IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.51149 of 2008 AMAR KUMAR SINGH, son of Late Bihari Singh, resident of Mohalla M.I.G. No. 108, Kankarbagh, Patna, District Patna. Versus STATE OF BIHAR THRU.VIGILANCE … For the petitioner : Mr. Ashwani Kumar Singh, Senior Advocate, Mr. Dhananjay Kumar and Mr. Pankaj Kumar Singh, Advocates. For the State : Mr. Prashant Pratap, Special P.P. … 3 23-4-2010 Heard learned counsel for the petitioner and the counsel appearing on behalf of the State. This application has been filed for quashing the order, dated 25.8.2008 passed in Special Case No. 18/2004, arising out of Vigilance PS Case No.16/2004, by the Special Judge Vigilance I, Patna by which cognizance has been taken for the offences under sections 120B, 109, 420, 465, 467, 468 and 471 of the Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 against the petitioner and one Awdhesh Kumar Singh. By the said order the court has upheld the submissions made by the Special Public Prosecutor that there is no need to take sanction for prosecution against the petitioner on the basis of the noting of the Investigating Officer that no sanction is required. That question which have arisen in this case are : i) Whether the petitioner is a public servant? ii) Whether sanction is required for prosecuting the petitioner under the Prevention of Corruption Act as well as under the Penal Code? iii) Whether the prosecution would be maintainable in view of the fact that sanction was reused by the Syndicate of the Patna University? 2 iv) Whether the allegations constitute an offence which would come under the official duty of the petitioner? Admittedly, the petitioner is a professor of Hindi working in the Patna university where he was appointed as a lecturer in B.N. College on 2.1.1975. Subsequently the petitioner was promoted on the post of reader with effect from 1.2.1985. The petitioner applied for grant of promotion to the post of professor and was granted provisional promotion on 1.9.1988 vide notification, dated 10.8.1989 (Annexure 7). Eventually the petitioner’s promotion to the post of professor was confirmed by notification contained in memo no. 541, dated 10.4.1997 (Annexure 8) with effect from 2.1.1991. It has been stated here that the petitioner was a Gold Medalist throughout his academic career and it is relevant to note the date on which his M.A. result was published, that is, 27.11.1972. While applying for promotion to the post of Professor, the petitioner submitted an experience certificate which indicates that he was a lecturer in a private college at Daudnagar in Aurangabad district from 1.9.1972 to 1.1.1975. According to this certificate he would have completed sixteen years of regular service which is a condition precedent for promotion to the post of professor as per the Statutes issued by the Patna University. The production of experience certificate at Daudnagar has led to the filing of the present prosecution in which it is alleged that it is a false and forged certificate and the petitioner by producing such a certificate has obtained promotion to the post of professor although he had not completed the 3 required length of service under the scheme of Time Bound promotion. It has been submitted on behalf of the petitioner that the certificate produced by him has not been taken into account for considering his promotion to the post of professor which would be apparent from Annexures 7 and 8. By Annexure 7 the petitioner was granted provisional promotion with effect from 1.9.1988 which was modified by Annexure 8 and the petitioner was granted promotion with effect from 2.1.1991. Counsel appearing for the Vigilance Department contends that the allegations as made out in the F.I.R. and the charge sheet reveal offence does not come within the discharge of public duties; the court should not consider the documents at Annexures 3, 5 7 and 8 for any purpose, while deciding this case as they cannot be considered at the stage of taking cognizance. The allegations which have been levelled in the charge sheet against the petitioner are that he produced a forged certificate to show that he was a lecturer at Daudnagar college in Aurangabad district from 1.9.1972 to 1.1.1975 whereas the result of petitioner’s M.A. examination was declared on 27.11.1972. Thus, it is said that he could not have been appointed as lecturer until his M.A. result was published. The petitioner in fact would have completed only fourteen years and five months as a lecturer if his services at Daudnagar were not taken into account. Thus, he would not be entitled to the time bound promotion. It is further alleged that the certificate has been verified and the name of the petitioner does not find place in the register at Daudnagar college. The 4 statement of Shri Kameshwar Sharma, Principal of Daudnagar college before the vigilance officer investigating the case that he does not know Dr. Amar Kumar Singh and that no certificate/G-555, dated 2.1.1975 was issued from the college at Daudnagar. It is alleged that the staff of the Daudnagar college was not able to identify the signature made on the certificate. It has lastly been alleged that on the representation made by Ram Khelawan Rai that the aforesaid facts have come to light. On the basis of the aforesaid allegations in the charge sheet, cognizance has been taken in this case. In reply to the aforesaid allegations, learned counsel for the petitioner submits that the investigation made by the Vigilance Department