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IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE AT

DIBRUGARH.

Present :Sri A.B. Siddique,

Addl. Sessions Judge,

Dibrugarh.

Crl. Rev. Case No 35(3)14

Sri. Nitya Nanda Gogoi. ------- Petitioner/accused

Vs.

State of Assam and others ------------ Opposite party.

Appearance :- Sri J K Changmai,

Advocate, ------------- For the Petitioner.

Mr Jogen Bordoloi, ………for the complainant

Mrs. C. Dutta, APP ……….. For the State

Crl. Rev. Case No 36(3)14.

Miss Rakeja Khatun ------- Petitioner/ Complainant

Vs.

State of Assam ------------ Opposite party.

Appearance :- Mr Jogen Bordoloi,.for the complainant/petitioner

Advocate,

Mr. S. Sharma, Advocate ….,.. for accused No.2

Mrs. C. Dutta, APP ……….. For the State

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Crl. Rev. Case No 37(3)14.

Sri. Pradip Dowarah. ------- Petitioner/accused

Vs.

State of Assam and others ------------ Opposite party.

Appearance :- Sri S. Sharma

Advocate, -------- For the Petitioner.

Mr Jogen Bordoloi, ……for the Complainant

Mrs. C. Dutta, APP ……….. For the State

Crl. Rev. Case No 42(3)14.

Sri. Ripon Medhi . ------- Petitioner/accused

Vs.

State of Assam and Others ------------ Opposite party.

Appearance :- Sri A. Dutta, Sr. Advocate

S. Kumar, Advocate ----- For the Petitioner

Mr Jogen Bordoloi ……….for the complainant

Mrs. C. Dutta, APP ……….. For the State

Date of argument :15.12.2014

Date of Judgment :02.01.2015

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J U D G E M E N T

1. This revision petition is filed u/s 397/398/401 CrPC against

the order dated 4.07.2014 passed by the learned trial court

where by charge has been framed against the four accused

person and two accused person is discharged.

2. Brief fact is that a complaint petition under section

167/406/417/465/34 of India Penal Code against 6 of the

accuseds alleging inter alia that the complaint appeared the

high School leaving certificate Examination in the year 2002

under Board of secondary education Guwahati as a privet

candidate through Bgamibar Nilmoni Phukon (BNP) Higher

secondary school, Dibrugarh and her Roll No. was Roll 131

No 0318 and passed in the third division . then the accused

no 4 with collusion of accused no 6 passed certificate of

H.S.L.C. Examination vide Certificate Ref. No 72 Dated

25-07-2002 and mark sheet was also received from the said

School, which was also signed and issued by the accused

No.2 vide mark sheet Ref. No. 038325 dated 11-06-2002 all

original documents were missing on 26-03-2011 while she on

the way to Lahowal Polytechinc , Dibrugarh, on the same day

she has informed the Lahowal police and made on G.D.E.

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being No 750 Accordingly she applied SEBA for duplicate

copy of the certificate after due payment made to them. The

SEBA after verification of their record informed complaint

that in the Roll R-131 and No. 0318 in the name of one Smti.

Laxmi Pandey, notin her name hence, this case After initial

statement of the complaint the then magistrate took

cognizance and issued process against the accused. After

appearing all the accuseds and examined complaints witness

and cross examine learned court below Sri D. Taya 1st class

judicial magistrate Dibrugarh pleased to frame charge against

the petitioner accused No. 6 along with other accused under

section 167/197/34 Indian penal code holding that prima

facie case was made out against the petitioner.

3. The complainant Miss Rakeja Khatoon has filed the

complaint case against the following accused personas

,namely, (1) Secretary (SEBA), (2) Controller of

Examination, SEBA (both 1 and 2 are the Office of SEBA

Bamunimaida, Gauhati 21, (3) Principal, Bagmibar Nilmoni

Phukan , H.S. School, P.O. Dibrugarh, Dist Diibrugarh, (4)

Mr. Sanjeeb Borddoloi , Ex Principal, BNP H.S.S., R/O .

Durga Singh Path, Chhiring Chapori, P.O. Dibrugarh, Dist.

Dibrugarh, Assam, (5) Mr. Pradeep Dowerah, Ex. Principal

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B.N.P.H.S.S., R/O Ratanpur, P.O. & P.S. Dibrugarh (6) Mr.

