P.M.L. Kalyanasundaram vs State

S. Nagamuthu, J.—The petitioner was, formerly, the Minister for Education and Tourism, in the Union Territory of Puducherry. He is the

first accused in C.C. No. 32 of 2012 on the file of the learned Judicial Magistrate-I, Tindivanam in Tamil Nadu. Altogether, there are three

accused in the case. The learned Magistrate has taken cognizance of offences punishable under Sections 465, 468, 471, 419 read with. 120-B

IPC. Seeking to quash the said proceedings, the petitioner has come up with this petition. The case of the prosecution in brief is as follows:

(i) The petitioner was formerly a Minister in the Union Territory of Puducherry, during the period between June, 2012 and November, 2012. One

Adhavan, viz., the second accused in this case, was, then, working as a graduate teacher at the Adi-Dravidar Welfare Higher Secondary School at

Singanoor, Tindivanam, in the State of Tamil Nadu. The third accused was, then, working as an Assistant at the office of District Educational

Officer at Tindivanam, in the State of Tamil Nadu. In the Xth standard Government examination held in the year 1995, the petitioner failed in

Science and Social Science subjects. Thereafter, for his own reasons, he could not write the said examination in the failed subjects. After having

become a Minister in the Puducherry Cabinet, he applied for the Xth standard supplementary examination held by the Director of Government

Examination of the State of Tamil Nadu, during the month of September/October 2011.

(ii) The petitioner is admittedly a resident of Karuvadikuppam Village in Puducherry State. But, however, with a view to avoid media attraction,

according to him, he decided to write the supplementary examination in an examination Centre in Tamil Nadu, instead of Puducherry. As per the

Regulations governing the examination, if only the candidate gives a local address in the State of Tamil Nadu, he will be permitted to write the

examination in a Centre in the State of Tamil Nadu. Therefore, with a view to have the examination Centre in Tindivanam in Tamil Nadu, the

petitioner was in need of a local address in Tindivanam.

(iii) The second accused Adhavan is a permanent resident of No. 22/A, Udhaya Nagar, Chennai Road, Tindivanam. Two persons, who were very

close to the petitioner, of whom, one is a close relative of the second accused gave the idea that the address of the second accused Adhavan could

be given in the application, so as to have the examination Centre in Tindivanam. One Ashokan, a close associate of the petitioner filled up the

application giving the address of the petitioner, as though, he was residing at No. 22/A, Udhaya Nagar, Chennai Road, Tindivanam, under the care

of Mr. Adhavan, the second accused herein. The application was submitted on 24.8.2011. The said application was entertained by the

Department of Government Examinations, Government of Tamil Nadu and he was given the Registration No. 1077190 and allotted the Centre at

Tagore Higher Secondary School"", at Tindivanam.

(iv) According to the final report, the petitioner/accused No. 1 originally conspired with accused No. 2 to engage a third person, to impersonate

him, to write the examination on his behalf. But, unfortunately, the person, who was so arranged by the other accused, at the last moment, did not

come forward to write the examination. Therefore, the petitioner himself wrote the examination on 29.9.2011, but, he did not write the examination

on 30.9.2011.

(v) After the examination was over, complaints were received by the Chief Educational Officer that the petitioner did not write the examination,

instead of him, somebody else had impersonated him and wrote the examination on 29.9.2011. Based on the said complaints, the Chief

Educational Officer, Villupuram, having conducted a detailed enquiry was of the prima facie view that impersonation had been committed.

Therefore, he made a complaint by letter in Na. Ka. No. 15137/B1/2011, dated 8.10.2011, to the respondent police. Based on the said

complaint, the present case was registered in Cr. No. 74 of 2011 on 8.10.2011, for the offences under Sections 465, 468, 471, 419 read with.

120-B IPC.

