Dr. Vijendra Chauhan vs Asli Khabar and Others

Dharam Veer, J.—This criminal application, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed for quashing the complaint case No. (1955/2009)/6083/09 and all the proceedings in the Complaint Case No. 1955/2009, presently pending in the court of IIIrd Additional Chief Judicial Magistrate, Dehradun titled as "Asli Khabar v. Dr. Dato Mohan Swami and Ors.".

In brief the facts of the case are that a complaint was filed against the petitioner and others by the respondent No. 1 "Asli Khabar" through its authorized representative-Jaspreet Singh (Respondent No. 2) in the court of III Addl. CJM, Dehradun with the averments that the respondent complainant is an Hindi Monthly Magazine, of which the respondent No. 2-Jaspreet Singh was authorized to file the instant complaint on behalf of the Magazine and that the complaint was filed according to the provisions of Section 39 Code of Criminal Procedure It was further stated that Dr. Swami Rami was a great Saint and he was the original resident of Uttarakhand and he spent most of his life in foreign countries and he devoted his life just for the welfare and service of the common people in India. In order to provide development to the Hilly Regions, he also formed a Society in the name of Himalyan Institute Hospital Trust {hereinafter to be referred as HIHT} at Jollygrant, PS Doiwala, Distt. Dehradun. The registration number of that Society is 113/89, which was registered in the office of Registrar, Uttar Pradesh. The said Society, under the guardianship of Dr. Swami Ram, got constructed a Medical College and a Modern Hospital in Jollygrant and that Medical College was known with the name of Himalyan Institute of Medical Sciences while the Hospital was known in the name of Himalyan Institute Hospital. It was also stated that in order to run the aforesaid institutions, Dr. Swami Ram also constituted a group of Board of Directors, of which the following Members were nominated as Board of Directors:

Dr. Dato Mohan Swami

Vijay Dhasmana

Vikram Singh

Dr. V. Chauhan.

It was further stated that the said Himalyan Hospital Trust Society is having more than 500 Bighas of land, of which lakhs of square meters constructed buildings are there, in which the Hospital, PGI Medical College, Cancer Hospital and the institutions of Society existed. It was further stated that the aforesaid Members were looking after the property of the Society and those persons, committed a conspiracy, the object of which was to dispose of the properties of the HIHT against the law by benefiting themselves and further to cause loss to the Government Treasury and also to deceive the Government of India. It was also stated that on 14.5.2006, when the said Resolution was passed, there was no Society or Trust in the name of Swami Ram Vidyapeeth. It was further stated that on the basis of the said forged Resolution, the above-said persons moved applications in July, 2006 to the State Government and the Government of India with the request to get the Medical College of Swami Ram Vidyapeeth to be declared as a Deemed University. In that application, it was also shown that the said Swami Ram Vidyapeeth has received all the infrastructure of the Medical College from the HIHT University. Thereafter, the above-said persons got one Society registered in the name of Swami Ram Vidyapeeth on 20.12.2006. Thereafter, the above said persons also prepared a Lease Deed in favour of Swami Ram Vidya Peeth by deceiving the State Government with the intention to cause loss to the government treasury. As per the said Lease Deed, the HIHT has given its property on lease to Swami Ram Vidhyapeeth for a period of 99 years. As per this lease deed, according to law, no property could be transferred by the HIHT to Swami Ram Vidhyapeeth and even the property has been transferred without there being any permission of the District Judge concerned and in order to save the stamp duty, they have also shown the rent on a very lower side. After that on the basis of the said false Resolution and the documents, Swami Ram Vidyapeeth was declared as a Deemed University. It was further stated that with the conspiracy to cause loss to the Government and with the intention to get the benefits by deceiving the State Government, the status of Deemed University was obtained, which is against the law and rules. With the same averments, the complaint was filed on 1.5.2009 against the petitioner and others u/s 409/467/468/420/120B IPC. Thereafter, the statements u/s 200 and 202 Code of Criminal Procedure were recorded and after that vide order dated 13.7.2009, the petitioner was summoned by the order of Addl. CJM-III, Dehradun, being the Secretary of HIHT, Jolly grant, thereby the next date was fixed for 21.7.2009. However, on 15.7.2009 itself, the petitioner Dr. Vijendra Chauhan personally appeared before the trial court on 15.7.2009 being the Secretary of the HIHT along with the records of the HIHT and moved an application that the documents produced may be taken on record. On that application on 15.7.2009, the trial court directed the same to be taken on record. Now, assailing the entire proceedings of the court below, this petition has been filed before the Court.

