1 HIGH COURT OF MEGHALAYA SHILLONG CRL. PETN. NO. 32/2014 1. Shri. [ENTITY] Son of Shri C.M. [ENTITY], Resident of BL-64, Sector - II, Salt Lkae, Kolkatta - 700091 2. Shri. [ENTITY], Son of Shri. C.M. [ENTITY], Resident of BL-64, Sector - II, Salt Lake, Kolkata - 700091 Petitioners - Vs - 1.The [ENTITY], Represented by its Secretary, Home Department, Govt. of Meghalaya, Shillong. 2.The [ENTITY] 3.The Superintendent of Police, CID, Govt. of Meghalaya, Shillong. Respondents
BEFORE HON'BLE MR JUSTICE [ENTITY], CHIEF JUSTICE Advocate for the petitioner : Shri. [ENTITY], Adv.
Advocate for the Respondents : Shri. [ENTITY], Sr. GA Shri. [ENTITY], GA Date of hearing : 24.07.2015 Date of Judgment and Order : 12.08.2015 JUDGMENT AND ORDER ([ENTITY], C.J.)
This Criminal Petition has been filed under [SECTION] read with [SECTION] and [SECTION] of the [ACT], praying for setting aside of the quashment of order dated 04.08.2014, whereby Non-Bailable Warrants were issued against the petitioners with directions to handcuff them and also the order dated 08.09.2014 of proclamation issued under [SECTION] [ACT] by the Court of Chief Judicial Magistrate, Shillong.
2. Brief facts of the case relevant for disposal of the instant petition are that the petitioners are sons of one Shri [ENTITY] (petitioner in [CASE NUMBER]) said to have been the Chancellor of the CMJ University, Shillong sponsored by the CMJ Foundation, a registered Trust. Shri [ENTITY] and Shri [ENTITY] (petitioners in [CASE NUMBER]) are the trustee of the CMJ Foundation which was functioning since the year 2004 while undertaking different activities in various fields within the [ENTITY], and also in other parts of the country.
3. In the year 2009, the Meghalaya Legislative Assembly passed the Act hereinafter referred to as "the [ACT]". The Act was notified on 20.07.2009 after the assent of the Governor granted on 14.07.2009. The petitioners as stated above are the Trustee Members of the CMJ Foundation, which was the Sponsor of the CMJ University in terms of [SECTION] of the said Act. Thus, towards the furtherance of provisions of [SECTION] of the [ACT], the petitioners submitted a proposal for establishment of the University in the State along with the documents and other particulars as required in terms of [SECTION] of the [ACT] to the State Government. The State Government after a detailed enquiry, upon being satisfied with the documentation and other details as provided with the application form in terms of [SECTION] of the [ACT], accorded sanction for establishment of the University in accordance with the guidelines issued by the University Grants Commission. Thus, the Board of Trustee of the CMJ Foundation held a meeting on 29.07.2009 and adopted a Resolution appointing Shri. [ENTITY], the alleged main accused herein as the Chancellor of the University, in terms of [SECTION] of the [ACT]. Pursuant to the said Resolution, on 03.08.2009, the Sponsor, namely, the CMJ Foundation sent a letter to the Commissioner and Secretary (Education), Government of Meghalaya along with Bio-data of Shri. [ENTITY], and the Resolution of the Board of Trustee of the CMJ Foundation.
4. In response to the letter dated 03.08.2009 of the CMJ Foundation, the Deputy Secretary to the Governor of Meghalaya, vide letter dated 02.09.2009, sought certain clarifications from the Commissioner and Secretary to the Government of Meghalaya, Education Department, before granting approval to the name of Shri [ENTITY], as first Chancellor of the University. Petitioner No. 1 namely, Shri [ENTITY], being Secretary of the CMJ Foundation, the Sponsor of University, vide letter dated 06.10.2009, submitted necessary clarifications, and thereafter also, sent various letters and representations to the Government of Meghalaya, Education Department, with regard to the delay in grant of approval to the Resolution for appointment of Chancellor, for, it adversely affected the academic sessions and other academic activities of the University apart from the fact that the University also faced financial difficulties. The then Governor of Meghalaya as well as the Government of Meghalaya, inspite of several requests and representations made by the Sponsor of the University allegedly with ulterior motive and extraneous consideration, did not give reply to any of the representations/letters submitted by the Sponsor Foundation. Again, a representation dated 01.04.2010, stating specifically that if the approval is not granted by the Visitor by 25.04.2010, it would be presumed that there is deemed approval by the Visitor to the appointment of Chancellor. Even after receipt of letter dated 01.04.2010 by all the authorities concerned, no response whatsoever even refusing approval to the appointment of the Chancellor was received from the Office of the Visitor or the Government of Meghalaya.