Nityananda Gogoi, Head Clerk, B.N.P.H.S.S., P.O. & P.S.

Dibrugarh, District Dibrugarh , Assam.

(4) The petitioner is the head clerk of the then Centre of BNHS

School where the complainant appeared for HSLC Examination. The

petitioner has been arrayed as accused No.6. Being aggrieved by the

order dated 4.07.2014 the complainant prefers this revision No. 35(3)/

14 seeking direction to strike off his name from the list of accused, on

the following grounds.

G R O U N D S

1. For that the learned 1st class judicial magistrate committed grave

error in arriving at a finding that there are sufficient materials to

proceed against the petitioner along with other accused under

section 167/197/34 Indian penal code in as much very

ingredients of under section 167/197/34 are absent in the instant

case.

2. For that learned judicial magistrate failed to appreciated the

questioned documents I.E.H.S.L.C. passed certificate. Admit

card &mark sheet, issued by accused no 1 and 2, court below

which were submitted photocopy by the complainant in case.

3. For that learned court also failed to appreciate the discrepancies

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of complaint petition evidence and documents of the complaint

where in questioned documents Roll R-8 131 no 0318 and paper,

advertisement Roll 131 and no. 0318 claims issued by accused

no.1 and 2 do not tally with the photocopy of mark sheet,

wherein clearly appeared as Roll R-8-131 no. 0318. Further

learned court fails consider that such documents are issued by

accused no. 1and 2 when accused no. 1 and 2 did not issued the

questioned document, given by accused no. 6 petitioner is surely

presumption of the court.

4. For that learned 1st class judicial magistrate failed to make note

the fact that which school complaint appeared in the

examination B.N.P. school was centre of examination as such

complaint must come from certain school, if it was the fact

issued of questioned document by the said school because

whatever the documents issued by the accused no.1 and 2

directly handover the head of the institution or their

representatives as such opinion of the learned court and order

dated 04-07-2014 erred in law.

5. For that learned court below arrived in conclusion that

questioned document was issued in collusion of accused no

3.4.and 6 without verification even there was a photocopy of the

said documents. The learned court in the order reflected in para

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no. 6 “so it was not possible for this court to see wither any such

documents actually exited ” so, learned court merely on

presumption changed against the accused.

6. For that learned court failed to appreciated contention and

evidence wherein complaint claim issued of H.S.L.C. pass

certificate and mark sheet court below discussed about higher

secondary pass certificate from B.N.P. School, thereby learned

court passed the impugned order.

7. For that learned court below failed and overlook the statement

and cross examination of P.W.-1-2 and 3 while passing the

impugned order, not to speak at absence of allegation against the

petitioner in the statement and also there is no whisper in

complain petition against the petitioner/accused.

8. For that learned court below erred in law simply giving undue

weight age to the statement recorded evidence before charge and

as such learned court committed grave error in farming charge

against the petitioner in as much as there is no materials against

the petitioner/accused.

9. For that learned court while passing the impugned order ought to

go through the complain petition, and allegation made against

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the petitioner/accused there is no such serious allegation in the

complaint petition, only allegation against the accused as

accused did not co-operate with the complaint as such impugned

order is liable to be set aside and quashes.

10.For that learned court below came to an erroneous finding

charges against the accused/ petitioner under section 167/197/34

Indian penal code do so has cause serious miscarriage of justice.

11.For that in any view of the matter the impugned order is bad in

law and as such is liable to be set aside.

12.For that petitioner begs to state that the aforesaid case has been

fixed no 04-08-2014 for evidence of the complaint. The

impugned order is illegal and calls for interference by the

Hon’ble court to prevent serious miscarriage of justice and as

such impugned order is liable to be set aside and quash.

(5) Complainant filed this complaint against six accused persons

but the learned trial court discharged accused No. 1 and 2. Being

aggrieved by the order dated 4.7.2014 of framing charge and

discharging accused No. 2 , the Petitioner prefers this revision in

Crl Revision No. 36(3)13 on the following ground.

G R O U N D S

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1. That the impugned order dated 4.7.14 passed by the learned court

below is not maintainable in law and facts and the same is liable to

be set aside.

