Court Cannot Impose Condition Of Deposit Of Money While Granting Default/Statutory Bail U/s 167(2) CrPC: SC

                In a recent, remarkable and righteous decision titled Saravanan vs. State represented by the Inspector of Police in Criminal Appeal Nos. 681-682 of 2020 (Arising from S.L.P. (Criminal) Nos. 4386-4387 of 2020) delivered on October 15, 2020, the three-Judge Bench of the Apex Court comprising of Justices Ashok Bhushan, R Subhash Reddy and MR Shah have held in no uncertain terms that while granting default bail/statutory bail under Section 167(2) of the Code of Criminal Procedure condition of deposit of amount cannot be imposed. The only requirement for getting the default bail/statutory bail under Section 167(2), CrPC is that the accused is in jail for more than 60 or 90 days as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. It thus rightly set aside the condition imposed by the Madurai Bench of the Madras High Court which while releasing an accused on default bail/statutory bail, imposed a condition to deposit Rs. 8,00,000.

To start with, the ball is set rolling in para 2 of this latest, landmark and laudable judgment after granting leave in para 1 wherein it is observed that, “Feeling aggrieved and dissatisfied with the impugned order dated 24.06.2020 in Criminal O.P.(MD) No. 6214 of 2020 and order dated 27.07.2020 in Criminal M.P.(MD) No. 3622 of 2020 passed by the Madurai Bench of the Madras High Court, by which the High Court has released the appellant on default bail/statutory bail, on condition to deposit Rs. 8,00,000/- (Rupees Eight Lakhs only) to the credit of crime No. 31 of 2019 before the learned Judicial Magistrate, Court No. 1, Nagercoil, Kanyakumari District, the original accused has preferred the present appeals.”

While dwelling on the facts of the case, it is then observed in para 3 that, “That the appellant herein was arrested and remanded to the judicial custody on 31.01.2020 for the offences punishable under Section 420 of the IPC in Crime No. 31 of 2019 on the file of the D.C.B. Police Station, Kanyakumari District. That the appellant herein filed an application before the learned Judicial Magistrate seeking bail under Section 437 Cr.P.C. That the wife of the appellant filed an affidavit before the learned Judicial Magistrate and assured to pay Rs. 7,00,000/- (Rupees Seven Lakhs only) and the balance amount to be paid on or before 06.04.2020, against the alleged amount of Rs. 15,67,338/- (Rupees Fifteen lakhs Sixty Seven thousand Three hundred thirty eight only). Therefore, by order dated 3.2.2020, the learned Magistrate released the appellant on bail on the conditions stated in the said order. One of the conditions was directing the appellant to deposit Rs. 7,00,000/- in the Court, and the balance amount of Rs. 8,67,338/- was directed to be deposited on or before 06.04.2020.”

While elaborating further, it is then laid down in para 4 that, “Feeling aggrieved and dissatisfied with condition nos. 2 and 3 of the order passed by the learned Magistrate releasing the appellant on bail, i.e. directing the appellant to deposit Rs. 7,00,000/-, out of the total alleged amount of Rs. 15,67,338/- and the balance to be deposited on or before 6.4.2020, the appellant approached the High Court by way of Criminal OP(MD) No. 6214 of 2020. The High Court dismissed the said application with liberty to the appellant to approach the Magistrate Court for any modification and observed that if any modification is required, the same may be considered by the Magistrate. That thereafter, the appellant filed an application before the learned Sessions Court being Criminal M.P. No. 1695/2020 to release the appellant on default bail/statutory bail under Section 167(2), Cr.P.C. It was the case on behalf of the appellant that he was arrested and remanded on 31.02.2020 and he is inside the jail for more than 101 days and the investigation is not completed and the police has not filed the final report within the period provided under Section 167 Cr.P.C. The said application came to be dismissed by the learned Sessions Court on the ground that earlier when the appellant applied for regular bail and which was allowed on condition to deposit Rs. 7,00,000/- in the Court and the same has not been complied with, and despite the liberty reserved by the High Court to approach the Magistrate Court for modification of the conditions, instead of doing so, the appellant has filed an application for default bail/statutory bail under Section 167(2), Cr.P.C., therefore, the learned Sessions Court dismissed the said application.”

As a corollary, it is then pointed out in para 5 that, “Feeling aggrieved, the appellant approached the High Court and prayed to release the appellant on default bail/statutory bail. It was the case on behalf of the appellant that non-deposit of any amount which was required to be deposited pursuant to the order passed by the learned Magistrate, imposed while releasing the appellant on regular bail under Section 437, Cr.P.C., shall not come in the way of the appellant-accused in getting default bail/statutory bail under Section 167(2), Cr.P.C. It was submitted that the default bail/statutory bail under Section 167(2), Cr.P.C. is mandatory bail, provided the conditions in Section 167 Cr.P.C. are satisfied, i.e., investigation is not completed and the chargesheet/report is not filed by the investigating agency within the time stipulated under Section 167 Cr.P.C. The High Court, by the impugned judgment and order dated 24.06.2020 accepted the same, however, considering the earlier undertaking given by the wife of the appellant in the Court of the learned Magistrate while considering the regular bail application under Section 437, Cr.P.C., i.e., to deposit Rs. 7,00,000/-, while releasing the appellant on default bail/statutory bail, the High Court has imposed the condition that the appellant shall deposit a sum of Rs. 8,00,000/- before the learned Magistrate. That thereafter, the appellant preferred application being Criminal MP(MD) No. 3622 of 2020 before the High Court to modify condition nos. (b) and (d) in Criminal OP(MD) No. 6214/2020 by which the appellant was directed to deposit Rs. 8,00,000/- before the learned Judicial Magistrate and the appellant was directed to report before the concerned police station daily at 10:00 a.m., until further orders, for interrogation. By the impugned order dated 27.07.2020, the High Court has dismissed the said application for modification observing that earlier wife of the appellant filed affidavit before the learned Magistrate to deposit Rs. 7,00,000/- and the alleged amount is Rs. 32,23,073/-, condition nos. (b) and (d) in order dated 24.06.2020 in Criminal OP(MD) No. 6214/2020 are not required to be modified. Hence, the present appeals.”

On the one hand, to drive home the appellant’s point, it is then revealed in para 6 that, “Learned counsel appearing on behalf of the appellant has vehemently submitted that condition nos. (b) and (d) imposed by the High Court imposed while releasing the appellant on default bail/statutory bail under Section 167(2), Cr.P.C. is contrary to the scheme of Section 167 of Cr.P.C. It is submitted that as observed by this Court in catena of decisions, the scheme of Code of Criminal Procedure delineates that provisions of Section 167 Cr.P.C. give due regard to the personal liberty of a person. Without submission of charge sheet within 60 days or 90 days, as may be applicable, an accused cannot be detained by the Police. The provision gives due recognition to the personal liberty. It is submitted that as held by this Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, where investigation is not completed within 60 days or 90 days, as the case may be, no chargesheet is filed on the 60th or 90th day, accused applies for default bail and is prepared to furnish bail, accused becomes entitled to default bail, it cannot be frustrated either by the prosecution or the Court. It is submitted that it is further held that accused need not make out any grounds for grant of default bail but only needs to state that 60/90 days, as the case may be, have expired, chargesheet not filed, he is entitled to bail and willing to furnish the same. It is submitted that therefore condition nos. (b) and (d) imposed by the High Court while releasing the appellant or default bail/statutory bail are against the scheme of Section 167, Cr.P.C.”

