IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.641 of 2010 1. DR. NAND KISHORE SHARMA S/o Late Tilakdhari Sharma at present working as Vice Chancellor, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga. 2. Dr. Vimal Narayan Thakur, S/o Late Yugeshwar Thakur, Ex. Registrar, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga. 3. Dr. Anup Prasad S/o Late Narayan Mahto, Ex. Finance Officer, at present posted as Registrar, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga. 4. Manoj Kumar S/o Ramswarth Prasad, Ex. Controller of Examination, Kameshwar Singh Darbhanga Sanskrit University, Darbhanga. Lecturer, Department of Sanskrit, B.R.Ambedkar, Bihar University Muzaffarpur. 5. Subodh Kumar Jha, S/o Late Kamala Kant Jha, S.D.O., Examination at present posted as Lecturer, in Ramautar Gautam Sanskrit College, Ahilya Asthan, Darbhanga. 6. Dr. Arbind Pandey, S/o Sri Jainarayan Pandey, at present posted as Principal, Mahanth Shatanand Giri Harihar Sanskrit Mahavidyalaya, Bodh Gaya. . . . Petitioners. Versus 1. THE STATE OF BIHAR 2. Sri K.K. Pathak, Secretary, Human Resources Development Department, New Secretariat, Patna. 3. Sri Jaichand Prasad Srivastava S/o Late Kameshwar Pd. Srivastava, Residence of Narkatiyaganj, P.S. Sikarpur, District West Champaran, at present posted as Regional Deputy Director of Education, Darbhanga. . . . . Respondents. ----------- 10/ 06.09.2010 Heard learned counsel for the petitioners and the State. Both Cr.W.J.C. No. 641 of 2010 and Cr.W.J.C. No. 675 of 2010 are taken up together for hearing side by side. In the instant writ application, all the six petitioners have prayed for quashing the Criminal Proceeding in L. N. Mithila University P.S. case no. 126 of 2010 dated 29.06.2010, registered under Sections 420, 409, 467, 468, 471, 197, 218 and 120 B of the Indian Penal Code and Section 13 and 14 of the Prevention of Corruption Act. The petitioner no.-1 is Vice-chancellor of Kameshwar Singh Darbhanga Sanskrit University, Darbhanga (hereinafter 2 referred to as K.S.D. Sanskrit University). Petitioner nos.-2 to 5 also held important post in the said University, being Ex-Registrar, Ex- Finance Officer and Ex-Controller of Examination S.D.O., Examinations. Petitioner no.5 is at present Lecturer in Ramautar Gautam Sanskrit College, Ahiya Asthan, Darbhanga and petitioner no.6 is Principal of Mahanth Shatanand Giri Harihar Sanskrit, Mahavidyalaya, Bodh Gaya. The First Information Report has been instituted upon the written report of the Regional Deputy Director of Education, Darbhanga Region. The First Information Report is based upon the enquiry conducted on 18.06.2010 and 19.06.2010 by a committee as per direction of Secretary Education. The enquiry was ordered in view of complaints particularly made by Chetana Samiti and one Baliram Mishra, an Assistant in Shree Mahanth Shatanand Giri Harihar Sanskrit Mahavidyalaya, Bodhgaya, Gaya. The allegation in brief are as follows: (a) The Vice-chancellor, Financial Adviser, Finance Officer and Examination controller deliberately absented themselves on the dates of enquiry on 18.06.2010 and 19.06.2010. (b) The lecturers have been regularized and payment have been released without due permission of the Government. © Two of the regularized lecturers, namely Subodh Kumar Jha and Rakesh Kumar Jha were illegally appointed as officer on Special Duty. The Vice-chancellor on 18.03.2008 selected one Kaushlendra Kumar Rakesh for Basudeo Sanskrit Mahavidyalaya, 3 Akbarpur and accepted his joining illegally causing loss to government exchequer. One Venkatesh Sharma of Gurukul Sanskrit College, Bairgania was wrongly paid a sum of Rs. 2,40,000/-. The Vice-chancellor appointed three persons namely Pramod Sharma, Umesh Mandal and Suresh Prasad Gupta in June, 2008, April 2009 and January, 2010, when government had restrained appointment on daily wages. Further more, a sum of Rs.8,29,684/- which was directed to be recovered by the Government Auditor has not been recovered. As per the prosecution case, despite objection by Ex- Finance Officer, the Registrar paid a sum of Rs. 8,00,000/- to contractor, which is punishable under Prevention of Corruption Act. Furthermore, the Vice-chancellor and Registrar paid a sum of Rs. 15,00,000/- for construction of boundary wall, Senate hall and renovation of V.C. Office without inviting tenders from U.G.C. fund. The prosecution case in nut shell is that in course of enquiry the Director, Higher Education