# Prof. Ashish Wakhlu v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 409
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-06-26
- **Case number:** Criminal Misc. Writ Petition No. 5682 of 2021
- **Bench:** Attau Rahman Masoodi, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prof-ashish-wakhlu-v-state-of-u-p-ors-50478
- **Pages:** 17

## Headnote

G.A.,
Arun
Singh,
Shubham
Tiwari,
Shubham Tripathi, Siddhartha Sinha

Criminal Law - Indian Penal Code, 1860 -
Section
409-No
allegation
against
the
petitioner of having any financial gain in the
process of the purchase of laptops nor there is
any case of embezzlement or having committed
breach of trust- no occasion or material to level
charge u/s 409 IPC-policy decision of holding
online examinations -reversed by the succeeding
administration -distribution of laptops to the
offices in order to save such equipment from
going unused- by no stretch of imagination it
would attract an offence u/s 409 IPC- against
any person having performed duty in the
accomplishment of online examination process
jointly
or
severally-FIR
as
well
as
the
investigation based on the abuse of the process
of law and mala fide exercise of power-F.I.R.
quashed.

W.P. allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,901 of 57,406. This is a partial read: ask again with offset=39901 for what follows._

6 All. Prof. Ashish Wakhlu Vs. State of U.P. & Ors.
409
patrolling was well within their power and
jurisdiction.

25. In view of the law laid down by
Hon'ble Supreme Court in the case of
State of Haryana and others vs. Bhajan
Lal and others, 1992 Supp. (1) SCC 335
and M/s Neeharika Infrastructure Pvt.
Ltd. vs. State of Maharashtra, AIR
2021 SC 1918 and in Special Leave to
Appeal (Crl.) No.3262/2021 (Leelavati
Devi @ Leelawati & another vs. the
State of Uttar Pradesh) decided on
07.10.2021, no case has been made out
for interference with the impugned first
information report.

26. For the discussion made hereinabove, the writ petition is dismissed leaving
it open for the petitioners to apply before
the
competent
court
for
anticipatory
bail/bail as permissible under law and in
accordance with law.
----------
(2023) 6 ILRA 409
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.06.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Misc. Writ Petition No. 5682 of 2021

Prof. Ashish Wakhlu ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Dr. V.K. Singh, Pranjal Krishna

Counsel for the Respondents:
G.A.,
Arun
Singh,
Shubham
Tiwari,
Shubham Tripathi, Siddhartha Sinha

Criminal Law - Indian Penal Code, 1860 -
Section
409-No
allegation
against
the
petitioner of having any financial gain in the
process of the purchase of laptops nor there is
any case of embezzlement or having committed
breach of trust- no occasion or material to level
charge u/s 409 IPC-policy decision of holding
online examinations -reversed by the succeeding
administration -distribution of laptops to the
offices in order to save such equipment from
going unused- by no stretch of imagination it
would attract an offence u/s 409 IPC- against
any person having performed duty in the
accomplishment of online examination process
jointly
or
severally-FIR
as
well
as
the
investigation based on the abuse of the process
of law and mala fide exercise of power-F.I.R.
quashed.

W.P. allowed. (E-9)

List of Cases cited:

1. St. of Har. & ors.Vs Bhajan Lal & ors.reported
in (1992) Supp (1) SCC 335

2. Kapil Agarwal & ors.Vs Sanjay Sharma & ors.,
reported in (2021) 5 scc 524

3. N. Raghavender Vs St. of Andhra Pradesh,
CBI reported in 2021 SCC Online SC 1232

4. M/s Pepsi Foods Ltd. & anr. Vs S.J.M. & ors.,
reported in AIR 1998 SC 128

5. Vinay Tyagi Vs Irshad Ali reported in (2013) 5
SCC 762

6. Anand Kumar Mohatta & ors.Vs St. (Govt. of
NCT of Delhi), Department of Home & ors.,
reported in AIR 2019 SC 210

7. M/s VSS. Pharma Lucknow & anr. Vs St. of
U.P. & anr.- Criminal Misc. Writ Petition No.
17812 of 2015

8. Ashok Kumar Dixit Vs St. of U.P. & anr.
reported in AIR 1987 All 235

(Delivered by Hon'ble Attau Rahman
Masoodi, J.)
410 INDIAN LAW REPORTS ALLAHABAD SERIES

1. The investigation of a crime is the
bedrock of criminal administration of
justice.
For
this
reason,
the
fair
investigation and fair trial is a part and
parcel of Article 21 of the Constitution of
India.

