# ANKITA KAILASH KHANDELWAL AND ORS v. STATE OF MAHARASHTRA AND OTHERS

- **Citation:** [2020] 8 S.C.R. 1007
- **Court:** Supreme Court of India
- **Decided:** 2020-10-08
- **Case number:** Criminal Appeal Nos. 660-662 of 2020
- **Bench:** Uday Umesh Lalit, Vineet Saran, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ankita-kailash-khandelwal-and-ors-v-state-of-maharashtra-and-others-34735
- **Pages:** 28

## Headnote

Maharashtra Prohibition of Ragging Act, 1999 - s.6(1) -
Appellants after completing MBBS course were pursuing PG Degree
Course (M.D.) in Gynaecology and Obstetrics and were also
working as residents in a Hospital attached to their College - A
student, a year junior to the appellants, resident in the same
Department and pursuing the same course committed suicide - FIR
registered against the appellants - Appellants suspended by the
Dean of the Hospital and the College - Bail granted to the appellants
by High Court with certain conditions - While some conditions were
later relaxed/recalled, condition no.(iv) on the appellants to not
enter their College and the Hospital was maintained - On appeal,
held: To take appropriate action u/s.6(1), the concerned head of
the educational institution must prima facie be satisfied that the
allegations against the student have been found to be true,
whereafter, an order of suspension can be passed - In the present
case, the order of suspension does not even record any such finding
or prima facie view - It was not passed by virtue of power entrusted
u/s.6(1) but was on the ground that there was an FIR against the
appellants - Thus, order of suspension is not referable to s.6(1) -
Further, apart from s.6(1), no other statutory provision has been
referred to or relied upon - On balancing the competing claims, the
condition is relaxed and the appellants are permitted to go back to
the College and the Hospital to pursue their studies, subject to the
conditions as stated, otherwise the pendency of prosecution against
them will add further penalty in the form of prejudicing their career
- Any such adverse impact will negate their rights u/Art.21 - Code
of Criminal Procedure, 1973 - ss.174 and 164 - Penal Code, 1860
- s.306 r/w s.34 - Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities), Act, 1989 - Maharashtra Medical
A
B
C
D
E
F
G
H
1008
SUPREME COURT REPORTS
[2020] 8 S.C.R.
Council Act, 1965 - s.22(1) - Medical Council of India Post
Graduate Medical Education Regulations, 2000 - Medical Council
of India (Prevention and Prohibition of Ragging in Medical Colleges/
Institutions) Regulations, 2009 - Paras 7, 8 - Constitution of India
- Art.21.
Allowing the appeals, the Court
HELD: 1.1 Notice was issued to see if going back to the
College would not be feasible, whether the Appellants could be
allowed migration to any other college/institution so that both
the elements viz. (i) relating to the career and prospects of the
Appellants and (ii) the interest of the prosecution in keeping the
witnesses away from the possibility of influence by the Appellants;
would get satisfied and taken care of. The matter has travelled
far from what was noted and noticed in the beginning and now the
respondents have placed the Order of Suspension of the
Appellants on record and insist that so long as the Order of
Suspension is in operation, the Appellants cannot be allowed to
go back to their course of study. [Para 23][1029-G; 1030-B]
1.2 It must be noted:-
a) The Appellants are three lady doctors who are pursuing
Post Graduate medical course (M.D.) in Gynaecology and
Obstetrics in Topiwala National Medical College, Mumbai and
have completed two years out of three years' of course. The
course is well coveted and considered to be a specialty course in
that field. The Appellants do not appear to be original residents
of Mumbai and, as such, it cannot be said that they or their families
have deep-rooted presence in Mumbai.
b) As noticed by this Court in Sumit Mehta, if the law
presumes an accused to be innocent till his guilt is proved, the
Appellants as presumably innocent persons, are entitled to all
the fundamental rights including the right to liberty guaranteed
under Article 21 of the Constitution and are entitled to pursue
their course of study so long as exercise of said right does not
hamper smooth conduct and progress of the prosecution.
c) The stand taken by the State through the affidavit filed
by the De

## Text

_Characters 0–39,920 of 61,746. This is a partial read: ask again with offset=39920 for what follows._

A
B
C
D
E
F
G
H
1007
1007
[2020] 8 S.C.R. 1007
ANKITA KAILASH KHANDELWAL AND ORS.
v.
STATE OF MAHARASHTRA AND OTHERS
(Criminal Appeal Nos. 660-662 of 2020)
OCTOBER 08, 2020
[UDAY UMESH LALIT, VINEET SARAN AND
AJAY RASTOGI, JJ.]