is perfunctory. When the petitioner was working, the college was a private college and there was dearth of lecturers. Seeing the brilliant career of the petitioner, he was given the job in anticipation of his result. The registers and documents relating to the period when the petitioner was working have not been looked into and statements have been taken from persons who were not connected and in service of the college when it was a private one, much less, connected with the signatory of the certificate and on the basis of an enquiry which is defective, a charge sheet has been submitted. It is submitted that in any event the petitioner’s certificate has not been considered for the purpose of promotion. The entire allegations are based on the representation made by Ram Khelawan Rai who is petitioner’s junior and has benefited by lodging of the present case as he has been appointed Head of the Department after removing the petitioner from the said post. 5 Above all the contention of the petitioner is that the certificate is not forged and if investigation is done in a proper manner, facts would reveal that the petitioner was in fact working as a lecturer for the short period of time when the college was private one. Learned counsel for the petitioner submits and this part is admitted by the Vigilance Department that during investigation of the case the prosecution sought for an order of sanction from Patna University. The requisition for sanction was forwarded by the Vice Chancellor of the University to the Syndicate of Patna University. The Syndicate of the University in its meeting held on 10.3.2006 refused to grant sanction and the Vice Chancellor who is the Head of the Syndicate communicated the decision to the A.D.G. Cabinet (Vigilance) Department, Government of Bihar by letter, dated 25.3.2006 issued under the signature of Registrar of Patna University (Annexure 4). One Dinesh Prasad Singh who is Head of the Department of Hindi and is immediate junior to the petitioner filed an application before the Chancellor on 24.4.2007 for quashing the decision of the Syndicate, dated 10.3.2006 rejecting the sanction for prosecution against the petitioner (Annexure 5). Learned counsel for the petitioner has also annexed a letter no. 2148, dated 26.6.2008 issued by the Governor’s Secretariat on the strength of which the Investigating Officer claims that sanction for prosecuting the petitioner was not required. This letter, dated 26.6.2008 wherein it has been stated that no sanction is required for prosecuting the petitioner, and has been issued on the strength of an opinion given by a Senior Advocate of the Patna High court. The letter, 6 dated 26.6.2008 contained in Annexure 6 has been obtained under the Right to Information Act. The reasons for holding that sanction is not required are strange. It is said that (a) that a teacher of the University is not a public servant within the meaning of section 21 of the Penal Code, (b) that the act of forging an experience certificate claiming his experience for appointment is not an act in performance of official duty and (c) that even if it is presumed that the petitioner is a public servant, his appointing authority is the Vice Chancellor of the University and the Syndicate has no role to play in the matter of grant of sanction. This led the Chancellor to conclude that no sanction was required for prosecuting the petitioner. Since both the parties have vehemently argued on this aspect of the matter, I may clarify the legal position with respect to the petitioner’s position in the University. Section 2© of the Prevention of Corruption Act deals with the definition of a public servant. Clause (ix) of sub-section © (ii) reads that “Any person who is a Vice Chancellor or a member of any governing body, professor, reader, lecturer or any other teacher or employee, by whatever designation called, of any University and any person whose services have been availed of by a University or any other public authority in connection with holding or conducting examinations” would come within the definition of a public servant. Therefore, there should be no dispute in the mind of the parties that the petitioner who is a professor is not a public servant. The arguments raised on behalf of the Vigilance Department with respect to power of appointment of a teacher in fact needs to be discussed for the reason that it has been contended that the 7 Syndicate has not got the power to refuse or grant sanction for prosecution of a teacher as the Syndicate is not the appointing authority. With respect to legal position I may refer to section 24 of the Patna University act which deals with the powers and duties of the Syndicate. Sub-clause (e) of section 24 specifically states “save as otherwise provided in this Act or the Statutes, shall appoint officers (other than Vice Chancellor or Pro Vice Chancellor) and teachers of the University and shall define their duties and provide for the filling of temporary vacancies to the posts of such officers and teachers”. In view of the aforesaid provision it is clear that the Syndicate has the power to appoint teachers of the University in accordance with their qualification as laid down under the Act or the Statutes issued from time to time. Therefore, it cannot be contended by the Vigilance Department that the Syndicate did not have the power to grant or refuse sanction of a teacher. I shall deal with the contention that the offences alleged was not in performance of his official