2. Normally this Court in exercise of
its extraordinary powers under Article 226
of the Constitution of India, would not
interfere with and delve into the legality of
an FIR or investigation but for the
exceptions
which
under
well
settled
principles have been carved out by the apex
court in catena of judgements and for our
purpose, the broad principles laid down by
the apex court in the case of State of
Haryana and others v. Bhajan Lal and
others reported in (1992) Supp (1) SCC
335, as set out in paragraph 102 being
relevant, are extracted hereunder:

"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating
to the exercise of the extraordinary power
under Article 226 or the inherent powers
under Section 482 of the Code which we
have extracted and reproduced above, we
give the following categories of cases by
way of illustration wherein such power
could be exercised either to prevent abuse
of the process of any court or otherwise to
secure the ends of justice, though it may
not be possible to lay down any precise,
clearly defined and sufficiently channelised
and inflexible guidelines or rigid formulae
and to give an exhaustive list of myriad
kinds of cases wherein such power should
be exercised.

(1) Where the allegations made in
the
first
information
report
or
the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.

(2) Where the allegations in the
first information report and other materials,
if any, accompanying the FIR do not
disclose a cognizable offence, justifying an
investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of the Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of
any offence and make out a case against the
accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made
in the FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can ever reach a
just conclusion that there is sufficient
ground
for
proceeding
against
the
accused.

(6) Where there is an express
legal bar engrafted in any of the
provisions of the Code or the concerned
Act (under which a criminal proceeding is
instituted)
to
the
institution
and
continuance of the proceedings and/or
where there is a specific provision in the
Code or the concerned Act, providing
efficacious redress for the grievance of the
aggrieved party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or
where
the
proceeding
is
maliciously instituted with an ulterior
6 All. Prof. Ashish Wakhlu Vs. State of U.P. & Ors.
411
motive for wreaking vengeance on the
accused and with a view to spite him due
to private and personal grudge."

3. Likewise in the case of Kapil
Agarwal and others v. Sanjay Sharma
and others, reported in (2021) 5 scc 524,
apex court while emphasizing upon the
powers of this Court under Article 226 of
the Constitution or Section 482 CrPC to
quash the FIR if the same appears to be an
abuse of process of law and has been
lodged only to harass the accused, has
observed as under:

"18. However, at the same time,
if it is found that the subsequent FIR is an
abuse of process of law and/or the same
has been lodged only to harass the
accused, the same can be quashed in
exercise of powers under Article 226 of the
Constitution or in exercise of powers under
Section 482 Cr.P.C. In that case, the
complaint case will proceed further in
accordance with the provisions of the
Cr.P.C.

18.1 As observed and held by this
Court in catena of decisions, inherent
jurisdiction under Section 482 Cr.P.C.
and/or
under
Article
226
of
the
Constitution is designed to achieve salutary
purpose that criminal proceedings ought
not to be permitted to degenerate into
weapon of harassment. When the Court is
satisfied that criminal proceedings amount
to an abuse of process of law or that it
amounts
to
bringing
pressure
upon
accused, in exercise of inherent powers,
such proceedings can be quashed.

18.2 As held by this Court in the
case of Parbatbhai Aahir v. State of
Gujarat (2017) 9 SCC 641, Section 482
Cr.P.C. is prefaced with an overriding
provision. The statute saves the inherent
power of the High Court, as a superior
court, to make such orders as are
necessary (i) to prevent an abuse of the
process of any Court; or (ii) otherwise to
secure the ends of justice. Same are the
powers with the High Court, when it
exercises the powers under Article 226 of
the Constitution.

4. The present writ petition has
essentially questioned the legality of the
FIR giving rise to Case Crime No. 56 of
2021 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.

