Criminal Application No. 1964 of 2007

7th March, 2008

Petitioner Counsel: Mr. AMOL MARDIKAR
Respondent Counsel: Mr. R. P. JOSHI

Cases Cited:
Guru Bipin Singh Vs. Chongtham Manihar Singh, AIR 1997 SC 1448 [Para 7]
Manoranjan Das Vs. State of Jharkhand, 2004 ALL MR (Cri) 2552 (S.C.)=AIR 2004 SC 3623 [Para 7]
Kiran Desai Vs. M/s. Napolean Chemicals (I) Pvt. Ltd., 1999(1) Mh.L.J. 575 [Para 7]
Arun Gulab Gawli Vs. State of Maharashtra, 2007 ALL MR (Cri) 2562=2007(4) AIR Bom R 625 [Para 7]
Baburao Hari Pawar Vs. State of Maharashtra, 1987 Cr.L.J. 584 [Para 7]
Sharad Prabhakar Ambadkar Vs. Arun Shardram Deshpande, 2005 ALL MR (Cri) 601 [Para 7]
Beena Philipose Vs. State of Kerala, 2006(7) SCC 414 [Para 9]
Shivnarayan Laxminarayan Joshi Vs. State of Maharashtra, AIR 1986 SC 439 [Para 9]
K. Hashim Vs. State of T.N., 2005(1) SCC 237 [Para 9,12]
Noor Mohammad Mohd. Yusuf Momin Vs. State of Maharashtra, AIR 1971 SC 885 [Para 9,12]
Lalu Prasad @ Lalu Prasad Yadav Vs. State of Bihar, 2007 ALL SCR 1 : 2007(1) SCC 49 [Para 15]
Superintendent and Remembrance of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja, (1979)4 SCC 274 [Para 16]

JUDGMENT

JUDGMENT :- Heard Shri. Amol Mardikar, Advocate, for the applicant and Shri. R. P. Joshi, Special P.P. for respondent no.1-State.

Rule. Returnable forthwith. Heard finally by consent of parties.

2. By this application under section 482 of Cr.P.C. the applicant is seeking quashing of the proceedings in R.C.C. No.349/02 pending on the file of Second Additional Chief Judicial Magistrate, Nagpur, wherein she is proceeded for the offences punishable under Sections 420, 468, 471, 190, 120(B) r/w. Section 34 of the I.P.C.

3. The facts in brief. The applicant had appeared for examination First M.B.B.S. Standard in the academic session 1995-96. She was student of Jawaharlal Nehru College, Savangi, District-Wardha. It is alleged that she was declared "fail" initially. Then she applied for revaluation of her papers in two subjects namely "Bio-Chemistry" and "Physiology". In both these subjects she had received the mark-sheets for changed marks. According to her, in Bio-Chemistry 5 marks were increased, so also in Physiology 15 marks were increased. It is her submission that since the total of marks on revaluation was incorrect, so third mark sheet was issued to her. It is the case of the respondent prosecution that there was one police case in which, it was detected that some malpractices, irregularities were committed in giving marks of revaluations to the students by the University officials. The episode is known as "University Scam", in which several students who had applied for revaluation, got their marks increased and got through the examination by malpractice, forgeries & by committing criminal offences. It is the prosecution case that the applicant's case was one of those cases and in the process of commission of these offences, Respondent Nos.3, 4 & 5 (who are not served), who are co-accused, were also the participants in commission of crime. After due investigation, the applicant & respondent Nos.2 to 5 were charge-sheeted for the offences punishable under Sections 420, 468, 471, 109, 120(B) r/w. Section 34 of the I.P.C., so also several other students and the University officials in various criminal cases. According to the University Authorities and the prosecution, in respect of this applicant, when revaluation process was carried out, her marks were initially decreased and therefore, it was an 'adverse change'. However, later on, her marks were increased, though the remark of 'adverse change' remained as it was in the register and she was declared "pass". The details are given in the charge-sheet.

4. According to the applicant, she did not take any part in the process of increase of marks in the revaluation. Those were only University Officials who were responsible for such things and in fact she was not at all concerned with this conspiracy. According to her, she has been accidently found, in whose case the marks were found to be increased. Raising several other grounds & contending that no criminal proceedings can be launched against the applicant, the application for discharge was filed by the applicant in the trial Court and the same was rejected by the detailed order of the learned trial Judge on 5th June, 2007. Hence, this petition has been filed to seek "discharge" and for quashing of proceedings against her.

