No MBBS admission despite taking fee: Karnataka HC quashes criminal proceedings against top KIMS officials
Karnataka: Bringing relief to the top executives of Kempegowda Institute of Medical Sciences (KIMS), the Karnataka High Court has set aside criminal proceedings initiated against them in a case of cheating.
The case was registered against them in 2016 based on a complaint filed by a man alleging that his son was denied a seat in MBBS course during 2014-15 despite collecting money. The High Court observed that the officer of the Central Crime Branch who was responsible for filing the charge sheet exceeded his jurisdiction in doing so as he was not authorized to submit the final report as per the provision of code of criminal procedure.
Referring to an Apex Court's decision in the case of State of Bihar and another Vs. Lalu Singh, and the court noticed that " under Section 36 of the Code CCB is not the Officer in-charge of the police station for the purpose of submitting the report contemplated under Section 173(2) of the Code. As such, the cognizance taken without there being any proper report by the in-charge Officer is not sustainable in law."
Hence, the court decided to quash the proceedings against the executives. Justice B.A. Patil passed the order on January 18 and allowed the petitions filed by the then Principal and Dean of KIMS, the then president of Rajya Vokkaligara Sangha, who managed KIMS, and then Chairman, Governing Council, KIMS.
This came after a criminal revision petition was filed by the executive of the institution praying to set aside the order, directing the registration of a case against the petitioners for offences that were made penal under Sections 406, 477, 420, 120B, 114 r/w Section 34 of IPC and ordering process against them for their appearance in the case before the court and to quash the proceedings that were being recorded in the case.
The case goes back to a few years ago when the petitioner filed a case against the executives of the institution stating that for the academic year 2014-15, in respect of allotment of medical seats. It was submitted that though under the management quota there was scope for admission, the accused by misusing his power, got admitted six medical students by directing another authority, though the authority clearly stated intimated him that it is not possible for him to do the same.
He admitted the said students on 31.5.2014 by taking an amount of Rs.30 Lakhs. Subsequently, on 3.6.2014, an amount of Rs.17 Lakhs was paid for getting the son of the complainant admitted to the First Year MBBS Course. Another 65 Lakhs was also allegedly paid by the complainant for the deployment of the charges. Subsequently, instead of an admission of the son of the complainant, they got admitted to the niece of another person, and thereby they had committed an offence of breach of trust, cheating, and other offences, the petition said.
After that, the trial court initiated a proceeding against them and the magistrate dismissed their appeal for discharge, after which the accused sought redressal from the High court.
The counsel for the dean submitted that without arresting one of the accused, the police brought him before the learned Magistrate, and in spite of the assurance, that he had not played any role while giving admission to the students beyond Rules. He had only carried out the instructions given by the management, being an employee of the said institution.
It was his further submission that subsequently the son of the complainant has got admitted to the said institution by virtue of the order passed and, disposed of on 8.7.2015, and as such, the present complaint was not sustainable in law. It was added that the trial Court without looking into the factual matrix of the case has erroneously dismissed the application filed for discharge.
The learned Senior Counsel submitted that earlier the Medical Council had given consent for intake capacity of the medical students up to 150 candidates and the son of the complainant was admitted under the management quota and earlier to the admission of the student, another aspirant had been got admitted and a letter has been addressed to Medical Council of India on this behalf.
Subsequently, a clarification had also been given on 21.10.2014 to show that the name of the son of the complainant was included in the list of 150 candidates, uploaded on 30.9.2014 and the same had been uploaded to MCI Online and thereafter deleted the name of the son of the complainant without there being any fault on the part of the management. There was no illegality or irregularity in taking the decision, the counsel contended.
The counsel for the petitioner also stated that the CBI officer had over-exercised his power. In response, the counsel for central CCB officers stated that the officers were exercising the powers of the superior officers and they were having local area jurisdiction and they can exercise the power.
They referred to a case where the CCB police being a specially constituted branch for investigation, are superior in rank, and as such, they were given the authority to investigate the case and file a final report before the Court.
After considering the submissions, the court observed,
As per Section 173(2) of the Code, it is the officer-in-charge of the police station who shall forward the report to the Magistrate empowered to take the cognizance and as such, admittedly the present case has been filed with a final report by CCB which has not been declared as a police station as contemplated under Section 2(s) of the Code. When the CCB Inspector is not in-charge of the police station, he is not competent to file the report. It is his further submission that CCB being a specialized Investigating Agency can investigate into a particular crime which is referred to it either by judicial order of the Court or by administrative order.
The court further clarified that as per Section 2(s) of the Code the State Government has to declare either generally or specially any post or place to be a police station, but no such declaration is forthcoming before this Court. The court further stated, " The investigation has been done by the CCB and it is he who had submitted the report in terms of Section 173 of the Code and in view of the discussion made by me above, he cannot be considered to be an officer-in- charge. In that light, the trial Court ought not to have taken cognizance on the report submitted by the CCB. In that light, I am of the considered opinion that there is some substance in the contention taken up by the learned Senior Counsel appearing for accused Nos.1 and 4. , the contentions taken up by the learned Senior Counsel are purely questions of law and as such this Court can interfere with the order passed by the trial Court."
The court quashed the proceedings stating,
Be that as it may, it is a well-settled proposition of law that on perusal of the charge sheet material, if no case has been made out so as to frame the charge, then the Court has to discharge the accused.Taking into consideration the aforesaid discussion, I am of the considered opinion that the petitioners-accused Nos.1, 3 and 4 have made out a case so as to allow the petitions and to set aside the impugned orders dated 7.12.2017 and 1.6.2016. In that light, the petitions are liable to be allowed.
To view the judgement, click on the link given below
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