2. That t5he learned court below could not appreciate the provision

of low and has not evaluated the evidence of witnesses including

the exhibits which were exhibited at the time of adducing the

evidence and also declined to consider the materials on record and

sufficient grounds against the respondent, because authority

concerned was signed in the mark sheet of H.S.L.C. examination

passed in the year 2002 of the petitioner.

To crave leave of the learned court the petitioner has refer the

deposition enquiry under section 200 Cr.P.C. Exhibits. Petition of

the case for appreciation.

3. That the learned court below could not appreciate the provision of

section 167/197/34 IPC. At the time of framing the charge and

arrived at a erroneous conclusion for which the impugned order is

liable to be set aside against the respondent.

To crave leave of the Hon’ble court the petitioner shall refer all

other relevant facts of the case including materials on record at

the time of hearing.

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In this petition petitioner did not pray for the stting thee discharge

order against the accused no.1 though both accused no.1 and 2 stand

on same footing. In this case th petitioner did not specifically

mentioned any name of the accused. The complainant did not make

accuse no.1 and 2 by name but by designation. But the offence can

be by person and as per section 11 of the IPC ‘person’ as defined

in is either a physical person or a body corporate whether registered

or unregistered. Here in this case accused No.1 and 2 are authority by

designation. Had the complainant mentioned any name of physical

person holding the designation of accused no.1 and 2 the case would

have been different. Mens rea and actus rea are two vital elements of

the criminal jurisprudence, in this case the accused No. 1 and 2 can not

be fastened for any of the elements. Hence, this petition is not

maintainable.

(6) Being aggrieved by the order dated 4.7.2014 of framing

charge against accused No. 5, the Petitioner prefers this revision in

Crl Revision No. 37(3)14 on the following ground.

G R O U N D S

i) For that the order is bad in law.

ii) For that the revision petitioner was never involved in respect

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of the issue of H.S.L.C. passé certificate of the opposite party

viz. Rakeja Khatoon vide her Roll 131No 0318.

iii) For that the revision petitioner has only issued pass certificate

of Rajeka Khatoon in respect of H.S.S.L.C. Examination.

iv) For that there is no allegation or dispute of Rajeka Khatoon

in respect of the pass certificate of H.S.S.L.C. which has been

issued by the revision petitioner Sri Pradip Dewrah as

principal of Bagmibor Nilmoni Phukan Higher Secondary

School.

v) For that the H..S.L.C. pass certificate having been issued by

other is no0 involvement of the revision petitioner, as such

the charge u/s 167,197 and 34 IPC. Ought not to have been

framed against the revision petitioner.

vi) For that the reason state above the framing of charge against

t5he revision petitioner ought not to have been framed and is

liable to be set aside.

( 7 ) Being aggrieved by the order dated 4.7.2014 of framing

charge and discharging accused No. 3 , the Petitioner prefers this

revision in Crl Revision No. 42 (3)14 on the following ground.

G R O U N D S

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1. For that the order dated 4-7-14 vide which the Id trail court

frame charge against the accused no. 3 is incorrect on the face of

it and is therefore liable it be set aside.

2. For that the Id trail court vary perfunctorily framed charge

against the accused no 3 without considering the fact that no

criminal case can be filed against the post of principal

simpliciter.

3. For that the Id trail court failed to apply his mind to the fact that

there was no allegation as-well-as material against the present

petitioner warranting framing of charge against it.

4. For that the Id trail court made serious illegality by failing to

consider that there was no prim facie case made out by the

complaint against the petitioner warranting framing of charge

against the petitioner.

5. For that the Id trail court failed to consider the fact that from the

complaint it was clear that there was not even an iota of material

against the accused no 3 to the effect that they committed the

offences under the section mentioned in the complaint

warranting the framing of charge furthermore, it was only at the

time of recording of her evidence that the complaint took the

name of the petitioner for the first time.

6. For that the Id trail court failed to consider the fact that in the

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evidence of the complaint and her witness it is clear that no

evidence was given to the facts that he either manufactured or

prepared the documents in question.

7. For that the Id trail court failed consider the fact the from the

complaint that as well as from the evidence of the complaint the

alleged documents were not issued by the petitioner as he was

not the petitioner was no there in the capacity of the principal at

all at the reli8vent time.