5. Considering the circumstances of the case, interim stay to the proceedings against the applicant was ordered on 20.12.2007. The matter, considering its urgency, is finally heard.

6. Learned counsel for the applicant, Shri. Amol Mardikar, has submitted that as the applicant was declared "fail" in her First M.B.B.S. Examination, she had applied for revaluation of two papers i.e. Bio-Chemistry and Physiology. This was the "only" role played by her in all the process. According to him, she was not party, nor she was co-conspirator to commit any offence. It was by chance that her marks were increased in those two subjects. It is further his submission that the relevant F.I.R. did not mention the name of this applicant, nor any allegations are attributed to her. At that time, nothing was alleged against the present applicant. According to him, there cannot be any basis muchless evidence for inferring that the correction or increase in marks was illegal and by committing forgery and was done at the instance of the present applicant. It is also his submission that if the applicant would have been responsible for this change in marks, she would have got more marks to avoid passing by "condonation". Further, according to him, in view of the provisions of Maharashtra Universities Act, the action as regards irregularities in examination, valuation etc., is to be taken by a Board of Examination. He has pressed into service the provisions of Section 32 of the said Act, to contend that there cannot be any criminal action for anything wrong done in the process of examination. All the actions that could be taken, would be under the provisions of Maharashtra Universities Act & could be taken by the Board of Examinations. He has submitted further that merely because the applicant is beneficiary, she cannot be held liable for the offence with the aid of Section 120(B), I.P.C..

7. He has relied on some authorities. a brief reference to the same would be necessary, at this stage.

(i) AIR 1997 SC 1448, Guru Bipin Singh Vs. Chongtham Manihar Singh and another, wherein it has been held that when the offence of forgery at the instance of accused is not established, charge of cheating would also fail.

(ii) AIR 2004 SC 3623 : [2004 ALL MR (Cri) 2552 (S.C.)], Manoranjan Das Vs. State of Jharkhand, wherein the Apex Court has held that when there is no evidence to show that there is involvement of the accused in the fraud committed by the co-accused, nor there is evidence to show that he has instigated the co-accused to commit the offence, he cannot be held liable for abetment to cheating.

(iii) 1999(1) Mh.L.J. 575, Kiran Desai Vs. M/s. Napolean Chemicals (I) Pvt. Ltd., wherein it has been held by this Court that unless an evil design at initial stage of the contract is demonstrated, offence under Section 420 of the I.P.C. is not spelt out.

(iv) 2007(4) AIR Bom R 625 : [2007 ALL MR (Cri) 2562], Arun Gulab Gawli Vs. State of Maharashtra, wherein it has been held that when material on record is totally lacking in making out prima facie case against the accused, order of framing charge is illegal.

(v) 1987 Cr.L.J. 584, Baburao Hari Pawar Vs. State of Maharashtra, wherein this Court has held that the right to ask for discharge is available to the accused at any stage of the trial including the stage of evidence.

(vi) 2005 ALL MR (Cri) 601, Sharad Prabhakar Ambadkar and Anr. Vs. Arun Shardram Deshpande & Anr., wherein it has been held that mens rea is also necessary for brining the accused within the purview of Sections 415 and 420 of the I.P.C..

8. Per contra, learned Special P.P. Shri. R. P. Joshi, for the respondent has submitted that the provisions of the Maharashtra University Act, particularly Section 32 are not applicable to the criminal prosecution. According to him, if the petitioner has committed any offence, she cannot claim shelter of the procedure laid down under the Maharashtra Universities Act, which is essentially for conducting the examinations and the matters related to the same and not in respect of the individual case in which the offences like one in the instant case of forgery or conspiracy are committed. According to him, revaluation statements of marks clearly show that the change in respect of the present petitioner arising out of her revaluation request was adverse to her, meaning thereby; her marks in these subjects were reduced after revaluation. But later on, for extraneous reasons, they were enhanced and the petitioner was declared "pass", though by "condonation". It is his submission that the conspiracy is obvious and the sole beneficiary was the petitioner and therefore, the said change and the forgery could not have been without the connivance, active support and participation of the petitioner. According to him, this is a matter of inference and no overt act in that behalf needs to be proved. The very fact that she was sole beneficiary for upward change in the marks would show that she was an instrument for commission of these offences which the other accused had committed in respect of the petitioner. It is also submitted that many other students are being prosecuted and some of them have been convicted recently. He has also relied on certain authorities to contend that the petitioner's taking part in the conspiracy was a matter of inference and therefore, at this stage, she cannot be discharged, nor proceedings against her can be quashed.

