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2023 DIGILAW 337 (MP)

Virendra Pandey v. State of M. P.

2023-03-03

RAJENDRA KUMAR VERMA

body2023
ORDER 1. This Criminal Revision under section 397/401 of the Code of Criminal Procedure, 1973 has been preferred against the order 5.1.2022, passed by the Special Judge (Lokayukta) -cum- 1st Addl. Sessions Judge, Jabalpur (M.P.) in Special Case No. 27/2021, whereby the charges have been framed against the applicant for commission of offences punishable under Sections 120-B, 420 in alternative 420 read with section 34, 409 in alternative 409 read with section 34, 467 in alternative 467 read with section 34, 468 in alternative 468 read with section 34 and 471 in alternative 471 read with section 34 of the Indian Penal Code has been framed against the present petitioner. 2. As per the prosecution case, on 3.10.2013 a complaint was filed by the Commissioner, Tribal Welfare Department (hereinafter referred to as the “Department” in short), Bhopal to the Lokayukta of Madhya Pradesh, consequently a preliminary Enquiry bearing No. 49/2014 was registered by the Special Police Establishment, Lokayukta Jabalpur. In the said complaint, it was alleged that various bogus admissions have been done in various para-medical colleges across the State of Madhya Pradesh. It was further alleged that on the basis of alleged bogus admissions a huge amount has been misappropriated on account of tuition fee and scholarship, which was supposed to be given to the students belonging to SC/ST/OBC category. With respect to the instant case, it is alleged that there was four bogus admission of a student namely Sandesh Kumar Singour done in Homeopathic Compounder Courses during the academic year, 2010-11 in Mahakaushal Institute of Paramedical College, Jabalpur (hereinafter referred as College) and an amount of Rs. 13,900/- (Rs.13,000/- for tuition fee and Rs.900/- for scholarship). It is allweged that the institute did not return back the aforesaid amount, inspite of the circular of Collector, Jabalpur. 3. It is the case of prosecution itself, that this student namely Sandesh Kumar Singour got admission in the institute but he did not pursue his studies further, therefore, he was not entitled for scholarship. After investigation, the FIR was registered against Smt. Chandrakanta Singh, the then Assistant Commissioner, Mr. Sant Sharan Singh, the then District Organizer, Smt. Kanti soni Gupta , the then Assistant Grade-III of the Tribal Welfare Department, Collector Office, Jabalpur alongwith Mr. G.P. Gautam, Head of the Institute, Mahakaushal Institute of Paramedical College, Jabalpur. After investigation, the FIR was registered against Smt. Chandrakanta Singh, the then Assistant Commissioner, Mr. Sant Sharan Singh, the then District Organizer, Smt. Kanti soni Gupta , the then Assistant Grade-III of the Tribal Welfare Department, Collector Office, Jabalpur alongwith Mr. G.P. Gautam, Head of the Institute, Mahakaushal Institute of Paramedical College, Jabalpur. However, it is utter surprise, after completion of investigation, the charge-sheet has been filed only against Mr. G.P. Gautam, Smt. Vandana Pandey and Mr. Virendra Pandey (present petitioner). All the government officials/accused have been exonerated by the respondent/Special Police Establishment (SPE). 4. Present petitioner namely Virendra Pandey was the president of Asudi Devi Shiksha Samiti, Jabalpur (Hereinafter referred to as the “Samiti” in short). As per the prosecution case, above named student got admission in the college and he has duly applied for scholarship and put his signature on it. His documents like migration certificate, transfer certificate, income certificate, domicile certificate, caste certificate, marksheets of classes -10th, 12th and Graduation was found genuine. 5. It is pertinent to mention here that, the above named student was duly applied for scholarship and filled the requisite form at the time of admission. All such documents after proper verification, were forwarded to the Department. After proper scrutiny by the Department, the said amount was sanctioned. 6. The total amount i.e. tuition fee alongwith scholarship are used to be deposited in the account of the college by the department. When the student fulfill the criteria of attendance thereafter, such students are entitled to get the scholarship amount. In this manner, initially the total number i.e. tuition fee and scholarship are sanctioned at the beginning of the course but the scholarship amount disbursed in favour the eligible students who will appear in the final examination at the end of the academic year. 7. In case, student after taking admission in para-medical courses does not prosecute his studies, the sanctioned amount for tuition fee and scholarship which was being deposited in the college by the department has to be returned to the department. In this regard a circular was issued by the department with respect to the present case, the said circular was issued after preliminary enquiry and prior to the registration of FIR. Copy of the said circular is on record as Annexure A-2. 8. In this regard a circular was issued by the department with respect to the present case, the said circular was issued after preliminary enquiry and prior to the registration of FIR. Copy of the said circular is on record as Annexure A-2. 