duty at a later stage. Counsel for the petitioner has contended that the entire case has been set in motion because of the persons who have benefited by the removal of the petitioner from the post of Head of the Hindi Department. While substantiating the aforesaid contention, counsel for the petitioner referred to Annexures 7 and 8. As stated earlier Annexure 8 is the notification by which the petitioner was promoted as Professor in Hindi Department. After the said notification, it is said that the Registrar, Patna University vide his official letter bearing No. Gi 2323, dated 26.11.2007 informed the Special Officer of the University posted in the Governor’s 8 Secretariat and apprised him regarding the seniority of teachers of Hindi Department of Patna University. The letter goes on to suggest that Dr. Sukhda Kumari (Pandey) was senior most teacher in the Hindi Department. She was working as Incharge Principal of Magadh Mahila College, Patna. Thereafter, the petitioner was second senior most professor who at that time was posted as Director in Bihar Hindi Granth Academy and thereafter Dr. Dinesh Prasad Singh stood third in the seniority of teachers of the Hindi Department and was appointed Head of the Department. The petitioner resigned from the post of Director, Bihar Hindi Granth Academy and submitted his joining in the University on 6.9.2005 and claimed to be appointed as Head of the department on the strength of his seniority. The petitioner was appointed as Head of the Department on the recommendation of the Legal Advisory Committee. Immediately thereafter Dr. Dinesh Prasad Singh filed an objection before the Vice Chancellor who cancelled his notification on 26.11.2007. It is contended by the petitioner that one Ram Khelawan Rai and Dr. Dinesh Prasad Singh have manufactured the allegations that the petitioner was not having due qualifications and that his letter showing experience as lecturer at a private college in Daudnagar, Aurangabad is a forged document and as such it is submitted that the entire case has been instituted due to vested interest. The document was neither forged nor fabricated and the investigation conducted on behalf of the Vigilance department is perfunctory and not fit to be considered. It is submitted that the court taking cognizance should have applied its mind and not proceeded in an automatic manner without considering whether the 9 investigation made out any allegation against the petitioner. However, the question whether the proceedings were tainted with malafide or were on the basis of vested interest cannot be considered at the time of cognizance. It has been submitted on behalf of the opposite party that the court taking cognizance could not have considered the documents that have been produced i.e. Annexures 3, 5, 7 and 8. The question is whether this court can consider these documents? In my opinion, letters of appointment issued by the University or the State Government, letters of termination or proceedings of Government or semi Government bodies are authentic documents unless challenged. The High court proceeds on the basis of such documents to issue writ of mandamus, quo-warranto etc. and as such I find that the court while exercising the jurisdiction under section 482 of the Cr.P.C. can look into the documents referred to above. The Supreme court has held that the courts while considering applications under section 482 of the Cr. P. C. may consider such documents as the court considers unimpeachable for the purposes of rendering justice between the parties. (2008 [2] Cr. L. J. 1891). Lastly I should come to the most important aspect of this case as to whether sanction is required for prosecuting the petitioner? In this context it has been argued by counsel for the Vigilance Department that there is no necessity of taking sanction in this case considering that the allegations against the petitioner was of producing a forged certificate in order to enable him to gain an advantage and enhance his years of experience to sixteen years which is the minimum period for the purpose of grant of time bound promotion to the post of reader of a University. 10 The documents contained in Annexures 7 and 8 indicate that the said offending certificate was in fact not considered for the purpose of granting him time bound promotion. The question, therefore, is whether the production of such certificate even if it is presumed that it is a forged document would per se amount to an offence in the facts of this case? I shall first deal with the offence under section 420 of the Penal Code. Section 415 of the Penal Code defines cheating. The apex court in the case of Ram Jas vs. State of U.P., AIR 1974 SC 181 has said as follows : “(1) The ingredients required to constitute the offence of cheating under section 415 are : (i) There should be fraudulent or dishonest inducement of a person by deceiving him. (ii) (a) The person so deceived should be induced to deliver any property to any person, or consent that any person shall retain any property; or (b) The person so deceived should be induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) In cases covered by (ii) (b), the Act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation 11 or property.” Each part of the section is independent of the other. The common feature in both parts of the section are that there must be deceit practiced by the accused persons upon the victim. In the first part it is sufficient if there is a dishonesty or fraud in