9. A brief reference to the authorities cited by the learned special P.P. also needs to be made at this stage.

(i) 2006(7) SCC 414, Beena Philipose and Another Vs. State of Kerala, wherein it has been held that, the forgery was done with the obvious purpose of utilising the changed mark-sheet to secure admission and later on in appeal the conviction was maintained but the sentences were reduced and, finally before the Apex Court it was held that the conviction was maintainable but the sentence was reduced.

(ii) AIR 1986 SC 439, Shivnarayan Laxminarayan Joshi and others Vs. State of Maharashtra and others, wherein it was found that,

A conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence for the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of as common design.

(iii) 2005(1) SCC 237, K. Hashim Vs. State of T.N., wherein it was held that,

"if evidence of an accomplice is found credible and cogent, court can record a conviction based thereon even if uncorroborated and the elements of a criminal conspiracy have been stated to be (a) an object to be accomplished, (b) a plan or scheme embodying means to accomplish the object, (c) an agreement or understanding between to or more of the accused persons whereby, they become definitely committed to co-operate for the accomplishment of the object by the means embodied in the agreement, or by any effectual means, and (d) in the jurisdiction where the statute requires an overt act. The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. From this, it necessarily follows that unless the statute so requires, no overt act need be done in furtherance of the conspiracy, and that the object of the combination need not be accomplished in order to constitute an indictable offence. Encouragement and support which co-conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. For an offence punishable under Section 120-B the prosecution need not necessarily prove that the perpetrators expressly agree to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and an act of each of the parties, promise against promise, actus contra capable of being enforced, if lawful, punishable if for a criminal object or for use of criminal means."

(iv) AIR 1971 SC 885, Noor Mohammad Mohd. Yusuf Momin Vs. State of Maharashtra, wherein in para 7 it has been held that,

"Criminal conspiracy postulates an agreement between two or more persons to do, or cause to be done, an illegal act or an act which is not illegal, by illegal means.

It is further held that,

"a conspiracy from its very nature is generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming from wholly disinterested quarters or from utter strangers. But, like other offences, criminal conspiracy can be proved by circumstantial evidence. Indeed in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors, constitute relevant material. In fact because of the difficulties in have direct evidence of criminal conspiracy, once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to law of evidence, relevant for proving both conspiracy and the offences committed pursuant thereto".

10. The learned counsel has relied on unreported judgments of this Court in Criminal Writ Petition No.100/2007 Sonal Vasantrao Bhusari Vs. State of Maharashtra, wherein it has been held.

Apparently it is not even disputed that the marks have been changed. The learned counsel for the applicant had contended that there was no need for the applicant to indulge into change of marks or enhancement of the marks secured by her, since even otherwise according to Ordinance issued by the Nagpur University she would have got through examination. He submitted that only in one paper one mark was short and in other paper 4 marks are short and in any case she would have got through on account of the Ordinance issued by the Nagpur University. This argument cannot be accepted for the simple reason that there was no reason for the applicant to know what marks she had secured and therefore it cannot be accepted that she could not have made an effort to see that she gets through the examination after increasing the marks. The courts below have examined the documents that were placed before the Court. After going through the documents it is apparent that there is a ground to presume that accused had committed offence and as such I do not find that this is a fit case which should be admitted. Petition is, therefore, dismissed in limine.

And, Criminal Application No.1856/2007, Siddarth Dey s/o. Ashish Dey Vs. State of Maharashtra, wherein it has been held that,

"It is precisely the case of the prosecution that the applicant and the employees of the Nagpur University were hand-in-glove and therefore, it was not difficult for the applicant to have such an information.

There is apparently an overwriting, and increase in marks, which was to benefit the applicant/accused alone and none else and it is for this reason, no other person would be interested in changing and increasing the marks of the applicant. Prima facie, therefore, there is nexus of the applicant with the tampering with the record of the University and there is a reason to proceed against him. The charge against the applicant/accused cannot be said to be groundless."

