Giving great relief to KGMU professor Ashish Wakhlu, the Lucknow Bench of the Allahabad High Court has quashed the FIR lodged against him at the Chowk police station District Lucknow on charges of cheating and embezzlement and the police report filed after deliberations.
The Division Bench of Justice Attau Rahman Masoodi and Justice Saroj Yadav passed this order while hearing a petition filed by Professor Ashish Wakhlu.
The petition has essentially questioned the legality of the FIR giving rise to Case registered under Section 409, 420 IPC at PS Chowk, District Lucknow.
The informant who is the Chief Proctor, KGMU, Lucknow, Prof R.A.S Kushwaha and the named accused in the FIR is Dr Ashish Wakhlu, the petitioner herein who was a Surgeon in the department of Paediatric Surgery, presently terminated from service on the premise of proceedings not related to the present case.
The petitioner while praying for quashing of the FIR has, inter alia, prayed for any other writ, order or direction which the Court may deem fit and proper under the circumstances of the case.
The Court since the inception of present proceedings has taken a serious view of the allegations and while staying the arrest of the petitioner by order dated 15.3.2021, several observations were made in the order passed to the effect that the purchase of 300 laptops for carrying out the online examinations of the students was a policy matter and was duly approved at the appropriate level, therefore, counter affidavit was called for to explain the justification under which the FIR had come to be lodged.
The detailed order passed by this Court calling upon the respondents to explain as to how an offence under Section 409, 420 IPC can be said to have been made out in a situation where the purchase of laptops was transparently made from a government body and against the invoice of payment, goods were duly received by the University. The goods in question, however, at no point of time came to be used for any personal advantage by the petitioner or being entrusted to him were misused, therefore, the very ingredients of the offence under which the FIR was lodged, became questionable.
The investigating officer, Prashant Kumar Mishra, after passing of the aforesaid order, has filed a short counter affidavit on 20/21.2.2023, wherein it is stated that the final report in the case was drawn more than once but the same was not approved by the supervising authority/Circle Officer by raising certain objections with regard to the investigation and directed for further investigation in the matter.
Prashant Kumar Misra was the investigating officer at the final stage when the aforesaid counter affidavit came to be filed before the Court.
The chronological order of events as regards investigation clearly reveal that Ramapati Singh on completion of investigation submitted a final report on 19.9.2021 to the supervising authority/Circle Officer, Chowk Lucknow which he objected to and directed for further investigation.
Therefter SI Chandra Shekhar Singh took over investigation and submitted the final report to the supervising authority on 14.10.2022 by supporting the earlier final report submitted by his predecessor on 19.9.2021.
The Court noted that the investigation of cognizable offence lies within the exclusive domain of the investigating officer and the Code of Criminal Procedure does not conceive of a procedure of fresh investigation by entering into the exercise of annulling any material collected by the earlier investigation officer. Further investigation or an order to that effect does not mean that the supervising authority may annul the earlier investigation altogether that too on the recommendation of a new investigation officer authorised to carry out further investigation.
In the short counter affidavit, the investigating officer has stated that now the investigation has completed except the arrest of the other accused persons and it is for this reason that the charge sheet against the petitioner was forwarded to the supervising authority which shall be filed before the competent court.
It is in this manner that a clear picture of completion of investigation projected by the investigating officer was again manipulated to defeat the Court order passed on 15.11.2022.
The Court in the normal circumstances does not enter into the merits of the FIR once the allegations levelled therein, prima facie, make out a cognizable offence, however, in exceptional circumstances the Court is under a bounden duty to lift the veil so that the criminal prosecution of an accused is not resorted to by way of a malicious and mala fide exercise.
The Court noted that it would transpire that though the FIR was lodged on 18.2.2021 pursuant to approval granted by the Vice Chancellor to the resolution adopted in the meeting of Executive Council held on 8.6.2020 as is evident from letter dated 12.6.2020 written by the Registrar to the Proctor, KGMU wherein it has been mentioned that the approval of the Vice Chancellor having been granted, an FIR be registered on behalf of the University in the light of the provisions of Clause 2.09 (13) of the First Statute, 2011 but neither in the resolution adopted in the meeting dated 8.6.2020 nor the letter written by the Registrar on 12.6.2020 addressed to the Proctor mentions therein the name of any suspect who may be prima facie guilty for the offence to be probed. The resolution only recites that it has been resolved by the Executive Council that an FIR be lodged for the administrative/financial irregularities committed in the process adopted by the IT Cell in the matter of purchase of 300 laptops and all necessary assistance be extended to the police administration.
The Court further noted that the executive council in its subsequent resolution adopted on 27.6.2020 has not intended to proceed with the FIR and the matter is referred for experts’ opinion which is yet to be arrived at.
The Court also noted that the non-auditable fund spent by the Controller of Examination with its due approval by virtue of clause 2.03(18) and 2.05(12) reproduced in the earlier part of the judgement may even not be a financial lapse as alleged. It is not the case before us that there was anything wrong with the policy decision or the ingredients of Section 409 IPC, by any interpretation of law, are made out notwithstanding the approval by the Vice Chancellor, and that the criminal prosecution has become imminent as a consequence of reversal of the policy decision and is the only course open under law.
“Having applied our mind to the contents of the FIR as well as the investigation, as recorded above, the impugned FIR as well as the investigation held in pursuance thereof being based on the abuse of the process of law and guided by mala fide exercise of power does not stand in the eye of law and the same deserves to be quashed.
Accordingly the impugned FIR dated 18.2.2021 registered against the petitioner as Case under Section 409, 420 IPC at Police Station Chowk, District Lucknow as well as the police report submitted in pursuance thereof under Section 409 read with Section 120-B and 201 IPC including the summon issued by the competent court based thereon, if any, are quashed. The Executive Council upon a fresh consideration in terms of the subsequent resolution dated 27.6.2020, if so chosen, may consider the whole issue in the light of observations made hereinabove and proceed accordingly in the matter in accordance with law”, the Court observed while allowing the petition.
Before parting, the Court hopes that the university authorities shall remain committed to the upgradation of educational standards and work collectively to boost the educational values by respecting the policy decisions taken for the welfare of the institution. Discipline in education and administration both must be achieved in order to avoid undue conflicts.