(vi) During the course of investigation, the answer paper of the petitioner was sent for examination by an expert with the admitted handwriting of

the petitioner. The expert gave a report that the answer sheet was in the handwriting of the petitioner. Therefore, the Investigating Officer has

concluded that the allegation of impersonation is incorrect. However, the respondent- Inspector of Police has filed the final report alleging that the

petitioner has committed the other offences. According to the present allegation, the petitioner has committed an offence of conspiracy punishable

u/s 120-B read with 419 and 471 IPC.

Insofar as the second accused Adhavan is concerned, it is alleged in the final report that he has committed the offences punishable under

Sections 417, 120-B read with. 465, 468 and 419 IPC. As far as the third accused Rajini Kanth is concerned, according to the final report, he

has committed the offences punishable under Sections 465, 120-B read with. 471 IPC.

To repeat, precisely as against the petitioner, according to the final report, he has committed the offences under Sections 120-B read with 419

and 471 IPC. But, the learned Public Prosecutor would submit that the offences under Sections 419 and 471 IPC have not been made out against

the petitioner. However, there are materials to frame charge against the petitioner and try him for the offence punishable u/s 120-B IPC.

It is the contention of Mr. R. Krishnamoorthy, the learned senior counsel appearing for the petitioner, that absolutely, there are no materials on

record even to make out a prima facie case of conspiracy to satisfy the ingredients of Section 120-A IPC and therefore, the case is liable to be

quashed.

But, the learned Public Prosecutor would bring to my notice the following materials available on record, so as to frame a charge u/s 120-B IPC

and to allow the prosecution to go ahead with the trial of the case.

(i) The petitioner has wantonly given a false address in his application submitted to the Department of Government Examinations, Chennai, as

though, he was residing at No. 22/A, Udhaya Nagar, Chennai Road, Tindivanam, when the fact remains that he never resided in the said address

as he was residing only at Karuvadikuppam Village in Puducherry State.

(ii) Though, the second accused Adhavan, was not earlier known to the petitioner, his address was chosen by the close associates of the petitioner.

The application was filled up by one Ashokan, giving the above address, but, the petitioner was admittedly a signatory to the same on 24.8.2011.

(iii) Admittedly, the examination Centre was ""Tagore Higher Secondary School"" at Tindivanam. The second accused Adhavan was working in a

different School at Singanoor Village. His name was not in the list of Invigilators originally. According to the case, he went to the office of the

District Educational Officer and made a request to include him in the list of Invigilators for the said examination. The learned Public Prosecutor

would point out that in the proceedings of the District Educational Officer, dated 16.9.2011, there were only 22 Invigilators and the name of

Adhavan, the second accused, was not there. After the proceedings were issued by the District Educational Officer, without his knowledge (vide

the statement of Mr. Shanmugam, District Educational Officer) on the request made by the second accused, the third accused inserted the name of

the second accused as one of the Invigilators. This interpolation was made in the handwriting of the third accused, whereas, the entire proceeding

was a computer print out.

(iv) After the coming into being of the above forged letter, according to the final report, on 29.9.2011, in the morning, the petitioner met the second

accused at Ariya Hotel, Bye-pass Road, Tindivanam. They had discussion for quite some time and thereafter, the second accused left the hotel.

What actually was exchanged between them is not known. However, this meeting, according to the learned Public Prosecutor assumes

importance.

(v) After leaving the hotel, the second accused went straight to Tagore Higher Secondary School and met the Headmistress. He made a request to

the Headmistress Ms. Rajalakshmi to allot him as Invigilator to Hall No. 14. In the Hall No. 14, the petitioner was to write the examination.

Accordingly, the second accused managed to get allotment as Invigilator to Hall No. 14.

(vi) Thus, the second accused was the Invigilator in the Hall No. 14, where the petitioner wrote the examination. While writing the examination,

there are materials to show that the petitioner was found talking to Adhavan frequently. This has been spoken to by the co-students as well as

other staff.

(vii) The second accused Adhavan was found going out of the hall frequently speaking to some body over cell phone, then, returning to the hall and

supplying answers to the petitioner. The petitioner was also allowed to copy.

