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2009 DIGILAW 220 (BOM)

Gopal Ramsa Nagate v. State of Maharashtra

2009-02-16

S.S.SHINDE

body2009
Judgment : This application is filed for quashing the proceedings including F.I.R. in Crime No.3056 of 1998 registered against the applicant for offences under section 6 and 8 of the Maharashtra Prevention of Malpractices at University, Board and Other Specified Examinations Act, 1982 with Shivajinagar Police Station, Latur. 2. Brief facts as disclosed in the application are as under:- The Crime No. 3056/1998 came to be registered against the present petitioner at Shivaji Nagar Police Station, Latur. It is the case of the applicant that he is implicated in a false case out of a personal rivalry and enmity by the lecturers who were in inimical terms with him. 3. It is further stated that one Shri. Prashant Kamlakar Govindpurkar, resident of Salewadi, Taluka and District Latur, is active politician and President of Chhatra Bharati -student’s organization of Janta Dal Party, lodged a complaint against the applicant and others, stating that the applicant had demanded Rs.2500/- so as to increase the marks in the practical examination of first year M.B.B.S. course on 14.12.2008. 4. According to the complainant, the Circle Police Inspector Shri. Ramesh Kanthewar obtained the signature of the complainant on currency notes of Rs.500/- as well as of Rs.100/- and went to the Panchavati Hotel at about 21.35 hrs. where the applicant and other two examiners were put up. The police found that the appliant and two other examiners were present, police knocked the door of room No. 102 and entered in the said room. As soon as door was opened, the police found that one lady and two men were sitting in the room. On inquiry with other colleague of the present applicant, he told his name to police as Dr. Haridas Chimane, R/o. Nanded and name of another person was disclosed as Gopal Ramsa Nagate, who is present applicant. The police disclosed their intention to the applicant and another examiner that they have received the complaint and they want to take search of person of applicant. As a result of search, the police recovered 3 currency notes of Rs.500/- each from the pocket of Dr. Chimane and one currency note of Rs.500/- and 5 currency notes of Rs.100/- each from the pocket of the applicant. It is the case of the applicant that the police seized the documents for the purpose of investigation and drawn the panchanama. Chimane and one currency note of Rs.500/- and 5 currency notes of Rs.100/- each from the pocket of the applicant. It is the case of the applicant that the police seized the documents for the purpose of investigation and drawn the panchanama. It is mentioned in the First Information Report that the scathing search of the room not revealed any evidence. It is the case of the applicant that the complainant Prashant Govindpurkar was neither a student nor an examiner, but he is a politician. The complaint filed by complaint did not disclose the name of student who had approached the applicant. The complaint further does not disclose as to how the applicant and Dr. Chimane knew the said student and that the complainant Shri.Prashant Govindpurkar was his friend. The complaint does not disclose that the complainant Govindpurkar had approached the applicant and Dr. Chimane along with his friend and was seeking a favour from them so as to increase the marks in the practical examinations of first year M.B.B.S. Course. 5. The applicant was examiner for the practical examination of first year M.B.B.S. course in the subject of physiology scheduled to be held at Latur on 11th to 15th December, 1998. It is the case of the applicant that the practical examinations in the subject of physiology were already over, except the last batch of 17 students scheduled to be held on 15.12.1998. 6. According to the applicant, there is no mention in the complaint that as to who has demanded amount of Rs.2500/- and who accepted the said amount. It is further case of the applicant that alleged notes are not recovered from the applicant, however, it is falsely stated in the complaint that the amount of Rs.1000/- was recovered from the person of applicant. According to the applicant, only allegation in the complaint is that an amount of Rs.2500/-was accepted by the applicant and Dr. Chimane for increasing marks in the practical examinations of first year M.B.B.S. course. The applicant states that the Act aims prevention of malpractices in examinations, the intention of the legislature appears to curb the copying or using any unfair means at the examination conducted by the Board, University and other specified authorities. 7. It is the case of the applicant that the allegations in the complaint are imaginary and not true. The allegations in the complaint do not attract penal provisions. 8. 7. It is the case of the applicant that the allegations in the complaint are imaginary and not true. The allegations in the complaint do not attract penal provisions. 