5. The Visitor also did not raise any objection to appointment of the Chancellor even after receipt of the aforesaid letter dated 01.04.2010. However, the State Government issued a notification dated 17.06.2010, whereby sanction was accorded for establishment of the University in accordance with the guidelines issued by the University Grants Commission. Thus, the University came into being and was established in accordance with law. As per the provisions of [SECTION] of the [ACT], the Board of Governors of University was to consist amongst others, one representative of the State Government and one Educationist of repute to be nominated by the State Government. It has been reiterated in the petition that the appointment of Chancellor was not disapproved by the Visitor namely, the Governor of Meghalaya. The State Government nominated two members including an educationist of repute in the Board of Governors of the University vide the letter dated 16.07.2010. On 26.04.2013, all of a sudden the Deputy Secretary to the Governor of Meghalaya, sought lots of information, particularly, with regard to the admission of students within 3 days by 29.04.2013 from the Sponsor. However, without waiting for the reply sought by the Deputy Secretary to the Governor vide letter of even date namely 26.04.2013, the Principal Secretary to the Governor directed the Director General of Police, Meghalaya to conduct investigation into the functioning of the University and launch criminal proceedings if investigation revealed commission of criminal offence against the University. Pursuant to letter coming from the Principal Secretary to the Governor, the State CID registered the [CASE NUMBER] under [SECTION] [ACT] on the same day on 26.04.2013.
6. Thus, according to the petitioners, without waiting for requisite information sought to be supplied by the University vide letter dated 26.04.2013, a false and frivolous criminal case was registered against the University and its officials which smacks of ulterior motive and malafide intention of the State authorities as well as high handedness of the first informant, namely, Principal Secretary to the Governor. The Registration of the case in aforesaid manner is illegal and unwarranted. As a result of registration of FIR several officials, say, as many as 9 including Mr. [ENTITY] of the CMJ University, were arrested. However, Mr. [ENTITY], alledged to be the principal accused was enlarged on bail. The Officers so arrested and thereafter enlarged on bail are mentioned in the petition as follows:
"(1) Shri [ENTITY], (the Controller of Examination of the said University was arrested and released on bail on dated 05.06.2013); (2) Shri. [ENTITY], (Deputy Registrar of the said University was arrested and released on bail on dated 07.06.2013; (3) Smti. [ENTITY], (official of the said University was arrested and released on bail on dated 20.06.2013; (4) Shri. Mrinal [ENTITY], (the Vice Principal was arrested and released on bail on dated 03.06.2013; (5) Shri. [ENTITY], (the Counsellor of the said University was arrested and released on bail on dated 03.04.2014; (6) Shri. [ENTITY], (the Ex-Registrar was arrested and released on bail on dated 01.05.2014; (7) [ENTITY], (the official of the said University was arrested and released on bail on dated 15.05.2014); (8) Shri. [ENTITY], (the Chancellor of the said University was arrested and released on bail by this Hon'ble High Court vide order dated 04.06.2014)."
7. The petitioners were surprised to know that a notice as "wanted" has been issued against them, and that was also published in the newspaper namely, "The Shillong Times" dated 18.09.2014 by the Office of the Additional Director of Police, CID, Shillong. Such notice has been issued only in utter disregard of the provisions of the law and designed only to malign the petitioners in the society. It is stated in the petition that upon acquiring the knowledge about the aforesaid facts, the petitioners were preparing themselves to come before the Investigating Officer and had also applied for pre-arrest bail which was, however, rejected.
8. It is further submitted that the petitioners had not received any notice from the Investigating Officer or the trial court requiring their presence for investigation or making statements. They could only know from their counsel that the Investigating Officer vide report dated 01.08.2014 prayed for issuance of Non- bailable Warrant of arrest against the petitioners stating about them to be the Secretary and Treasurer of the CMJ Foundation and most likely were staying in Kolkata at that time. On such a prayer made by the Investigating Officer, the Chief Judicial Magistrate, Shillong, in the order dated 04.08.2014, issued Non-bailable Warrant of arrest against the petitioners with direction to handcuff them during the transit like criminals and fixed the next date on 04.09.2014 before the Court. Again, on 08.09.2014, only on the prayer of the Investigating Officer, the Chief Judicial Magistrate issued a Standing Warrant of arrest against the petitioners and also issued a proclamation against them under [SECTION] [ACT] while fixing the date for 10.10.2014. Thus, being aggrieved from the aforesaid orders dated 04.08.2014 and 08.09.2014, the petitioners have filed the [CASE NUMBER].