A counter affidavit on behalf of the respondents has been filed wherein it is stated that the application to the State Government was made by Sri Vijay Dhasmana and other co-accused including the petitioner at their own and no such proposal for applying for Deemed University was placed before the Governing Body of HIHT. It is evident that first the petitioner and co-accused tried to seek the status of Deemed University for and in the name of their medical college i.e. Himalayan Institute of Medical Science and it is also clear that initially the request for deemed University was made not to honour Dr. Swami Rama, but it was made to have an autonomous education business center even without the knowledge of the Governing Body. It is also stated that a fake Resolution dated 14.5.2006 was prepared and the property of HIHT was disposed of by the petitioner against the direction of law without the permission of the District Judge and the fake documents were prepared in the fictitious name of Swami Ram Vidhyapeeth, which too is a non-existing institution/society. It is also stated that in order to cheat the State Government and to cause loss to the state exchequer, the petitioner prepared a lease deed dated 29.1.07 on a stamp paper of Rs. 150/ - and which was not registered and was also executed without the permission of the District Judge. It is also stated that the offences u/s 120B/409/467/468/420 IPC are made out against the petitioner. Besides above, the rest of the averments made in the petitioner have been denied in the counter affidavit and hence it is prayed to dismiss the petition with costs.

Heard learned Counsel for the parties on the merits of the petition and perused the entire material on record.

Sri Sanjeev Aggarwal, learned Counsel appearing for the petitioner argued that trial court has erred in law while summoning the petitioner as above discussed. I find force in this argument.

Before going any further, it is pertinent to mention certain facts, which are necessary for a just and proper disposal of the case.

On 11.7.2006, the Society HIHT applied to the Government of India for the grant of status of Deemed University u/s 3 of the Universities Grants Commission Act, 1956 in the name of its founder President His Holiness Late Dr. Swami Rama Vidyapeeth. On 6.6.2007, after completion of due process by the Government of India, the status of Deemed University was granted in the name of "Swami Ram Vidyapeeth", as sought by the Society. However, as per the then formal requirements, a separate Society "Swami Ram Vidyapeeth" was formed consisting of the same Members from the governing body of the Society HIHT. On 2.7.2007, a clarification was made by the U.G.C. that for the purpose of Deemed University status for any Institution, the sponsoring Society need not have the higher education as the sole object and further that there was no need for the creation of any separate society for the said purpose and no need to place a formal transfer of the assets in the name of such other society. On 24.9.2007, the clarification was further approved by the UGC Body as per the Rules. On 29.9.2007, before the Deemed University "Swami Ram Vidyapeeth" could start its functioning, in order to remove any ambiguous situation, it was decided that the said Society "Swami Ram Vidyapeeth" be amalgamated with its parent society HIHT and the Deemed University be named as HIHT University and proposal to the same effect was sent to the Government of India for consideration as per the Rules. On 4.3.2008, the Government of India vide its notification approved and confirmed the amalgamation and the declaration of the Deemed University in the name of HIHT University and the University continued to function as per Rules. Thereafter, on 12.1.2009, a complaint was filed being Complaint Case No. 63/09 before the J.M. Dehradun by one Vikky Thapa against the HIHT Society through its Members. Thereafter on 1.5.2009, on the same facts, the instant complaint was filed. After that on 13.7.2009, the petitioner was summoned by the trial court being the Secretary to be present along with the entire records of the HIHT Deemed University and that of Swami Ram Vidyapeeth Deemed University.