On the other hand, it is then revealed in para 7 that, “Mr. Jayanth Muthuraj, learned Additional Advocate General appearing on behalf of the State has tried to support the impugned order(s) passed by the High Court by submitting that as earlier the wife of the appellant filed an affidavit before the learned Magistrate to deposit Rs. 7,00,000/- and the alleged amount was Rs. 15,67,338/-, probably the High Court has imposed condition no. (b) directing the appellant to deposit Rs. 8,00,000/-.”

Most significantly, the Bench then minces no words to state in simple, straight and suave language in para 9 which constitutes the backbone and bedrock of this notable judgment that, “Having heard the learned counsel for the respective parties and considering the scheme and the object and purpose of default bail/statutory bail, we are of the opinion that the High Court has committed a grave error in imposing condition that the appellant shall deposit a sum of Rs. 8,00,000/- while releasing the appellant on default bail/statutory bail. It appears that the High Court has imposed such a condition taking into consideration the fact that earlier at the time of hearing of the regular bail application, before the learned Magistrate, the wife of the appellant filed an affidavit agreeing to deposit Rs. 7,00,000/-. However, as observed by this Court in catena of decisions and more particularly in the case of Rakesh Kumar Paul (supra), where the investigation is not completed within 60 days or 90 days, as the case may be, and no chargesheet is filed by 60th or 90th day, accused gets an “indefeasible right” to default bail, and the accused becomes entitled to default bail once the accused applies for default bail and furnish bail. Therefore, the only requirement for getting the default bail/statutory bail under Section 167(2), Cr.P.C. is that the accused is in jail for more than 60 or 90 days, as the case may be, and within 60 or 90 days, as the case may be, the investigation is not completed and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail. No other condition of deposit of the alleged amount involved can be imposed. Imposing such condition while releasing the accused on default bail/statutory bail would frustrate the very object and purpose of default bail under Section 167(2), Cr.P.C. As observed by this Court in the case of Rakesh Kumar Paul (supra) and in other decisions, the accused is entitled to default bail/statutory bail, subject to the eventuality occurring in Section 167, Cr.P.C., namely, investigation is not completed within 60 days or 90 days, as the case may be, and no chargesheet is filed by 60th or 90th day and the accused applies for default bail and is prepared to furnish bail.”

What’s more, the Bench then observes in para 9.1 that, “As observed hereinabove and even from the impugned orders passed by the High Court, it appears that High Court while releasing the appellant on default bail/statutory bail has imposed the condition to deposit Rs. 8,00,000/- taking into consideration that earlier before the learned Magistrate and while considering the regular bail application under Section 437 Cr.P.C., the wife of the accused filed an affidavit to deposit Rs. 7,00,000/-. That cannot be a ground to impose the condition to deposit the amount involved, while granting default bail/statutory bail.”

It is worth noting that it is then observed in para 9.2 that, “The circumstances while considering the regular bail application under Section 437 Cr.P.C. are different, while considering the application for default bail/statutory bail. Under the circumstances, the condition imposed by the High Court to deposit Rs. 8,00,000/-, while releasing the appellant for default bail/statutory bail. Under the circumstances, the condition imposed by the High Court to deposit Rs. 8,00,000/-, while releasing the appellant on default bail/statutory bail is unsustainable and deserves to be quashed and set aside.”

Going ahead, para 10 then makes it clear that, “Now as far as condition no. (d) imposed by the High Court, namely, directing the appellant to report before the concerned police station daily at 10:00 a.m., until further orders, for interrogation is concerned, the same is also unsustainable, as it is too harsh. Instead, condition which can be imposed is directing the appellant to cooperate with the investigating officer in completing the investigation and to remain present before the concerned police station for investigation/interrogation as and when called for, and on breach the investigating officer can approach the concerned court for cancellation of the bail on breach of such condition.”

Finally, what para 11 then underscores is that, “In view of the above and for the reasons stated above, the present appeals succeed. Condition No. (b) of order dated 24.06.2020 passed by the High Court in Criminal OP(MD) No. 6214 of 2020, i.e., directing the appellant to deposit Rs. 8,00,000/- to the credit of crime No. 31 of 2019 before the learned Judicial Magistrate, Court No. 1, Nagercoil, Kanyakumari District, while releasing the appellant on default bail, is hereby quashed and set aside. Condition no. (d), namely, directing the appellant to report before the concerned police station at 10:00 a.m. daily, until further orders for interrogation is hereby modified to the extent and it is directed that the appellant shall co-operate with the investigating agency and shall report the concerned police station as and when called for investigation/interrogation and on non-cooperation, the consequences including cancellation of the bail shall follow. Rest of the conditions imposed by the High Court in order dated 24.06.2020 are maintained.”

In essence, the key takeaway from this noteworthy judgment is that while granting default bail/statutory bail under Section 167(2) of the Code of Criminal Procedure, the condition of deposit of amount cannot be imposed. All the courts while delivering judgments in such similar cases must always take this latest, landmark and extremely laudable judgment into account before pronouncing the final judgment themselves! Para 9 which constitutes the bedrock and backbone of this notable judgment must be always followed in letter and spirit! No denying it!

SC Reiterates That Section 50 NDPS Act Applicable Only In The Case Of Personal Search

In a well-worded, well-drafted, well-articulated, well-reasoned and well-analysed judgment titled Jeet Ram vs. Narcotics Control Bureau, Chandigarh in Case No.: Criminal Appeal No. 688 of 2013 in exercise of its criminal appellate jurisdiction delivered as recently as on September 15, 2020, a three Judge Bench of the Apex Court has laid down in no uncertain terms that Section 50 of the NDPS Act is applicable only in the case of personal search. This the Supreme Court has reiterated unambiguously while affirming the conviction of an accused who was a temple priest. Very rightly so!

To start with, the ball is set rolling in para 1 of this latest, landmark and laudable judgment authored by Justice R Subhash Reddy for himself, Justice Ashok Bhushan and Justice MR Shah wherein it is observed that, “This appeal is filed by the sole accused, in Sessions Trial No. 7-5/2002 of 2001 on the file of Sessions Judge, Shimla, aggrieved by the judgment of conviction dated 11.12.2012 and further order of sentencing the appellant, dated 31.12.2012, passed by the High Court of Himachal Pradesh, Shimla in criminal Appeal No. 493 of 2003.”

To be sure, it is then revealed in para 2 that, “The appellant-accused was tried for a charge punishable under Section 20 of Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’). The Sessions Judge, Shimla by judgment dated 30.06.2003 acquitted the accused by recording a finding that the case of prosecution was not free from doubt and there were many infirmities in the case of the prosecution to hold that the accused was found to be in possession of charas, as alleged by the prosecution.”