9. According to the petitioners, the impugned orders dated 04.08.2014 and 08.09.2014 issued by the Chief Judicial Magistrate are wrong, illegal and non est, therefore, they deserved to be quashed, for, there is a complete non-application of mind and the orders being serious in nature, are not supported by any reasons and were passed only at the instance of the Investigating Officer. The Non-Bailable Warrant of Arrest cannot be issued casually and mechanically without exhausting the available procedures like issuance of summons through Court, and Bailable Warrant of Arrest in case of defiance of the summon, so issued through the Court, to secure the attendance of the accused. The impugned orders dated 04.08.2014 and 08.09.2014 thus seriously interfere with personal liberty of the petitioners and could not have been issued without exercise of due care and caution unless the accused had been charged with commission of offence and he is likely to engage in tampering with or destroying the evidence, therefore, their appearance was compulsorily required under [SECTION] of the [ACT]. This chapter consists of four parts, namely, Part A, relates to summons; Part B to warrant of arrest; Part C to proclamation and attachment, and Part D to other rules regarding processes. Thus, the Chief Judicial Magistrate was under
obligation to issue summons and bailable warrants instead of issuing non-bailable warrants with direction to handcuff and issuing proclamation and attachment. It is reiterated by the petitioners in the proceedings that since no notice has been issued by the Investigating Officer, he could not have made a prayer before the court for issuance of Non-Bailable Warrant. The issuance of Non-
Bailable Warrant as well as proclamation has been issued contrary to the provisions of [SECTION] of the [ACT]. The petitioners were not accused of the Non-Bailable offence at that stage and/or evading arrest. The Non-Bailable Warrant in the given facts and circumstances of the case could not have been issued to secure their production before the police in the aid of investigation. The petitioners were not directly connected, in any manner, with the day to day affairs and functioning of the CMJ University. The petitioners before coming by way of criminal petitions to the Court are not able to obtain a copy of the report and other connected papers due to paucity of time.
10. In further affidavit dated 04.08.2015 filed by the petitioners it is submitted that the respondents on being with compliance by the CMJ University of requirements as required under the statute had also nominated two members in the Board of Governor of the University. Like the State-nominees the petitioners were also the Members of the Board of Governors. They were not involved in day-to-day business and working of the University.
Being only the trustee members, the petitioners, namely, [ENTITY] and [ENTITY] herein were also not directly or indirectly involved in the academic activities of the University. On the contrary the academic matters are wholly related to prerogatives of the Board of Management and Academic Council of the University.
11. As regards issuance of fake degrees, it is asserted that the respondents have misled the Court and exaggerated the number of degrees issued by the University. According to the prosecution, about 20000 degrees were issued by the University whereas the University had enrolled more than 27000 students on regular basis in four years. In fact, the University has issued semester-wise mark- sheets which looked large in number but they are not the degrees as alleged by the respondents to have been issued. The respondent authorities are confused in their saying issuance of degree in place of mark-sheets that were issued for semester wise courses. The University could not issue semester wise mark-sheets to all the students enrolled which could have been more than the number as mentioned in the affidavit of the respondents. It is also a submission of the petitioners that the Visitor being the Governor of the [ENTITY] exceeded his jurisdiction in lodging the FIR which was beyond the pale of competence and powers as provided under the [ACT]. It is also a submission on behalf of the petitioners that their father Mr [ENTITY] and mother, Mrs. [ENTITY] were released on regular bail. Mr [ENTITY] was granted anticipatory bail on 18.07.2013 by Honble the Apex Court till the next date of hearing and the regular bail by the then Honble Chief Justice (Now the Honble Judge of Supreme Court). The other accused of the case have also been granted regular bail whereas with the ulterior motive and extraneous consideration the petitioners were declared as absconder without following the procedure of law and issued Non-Bailable Warrants and proclamation. Besides being aggrieved by the Act of the State dissolving the University on the recommendation of Visitor being the Governor, the petitioner Shri. [ENTITY], Chancellor of the CMJ University filed [CASE NUMBER] which has been allowed by the judgment dated 16.01.2015 passed by learned single Judge (Honble Mr. Justice [ENTITY]) whereby, dissolution order has been quashed and set aside. It is also a submission of the petitioners that without giving any opportunity to Petitioners University to explain the informations sought by the Deputy Secretary of Governor, the Principal Secretary to Governor vide a letter of the even date addressed to Director General of Police, Meghalaya, directed the police authorities to lodge an FIR. It is also a submission that the petitioners are only trustees Members of the CMJ Foundation trust which sponsored the University. The University Grants Commission (For short, the UGC) in reply to query made under the [ACT] had already clarified that the CMJ University was authorized to issue valid degrees for various courses under [SECTION] of the [ACT] and the PhD degrees granted by the CMJ University in regular mode from the main campus of the University was a valid academic qualifications and the University was competent to do so. The UGC was also fully satisfied with informations furnished by the CMJ University about the compliance of all the norms and standards prescribed from time to time and thus held that the Ph.D degrees granted by this University were valid academic testimonials. It is also a submission on behalf of the University that for any Technical Education Course programmes, it was not necessary to seek prior approval of AICTE. The University also furnished adequate information to the satisfaction of University Grants Commission regarding compliance of its norms and standards. The University specified the total number of students enrolled in the Academic year 2012-13, number of PhD students and also details of faculty members etc. The information furnished also indicated that there was a total strength of 106 teaching staff out of which 10 teachers were having PhD qualification, two have M.Phil qualification and 84 had Post Graduate qualification Degrees. There were about 101 non-teaching staff and the library of the University consisted more than 8000 books which were set up in an area of 80000 sq. ft. It is also a submission that CMJ Foundation having suspected printing and publication of fake PhD degree in the name of University, addressed a letter dated 18.04.2013 to Principal Secretary to Govt. of Assam, Department of Education clarifying that the University has been conducting courses only through its campus on regular basis. The University also furnished academic collaboration agreement between the University and the Institute of Cost Accountant and Institute of Company Secretary. In fact, an FIR was lodged only with an object to ensure that the officials of CMJ University were not in a position to provide desired informations. It was also clarified by the University by sending information to the Visitor that more than 300 PhD guides had been engaged to supervise the research work of PhD students. The University has its own permanent campus on 30 acres of land and more than 2 lacks sq. ft. of build-up area including modern classrooms. It is also a submission that the petitioners have suffered because of negative media report. The petitioners were also granted anticipatory bail on 19.07.2013 by Honble the Supreme Court. Besides, another Bench of Honble the Supreme Court also directed the State Government on 13.09.2013 to give an opportunity to the University to rectify short comings, if any, in the administration and management of the University as per requirements of [SECTION] of the [ACT].
