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2013 Supreme(SC) 1412
SUPREME COURT OF INDIA
H.L. Dattu, Ranjan Gogoi, JJ.
All India Council for Technical Education - Appellant
Versus
Rakesh Sachan and another - Respondents
Crl.A. No. 190 of 2013 (Arising out of SLP(Crl) No. 6339 of 2012
Decided On : 22-01-2013
For the Petitioners:Rakesh Dwivedi, Sr. Adv. Amitesh Kumar, Ravikant, Nikhil Sharma, Navin Prakash, Advocates.
For the Respondents:S.R. Singh, Namita Choudhary, Ayush Negi, Sunita Pandit and Sushant K. Yadav, S. Seedasiva Reddy, B.V. Balram Das and Arvind Kumar Sharma, Advocates.
For the State of U.P. :Ameet Singh, Mukul Singh and Pragati Neekhra, Advocates.
Headnote:
Indian Penal Code Section 420 – All India Council for Technical Education Act, 1987 – Code of Criminal Procedure, 1973 – Section 320, 482 – All India Council for Technical Education is the appellant in this appeal – It calls in question the correctness or otherwise of the judgment and order passed by the High Court of Judicature of Allahabad at Lucknow in Criminal Misc – Application – By the impugned judgment and order the High Court without affording an opportunity of hearing to the AICTE has remitted the matter to the Trial Court with a direction to decide the application filed –Held, it unfolds that it is not the CBI who has been cheated by the actions of the Respondent, but in fact the AICTE – CBI because is only an investigating agency carrying out inquiry in the matter – Therefore, the application of the Respondent could not have been considered by the learned Magistrate without affording an opportunity of hearing to the AICTE, as doing such would deprive the person so cheated, of his statutory right – Ordered accordingly.
ORDER :
1. Leave granted.
2. All India Council for Technical Education ("AICTE" for short) is the appellant in this appeal. It calls in question the correctness or otherwise of the judgment and order passed by the High Court of Judicature of Allahabad at Lucknow in Criminal Misc. Application No. 4107 of 2011, dated 15.09.2011. By the impugned judgment and order the High Court without affording an opportunity of hearing to the AICTE has remitted the matter to the Trial Court with a direction to decide the application filed under Section 320 of the Code of Criminal Procedure, 1973 ("Cr.P.C." for short) by the respondents.
3. The AICTE has been constituted under the All India Council for Technical Education Act, 1987. The said Act provides for the establishment of an All India Council for Technical Education with a view to ensure proper planning and coordinate development of the technical education system throughout the country and also to promote the qualitative improvement of such education in relation to planned quantitative growth and the regulation and proper maintenance of norms and standards in the technical education system and for matters connected therewith.
4. The first respondent is the Chairman of Abhinav Shikshan Evam Samaj Seva Sanstha, Kanpur and the Central Bureau of Investigation ("CBI" for short) is the second respondent.
5. Briefly stated, the facts are: The CBI as well as AICTE had alleged that the Respondent No.1 had entered into a criminal conspiracy during the year 2008 with the known officers of the AICTE at Kanpur and Delhi and that in pursuance of such conspiracy he had obtained approval in respect of opening a new engineering college at Village Murlipur, Tehsil Ghatampur, District Kanpur Nagar, under the name and style of Abhinav Institute of Engineering and Management. The said approval is based on a false declaration submitted by Respondent No. 1 and the bogus report submitted by the Expert Committee of AICTE.
6. Accordingly, CBI on 01.09.2009 had lodged an FIR against the Respondent No. 1 under Sections 120B and 420 of the Indian Penal Code, 1860 ("IPC" for short) read with Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 on the allegation that the Respondent No. 1, in connivance with the known officers of AICTE at Kanpur and Delhi, had obtained approval to run Anubhav Institute of Engineering and Management, Kanpur on the basis of forged and bogus documents and reports. Thereafter, upon enquiry, a Final Report, as envisaged under Section 173 of the Cr.P.C. was filed by the CBI in the Court of Special Judicial Magistrate, CBI, Lucknow in Case No. 29/2010 on 30.11.2010.
7. An application was filed by Respondent No. 1 under Section 320 of the Cr.P.C., before the learned Magistrate for compounding of the offence in Case No. 29/2010. The said application was rejected by the learned Magistrate on 25.04.2011, whereafter the Respondent No. 1 preferred a Criminal Miscellaneous Application against the same before the High Court. The High Court has allowed the same and has directed the learned Magistrate to consider the application filed by Respondent No.1 for compounding of the offence in Case No.29/2010 pending before it.
8. The CBI had not filed its objection to the fresh application filed before the learned Magistrate, but had conceded to the request made by the Respondent No. 1. However, the learned Magistrate thought it fit to issue a notice, dated 31.05.2011, to the AICTE to clarify its stand before the Court on the application filed by the respondent. The AICTE has filed its objection to the application filed by the Respondent No.1.
9. The learned Magistrate taking into consideration the aforesaid, by his order dated 20.08.2011, has rejected the application filed by the Respondent No.1.
10. Aggrieved by the aforesaid order, the Respondent No. 1 had filed a petition under Section 482 of Cr.P.C. before the High Court. The High Court has allowed the aforesaid petition and in the course of the