Maharashtra Prohibition of Ragging Act, 1999 - s.6(1) -
Appellants after completing MBBS course were pursuing PG Degree
Course (M.D.) in Gynaecology and Obstetrics and were also
working as residents in a Hospital attached to their College - A
student, a year junior to the appellants, resident in the same
Department and pursuing the same course committed suicide - FIR
registered against the appellants - Appellants suspended by the
Dean of the Hospital and the College - Bail granted to the appellants
by High Court with certain conditions - While some conditions were
later relaxed/recalled, condition no.(iv) on the appellants to not
enter their College and the Hospital was maintained - On appeal,
held: To take appropriate action u/s.6(1), the concerned head of
the educational institution must prima facie be satisfied that the
allegations against the student have been found to be true,
whereafter, an order of suspension can be passed - In the present
case, the order of suspension does not even record any such finding
or prima facie view - It was not passed by virtue of power entrusted
u/s.6(1) but was on the ground that there was an FIR against the
appellants - Thus, order of suspension is not referable to s.6(1) -
Further, apart from s.6(1), no other statutory provision has been
referred to or relied upon - On balancing the competing claims, the
condition is relaxed and the appellants are permitted to go back to
the College and the Hospital to pursue their studies, subject to the
conditions as stated, otherwise the pendency of prosecution against
them will add further penalty in the form of prejudicing their career
- Any such adverse impact will negate their rights u/Art.21 - Code
of Criminal Procedure, 1973 - ss.174 and 164 - Penal Code, 1860
- s.306 r/w s.34 - Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities), Act, 1989 - Maharashtra Medical
A
B
C
D
E
F
G
H
1008
SUPREME COURT REPORTS
[2020] 8 S.C.R.
Council Act, 1965 - s.22(1) - Medical Council of India Post
Graduate Medical Education Regulations, 2000 - Medical Council
of India (Prevention and Prohibition of Ragging in Medical Colleges/
Institutions) Regulations, 2009 - Paras 7, 8 - Constitution of India
- Art.21.
Allowing the appeals, the Court
HELD: 1.1 Notice was issued to see if going back to the
College would not be feasible, whether the Appellants could be
allowed migration to any other college/institution so that both
the elements viz. (i) relating to the career and prospects of the
Appellants and (ii) the interest of the prosecution in keeping the
witnesses away from the possibility of influence by the Appellants;
would get satisfied and taken care of. The matter has travelled
far from what was noted and noticed in the beginning and now the
respondents have placed the Order of Suspension of the
Appellants on record and insist that so long as the Order of
Suspension is in operation, the Appellants cannot be allowed to
go back to their course of study. [Para 23][1029-G; 1030-B]
1.2 It must be noted:-
a) The Appellants are three lady doctors who are pursuing
Post Graduate medical course (M.D.) in Gynaecology and
Obstetrics in Topiwala National Medical College, Mumbai and
have completed two years out of three years' of course. The
course is well coveted and considered to be a specialty course in
that field. The Appellants do not appear to be original residents
of Mumbai and, as such, it cannot be said that they or their families
have deep-rooted presence in Mumbai.
b) As noticed by this Court in Sumit Mehta, if the law
presumes an accused to be innocent till his guilt is proved, the
Appellants as presumably innocent persons, are entitled to all
the fundamental rights including the right to liberty guaranteed
under Article 21 of the Constitution and are entitled to pursue
their course of study so long as exercise of said right does not
hamper smooth conduct and progress of the prosecution.
c) The stand taken by the State through the affidavit filed
by the Deputy Secretary, Medical Education and Drugs
A
B
C
D
E
F
G
H
1009
Department, Government of Maharashtra, is that the Appellants
can prosecute their Post Graduate course in future after conclusion
of the trial. Said submission and the observation by the High Court
in para 11 of the order are not correct. Even a convict is allowed
to have academic pursuits while undergoing sentence and
develop his potential as a human being to the fullest. The State
apparatus must facilitate such pursuits rather than hamper any
attempts in that behalf.
d) It is a matter of record that the statements of all material
witnesses have been recorded under Section 164 of the Code of
Criminal Procedure, 1973. In fact, the High Court went to the
extent of ensuring that such statements are recorded so that
witnesses could not be won over by the Appellants after they
were enlarged on bail. Therefore, the apprehension that the
witnesses could be influenced is not quite correct.
e) The majority of witnesses to be examined by the
prosecution appear to be in permanent employment of the College
and the Hospital. It will be difficult to imagine that three lady
doctors who do not otherwise belong to Mumbai will be able to
influence any such witnesses by their mere presence in the
College and the Hospital.
f) The Appellants require to put in the last year of their
course and as stated, the actual period that they need to undergo
by way of training is only nine months. [Para 24][1030-D-H; 1031A-E]
Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC
570 : [2013] 10 SCR 125 - relied on.