12. In the affidavit-in-opposition filed by the Investigating Officer, it is submitted that the Governors Secretariat had received many complaints against the CMJ University. Accordingly, the Governor had directed the Police Department to hold investigation into functioning of the University. A complaint was submitted by Mr. [ENTITY], Principal Secretary to the Governor on 26.04.2013 containing the allegations against the CMJ University for issuance of M.Phil and PhD. Degree on sale. Thus, FIR under [SECTION] [ACT] was registered since there was disclosure of commission of cognizable offence. According to the deponent, the number of students who have been cheated would have risen to several lakhs by now. It is also submitted by the Investigating Officer that the look out notice of wanted persons/accused was published in the Shillong Times after all efforts to trace and arrest the accused persons had failed. The criminal acts as pointed out in the affidavit are like : (i) False issue of educational degrees said to be on sale and (ii) luring and illegally enrolling several thousands innocent students through their CMJ University/Foundation by way of adopting non-recognized mode of education and thus they have been benefitted to the tunes of several lakhs of rupees by issuance of such degree and collection of fee from students for admission. The accused persons/petitioners had hid themselves after registration of FIR. Thus, notices under [SECTION] [ACT] and [SECTION] [ACT] to appear before the I.O. were issued, but the accused petitioners never complied therewith. As the petitioners are absconding, concealing and evading arrest, therefore, non-bailable warrants of arrest were issued on 04.08.2014. Thereafter, look out notices were also issued and published in Shillong Times on 18.09.2014 and 19.09.2014. Again, the Chief Judicial Magistrate, vide order dated 08.09.2014, on perusal of report, issued proclamation notices under [SECTION] [ACT]. The only explanation given in the affidavit in respect of order of handcuffing is that such a request was made for and granted by the Chief Judicial Magistrate in the interest of investigation and safety of the accused persons during transit custody from Kolkata to Guwahati. It is also admitted that the Court of Assistant Sessions Judge, Shillong, had granted pre-arrest interim bail on 10.10.2014 for 7 (seven) days to enable the petitioners to attend the last rites of their deceased aunt in Bihar. However, it is admitted that the accused persons on 14.10.2014 appeared before the Investigating Officer and offered to be interrogated on 14th, 15th & 16th October, 2014. However, the request was declined. According to the Investigating Officer, the Pre-arrest interim bail had been granted only to attend the last rites of their deceased aunt in Bihar and the Courts order was not a blanket order, but a very specific one to attend the last rites. Thereafter, the petitioners have filed another affidavit dated 04.08.2015, wherein the copy of [ACT]) and the detailed judgment passed by learned Single Judge (Honble Mr. Justice [ENTITY]) in [CASE NUMBER] challenging the dissolution of the University have been placed on record.
13. I have heard learned counsel for parties and carefully considered the rival pleadings of this case. Learned counsel have reiterated the averments made in the petition as well as the affidavit- in-opposition and other additional affidavits in their oral submissions.
14. On due consideration of rival submissions, it appears that the cause of action leading to filing of an FIR does not seem to be exactly a criminal one. Under the epicenter of controversy seems to be some kind of grudge in the mind of the then Governor of Meghalaya over establishment and smooth functioning of the CMJ University constituted under the [ACT]. Such an impression can be gathered from the pleadings of the petition showing unusual conduct on his part in dealing with the matters connected with the affairs of the University and also from the judgment of the Honble single Judge (Honble Mr Justice [ENTITY]) who has decided and allowed the [CASE NUMBER].