8. It is the case of the applicant that no one including the examiners of the practical examination, supervisor or the expert who conducts the draw knows well in advance the name of the experiment which would be allotted to a particular student. Therefore, it is the case of the applicant that the question of supplying or publishing any question paper before the examination does not arise. 9. The applicant further states that all the students know the names of the experiment which are 25 in number, however, no one knows the name of the experiment out of 25 experiments which one would be allotted to a particular student any time before drawing the lots. 10. According to the applicant, the First Information Report does not disclose the issuance of ingredients of the offence alleged against him. 11. The learned counsel appearing for the applicant submitted that the allegations in the complaint, in the F.I.R. are totally false. There is total non application of mind by the police, who registered the said crime. He further submitted that the F.I.R. does not disclose even the bare ingredients of the offence alleged against the applicant. It is further submitted that the complainant has nothing to do with the practical examinations, who belongs to a political organization and therefore, the complaint was not maintainable. It is further submitted that the complaint does not disclose the name of the student whose marks alleged to have been increased. The complaint does not disclose whether a practical examination of the student was already over or yet to be taken place. The complaint does not disclose that whether the marks of such students were tampered or increased. According to the learned counsel the allegations in the complaint did not make out any offence either under the Act of 1982 or under the I.P.C. The learned counsel further submits that the applicant would be unnecessarily required to undergo the ordeal of harassment and agony until the conclusion of the trial in respect of the allegations which exfacie do not constitute any of the offences alleged against him and therefore, he submits that the present application may be allowed. 12. 12. It is further submitted that the Government has refused to grant sanction for prosecuting the present applicant, the Government has issued order to that effect on 13th October, 1999. It is further submitted that the notes of a particular description are not stated to be found. The room No. 102 in which search was taken place, was in the name of another lady lecturer and not in the room of present applicant. The complaint is registered only under the Act of 1982 and not under the I.P.C. However, the chargesheet is filed under the I.P.C. According to the learned counsel, if there is no sanction to prosecute the present applicant, there is no question of further proceedings over the said Act or under the I.P.C. The learned counsel would further submit that in proceeding arising out of the said complaint, either under the said Act of 1982 or I.P.C., should be quashed. 13. The learned A.P.P. invited my attention to the written instructions received from the concerned police station and submitted that though there is order by the Government of Maharashtra, not to prosecute the applicant under section 6, 7 and 8 of the Prevention of Malpractices at University, Board and Other Specified Examinations Act, 1982, still the State can prosecute the applicant under sections 418, 463, 464, 468, 471, 474 r/w. 34 of I.P.C. It is further submitted that already chargesheet is filed under other sections of I.P.C. and therefore, this Court may not entertain this application. 14. I have heard the learned counsel appearing for the applicant and learned A.P.P. for the State. Perused the contents of the application, annexure thereof and I am of the considered view that the present application deserves to be allowed. 15. The perusal of the complaint shows that one Mr. Prashant Govindpurkar has filed the complaint. There are general allegations in the said complaint that the examiners who came in medical college Latur namely Dr. Chimane, Dr. Nagate have demanded money for increasing the marks of the students in practical examination of first year M.B.B.S. course. It is further stated in the complaint that the complainant met Dr. Chimane and Dr. Nagate on 14.12.1998 near Panchawati Hotel and they demanded Rs.2500/- to increase the marks of the friend of the complainant. The careful perusal of the complaint would not show the name of the friend of the complainant. It is further stated in the complaint that the complainant met Dr. Chimane and Dr. Nagate on 14.12.1998 near Panchawati Hotel and they demanded Rs.2500/- to increase the marks of the friend of the complainant. The careful perusal of the complaint would not show the name of the friend of the complainant. The careful perusal of the complaint would show that the complainant was sent in Room No. 102 to hand over the amount as demanded by the present applicant and Dr. Chimane, accordingly, the complainant went to room No. 102 and knocked the door, as soon as same was opened by the present applicant, door was closed from inside. After 