and his team found accused indulging in financial irregularities, misusing fund released to the University, corruption into the matter of appointment in teaching and non-teaching posts, corruption in admission of B.Ed. Course, defalcation of money in lakhs, illegal promotions, misuse of public money, diversion of fund released to the University in spite of restrictions given to the Universities, misappropriation of fund, criminal breach of trust and complicity of public servants in corruption etc. The petitioners submit that it would appear from the 4 counter affidavit of the University that enquiry team was constituted on the basis of unaffidavited complaint dated 15.06.2010 of Sanskrit Chetna Parishad, Bihar made to the Human Resources Development Department. Pursuant to direction of Secretary, Education enquiry began within three days of the receipt of the complaint on 18.06.2010 and 19.06.2010. The petitioners submit that K.S.D. Sanskrit University is governed by the provisions of Bihar State Universities Act, 1976 (hereinafter referred to as Universities Act, 1976). Section 10(6) of Universities Act, 1976 confers power on the Vice Chancellor to make appointment on the vacant post of Class III and IV. The Universities established under the University Act are autonomous institutions. The Vice-chancellor and its office are under direct supervision of the Chancellor of the Universities of Bihar Act. The Act does not permit the State Government to interfere with the day to day functioning of the University. The role of State Government is limited to grant of sanction for creation of new post under Section 35 of the Act, approval of budget of the University under Section 48 of the Act and power to have accounts of University or College audited under section 54 of the Act. The petitioners state that they did not have any prior information of the enquiry and on account of personal reasons, they were not present in Darbhanga. They have controverted the allegations made in the First Information Report particularly the one involving alleged financial illegalities. Furthermore, the teachers were paid their salary as per their norms. On approval of Finance 5 Committee a sum of Rs. 8,00,000/- granted from U.G.C. fund was spent upon contract work. The allegations regarding demand of money for admission in B. Ed and in formulation of results are without any basis. Furthermore, Government has nothing to do with U.G.C. fund and U.G.C. has no complaint. The petitionerno.6 made payment of money to Sudha Sinha after approval of her appointment from competent authority and following all norms. He further submits that Hon’ble Chancellor has constituted one man enquiry committee vide Memo no. SU- 15/2008/5310 dated 12.12.2008 and the report thereof is under consideration. He submits that Hon’ble Apex Court in the case of P. Sirajuddin etc. Vs. The State of Madras etc., reported in AIR 1971 SC 520, held that no First Information Report can be registered under the P.C. Act without preliminary enquiries. The petitioners submit that Chief Secretary has issued circular dated 24.06.2005 that no complaint or enquiry be initiated on the basis of unaffidavited petition. It has been stated that Sanskrit Chetana Samiti has been projected as a weapon to defile image of the Vice-chancellor, which is nothing but creation of Sri K.K. Pathak, the Secretary of H.R.D. Department. The petitioners submit that in similar manner, one First Information Report was instituted against the Vice-chancellor of the Magadh University, which was challenged in Cr. Misc. No. 33277 of 2009. After hearing the parties, a Bench of this Court was pleased to restrain the respondents from taking any coercive steps till thorough enquiry is made and charge-sheet is submitted. 6 The University Act has ample provisions to deal with allegations leveled in First Information Report. The University Act is a special act and would override the general Act. In this respect petitioner refers to case A. K. Roy & Ano. Vs. State of Punjab & Ors, reported in AIR 1986 SC 2160, J. K. Cotton Spinning and Weaving Mills Co. Ltd. Vs. State of U.P. & Ors., reported in AIR 1961 SC 1170. Learned counsel contends that the court can take notice of special feature of the case and can quash criminal prosecution to do ex debitio justitae prevent the abuse of the process of the Court. In support of his submissions, learned counsel for the petitioners has relied upon decisions reported in