11. It is the submission of the learned Special P.P. for the respondent that in the present case, the facts are similar to the facts in the cases in Criminal Application No.100/2007 and Criminal Application No.1856/2007, referred to above and therefore, the petition should be dismissed.

12. Adverting to the facts in the present case, it would be seen that, here is the case, where the petitioner had applied for revaluation. Her marks were increased. The tabulation sheets produced on record (zerox copies) clearly show that she had obtained less marks after revaluation and therefore the result was noted to be "adverse change". However, there seems to be overwritings by which her marks were increased to 43, 48 and 46 whereby favourable change was made there. However, the words "adverse change" remained to be scored and therefore, they remained as they were, which speak volumes. The another statement of marks in respect of the petitioner shows that there are several changes and scorings & overwritings on the statement of her marks obtained after revaluation to make them suitable to "pass". In fact, it mentions the result as "F" i.e. (fail) and thereafter, it is scored and then the result is stated to be "P" i.e. (pass). Why there could be necessity of overwriting is not plausibly explained by the petitioner. No doubt, the petitioner claims that she was unaware of such changes. But the fact remains that earlier the result was of "adverse change" and "fail" and later on it was scored to make it to raise the marks to such an extent to enable to declare her "pass". It is rather impossible to believe at this stage that the University Authorities even co-accused of their own would have done all these changes, except without the connivance and active extraneous assistance by the petitioner, which is apparent from the other such cases. In view of the authorities, particularly 2005(1) SCC 237, K. Hashim Vs. State of T.N. and AIR 1971 SC 885, Noor Mohammad Mohd. Yusuf Momin Vs State of Maharashtra, it is apparent that there cannot be any direct evidence in such cases, regarding the actual act of conspiracy and the minute participation of the conspirators.

13. Here is the case where the petitioner is the ultimate beneficiary. There can be none other who could have been benefited by such change. No doubt, petitioner was declared "pass" by "condonation", the fact which has been pressed into service by the learned counsel for the petitioner, to contend that had she would have been the conspirator and at her instance such raising of marks would have been there, she would have got raised these marks to get her declared as "pass" without "condonation". She would not have got her marks raised so as to just entitle her for passing by "condonation". This contention seems to be quite attractive, but considering the totality of the effect of the statements of marks on revaluation (zerox copies), which are filed on record, it is far from acceptance.

14. The decisions relied upon by the learned Special P.P. of this Court referred above, do support the contentions of the respondent No.1 State, and the authorities referred by learned counsel for petitioner does not call for her absolving at this stage.

15. Considering the totality of the circumstances of the case, the observations of the Apex Court in 2007(1) SCC 49 : [2007 ALL SCR 1], Lalu Prasad @ Lalu Prasad Yadav Vs. State of Bihar are attracted. The application for discharge u/s.239 of Criminal Procedure Code of applicant/accused was rejected. The provisions under Section 239 of Cr.P.C., read thus :

"239. When accused shall be discharged. - (1) If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."

16. It is obvious that when the documents and records of the case are considered and on hearing the submissions of the accused and the prosecution, if the Judge considers that there is no sufficient ground for proceeding against the accused i.e. charge is groundless, the order of discharge is called for, for which reasons are to be recorded. Under Section 239, the charge against the accused has to be "groundless" and then only the accused can be discharged. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence, vide (1979)4 SCC 274, Superintendent and Remembrance of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and others. No doubt, the order of discharge of accused can be passed at any stage, but it has to be only when the Magistrate considers the documents, allegations, hears parties and then if he finds that the charge against the accused is groundless or there are no sufficient grounds to proceed. He can discharge the accused only in such circumstances. This is not a such case. In my opinion in the present case it can not be said that the charge against the applicant would be "groundless".

17. I may add that as pointed out by the learned Special P.P. for the respondent that Special Leave Petition to challenge the judgment in Sonal Bhusari's case (Criminal Writ Petition No.100/2007) referred to above, has been dismissed by the Apex Court. The facts of that case are more or less similar to the facts in this case. As such there is no merit in this petition. Hence, the petition can not succeed.

18. Lastly, a reference needs to be made to the provisions of Maharashtra Universities Act. Section 32 of the said Act reads thus-

"Section 32. - Powers and duties of Board of Examinations.

(1) The Board of Examinations shall ensure proper organization of examinations and tests of the university, including moderation, tabulation and the declaration of results.

(2) The Board shall meet at least once in each academic term.