1.3 The facts on record indicate that the report of the AntiRagging Committee and the Order of Suspension were issued
on the same date i.e. on 27.05.2019. The submission that the
Order of Suspension was not based on the report of the AntiRagging Committee merits acceptance because of following
features viz. (a) the outward number for the Order of Suspension
is NDN/172 while that of the report of Anti-Ragging Committee
is NDN/183, which means the Order of Suspension was issued
earlier to the report of the Anti-Ragging Committee; (b) both the
communications are under the signature of the Dean of the College
ANKITA KAILASH KHANDELWAL AND ORS. v. STATE OF
MAHARASHTRA AND OTHERS
A
B
C
D
E
F
G
H
1010
SUPREME COURT REPORTS
[2020] 8 S.C.R.
and the Hospital and yet, the Order of Suspension does not make
any reference to the report of the Anti-Ragging Committee; (c)
the Order of Suspension is based purely on the registration of
FIR registered against the Appellants which is why "taking
cognizance of this" the Order of Suspension was passed; and (d)
when a request for revocation of suspension was made, it was
rejected on 25.10.2019 because of order dated 09.08.2019 of the
High court and not because of the report of the Anti-Ragging
Committee. [Para 25][1031-F-H; 1032-A-B]
1.4 To take appropriate action under Section 6(1) of
Maharashtra Prohibition of Ragging Act, 1999, the concerned
head of the educational institution must prima facie be satisfied
that the allegations against the student have been found to be
true, whereafter, an order of suspension can be passed. The Order
of Suspension does not even record any such finding or prima
facie view. As a matter of fact, the Order of Suspension was not
passed by virtue of power entrusted under Section 6(1) of 1999
Act but was based on the grounds that the Appellants were
creating hurdles in the enquiry by the police and that there was
an FIR against them. The Order of Suspension is not referable
to Section 6(1) of 1999 Act. Apart from Section 6(1), no other
statutory provision has been referred to or relied upon. Para 8.1
of Medical Council of India (Prevention and Prohibition of Ragging
in Medical Colleges/Institutions) Regulations, is applicable to
cases where a student has been 'foundguilty of ragging' which
presupposes valid exercise of power. The effects contemplated
by said Para 8.1 come into operation only thereafter. Neither the
provisions of 1999 Act nor 2009 Regulations get attracted to the
present case. [Paras 26-28][1032-D-G]
1.5 A submission is raised that in a matter arising from the
request for relaxation of condition, no collateral attack on the
Suspension Order be permitted. It is submitted that the
Appellants are free to challenge the Order of Suspension and so
long as that order is not set aside, the Appellants cannot be
allowed to come back to the College or the Hospital. No merit is
found in the aforesaid submissions. Relaxation sought in respect
of condition no. (iv) takes within its fold all submissions with
respect to matters arising from the registration of the crime and
A
B
C
D
E
F
G
H
1011
steps undertaken pursuant thereto. Since the Order of Suspension
was passed purely as a result of registration of crime and did not
have any roots in statutory powers conferred under Section 6 of
1999 Act, this Court can certainly grant redress to the Appellants.
[Paras 29, 30][1033-A-C]
1.6 While balancing the competing claims, the Appellants
must be allowed to go back to their courses of study otherwise
the pendency of prosecution against them will add further penalty
in the form of prejudicing their career. Any such adverse impact
will negate their rights under Article 21 of the Constitution.
Considering the matter in its entirety and especially when the
Appellants have to undergo training under the same guide and in
the same institution where they were registered, ends of justice
would be met if condition no. (iv) as laid down by the High Court
is relaxed and the Appellants are permitted to go back to the
College and the Hospital to pursue their studies, subject to the
conditions as stated. It is made clear that the Appellants shall be
permitted to pursue their courses of study regardless of the Order
of Suspension dated 27.05.2019. [Paras 31-33][1033-D-F; 1034E]
Kunal Kumar Tiwari alias Kunal Kumar v. State of Bihar
and another (2018) 16 SCC 74 - referred to.
Case Law Reference
[2013] 10 SCR 125
relied on
Para 16
(2018) 16 SCC 74
referred to
Para 16
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
660-662 of 2020.
From the Judgment and Order dated 21.02.2020 of the High Court
of Judicature at Bombay in Interim Application Nos. 2, 3 and 4 of 2019
Criminal Appeal No. 911 of 2019 respectively.
Sidharth Luthra, Ms. Indira Jaising, B. H. Marlapalle, Sr. Advs.,
Kunal Cheema, Jagvijay Gandhi, Ms. Aditi Parkhi, Ms. Subhangini Jain,
Pankaj Singhal, Sunil Fernandes, Ms. Nupur Kumar, Ms. Disha Wadekar,
ANKITA KAILASH KHANDELWAL AND ORS. v. STATE OF
MAHARASHTRA AND OTHERS
A
B
C
D
E
F
G
H
1012
SUPREME COURT REPORTS
[2020] 8 S.C.R.
Prastut Dalvi, Zeeshan Diwan, Paras Nath Singh, Ms. Ujjaini Chatterjee,
Ms. Asha Gopalan Nair, Ms. Nivedita Nair, Ms. Aruja Savla, Sachin
Patil, Rahul Chitnis, Geo Joseph, Gaurav Sharma, Prateek Bhatia and
Dhawal Mohan, Advs., for the appearing parties.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J.
1. Leave granted.
2. These appeals arise out of the common judgment and order
dated 21.02.2020 passed by the High Court1 in Interim Application Nos.2,
3 and 4 of 2019 (preferred by Dr. Ankita Kailash Khandelwal, Dr. Hema
Suresh Ahuja and Dr. Bhakti Arvind Mehare - respectively; who are
collectively referred to as the Appellants hereafter) in Criminal Appeal
No.911 of 2019.