case of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors, reported in 1992 Suppl. (1) 335: AIR 1992 SC 604, Pratibha Vs. Rameshwari Devi and Ors, reported in (2007) 12 SCC 369, Inder Mohan Goswami & Ano. Vs. State of Uttaranchal & Ors., reported in (2007) 12 SCC 1 and All Cargo Movers (India) Private Limited & Ors. Vs. Dhanesh Badarmal Jain & Ors., reported in 2007(14) SCC 776. Mr. Lalit Kishore, learned AAG, appearing on behalf of the State submits that the prosecution case does disclose a cognizable offence and only if the prosecution does not disclose a cognizable offence, the same can be quashed. In support of his submissions’ learned counsel has relied upon a decision in case of R. Kalyani Vs. Janak C. Mehta & Ors reported in (2009) 1 SCC 516. He submits that accused has committed financial embezzlement, made fake appointments, granted B. Ed. degree and contract works on extraneous considerations. Furthermore, the allegations also 7 disclose a case under Section 409 of the Indian Penal Code and P.C. Act. The accused persons by their act of omission and commission have caused unlawful loss to the University and Government, and gain unto themselves. He submits that Hon’ble Chancellor is only administrative and academic head. The State will be in its right to institute First Information Report, if the allegation is one of financial illegalities and embezzlement. He submits that the Government under Section 54 of the Act can get the Accounts Audited and if financial embezzlement / misappropriation comes to the fore, Government can institute First Information Report. The main plea of the petitioners is that they have not committed any illegality or financial embezzlement. They submit that no notice of any enquiry was given to them and the whole thing was conducted behind their back. Learned counsel submits that the power of Government is limited to Section 35, 48 and 54 of the Bihar State Universities Act. On the other hand, the case of the respondents is that the petitioners are guilty of various offences, both under the Penal law as well under P.C. Act. It cannot be said at this stage that the prosecution case prima facie do not disclose a cognizable offence, though it may or may not turn out that allegations are misfounded, as such prayer to quash the prosecution case is rejected. Nonetheless, it is not in dispute that the enquiry constituted by Secretary, Higher Education was not conducted in presence of the petitioners. This Court for the present is not going into the issue whether the petitioners were given sufficient notice or 8 not. The enquiry commenced on 18.06.2010, just after two days of receipt of unaffidavited complaint of Sanskrit Chetna Samittee, a private body. In these circumstances, I am inclined to grant opportunity to petitioners to place their case before the Superintendent of Police, Darbhanga, who will look into the matter and examine the same, so that the investigation may be carried out to its logical conclusion. No coercive steps would be taken against the petitioners for a period of six weeks to enable them to put their cases before Superintendent of Police, Darbhanga either themselves or through any of their representatives, subject to investigation having not already concluded finally. It is worth while noting that in the instant case, petitioner no.6 is accused along with others of making payment of Rs.12,00,000/- to one Sudha Kumari, who was appointed against non-sanctioned post of Jyotish in M.S.G.H. Sanskrit College, Bodhgaya. Significantly, in Bodhgaya P.S. case no. 135 of 2010 dated 30.06.2010, similar allegations have been made against the petitioner Dr. Arvind Kumar Pandey. Thus two prosecution on similar facts against same person is not permissible in view of decisions of Hon’ble Apex Court in the case of T.T. Antony Vs. State of Kerala, reported in 2001 Cr.L.J. 3329. As Bodh Gaya P.S. case no. 135 of 2010, particularly relates to alleged illegal appointment and release of payment to co- accused Sudha Kumari by petitioner no.1 in connivance with others, this Court finds it appropriate to quash the criminal prosecution of 9 petitioner Arvind Kumar Pandey in the instant case, being L.N. Mithila University P.S. case no. 126 of 2010. However, the materials collected in this can be utilized and incorporated in Bodhgaya P.S. case no. 135 of 2010 dated 30.06.2010. With the aforesaid direction, this application is disposed of. Uday/ (Samarendra Pratap Singh, J.)