15. The penultimate paragraph 29 and the last, para 30 of the said judgment being relevant are reproduced as under :
"29. For the foregoing discussions, this Court is of the considered view that there was non- compliance with or breach of the fundamental procedural requirements as provided under [SECTION] of the said Act of 2009 as well as principles of natural justice and the concept of the obligation of the administrative authorities to act fairly in issuing the show cause notices dated 12.11.2013 and 24.01.2014 and passing the impugned order dated 31.03.2014 which would lead to many facets injustice. Thus, the impugned order dated 31.03.2014 and the show cause notices dated 11.12.2013 and 24.01.2014 are hereby quashed and set aside.
30. In the result, the State Govt. may take steps in strict compliance with the provisions of the [ACT], the [ACT]), principles of natural justice and the concept of the obligation of the administrative authorities to act fairly in interest of justice from the stage where the Apex Court passed the said judgment and order dated 13.09.2013."
16. As this Court is only seized of controversy regarding the validity of the orders dated 04.08.2014 and 08.09.2014 passed by the Chief Judicial Magistrate in [CASE NUMBER], it would be appropriate not to express any opinion on the judgment of learned single Judge, or else, either of the parties that decides to file a Writ Appeal may suffer prejudice and deprived of right to file appeal in this Court. But that nevertheless, the foundation of the criminal case has almost stood demolished by the findings recorded by learned single Judge in the civil writ petition. Moreover, Mr [ENTITY], learned senior GA, categorically states that the police has filed a charge-sheet, thus, now the accused petitioners are not required to appear before the Investigating Officer. Still, it would be necessary to notice certain relevant facts in favour of the accused petitioners that have emerged from the perusal of records of this case. The University Grants Commission supposed to be the only authority to regulate and ensure implementation of the norms and standard of education in Universities has supported the stand of the CMJ University. The CMJ Foundation, being sponsor of the University claims to have spent hundreds of crores in creating the University. The appointment of Shri [ENTITY] as Chancellor was never questioned by the Governor being the Visitor nor did he ever reject the proposal. All relevant informations used to be regularly furnished by the University to the Visitor which also included the information about engagement of more than 300 well qualified PhD guides to supervise the research works of PhD students. This information was also furnished to the University Grants Commission under the Regulation of the University. Under the [ACT], Board of Governors alone was empowered to control the affairs of the University which amongst others also included two nominated representatives of the State Government. Strangely enough, the nominated members of the Board of Governors were never questioned or interrogated by the Investigating Officer or made to suffer a criminal charge. The petitioners have claimed that the University was functioning smoothly for the past about three years without any interference from Governors office till the Governor/Visitor all of a sudden declared all admissions illegal and issued direction to the CMJ University to recall and cancel the qualification degrees granted to the students of the University and thereafter without waiting for clarificatory reply from the University to the letter dated 26.04.2013 directed the registration of case through the Principal Secretary by way of submitting a complaint of the even date. It is also mentioned in the additional document filed by Shri [ENTITY] in the instant [CASE NUMBER] and the pending [CASE NUMBER] that the rapid rise of the University had become an eye sore for the present State Government of Meghalaya which has a personal long standing animosity towards him (Shri [ENTITY]) Chancellor of the CMJ University for his proximity and long association with some other prominent political leaders of Meghalaya. Since those leaders went out of power, therefore, the University as well as the Chancellor has been victimized as a blatant display of political vendetta notwithstanding the fact that among all the private Universities in Meghalaya, the CMJ University is the only private University having its own permanent campus on 30 acres of land and more than 2 lacs sq. ft. built up area including modern classrooms, well equipped laboratories and good quality accommodation for residential students. The then Visitor/Governor Shri [ENTITY] in a series of letters between 04.04.2013 to 13.04.2013 issued such directions and recommendations which not only led to closure of the University but also its dissolution. Even the local subordinate judiciary, instead of appreciating the case on merit was swayed by negative media reports and succumbed to the pressure of the State Government. The matter went up to Honble the Supreme Court and the Chancellor was granted temporary anticipatory bail vide order dated 19.07.2013 and thereafter by the order dated 13.09.2013, Honble the Supreme Court directed the State Government to give an opportunity to the University to rectify its shortcomings, if any, in the administration and management as required under [SECTION] of the [ACT]. The order also directed to sympathetically consider the petitions of students whose