5. 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.

6. This 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
412 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

7. During pendency of this writ
petition, this Court passed the following
order on 15.11.2022:

"..............Learned counsel for
the petitioner has vehemently submitted
that twice the Final Report has been
prepared in the present writ petition by the
Investigating Officer, i.e., on 19.09.2021
and on 14.10.2022, respectively.

It transpires from the record that
when the matter was taken up on
18.10.2022, learned AGA had informed this
Court that Final Report dated 14.10.2022
would be submitted in the Court concerned
shortly.

Today when the matter was listed,
this Court made a query whether the Final
Report
dated
14.10.2022
has
been
submitted in the Court concerned or not, to
which learned AGA submitted that Deputy
Commissioner of Police, Lucknow West
Commissionerate, Lucknow has ordered for
further investigation in the matter on
04.11.2022.

In view of the above, we pass the
following orders:-

(i)
Deputy
Commissioner
of
Police, Lucknow West Commissionerate,
Lucknow is directed to ensure that the
further investigation, which has been
ordered by him, is concluded within a
period of three weeks from today and
submit
police
report
in
the
Court
concerned, in accordance with law.

(ii) The Commissioner of Police,
Lucknow West Commissionerate, Lucknow
(respondent
no.2)
shall
monitor
the
investigation of the case.

(iii)
Shri
Siddhartha
Sinha,
learned counsel for respondent no.4- The
University (K.G.M.U. Lucknow, Chowk,
Lucknow) shall ensure that all the required
documents would be made available to the
Investigating Officer concerned, so that the
investigation of the case is concluded as
ordered above.

List the matter after three weeks,
by which date learned AGA shall inform
about the status of investigation."

8. The investigating officer, Sri
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. Several investigation officers have
come to be changed in the present case. For
a chronological view of the investigation,
paragraphs 5 to 12 of the short counter
affidavit being relevant are extracted
below:

"5.
That
it
is
respectfully
submitted after registration of the aforesaid
F.I.R., the investigation of the case was
started by Shri Amarnath Vishwakarma,
Additional Inspector then posted at P.S.
Chowk Lucknow and after his transfer, the
investigation of the case was deputed to S.I.
Shri
Ramapati
Singh,
who
after
investigation has forwarded a Final Report
6 All. Prof. Ashish Wakhlu Vs. State of U.P. & Ors.
413
dated 19.09.2021 to the Supervisory
Authority/Circle Officer, Chowk, Lucknow.

6. That the supervisory Authority/
Circle Officer, Chowk, Lucknow has raised
certain objections and directed for further
investigation in the matter.

7.
That
thereafter
the
investigation of the case was deputed to
S.S.I. Chandra Shekhar Singh, then posted
at Police Station-Chowk, District-Lucknow,
who vide his report dated 14.10.2022 has
also supported the earlier Final Report
dated 19.09.2021 and forwarded the
Supervisory
Authority/
Circle
Officer,
Chowk, Lucknow.

8. That the Supervisory Authority/
Circle Officer, Chowk, Lucknow again
raised some objections with regard to
investigation and directed for further
investigation in the matter.

9. That thereafter vide order
dated
04.11.2022
of
the
Deputy
Commissioner of Police, West, Lucknow,
the investigation of the case was allotted to
the deponent.

10. That the deponent after taking
over the investigation, has perused the
earlier Parchas of the Case Diary and
investigated the aforesaid F.I.R. in a fair
and impartial manner.

11. That during the course of
investigation,
no
credible
evidence
regarding offence under Section 420 I.P.C.
has been found, therefore, the deponent has
deleted Section 420 I.P.C. from the array of
offence.
However,
on
the
basis
of
evidences, Section 120B/201 I.P.C. were
added in the array of offence and names of
Dr.Ravikant (Ex-Vice Chancellor, KGMU)
and Dr. Arun Kumar Singh (Ex-Controller
of Examination, KGMU) have been added
in the list of accused persons.