To put it succinctly, it is then stated in para 3 that, “The case as put forth by the prosecution, briefly stated, is as under:

On 18.06.2001 the Intelligence Officer in the Narcotics Control Bureau (NCB), Chandigarh, by name – R.P. Singh (PW-4) was proceeding to Theog from Shimla. He was travelling along with PW-3 – O.P. Bhatt and other officials. In the transit they stopped at the dhaba to have meals which was near the Nangala Devi temple. When they ordered meals and tea and were waiting for the food to be served, the Intelligence Officer could smell the odour of charas. In the meanwhile, the Zonal Director of NCB, Chandigarh, by name – Rakesh Goyal, who was examined as PW-1 also reached the said dhaba. Then they have questioned the appellant-accused about the smell of charas and on such questioning he became nervous. As such there was increase of suspicion of the NCB officials. On asking the owner of the dhaba, he disclosed his name to be Jeet Ram and on further questioning he tried to run away. Then he was apprehended and taken to the counter of the dhaba. Just below the counter of the dhaba a gunny bag was found. When asked, appellant has replied – there is nothing in it. Then notice under Section 50 of the NDPS Act was given to the accused and appellant has consented to search the same by the NCB officials. Thereafter the bag was searched and the officers have found 13 Kg of charas. The charas was divided into two portions of 6 ½ Kg each and two packets were made which were marked as ‘X’ and ‘Y’ respectively. From each of these packets, two samples of 25 grams were drawn. The samples drawn from the packet – Mark ‘X’ – were marked as ‘X1’ and ‘X2’ and the samples drawn from packet – Mark ‘Y’ – were marked as ‘Y1’ and ‘Y2’. Thereafter all the four samples were sealed in a polythene bag by heat sealing process and were put in paper envelopes and seal with paper seals, signed by NCB officials as well as the appellant-accused Jeet Ram. On each sample seal no. 6 of NCB was affixed on all the four corners and the bulk charas in packets ‘X’ and ‘Y’  was sealed in paper parcels with six seals each. The seals were handed over to PW-1 and all the samples and the parcels were signed by NCB officials and accused. Further, in the statement recorded as contemplated under Section 67 of the NDPS Act, the appellant has admitted that for various reasons he was indulged in the trade of charas to increase his income. Thereafter a Panchnama was drawn which was signed by the appellant and he was arrested on 19.06.2001. The two samples of ‘X1’ and ‘Y1’ along with a letter were sent through PW-2 Hayat Singh to Chemical Analyst for analysis, who has vide his report opined that both the samples were of charas. On the said basis, the appellant-accused was charged and challaned for the offence under Section 20 of the NDPS Act.”

To put things in perspective, it is then stated in para 4 that, “When the charge is denied by the appellant-accused, he was tried for the aforesaid offence before the Sessions Judge, Shimla. To prove the guilt of the appellant, the prosecution has examined four witnesses in all, in support of its case. On behalf of the accused oral evidence was let in to show that the dhaba in question was not being run by him and he was employed as a priest in the nearby temple. After considering the oral and documentary evidence on record, the trial court by judgment dated 30.06.2003 acquitted the appellant-accused mainly on the grounds that – the prosecution case was not supported by any independent witness; the prosecution has failed to show that the seized charas was recovered from the dhaba of the appellant-accused and further there is no evidence to show that the appellant-accused was found in possession of the charas, as pleaded by the prosecution; there was non compliance of Section 50 of the NDPS Act; as the samples was handed over to PW-1 Rakesh Goyal who himself gave the sample to PW-2 for carrying the same to the Central Laboratory at Delhi and these seals remained with the Director, as such the chances of tampering could not be ruled out and also on the ground that the case of the prosecution was unnatural and improbable.”

As it turned out, para 5 then states that, “Aggrieved by the judgment of the trial court, the NCB, Chandigarh has filed appeal as contemplated under Section 36-B of the NDPS Act read with Section 378 of the Code of Criminal Procedure before the High Court of Himachal Pradesh at Shimla in Criminal Appeal No. 493 of 2003. The High Court by reappreciating the evidence on record has come to conclusion that the prosecution has proved its case beyond reasonable doubt and also has proved that 13 Kg of charas was recovered from the possession of the appellant-accused, who was managing the dhaba in question, and set aside the judgment of the trial court and ordered conviction of the appellant for offence punishable under Section 20 of the NDPS Act. By further hearing the appellant, order dated 31.12.2012 was passed sentencing the appellant-accused to undergo rigorous imprisonment for 15 years and to pay fine of Rs. 2,00,000/- and in default, to undergo further imprisonment of one year. Aggrieved by the conviction recorded and sentence imposed by the High Court, this appeal is filed by the accused.”

Truth be told, the Bench then observes in para 9 that, “Having heard the learned counsel on both sides and on perusal of the record, we do not find any substance in any of the contentions advanced by the learned counsel for the appellant, except the submission on the quantum of sentence.”