8. For that the Id trail court failed to understand the fact that the

present case is not a case of civil nature. This being the position

there is no ground to join the principal as a party to the case.

9. For that the Id trail court was incorrect in stating that there was

sufficient ground to presume that the accused no 3 committed

the offence u/s 167/197/34IPC.

10. For that the id trail court failed to consider the only allegation

made against the petitioner to the effect that he did not answer to

the question sent to him under the provision of RTI. Without

admitting to the allegation made in the complaint the petitioner

submits that he may be liable under the provisions of different

act but not under the provision of sections 161/197/34 IPC.

11.For that in any view of the matter the impugned order is

incorrect and there are sufficient grounds to show its illegality

and its impropriety as completed under section 397 CrPC.

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12.For that in any view of the matter stated above, the framing of

charge against the accused no. 3 nothing but abuse of process of

law.

(8) Learned court below discharged accused No.1, the Secretary of

the Board of Secondary Education, Assam and Accused No.2 , the

controller of Examination of SEBA, Assam and framed charged

against the accused No. 3 to accused No.6.

But from the perusal of the complainant petition it is found that entire

cause of action arose in the Board of Secondary Education, Assam.

(9) In the instant case , the complainant herself stating that the

certificate and admit card is genuine. Complainant has submitted mark

sheet and testimonial issued from the school is found genuine.

Logically, her admit card and mark sheet should be genuine. Moreover,

the complainant passed HSLC in the year, 2002, thereafter she passed

HSSLC from Assam Higher Secondary Education Council and B.A

from Dibrugarh University. During these years none raised any

objection regarding her passing of HSLC Examination. The objection

raised only on when she applied for duplicate copy of Admit Card and

Certificate of her HSLC Examination.

(10) Moreover, the SEBA authority has neither declared her

failed in HSLC Examination nor has given any notice to the

complainant as to why her Admit Card and HSLC passed Certificate

cancelled/ impounded. the complaint after losing her HSLC Admit

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Card and Certificate has lodged FIR, published in the News Paper and

duly deposited requisite amount fees for obtaining duplicate Admit

card and Certificate. Hence, the SEBA authority declined to issue

duplicate Admit Card and Certificate the complainant might have

resort to writ jurisdiction seeking direction to issue duplicate Admit

Card and Certificate. Further , the complainant could have approach to

civil court seeking declaration that her Admit Card and Certificate is

valid.

(11) Complainant is still claiming that her HSLC Admit Card

and Certificate is not forged one but genuine. Since, she is claming

that her HSLC Admit Card and Certificate is genuine, criminal liability

can not be fastened against any of the accused persons.

(12) To fasten the accused persons the complainant has to prove

that her HSLC Admit and Certificate is not genuine : It is a

precondition as per section 104 of the Indian Evidence Act, 1872. The

relevant portion of section 104 of the evidence is reproduced below for

ready reference.

“ INDIAN EVIDENCE ACT, 1872

Section 104 - Burden of proving fact to be proved to makeevidence admissible

The burden of proving any fact necessary to be proved in order toenable any person to give evidence of any other fact is on theperson who wishes to give such evidence.

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Illustrations

(a) A wishes to prove a dying declaration by B. A mustprove B's death.

(b) A wishes to prove, by secondary evidence, the contents of alost document.

A must prove that the document has been lost.”

(13) In the instant case charge was framed U/s 167 and 197 IPC but

no charge was framed against the accused person 465 IPC. On the

other hand HSLC Admit card and Certificate is prepared in SEBA. To

impute criminal liability, the complainant must specify a name of a

physical person who is behind the preparation of alleged incorrect

document. The complainant made the accused the secretary and the

controller by designation and not by name. Hence, accused No.1 and 2

are authority and not person as defined in Sections 2 and 11 IPC. The

accused No.1 and 2 are not incorporated company, association or body

of persons. Moreover, here in this case complainant is the beneficiary

of the alleged incorrect document. It can not be said that the alleged

incorrect document is made without the connivance of the

complainant. Possibility of printing mistake in the Roll No. of the

complainant and Ms Rashmi Pandy can not be rule out.

Considering all, it is found that the unless the SEBA takes concrete

stand regarding the alleged document of HSLC Admit Card and

Certificate and Roll Nos of both the complainant and Ms Rashmi

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Pandy, no criminal liability can be fasted against any of the accused

persons. The complaint case is in premature stage.