degree and admissions were declared illegal by the Visitor/Governor. It is averred in the written submission that in utter disregard to and defiance of the order of Honble the Supreme Court, the University itself was dissolved on 31.03.2014 without providing any opportunity under [SECTION] of the [ACT]. The story of harassment of the family members of the Chancellor included humiliation to his wife and constant fear of injustice in the mind of his petitioner sons. The Chancellor Shri [ENTITY] appeared before the Investigating Officer for more than 24 times and on his arrest he also remained in incarceration for more than 45 days. His wife was repeatedly called for interrogation to the Police Station on the pretext of investigation and made to sit for hours without following the directions as contained in the judgment passed in the case of DK Basu vs. The State of West Bengal, reported in AIR 1997 SC 610. Almost all the records of the University were seized so that the Institution is not able to give a proper reply and the petitioners are not in position to defend their case effectively. Even in the letter sent by the Principal Secretary to the Governor, it was mentioned that the functioning of the University has to be investigated without any specific mention as to how a criminal offence has been committed by the authorities of the University. Thereafter, the police started an exercise of witch hunting and roving investigation. Almost all the functionaries of the University except two nominated representatives of the State to the Board of Governors were arrested and released on bail later by the Courts. The Chief Judicial Magistrate also seemed to join the chorus and while supporting the Investigating Officer, without proper application of mind, not only issued non-bailable warrants against the petitioners but also issued lookout notices and proclamation to carry out proceedings under [SECTION] [ACT]. Over and above, the Chief Judicial Magistrate acted in complete disrespect to the Honble Supreme Courts judgments, and in gross contempt of the Court by issuing directions to handcuff the petitioners as if they are hardened criminals with a police record of heinous offences to their discredit, and as such, they could not have been controlled without being handcuffed. The orders of the Chief Judicial Magistrate, Shillong dated 04.08.2014 and 08.09.2014 are reproduced as :
" 04.08.2014 Seen prayer of the IO Shri [ENTITY], MPS, Addl. Superintendent of Police dated 01.08.2014 for issuance of NBWA against the accused persons, Shri [ENTITY] and Shri [ENTITY] who are the Secretary and Treasurer of the CMJ Foundation and they are likely to be in Kolkata at present.
It appears that the accused persons are evading appearance before the IO and concealing themselves.
IO have further prayed for handcuffing of the accused persons during the period of their transit in the event of them being arrested.
Prayer of the IO for handcuffing of the accused is allowed in the interest of investigation and safety of the accused persons.
Issue NBWA against both the accused persons. Fix 4.09.2014 for report.
Sd/- Shri [ENTITY] Chief Judicial Magistrate Shillong.
08.09.2014 Seen prayer of the IO dated 8.9.2014 for issuance of standing warrant of arrest against the accused persons, Shri [ENTITY] and Shri [ENTITY].
NBWA issued earlier against the said accused could not be executed as the accused are concealing themselves and evading arrest.
Hence issue proclamation against the accused persons as required. W/[SECTION] [ACT].
Fix 10.10.14 for S/R Sd/- Shri [ENTITY] Chief Judicial Magistrate Shillong".
The Chief Judicial Magistrate ignored the guidelines laid down by the Honble Supreme Court in various judgments which are as under :
"Handcuffs: The handcuffs should not be issued in routine manner. The minimum freedom of movement which even an under trial prisoner is entitled to under [SECTION] of the [ACT] cannot be cut down cruelly by application of handcuffs or other hoops. [[PRECEDENT].
Involvement of the prisoner in a score of criminal cases is no ground for handcuffing. Nor can a person be handcuffed only because he is charged with a grave offence. It cannot be used only for the convenience of the escort party. The rules, regulations and manuals of various states authorizing the police to use handcuffs have been struck down as violative of [SECTION] of the [ACT]. [[PRECEDENT].
Use of Handcuffs-conditions for: The handcuffs can be used by the escorting party must form the opinion on the basis of antecedents of the prisoner. [[PRECEDENT]]. The escorting authority should record contemporaneously the reasons for handcuffing an under trial prisoner even in extreme cases and intimate the court, so that the court may consider the circumstances and issue necessary directions to the escort party. [[PRECEDENT]].
Duty of Superior Officer of Police: The instructions given by the Apex Court must be obeyed from D.G. of Police to escort Constable and from I.G. of Prisons to Jail Wardens. The duty officer at the police station must ensure that an accused when brought to the police station or dispatched, the fact where he was handcuffed should be clearly mentioned along with reasons for handcuffing in the relevant diary of the police station. Disciplinary action should be taken against the defaulter for non- observance of the instructions of the Supreme Court. The supervisory officers at various levels are duty bound to see that the instructions of the Supreme Court are strictly complied with. [[PRECEDENT]]."
