The relevant observation in the above said ratio for the purpose of this case runs as follows:
"The learned Public Prosecutor also agrees that from a perusal of the records of the Trial Court P.W. 5 was not recalled and cross examined by accused 2 and 3. The reason for not cross examining P.W. 5 is not know. In the circumstances, the conclusion arrived at by the court below, cannot be upheld. Further, the Police also have not obtained the specimen signatures of P.W. 5 in the presence of the Presiding Officer. Therefore, Ex. P27 also cannot be accepted since the specimen signatures of P.W. 5 were said to have been obtained by the police not in the presence of the Presiding Officer. This sort of practice has to be avoided in future since if the Prosecution wants to help the accused, there is possibility of taking the specimen signature or thumb impression of somebody else instead of the accused (or) complainant or relevant witness and get the opinion on the same and produce before the Trial Court and defeat the ends of justice. Therefore, it becomes necessary that the Prosecution obtains the specimen signature of thumb impression of a witness (or) accused (or) complainant for comparison with the admitted signature in the presence of the presiding Officer in order to avoid any suspicion that the specimen signature or the thumb impression of the witness or accused (or) complainant was not obtained in the Police Station or in jail and the Prosecution, as stated earlier should obtain the specimen signatures or thumb impressions in the presence of the Presiding Officer of a Court. Then only the opinion based on the specimen signature or thumb impression can be treated as evidence for the purpose of the case. Otherwise, the very opinion itself became suspicious and cannot be looked into as a piece of evidence."
Therefore, with regard to A3 Vaithilingam, the Respondent/CBI is said to have obtained his specimen signature signed as other Doctors (i.e. Dr. A. Vaithilingam is asked to sign continuously in 3 to 4 pages similar to that of the alleged forged signatures of the other Doctors) which is evident from the list of document No. 239 and 253 filed along with the charge sheet. The attempt of the Respondent/CBI in obtaining specimen signature of Dr. A. Vaithilingam as stated above is illegal and the same can never be looked into as a material record for the reason that if a prudent man is asked to sign an alleged forged signature continuously running into 3 to 4 pages, at one point of time his signature would appear similar to that of the alleged forged signature. Apart from Dr. A. Vaithilingam, the Respondent/CBI had applied the same method to all the other accused persons, but none of the specimen handwriting of the Petitioners/accused signed similar to that of the alleged forged signatures of other Doctors were found similar.
71. In respect of the allegations of attestation of declaration forms by A2, A7 and preparation of form 16 by A5, the same would not attract an offence of forgery. The Honourable Supreme Court in
"9. Let us first consider whether the complaint averments even assuming to be true make out the ingredients of the offences punishable either under section 467 or section 471 of Penal Code.
10. Section 467 (in so far as it is relevant to this case) provides that whoever forges a document which purports to be a valuable security, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Section 471, relevant to our purpose, provides that whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.
11. Section 470 defines a forged document as a false document made by forgery. The term "forgery" used in these two sections is defined in section 463. Whoever makes any false documents with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into express or implied contract, or with intent to commit fraud or that the fraud may be 6 committed, commits forgery.
12. Section 464 defining "making a false document" is extracted below:
"464. Making a false document.--A person is said to make a false document or false electronic record--
First.--Who dishonestly or fraudulently -
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record:
(c) affixes any digital signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or
Secondly.--Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or
Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
Explanation 1-A man''s signature of his own name may amount to forgery.
Explanation 2-The making of a false document in the name of a fictitious person, intending it to be believed that the document was made by a real person, or in the name of a deceased person, intending it to be believed that the document was made by the person in his lifetime, may amount to forgery.
(Note: The words digital signature'' wherever it occurs were substituted by the words electronic signature'' by Amendment Act 10 of 2009)."
13. The condition precedent for an offence under sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.
14. An analysis of section 464 of Penal Code shows that it divides false documents into three categories:
(1) The first is where a person dishonestly or fraudulently makes or executes a document with the intention of causing it to be believed that such document was made or executed by some other person, or by the authority of some other person, by whom or by whose authority he knows it was not made or executed.
(2) The second is where a person dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part, without lawful authority, after it has been made or executed by either himself or any other person.
