IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.675 of 2010 1. DR. ARVIND KUMAR PANDEY son of Shri Jai Narayan Pandey, at present posted as Principal, Mahanth Shatanand Giri Harihar Sanskrit Mahavidyalaya, Bodhgaya, District- Gaya. 2. Smt. Sudha Kumari, daughter of Shri Jai Narayan Pandey at present Posted as Lecturer in Jyotish, Mahanth Shatanand Giri Harihar Sanskrit Mahavidyalaya, Bodhgaya, District- Gaya. . . . . . . . Petitioners. Versus 1. THE STATE OF BIHAR 2. Shri K.K. Pathak, Secretary, Human Resources Development Department, New Secretariat, Patna. 3. Sri Brajesh Kumar Ojha, son of not known to the petitioners, at present Posted as District Education Officer, Gaya. . . . . . Respondents. ----------- 7/ 06.09.2010 Heard learned counsel for the petitioners and the State. In the instant writ application, the petitioners prays for quashing the First Information Report bearing Bodhgaya P.S. case no. 135 of 2010 dated 30.06.2010 registered under Sections 197, 218, 409, 420, 468, 120(B) of the Indian Penal Code and Section 13 and 14 of the Prevention of Corruption Act, 1988. Petitioner no.-1 is Principal of Mahanth Shatanand Giri Harihar Sanskrit College, Bodhgaya and Petitioner no.-2 is Lecturer in Jyotish in the College and also happens to be sister of petitioner no.-1. The First Information Report has been instituted on the basis of written report of respondent no.3, the District Education Officer, Gaya dated 28.06.2010 under the direction of respondent no.2 dated 28.06.2010. The prosecution case in brief is as follows: On 23.09.2010 one Balram Mishra, Office Assistant of Mahanth Shatanand Giri Harihar Sanskrit College, Bodhgaya 2 (hereinafter referred to M.S.G.H. Sanskrit College, Bodhgaya) complaint before the Secretary, Higher Education that since 1998 till date no lecturer has been appointed in the Department of Jyotish in the College, still petitioner no.2 obtained payment of Rs.12 lakhs without joining the college. The University vide letter dated 26.03.2003 had shown its disagreement regarding approval of appointment of Sudha Kumari. On enquiry, it was found that Sudha Kumari resides in West Bengal, where her husband is working in Railway. An explanation was sought for in this regard from petitioner no.1 on 05.05.2010, but no satisfactory explanation was furnished. Furthermore, the attendance of petitioner no.2, Sudha Kumari, does not find place in the attendance register between 16.06.1998 to December, 2009 and in order to cover thus this stark reality, manipulated attendance has been prepared on a separate attendance register. She was not even present on the date, when the Deputy Director had made an enquiry. There is no payment register and payment bill of Sudhay Kumari for the period 16.06.1998 to December, 2004 is not available in the office. It is further alleged that Arvind Kumar Pandey (petitioner no.1) has conspired in securing payment of Rs. 12,00,000/- in favour of Sudha Kumari, who happens to be his sister. Learned counsel for the petitioners submits that in the instant case, the First Information Report has been instituted on a unaffidavited complaint made by one Balram Mishra, an office Assistant of the College. He further submits that the prosecution 3 case is misconceived and no penal offence is made out against the petitioners in the facts of the case. The college i.e. M.S.G.H. Sanskrit College, Bodhgaya is affiliated college of Kameshwar Singh Darbhanga Sanskrit University (hereinafter referred to as K.S.D. Sanskrit University). The College is managed by its Governing body duly constituted by the Bihar University Act. Under Section 2(9) of the Bihar College Service Commission Act, 1976, the Commission recommends names of two persons arranged in order to preference. Section 2(10) empowers the Governing body of the College to make selection from the names recommended by the Commission within three months. Section 59(2) of the Bihar State Universities Act, 1976 empowers to approve the action taken by the Governing Body including one of appointments. Learned counsel submits that petitioner no.2 was duly appointed after as lecturer in Jyotish in the said College after following all due norms. On 05.01.1992, the Governing Body of the College sanctioned post of lecturers in Jyotish and English and due requisitions were submitted to Bihar College Service Commission by the Secretary of the Governing body vide letter no. 13/92 dated 04.04.1992 for advertisement of posts. He further submits that after completing all formalities, the Commission recommended the name of petitioner no.2 under Section 2(9) of the Bihar College Service Commission Act, 1976 vide letter no. 142 dated 19.05.1998 sent to the college. The Governing Body of the College vide resolution no. 2 dated 14.06.1998 decided to appoint petitioner no.2 under Section 4 2(10) of the Commission Act and accordingly appointment letter bearing no. 40/98 dated 15.06.1998 was issued. The petitioner no.2 gave her joining on 16.06.1998, which was accepted by the then Principal of the college namely Sri Krishna Nandan Mishra on 16.06.1998. Thereafter a descriptive charge of service of petitioner no.2 was submitted by the Principal and Secretary of the Governing Body on which petitioner no.2 put her signature on 25.04.1999. The Principal, Krishna Nandan Mishra had also sent a list of working staff duly appointed against the sanctioned post, as standing on 03.08.1999, wherein petitioner no.2 was also shown working against the sanctioned post of lecturer on 16.06.1998. The name of petitioner no.2 was sent to the University among the working staff on 19.04.2000. Thus, the subsequent complaint dated 16.05.2001 made by the Principal, Krishna Nandan Mishra has no legs to stand. It is submitted that as per Government resolution dated 18.10.1976, six posts of Acharya, two posts of Vyakarana and two posts of Oriental subjects were sanctioned. Against two Oriental subjects Jyotish and Dharamshastra were opted by the College. The Government letters would show that the post held by the petitioner no.2 was sanctioned. The then Registrar of the University had gone beyond his jurisdiction while expressing his dis-agreement vide letter no. 2194 /03 dated 26.03.2003. The petitioners submit that earlier the approval of petitioner no.