17. It is not that the petitioners had no intention to appear before the Investigating Officer but looking to the manner in which the criminal case was registered, the investigation was being carried out; Honble Supreme Courts order was disobeyed; the University was finally closed and the local CJM was helping the investigation by accepting the statements made in his applications by the IO as gospel truth, they offered to participate in interrogation by their letter dated 14.10.2014 on three dates, namely, 14.10.[SECTION]04, 15.10.2014 and 16.10.2014, and rightly so, during the breathing period of 7 days pre arrest bail. In the said letter, they expressed their willingness to join and cooperate with investigation. However, the Investigating Officer refused the request probably thinking that the petitioners were on bail, and as such, they could not have been put to 3rd degree method and forced to make incriminating statements against themselves; other co-accused; the University and the trust. It is nowhere provided in law that during interim bail the accused cannot offer to appear before the Investigating Officer to complete the exercise of interrogation. When the entire state machinery including the judiciary was against the petitioners as is well evident from the records and the conduct of authorities, hardly any person could hope to get fair treatment at the hands of police during the interrogation by the IO except during the reprieve like interim pre-arrest bail in this case. In the case of [PRECEDENT], the Honble Apex Court has elaborately dealt with the requirement of fair investigation as under :-
"10. That in the case of [PRECEDENT], one of us (Hon'ble [ENTITY], J.) has elaborately dealt with the requirement of fair investigation observing as under:- " 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 fail 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 jurisprudence and they are quite in conformity with the constitutional mandate contained in [SECTION] and [SECTION] of the [ACT] "
18. It is also noticeable that in the seizure memo, a recovery of Rs.80 lacs has been mentioned but for the reasons best known to the Investigating Officer, he made an application on 13.6.2014 seeking permission from the Chief Judicial Magistrate to correct the amount from Rs.80 lacs to Rs. 8 lacs. The petitioners have asserted that the Investigating Officer had seized Rs.80 lacs but he made the application to correct it to Rs.8 lacs only for the purpose of embezzling the rest of the amount. As usual, the Chief Judicial Magistrate, without holding any inquiry and examining the witnesses to the seizure, allowed the application only on the request of the Investigating Officer. Besides, when the Investigating Officer prayed for issuance of process under [SECTION] [ACT] against the petitioners despite the fact that neither the summons nor the non- bailable warrants were ever served upon them, the Chief Judicial Magistrate again acted promptly and without examining the provisions of law issued the proclamation only for the fact that the request had come from the Investigating Officer.
19. In the case of [PRECEDENT], it has been held that the attendance of the accused can be best secured by issuing bailable warrant or non- bailable warrant which depends upon the discretion of the Court. Such discretion has to be exercised judiciously while taking into account various factors such as nature, the character of the evidence, circumstances peculiar to the accused, possibility of absconding, larger interest of the public and the State. And above all the individual liberty is the most precious of all the human rights.
20. In a catena of decisions, the Honble Supreme Court has emphasized that where the Court comes to the conclusion that there was a serious irregularity in the investigation that has taken place, the Court may, direct a further investigation under [SECTION] [ACT] and can even transfer an investigation to an independent agency rather than directing re-investigation. In the instant case, the presumption of innocence of accused, being the well established principle of criminal jurisprudence has been completely sidelined from the inception just in order to appease the Governor who had wreaked vengeance and launched criminal proceedings against the CMJ University and the petitioners and their father, Shri [ENTITY]. In [PRECEDENT], the Honble Apex Court has observed as under :
"17. That the Supreme Court had in its Judgment of [PRECEDENT], had observed as under:-
" but if a police officer transgresses the circumscribed limits and improperly and illegally exercised his investigatory powers in breach of any statutory provision causing serious prejudice to the personal liberty and also property of a citizen, then the court on being approached by the person aggrieved for the redress of any grievance, has to consider the nature and extent of the breach and pass appropriate orders as may be called for without leaving the citizens to the mercy of police echelons since human dignity is a dear value of our [ACT]"."
[SECTION]. The purpose of [ACT] is to establish and incorporate a University in the State with emphasis on providing high quality and industry level education in the areas of Physical Sciences, Life Sciences, Technology, Medical Science and Paramedical, Management, Finance & Accounting, Commerce, Humanities, Languages & Communication. Applied and performing Arts, Education, Law, Social Science and related areas sponsored by the CMJ Foundation and to provide for matters connected therewith or incidental thereto.
22. [SECTION] of the Act states one of the objectives behind establishment of the University to be "to establish a campus in the [ENTITY] and to have Study Centers, campuses examination, off-campus centers, off-shores campuses and Regional Centers at different places in India and abroad."
23. The prosecution has alleged that the University had entered into numerous MOUs with various institutions outside the [ENTITY] which was impermissible in view of the statutory obligation of the UGC forbidding any new university to establish its centers outside the State in which it was primarily established within five years of its establishment.
24. The prosecution has failed to notice the fact that the very statute enacted by the [ENTITY], governing the University, itself provides for establishment of campuses outside the State by the University. It also does not provide for any time frame which may hinder the University in establishing campuses outside the [ENTITY]. Therefore, this particular allegation of the prosecution does not seem to be well founded in the eyes of law.
25. [SECTION] of the Act stipulates the power of the Visitor of the University, i.e., the Governor of the [ENTITY] to issue certain directions. The said provisions state, "On the basis of the information received by the Visitor, if he is satisfied that any order, proceeding or decision taken by any authority of the University is not in conformity with the Act, Regulation or Rules, he may issue such directions as he may deem fit in the interest of the University which will be binding to all concerned."