12.
That
it
is
respectfully
submitted that from investigation, sufficient
credible incriminating evidences have been
found against named accused / Petitioner -
Prof. Ashish Wakhlu and also against
accused persons, whose names were came
into light during investigation namely 1-
Arun Kumar Singh and 2- Ravikant, for
offence under Sections 409, 120B, 201
I.P.C., therefore, a report was sent to the
Deputy Commissioner of Police, West,
District Lucknow for cancelling the earlier
Final Report dated 19.09.2021."

9. Sri Prashant Kumar Misra was the
investigating officer at the final stage when
the aforesaid counter affidavit came to be
filed before this Court. Paragraphs 13 to 16
of the short counter affidavit filed on
20/21.2.2023 for our purpose are also
relevant and the same are extracted below:

"13.
That
the
Deputy
Commissioner of Police, West, District
Lucknow has cancelled the earlier Final
Report dated 19.09.2021 on 18.02.2023.

14. That thereafter, the deponent
has
prepared
a
Charge-Sheet
dated
19.02.2023
against
the
named
accused/petitioner-Prof.Ashish Wakhlu for
offence under Sections 409, 120-B IPC and
forwarded
to
the
Supervisory
Authority/Assistance
Commissioner
of
Police, Chowk, District Lucknow and will
be filed in the Court concerned at the
earliest. Photocopy of the Charge-Sheet
dated
19.02.2023
is
being
annexed
herewith as Annexure No.SCA-1.

15. That the investigation of the
case has concluded against named accused
- Petitioner Prof. Ashish Wakhlu.

16
That
at
present,
the
investigation
is
pending
against
the
accused persons, whose names have came
into
light
during
investigation
i.e.
Dr.Ravikant (Ex-Vice Chancellor, KGMU)
and Dr. Arun Kumar Singh (Ex-Controller
of Examination, KGMU) and only their
414 INDIAN LAW REPORTS ALLAHABAD SERIES
arrest is remained. As soon as they are
arrested, Supplementary Charge-Sheet will
be filed against them and the investigation
of the case will be concluded.

10. In a subsequent supplementary
counter affidavit sworn by the same
investigating officer on 25.2.2023 and filed
on 2.3.2023, in paragraph-3, following
statement was made:

"3.
That
it
is
respectfully
submitted that the investigation of case is
pending against Dr. Ravikant (Ex-Vice
Chancellor, KGMU) and Dr. Arun Kumar
Singh
(Ex-Controller
of
Examination,
KGMU). The deponent is not pressing the
paragraph no.16 of his earlier short counter
affidavit dated 20.02.2023."

11. The chronological order of events
as regards investigation clearly reveal that
S/Shri 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 against and directed for
further investigation. Therefter SI Sri
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 supervising authority appears to have
raised certain objections again and directed
for further investigation. For achieving the
desired objective, the investigation was
handed over to Sri Prashant Kumar Misra
vide order dated 04.11.2022 who on
completion of investigation reported to the
supervising authority for cancellation of the
earlier report submitted on 19.9.2021. It is
only after cancellation of earlier final report
on 18.2.2023, the police report drawn by
Sri Prashant Misra was submitted on
19.2.2023. Two final reports drawn on
19.9.2021 and 14.10.2022, therefore, stood
superceded by the police report submitted
on 19.2.2023 without any mention to the
final report submitted on 14.10.2022.

12. This Court may note 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.

13. 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. The investigating officer
before arresting the other accused persons
alleged to have been involved in the
commission of offence, once again chose to
submit the charge sheet only against the present
petitioner and thereafter a supplementary
affidavit came to be filed to the effect that
paragraph-16 of the short counter affidavit was
not being pressed. 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.

14. The supplementary affidavit in
paragraph-3 takes somersault when the
6 All. Prof. Ashish Wakhlu Vs. State of U.P. & Ors.
415
investigating
officer
withdrew
the
statement made in paragraph-16 of the
short counter affidavit. The malice is
evident on the face of pleadings sworn in
the two affidavits. It is also evident that
there is no mention of the fact that the
supervising authority on submission of the
police report by the investigating officer
under Section 409 IPC read with Section
120-B and 201 IPC had ever directed for
further
investigation,
therefore,
the
supplementary affidavit indicating that
further investigation was pending is clearly
with an ulterior motive of prolonging the
investigation indefinitely so as to malign
the image and career of the petitioner in a
manner subversive of law.