(14) In M/s Indian Oil Corporation –vs- M/s NEPC India Ltd and

Others AIR 2006 SC 2780= (2006) 6 SCC 736 Hon’ble Supreme

Court has nice delineated the trend of giving civil case as a criminal

cloak. The relevant paragraph is reproduced below:

“10.While on this issue, it is necessary to take notice of a

growing tendency in business circles to convert purely civil

disputes into criminal cases. This is obviously on account of

a prevalent impression that civil law remedies are time

consuming and do not adequately protect the interests of

lenders/creditors. Such a tendency is seen in several family

disputes also, leading to irretrievable break down of

marriages/families. There is also an impression that if a

person could somehow be entangled in a criminal

prosecution, there is a likelihood of imminent settlement.

Any effort to settle civil disputes and claims, which do not

involve any criminal offence, by applying pressure though

criminal prosecution should be deprecated and discouraged.

In G. Sagar Suri vs. State of U.P. [(2000) 2 SCC 636], this

Court observed:

“It is to be seen if a matter, which is essentially of

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civil nature, has been given a cloak of criminal

offence. Criminal proceedings are not a short cut

of other remedies available in law. Before issuing

process a criminal court has to exercise a great

deal of caution. For the accused it is a serious

matter. This Court has laid certain principles on

the basis of which High Court is to exercise its

jurisdiction under Section 482 of the Code.

Jurisdiction under this Section has to be exercised

to prevent abuse of the process of any court or

otherwise to secure the ends of justice.”

While no one with a legitimate cause or grievance

should be prevented from seeking remedies

available in criminal law, a complainant who

initiates or persists with a prosecution, being fully

aware that the criminal proceedings are

unwarranted and his remedy lies only in civil law,

should himself be made accountable, at the end of

such misconceived criminal proceedings, in

accordance with law. One positive step that can be

taken by the courts, to curb unnecessary

prosecutions and harassment of innocent parties,

is to exercise their power under section 250 Cr.P.C.

more frequently, where they discern malice or

frivolousness or ulterior motives on the part of the

complainant. Be that as it may.

The complainant ought to have invoke writ or civil jurisdiction before

approaching criminal court. It is fashion to invoke criminal

jurisdiction to get the works done under pressure though the remedy

lies in other jurisdictions.

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(15) Considering all this court is of the opinion that the Criminal

Revision No. 36(3)/2013 is dismissed. Criminal Revision No.

35(3)/2013, 37(3)/14 and 47(3)/14 are allowed. Impugned order

dated 4.7.2014 passed by the court below is set aside.

The complainant may invoke writ jurisdiction seeking direction to

issued HSLC Admit Card and Certificate and/or Civil Court seeking

declaration that her HSLC Admit Card and Certificate is genuine if so

advised.

All the revision petitioners are disposed of on contest.

Send back the LCR along the copy of this judgment and order

Judgment is delivered in the open court,

Given under my hand and seal of this court on this 2nd day of

January’2015

(A.B.SIDDIQUE) ADDL SESSIONS JUDGE, Dibrugarh

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IN THE COURT OF THE ADDITIONAL SESSIONS JUDGE

AT DIBRUGARH.

Crl. Rev. Case No 35(3)14.

Crl. Rev. Case No 36(3)14.

Crl. Rev. Case No 37(3)14.

Crl. Rev. Case No 42(3)14.

O R D E R

02.01. 2014

Both sides are represented .

Hared arguments of all the parties.

Judgment is delivered in the open court. . Judgment is

written in separate sheets and is kept as a part of the record

as apart of the proceeding.

Considering all this court is of the opinion that the

Criminal Revision No. 36(3)/2013 is dismissed. Criminal

Revision No. 35(3)/2013, 37(3)/14 and 47(3)/14 are

allowed. Impugned order dated 4.7.2014 passed by the

court below is set aside.

The complainant may invoke writ jurisdiction seeking

direction to issued HSLC Admit Card and Certificate

and/or Civil Court seeking declaration that her HSLC Admit

Card and Certificate is genuine if so advised.

All the revision petitioners are disposed of on contest.

Send back the LCR along the copy of this judgment and

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order.

Addl Sessions Judge, Dibrugarh