Learned Counsel appearing for the petitioner firstly argued that the complainant/respondent has no locus to file the present private complaint, as stated by him, under the provisions of Section 39 Code of Criminal Procedure against the petitioner. I find force in this argument. For this purpose, Section 39 Code of Criminal Procedure is relevant to mention here which reads as under:

Public to give information of certain offences.

(1) Every person, aware of the Commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely.

(i) Sections 121 - 126, both inclusive, and Section 130 (that is to say offences against the State specified in Chapter VI of the said Code);

(ii) Sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquillity specified in Chapter VIII of the said Code);

(iii) Sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification);

(iv). Sections 272 - 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.);

(v) Sections 302, 303 and 304 (that is to say, offences affecting life);

1[(va) Section 364A (that is to say, offence relating to kidnapping for ransom, etc);]

(vi) Section 382 (that is to say., offence of theft after preparation made for causing, death, hurt or restraint in order to the committing of the theft);

(vii) Sections 392 - 399, both inclusive, and Section 402 (that is to say, offences (if robbery and dacoity);

(viii) Section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.);

(ix) Sections 431 - 439, both inclusive (that is to say, offence of mischief against property);

(x) Sections 449 and 450 (that is to say, offence of house-trespass);

(xi) Sections 456 - 460, both inclusive (that is to say, offences of lurking house trespass); and

(xii) Sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes).

shall, in the absences of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such Commission or intention;

(2) For the purposes of this section, the term "offence" includes any act committed at any place out of India, which would constitute an offence if committed in India.

A plain reading of the aforesaid provisions of Section 39 Code of Criminal Procedure, as quoted above, makes abundantly clear that the present complaint does not qualify the complainant for the purposes of Section 39 Code of Criminal Procedure None of these Sections i.e. 467/468/120B/420 IPC are covered under the said sections as provided u/s 39 Code of Criminal Procedure However, so far as the provisions of Section 409 IPC are concerned, firstly, it is pertinent to mention Section 409 IPC, which is quoted as below:

Section 409. Criminal breach of trust by public servant, or by banker, merchant or agent Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits breach of trust in respect of that property, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 409 IPC clearly defines criminal breach of trust by a public servant. Now, coming to the definition of Public Servant, which has been defined u/s 21 IPC, the same reads as under: -

"Public Servant"

The words "public servant'' denote a person falling under any of the descriptions hereinafter following; namely:

Second- Every Commissioned Officer in the Military, [Naval or Air] Forces [of India];

[Third- Every Judge including any person empowered by law to discharge, whether by himself or as a member of any body of persons, any adjudicatory functions;]

Fourth- Every officer of a Court of Justice [(including a liquidator, receiver or commissioner)] whose duty it is as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court of Justice to perform any of such duties;

Fifth. - Every juryman, assessor, or member of a panchayat assisting a Court of Justice or public servant;

Sixth- Every arbitrator or other person to whom any cause or matter has been referred for decision or report by any Court of Justice, or by any other competent public authority;

Seventh- Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement;

Eighth- Every officer of [the Government] whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience;

Ninth- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of [the Government], or to make any survey, assessment or contract on behalf of [the Government], or to execute any revenue process, or to investigate, or to report, on any matter affecting the pecuniary interests of [the Government], or to make, authenticate or keep any document relating to the pecuniary interests of [the Government], or to prevent the infraction of any law for the protection of the pecuniary interests of 25 [the Government] [***];

Tenth- Every officer whose duty it is, as such officer, to take, receive, keep or expend any property, to make any survey or assessment or to levy any rate or tax for any secular common purpose of any village, town or district, or to make, authenticate or keep any document for the ascertaining of the rights of the people of any village, town or district;

[Eleventh- Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election;]

[Twelfth- Every person-

(a) in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty by the Government;

(b) in the service or pay of a local authority, a corporation established by or under a Central, Provincial or State Act or a Government company as defined in Section 617 of the Companies Act, 1956 (1 of 1956).]