3 to 4 minutes, the complainant called the police persons and panch and they went inside the room No. 102. There they saw that one woman and two men were sitting. The lady was sitting in chair which was kept in the corner of the said room. The other two persons were sitting on the cot. The complainant by signaling the police party told that the amount of Rs.2500/-has been received by the applicant and Dr. Chimane. The police party took the search of Dr.Chimane and found that there was one wallet, kept in the right hand side pocket of the shirt. The same was opened. There were 3 currency notes of Rs.500/-. On inquiry with other person, he told his name as Dr. Gopal Ramsa Nagate. Search of his person was taken and on search, one black coloured wallet was found and same was opened by the police party and it is found that there is one currency note of Rs.500/- inside that wallet and there are other 5 currency notes of Rs.100/-. On inquiry with the lady member, she told her name as Dr. Sou. Nalulwar. On inquiry she told that the room of Dr. Chimane and Dr. Nagate is on second floor i.e. room No. 204. Then the police party and complainant along with the present applicant and Dr. Chimane went to room No. 204. They found one briefcase of Alfa company in the said room in which on opening the said suitcase, it was found that clothes are kept inside the suitcase. There was another suitcase in the said room which belongs to Dr. Chimane which was opened and 30 currency notes of Rs.100/-were found in his suitcase. Chimane went to room No. 204. They found one briefcase of Alfa company in the said room in which on opening the said suitcase, it was found that clothes are kept inside the suitcase. There was another suitcase in the said room which belongs to Dr. Chimane which was opened and 30 currency notes of Rs.100/-were found in his suitcase. On minute search of the said room, no any incriminating article was found and accordingly the complaint came to be lodged against the present applicant and Dr. Chimane for violation of sections 6 and 7 of the Act of 1982. 16. The careful reading of the complaint would show that no name of the student is mentioned. Only it is mentioned that one friend of the complainant was asked money by Dr. Chimane and the present applicant. If the contents of the complaint are minutely observed, in my considered view, the alleged trap suffers from many procedural defects. When the present applicant and Dr. Chimane have room No. 204 in their name, it is difficult to understanding why the trap was arranged in the room No. 102 which was booked in the name of Dr. Sou. Nalulwar. The tenor of the complaint itself appears to be very suspicious. There are no specific mentions about many things including to which candidate the present applicant asked money to increase his marks in the practical examination of first year M.B.B.S. course. It is also difficult to understand that how the complainant is concerned with the M.B.B.S. examinations, when he was admittedly not studying in the college and he was not student of the said college. 17. It is not necessary to comment in detail about other aspects of the case since by order dated 13th October, 1999 the Department of Medical Education and Drugs, Government of Maharashtra, has taken a decision not to file criminal complaint against the present applicant, in view of the fact that Law and Judiciary Department of Government of Maharashtra had given opinion that it would not be appropriate to file criminal complaint against the applicant. There was proposal from the Superintendent of Police, Latur, seeking permission/ sanction to file criminal offence against the applicant under section 6, 7 and 8 of the Act of 1982. There was proposal from the Superintendent of Police, Latur, seeking permission/ sanction to file criminal offence against the applicant under section 6, 7 and 8 of the Act of 1982. Therefore, in view of the order dated 13th October, 1999 passed by the Department of Education and Drugs, Government of Maharashtra, it was ordered that the criminal complaint under aforesaid Act of 1982 should not be filed and the concerned Department took decision to restore the service of the present applicant by cancelling the suspension order. 18. In view of the decision of the State Government dated 13th October, 1999, I have no hesitation to allow this application in terms of prayer clause A. Apart from the said order, on perusal of F.I.R., I find that the allegations in the complaint are general in nature. In the result, the application succeeds and allowed in terms of prayer clause A. Accordingly, the proceeding including the First Information Report in Crime No. 3056/1998 registered against the applicant for the offence under section 6 and 8 of the Maharashtra Prevention of Malpractices at University, Board and other Specified Examinations Act, 1982 filed with Shivajinagar Police Station, Latur is quashed and set aside and the application is disposed of. Liberty to applicant to file appropriate application for quashing any other pending proceedings arisen out of Crime No. 3056/98.