Most significantly, the Bench then very rightly points out in para 10 that, “It is mainly contended by learned counsel for the appellant that the High Court/appellate Court was not justified in interfering with the judgment of acquittal passed by the trial court merely because another view is possible. As noted earlier, in support of his argument that merely because another view is possible, same is no ground to interfere with the judgment of acquittal by the appellate court, the learned counsel has relied on judgments of this Court in the case of Union of India v Bal Mukund & Ors. (2009) 12 SCC 161; Francis Stanly v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram (2006) 13 SCC 210 and Rangaiah v. State of Karnataka (2008) 16 SCC 737. To counter the said submission, the learned Additional Solicitor General Sri Aman Lekhi has submitted that it is always open to the appellate court to review the evidence on record upon which order of acquittal is founded and if it comes to conclusion that the order passed by the trial court is erroneous and unreasonable, it is always open for the appellate court to interfere with the order of acquittal. It is contended that the view taken by the trial court is not a possible view having regard to evidence on record. Such erroneous finding can be corrected by the appellate court. In support of his argument, the learned Additional Solicitor General has placed reliance on the judgments of this Court in the case of Sanwat Singh & Ors. v. State of Rajasthan (1961) 3 SCR 120; Damodarprasad Chandrikaprasad v. State of Maharashtra (1972) 1 SCC 107 and Vinod Kumar v. State of Haryana (2015) 3 SCC 138. Though the ratio laid down in the judgments relied on by the learned counsel for the appellant is that the appellate court would not interfere with the judgment of acquittal only because another view is possible but at the same time whether the findings recorded by the trial court in support of acquittal are valid or not is a matter which is to be considered with reference to facts of each case and evidence on record. On close scrutiny of the depositions of the witnesses examined on behalf of the prosecution as well as on behalf of the accused, we are of the view that the findings recorded by the trial court are contrary to evidence on record and view taken by the trial court was not possible at all, as such the High Court rightly interfered with the same and recorded its own findings to convict the appellant. The trial court acquitted the appellant mainly on the ground that prosecution case was not supported by independent witnesses; conscious possession was not proved; non-compliance of Section 50 of the NDPS Act; proper procedure was not followed in sending the samples for examination and the case of the prosecution was unnatural and improbable. As rightly held by the High Court, this Court in the case of State of H.P. v. Pawan Kumar (2005) 4 SCC 350 has held that Section 50 of the NDPS Act is applicable only in the case of personal search, as such, there is no basis for the findings recorded by the trial court that there was non-compliance of provision under Section 50 of the NDPS Act. Even with regard to the finding of the trial court that the case of the prosecution was not supported by independent witnesses, it is clear from the evidence on record that the incident had happened at about 10:30 p.m. in a dhaba which is away from the village site and all other persons who are found in the dhaba were the servants of the accused.  It is also clear from the evidence on record that Suresh Kumar and Attar Singh examined on behalf of the appellant are closely related to the accused, as such, they could not be said to be independent witnesses. Pappu was the only other person who is none other than the servant of the dhaba and we cannot expect such a person to be a witness against his own master. Dealing with the issue of conscious possession, it is to be noticed that dhaba is constructed on the land which belongs to Kaushalya Devi who is none other than the wife of the accused. Further in deposition PW-4 has stated that when the accused was questioned as to who was the owner of the dhaba, he claimed to be the owner. The case of the prosecution was found to be unnatural and improbable by the trial court only on the ground that 13 Kg of charas was lying in open in a gunny bag. The trial court found that it is not believable that any person would keep such a huge quantity of charas in open condition. It is clear from the evidence of prosecution witnesses that the officials of NCB got information that trafficking of charas was going on in the area in question. Two police parties had left for Theog – one party headed by PW-4 B.P. Singh started earlier and second party headed by PW-1 Rakesh Goyal left a little later from Shimla. Thus the depositions of PW-4 R.P. Singh; PW-3 O.P. Bhat; PW-1 Rakesh Goyal and PW-2 Hayat Singh are consistent and trustworthy and cannot be said to be unnatural and improbable. Further it is also to be noted that the trial court has held that seal with which samples and remaining bulk of charas was sealed and handed over to PW-1 Rakesh Goyal who himself gave the sample to PW-2 for carrying to Central Laboratory at Delhi and since the seals remained with the Director, the chances of tampering could not be ruled out. In this regard, it is to be noticed, as rightly held by the High Court, that the trial court totally lost sight of the fact that on 19.06.2001 JMIC, Theog had also appended his signatures on the samples as well as bulk parcels and, therefore, there was no chance of tampering of the samples. Further, there was no such suggestion of tampering either put to PW-1 Rakesh Goyal or to PW-2 Hayat Singh.”

Briefly stated, the key point of para 11 is that, “For the aforesaid reasons, we are of the clear view that the view taken by the trial court was not at all possible, having regard to the evidence on record and findings which are erroneously recorded contrary to evidence on record were rightly set aside by the High Court. As submitted by the learned Additional Solicitor General appearing for the prosecution, it is always open to the appellate court to reappreciate the evidence, on which the order of acquittal is founded, and appellate courts are vested with the powers to review and come to their own conclusion. The judgments in the case of Sanwat Singh; Damodarprasad Chandrikaprasad and Vinod Kumar also support the case of the respondent. For the aforesaid reasons, we reject the submission made by the learned counsel for the appellant. Even with regard to the plea of the appellant that the evidence on record on behalf of the prosecution is not sufficient enough to hold that the appellant-accused was in conscious possession of the seized material, also cannot be accepted. It is clear from the evidence on record that the appellant was on the counter of the dhaba which was constructed on the land owned by his wife near the temple and the charas was found in the counter of the dhaba in a gunny bag. The facts of the case show that accused not only had direct physical control over charas, he had the knowledge of its presence and character. In the statement recorded under Section 313 of Code of Criminal Procedure, though the appellant has referred to Brij Lal and Mantu in support of a version, contrary to that presented by prosecution but he has not chosen to examine either Brij Lal or Mantu. No defence witness has deposed to the chain of events, as has been stated by the appellant in the statement under Section 313 , Cr.PC. It is also fairly well settled that where accused offers false answers in examination under Section 313 Cr.PC, same also can be used against him. Further onus was on the appellant to explain the possession and in absence of the same being discharged, presumption under Section 54 of the NDPS Act also will kick in.”

Be it noted, it is then observed in para 12 that, “For the aforesaid reasons, we are of the view that the judgment of the High Court does not suffer from any infirmity so as to interfere with the judgment of conviction.”

Finally, while adding a rider, it is then held in the last para 13 that, “At the same time we find force in the submission of the learned counsel for the appellant in sentencing the appellant for 15 years rigorous imprisonment with a fine of Rs. 2,00,000/-. Having regard to peculiar facts and circumstances of the case and in view of the fact that the incident occurred in the year 2001 and as the appellant claimed to be a priest in the temple, who is now aged about 65 years, we deem it appropriate that it is a fit case to modify the sentence imposed on the appellant. Accordingly, the sentence awarded on the appellant is reduced to a period of 10 (ten) years, while maintaining the conviction and the penalty as imposed by the High Court. The order of sentence dated 31.12.2012 passed by the High Court stands modified. The appeal is partly allowed to the extent indicated above.”

All said and done, it may well be said that with a lot of painstaking efforts this latest, landmark and extremely laudable judgment has been absolutely right in inferring the logical conclusion and by citing the relevant case laws along with cogent arguments! All the courts of our country in similar such cases must always strictly adhere to the guidelines which have been laid down in this notable case and the reasoning adopted to reach the conclusion that we see here! There can be no denying or disputing as held by a three Judge Bench of the Apex Court in this case that, “Section 50 NDPS Act is applicable only in the case of personal search!”

Sanjeev Sirohi

SC Imposes Rs 5 Crore Penalty On Sarvepalli Radhakrishnan Medical College For Playing Fraud On It and Orders Prosecution Of Its Dean

 

                               It must be said with consummate ease that in a landmark, latest and laudable judgment titled Sarvepalli Radhakrishnan University & Another v. Union of India & Others in Writ Petition (Civil) No. 1001 of 2017 with Writ Petition (Civil) No. 731 of 2018 which was delivered on January 17, 2019 by a three-Judge Bench of Supreme Court and authored by Justice L Nageswara Rao for himself, Justice Sharad A Bobde and Justice R Subhash Reddy, the Supreme Court has imposed a whooping penalty of Rs 5 crore on a medical college for playing fraud on it. It also ordered prosecution of its dean. While clearly barring the R.K.D.F. Medical College Hospital and Research Centre from making admissions for the 1st year MBBS course for the next two years, the three-Judge Bench of Supreme Court has also ordered prosecution of college dean SS Kushwaha under Section 193 of the Indian Penal Code. The Supreme Court also directed the college to pay compensation of Rs. 1 lakh to each student admitted in the college for the academic year, apart from the refund amount payable to them.