8. It is also not in dispute that on the basis of aforesaid circular, the college has returned and deposited of such total amount i.e. tuition fee and the scholarship amount alongwith interest on 17.7.2015 through a Treasury Challan and the original copy of the challan was produced before the trial Court alongwith an application for discharge. Inspite of the aforesaid, factual position, learned trial Court has framed the charges against the present petitioner. 9. Petitioner had applied before the competent Sessions Court for discharge, but the learned Sessions Judge has rejected the application for discharge filed by the petitioner and framed the charges under sections 120-B, 420 in alternative 420 read with section 34, 409 in alternative 409 read with section 34, 467 in alternative 467 read with section 34, 468 in alternative 468 read with section 34 and 471 in alternative 471 read with section 34 of the Indian Penal Code vide the impugned order dated 5.1.2022. Being aggrieved of framing of charges instant petition has been filed. 10. Learned counsel for the petitioner submits that the allegation alleged against the petitioner can not be sustained. It is further submitted that from perusal of the statement of students/witnesses recorded under section 161 Cr.P.C. and other material on record, the essential ingredients are missing for framing charges against the petitioner, therefore, no prima facie case is made out against the petitioner for commission of aforesaid offences. It is further submitted that no allegations were made against the petitioner, being President of of Asudi Devi Shiksha Samiti, Jabalpur qua the day to day affair of the college. It is also submitted that no post was held by the petitioner in the said college and the Samiti is not responsible. It is further submitted that, the allegations are baseless, since the admission form and scholarship form was duly filled by the students and put their signature on it, therefore, there is no question arises about cheating/forgery in any of the documents, moreover all documents were duly scrutinized by the department itself and thereafter, deposited the amount in the account of college. Since, the student do not pursue their study, consequently, they were not entitled for scholarship. In order to remit out such eventuality, the department has issued a circular to refund the deposited amount and the alleged amount has also been refund back to the department, therefore, there is no question about the alleged misappropriation to the amount. It is further submitted that there is no iota of evidence on record made out prima facie case against the petitioner. 11. Learned counsel for petitioner has buttressed his contention by placing reliance upon the judgment delivered by Hon’ble the apex Court in the case of Sheila Sebastian v. R. Jawaharaj and another (2018)7 SCC 581 and the order dated 7.5.2022 passed by the Division Bench of this Court in MCRC No.492/2022 (D.K. Khare v. State of M.P.) and prays that the instant Criminal Revision may be allowed and the petitioner may be discharged from the charges leveled against him in connection with instant matter. 12. Per contra, learned Panel Lawyer appearing for the respondent/State while supporting the impugned order dated 5.1.2022 passed by learned trial Court submits that the impugned order passed by learned trial Court is legal, proper and in accordance with settled principle of law. Moreover there is sufficient material on record against the petitioner to put him on trial, therefore, prays for confirming the impugned order dated 5.1.2022 and has prayed that the instant Criminal Revision filed by the petitioner may be dismissed on the ground that the amount was deposited by the College after registration of the FIR. 13. I have heard, learned counsel for the parties at length and perused the materials available on record. 14. Before parting further, it is profitable to know the objective of framing of charges in the light of principle laid down by Hon’ble the apex Court for the purpose of framing a charge is to intimate to the accused the clear, unambiguous and precise nature of accusation that the accused is called upon to meet the course of a trial. See. V.C. Shukla v.State Through C.B.I. (1980) Supp. SCC 92. 15. In the case of Union of India v. Prafulla Kumar Samal (1979)3 SCC 4 , Hon’ble the apex Court have considered the scope of enquiry a judge is required to make while considering the question of framing of charges after an exhaustive survey of the case law on the point. V.C. Shukla v.State Through C.B.I. (1980) Supp. SCC 92. 15. In the case of Union of India v. Prafulla Kumar Samal (1979)3 SCC 4 , Hon’ble the apex Court have considered the scope of enquiry a judge is required to make while considering the question of framing of charges after an exhaustive survey of the case law on the point. The Supreme Court in para 10 of the judgment laid down the following principles: “(1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” 16. Thus, from the aforesaid, it is evident that the trial Court is enjoyed with the duty apply its mind at the time of framing of charge and should not act as mere a post office. Thus, from the aforesaid, it is evident that the trial Court is enjoyed with the duty apply its mind at the time of framing of charge and should not act as mere a post office. In the instant case, the whole case of prosecution is based on the statement of students witnesses namely Atul Kumar Patel, Dinesh Kewat and Mithilesh Bairagi recorded by the Investigating Officer under section 161 Cr.P.C. and the documents submitted at the time of admission. 