15. The charge sheet submitted under
Section 120-B IPC against the petitioner
alone is clearly indicative of a legal malice
once by filing a supplementary affidavit,
the contents of paragraph-16 sworn in
earlier were disowned by the investigating
officer at the sweet will of the supervising
authority which gives a clear impression
that the investigating officer and the
supervising authority were in hand in
gloves with each other so as to victimize
the petitioner and tarnish his image
otherwise all the three accused persons in a
situation of offence being made out would
have been subjected to the process of law
in the like manner. Non-adherence to the
well settled principles of investigation with
an orientation of ulterior motive against the
petitioner alone clearly smacks of abuse of
process of law and the same is writ large on
the face of record.

16. In the like manner since there is no
allegation against the petitioner of having any
financial gain in the process of the purchase
of laptops nor there is any case of
embezzlement or having committed breach of
trust, therefore, there was no occasion or
material before the investigating officer to
level charge under Section 409 IPC against
the petitioner. Reference may be made to an
apex court judgement in the case of N.
Raghavender v. State of Andhra Pradesh,
CBI reported in 2021 SCC Online SC 1232,
wherein following observations have been
made by the Court in paragraphs 41 to 45:

41. Section 409 IPC pertains to
criminal breach of trust by a public servant or
a banker, in respect of the property entrusted
to him. The onus is on the prosecution to
prove that the accused, a public servant or a
banker was entrusted with the property which
he is duly bound to account for and that he
has committed criminal breach of trust. (See:
Sadupati Nageswara Rao v. State of Andhra
Pradesh9).

42. The entrustment of public
property and dishonest misappropriation or use
thereof in the manner illustrated under Section
405 are a sine qua non for making an offence
punishable under Section 409 IPC. The
expression 'criminal breach of trust' is defined
under Section 405 IPC which provides, inter alia,
that whoever being in any manner entrusted with
property or with any dominion over a property,
dishonestly misappropriates or converts to his
own use that property, or dishonestly uses or
disposes of that property contrary to law, or in
violation of any law prescribing the mode in
which such trust is to be discharged, or
contravenes any legal contract, express or
implied, etc. 9 (2012) 8 SCC 547 shall be held to
have committed criminal breach of trust. Hence,
to attract Section 405 IPC, the following
ingredients must be satisfied:

(i) Entrusting any person with
property or with any dominion over
property;

(ii) That person has dishonestly
mis-appropriated or converted that property
to his own use;
416 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) Or that person dishonestly
using or disposing of that property or
wilfully suffering any other person so to do
in violation of any direction of law or a
legal contract.

43. It ought to be noted that the
crucial word used in Section 405 IPC is
'dishonestly' and therefore, it pre-supposes
the existence of mens rea. In other words,
mere retention of property entrusted to a
person
without
any
misappropriation
cannot fall within the ambit of criminal
breach of trust. Unless there is some actual
use by the accused in violation of law or
contract, coupled with dishonest intention,
there is no criminal breach of trust. The
second significant expression is 'misappropriates' which means improperly
setting apart for ones use and to the
exclusion of the owner.

44. No sooner are the two
fundamental
ingredients
of
'criminal
breach of trust' within the meaning of
Section 405 IPC proved, and if such
criminal breach is caused by a public
servant or a banker, merchant or agent, the
said offence of criminal breach of trust is
punishable under Section 409 IPC, for
which it is essential to prove that:

(i) The accused must be a public
servant or a banker, merchant or agent;

(ii) He/She must have been
entrusted, in such capacity, with property;
and

(iii) He/She must have committed
breach of trust in respect of such property.

45. Accordingly, unless it is
proved that the accused, a public servant or
a banker etc. was 'entrusted' with the
property which he is duty bound to account
for and that such a person has committed
criminal breach of trust, Section 409 IPC
may not be attracted. 'Entrustment of
property' is a wide and generic expression.
While the initial onus lies on the
prosecution to show that the property in
question was 'entrusted' to the accused, it
is not necessary to prove further, the actual
mode of entrustment of the property or
misappropriation
thereof.
Where
the
'entrustment' is admitted by the accused or
has been established by the prosecution, the
burden then shifts on the accused to prove
that the obligation vis-à-vis the entrusted
property was carried out in a legally and
contractually acceptable manner.