To start with, para 1 of this judgment first and foremost brings out that, “Permission was granted for the establishment of Petitioner No. 2-R.K.D.F. Medical College Hospital and Research Centre (hereinafter referred to as “the College”) by Respondent No. 1 on the recommendation of Respondent No. 2-herein- Medical Council of India, with an intake capacity of 150 MBBS seats annually for the academic year 2014-15. An inspection was conducted on 23rd and 24th of February, 2015 for grant of renewal for admitting the 2nd Bath of 150 MBBS students for the academic year 2015-16. The Medical Council of India (MCI) recommended to the Central Government to reject the permission for admission of the 2nd Batch of 150 MBBS students for the academic year 2015-16 in view of the deficiencies found in the Assessment Report. A review/reassessment was done by the Executive Committee of Respondent No. 2 at the request of the Central Government. The Executive Committee of Respondent No. 2 reconsidered the matter and recommended to the Central Government not to renew the permission for the 2nd Batch of MBBS students for the academic session 2015-16. There was a further recommendation that the College should be debarred from making admissions for the next two academic sessions. The Central Government accepted the recommendation made by Respondent No. 2 and rejected the request for renewal. Yet another review/reassessment was done by the Central Government pursuant to the directions issued by this Court in SLP (C) No. 19543 of 2015 vide order dated 8th September, 2015. A Committee was constituted to afford an opportunity of hearing to the College. The College was denied permission to admit the 2nd Batch of the MBBS students for the year 2015-16 by an order of Respondent No. 1 dated 28th September, 2015. The High Court of Delhi quashed the said order dated 28th September, 2015 and directed the Central Government to examine the matter afresh vide its order dated 29th December, 2015 in Writ Petition (C) No. 9663 of 2015. The Central Government reiterated its decision by an order dated 1st January, 2016 to not grant permission to the College to admit the 2nd Batch of MBBS students. One more inspection was ordered by the High Court of Madhya Pradesh on 11th May, 2016 in Writ Petition (C) No. 21223 of 2015. Respondent No. 2 filed SLP (C) No. 14729 of 2016 challenging the order dated 11th May, 2016 passed by the High Court of Madhya Pradesh.  On 15th July, 2016, this Court directed that a fresh inspection should be conducted. The order dated 15th July, 2016 was modified by this Court on 9th September, 2016 by which the Oversight Committee was requested to consider the matter pertaining to the admission of students in the College for the year 2016-17.”

To be sure, it is then added in para 2 that, “By an order dated 27th September, 2016, the Oversight Committee accorded approval to the College for admission of students for the year 2016-17. The Oversight Committee directed the College to rectify the deficiencies and submit a compliance report to the Ministry of Health & Family Welfare by 27th September, 2016. The College was informed that a bank guarantee of Rs. Two Crores in favour of Respondent No. 2 has to be furnished by 27th September, 2016. It was stated that non-compliance of the conditions imposed by the Oversight Committee would result in the College getting debarred from fresh intake for two years commencing 2017-18. The 2nd Batch of 150 students for the academic year 2016-17 were admitted pursuant to the conditional permission for renewal granted by the Central Government.”

Truth be told, it is then brought out in para 3 that, “A joint verification inspection was conducted on 5th and 6th January, 2017 for renewal of permission to the 3rd Batch of MBBS students for the academic year 2017-18. Finding gross deficiencies in the infrastructure, clinical material, teaching faculty and other physical facilities in the College, the Executive Committee of Respondent No. 2 concluded that the undertaking given by the College on 28th September, 2016 was breached. The Committee decided to recommend to the Central Government to debar the College from admitting students for the academic years 2017-18 and 2018-19. The Central Government accepted the recommendations made by Respondent No. 2 and by an order dated 31st May, 2017 debarred the College from making admissions for the years 2017-18 and 2018-19. The High Court of Madhya Pradesh allowed Writ Petition  (C) No. 8100 of 2017 filed by the College questioning the legality of order of the Central Government dated 31st May, 2017. The College was permitted to provisionally admit 150 students. Aggrieved by the judgment dated 21st July, 2017 of the High Court of Madhya Pradesh, Respondent No. 2 filed SLP (C) No. 20400 of 2017 before this Court. The re-inspection as directed by the High Court of Madhya Pradesh was confirmed by this Court by an order dated 14th August, 2017. It was made clear in the said order that the admission of students shall be completely provisional, being dependent on the result of the inspection. It was further mentioned that the admission of students shall be liable to be cancelled if the College fails in the inspection and the students will not be entitled to claim any equity. The students were directed to be informed by the Counselling committee about the said condition. An inspection was scheduled to be conducted on 14th & 15th September, 2017 for renewal of the 4th Batch of students in College for the MBBS course. According to Respondent No. 2, the said inspection had to be aborted midway as the assessors were manhandled and physically forced to leave the College. At the request made by the College, another inspection was conducted on the 25th & 26th September, 2017. The Executive Committee of Respondent No. 2 considered the Assessment Report at its meeting held on 26th September, 2017 and decided that admissions of the 4th Batch of 150 MBBS students for the year 2017-18 should be cancelled in view of the following deficiencies found in the inspection conducted on 25th & 26th September, 2017:

I.                 Bed Occupancy at 10 a.m. on day of assessment was 01.07% (i.e. 7 out of 410).

II.              There were no Major Surgical operation on day of assessment.

III.          There was NIL Normal Delivery or LSCS on day of assessment.

IV.          Data of Clinical material like Casualty attendance, Discharges, Major & Minor Operations, Radiological Investigations as provided by the Institute are inflated.

V.             ICUs: There was NIL patient in NICU/PICU & only 1 patient each in ICCU, MICU, SICU on day of assessment.

VI.          Blood Bank: NIL Unit was dispensed on day of assessment.

VII.      Deficiency of faculty is 15.65% as detailed in the report.

VIII.   Shortage of residents is 40% as detailed in the report.

IX.          Diet order was not recorded in the register on day of assessment.

X.              MRD is partly manual.

XI.          Facilities in Central Research Laboratory are not adequate. There are NIL ongoing or completed research projects.

XII.       RHTC: Cold Chain equipment are not available. Survey / MCH / Immunization / Family Welfare registers are not available. No activities under National Health Programmes are carried out.

XIII.   UHCC: Cold Chain equipment are not available. Survey / MCH / Immunization / Family Welfare Registers are not available.”

Bluntly put: How can all this be dismissed lightly? How can all this be overlooked? How can all this be justified on any ground? How can all this justify mild action? How can all this not justify most strict action?

No wonder that the Executive Committee of Respondent No. 2 rightly decided to act tough as pointed out in para 4 which states that, “The Executive Committee of Respondent No. 2 further decided that Regulation 8(3)(1)(b) of the Establishment of Medical College Regulations, 1999 (“the MCI Regulations) should be invoked in view of the deficiencies found in the bed occupancy and residents. The said decision of Respondent No. 2 was approved by the Oversight Committee.”

                       Be it noted, it is also clarified in para 4 as to what Regulation 8(3)(1)(b) entails. It is as follows:-

“Regulation 8(3)(1)- The permission to establish a medical college and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to verification of the achievements of annual targets. It shall be the responsibility of the person to apply to the Medical Counil of India for purpose of renewal [as per latest time schedule] prior to the expiry of the initial permission. This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are completed and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies.