(3) The third is where a person dishonestly or fraudulently causes any person to sign, execute or alter a document knowing that such person could not by reason of (a) unsoundness of mind; or (b) intoxication; or (c) deception practised upon him, know the contents of the document or the nature of the alteration.
In short, a person is said to have made a false document'', if (i) he made or executed a document claiming to be someone else or authorised by someone else; or (ii) he altered or tampered a document; or (iii) he obtained a document by practicing deception, or from a person not in control of his senses.
15. The sale deeds executed by first appellant, clearly and obviously do not fall under the second and third categories of ''false documents''. It therefore remains to be seen whether the claim of the complainant that the execution of sale deeds by the first accused, who was in no way connected with the land, amounted to committing forgery of the documents with the intention of taking possession of complainant''s land (and that accused 2 to 5 as the purchaser, witness, scribe and stamp vendor colluded with first accused in execution and registration of the said sale deeds) would bring the case under the first category.
16. There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner''s behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of false documents'', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither section 467 nor section 471 of the Code are attracted.
23. When we say that execution of a sale deed by a person, purporting to convey a property which is not his, as his property, is not making a false document and therefore not forgery, we should not be understood as holding that such an act can never be a criminal offence. If a person sells a property knowing that it does not belong to him, and thereby defrauds the person who purchased the property, the person defrauded, that is the purchaser, may complain that the vendor committed the fraudulent act of cheating. But a third party who is not the purchaser under the deed may not be able to make such complaint.
24. The term ''fraud'' is not defined in the Code. The dictionary definition of ''fraud'' is "deliberate deception, treachery or cheating intended to gain advantage". Section 17 of the Contract Act, 1872 defines ''fraud'' with reference to a party to a contract.
25. In
"The expression "defraud" involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."
The above definition was in essence reiterated in
26. The Penal Code however defines ''fraudulently'', an adjective form of the word ''fraud'', in section 25, as follows:
"25. A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise".
27. The term "fraudulently" is mostly used with the term "dishonestly" which is defined in section 24 as follows:
"24. ''Dishonestly''- Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly".
28. To ''defraud'' or do something fraudulently is not by itself made an offence under the Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly) are made offences. These include:
(i) Fraudulent removal or concealment of property (sec. 206, 421, 424)
(ii) Fraudulent claim to property to prevent seizure (sec. 207).
(iii) Fraudulent suffering or obtaining a decree (sec. 208 and 210)
(iv) Fraudulent possession/delivery of counterfeit coin (sec. 239, 240, 242 and 243).
(v) Fraudulent alteration/diminishing weight of coin (sec. 246 to 253)
(vi) Fraudulent acts relating to stamps (sec. 261-261)
(vii) Fraudulent use of false instruments/weight/measure (sec. 264 to 266)
(viii) Cheating (sec. 415 to 420)
(ix) Fraudulent prevention of debt being available to creditors (sec. 422).
(x) Fraudulent execution of deed of transfer containing false statement of consideration (sec. 423).
(xi) Forgery making or executing a false document (sec. 463 to 471 and 474)
(xii) Fraudulent cancellation/destruction of valuable security etc.(sec. 477)
(xiii) Fraudulently going through marriage ceremony (sec. 496).
It follows therefore that by merely alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law.
72. That apart, it is pertinent to mention that no specific allegation is made in the charge sheet as to which accused created or signed the alleged forged documents in the above case. By applying the dictum laid down by the Honourable Supreme Court, I am of the clear view that there is no legal evidence against the Petitioners to prove the offence of forgery. In so far as A5 General Manager is concerned, all the TDS deducted for the salaries received by the Faculties/Doctors were paid to the Income Tax Department and the same is filed as document No. 282 in the charge sheet. In such circumstances, non payment of professional tax to the local body of Pondicherry for the Staff of the Medical College from the inception of the Medical College would not constitute an offence as alleged by the Respondent/CBI.
73. In view of the discussions and reasons stated above, I am of the considered view that there is no legal evidence against the Petitioners to prove the charges levelled by the Prosecution and therefore, the impugned proceedings are liable to be quashed. In the result, these Criminal Original Petitions are allowed.