3. The Interim Applications were preferred by the Appellants
seeking relaxation of condition nos.(iii), (iv) and (v) imposed upon them
in order dated 09.08.2019 passed by the High Court while granting them
bail.
4. The basic facts leading to the filing of said Criminal Appeal No.
911 of 2019, in brief, are as under:-
a) The Appellants after completing MBBS course were pursuing
Post Graduate Degree course (M.D.) in Gynaecology and Obstetrics in
Topiwala National Medical College, Mumbai ('the College', for short).
They completed two years out of three years of course in April, 2019
and were working as residents in B.Y.L. Nair Charity Hospital ('the
Hospital', for short) attached to the College.
b) Dr. Payal Tadvi was also student of Post Graduate Degree
Course (M.D.) in Gynaecology and Obstetrics in the College and
completed first year of the coursein April, 2019. She was thus a year
junior to the Appellants and all of them were residents in the same
Department and pursuing the same course.
c) On 22.05.2019 at about 9:00 p.m., Agripada Police Station,
Mumbai received an information that Dr. Payal Tadvi had committed
suicide by hanging herself in her room. Initially a case under Section 174
ofthe Code of Criminal Procedure, 1973 ('the Code', for short) was
1 The High Court of Judicature at Bombay
A
B
C
D
E
F
G
H
1013
recorded. After the complaint was lodged by the mother of Dr. Payal
Tadvi that her daughter was harassed by the Appellants and that they
were directly responsible for the suicide committed by her daughter,
Crime No.157 of 2019 was registered against the Appellants under
Section 306 read with Section 34 of the Indian Penal Code ("IPC", for
short), under the provisions of Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities), Act, 1989 and also under Section 4 of the
Maharashtra Prohibition of Ragging Act, 1999 (hereinafter referred to
as '1999 Act').
d) By communication bearing No. NDN/172 dated 27.05.2019,
taking cognizance of the FIR registered against them, the Appellants
were suspended by the Dean of the Hospital and the College. The relevant
text of the communication addressed to Dr. Bhakti Arvind Mehare, one
of the Appellants was as under:-
"It has come to our notice that you have unofficially been absent
from work since 22.05.2019. The Professor and the Head of
department of Obstetrics and gynaecology have informed our office
that you have been absent.
On 22.05.2019, Dr. Payal Salman Tadvi, who was pursuing Post
Graduation at the Obstetrics and Gynaecology Department of Nair
Hospital has committed suicide in hostel room no. 806. Abeda
Salim Tadvi, the mother of Dr. Payal, has lodged a complaint with
Agripada Police Station. Based on the complaint, an FIR has been
lodged against Dr. Bhakti Mehere. Cr.Reg.No.157/99 under
Section 306, Section 34 of Indian Penal Code, read with Section 4
of Maharashtra Prohibition of Ragging Act, 1999 read with
Section 3(10) of SC, ST Prevention of Atrocities Act, 1989; read
with Section 67 of Information Technology Act, 2000.
Instead of cooperating with the investigation by the State in such
a serious incident, you have gone missing from work as well as
your residence with the intention to avoid the police investigation
and without informing any of the officials and without taking prior
permission. This has therefore, created hurdles in the inquiry being
conducted by the Police/ Administration. In addition to this, an
FIR against you has been lodged in Agripada Police Station. Taking
cognizance of this, you are being suspended from 27.05.2019, till
further orders."
ANKITA KAILASH KHANDELWAL AND ORS. v. STATE OF
MAHARASHTRA AND OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
1014
SUPREME COURT REPORTS
[2020] 8 S.C.R.
e) On the same date, report bearing no. NDN/183 dated
27.05.2019 under the signature of the Dean of the Hospital and the
College, was made which noted the opinion of Ragging Prevention
Committee and recommended that the Appellants be immediately
suspended. Action was also recommended against the related Unit Head
and Unit Head of Gynaecology and Maternity Ward.
f) The Appellants were arrested on 29.05.2019. The investigation
was thereafter transferred to the Crime Branch and the case was
renumbered as Crime No.49 of 2019. During the course of investigation,
statements of more than 100 witnesses were recorded by the Crime
Branch. After completion of investigation, charge sheet running into 1200
pages was filed and the matter is still at the stage of consideration whether
the charges are required to be framed or not.
g) Bail Application No.1338 of 2019 preferred by the Appellants
was rejected by the Court of Sessions (Gr. Bombay) at Bombay by
order dated 24.06.2019. The Appellants, being aggrieved, filed Criminal
Appeal No.911 of 2019 under Section 14A (2) of 1989 Act in the High
Court.