obtaining delivery of property. Under the second part there must be an intentional inducement of the victim to do or omit to do some act which he should not otherwise do or omit and as such act of omission of the victim must cause or likely to cause damage or harm to the person in body, mind, reputation or property. The case of the petitioner would be covered under clause (ii(b) as aforesaid. Even if for the sake of argument it is presumed that the allegations are correct in their entirety, the certificate produced would be considered to be with an intention for some gain, which the petitioner would not have been entitled to and loss to a person by virtue of depriving him of his entitlement i.e. promotion to the post of professor. In the present case it did not happen as it is apparent that the petitioner was in fact given promotion de hors the experience of teaching as a lecturer at Daudnagar, Aurangabad. Therefore, I find that the order of cognizance as far as it relates to section 420 of the Penal Code is unwarranted and the petitioner cannot be summoned to face trial under section 420 of the Penal Code. I shall now deal with the offences allegedly committed under sections 465, 467, 468 and 471 of the Penal Code. Section 464 of the Penal Code deals with making a false document. It has been alleged that the petitioner had produced a false document for an illegal gain. 12 Section 465 of the Penal Code is punishment of committing forgery. Section 467 is an offence which deals with using as genuine a forged document. The Law Lexicon defines “forged” to make in the likeness of something else (Webster Dictionery;) to fabricate by false imitation; to make or fabricate a thing in imitation of another with a view to deceive or defraud; to make falsely, to counterfeit. Forgery may be defined at common law “to be the fraudulent making a alteration of a writing to the prejudice of another man’s right” (Black Stone). In order to prove that a man is guilty of forgery, the essence is that he must know that the document produced is a false one and it must be produced and used in a manner which would cause wrongful loss to another person and perhaps illegal gain to the person so producing the document. The act of producing a forged document has been made the essence of the allegations as set out in the charge sheet against the petitioner. The purpose for which it was produced is said to be that the petitioner would be benefited in the matter of his promotion to the post of professor. The fact remains that the document was not considered by the authorities who granted him promotion. As such the question whether the petitioner would be held guilty of forgery even though the purpose for which the document was produced assuming that it was a forged document (although not accepted by the petitioner), would constitute an offence under sections 465, 467 and 471 of the Penal Code should be considered, if this question is raised at the time of framing of charges. This court would not at the stage of cognizance look into the question. Counsel for the petitioner has referred to several 13 decisions which I do not think are very relevant but it would be fair to refer them. Counsel for the petitioner refers to the case of Dr. Suresh Prasad vs. State of Bihar, 2010(1) PLJR 989. This case refers to a trap case in which sanction was not obtained under section 19 of the Prevention of Corruption Act. The court set aside the order of cognizance with leave to the Vigilance Department to remedy the defect. The case of Ran Vijay Kumar vs. State of Bihar & Another, 2006 (3) PLJR 192 deals with a case in which a University teacher was prosecuted under the Prevention of Corruption Act without an order of sanction. In fact sanction was refused by the Syndicate. The court quashed the order of cognizance. I may state here that the allegation was of taking undue advantage of his position and obtaining money from business house for an N.G.O. run by one Ashok Singh. Similarly counsel for the Vigilance Department has referred to the case of State of Bihar vs. P.P. Sharma, 1991 (2) PLJR 11 wherein the court while considering the power of the High court under section 482 of the Cr.P.C. has observed that it is not the function of a criminal court to appreciate evidence and as such quashed the order of the High court which purported to quash the criminal proceeding. Similarly in the case of Divine Retreat Centre vs. State of Kerala, 2008 Crl. L.J. (S.C.) 1981, the Supreme court has stated that the powers under section 482 of the Cr. P. C. should be exercised to secure the ends of justice. This court has no dispute with the principles as laid down by the aforesaid two judgments. This court has not evaluated the evidence but has relied on the facts as stated by the petitioner and the 14 Vigilance Department and certain documents which according to this court are unimpeachable and can be relied upon in view of the decisions reported in the forgoing paragraphs. The question whether sanction is required or not in the facts of the present case should also be raised at the time of framing of charges. In any event the Vigilance Department is well aware that there is no order of sanction and would not have the advantage of raising any defence during the trial on this aspect of the matter in case the trial court finds that sanction was necessary in the facts of the above mentioned case. This application is allowed in part to the extent indicated above. Haque/Anand/ AFR (Sheema Ali Khan, J.)