(b) Colleges in the stage of III & IV renewal (i.e. Admission of fourth & fifth batch): [If it is observed during any inspection of the Institute that the deficiency of teaching faculty and/or Residents is more than 20% and/or bed occupancy is < 65%, compliance of rectification of deficiencies from such an institute will not be considered for renewal of permission in that Academic year.]”

Needless to say, it is then divulged in para 5 that, “Respondent No. 2 directed the College to discharge all the students admitted for the academic year 2017-18 by its letter dated 29th September, 2017. The Principal Secretary (Medical Division Department), Government of Madhya Pradesh- Respondent No.3-herein was requested to cancel the admission of students made in the College for the academic year 2017-18.”

While elaborating in detail, it is then pointed out in para 6 that, “The communications dated 29th September, 2017 to the College and the Respondent No. 3 are subject matter of challenge in this Writ Petition. The College sought a further direction that a fresh inspection should be conducted strictly in accordance with the Assessor’s Guide. While issuing notice on 23rd October, 2017, this Court stayed the operation of the communication dated 29th September, 2017. On 24th October, 2017 it was clarified that the students admitted as per the order dated 14th August, 2017 in SLP (Civil) No. 20400 of 2017 shall be permitted to continue with their studies. Thereafter, on a consideration of the Assessment Report pursuant to the inspection dated 25th & 26th September, 2017 and the submissions made on behalf of both sides, this Court by an order dated 14th December, 2017 directed the admission of the students to be cancelled. This Court took note of the order dated 14th August, 2017 which made the admission of students subject to the result of the inspection. As the students were found not to be complicit and not having any role to play in non-compliance of the requisite standards by the College, this Court considered it expedient to direct the students to be accommodated in other colleges. By referring to the Assessment Report pursuant to the inspection done on 25th & 26th September, 2017, learned Senior Counsel for Respondent Nos. 1 and 2 submitted that the College was indulging in fraud by showing persons who were not sick as patients only for the purpose of showing compliance of the minimum requirements. The learned Senior Counsel appearing for the College refuted the said contention and argued that all the patients were genuine. As this Court was in no position to determine the truth or otherwise of the allegations, an enquiry was directed to be conducted into the correctness of the statistics, reports and material placed before this Court by the College along with the Writ Petition. For the said purpose, a committee was constituted by this Court. A senior officer deputed by the Director, Central Bureau of Investigation (CBI), was directed to head the Committee which would have two doctors of the All India Institute of Medical Sciences (AIIMS) as its members. It is relevant to note that in the said order dated 14th December, 2017 it was made clear that the College may have to face prosecution under Section 193 of the Indian Penal Code, 1860 (IPC) if the allegations made by Respondent No. 2 were found to be correct. The decision to constitute a committee by this Court was arrived at after a thorough examination of the voluminous material placed on record by the College. The material was constituted of several photographs showing patients occupying the beds and their case sheets. A bare perusal of the photographs did not convince us that the patients were genuine. After a close scrutiny of the case sheets, we had serious doubts about the necessity for admission of persons suffering from minor ailments as in-patients.”

By the way, it is then pointed out in para 7 that, “The students who were admitted in the College for the year 2017-18 were directed to be adjusted in the other private medical colleges in the State of Madhya Pradesh for the academic year 2018-19 by an order passed by this Court on 3rd July, 2018. The students were directed to pay the fees to the colleges to which they are admitted. It was mentioned in the said order dated 3rd July, 2018 that the entitlement of the students for refund of the fee paid for admission to the College shall be adjudicated at the final hearing of the Writ Petition.”

As it turned out, para 8 then specifies that, “The Committee appointed by this Court on 14th December, 2017 submitted its Report on 12th July, 2018. It was mentioned in the Report inter alia, that the Committee visited the College on 29th January, 2018 around 11.30 a.m. and found that the patient waiting area for OPD Registration was totally empty. After visiting several wards in the hospital, the Committee found that the attendance of patients was abysmally low and the patients shown to be admitted in OPDs/wards were not in conformity with the actual number of patients. It was further stated in the Report that a scrutiny of the medical case files of the in-patients showed that their admission was not necessary. The case duty rosters for duty doctors as well as nurses were not available in the wards and the junior doctors on duty were not able to identify and confirm who had written the case notes/progress notes on the case files.”

More importantly, para 9 while dwelling on the conclusions of the Committee observes unambiguously that, “The Committee collected the medical sheets of 435 patients who were shown to have been admitted in the hospital on the date of the inspection conducted on 25th & 26th September, 2017. The hard disk that was obtained from the hospital for verification of the details of patients who were admitted prior to 7th January, 2018 was examined by the CBI. It was found that the hard disk was empty and did not contain any data. The conclusion of the Committee after a detailed enquiry revealed the following:

“i. The petitioner college has claimed that 6 doctors namely, Dr. Ritesh Kumawat, Dr. MR Gaikwad, Dr. SB Petkar, Dr. Deepak Kaladagi, Dr. Jeetendra Gupta and Dr. Ram Ballabh Thakur couldn’t attend the MCI inspection on 25.09.2017 as they were summoned by Court/Police in connection with a motor accident case. However, such claim were found to be incorrect.

ii. All of the six doctors namely, Dr. Ritesh Kumawat, Dr. MR Gaikwad, Dr. SB Petkar, Dr. Deepak Kaladagi, Dr. Jeetendra Gupta, Dr. Ram Ballabh Thakur, when examined, denied having received any notice from police regarding the motor accident.

iii. Out of the 10 doctors (Sr. Residents/ Jr. Residents) who were not counted by the assessors on the strength of the petitioner college as faculty on the ground that they were not residing in the college hostel, 9 doctors could be contacted. Examination of those 9 doctors revealed:

·      07 doctors confirmed during enquiry that they were not staying in the hostel in the college campus and they themselves had conveyed the MCI assessors in this regard. It is mandatory to stay in hostel as per Assessor’s Guide issued by MCI for academic year 2018-19.

·      The other two resident doctors, i.e. Dr. Meenal Parmar and Dr. Arpita Mishra, stated that they were staying in the hostel but were not considered on the strength of the college by the MCI assessors.

iv. Out of the 8 resident doctors whih petitioner college had claimed to be on night duty and so couldn’t appear before MCI assessors by 11 AM, enquiry revealed that:

·      Out of the above mentioned 8 resident doctors, 6 resident doctors stated that they were not on payroll of the petitioner college on the day of inspection i.e. 25.09.2017. Even 4 of those doctors had stated that they never joined the hospital.

·      1 doctor (Dr. Ritesh Kumawat) stated that he was not present on the day of the inspection, i.e. 25.09.2017.