26. A thorough perusal of this legal provision can lead to one and only interpretation that only in the best interest of the University the Visitor, i.e., the Governor of the State can issue certain directions. However, an examination of the facts of the case at hand reveals that neither the Governor of the State had bothered himself to issue directions for securing the interests of the University nor the direction issued by the Principal Secretary to the Governor of the [ENTITY] to the Director General of Police on 26.04.2013 to investigate into the functioning of the University and to initiate criminal proceedings against the Chancellor of the University and other people concerned was in the interest of the University.
27. The Visitor, according to the powers conferred upon him by the Act, has no authority to order any sort of investigation into the functioning of the University as this legal provision does not empower him to do so. Clearly, this action of the Governor is a blatant transgression of the statutory obligation and powers conferred upon him.
28. The information sought by the Governor from the University in regard to the admission of the students within three days and simultaneous issuance of the direction to the police to initiate criminal proceedings without waiting for the applicant to furnish the requisite information can only suggest the presence of element of mala fide intention on his part to unnecessarily harass the applicant. It can also suggest that the actions of the Governor are inspired; actuated with and driven by political vendetta which compelled him to usurp the authority not intended to be exercised by him by the Legislature when passing the [ACT].
29. It goes without notice that the cases of mismanagement, mal- administration etc. are within the domain of the State Government and not that of the Visitor. [SECTION] of the Act makes it abundantly clear that, "On identification of mismanagement, mal- administration, indiscipline, failure in the accomplishment of the objectives of University and economic hardships in the management systems of University, the State Government would issue directions to the management system of the University. If the directions are not followed within such time as may be prescribed, the right to take decision for winding up of the University would vest in the State Government."
30. If there was gross mismanagement, mal-administration etc. in the University, any direction for rectifying and controlling the same should have been issued by the State Government as provided for in the legal provision in the Act mentioned above. It is completely outside the purview of the power of the Visitor to issue any directions of the sort, issued in the case at hand. Therefore, the directions issued on behalf of the Governor were absolutely unwarranted and completely illegal as being in derogation of the statutory provisions.
31. [SECTION] of the Act states that, "The Sponsor shall appoint a person suitable to be appointed as the Chancellor of the University subject to the approval of the Visitor." Clause (2) of the same section states that, "The Chancellor so appointed shall hold the office for a period of five years, which may be extended with a prior approval of the Visitor." Thus keeping in mind the academic exigencies of the University, the Sponsor had appointed the Chancellor on 29.07.2009 and had sent a copy of the resolution appointing the Chancellor to the Commissioner and Secretary (Education), Government of Meghalaya for the required approval.
32. As a part of the allegory emanating from perusal of the statutory provisions mentioned herein above, it is apparent that the appointment of the Chancellor of the University only requires an approval from the Visitor for providing a statutory recognition to the Chancellor so appointed by the Sponsor. Clause (2) comes into picture only when the existing Chancellor seeks extension of his tenure and that is when prior approval of the Visitor is required. So, in the case at hand, there was no requirement of prior approval in the appointment of the Chancellor. Moreover, the major allegation made in the complaint of Mr [ENTITY] only relates to illegal appointment of the Chancellor and question of issuance of fake degrees have been explained by providing information regarding total number of students enrolled and the fact that the Investigating Officer is grossly mistaken in counting the semester marks-sheets as degrees.
33. It is also pertinent to refer to observations made in the case of [PRECEDENT], by Lord [ENTITY] that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord [ENTITY] in [PRECEDENT] has stressed the importance of the inherent powers of the Court when he observed that if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious then in that case the judge has the power to intervene. He further mentioned that the courts power to prevent such abuse is of great constitutional importance and should be jealously preserved.
34. It may also be observed that all the accused including Shri [ENTITY] (alleged to be the main accused), have been granted bail and there is no complaint that any of them has misused the liberty so granted. Besides, it is also note worthy that, Shri [ENTITY], learned senior Government Advocate, makes an specific statement that in view of the fact that the charge-sheet has been filed, the petitioners are no more required to appear before the Investigating Officer.
35. For the foregoing discussions, I am of the considered view that there is a blatant abuse of process of court on the part of the Chief Judicial Magistrate in passing the orders dated 04.08.2014 and 08.09.2014 in [CASE NUMBER]. Thus, to secure the ends of justice, these orders cannot be sustained in law and have to be quashed and set aside. Hence, I order accordingly. Consequently, all such proceedings that arise out of the said orders dated 04.08.2014 and 08.09.2014 alleged to be pending with the police and before the court shall also not survive any further. Inevitably, these proceedings shall terminate forthwith and the petitioners, namely, Shri [ENTITY] and Shri [ENTITY] shall not be arrested or called for interrogation or subjected to any kind of pressure, harassment and fear of arrest by the police in connection with CID Police Station [CASE NUMBER]. As a result, the [CASE NUMBER] succeeds and is hereby allowed.
CHIEF JUSTICE [ENTITY]/dev