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SUPREME COURT OF INDIA
Aniruddha Bose, Sanjay Kumar, JJ.
Vipin Sahni and another – Appellants
Versus
Central Bureau of Investigation – Respondent
Criminal Appeal No. 1980 of 2024(@ Special Leave Petition (Crl.) No. 2772 of 2023)
Decided On : 08-04-2024
(A) Indian Penal Code,1860 – Sections 420 and 120B – Criminal Procedure Code, 1973 – Sections 239 and 482 – Cheating and conspiracy – Reversal of discharge of accused by High Court – Sine qua non to make out an offence under Section 420 IPC, insofar as present case is concerned, is an act on part of appellants to cheat and thereby dishonestly induce the person so deceived, viz., AICTE, to deliver any property – Appellants, while applying for and on behalf of Society, should have either suppressed material information or projected incorrect information so as to induce AICTE, by such dishonest means, to grant approval for its educational institutions – As no official of AICTE has been implicated in offence, as per charge-sheet, alleged criminal conspiracy under Section 120B IPC would also be attributable to appellants only – By not implicating any official of AICTE in charge-sheet and by dropping provisions of Prevention of Corruption Act, 1988, CBI found that AICTE’s officials were not complicit at all and they were given a clean chit. (Paras 10 and 14)
(B) Criminal Procedure Code, 1973 – Sections 397 and 482 – Indian Penal Code,1860 – Sections 420 and 120B – Cheating and conspiracy – Reversal of discharge of accused by High Court – In the event a revision is lawfully instituted before High Court but same is thereafter found to be not maintainable on some other ground, it would be open to High Court to treat the same as a petition filed under Section 482 Cr.P.C in order to do justice in that case – However, reverse analogy may not apply in all cases and it would not be open to High Court to blindly convert or treat a petition filed under Section 482 Cr.P.C as one filed under Section 397 Cr.P.C., without reference to other issues, including limitation – When specific remedy of revision was available to CBI, it could not have ignored the same and filed a petition under Section 482 Cr.P.C. – It was not open to CBI to blithely ignore statutory remedy available to it under Section 397 Cr.P.C and thereafter resort to filing of application under Section 482 Cr.P.C. – Magistrate was fully justified in exercising power under Section 239 Cr.P.C. and discharging appellants from criminal proceedings – High Court adopted a rather technical approach and practically concluded that appellants were guilty of deliberately withholding relevant information so as to secure approvals by deceitful means – This finding of High Court is not supported by admitted facts – Impugned order passed by Allahabad High Court in Application U/S 482 Cr.P.C. set aside and order of discharge passed by Special Judicial Magistrate, CBI Court, restored. (Paras 24, 25 and 26)
Facts of the case:
Exercising power under Section 239 Cr.P.C, Special Judicial Magistrate, CBI Court, Ghaziabad, discharged appellants herein of a charge under Sections 420 and 120B IPC, vide order dated 31.08.2019 in Case No. 456 of 2012 arising out of RC-219 2011 (E) 0016 registered on file of Police Station CBI, EO-1, New Delhi. Aggrieved thereby, Central Bureau of Investigation approached High Court of Judicature at Allahabad, under Section 482 Cr.P.C, by way of Application U/S 482 No. 11426 of 2021. By order dated 20.01.2023 passed therein, High Court set aside discharge order and directed Magistrate to proceed with the case against appellants.
Findings of Court:
Impugned order dated 20.01.2023 passed by Allahabad High Court in Application U/S 482 Cr.P.C No. 11426 of 2021 is, therefore, set aside and order of discharge passed by Special Judicial Magistrate, CBI Court, Ghaziabad, in Case No. 456 of 2012 is restored. In consequence, appellants shall stand discharged of alleged offence under Sections 420 and 120B IPC in Case Crime No. 219 of 2011 (E) 0016.
Result : Criminal Appeal allowed.
JUDGMENT :
SANJAY KUMAR, J
1. Leave granted.
2. Exercising power under Section 239 Cr.P.C, the learned Special Judicial Magistrate, CBI Court, Ghaziabad, discharged the appellants herein of a charge under Sections 420 and 120B IPC, vide order dated 31.08.2019 in Case No. 456 of 2012 arising out of RC-219 2011 (E) 0016 registered on the file of Police Station CBI, EO-1, New Delhi. Aggrieved thereby, the Central Bureau of Investigation (for short, ‘CBI’) approached the High Court of Judicature at Allahabad, under Section 482 Cr.P.C, by way of Application U/S 482 No. 11426 of 2021. By order dated 20.01.2023 passed therein, the High Court set aside the discharge order and directed the learned Magistrate to proceed with the case against the appellants. Assailing the said order, they are before this Court.
3. The appellants had established Sunshine Educational and Development Society, NOIDA, Uttar Pradesh, and registered it under the Societies Registration Act in the year 2004. The aims and objectives of this Society, inter alia, included propagation of technical education. Appellant No. 1 was the Chairman of the said Society while his wife, viz., appellant No. 2, was its Secretary. In September, 2006, the Society acquired 4.90 acres of land in Greater NOIDA, Uttar Pradesh, on a 90-year lease from Greater Noida Industrial Development Authority, Gautambudh Nagar, Uttar Pradesh, for setting up educational institutions. The Society filed application dated 22.01.2007 seeking approval of the All India Council for Technical Education (AICTE) to establish ‘Business School of Delhi’, offering a Post-Graduate Diploma Course in Business Management (PGDM), in an extent of one acre out of the leased land. In the application, the Society disclosed that a loan of Rs.5.75 Crore had been availed by it from Corporation Bank and that the outstanding loan stood at above Rs.3 Crore. It also disclosed, in response to clause 6(v), that a loan/mortgage had been raised against the land, by ticking the ‘Yes’ box. However, in the tabular form in the first page, against the query – ‘Mortgaged with Bank -Yes/No’, the answer was stated as ‘No’. There was, thus, an apparent contradiction in the application itself. In any event, approval was accorded by the AICTE on 17.08.2007 to start the ‘Business School of Delhi’.
4. Thereafter, the Society submitted another application to the AICTE on 27.10.2007 seeking to establish ‘Business School for Women’, offering PGDM course. A day later, on 28.10.2007, the Society filed yet another application seeking approval from the AICTE to start a third institute, named ‘International Business School of Delhi’. The first and third applications were moved on behalf of the Society by appellant No. 1, being its Chairman, while the second application was filed by appellant No. 2, as its Secretary. In the two later applications, the Society failed to mention that the leased land was mortgaged but it disclosed the fact that it had already been granted approval in the year 2007 to operate another institute from the same premises. By proceedings dated 29.05.2008, the AICTE granted approval for starting the ‘Business School for Women’ in an extent of 0.8 acres out of the said land. On 19.06.2008, the AICTE accorded approval to commence the ‘International Business School of Delhi’ in the leased land.
5. While so, it appears that an anonymous complaint was made to the Chief Vigilance Commissioner alleging that officials of the AICTE had shown undue favour to the Society. On the strength thereof, the Chief Vigilance Commissioner referred the matter to the CBI for investigation. In the first instance, the Regional Officer of the CBI at Kanpur addressed letter dated 24.07.2011 to the Station-in-charge, Police Station Greater NOIDA, to register a case for investigation but the District Police of Gautambudh Nagar, Uttar Pradesh, opined that the complaint did not justify registering of a FIR and/or proceeding with investigation as no cognizable offence
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