·      And another doctor Dr. Devyani Patel was present on 25.09.2017 but she was rightly excluded by the MCI assessors as she couldn’t make her presence by 12 noon (which was mandated as per Assessor’s Guide).

v. The 3 doctors namely Dr. Priyank Jain, Dr. Manoj Sahu and Dr. Amit Jain, who were not treated as Sr. Resident doctors by the MCI assessors doesn’t seem to be justifiable considering the fact that all three of them were treated as Sr. Resident Doctors on earlier inspection on 05.01.2017.

vi. Two tutors who have been shown as present in the assessment by the college had not attended the assessment proceedings on 25.09.2017.

vii. Due to vague and incomplete type of the addresses mentioned in the record of the petitioner college, most of the patients could not be located as merely the names of the colonies and sub areas have been found to be mentioned on the patient case sheets. In the identified 21 patients, 8 are the employees/students of various RKDF institutions.

viii. On the basis of the medical analysis of the case sheets of the patients most doctors from AIIMS are of the similar view that it is doubtful that all these patients were actually admitted and that too for such a long duration.

ix. Most of the doctors are also of the opinion that the range of cases shown to be admitted was grossly inadequate for training of students.

x. The doctors were also of the opinion that in most of the case sheets prescriptions, operative notes, etc. appears to have been written by the same person in a very unprofessional manner. Also histopathological reports are very sketchy and incomplete.

xi. Dr. S.C. Sharma, Professor and HoD, ENT Department of petitioner’s college on 25/26.09.2017. As per his opinion most of the patients appear to be fictitious.

xii. Dr. H.L. Nag, Professor, Orthopedics, AIIMS has examined 52 medical sheets of the patients shown on bed in Orthopedics Department of petitioner’s college on 25/26.09.2017. He held that majority of those cases could have been managed without hospital admissions.

xiii. Dr. Naval Kishore Vikram, Professor General Medicine AIIMS has examined 97 medical patients of General Medicine and 12 patients of TB & Chest Department who were shown to be on bed on 25/26.09.2017. He has concluded that it appears doubtful that those patients were actually admitted in the hospital. Most of the patients appear to be over treated by various medications, particularly antibiotics. He also held that most of the cases had limited number of diagnosis which is grossly inadequate for training of medical students.

xiv. Dr. Pankaj Hari, Professor Paediatrics Department, AIIMS has examined 62 medical sheets of the patients shown on bed in Paediatrics Department of petitioner’s college on 25/26.09.2017. He concluded that the admitted cases have limited diagnosis which is quite inadequate for training of students in a medical college. He also raised doubt over the authenticity of those medical files.

xv. Dr. Vinod K. Khetan, Professor, Department of Dermatology and Venerelogy, AIIMS, examined 10 medical sheets of the patients shown on bed in Dermatology department of petitioner’s college on 25/26.09.2017. He raised serious doubts over the authenticity of patient being actually admitted. He also opined that the range of cases admitted and their work up is grossly inadequate for the training of students.

xvi. Dr. Namrata Sharma, Professor, Deptt. Of Opthalmic Sciences, AIIMS has concluded that in out of total 17 cases, admission of the 02 patients was required whereas in all other cases patient could have been managed under day care OPD.

xvii. Dr. Mamta Sood, Professor, Deptt. Of Psychiatry, AIIMS examined 08 medical sheets of the patients shown on bed in Psychiatry Department of petitioner’s college on 25th/26.09.2017. Though she mostly agreed that the treatment shown to be given to the patients was appropriate, but she opined that they didn’t require to be admitted.

xviii. Dr. Ongikla Bhutia, Professor, Division of Oral Maxillofacil Surgery, AIIMS examined 11 medical sheets of the patients shown on bed in Oral Maxillofacial Surgery Department of petitioner’s college on 25/26.09.2017. The doctor opined that the diagnosis appeared repetitive. Neither pre-operative radiography nor post operative radiography were found on record. Consent for the surgery was also found to be absent in some cases.

xix. Dr. Deepika Deka, Professor, Deptt. Of Obstetrics and Gynaecology, AIIMS had examined 56 medical sheets of the patients shown on bed in Obstetrics and Gynaecology Department of petitioner’s college on 25/26.09.2017. She raised doubt whether actual surgery was performed or not. She also raised doubt over the genuineness shown for those patients.

xx. Dr. Subodh Kumar, Professor, Deptt. Of Surgical Disciplines, AIIMS examined 96 medical sheets of the patients on bed on 25/26.09.2017. He raised serious doubt over the genuineness of patients actually admitted. He also held that spectrum of cases shown to be admitted was grossly inadequate for training of students”.”

To put things in perspective, para 10 then enumerates that, “When the matter was listed on 5th December, 2018, Shri Vivek Tankha, learned Senior Counsel appearing for the College, submitted that the College intends to submit an apology for the lapses on their part. He requested us to give a quietus to this matter. He submitted that there are students presently studying in the institution who would be affected by any adverse order passed against the College.” In other words, Vivek Tankha who was the learned Senior Counsel who appeared for the College left no stone unturned to convince the Court that a quietus should be given to this matter as the College intended to tender an apology and the students studying there would be adversely affected! But the Bench was not quite convinced by it.

It would be imperative to mention here that para 11 while rebutting all untenable defences of College also took it to task for misleading it while also appreciating the line of action taken by MCI and observed that, “It has been brought to our notice by the Respondent No. 2- MCI that during the inspection conducted on 23rd & 24th February, 2015 for the purpose of granting admission for the academic year 2014-15, it was found that there were patients who were fake and others who had been admitted without any significant illness. The MCI was constrained to invoke Regulation 8(3)(1)(a) and Regulation 8(3)(1)(d) of the MCI Regulation in view of the College submitting forged/fake documents for the purpose of showing compliance with the minimum requirements. A complaint was made by Dr. A.K. Banerjee, Ex-Associate Professor of Surgery of the College on 25th March, 2015 alleging that more than 50% of the doctors who were shown as full-time Faculty Members were full-time private practitioners. Dr. Paresh Ruparel who was shown as a Professor of Surgery in the College was working as a surgeon at V.S. Hospital affiliated to MHL Medical College, Ahmedabad and was also running a private hospital. Dr Ruparel was referred to Ethics Committee and he was suitably dealt with for misdemeanor.”

Continuing in the same vein, it is then further added by the Apex Court Bench in the same para 11 that, “Without delving deep into the details of the Report submitted by the Committee, it is clear that the College is guilty of practicing fraud on this Court. The conduct of the College administration in indulging in manipulations and hoodwinking the authorities to project compliance of the requisite minimum standards for admission of students does not deserve to be condoned. The impunity with which the College has manufactured records to convince us that they were being unnecessarily hounded by the MCI in spite of their compliance with the required standards is deprecated. The brazen attempt by the College in taking this Court for a ride by placing on record maneuvered documents to obtain a favourable order is a clear-cut act of deceit. The justification given by the College regarding the absence of certain residents has turned out to be a concocted story. Had we not initiated an enquiry by the Committee of Experts, the fraud played by the College on this Court would not have come to light. It is trite that every litigant has to approach the Court with clean hands. A litigant who indulges in suppression of facts and misrepresentation is not entitled for any relief. The conduct of the College in this case to mislead this Court for the purpose of getting a favourable order is reprehensible and the College deserves to be dealt with suitably.”

