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2019 DIGILAW 214 (MP)

Nandlal Gupta v. Union of India

2019-03-08

S.K.SETH, VIJAY KUMAR SHUKLA

body2019
ORDER : 1. The applicant has invoked inherent jurisdiction of this Court under section 482 of the Code of Criminal Procedure, 1973 for quashment of the Final Report/Charge-Sheet No. 38/2018 dated 27-10-2018 filed by Central Bureau of Investigation in the Court of Special Judge for Vyapam Cases at Jabalpur (MP) in Case No. RC-217-2015(S)/0098. 2. The facts adumbrated in nutshell are that the applicant is a Medical Practitioner, who has completed MBBS from GSVM Medical College, Kanpur (UP) and is presently practicing and residing at Chalchitra Road, Tehsil Fatehpur, District Barabanki (UP). The case was initially registered by Garha Police Station, Jabalpur (MP) on 16-11-2013 under FIR No. 898/2013, based on a written complaint given by the then Dean, Netaji Subhash Chandra Bose (NSCB) Medical College, Jabalpur, alleging fraud committed by some of the students, who obtained admission in MBBS Course in Netaji Subhash Chandra Bose Medical College, Jabalpur by deceitful means. The case was initially registered against 26 persons under sections 419 and 420 of Indian Penal Code and sections 3 and 4 of Madhya Pradesh Recognized Examination Act, 1937. Subsequently, vide letter dated 4-12-2013, the then Dean, NSCB Medical College, Jabalpur gave one more complaint to the Garha Police Station, alleging fraud committed by three more candidates. During the course of investigation, names of 31 more persons who are allegedly middlemen/impersonators were added as the accused by the Police/District Crime Branch. In this case, the local Police has filed one charge-sheet on 18-8-2015 against one accused person namely Abhishek Sachan before the Ld. CJM Court, Jabalpur. 3. In compliance to the orders dated 9-7-2015 of Hon’ble Supreme Court of India Writ Petition (Civil) No. 417/2015 titled Digvijay Singh and others vs. State of Madhya Pradesh and others, and also in Writ Petition (Civil) No. 372/2015, this case was taken over by CBI from SIT/DCB, Jabalpur on 18-08- 2015 and was registered as RC 21720150098 under section 120-B read with 417, 419, 420, 467, 468, 471, Indian Penal Code and under section 3 and 4 of the Madhya Pradesh Recognized Examinations Act, 1937 against 60 accused persons. 4. Learned counsel for the applicant assiduously submitted that the applicant has been made an accused in the present case only on suspicion and there is no material against him. He submitted that he is only suspected Impersonator for the accused candidate Manoj Kumar Uikey. 5. 4. Learned counsel for the applicant assiduously submitted that the applicant has been made an accused in the present case only on suspicion and there is no material against him. He submitted that he is only suspected Impersonator for the accused candidate Manoj Kumar Uikey. 5. Learned counsel for the respondent submitted that there is sufficient prima facie material against the applicant which has been filed along with the charge-sheet. He further submitted that the charge has yet to be framed in the trial and at this stage, there cannot be any interference against the charge-sheet. 6. The allegation in brief, as per the FIR is that the accused candidates in connivance with the racketeers, solvers and other unknown persons committed the offences of cheating, cheating by personation, forgery of valuable security, forgery for the purpose of cheating, using forged documents as genuine, criminal conspiracy and use of unfair means in recognized examination and thereby obtained admission in the Netaji Subhas Chandra Bose Medical, College, Jabalpur, for which they were not entitled. 7. Against the present applicant, the investigation revealed that Nand Lal Gupta (A-66) S/o Shri Madan Lal Gupta, student of GSVM Medical College, Kanpur attended the PMT 2008 in the name of Manoj Kumar Uikey (A-2). In this regard the Expert Opinion received from SEQD, Bhopal proves that the specimen handwritings of Nand Lal Gupta are similar to the writings available in the OMR answer-sheet of PMT 2008 in the name of Manoj Kumar Uikey. Moreover the statement of Dr. B.K. Guha also shows that the photograph available on the student details of Vyapam is similar to the photograph of Nand Lal Gupta, which again proves that Nand Lal Gupta attended the PMT 2008 in the name of Manoj Kumar Uikey. Therefore, Nand Lal Gupta committed the offence of impersonation and conspiracy. 8. Along with the charge-sheet, the respondent has filed list of documentary evidence in RC 2172015S0098. In the said list of documents at Serial No. D-227 it is mentioned that specimen writings of Nand Lal Gupta S/o Madan Lal Gupta, suspected impersonator for the accused candidate Manoj Kumar Uikey (A-2) in the PMT 2008, along with documents having his admitted writings. (41 sheets marked as S-1 to S-41 and 04 sheets having his admitted writings). 9. In the said list of documents at Serial No. D-227 it is mentioned that specimen writings of Nand Lal Gupta S/o Madan Lal Gupta, suspected impersonator for the accused candidate Manoj Kumar Uikey (A-2) in the PMT 2008, along with documents having his admitted writings. (41 sheets marked as S-1 to S-41 and 04 sheets having his admitted writings). 9. Upon perusal of the charge-sheet and taking into consideration the allegations and material available against the applicant, we do not find any merit in the present case warranting any interference under section 482 of the Code of Criminal Procedure to quash the charge-sheet. 