5. When the appeal was taken up for hearing by the High Court,
the grant of bail to the Appellants was not seriously objected to as is
clear from paragraph 4 of the order dated 09.08.2019, which was to the
following effect:-
"4. Mr. Ponda submits that having regard to the fact that the
investigation is complete and charge-sheet is filed, the appellants
deserve to be enlarged on bail. The learned Special Public
Prosecutor Mr. Thakre has also been fair enough to consider that
he has no serious objection to grant of bail to the appellants. This
Court has perused the charge-sheet, which runs into not less than
1200 pages. The Crime Branch has recorded the statements of
about more than 100 witnesses who have implicated the Appellantsaccused. Although, this Court is of the opinion that the Appellants
are entitled to grant of bail, the same would be subject to stringent
conditions."
5.1. The order also recorded in paragraph 13 that statements of
material witnesses were recorded under Section 164 of the Code. Said
paragraph was:-
A
B
C
D
E
F
G
H
1015
"13. During the course of hearing of this appeal for bail, this Court
had made a query as to whether the statements of material
witnesses had been recorded under Section 164 of the Code of
Criminal Procedure, 1973. As the answer was in the negative,
this Court ensured that the statements of the material witnesses
such as Dr. Snehal Shinde, Dr. Geeta Kulkarni and others were
recorded under section 164 of the Code of Criminal Procedure,
1973, in order to ensure that the witnesses are not won over by
the accused person after being enlarged on bail."
5.2. However while granting bail to the Appellants, certain
conditions were imposed by the High Court in its order dated 09.08.2019
with following observations:-
"18.The Apex Court has also directed the Courts to consider as
to whether the investigation is completed and whether the accused
has cooperated with the investigation. In the present case, the
investigation is completed, statements of the witnesses are recorded
under section 164 of the Code of Criminal Procedure, 1973 and
charge-sheet is filed. Moreover, the appellants had joined
investigation. Hence, the appellants deserve to be enlarged on
bail.
19. Learned Counsel for the appellants submits that the appellants
in the present case are not accused of Section 302 or 307 of the
Indian Penal Code or any terrorist activities and the extreme steps
taken by the deceased Dr. Payal would reflect upon her psyche
and her ability to handle pressures in the medical profession and
therefore, according to him, the appellants deserve bail. Even if
this submission is accepted, the Court cannot be oblivious of the
fact, that mental injury can be more serious than physical injury.
Mental injury may drive a person to any extreme step like the
present one since it can never be seen, but it is only reflected by
overt action or silence on the part of the victim. The question
whether the appellants had the intention to drive Dr. Tadvi to
commit suicide is a matter which will be decided by the Trial
Court.
20. Having regard to what is stated hereinabove, the appeal
deserves to be allowed.
21. Hence, following order is passed :
ANKITA KAILASH KHANDELWAL AND ORS. v. STATE OF
MAHARASHTRA AND OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
1016
SUPREME COURT REPORTS
[2020] 8 S.C.R.
ORDER
(i) The appeal under section 14A(2) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act for seeking
enlargement on bail is allowed after imposing certain stringent
conditions.
(ii) The appellants be enlarged on bail on furnishing P.R. Bond in
the sum of Rs.2,00,000/- (Rs. Two Lakhs only) each and one or
more solvent local sureties.
(iii) The appellants shall not leave Mumbai without the permission
of the Court. The appellants shall report to the office of Crime
Branch, Nagpada every alternative day till framing of charge.
(iv) The appellants shall not enter into the jurisdiction of Agripada
Police Station and more particularly, Topiwala National Medical
College (B.Y.L. Nair Ch. Hospital).
(v) The licences of the appellants issued by Medical Council of
India as well as Maharashtra Medical Council shall be remained
suspended till conclusion of the trial.
(vi) The appellants shall attend the trial Court on every date unless
exempted by the trial Court.
(vii) Upon committing breach of any condition imposed herein,
the investigating agency would be at liberty to seek cancellation
of bail.
(viii) The applicant shall be released on provisional cash bail of
Rs.2,00,000/- (Rs. Two Lakhs only) each for a period of 8 weeks,
within which they shall furnish solvent local sureties to the
satisfaction of the Special Court, Mumbai.
(ix) It is made clear that even while on provisional cash bail, all
the above said conditions would apply.
(x) The appellants shall file an undertaking with respect to aforesaid
clauses (iii) and (vi) in the trial Court within two weeks from the
date of release.
(xi) The Special Court, Mumbai shall not be influenced in any
manner with the observations made by this Court in this Appeal
under section 14A of the Scheduled Caste and Scheduled Tribes
A
B
C
D
E
F
G
H
1017
(Prevention of Atrocities) Act, as all the observations are restricted
to the grant of bail and not otherwise.
23. The appeal is disposed of accordingly."
6. On 25.10.2019, the request made by the Appellants for
revocation of their suspension was rejected by the Dean of the Hospital
and the College stating as under:-
"... ...In this letter you have requested to revoke the suspension.
But as per the order of Honorable Court on dated 9/08/2019 it is
not possible to revoke the suspension at this point."