-2 was also sent to University and Syndicate, whereupon the University constituted two men committee vide letter dated 29.04.2005. However, the committee did 5 not do anything in the matter. The University again vide letter dated 14.06.2008 constituted three men committee from the members of the Syndicate to enquire the appointment matter of petitioner no.2. The committee vide his report dated 21.08.2008 made recommendation for grant of approval through statutory body. Thereafter the Seniority and Pay Fixation Committee recommended for approval of the appointment of petitioner no.2 with effect from 16.06.1998. The University vide Memo no. 7046 dated 05.09.2009 approved the appointment of petitioner no.2 from the date of joining. A copy of memo no. 7046 dated 05.09.2009 is annexed as Annexure-5 to this petition. On this basis, petitioner no.2 submits that appointment is valid and further submits that even if appointment was not valid, petitioners could have been proceeded under the provisions of the Universities Act, which provides for termination of service and recovery of amount. The University Act is a Special Act and it does not provide any Penal provision. Even the appointment of teachers of affiliated colleges is not even maintained by the State Government in view of Section 57 (A) of the Universities Act, 1976. He further submits that State Government has limited role like sanction of post and auditing of account and preparation of Budget. It cannot be interfered in day to day affairs. It is Hon’ble Chancellor, who holds academic and administration over the affairs of the University. Mr. Lalit Kishore, learned A.A.G.-3, submits that there were complaints regarding the so-called appointment of petitioner 6 no.2 in the college on unsanctioned post. On 27.03.2010 one Baliram Mishra, an Assistant in the College, made a complaint that a sum of Rs. 12,00,000/- have been illegally withdrawn by petitioner no.1 in conspiracy with the Vice-chancellor for making payment to a fake lecturer namely petitioner no.2. The Bill of Rs. 12,00,000/- do not find signature of any Assistant/Bill clerk. He submits that a departmental proceeding has also been initiated against petitioner no.1 at the instance of the Hon’ble Chancellor. The appointment letter of petitioner no.2 has been prepared in a fishy manner. Furthermore, appointment and salary has been approved on 01.04.2009 without prior approval of the State Government in violation of Section 35 and 54 of the Bihar State Universities (Amendment) Act, 1976. The Government can cause audit of the accounts and it has power to enquire into the matter of financial irregularities. He contends that the First Information Report discloses cognizable offences. Learned counsel for the petitioners submits that there is due signature of petitioner no.2 on the attendance register. Furthermore, for similar offence two cases have been instituted against petitioner no.1 being 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. In the aforesaid case, petitioner no.1 has been made accused along with the Vice-chancellor and the others. For almost similar offence, the 7 instant First Information Report has also been instituted against petitioner no.1. He submits that institution of second First Information Report would be in violation of Article 20(3) of the Constitution of India. He further submits that two prosecutions cannot be launched for the same offence. In view of dictum laid down by the Hon’ble Apex Court in the case of T.T.Antony Vs. State of Kerala reported in 2001 Cr.L.J. 3329. Heard the counsel for the parties. The Universities are autonomous bodies and governed by Universities Act, 1976. The Government cannot interfere in day to day affairs of the University, save and except those provided in the Act like Sections 35, 48 and 54, etc. The Universities Act provides sufficient provisions to deal with illegal appointment and recovery of the amounts unauthorizedly so paid in appropriate cases. However, if the prosecution case discloses a cognizable offence, the police can investigate the same. This Court at the thresh-hold would not make roving enquiry in respect of the same, though, subsequently it may or may not turn out that allegations are misfounded. At this stage, this Court does not think it appropriate to quash the First Information Report at the thresh-hold, as it conveys a cognizable offence. It appears that as the First Information Report has been made on unaffidavited complaint and petitioners were not provided an opportunity to meet the allegations leveled in the complaint filed by one Balram Mishra, which found that the main bases for 8 institution of the case, I am inclined to grant them opportunity to represent his case before Superintendent of Police, Gaya, who will examine the matter. No coercive steps would be taken against the petitioners for a period of six weeks. With the aforesaid observation, this application is disposed of. Uday/ (Samarendra Pratap Singh, J.)