1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 1571/2010 Dr. Manoj Madhukar Sawalkar V/s. State of Maharashtra and anr. ----------------------------------------------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ----------------------------------------------------------------------------------------------------------------------------------------------- Mr. F. T. Mirza, counsel for Applicant. Mr. S. A. Mohta, counsel for Respondent No. 2. Coram: A.P. Bhangale, J Dated: 11th July 2011 1. Heard Mr. F. T. Mirza, learned counsel for applicant and Mr. S. A. Mohta, counsel for Respondent No. 2. 2. By means of this application, the applicant questioned the F.I.R. No. 73/2010, dated 30.06.2010 registered by Police Station Karanja, Dist. Washim, under Section 420, 468, 471, 120-B read with 34 of the Indian Penal Code. 3. It appears that on 30/06/2010, Crime No. 73/2010 was registered by the Police Station Officer, Karanja (Lad) Police Station, 2 Dist. Washim, for the offence punishable under Sections 420, 468, 471, 120-B read with 34 of the Indian Penal Code as per the report lodged by Smt. Neeta w/o. Ashok Jaiswal, resident of Amravati (non- applicant no.2). The allegations in the F.I.R. that Smt. Varsha Manoj Rathod (Sawalkar) the Director of the S.S.U.D. Ayurvedic College, Karanja (Lad), Manoj Madhukar Sawalkar and Dayare peon of the college had admitted Ms. Kshitija Ashok Jaiswal in the First Year B.A.M.S., for academic year 2008-09 in the S.S.U.D. Ayurvedic College by accepting fees of Rs. 11,000/-, Donation Rs. 80,000/- and Enrollment fees of Rs. 3,300/- and issued bonafide certificate in favour of the complainant, however, name of Ku. Kshitija Ashok Jaiswal was not forwarded for enrollment to the University concerned, and therefore, her one academic year went wasted. It is further alleged that on this report enquiry was conducted and it revealed that Kshitija was given admission to the college but false record was prepared and thus, accusations made under Section 420, 468, 471, 120-B read with 34 of the Indian Penal Code. It appears that the investigation was done by the police and statements of various witnesses also recorded informed that charge-sheet is also filed in the said case. 4. Learned Advocate for the applicant made reference to copies of documents annexed with the application contending that the Ministry of Health & Family Welfare Department of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homocopathy (AYUSH) (Education 3 Policy Section), dated 19/06/2008, addressed to the President, Maa Vaishnavi Mahila Mandal, Panjarapol Sansthan, Karanja (Lad), Dist. Washim, permitted for establishment of a new S.S.U.D. Ayurved Medical College at Koli, Karanja (Lad), Maharashtra with annual intake capacity of 50 seats in B.A.M.S. degree course from the session 2008-09, under the provisions of section 13A of the IMCC Act, 1970. The State of Maharashtra issued notification in respect of Government decisions No.HMC-1307/Pra.Kra.10/07/Shikshan-1, Mantralaya, Mumbai 400 032, dated 23rd July 2008, whereby the approval was communicated under Section 64(5) of the Maharashtra Health Sciences University Act, 1998 subject to conditions mentioned in the Government Resolution. 5. It is further contended that the acceptance of the fees from the students is determined by the Shikshan Shulk Samiti (Medical Education). According to learned Advocate for the applicant, by communication dated 4th July 2008 addressed to the Dean/Principal, All New Private Un-aided Health Science Colleges, in the State of Maharashtra, Ad-hoc fees for the Academic Year 2008-09 for Ayurvedic Course was Rs. 67,440/-, and the applicant could not have charged more than it. It is also submitted that the student namely Ku. Kshitija Ashok Jaiswal (daughter of the non-applicant no.2) had by letter dated 4th August 09, voluntarily cancelled her admission to the first year of B.A.M.S. course in the S.S.U.D. Ayurvedic Medical College, 4 Karanja (Lad), Dist. Washim. It also appears that documents were collected on 4th August 09 and complaint was lodged with Police on 11th September 09. My attention is also invited to the fact that Sau. Neeta Ashok Jaiswal (first informant) had filed Criminal Writ Petition No. 206/2010, which was disposed of on 3rd August 2010 on the ground that the FIR has been registered, and therefore, the cause of action in the petitioner does not survive since in the petition it was prayed that direction be issued to the police to take cognizance of the report dated 11th September 2009. Learned Advocate for the applicant also submitted that in fact Ku. Kshitija was suppressing facts because she was studying in Takhatmal Homeopathy College Amravati in the academic year 2009-10. She was already admitted student in the Takhatmal Homeopathy College Amravati and her registration and eligibility proposal was forwarded to university by the said college since approval was pending from the Admission Control Committee and she was not yet eligible. It is also revealed that in the year 2009, Ku. Kshitija had appeared for MHT-CET 2009, examination. She had also stated in affidavit before Executive Magistrate, Tahsil Office, Amravati to the effect that she had repeated P.M.T. in the year 2008-09, after her passing 12th standard examination in the year 2007-08. It was reason given by her for loosing one academic year during her education career. Under these circumstances, learned Advocate for the applicant made reference to certain guidelines in case of State of Haryana V. Bhajan Lal reported in AIR 1992 SC 5 604 which are in principles mentioned as below. “...5... Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. ...6... Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. ...7... Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 6. Learned Advocate contended that applicant’s case is covered under guidelines 5, 6 & 7 as according to him the F.I.R. is absurd and conviction on that basis is inherently improbable. It is also submitted that the continuance of the proceedings attended with mala fide would be abuse of the process of the Court. On behalf of the respondent, these contentions are strongly opposed on the ground 6 that charge-sheet in the present case is already submitted and copies of the charge-sheet are not annexed with this application. According to learned Advocate for the respondent, statement of various witnesses have been recorded during the course of the investigation which are not filed by applicant before this Court. 7. Learned APP with reference to reply by the State contended that there is strong prima facie case against the applicant which shows his involvement along with the others in the commission of alleged offences. On behalf of the respondent it is submitted that there is alternative efficacious remedy for the applicant to apply for discharge before the trial Court. The extraordinary jurisdiction and inherent powers may not be used particularly when the charge-sheet is already filed and the proceedings are in the trial Court. 8. It is true that powers under Section 482 of Code of Criminal Procedure are void and may be used when allegations in the F.I.R. do not constitute the alleged offence, however, since charge-sheet is already filed. It would not be proper in the absence of the copies of the charge-sheet to enter into enquiry as to whether the accusations are likely to be proved by evidence or not. Exercise of inherent powers under Section 482 of Code of Criminal Procedure is meant to prevent the abuse of the process of the Court or to secure the ends of justice and to do real and substantial justice but not to stiffle 7 legitimate prosecution. Normally this Court would not impinge upon jurisdiction of the trial Court by exercising power under Section 482 of Cr.P. Code. Applicant have alternative efficacious remedy to apply for discharge before the trial Court by producing documents in support of his application and copies of all documents which are annexed with this application. I am not inclined to exercise inherent powers in view of the fact that charge-sheet is already laid before the trial Court. Hence this Criminal Application is dismissed with liberty to the applicant to move before trial Court with a plea for discharge. Application is therefore disposed of accordingly. JUDGE Punde