(3) In particular and without prejudice to the generality of duties as mentioned in sub-section (1), the Board shall exercise the following powers and perform the following duties namely :-

(a) to appoint paper-setters, examiners and moderators from amongst the persons included in the panels prepared by the respective Boards of Studies and, where necessary, having regard to the recommendations made by the committee under clause (b) of sub-section (6) remove them or debar them;

(b) to undertake, exercise and experiment in examination reforms;

(c) to exercise such other powers in relation to examinations as may be assigned to it by or under the Act.

(4) In case of any emergency requiring immediate action to be taken, the Chairman of the Board or any other officer or person authorised by him in that behalf, shall take such action as he think and necessary, and shall report at the next meeting of the Board the action taken by him.

(5) (a) In order to appoint paper-setters, examiners and moderators, the Board of Examinations shall constitute committees for every subject consisting of,-

(i) the pro-Vice-Chancellor, if any, Chairman;

(ii) the Dean of the concerned faculty;

(iii) the Chairman of the concerned Board of studies;

(iv) two members of the Board of Studies nominated by it from amongst its members [of whom at least one shall be a post-graduate teacher];

Provided that, where a Pro-Vice-Chancellor is not appointed in a university, the Dean of the concerned faculty shall be the Chairman;

(b) The Controller of the Examinations shall act as Secretary of such committees.

(c) The committee shall prepare lists of persons for various examinations and tests, from amongst persons, included in the panels to be prepared by the Board of Studies and shall submit them to the Examination Board, which shall then appoint paper-setters, examiners and moderators, and where necessary referees.

(d) No members of the Board of Examinations or the committees shall be appointed as paper setters, examiners, moderator or referee.

(e) The committee shall obtain three sets of question papers in sealed covers in the respective subject. The Chairman of the committee shall draw at random one of such sealed covers containing question papers. This sealed cover with seals intact shall then be sent to the press.

(f) Assessment of answer books for all degree examinations shall be done centrally through central assessment system. All the answer books of an examination shall be connected at a convenient central place. The answer books then will be given code numbers and will be masked. All the examiners will attend the central assessment centres and they will assess the answer books at the centre only,. The answer will then be-demasked and the result sheets will be prepared by the [tabulators and/or moderator];

Provided that, the university may, adopt the same system for post-graduate courses as well whenever it considers it expedient and practicable;

Provided further that, the university may adopt an alternative system to the masking and de-masking system for ensuring objection of secrecy as provided above.

(g) It shall be obligatory on every teacher and on the non-teaching employee of the University, affiliated, conducted or autonomous college or recognised institutions to render necessary assistance and service in respect of examinations of the university. If any teacher or non-teaching employee fails to comply with the order of the university or college or institution, in this respect, it shall be treated as misconduct and the employee shall be liable for disciplinary action.

(6)(a) In order to investigate and take disciplinary action to malpractices and lapses on the part of candidates, paper-setters, examiners, moderators, referees, teachers or any other persons connected with the conduct of examinations [including the pre-examination stage and the post examination stage or at any stage whatsoever], the Board of Examinations shall constitute a committee of not more than five persons of whom one shall be Chairman.

(b) Such a committee shall submit its report and recommendations to the Board of Examination which shall take disciplinary action in the matter as it deem fit [against the person or persons involved in the mal-practices, directly or indirectly]

(7) The Board shall prepare the financial estimates for incorporation in the budget of the university and shall submit the same to the Finance and Accounts [Committee].

(8) The Board shall arrange for strict vigilance during the conduct of the examinations so as to avoid use of unfair means by the students, teachers, invigilators, supervisor etc.".

19. There is nothing in this provision, nor anything is pointed out by the learned counsel for the petitioner to show that, for prosecution of an accused for the offence committed during the course of examination, process of valuation and revaluation and declaration of results etc., any sanction is required from the Board of Examination or the University Authorities before any prosecution is launched for the offences under the Indian Penal Code. Provisions of sub-section 6 quoted above can not over ride the penal provisions under Indian Penal Code in absence of any such explicit bar. As such, the contentions of the learned counsel for the petitioner in this behalf cannot be accepted to invite quashing of the proceedings against the applicant.

20. In this view of the matter, the petition fails and the same is dismissed. The interim stay is vacated.

21. The trial Judge is directed to expedite the matter.

Petition dismissed.