On a bare reading of the complaint, it makes clear that the accused persons do not fall within the definition of ''public servant'' as defined u/s 21 IPC, which is quoted above, for the purposes of "Public Servant" so as to be covered for the purpose of Section 409 IPC. Hence on the face of the complaint, the complainant has no locus standi to file the instant complaint as per Section 39 Code of Criminal Procedure and on this ground alone, the complaint filed by the respondents is liable to be quashed.

It was next argued on behalf of the petitioner that the provisions of Section 28 of the Societies Registration Act, 1860 clearly lays a bar on the private complaint for any alleged violation of the provision of the aforesaid Act. I find force in this argument. Before going any further, at this stage, it is pertinent to mention here that the Petitioner is the member presidential body and the Secretary of the Society, Himlayan Institute Hospital Trust, which is a registered Society as per the provisions of the Societies Registration Act, 1860 and the provisions of the aforesaid Act are fully applicable to the said Society. In order to resolve this issue involved, Section 28 of the aforesaid Act of 1860 is quoted below for the sake of convenience:

Procedure- No Court inferior to that of a Magistrate of the first class shall try an offence punishable under this Act nor shall cognizance of any such offence be taken except on a complaint made by the Registrar or any other person authorized in writing by him by general or special order in that behalf.

On a plain reading of the aforesaid quoted Section 28, it is abundantly clear that in case of any alleged offence under the Societies Registration 1860, as per the provision of the aforesaid quoted Section, it is the Registrar or any other person authorized in writing by him by general or special order in that behalf, of the Society only, who is authorized by law to initiate any criminal proceeding for any offence committed under the Special Act and even there is a specific bar on the Magistrate to take cognizance of any such complaint otherwise, which in the present case, is by one Monthly Magazine and as such, the summoning order is bad in the eyes of law. Even Section 29 of the Societies Registration Act, 1860 provides for the compounding of offences and hence it is proved that even in case there is any violation of any provision under the aforesaid Act, the same can be compounded also.

It was next argued on behalf of the petitioner that the third allegation made in the complaint is that of alleged loss to the government revenue for the said deficit Stamp Duty, which too is not maintainable in view of Section 70 of the Indian Stamp Act, 1899. For the sake of convenience Section 70 of the said Act is quoted as below:

Institution and conduct of prosecutions

(1) No prosecution in respect of any offence punishable under this Act or any Act hereby

repealed shall be instituted without the sanction of the Collector or such other officer as the

*[State Government] generally, or the Collector specially, authorises in that behalf.

(2) The Chief Controlling Revenue-authority, or any officer generally or specially authorised by

it in this behalf, may stay any such prosecution or compound any such offence.

(3) The amount of any such composition shall be recoverable in the manner provided by Section 48.

A plain reading of the aforesaid Section 70 crystallizes the fact that in case of any deficit in the stamp duty, it is the Collector or any authorized person of the State Government who can initiate the proceedings u/s 70 of the Stamp Act inasmuch as the aforesaid section clearly provides that no prosecution in respect of any offence punishable under the Stamp Act shall be instituted without the sanction of the Collector or such other Officer as the State Government or the Collector specially, authorizes in that behalf. However, in the case in hand, no such sanction has been granted either by the State Government or by the Collector to file the complaint, and in view of this unambiguous bar as provided under the Special Act, the complaint is patently barred as per the provisions of Section 70 of the Stamp Act and the same is accordingly liable to be set aside on this ground also.

