If revision is lawfully instituted before the HC but the same is found to be not maintainable, then HC can treat the same as a petition filed u/s 482 CrPC: Apex Court
Justices Aniruddha Bose & Sanjay Kumar [08-04-2024]

Read Order: Vipin Sahni and another v. Central Bureau of Investigation [SC- Criminal Appeal No. 1980 of 2024]

Tulip Kanth 

New Delhi, April 9, 2024: Discharging the accused-appellants in a case alleging that they had obtained approvals by deceitful means from the AICTE for setting up educational institutions, the Supreme Court has observed that mere carelessness on their part in filling up the applications cannot be taken to be motivated by deliberate deception so as to invite criminal charges.

The appellants, in this case, 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 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 for setting up educational institutions. The Society filed an application  seeking approval of the All India Council for Technical Education (AICTE) to establish ‘Business School of Delhi’ in an extent of one acre out of the leased land and approval was accorded for the same.

Thereafter, the AICTE granted approvals for starting the ‘Business School for Women’ and ‘International Business School of Delhi’ in the leased land.

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. A Case was registered under Sections 420 and 120B IPC along with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. This FIR was registered against the appellants and unnamed officials of the AICTE, alleging that the appellants had obtained approval by deceitful means from the AICTE, in violation of Section 4.2(iii) of the AICTE Approval Process 2006. As per this provision, the land approved for starting an educational institution ought not to be encumbered. Charge Sheet was filed by the CBI for offences under Sections 420 and 120B IPC, naming only the appellants as the accused. No official of the AICTE was charged with criminality in granting approval to the Society’s institutions.

Thereafter, exercising power under Section 239 Cr.P.C, the Special Judicial Magistrate, CBI Court discharged the appellants of a charge under Sections 420 and 120B IPC. Aggrieved thereby, the Central Bureau of Investigation (CBI) approached the Allahabad  High Court whereby the discharge order was set aside and the Magistrate was directed to proceed with the case against the appellants. Assailing the said order, the appellants approached the Top Court.

Taking note of the legal provisions, the Division Bench of Justice Aniruddha Bose & Justice Sanjay Kumar opined, “...the sine qua non to make out an offence under Section 420 IPC, insofar as the present case is concerned, is an act on the part of the appellants to ‘cheat and thereby dishonestly induce the person so deceived, viz., the AICTE, to deliver any property’. Therefore, the appellants, while applying for and on behalf of the Society, should have either suppressed material information or projected incorrect information so as to induce the AICTE, by such dishonest means, to grant approval for its educational institutions.”

It was also noted that as no official of the AICTE had been implicated in the offence, as per the charge sheet, the alleged ‘criminal conspiracy’ under Section 120B IPC would also be attributable to the appellants only.

As per the Bench, by not implicating any official of the AICTE in the charge sheet and by dropping the provisions of the Prevention of Corruption Act, 1988, the CBI found that the AICTE’s officials were not complicit at all and they were given a clean chit. On merits, the High Court opined that the appellants had deliberately withheld relevant information knowing fully well that if the land was encumbered in any manner, approval for setting up the educational institutions there would be declined.

“We are, however, of the considered opinion that the finding of the High Court as to deliberate withholding of information by the appellants cannot be accepted on the given facts”, the Bench said while observing that all three applications mentioned the extent of nearly 5 acres and the AICTE could not be said to be in ignorant of the fact that the said land was under an encumbrance at the time the applications were made. 

There was disclosure of the fact that the subject land was mortgaged to secure the bank loan but despite the same, the AICTE granted approval for the ‘Business School of Delhi’ and it never complained that it was under any misinformation in that regard. Thus,it was opined that the essential requisite to make out an offence of cheating was lacking. “Mere carelessness on the part of the appellants in filling up the second and third applications and a part of the first application also cannot be taken to be motivated by deliberate deception, on the admitted factual position, so as to invite criminal charges”,  the Bench opined.

It was further observed that as per Article 131 in the Schedule to the Limitation Act, 1963, the limitation period for filing a criminal revision under Section 397 Cr.P.C, be it before the High Court or the Sessions Court, is 90 days. However, there is no limitation prescribed for invocation of the inherent powers of the High Court under Section 482 Cr.P.C. and it can be at any time. As per the Top Court, it was not open to the CBI to blithely ignore the statutory remedy available to it under Section 397 Cr.P.C and thereafter resort to filing of an application under Section 482 Cr.P.C.

“...in the event a revision is lawfully instituted before the High Court but the same is thereafter found to be not maintainable on some other ground, it would be open to the 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, the reverse analogy may not apply in all cases and it would not be open to the 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 the specific remedy of revision was available to the CBI, it could not have ignored the same and filed a petition under Section 482 Cr.P.C. We, therefore, find in favour of the appellants even on this count”, the Bench held.

Therefore, it was held that the Magistrate was fully justified in exercising power under Section 239 Cr.P.C. and discharging the appellants from criminal proceedings. The High Court adopted a rather technical approach and practically concluded that the appellants were guilty of deliberately withholding relevant information so as to secure the approvals by deceitful means. This finding of the High Court was not supported by the admitted facts, which indicated disclosure of the mortgage at the outset when the first application was made and, therefore, there was no possibility of inferring that the appellants conspired in terms of Section 120A IPC to commit an illegal act of suppression so as to secure the approvals. 

“Further, the AICTE itself never claimed that it was dishonestly induced to grant such approvals and that essential link is altogether missing, whereby any such criminal charge of cheating can be sustained against the appellants”, the Bench held while setting aside the impugned order of the Allahabad High Court and restoring the order of discharge passed by the Special Judicial Magistrate. 

“ In consequence, the appellants shall stand discharged of the alleged offence under Sections 420 and 120B IPC in Case Crime No. 219 of 2011 (E) 0016”, it ordered.