IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37761 of 2009 RUP BIHARI SINGH, SON OF LATE RAUSHAN SINGH, RESIDENTS OF VILLAGE BHAKHRA, P.O. HAUSADIH, P.S. MASAURHI, DISTRICT PATNA AT PRESENT RESIDING AT SRIKRISHNAPURI, L1-58, P.O. G.P.O. PATNA, P.S. SRIKRISHNAPURI, DISTRICT PATNA. ------ PETITIONER Versus 1. THE STATE OF BIHAR. 2. POONAM DEVI, WIFE OF LATE JANESHWAR PRASAD SINGH, M.L.A. cum MEMBER OF GOVERNING BODY, D.N. COLLEGE, JATICHAK MASAURHI, P.S. MASAURHI, DISTRICT PATNA. ------ OPPOSITE PARTIES ----------- 4 11.3.2010 Two quashing applications were filed, one challenging the order of cognizance dated 11.8.2008 being Cr. Misc. No. 48470 of 2008 and the other being Cr. Misc. No. 37761 of 2009 challenging the order dated 21.3.2009, passed by the Subdivisional Judicial Magistrate, Masaurhi in Masaurhi P.S. Case No. 9 of 2008 refusing to discharge the petitioner for offences under Section 406 and 420 of the Indian Penal Code. The application filed earlier for quashing the cognizance order was withdrawn by the petitioner since the questions and points involved were all raised in the application for quashing of the order of discharge. The facts are that there is a college known as D.N. College, Masaurhi (Patna) (hereinafter referred to as ‘the College’) which is a private institution and is affiliated with the Magadh University, Bodh Gaya. The College was established on 26.6.1979 and the petitioner was the founder Secretary of the College. By a notification issued through memo no. 55/GIIIB dated 30.9.2004 by the Magadh University, the petitioner was declared/elected the Donor Member of the Governing Body of the College. Clasue 3(1) - 2 - of Chapter-XIII of Magadh University Statute defines the terms of office of the members of the Governing Body other than the teacher member and University representative for a period of three years from the date of election, nomination or co-option, as the case may be and also includes a further period not exceeding three months that may elapse between the expiry of their terms and the next election, nomination or co-option. The Clause further provides that the terms of office of the University representative and teacher member shall for a period of one academic session. It is the case of the petitioner that he was elected/declared Donor Member on 10.10.2004. His term expired on 30.9.2007. Hence in between 1.10.2007 to 31.12.2007 as per the Statute, the petitioner was the Secretary of the College and was authorized to look after the accounts of the college. By notification dated 11.10.2007, the Vice-chancellor of the Magadh University under Section 60 of the Bihar University Act and under Chapter-XIII(1) of the Magadh University Statute appointed Smt. Poonam Devi as the public representative, Prof. Ram Lakhan Prasad as the University representative and Dr. Birendra Kumar as teacher’s representative of the Governing Body. On 7.1.2008 Smt. Poonam Devi opposite party no. 2 filed a complaint on the basis of which Masaurhi P.S. Case No. 9 of 2008 was registered. The allegations in the First Information Report are that when she saw the saving account nos. 3942 and 21495 of the College, she found that from the said saving accounts in between 1.10.2007 to 31.12.2007 about Rs. 7,11,000/- had been illegally - 3 - withdrawn by the petitioner and the said amount had been embezzled. It is said that the petitioner has falsely shown himself to be the Secretary of the College. The case was investigated and final form was submitted on 20.4.2008 indicating that the case is false. Thereafter a protest petition was filed on behalf of opposite party no. 2 and the Court proceeded in the matter and took cognizance as stated by order dated 11.8.2008. The only question that has arisen before this Court is whether the petitioner was entitled to operate the account of the College between the periods 1.10.2007 to 31.12.2007. The question raised is a pure question of law and is depend on the interpretation of the Statute of the Magadh University. Chapter-XIII deals with the constitution, management and the period of term of membership of the members of the Governing Body. Clause 1 provides that “There shall be a Governing Body constituted for management and administration of every admitted college other than colleges owned and maintained by the State Government or college established and administered by religious linguistic minorities or admitted as technical or Medical colleges which shall consist of the following members:- (i) Principal of the College Ex-Officio. (ii) One teacher elected from and by the teachers of the College. (iii) One representative of the University nominated by the Syndicate. - 4 - (iv) One Government Officer of the State Government not below in the rank of the Sub- divisional Magistrate posted in the district nominated by the Syndicate. (v) One member elected from amongst themselves by Donors who have donated not less then Rs. 25,000/- to the college (the petitioner falls within this category). (vi) One member either of Parliament or the State Legislature residing in the district preferably of the locality where the college is situated nominated by the Syndicate. (vii) One member co-opted by the Governing Body from amongst the educationists or persons noted for their academic interest residing in the district where the college is situated. Clause 3 (i) provides the term of the Governing members of the college. It says that “The terms of office of the members of the Governing Body other than the teacher member and University representative shall be for a period of 3 years from the date of their election, nomination or co-option, as the case may be and shall include any further period not exceeding 3 months that may elapse between the expiry of their terms and the next election, nomination or co-option. The term of office of the University representative and teacher member shall be for a period of one academic session.” - 5 - As per the statute Clause 3(i), there can be no doubt about the fact that the Donor member shall remain in office for three years and the period can only be extended for three months after the expiry of three years. It also envisages that after three months whether or not there is an election, nomination or co-option, the Donor member shall cease to be a member of the Governing Body. In this context it has been argued on behalf of the opposite party no. 2 that the petitioner had ceased to be a member on the expiry of three years i.e. on 30.9.2007 by virtue of the