It was next argued on behalf of the petitioner that where there is any provision provided under the Special Act, the provisions of Special Act would prevail over the Code of Criminal Procedure I find force in this argument also. Section 4 of the Code of Criminal Procedure, 1973 provides for trial of offences under the Indian Penal Code and other laws. Sub-section (1) of Section 4 deals with offences under the Indian Penal Code. Sub-section (2) of Section 4 provides that all offences under any other law (other than offences under the Indian Penal Code) shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. This is specifically indicated by the provision of Sub-section (2) of Section 4 Code of Criminal Procedure which provides that all offences under any other law-meaning thereby law other than the Indian Penal Code-shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions in the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Where any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, the complainant requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criterion prescribed the statute. As such in view of the above discussion, I have no hesitation to state that the special provisions of the Societies Registration Act and Indian Stamp Act shall prevail over the provisions of the Code of Criminal Procedure inasmuch as the same are the special provisions. Even it is a settled law that if another enactment contains any special provision, in that case, such other special provisions would apply in place of the particular provision of the Code of Criminal Procedure As such in the present case, because the provisions of the Special Act are there which are completely applicable in the facts and circumstances of the case, the provisions of Code of Criminal Procedure cannot be allowed to be invoked and as per the Special Act, as above discussed, the complainant was not entitled to file the instant complaint in the light of the detailed discussion. The allegations which have been leveled against the petitioner, for their grievance, alternative remedies under the respective Special Acts have been provided as per the Statute, however in light of the above-said discussion, the invocation of the provisions of Code of Criminal Procedure, in place of the special provisions, under the respective Special Acts, which in the present case is Societies Registration Act, 1860 and the Indian Stamp Act, 1899, was neither proper nor justifiable. Even on the basis of the averments made in the complaint itself, the offences mentioned therein are not prima facie made out. It is a settled law that when the basic ingredients of the offences are missing in the complaint, then permitting such a complaint to continue and to compel the petitioner to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law. Even the Court finds that no useful purpose would be served by allowing the present criminal prosecution to continue as the same would be a gross miscarriage of justice as well as a gross abuse of process of the Court. Hence, the Court is of the view that the instant complaint deserves to be quashed out rightly.

Sri M.C. Kandpal, learned senior counsel appearing for the respondents submitted that this petition is premature at this stage because the petitioner has not been summoned as an accused u/s 204 Code of Criminal Procedure Per contra, learned Counsel appearing for the petitioner submitted that the petitioner has been made as an accused in this case and he is also the Secretary of the HIHT University and he has been summoned by the trial court to give evidence against himself, which is patently barred by Article 20(3) of the Constitution of India, which provides as below:

20(3) No person accused of any offence shall be compelled to be a witness against himself.

In the case in hand also, the petitioner has been summoned being the Secretary of the Society by the trial court and even he has also been made one of the accused in this case, hence as per the aforesaid Article 20(3) of the Constitution of India, the petitioner cannot be compelled to be a witness against himself inasmuch as the same would be a gross abuse of process of law. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.

Learned Counsel for the petitioner lastly argued that this complaint has been filed just to pressurize the petitioner inasmuch as earlier also one complaint had been preferred and on the basis of same facts, the instant complaint has been filed. I find force in this argument also. The petitioner has filed the photocopy of the complaint, Vikky Thapa v. Dr. Vijendra Chauhan and Ors. filed before the court of Addl. CJM-I, Dehradun dated 12.1.2009. On a bare perusal of the said complaint, it reveals that the earlier complaint too had been filed on the same facts and circumstances of the case on 12.1.2009, however on 26.5.2010, that complaint was dismissed by the trial court in view of the application moved by said complainant Vikky Thapa for its dismissal as not pressed.

As such, it is clear that it is an attempt on the part of the respondents just to pressurize and harass the petitioner.

In light of the detailed discussion as recorded above, the C482 petition is allowed. Proceedings of Complaint Case No. (1955/2009)/6083/09 and all the proceedings in the Complaint Case No. (1955/2009)/6083/09, pending in the court of III Addl. CJM, Dehradun, Asli Khabar v. Dr. Dato Mohan Swami and Ors. are hereby quashed. Interim order dated 24.9.2009 is accordingly vacated.