(viii) From the above circumstances, the learned Public Prosecutor would submit that there are sufficient materials available to infer that there was

conspiracy to commit an illegal act.

(ix) The illegal act, which was conspired was to write the examination by getting answers supplied by the second accused from the outside source

through cell phone and by copying. Thus, according to the final report and submissions of the learned Public Prosecutor, these materials are

sufficient to frame a charge u/s 120-B IPC, against the petitioner.

Mr. R. Krishnamoorthy, the learned senior counsel appearing for the petitioner would stoutly oppose the same. He would raise the following

points for consideration.

(i) The second accused Adhavan was not previously known to the petitioner at all. The address of Adhavan was also not chosen by the petitioner.

It was chosen only by one Ashokan. The application was also filled up by Ashokan, who is a friend of the petitioner. So, when the application was

made, the petitioner was not even aware of the fact that the examination Centre would be at Tagore Higher Secondary School and Adhavan

would be an Invigilator.

(ii) The proceedings of the District Educational Officer, which is said to have been forged by the third accused to favour the petitioner as well as

the second accused cannot be true. According to the learned senior counsel, there are materials to show that two more Invigilators were very

much required to cope up with the need. It is because of this, one Karthick and second accused offered to be the Invigilators. Therefore, there is

no criminal intention behind the offer made by the second accused to be an Invigilator. The letter came into being on 23.9.2011 itself. On that date,

the second accused Adhavan had no introduction to the petitioner. Therefore, the question of conspiracy does not arise at all, he contended.

(iii) Even according to the case of the prosecution, the second accused was met by the petitioner only on the morning of 29.9.2011. A casual

meeting between the petitioner and the second accused in the hotel will not go to give rise to any inference of conspiracy.

(iv) In the hall, it is the allegation that mass copying was permitted by the Invigilator, but, there is no material to show that the petitioner copied.

Simply because, Adhavan was found talking with the petitioner and talking over cellphone and frequently going out and coming into the

examination hall, that by itself will not even remotely give rise to an inference that he copied in the examination.

(v) The materials available on record will not go to show that there was any common design between all these accused to do any illegal act.

(vi) For these reasons, according to the learned senior counsel, the case is liable to be quashed.

I have considered the above submissions and also carefully perused the records.

At the outset, I have to state that though, it is alleged that the petitioner has committed an offence of conspiracy to commit the offences

punishable under Sections 419 and 471 IPC, the learned Public Prosecutor would submit that there are no materials to proceed against the

petitioner in respect of these two offences. Therefore, there is no scope for the trial Court to frame charges u/s 120-B read with 419 and 471 IPC.

To that extent, I have to record the submission of the learned Public Prosecutor with agreement.

Now, what remains to be considered is, as to whether there are materials to allow the prosecution to go ahead in respect of the allegation that

the petitioner had been a party to a conspiracy punishable u/s 120-B IPC simplicitor.

In my considered opinion, there are materials available on record, which prima facie make out a case of conspiracy punishable u/s 120-B(2)

IPC, which require trial. It is needless to point out that conspiracy is not hatched, invariably in all cases, in the presence of any witness. Conspiracy

is mostly hatched only in secrecy. Therefore, the prosecution, in general, is left with the option of proving the conspiracy only by means of inference

drawn on the basis of proved circumstances. Here in this case, the learned Public Prosecutor has listed out the circumstances upon which prima

facie inference of conspiracy can be made out. Let me now consider the same.

First of all, admittedly, the petitioner is not a resident of Tindivanam. But, he has given a false address, as though, he was a resident of

Tindivanam. In this regard, I may refer to the application submitted by the petitioner for the said examination. In the application in Column No. 6, it

was stated as follows:

From the above, it is very clear that the candidate is required to give only his residential address. The residential address need not be a

permanent address. A temporary address will do. Thus, the address should be a residential address, either temporary or permanent. Admittedly,

the petitioner is not a resident of Tindivanam. Thus, the address given in the application, as though, it was his residential address, is incorrect. This

gives an initial inference of conspiracy to do an illegal act.