17. This 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.

18. From a perusal of the record 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
6 All. Prof. Ashish Wakhlu Vs. State of U.P. & Ors.
417
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 letter of the Registrar
dated 12.6.2020 addressed to Proctor,
KGMU reads as under:

i= la0&3086@th0,0 ,oa lEifRRk@2020

fnukad 12-06-2020

lsok esa]

dqykuq'kkld]

fdax tkWtZ fpfdRlk fo'ofOk|ky;
m0 iz0]

y[kuÅA

egksn;]

d`i;k ek0 dk;Zifj"kn dh cSBd
fnukad 08-06-2020 ds Any other Agenda (15) -
Item No-01 ij fd;s x, fofu'p; dk lUnHkZ xzg.k
djus dh d`ik djs ftldh Nk;kizfr layXu gSA

d`i;k mDr ds lUnHkZ esa ek0
dqyifr th ds vuqeksnuksijkUr fdax tkWtZ fpfdRlk
fo'ofOk|ky; m0iz0] y[kuÅ dh izFke ifjfu;ekoyh
2011 ds ifjfu;e 2.09(13) rhu esa fufgr izkfo/kku
ds vUrZxr fo'ofo|ky; dh vksj ls izkFkfedh ntZ
djkus dh d`ik djsaA

layXud&;FkksifjA

Hkonh;]

g0 viBuh;

12-6-2020

1⁄4vk'kqrks"k dqekj f}osnh1⁄2

dqylfpo

19. However, the letter written by the
Chief Proctor, Prof. R.A.S. Kushwaha
addressed
to
the
Incharge
Inspector,
Kotwali Chowk, Lucknow on the same day
i.e. 12.6.2020 mentions that the resolution
arrived at in the agenda of the meeting held
on 8.6.2000 having been approved by the
Vice Chancellor, an FIR be lodged on
behalf of the University against Sri Ashish
Wakhlu without naming anyone else
whereas the resolution clearly recited that
there
are
administrative/financial
irregularities in the process adopted by IT
cell in the purchase of 300 laptops,
therefore, an FIR be lodged. Though the
petitioner was the Member Secretary of the
IT Cell but it seems without seeking any
preliminary probe in the matter by
including the other personnel working in
the IT Cell, he has been projected to be the
main culprit, overlooking his status and
unblemished past services.

20. It appears that the decision to
lodge an FIR in the matter having been
taken in haste with one and only the
petitioner
being
named,
pricked
the
conscience of the University authorities and
another meeting of Executive Council was
held on 27.6.2020 wherein a further
resolution was adopted that an inquiry
committee comprising of external experts
preferably from the field of Forensics
(Hand-writing expert), I.T./Cyber expert,
Retired Police Officer, Retired Judge,
Administrative
Officers
from
Finance/Audit sector, be constituted to
inquire the matter, so that detailed report
may be prepared, for necessary action. The
Committee was required to submit its
report at the earliest, preferably within
three months.

21. Accordingly, the Incharge Inspector
(Prabhari Nirikshak) of the concerned police
station was informed that the matter was
reconsidered in the subsequent meeting of
Executive Council on 27.6.2020 and a fresh
resolution was adopted and that it was only after
the recommendations of the Committee is
received and a decision by the Executive Council
taken, any further action would be possible to be
ensured by the office of the signatory (Prof
R.A.S. Kushwaha, Chief Proctor).

22. In the above conspectus, it is clear
that while lodging the FIR in the matter, the
418 INDIAN LAW REPORTS ALLAHABAD SERIES
University did not feel it proper to obtain
experts' advice and the opinion of the
officers who are seized with such matters,
before framing the petitioner as a suspect
and in an unprepared and half hearted
manner felt it convenient to implicate the
petitioner and by the time they felt such
necessity and convened the subsequent
executive council meeting on 27.6.2020,
the petitioner was publicized as the main
accused of the entire irregularity, if any,
though as is borne out of the record that he
in the course of duty had associated in the
purchase of laptops and tried to maintain
total transparency in the transaction in
consonance with the relevant guidelines
and prevalent practice.