7. The undertakings as contemplated by sub-para 9 of paragraph
21 of the Order dated 09.08.2019 were filed by the Appellants and it is
accepted that the conditions imposed by said order were not violated by
the Appellants. However, as a result of condition no.(v), their licences to
practice as medical professionals stood suspended; and by virtue of
condition no.(iii) they could not leave the city of Mumbai without the
express permission of the Court. Further, as a result of condition no.(iv)
they could not enter the Hospital and the College where they were
pursuing their Post Graduate courses. In the circumstances, in November,
2019, Interim Applications No.2, 3 and 4 of 2019 were preferred by the
Appellants seeking relaxation of condition nos.(iii), (iv) and (v) imposed
in order dated 09.08.2019 passed by the High Court.
8. On 10.01.2020, the Maharashtra Medical Council suspended
the licence of Dr. Ankita Kailash Khandelwal and Dr. Bhakti Arvind
Mehare. There was no such order of suspension with respect to Dr.
Hema Suresh Ahuja, as she was not registered with the Maharashtra
Medical Council.
9. While considering Interim Applications 2, 3 and 4 of 2019, the
High Court summoned Dr. Ganesh Shinde, Head of Department,
Gynaecology, whose submissions as well as the submission of the learned
Senior Counsel for the State were recorded thus:-
"2. As on today, Dr. Ganesh Shinde, was summoned by this Court
to ascertain the effect of relaxation of the said condition. Dr.
Shinde is present before the Court. He has submitted that pursuant
to the order dated 28th February, 2019, he had called a meeting of
the staff members, the faculty members, nurses and other persons
who are witnesses in the present case. There is a grave hostility
ANKITA KAILASH KHANDELWAL AND ORS. v. STATE OF
MAHARASHTRA AND OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
1018
SUPREME COURT REPORTS
[2020] 8 S.C.R.
towards the applicants. It is submitted that their presence in the
B.Y.L. Nair Charity Hospital may change the facet of the trial
and that possibility of the witnesses being won over cannot be
ruled out and the at the same time the hospital will not take the
responsibility of any harm caused to the accused applicants at the
hands of the witnesses as a reaction to the incident which occurred
on 22nd May 2019 in which Dr. Payal Tadvi had committed suicide
in the residential quarter of B.Y.L. Nair Charity Hospital. The
Senior Counsel also submits that in any case the accusedapplicants are graduates in medical discipline and that they can
prosecute their post graduation at any time in future even after
the conclusion of the trial and therefore, there is no pressing
urgency to allow the applicants to enter into the premises of B.Y.L.
Nair Charity Hospital to complete their post-graduation"
9.1. The High Court by its order dated 21.02.2020 relaxed condition
no.(iii). It also recalled condition no.(v)as in its view, suspension of
licences as ordered by the High Court was without jurisdiction and that
in terms of Section 22(1) of the Maharashtra Medical Council Act, 1965
the action in that behalf could be taken by the Council. The High Court
had issued notice to the Medical Council of India to explore the possibility
as to whether the Appellants could seek migration to any other Colleges.
However, in view of the submission by the State, the High Court refused
to relax condition no.(iv). It observed in paras 10 to 12 as under:-
"10. The learned counsel appearing for the complainant seeks
expeditious trial. It is a matter of record that most of the witnesses
are students who are prosecuting their Post Graduation in B.Y.L.
Nair Charity Hospital and after completion of Post Graduation
they may not reside in Bombay and therefore, it would be
necessary to expedite the trial accordingly. The learned Special
Judge (Special Court SC and ST) seized with Sessions Case No.7
of 2019 shall make every endeavour to conclude the recording of
evidence as far as possible within ten months from the date of
framing of charge.
11. Needless to reiterate that the applicants herein would be at
liberty to pursue their further education after the conclusion of
the trial.
A
B
C
D
E
F
G
H
1019
12. This Court had also issued notice to Medical Council of India
to explore the possibility as to whether the present applicants could
seek admission in any other college. The learned Counsel Mr.
Gole has drawn the attention of this Court to the regulations of
Maharashtra Medical Council of India that the applicants cannot
migrate to any other college for Post Graduation since they were
doing their Post Graduation in B.Y.L. Nair Charity Hospital in
Maharashtra. It is submitted that migration is not permissible."
10. In tune with the withdrawal of condition no.(v) by the High
Court, the Maharashtra Medical Council by communication dated
16.03.2020 revoked the suspension of Dr. Ankita Kailash Khandelwal
and Dr. Bhakti Arvind Mehare and set aside the earlier order dated
10.01.2020.
11. These appeals, thus, challenge non-relaxation of condition no.
(iv) by the High Court.
12. While issuing notice on 09.07.2020 following order was passed
by this Court:-
"Mr. Sidharth Luthra, learned Senior Advocate appearing for the
petitioners submitted inter alia that;
(i) the petitioners have completed two years out of three years'
course and that they be allowed to complete the entire course.
He stated that normally the students must go back to the same
college but if permitting the petitioners to resume their studies in
the same college is not feasible, the petitioners be accommodated
in any other college to enable them to complete their studies.
In support of the submission, reliance is placed on two
examples cited by the petitioner at page "C" of the list of dates
and synopsis.
(ii) the observation in para 10 of the order pre-suppose that the
charges had to be framed. It was submitted that the matter be left
for the consideration of the concerned Court whether the charges
need to be framed or not."