It is needless to point out at this juncture that a party to the conspiracy need not have knowledge of every event, which is a component of

conspiracy. He may be a party to only certain facts, which are all components of conspiracy. In this case, at the time when false address was given

in the application, of course, there is no material to show that the petitioner had any acquaintance with the second accused Adhavan. Thus, at the

time, when the residential address was falsely given in the application, the petitioner had no occasion to meet either Adhavan or to share the

common design with Mr. Adhavan, the second accused.

Nextly, it is alleged that the petitioner, along with second accused, had made arrangement for engaging a person to impersonate him in the

examination. It is further alleged, unfortunately, that attempt failed, because, the person, who was engaged, declined to write the examination by

means of impersonation at the last moment. But, a perusal of the records would go to show that there are no materials on record in respect of this

allegation.

Nextly, in the examination Centre, Adhavan was not originally in the list of Invigilators. As per the proceedings of Mr. Shanmugam, the District

Educational Officer, there were only 22 Invigilators. The second accused was no were in the scene. But, on his own, he went to the office of the

District Educational Officer and without the knowledge of the District Educational Officer, he made a request to the third accused, who was

working as Assistant in the office to include him in the list. The third accused entered the name of Adhavan, the second accused, at the end of the

list of Invigilators in his handwriting as 23rd person. Mr. Shanmugam, District Educational Officer, in his statement has stated that it was not done

with his knowledge. This would only go to show prima facie that the inclusion of the name of second accused in the list of Invigilators was done

with some motive.

After his name was included in the Invigilators list, the second accused had gone to the school. It is the statement of the Headmistress of the

School that the second accused had made a request to allot him Hall No, 14. It is needless to point out that it was only in Hall No. 14, the

petitioner was to write the examination. It is to be explained by Adhavan as to why he had specifically chosen the Hall No. 14. This also gives an

inference that the second accused had chosen the Hall No. 14 only with a view to help the petitioner, knowing fully well that the petitioner was to

write the examination in Hall No. 14.

On the next day, viz., on 30.9.2011, the petitioner did not write the Social Science examination. On that day, the second accused made a

request to the Headmistress to allot a different room. This will also give an inference that he had a bad intention in his mind, when he wanted the

Headmistress to allot him Hall No. 14 on 29.9.2011 alone.

On the day of examination viz., on 29.9.2011, there was no need for the second accused to meet the petitioner at all. But, he met him in a

hotel situated in the outskirts of Tindivanam. They were found locked in discussion for some time. This was spoken to by a number of witnesses. It

needs to be explained by the accused during trial as to, what was the subject of conversation about, held between them. Whatever be the case, the

very meeting of the second accused, who also happened to be the Invigilator, just sometime before the commencement of the examination, also

would give an inference that they would have talked something about the examination only.

After leaving the hotel, the second accused had gone straight to the school where the petitioner also followed. When the petitioner was writing

the examination, according to the fellow students, who also wrote the examination in the same hall, Adhavan, who was the Invigilator, was found

frequently talking to the petitioner. He was also found talking to someone else through cellphone. The witnesses have said that Adhavan helped the

petitioner to write the examination. It is an illegal act for an Invigilator to help the candidate in the examination Centre, who wrote the examination.

This also gives an inference that it is a part of conspiracy.

Now, the question is, as to what was conspired. As per Section 12G-A IPC, conspiracy means, a common design to commit an illegal act.

For immediate reference, let me now reproduce Section 120-A IPC, which reads as follows:

120-A. Definition of criminal conspiracy.-

When two or more person agree to do, or cause to be done,

(1) An illegal act, or

(2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an

agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to

such agreement in pursuance thereof.

Explanation: - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.

The term ""illegal act"" has been defined in Section 43 of the IPC, which states that doing an illegal act means doing something, which is

prohibited by law. Section 43 IPC reads as follows:

Illegal, Legally bound to do

The word ""illegal"" is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a

person is said to be ""legally bound to do"" whatever it is illegal in him to omit.