23. We may also take note of the fact
that for any irregularity administrative or
financial, it is permissible to the University
to initiate disciplinary proceedings which in
the ordinary course cannot be substituted
by criminal proceedings but in the instant
case, the haste on the part of the Chief
Proctor in naming the petitioner in his letter
dated 12.6.2020 was clearly driven by
some ulterior motive which reflects nothing
but the abuse of the process of law.

24. For understanding the FIR in
question, certain facts are necessary to be
pointed out viz. under the digitization
policy of the Government, the process of
holding online examination was continuing
since the year 2010 which was felt
necessary in order to curtail the lengthy
manual process and at the same time to
minimize the expenditure being incurred in
the
process.
The
process
of
online
examination
was
also
beneficial
in
maintaining accuracy and transparency in
the conduction of examinations. In the
above background a meeting of the
Information Technology of the University
was held on 13.8.2014 wherein the Vice
Chancellor had opined that IT committee of
the University also needs to work towards a
totally computer based examination system
where the students would answer questions
on a computer screen and have the result
declared at the end of their test with the
provisions of 300 students in one seating.
The minutes of the meeting were made a
part of the annual report which was duly
considered and resolved by the Executive
Council of the University.

25.
 On
21.8.2015
the
Assistant
Accountant recorded on the concerned file that
the Department of Medical Education vide
letter dated 15.7.2015 had instructed that the
computers could be purchased from the internal
funds of the University and that the purchase
may be approved by the Vice Chancellor from
the examination fund. On 21.8.2015 itself the
Finance Officer of the University granted his
consent for purchase of the computers from the
examination fund subject to the purchase being
made on the minimum quoted price. The said
proposal was duly approved by the Vice
Chancellor on 28.8.2015.

26. Pursuant to the approval of the Vice
Chancellor, the petitioner being the Member
Secretary of the IT Cell issued a supply order
on 11.9.2015 to M/s Uptron Powertronics,
which is an authorised government nodal
agency, for purchase of 300 laptops as it had
quoted lowest price. On 18.1.2016 M/s
Uptron delivered the laptops to the University
against a sale invoice addressed to the
Registrar who was also the consignee and
also competent to make purchases on behalf
of the University and to receive the
consignment and forward the same to the
relevant
departments.
The
Registrar
forwarded the consignment to the IT Cell
which was duly received by the petitioner
being the Member Secretary.
6 All. Prof. Ashish Wakhlu Vs. State of U.P. & Ors.
419

27. The petitioner vide letter dated
11.2.2016 informed the Vice Chancellor
about the purchase of 300 laptops for
online examinations in furtherance to the
recommendations and instructions of the
Examination Committee. It is thereafter
that the payment against the supply of
laptops was made by the Controller of
Examinations Prof. A K Singh and the
Additional Controller of Examinations, Dr
Girish Chandra by cheque dated 31.3.2016
to the tune of Rs. 1,60,34,100/-.

28. It is submitted that on 13.4.2016
the online examination software of the
University was tested by five senior
professors and the test being successful, the
University authorities were accordingly
informed. It is thereafter that the petitioner
on 21.1.2017 informed Vice Chancellor
and Controller of Examination as well as
Dean, Faculty of Medicine amongst others
through
email,
that
the
paperless
examination
in
Ophthalmology
was
scheduled for 25.1.2017. The examinations
were thereafter solely conducted by the
Controller of Examinations after due
approval of the Vice Chancellor.