Of course, it is then elaborated in para 13 that, “In the affidavit filed along with the Writ Petition, Mr. S.S. Kushwaha, Dean of the R.K.D.F. Medical College Hospital and Research Centre stated that the contents in the Writ Petition are true and correct to the best of his knowledge and belief. According to the College, the Assessment Report pursuant to the inspection conducted on 25th and 26th September, 2017 was unfair as the justification for the absence of six members of the faculty was not accepted. The averment in the Writ Petition is to the effect that the said six doctors who had received summons from the Sub-inspector of Police, Bairagarh were at the police station at 11 a.m. on 25th September, 2017 in connection with the complaint relating to a motor accident case. The Committee enquired into the correctness of the claim made by the College regarding the absence of the six faculty members. Mr. Mohan Sharma, Assistant Sub-Inspector of Police of Bairagarh Police Station stated that there was no such notice issued for summoning the six doctors to the police station. On further enquiry, the six doctors namely Dr. Ritesh Kumawat, Dr. MR Gaikwad, SB Petkar, Dr. Deepak Kaladagi, Dr. Jeetendra Gupta and Dr. Ram Ballabh Thakur denied having received any notice from the police station. Dr. Ritesh Kumawat further denied having filed any complaint regarding the motor accident. On the basis of the above findings of the Committee, it is clear that a false statement has been made by the College on the basis of a fabricated document. It was averred in the Writ Petition by the College that there were 365 patients in the hospital at the time of inspection on 25th September, 2017 but the inspection team recorded that they were only seven patients available. In support of their submission, reliance was placed on the computerized data of the Medical Records Department. The hard disk that was collected by the Committee to study the details of the patients who were admitted in the hospital prior to January, 2018 turned out to be empty and no data could be retrieved. The assertion made by the College regarding the genuineness of the patients in the hospital turned out to be false in the enquiry conducted by the Committee. The Committee had serious doubts whether the patients were actually admitted. Most of the case sheets, prescriptions, operative notes, etc. appeared to be written by the same person in a very unprofessional manner. The histopathological reports were found to be sketchy and incomplete. On a thorough examination of the case sheets, the experts from AIIMS opined that admission of the patients was unnecessary in a number of cases. In view of the fake and incomplete addresses mentioned in the records of the hospital, most of the patients could not be located. Only 21 patients were identified and 8 out of these turned out to be employees/students of the College. All this goes to show that the College has indulged in large scale malpractices in showing compliance of the minimum required standards to obtain permission for admission of students. The College further tried to mislead this Court that it is compliant in all respects, to get permission for the admission of students.”

While sparing no punches in lambasting the College for misleading the Court, it is then clearly and categorically held in para 14 that, “The brazen manner in which the College has indulged in relying upon manipulated records to mislead this Court for the purpose of getting favourable order deserves to be dealt with in a serious manner. We find that this is a fit case where Mr. S.S. Kushwaha, Dean of the College must be held liable for prosecution under Section 193 IPC.”

It is then rightly reiterated in para 15 that, “There have been instances of errant medical colleges making admissions to the medical courses without obtaining the requisite permission. This Court came down heavily on such deviant colleges by imposing penalties for the illegalities committed by them in the matter of admission and for putting the students’ future in jeopardy. [(2015) 4 SCC 580 45.6 – Medical Council of India v. M.G.R. Educational & Research Institute University and (2016) 11 SCC 530 31, 31.2 & 31.4 – Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS)] We have noticed a disturbing trend of some medical colleges in projecting fake faculty and patients for obtaining permission for admission of students. The Committee exposes the evil design of the College in resorting to deceitful methods to cheat the authorities concerned and this Court to secure permission for admission of students. Apart from the prosecution of the Dean, the College is liable to be suitably punished for committing perjury.”

It would be instructive to note that while not being convinced of the apology tendered by the College through its learned senior lawyer Vivek Tankha, the Apex Court Bench then noted in para 16 that, “We are unable to persuade ourselves to accept the apology offered on behalf of the College. The College has been habitually indulging in foul play which is clear from the course of events in 2015 when faculty members were found to have been working elsewhere and running hospitals. The bravado shown by the College in an attempt to cheat the MCI, the Government and this Court has to be condemned. The Committee constituted by this Court is due to the vehemence with which the Counsels appearing for the College were trying to convince us that they are fully compliant with all the requirements. ‘Apology is an act of contrition. Unless apology is offered at the earliest opportunity and in good grace, the apology is shown of pentinence and hence it is liable to be rejected. If the apology is offered at the time when the contemnor finds that the Court is going to impose punishment it ceases to be an apology and becomes an act of a cringing coward’. [TN Godavarman Thirumalpad (102) v. Ashok Khot and Anr. (2006) 5 SCC 1 at Para 31]”

It is then clarified in para 17 that, “The students who were admitted in the 1st Year MBBS Course in the College for the academic year 2017-18 were duly cautioned and informed that their admission was purely provisional and they cannot claim any equity if the College was later on found to be deficient. They have been directed to be admitted in other colleges for the years 2018-19. In the process, students have lost a precious academic year. However, they are entitled for the refund of the fee collected from them for admission to the College.”

                            Finally and most importantly, it is then concluded in para 18 that, “For the aforementioned reasons, we pass the following order:

(i)             Mr. S.S. Kushwaha, Dean of the R.K.D.F. Medical College Hospital and Research Centre i.e. Petitioner No. 2- herein is liable for prosecution under Section 193 IP. The Secretary General of this Court is directed to depute an Officer to initiate the prosecution in a competent Court having jurisdiction at Delhi.

(ii)          The College is barred from making admissions for the 1st Year MBBS course for the next two years i.e. 2018-19 and 2019-2020.

(iii)       A penalty of Rs. Five crores is imposed on the College for playing fraud on this Court. The amount may be paid to the account of the Supreme Court Legal Services Committee.

(iv)       The students are entitled to receive the refund of fee paid by them for admission to the College for the academic year 2017-19. In addition, the College is directed to pay a compensation of Rs. One Lakh to the said students.”

Lastly, in para 19, it is held that, “The Writ Petition is dismissed accordingly.

WRIT PETITION (CIVIL) NO. 731 OF 2018:

    The Writ Petition is hereby dismissed in terms of the above judgment.”

In the ultimate analysis, it has to be said in all fairness that this latest, landmark and laudable judgment has sought to send a very loud and clear message to all Colleges that if they dare to break all rules and regulations and hope to get away easily by just tendering an apology, then they are themselves responsible for inviting trouble and are heading themselves into trouble for which no one but they themselves will be solely liable and held accountable and punished! They will be left with just no option but to shell out a huge penalty as we see in this high profile case where the concerned College is ordered to not just pay Rs 5 crore penalty but also to refund the fees paid by the students to the College for the academic year 2017-19 and in addition pay a compensation of Rs one lakh to the said students. All arguments and apologies tendered by the College through its learned Counsel Vivek Tankha just simply failed to cut ice with the three-Judge Bench of Apex Court who delivered this most latest and laudable judgment which has made headlines in all newspapers and all news channels! No doubt, all Colleges must always from now onwards bear this in mind and shed the false myth that they could easily take the system for granted and get away by just tendering an apology! The earlier this is done, the better it shall be for them to ensure that they too don’t end up with egg on their face as we see here!

Sanjeev Sirohi,