Notice was confined to these submissions. Two examples given
at page 'C' of the list of dates and synopsis were:-
ANKITA KAILASH KHANDELWAL AND ORS. v. STATE OF
MAHARASHTRA AND OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
1020
SUPREME COURT REPORTS
[2020] 8 S.C.R.
"The Petitioners have recently after passing of the impugned
judgment on enquiries learnt that last year or so, various students
(around 30 of them perusing PG course, including Gynaecology,
from one ESI-PGIMSR College, Andheri, which had a fire, have
been accommodated in Grant Medical College, J.J Hospital,
Byculla. The same was done by the State of Maharashtra with
the consensus of the Medical Council of India.
That the Petitioners have also recently learnt that the passing of
the impugned Judgment and final order that students of their very
college had also been accommodated in another hospital i.e. Sion
Hospital, when there was a blast in their MRI center and the
same continued for about 6 months, till the said center was again
made functional."
13. Thereafter, the order dated 11.08.2020 passed by this Court
recorded the submissions advanced on behalf of the Medical Council of
India and the Complainant as under:-
"Mr. Gaurav Sharma, learned Advocate for the MCI submitted
that migration would not be permissible and two instances adverted
to by the petitioners, namely, of (i) College at Jhajjar Haryana and
(ii) ESI-PGIMSR College, Andheri at Mumbai were in the peculiar
facts and circumstances of those cases. He submitted that in the
first case, the College itself was closed and therefore the entire
batch of the students was accommodated in different colleges
while in the second case there was a fire at the institution and
therefore the students were temporarily shifted to another
institution.
Ms. Indira Jaising, learned Senior Advocate submitted that the
issue of migration was completely unrelated to the matter
concerning bail and the conditions imposed at the stage of grant
of bail; that in case the petitioners were denied migration, the
remedy was in taking appropriate proceedings in a manner known
to law and that since the Regulations were very clear that no
migration would be permissible, the Court ought not to pass any
orders on the plea of migration."
By same order, this Court also impleaded B.Y.L. Nair Charity
Hospital; and sought information from the State as regards the status of
trial.
A
B
C
D
E
F
G
H
1021
14. The stands taken by the respective parties in their affidavitsin-reply are to the following effect:-
A) Deputy Secretary, Medical Education and Drugs Department,
Government of Maharashtra stated:-
"9. It is submitted that, petitioners are holding MBBS Degree
and they are at liberty to practise their medical profession.
Petitioners can prosecute their Post Graduation at any time in
future after conclusion of the trial, therefore, there is no pressing
urgency to allow petitioners to permit their migration /
accommodation in any other college / hospital. It is submitted
that, Hon'ble High Court has already expedited trial in the
present case and directed that, trial should be concluded within
10 months from the date of framing of charges."
B) The Dean of the College and the Hospital relied upon the
Medical Council of India Post Graduate Medical Education
Regulations, 2000 ('2000 Regulations', for short) framed by the
Medical Council of India, to submit that no migration/transfer of
student undergoing any Post Graduate Degree/Diploma/Super
Speciality course is permitted. In the additional affidavit it was
asserted:-
"7. All the candidates joining the post-graduate training
programme shall work as 'Full Time Residents' during the period
of training and shall attend not less than 80% (Eighty percent)
of the imparted training during each Academic Term of six
months including assignments assessed full time responsibilities
and participation in all facets of the educational process."
C) The Complainant placed on record copy of the Order of
Suspension dated 27.05.2019 and the provisions of 1999 Act and
Regulations of the Medical Council of India on the issue of
prohibition of ragging in Medical Colleges.
15. One of the submissions urged by the Appellants is that the
observations of the High Court in the last sentence of para 10 are capable
of being construed as a direction to the Special Judge seized of the
matter to frame the charges and thereafter conclude the proceedings
within ten months. It is submitted that the trial is still at the stage of
compliance of Sections 207 and 208 of the Code and that the Appellants
ANKITA KAILASH KHANDELWAL AND ORS. v. STATE OF
MAHARASHTRA AND OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
1022
SUPREME COURT REPORTS
[2020] 8 S.C.R.
would be within their rights to file an application for discharge. However,
the last sentence in para 10 may hamper consideration of their application
for discharge.
We do not think that said sentence can be considered as a mandate
to the Special Judge to frame charges. For the sake of clarity, we direct
that the matter shall be considered purely on merits at the stage of
consideration whether charges need to be framed or not. If any application
for discharge is preferred by the appellants, the same be considered in
accordance with law.