29. It would thus be seen that during
all the above period i.e. from the date of
order
of
supply
till
conduction
of
examination no question was raised and all
the formalities were conducted with due
approval of the competent authorities.
However, in a meeting held on 29.5.2017
an agenda was dealt with by the Executive
Council that due to lack of infrastructure
and as per MCI/DCInorms it was not
possible to conduct online examinations
in KGMU, therefore, a decision may be
taken as to whether the said laptops may
be distributed to various administrative
offices
and
departments
of
the
University/I.T. Cell wherever they are
needed otherwise the same may become
obsolete and unusable. It is noteworthy
that the agenda starts with the line 'with the
approval of then Hon'ble Vice Chancellor,
KGMU, IT Cell purchased 300 laptops'.
The Committee resolved to disburse the
laptops to various administrative offices
and at the same time constituted a threemember time bound enquiry committee to
look into the matter of need, purchase of
these laptops and KCI/DCI Norms for
conduct of online exams. This shift in the
policy decision was taken without there
being any complaint in regard to the
purchase of laptops and it having been
specifically mentioned in the agenda
itself that the laptops were purchased
with the approval of the then Hon'ble
Vice
Chancellor.
The
Committee
submitted its report on 6.6.2020 stating that
in the record made available to the enquiry
committee, justifiable proposal, detailed
project report, approval of executive
council and the examination committee
were not found. The Committee also
observed that in the KGMU Act/Statute as
well
as
Snatak
Chikitsa
Shiksha
Viniyamavali,
1997
and
Snatakottar
Chikitsa
Shiksha
Viniyamawali,
2000
issued by MCI for Graduate and Post
Graduate Students, there is no mention of
guidelines
for
conducting
online
examination.

30. It is thereafter that an FIR came to
be lodged against the petitioner, as
aforesaid, under Section 409, 420 IPC
pursuant to the letter written by the Chief
Proctor, Prof. R.A.S. Kushwaha to the
Incharge
Inspector,
Kotwali
Chowk,
Lucknow on 12.6.2020.

31. At this stage it would be profitable
to take note of some relevant provisions of
the First Statute, 2011, namely clause
420 INDIAN LAW REPORTS ALLAHABAD SERIES
2.03(18) and clause 2.05(12) & 2.05(20)
and which are reproduced hereunder:

"FINANCE OFFICER

2.03 (18) The Finance Officer
shall arrange the conduct of continuous
internal audit of the accounts of the
University, and shall pre-audit such bills as
may be required in accordance with any
standing orders in that behalf. However the
accounts of the confidential section of
controller examination section shall not be
audited.

THE
CONTROLLER
OF
EXAMINATION

2.05 (12) The Controller of
Examination shall adopt methodology,
innovations and procedures for conducting
the University examinations as may be
necessary
to
be
introduced
and
implemented from time to time under the
approval
of
Vice-Chancellor
after
consultation with the Exam Committee.

(20)
The
Controller
of
Examination shall be directly answerable
to the Vice-Chancellor for all actions taken
by him pertaining to the examinations."

32. We are certainly displeased to
notice that the administration in succession
instead of streamlining the advanced
technique of online examination has
reversed the policy decision for the
considerations right or wrong best known
to them. The administration in succession
has thereafter come out to defend the old
pattern of conducting the examinations
which in the wake of advanced technology
and digitization is certainly unfriendly to
the environment. The conflict of opinion
in policy decision i.e. to do away with the
paper work and make the examination
paperless has taken the controversy to
the heights of wreak vengeance so as to
justify the reversal of earlier policy
decision by the new administration.
There is ample indication of internal
conflicts of interest and the educational
institution has not to suffer on that account
at the cost of legal expenditure spent
recklessly. We are certainly not oblivious
of the fact that the online examination
process would have brought about a
positive change in the standards of medical
education and there was nothing wrong
with the online examination policy.

33. The question that arises before
us is as to whether a shift of policy
decision of one administration and its
reversal
by
the
succeeding
administration can at all be a subject
matter of criminal prosecution and as to
how the further investigation could go on
once the Executive Council in its
subsequent decision had resolved on
27.6.2020 for looking into the matter
from a different angle. The investigation
which was attempted to be concluded more
than once by submitting a final report
seems to have been interfered with by the
supervising authority for which no reason
whatsoever has been brought to our notice
and on the contrary, a police report
finalized overnight has come to be filed
before the court concerned half-heartedly
as is evident from the stand adopted by the
investigating officer which has not taken
the supervising officer by any surprise.

34.