MALA MOHAN RAO Vs. THE PRINCIPAL, M.K.C.G. MEDICAL COLLEGE AND ORS.
HIGH COURT OF ORISSA
Mala Mohan Rao
The Principal, M.K.C.G. Medical College And Ors.
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N.K. Das, J. -
(1.) THIS is a petition under Section 482 of the Code of Criminal Procedure directed against framing of charges against the Petitioner. The facts relating to this case are that the Petitioner passed the Pre -professional Examination in the year 1965 under the Utkal University. For the session 1965 -66 he submitted an application for admission into the M. K. C. G. Medical College. In his application he had mentioned that he was a permanent resident of Orissa. Along with his application, he had also submitted a certificate of the Tahasildar, Berhrmpur (Ext. 1) to the effect that he was a permanent of Orissa. While he was undergoing housemanship training after completion of his studies in the medical college, he was not allowed to continue the training. He filed O. I. C. No. 142 of 1972 in this Court, but at that time on undertaking given by the State Government that the direction disallowing the Petitioner to continue housemanship training would be withdrawn, the Petitioner withdrew the writ application. Subsequently, a complaint was filed on 29 -1 -1972 against the Petitioner alleging that he had committed offences under Section 177, 182 and 419 of the Indian Penal Code. The allegations were that he falsely made a declaration that he was a permanent resident of Orissa and took admission into the college. These facts are not disputed.
(2.) FOUR documents were produced by the prosecution and one witness was examined in support of the allegations against the Petitioner. Ext. 1 is the certificate granted by the Tahsildar to the effect that the Petitioner is a permanent resident of Orissa. Ext. 2 is the application of the Petitioner. Ext. 3 is the declaration given by the Petitioner at the time of making the application to the above effect. Ext. 4 IS the order sanctioning prosecution. The witness examined by the prosecution was the Principal of the college. He states that he was a member of the selection board for admission of students to the medical college and the members of the board believed the documents filed by the Petitioner and he was allowed admission. But subsequently, some students made some application and the Collector informed him that the Petitioner was not a permanent resident of Orissa. This was in 1967. Four years elapsed and thereafter he was asked to launch the prosecution. He does not state anything about the falsity of the contentions of the Petitioner as to his permanent residentship. This witness has no personal knowledge about this. No material was placed before the Court to show that the Petitioner was not a permanent resident of Orissa, as stated by him in the declaration form. On the other hand, Ext. 1 prima facie shows that a competent authority, namely, the Tahsildar has granted a certificate that he is a permanent resident. In view of these materials, it is contended by the Petitioner that there was nothing before the Court to show prima facie that the Petitioner committed any offence as envisaged under Sections 177, 182 and 419, Indian Penal Code. After going through the records, I find that there is no material before the Court to come to the conclusion that there is a prima facie case for ,framing charges. In other words, the materials available on record do not show that the Petitioner made any false declaration or filed false certificate and thereby procured admission into the college. Nothing has been shown that the contents of Ext. 1 are false. P. w. 1 does not say that he knew that the statements were false. He has no personal knowledge. The materials from which p w. 1 says to have got the information are also not placed before the Court. Simple information without materials does not amount to proof, nay, even for a prima facie case. In view of the aforesaid circumstances, I come to the conclusion that there was no material before the Court or that the materials available to the Court do not prima facie show that the Petitioner can be said to have committed any of the offences as aforesaid I, therefore, hold that the Court below has illegally exercised its jurisdiction. There is another interesting feature in this case. In 1965 applications for admission was made by the Petitioner and he was admitted into the college. He was allowed to prosecute his studies and ultimately he obtained degree. It is said that in 1967 some information was received that the Petitioner had taken admission by making false declaration. No such information was brought to the notice of the Court. Even then nothing was done till 1971 and it is stated that in 1971 the State Government directed for launching the prosecution, By this time, admittedly, the Petitioner had completed his studies and built up his career. In the circumstances as described above, it is not proper for the ends of justice to continue the prosecution. Moreover, the complaint was filed in 1972 and charges were framed in 1976. Calculating from 1967, when it is said that there was some information that the Petitioner had made false declaration in 1965, about ten years have elapsed for framing charges. In these circumstances, I am of opinion that, for ends of justice, there is no necessity to proceed with the case.
(3.) THE learned Additional Standing Counsel contends that no second revision lies and as the Petitioner had once moved the Sessions Judge, this revision is not maintainable. The learned Sessions Judge has held that the revision before him was against an interlocutory order and, as such, he has no jurisdiction to entertain the revision. Undisputedly the Sessions Judge was not entitled to exercise inherent jurisdiction. It is only this Court which can exercise such jurisdiction. If the decision of the Sessions Judge is wrong in law, this Court can also examine it in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure and can interfere. It is not disputed that the judgment of the learned Sessions Judge holding that the impugned order is an interlocutory order and is not open for revision, is wrong in law as this question is no longer res integra in view of the decision of the Supreme Court in Madhu Limaya v. State of Maharashtra : A.I.R 1978 S.C. 47, Therefore, this Court can exercise its jurisdiction under Section 482 Code of Criminal Procedure to correct the decision. The contention raised by the learned Additional Standing Counsel is not tenable. In these circumstances, I hold that this revision is maintainable and the Petitioner has invoked the inherent powers of this Court under Section 482 , Criminal Procedure Code. As I have already held that the Court below has illegally exercised its jurisdiction, I am of opinion that it is a fit case for interference as there has been abuse of the process of the Court and the learned Magistrate's order is vitiated with illegality.;
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