16. We now come to the submissions of Mr. Siddharth Luthra,
learned Senior Advocate for the Appellants which are to the following
effect:-
i) Relying on the decisions of this Court in Sumit Mehta vs. State
(NCT of Delhi)2 and Kunal Kumar Tiwari alias Kunal Kumar
vs. State of Bihar and another3, it is submitted that in terms of
Section 437(3) of the Code, the courts undoubtedly are entitled to
impose conditions which are necessary "otherwise in the interest
of justice". However, as held by this Court, such conditions
cannot be arbitrary, fanciful or extend beyond the ends of the
provision.
ii) Condition no.(iv), as imposed, is resulting in negation of the
rights of the Appellants to continue their studies in the College
and thus directly infringes their rights guaranteed under Article 21
of the Constitution of India.
iii) The Appellants are not insisting that they be allowed to go
back to the College,if the Appellants can be allowed transfer/
migration to any other college in the city of Mumbai. Apart from
the College, there are two other Medical Colleges run by the
Municipal Corporation of Greater Mumbai and one more College
run by State of Maharashtra located in Mumbai and there are
various other Health Care Centres and Hospitals. The Appellants
can be attached to any of these institutions so that they can
complete their course of study.
iv) The Appellants have completed two years of three years' course
and what they may be required to put in for the third year of
2 (2013) 15 SCC 570
3 (2018) 16 SCC 74
A
B
C
D
E
F
G
H
1023
course will be just about nine months of actual residency as the
students are normally entitled to study leave for three months.
Thus, it would be a question of accommodation for nine months.
v) Out of the witnesses cited in the chargesheet to be examined
by the prosecution, there are 12 Post Graduate students who are
not permanently in employment of the College and the Hospital.
Out of those 12 witnesses, 5 have already completed their course
and passed out in May, 2020, while other 5 will pass out in May,
2021 and remaining 2 students will pass out in May 2022. All the
other witnesses are permanently in employment of the College
and the Hospital.
vi) In any case, as observed by the High Court in the order dated
09.08.2019, statements under Section 164 of the Code of all
material witnesses having been recorded, there would be no
occasion even to apprehend any attempt on part of the Appellants
to influence any of the witnesses.
vii) By whatever modality that the Court deems appropriate to
direct, an avenue be created whereunder the Appellants are
allowed to pursue and complete their course of study. The stand
taken by the Deputy Secretary, Medical Education and Drugs
Department, Government of Maharashtra, which was reflected
in para 11 of the order under appeal, is not correct and the
suggested course of action will completely jeopardise the career
of the Appellants.
viii) The Order of Suspension dated 27.05.2019 was purely based
on the FIR lodged against the Appellants. The suspension of two
of the Appellants by the Maharashtra Medical Council was again
based on direction (v) issued by the High Court in order dated
09.08.2019. In any case, said suspension by the Maharashtra
Medical Council now stands revoked.
17. It is submitted by Mr. Sachin Patil, learned Advocate for the
State that this Court had initially issued notice to see whether the
Appellants could be transferred or allowed migration to any other college/
institution and that two examples relied upon by the Appellants are
completely distinguishable. He has submitted that the Suspension Order
dated 27.05.2019 issued under the signature of the Dean of the Hospital
and the College still being in existence and force, the Appellants cannot
ANKITA KAILASH KHANDELWAL AND ORS. v. STATE OF
MAHARASHTRA AND OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
1024
SUPREME COURT REPORTS
[2020] 8 S.C.R.
be allowed to go back to their course of study. It is further submitted that
though the statements of more than 100 witnesses were recorded during
investigation, the prosecution may confine itself to examination of only
60 witnesses and with the observations by the High Court expediting the
process of trial, the trial will get over at an early date.
18. Mr. Gaurav Sharma, learned Advocate for the Medical Council
of India has submitted that for a student undergoing Post Graduation
course, he/she must be attached to a particular Guide and the student is
not allowed to change the Guide during the course. It is submitted that
the examples relied upon by the Appellants were examples of an
extraordinary situation where the entire batch was permitted to be shifted
to another college under the orders of the Medical Council of India. It is
reiterated that under the Regulations in question, migration to any other
college is not permissible at all. On the question whether there is any
time limit for completion of Post Graduation course, Mr. Sharma has
responded that there used to be a limit of five years within which the
course had to be completed but now there is no such outer limit. He
further stated that once a candidate is registered for a Post Graduate
course, he/she cannot takeup any other course while such registration is
continuing.
19. Ms. Indira Jaising, learned Senior Advocate, appearing for
the Complainant has submitted that the Order of Suspension dated
27.05.2019 was based on the report of the Anti-Ragging Committee and
that neither there was any challenge to the Order of Suspension nor was
said suspension revoked. It is submitted that in the face of suspension by
the College, the Appellants cannot be allowed to resume their course of
study. It is further submitted that once the Order of Suspension is in
force, in terms of Regulation 8.1 of 2009 Regulations, the Appellants
would not be allowed to attend any class and have academic privileges.
It is submitted that the Complainant had not challenged the order granting
bail as the order came with the condition that the Appellants would not
be allowed to enter the College. Going by the apprehension expressed
by Dr. Ganesh Shinde, if the Appellants are allowed to go back to the
College, there is a possibility of witnesses getting influenced.
20. Mr. B.H. Marlapalle, learned Senior Advocate appearing for
the College and the Hospital has submitted that as per oral instructions
received by him, the Order of Suspension was based on the opinion of
the Anti- Ragging Committee.
A
B
C
D
E
F
G
H
1025
21.