Paragraph numbers below are the court’s original numbering, recovered from the source text.
23. At the outset, it must be stated that notice was issued to seeif 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. Therefore, focussing attention on two instances given by the Appellants, responses were called for. However, as the situation now obtains, the stand of the Medical Council of India is clear that “under ANKITA KAILASH KHANDELWAL AND ORS. v. STATE OF MAHARASHTRA AND OTHERS [UDAY UMESH LALIT, J.] no circumstances migration is permissible” for students undergoing Post Graduate medical courses. Mr. Gaurav Sharma, learned Advocate, has gone to the extent of emphasizing that the students who register themselves for Post Graduate medical courses, have to be under a particular Guide and complete the entire course under the supervision of that Guide alone. The matter, therefore, 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.
24. We are, thus, called upon to consider the competing claims in such a way that the individual rights of the Appellants to pursue their courses of study are secured and, at the same time, the conduct of prosecution also runs smoothly and without any interference and possibility of witnesses getting won over. In that view, it must be noted:- a) The Appellants before us are three lady doctors who are pursuing Post Graduate medical course (M.D.) in Gynaecology and Obstetrics 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 Mehta2, 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 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, in our view, arenot 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. The Appellants, therefore, by any standard, are entitled to continue their courses of study subject to the caveat expressed earlier. d) It is a matter of record that as observed by the High Court in para 13 of its order dated 09.08.2019, the statements of all material witnesses have been recorded under Section 164 of the Code. 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 by Mr. Siddharth Luthra, learned Senior Advocate, the actual period that they need to undergo by way of training is only nine months. It is, thus, a question of putting those nine months in one scale and see whether the other scale becomes so weighty that the request to allow them to pursue their courses must be rejected.
25. Another issue raised is about the Order of Suspension passed against the Appellants. The facts on record indicate that the report of the Anti-Ragging Committee and the Order of Suspension were issued on the same date i.e. on 27.05.2019. The submission of Mr. Sidharth Luthra, learned Senior Advocate, that the Order of Suspension was not based on the report of the Anti-Ragging 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 and the Hospital and yet, the Order of Suspension does not make any ANKITA KAILASH KHANDELWAL AND ORS. v. STATE OF MAHARASHTRA AND OTHERS [UDAY UMESH LALIT, J.] 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.
26. The relevant provisions of 1999 Act show that if any student is found guilty of ragging or abetment of ragging, he can, on conviction be punished with imprisonment which may extend to two years and by virtue of Section 5, any student convicted of such offence shall be dismissed from the educational institution and cannot be admitted in any other educational institution for a period of five years.We are not concerned with any eventuality arising or occurring by virtue of Sections 4 and 5 of 1999 Act. To take appropriate action under Section 6(1) of 1999 Act,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. As stated hereinabove, 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. We, thus, conclude that the Order of Suspension is not referable to Section 6(1) of 1999 Act. Apart from Section 6(1) as aforesaid, no other statutory provision has been referred to or relied upon.
27. Para 8.1 of 2009 Regulations framed by the Medical Council of India is applicable to cases where a student has been ‘found guilty of ragging’ which presupposes valid exercise of power. The effects contemplated by said Para 8.1 come into operation only thereafter.
28. In our considered view, neither the provisions of 1999 Act nor 2009 Regulationsget attracted to the present case.
29. We are, therefore, left with a bare Suspension Order dated 27.05.2019 which was not based on the provisions of 1999 Act. A submission is raised by Ms. Indira Jaising, learned Senior Advocate, appearing for the Complainant that in a matter arising from the request for relaxation of condition, no collateral attack on the Suspension Order be permitted. It is submitted by her and Mr. Sachin Patil, learned Advocate for the State 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.
30. We do not find any merit in the aforesaid submissions. Relaxation sought in respect of condition no. (iv) takes within itsfold all submissions with respect to matters arising from the registration of the crime and 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,in our view, this Court can certainly grant redress to the Appellants.
31. While balancing the competing claims, in our view, 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.
32. 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, in our considered view, 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 following conditions:- i) The Appellants shall not, in any manner, influence or even attempt to influence any of the witnesses. ii) The Appellants shall present themselves on each of the dates that the matter gets posted before the Trial Court, unless their presence is specifically exempted. iii) If it is permissible, and subject to the appropriate permission from the Dean of the College and the Hospital, the Appellants may not reside in the quarters allocated to the residents in the College and the Hospital. However, if the registration as Post ANKITA KAILASH KHANDELWAL AND ORS. v. STATE OF MAHARASHTRA AND OTHERS [UDAY UMESH LALIT, J.] Graduate students requires the Appellants to be full time residents in the College and the Hospital, then the Appellants shall do so. iv) The Appellants shall avail study leave, as suggested by Mr. Sidharth Luthra, learned Senior Advocate, so that their actual period of stay inside the College and the Hospital gets reduced to the maximum possible level. v) If there be any holiday or vacation and it is permissible for the residents to be outside the College and the Hospital, the Appellants shall avail that and keep themselves away from the Hospital and the College. vi) If there be any untoward incident as apprehended by Dr. Ganesh Shinde, Head of Department, or even likelihood of such incident, the concerned authorities shall immediately report to the Police Station of the area and ensure that the life and liberty of everyone including the Appellants are well protected.
33. Subject to the conditions, as stated hereinabove, the Appellants shall be permitted to re-enter the College and the Hospital to pursue their courses of study. This Order shall come into effect at the beginning of the second term of academic session 2020-2021 and if such term hasalready begun, it shall come into effect from 12.10.2020.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.
34. Copies of this Judgment shall be sent to the Trial Court and the concerned Police Station for record and compliance.
35. The appeals stand allowed in aforementioned terms. Divya Pandey Appeals allowed.