10. In the case of State of Haryana and Others vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, the Apex Court held that High Court powers to quash criminal proceedings should be exercised sparingly and rarest of rare cases. Reliability of allegations made in FIR or complaint not be examined. Para 130 reads as under: “The power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. The Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint.” 11. In Kamaladevi Agrawal vs. State of West Bengal, (2002) 1 SCC 555 , the Apex Court opined: “This Court has consistently held that the revisional or inherent powers of quashing the proceedings at the initial stage should be exercised sparingly and only where the allegations made in the complaint or the FIR, even if taken at their face value and accepted in entirely, do not prima-facie disclose the commission of an offence. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction.” 12. In the case of R. Kalyani vs. Janak C. Mehta, (2009) 1 SCC 516 , the Apex Court laid down the law in the following terms: “15. Disputed and controversial facts cannot be made the basis for the exercise of the jurisdiction.” 12. In the case of R. Kalyani vs. Janak C. Mehta, (2009) 1 SCC 516 , the Apex Court laid down the law in the following terms: “15. Propositions of law which emerge from the said decisions are: (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.” 13. The aforesaid legal position has been reiterated in the case of Mahesh Chaudhary vs. State of Rajasthan and Another, (2009) 4 SCC 439 . Relevant paras 11 and 12 are reproduced as under: “11. The principle providing for exercise of the power by a High Court under section 482 of the Code of Criminal Procedure to quash a criminal proceedings is well known. The Court shall ordinarily exercise the said jurisdiction, inter-alia, in the event the allegations contained in the FIR or the complaint petition even if on face value are taken to be correct in their entirety, does not disclose commission of an offence. 12. It is also well settled that save and except in very exceptional circumstances, the Court would not look to any document relied upon by the accused in support of his defence. Although allegations contained in the complaint petition may disclose a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. Although allegations contained in the complaint petition may disclose a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue. For the purpose of exercising its jurisdiction, the superior Courts are also required to consider as to whether the allegations made in the FIR or the complaint petition fulfil the ingredients of the offences alleged against the accused.” 14. In the case of Amit Kapoor vs. Ramesh Chander and Another, (2012) 9 SCC 460 the Apex Court has culled out certain principles to be considered for proper exercise of jurisdiction with regard to quashing of the charge either in exercise of power under section 397 or section 482 of the Criminal Procedure Code, or together, as the case may be. The principles laid down by the Apex Court in paras 27.1, 27.2, 27.3 and 27.6 are reproduced as under: “27.1. Though there are no limits of the powers of the Court under section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. xxx xxx xxx xxx xxx 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.” 15. The same view has been reiterated by the Apex Court in a latest judgment of Asian Resurfacing of Road Agency Pvt. Ltd. and Another vs. Central Bureau of Investigation, AIR 2018 SC 2039 . The same view has been reiterated by the Apex Court in a latest judgment of Asian Resurfacing of Road Agency Pvt. Ltd. and Another vs. Central Bureau of Investigation, AIR 2018 SC 2039 . Para 100 reads as under: “100. However, there is a series of cases wherein this Court while dealing with the provisions of sections 227, 228, 239, 240, 241, 242 and 245, Criminal Procedure Code, has consistently held that the Court at the stage of framing of the charge has to apply its mind to the question whether or not there is any ground for presuming the commission of an offence by the accused. The Court has to see as to whether the material brought on record reasonably connect the accused with the offence. Nothing more is required to be enquired into. While dealing with the aforesaid provisions, the test of prima facie case is to be applied. The Court has to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the Court to proceed against the accused further. State of Karnataka vs. L. Muniswamy, (1997) 2 SCC 699 : AIR 1977 SC 1489 , All India Bank Officers’ Confederation vs. Union of India, (1989) 4 SCC 90 : AIR 1989 SC 2045 Stree Atyachar Virodhi Parishad vs. Dilip Nathumal Chordia, (1989) 1 SCC 715 , State of M.P. vs. Krishna Chandra Saksena, (1996) 11 SCC 439 and State of M.P. vs. Mohanlal Soni, (2000) 6 SCC 338 : AIR 2000 SC 2583 .” 16. Thus, the Apex Court has held that the power under section 397/401, Criminal Procedure Code against an order framing charge should be exercised very sparingly and with circumspection and that too in the rarest of rare case. The Court should apply the test as to whether uncontroverted allegation available from the record of the case and the documents, prima facie does not establish any offence and the basic ingredients of the offence are not satisfied, then the Court may interfere. 17. In view of the aforesaid, in the facts of the present case, we do not find any case for interference against the charge-sheet in exercise of inherent power under section 482 of the Code of Criminal Procedure. Accordingly, the application is dismissed. Application dismissed.