fact that the Magadh University had issued a notification dated 11.10.2007 constituting the Governing Body vide notification no. 186/G IIIB. It would be clear from the notification dated 11.10.2007 that apart from Smt. Poonam who was nominated member of the Governing Body as a public representative, two other members i.e. Prof. Ram Lakhan Prasad had been nominated as a University representative vide Magadh University notification no. 123/G-III B dated 23.7.2007 (annexures 11 and 11A). Dr. Birendra Kumar was notified as teacher’s member of the Governing Body vide letter no. 122/G-III B dated 20.7.2007. The name of all these persons i.e. Prof. Ram Lakhan Prasad and Dr. Birendra Kumar finds place in the notification dated 11.10.2007 besides which the period of membership of the University representative and teacher member is only for one year and therefore, they are nominated every one year to be members of the Governing Body whereas the term of membership of the Donor member is three years and, therefore, his nomination takes place after - 6 - three years. Thus the language of the Statute indicates that it is not that the term of the Governing Body that comes to an end by the operation of the statute rather the member’s period comes to an end as per Clause 3(i) of Chapter-XIII of the Statute. The Court taking cognizance and the Court considering the discharge petition are confused about the term of the Governing Body and the individual members. It is clear that the term of the individual members of the Governing Body are different with respect to the different types of members who form the Governing Body as would be apparent from Clause 3(i) of the Statute. Counsel for the opposite parties has referred to the amendment dated 12.2.1982 of Clause 3 of Chapter-XIII of the Statute. After article 7 of Clause 3(i) the amendment are as follows: “provided that, if for any reason, the post of Secretary of the Governing Body falls vacant, the University representative of the Governing Body shall function as Secretary till election of the new Secretary. This proviso shall cover Article 22(1) of the Chapter “Governing Body” of the Statutes.” An attempt has been made to argue that this proviso envisages that as soon as the post of Secretary falls vacant, the University representative would be acting as a Secretary and as such the petitioner could not have acted as a Secretary for the extended period of three months. The proviso to Clause 3(1) has to be read along with Article VII. Article VII envisages that: “Any member except an ex-officio member who fails to - 7 - attend four consecutive meetings of the Governing Body of the college of which he is a member without obtaining leave may be declared by the Syndicate to have vacated his seat in the Governing Body and all such vacancies shall be filled up in the manner prescribed.” This article envisages and requires that the members of the Governing Body should attend the meetings of the Governing Body and if they do not do so on four dates, it would be deemed that they have vacated their post in the Governing Body and the power has been given to the Syndicate to fill up the vacancy in the prescribed manner. As such the proviso envisages that if the post of the Secretary falls vacant, the University representative may take all functions of the Secretary till the next election. This proviso in no way alters the provision of the period of membership of the Secretary or any member of the Governing Body. It cannot be argued that the term of the petitioner expired after three years when there is specific provision that it can be extended for three months rather after three months if there is no election the proviso to Article VII would empower the University representative of the Governing Body to act as a Secretary till the next election. The statute has to be interpreted in consonance with the clauses of the statute and it cannot be read in a manner which is in conflict with the provisions of the main clause. This Court therefore, on the basis of the discussion aforesaid finds that the petitioner was validly acting as the Donor member/Secretary for the extended period i.e. between 1.10.2007 to - 8 - 31.12.2007. Once the Court has held that the petitioner was entitled by virtue of Clause 3(i) to continue in the Governing Body as a Donor member and Secretary of the College the question that remains to be examined is whether the acts done as a Secretary constitute any offence? It has been alleged that the petitioner withdrew about 7,11,000/- from the saving accounts of the College between 1.10.2007 to 31.12.2007. I may point out here that there is no allegation that he misappropriated the money as the investigation or the enquiry does not indicate that the money was misused by the petitioner for his own gains. The Secretary under Clause (vii) is an agent of an Executive Officer of the Governing Body assigned a specific role. Clause 23 deals with the manner in which the College funds are to be operated. It provides that the funds should be kept separately in a scheduled Bank, Post-office, Saving Bank or Banks approved by the Syndicate in the name of the college. The General Fund shall be operated and administered jointly by the Principal and the Secretary in accordance with the sanction and budget. There is no allegation that there was any illegal withdrawal by the petitioner of the funds of the College. He had operated the account jointly along with the Principal in accordance with the sanction and budget. The only allegation is that the petitioner was not entitled to operate the account as his term as a Donor member had expired. The complaint does not allege that the Principal had in connivance with the petitioner misappropriated or misutilized the money in question. - 9 - Therefore, in fact no offence whatsoever, has been committed by the petitioner as far as it relates to the actual withdrawal of the College funds. In the facts aforesaid this Court finds that no offence is made out under Sections 406 and 420 of the Indian Penal code. This case is squarely covered by Clause (1) of State of Haryana & Ors. Vs. Bhajan Lal & Ors. reported in 1992 Supp. (1) SCC 335 . In the result, the order dated 21.3.2009 passed in Masaurhi P.S. Case No. 9 of 2008, passed by the Sub-divisional Judicial Magistrate, Masaurhi and order dated 12.8.2009 passed in Cr. Rev. No. 239 of 2009 by the Additional Sessions Judge, VII, Patna is hereby quashed. This application is allowed. Sanjay/A.F.R. ( Sheema Ali Khan, J. )