A cursory glance through these two provisions would make one to understand that the ""agreement"" to do or cause to be done an act as

envisaged in Section 120-A IPC need not necessarily be to do an act which is an offence. It is suffice that the act agreed to be done is an act

prohibited by law. If the act agreed to be done is an offence, then the punishment for such conspiracy shall be as provided in Section 120-B(1)

IPC. And, if the act agreed to be done is not offence but only prohibited by law, then the punishment for such conspiracy shall be as provided u/s

120-B(2) IPC simplicitor.

In the instant case, helping the candidate in the examination Centre by allowing him to copy in the examination and supplying answers to him is

certainly an illegal act, which is prohibited by law. To do this illegal act only, they had hatched a common design. That common design is the

conspiracy as defined in Section 120-A of the Act punishable u/s 120-B(2) of the Act.

From the materials, which I have already narrated above, prima facie it may be inferred that all these acts were only for the purpose of

facilitating the petitioner to write the examination by copying and by getting answers supplied by the second accused, that too, by frequently

gathering the answers from somebody over cellphone. Thus, there are materials to frame charge u/s 120-B(2) IPC to the effect that the petitioner

along with the other accused had conspired to do the illegal act of copying in the examination by getting answers supplied by the second accused

and by getting others help as narrated above.

Thus, I find that it is not a case where there are no materials at all so as to quash the proceedings. In this regard, I may refer to the judgment of

the Hon''ble Apex Court in State of Haryana and Others v. C.H. Bhajanlal and Others, 1992 SCC (Suppl.) (1) 335, wherein, the Apex Court has

given the illustrative cases where the High Court could invoke its inherent power u/s 482 Cr. P.C. to quash the proceedings. Though the list is not

exhaustive, it is profusely illustrative. If we look into the same, I find that the case of the petitioner does not fall under any one of the illustrative

cases given in the said judgment. The learned senior counsel appearing for the petitioner is also not able to show any other circumstances under

which this Court can hold that it is a fit case to be quashed.

At this juncture, the learned senior counsel submitted that because of the political animosity, this case has been falsely foisted. Admittedly, the

petitioner contested in the last election to Puducherry Assembly as a candidate of a particular political party. The party in power in the State of

Tamil Nadu is a different political party. It is because of the political animosity, this case has been falsely foisted, he contended.

In my considered opinion, simply because the petitioner belongs to an opposing political party, it cannot be straightaway inferred that this case

has been falsely foisted due to political animosity. It is a matter for proof to be placed before the trial Court at the appropriate stage. For a

moment, I do not say that the petitioner has committed the offence of conspiracy. I only say that there are materials by way of documents and

statements of witnesses to make out a prima facie case to frame charge for the offence u/s 120-B(2) IPC.

Thus, in my considered opinion, it is not a fit case to quash the proceedings at the threshold itself. The matter requires a complete trial by the

competent Court. In view of all the above, I am inclined only to dismiss the petition. Accordingly, this Criminal Original Petition is dismissed.

Consequently, connected M.P. No. 1 of 2012 is closed.

Before parting with the case, I want to place on record that the trial Court, while trying the case, shall not get influenced by any of the

observations made in this order. These observations have been made by this Court only for the limited purpose to decide the issues in this petition

alone and not for any other purpose.

When this Court was about to complete the dictation of this order in open Court, the learned senior counsel appearing for the petitioner

submitted that the petitioner is not going to file any petition for discharge and if charges are framed, he is prepared to face the trial. The learned

senior counsel would further submit that in view of the said position and also since the petitioner has resigned his Ministership there may be a

direction issued to the trial Court to expedite the trial. Having regard to the above facts and circumstances and the submissions of the learned

senior counsel for the petitioner, I am inclined to issue a direction to the trial Court to expedite the trial and complete the same, preferably, within a

period of three months from the date of receipt of a copy of this order and in any event, not later than six months.