17. From perusal of statement of aforesaid witnesses, it reveals that there is no specific allegation against the petitioner as per the prosecution itself. There is nothing on record, being President of Samiti, about the commission of alleged offence. Moreover, it seems that the charge-sheet filed against the petitioner is only on the basis of holding the post of President of Samiti. However, there is nothing even on whisper that the petitioner was involved in getting the admission of above named student. It is a law of criminal jurisprudence that there is no vicarious liability in criminal proceedings unless specific finding in the particular statute. 18. The general Rule in Criminal Law is that there is no vicarious liability, this reflect the general principle that crime is composed on both actus reus (guilty act) and the mensrea (guilty mind) and that a person should only be convicted if they are directly responsible for causing both elements to occur at the same time. Thus the practice of holding one person liable for the actions and another is the exception is not the rule in criminal law. 19. Moreover, as per the prosecution case itself, there was no bogus admission as alleged was done in the College and there was no involvement to get admission by the petitioner. The student namely Sandesh Kumar Singour duly filled his admission form and scholarship form and put his signature respectively. Therefore, there is no question arises about any shot of cheating and forgery. Since, it was mandatory to pursue the study and get the annual examination at the academic year to get the scholarship amount. Students who were involved in the instant case, failed to fulfill the eligibility criteria, consequently the scholarship amount was not disbursed in their favour. The department itself issued the aforesaid circular to refund the amount, in compliance thereof, the aforesaid amount was refunded by the College to the Department. Students who were involved in the instant case, failed to fulfill the eligibility criteria, consequently the scholarship amount was not disbursed in their favour. The department itself issued the aforesaid circular to refund the amount, in compliance thereof, the aforesaid amount was refunded by the College to the Department. It is also worthy to mention here that alleged amount was deposited in the account of college after proper verification and scrutiny by the department and on the basis of the aforesaid circular the deposited amount was refunded by the College. There is no procedural flaw in order to get the refund of the said amount. There is no loss occurred to the State Exchequor so that there is no question arises at all about misappropriation of alleged amount. 20. It is also profitable to mention here that the said amount was neither deposited in the account of petitioner, nor any involvement alleged thereof. The whole transaction get through the college. The petitioner being President of the Samiti which run the college cannot be vicarious liable for alleged offence. Particularly when there is nothing on the record about the day to day affairs of the college of the students, but their statement are not even slightly fix the criminal liability of the petitioner. 21. In the light of aforesaid discussion and after perusal of the statements of witnesses and other materials on record, this Court is of the considered view that even if taken a case of prosecution as it is, the essential ingredients of sections 120-B, 420 in alternative 420 read with section 34, 409 in alternative 409 read with section 34, 467 in alternative 467 read with section 34, 468 in alternative 468 read with section 34 and 471 in alternative 471 read with section 34 of IPC are missing. In the instant petition, there is nothing incriminatory contention in the statement of witnesses against the petitioner. 22. In the instant petition, there is nothing incriminatory contention in the statement of witnesses against the petitioner. 22. In the backdrop of aforesaid discussion, this Court is of considered view that dealing with the factual position of present case, the petitioner cannot be held liable to the act under section 120-B, 420 in alternative 420 read with section 34, 409 in alternative 409 read with section 34, 467 in alternative 467 read with section 34, 468 in alternative 468 read with section 34 and 471 in alternative 471 read with section 34 of IPC.There is nothing on record to elicit any positive action or proximity done by the petitioner. There is nothing on record to establish the prima facie that the petitioner had committed the alleged offence. 23. Petitioner can be tried only when the charges contain reasonable material to depict that prima facie case is made out against the petitioner. There is nothing the cogent material, the prosecution has to prima facie established its case to the hilt, the material annexed with the charge-sheet must be of sterling quality and should be of a nature that a conclusion can be drawn that the petitioner prima facie have committed the offence. The prosecution could not satisfy the aforesaid litmus test in the instant case. 24. Accordingly the impugned order dated order dated 5.1.2022, passed by the Special Judge (Lokayukta) -cum- 1st Addl. Sessions Judge, Jabalpur (M.P.) in Special Case No. 27/2021 also set-aside. Petitioner is discharges from the charges levelled against him His bail bound, if any, shall be discharged. Consequently the petition is accordingly allowed. 25. Any pending interlocutory applications, are also be disposed of. 26. The copy of this order be sent to the concerned trial Court.