Read Order: Arushi Aggarwal and Others v. Central Bureau of Investigation

Monika Rahar

Chandigarh, April 16, 2022: While dealing with a case wherein an FIR was registered against 11 students for allegedly getting admission in Punjab Engineering College, Chandigarh during the academic sessions 2010-11 posing themselves to be citizens of Nepal, the Punjab and Haryana High Court quashed the FIR on the ground that the Government of Nepal can award honorary Nepalese Citizenship and the CBI failed to examine any witness from the Nepalese Government or Embassy to inquire whether such honorary citizenship was granted or not. 

The Bench of Justice Arvind Singh Sangwan also opines, while countering one of the arguments advanced by the CBI counsel that in the exercise of power under Section 482 Cr.P.C. in order to do justice, the prosecution can be quashed at any stage of the trial.

In this case, the Court was approached with a prayer for quashing an FIR registered under Sections 120-B, 420, 467, 468 and 471 IPC against 11 students, who were around the age of 18 years with the allegations that all of them have taken admission in Punjab Engineering College, Chandigarh under the Direct Admission of Students Abroad Scheme 2010 (DASA-2010) during the academic sessions 2010-11 posing themselves to be citizens of Nepal. 

It was the case of the CBI that the parents of all the 11 students paid Rs.11.50 lacs each to Dr Mohinder Bajaj and Dr Nishi Kant Arya (now dead), the accused who managed the admissions of these 11 students in the DASA Scheme.  Out of 11 students 6 were declared juvenile and these 6 students faced the trial before the Juvenile Justice Board, Chandigarh, wherein as many as 59 prosecution witnesses were recorded and they were held guilty and were later convicted and sent to the Observation Home/Special Home for a period of three years each for reformation. 

The case of the petitioners’ counsel was that all these students were themselves victims at the hands of Dr Nishi Kant Arya and Dr Mohinder Bajaj, who induced their parents to handover Rs.11.50 lacs each on the promise of getting the admissions to some good college against legal quota and that they were unaware of the bogus documents created by the these two accused of getting their admissions under DASA Scheme. Therefore, the Counsel argued that they could not be held liable for the offences under Sections 420 of 471, 468 and 471 IPC.

It was also contended by the Counsel that there was a fiduciary relationship between the parents and the petitioners, who at a very young age believed the action of their parents to be legal action and had no knowledge of their dealing with Dr Nishi Kant Arya and Dr Mohinder Bajaj and, therefore, there was no mens rea on the part of the petitioners, who themselves became victims of circumstances. 

In reply on merits, the Counsel for the CBI argued that the forged, fake/fictitious citizenship documents of Nepalese were prepared by Dr Nishi Kant Arya and Dr Mohinder Bajaj, however, it was done in conspiracy with the petitioners. The Counsel argued that the charges were rightly framed and the case was now fixed for prosecution evidence. 

After considering the case of the petitioners as also the case advanced by the CBI counsel, the Court found merit in the petition. The Court, at the very outset, expressed its disagreement with the finding recorded by the Board because the Court opined that the Board proceeded on the presumption that the petitioners conspired with other accused, i.e. Dr Nishi Kant Arya (dead) and Dr Mohinder Bajaj, to obtain fake Nepalese Citizenship Card, however, the Court observed that the CBI did not obtain any clarification from the Government of Nepal or the Nepalese Embassy that their citizenship card, on the basis of which the petitioners have taken the admissions, were fake. 

The Court further observed that although the charge sheet made reference to the Nepalese Citizenship Act, 2006 (3) 2006 AD (providing for modes of acquisition of Nepalese Citizenship), it did not consider the fact that apart from citizenship by descent or birth or naturalization, there is another clause which provides that the Government of Nepal can award honorary Nepalese Citizenship as well. 

Additionally, it was observed that the CBI did not examine witnesses from the Government of Nepal or from the Nepalese Embassy and thus the question of whether the petitioners were granted the Nepalese Citizenship Card as ‘honorary’ was never inquired into by the CBI. In the words of Justice Sangwan, “The Government of India as well as the Government of Nepal have a reciprocal agreement that the citizens of both the countries, without even seeking visa, can even acquire government jobs. Therefore, in the absence of any specific evidence, the investigation conducted by CBI in this regard without citing any witness from the Government of Nepal that the Nepalese Citizenship Card issued in favour of the petitioners were, in fact, fake, the entire prosecution fall flat as the petitioners are being prosecuted only on the basis of presumption that since they are citizens of India by birth, therefore, their Nepalese Citizenship Cards are fake or forged document.”

Next, addressing the issue of whether the petitioners were guilty of forgery, the Court opined, in view of the judgment of the Supreme Court wherein it has been held that the charge of forgery cannot be imposed on a person who is not the maker of the document as the making of documents is different than causing it to be made in terms of Section 467 IPC that the petitioners cannot be prosecuted for committing the offence under Sections 420, 467, 468, 471 IPC.

On the charge of conspiracy, the Court opined that all the petitioners were of tender age and were under the fiduciary relationship of their parents and that as per the charge sheet the parents of the petitioners paid the amount of Rs. 11 lac to the two accused believing that they will get admission in accordance with a legal procedure. The Court asserted that there can be a meeting of mind between the parents and the two accused but there was no direct or indirect evidence to show that the students had such a meeting of the mind. 

Lastly, arguments by CBI that the petition was not maintainable after the framing of charges, were not acceptable to the Court which held that in the exercise of power under Section 482 Cr.P.C. in order to do justice, the prosecution can be quashed at any stage of the trial. 

Thus, while holding that the petitioners on the one hand lost their admission in college; lost 11 years of their prime youth as because of the prosecution they could not get regular admission elsewhere in the intervening 11 years and the CBI after the conclusion of the trial by the Board could not produce any new evidence that the Nepalese Citizenship Card issued to the petitioners were not in accordance with the Nepalese Citizenship Act 2063(2006) AD, the Court allowed this quashing plea. 

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