Uttarakhand High Court
Naveen Chand Pathak vs State Of Uttarakhand And Another on 4 August, 2023
Author: Sharad Kumar Sharma
Bench: Sharad Kumar Sharma
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 956 of 2014
Naveen Chand Pathak .....Applicant.
Versus
State of Uttarakhand and another .... Respondents
With
Criminal Misc. Application No. 955 of 2014
Jagdish Chandra Pathak .....Applicant.
Versus
State of Uttarakhand and another .... Respondents
Present :
Mr. Parikshit Saini, Advocate, for the applicant.
Mrs. Mamta Joshi, Brief Holder, for the State of Uttarakhand.
Mr. R.S. Sammal, Advocate, for the respondent No.2.
JUDGMENT
Hon'ble Sharad Kumar Sharma, J.
The facts in both these C-482 Applications are almost similar except for the few arguments extended by the learned counsel for the applicant. Hence, they are being decided together.
2. The facts as involved herein are, that there is an institution being managed under the name of Adarsh Higher Secondary School, Sanjay Nagar, Bindukhata, District Nainital, which is an institution, which was at that relevant point of time was running as a recognized institution prior to it being brought into grant-in-aid. It is not in dispute between the parties that the said institution was run and managed by the elected committee of management.
3. In the institution, in question, certain vacancies occurred for the post of Assistant Teacher, i.e., Teacher 2 (General) and Teacher (Maths / Science). The management of the institution could not have independently proceeded to resort to the process of selection; except with the prior approval from District Basic Education Officer. Hence, after taking a prior approval, which was accorded on 19th April, 1999, the process of selection was put into motion by issuance of an advertisement on 30th April, 1999, for making recruitment on the post of Assistant Teachers and an advertisement to the said effect was published in Danik Jagran on 30th April, 1999. As against the total posts, which were advertised, the Maths and Science Teacher posts were reserved and the post of Teacher (General) was unreserved, for which, we would not be concerned in the present C-482 Applications.
4. In pursuance to the advertisement of 30th April, 1999, the same was not responded by any candidate, thus the Committee of the Management took a second permission from the District Basic Education Officer, which was granted by the letter dated 7th January, 2000, and once again, an advertisement was issued for holding the selection process as against the posts, which were covered by the advertisement of 30th April, 1999, and a permission to the said effect was granted by the District Basic Education Officer on 13th January, 2000. Consequentially, an advertisement of 20th January, 2000, was issued and the process of selection was put to motion, and its at this stage, the controversy started emerging, which requires subsequent consideration in the instant C-482 Applications.
35. As against the process of recruitment against the two reserved categories for the Assistant Teacher (General ) and Assistant Teacher (Science and Maths), the applicant contends that he appeared in the selection process and was interviewed on 4th February, 2000. He contends that two teachers were selected by the Committee constituted and accordingly, the name of the applicant and one Mr. Rajendra Kumar Tamta was sent for an approval to the District Basic Education Officer.
6. It is contended by the applicant, that the District Basic Education Officer, had consequently granted his approval for the aforesaid appointment by a correspondence as said to be made by his office, being letter No. 2859- 96/2000/2001, dated 02.02.2001, by virtue of which, the case of the applicant is, that once the District Basic Education Officer has granted an approval for appointment of both the teachers, namely Rajendra Kumar Tamta and Naveen Chandra Pathak, i.e. the applicant herein, it cannot be said that the aforesaid letter of approval of appointment issued by the District Basic Education Officer, was a fraudulent document on the basis of which the applicant has procured his appointment, which it could be said that could have necessitated the initiation of the proceedings by way of registration of FIR, being FIR No. 50 of 2013, dated 17th April, 2013, as registered by respondent No.2 /complainant, for the offence under Sections 420, 465, 467, 468 and 471 of the IPC.
47. Consequently, the allegation levelled in the FIR almost could be summarized, that it was contended by the complainant, that the applicant has obtained the recruitment on the basis of the fraudulent letter of approval which was placed before the Principle, which is said to have been issued by the District Basic Education Officer, though in fact, later on, based on evidence, it was found that in fact no such approval was ever granted by the District Basic Education Officer, for recruitment of the Teachers, and particularly that of the present applicants.
8. It is at this stage, that learned counsel for the applicant submits that the allegation levelled in the FIR, qua the approval granted by the District Basic Education Officer for appointment in pursuance to the response given by the candidates on the basis of the second advertisement, the allegation, which was foundationed was based on the letter dated 2895-96/2000-2001 dated 02.02.2001, the theory of allegation levelled in the FIR, that the applicant has procured the appointment after placement of the fraudulent documents, cannot be believed with because it was argued once, it was common letter issued by the District Basic Education Officer, if it was a fraudulent letter, it would be fraudulent letter qua both the applicants, that cannot be spilited over to be read as a fraudulent document for the purposes of questioning the conduct of the applicants and the Principle, who has granted the appointment to the present applicants based upon the so called fraudulent approval of the District Basic Education Officer.
59. Consequently, the matter was investigated upon and the chargesheet No. 16 of 2014, was submitted by the Investigating Officer on 24.04.2014, observing thereof, after recording the statement, which included the present applicants, that the very basis of appointment of the present applicants on the basis of letter of the approval by the District Basic Education Officer, was fraudulent and consequentially, the summoning order was issued by the Court of Judicial Magistrate Haldwani, District Nainital, on 25th April, 2014, and thus under the aforesaid backdrop, the instant C-482 Application has been preferred for the following reliefs :-
"It is therefore most respectfully prayed that this Hon'ble Court may graciously be pleased to quash / set aside the further proceeding of criminal case no.1047 of 2014 under Section 420, 465, 467, 468 and 471 of the IPC State Vs. Naveen Chandra Pathak pending in the Court of 1st Additional Civil Judge (Junior Division) / Judicial Magistrate, Haldwani, District - Nainital to meet the ends of justice or pass such other or further order which this Hon'ble Court may deem fit and proper in the circumstances of the case."
10. The question raised by the counsel for the applicant, are from three perspectives : -
11. Firstly, he submits that the prosecution case about the procurement of the fraudulent document of approval from the District Basic Education Officer, cannot be isolatedly read only as against the present applicants while holding the appointment of another teacher as to be a valid, which he contends, is too based on the same letter of approval granted by the District Basic Education Officer.
612. The issue would be as to whether the jurisdiction under 482 of the Cr.P.C., could at all be a forum available to the applicant to justify his appointment to be valid, based upon the aforesaid letter, which is apparently said by the Management and District Basic Education Officer, in his statement as recorded, that no such letter of grant of an approval of appointment of the present applicant was ever issued from their office, based on which, the Principle, who is an applicant in the connected C-482 Application No. 955 of 2014, was ever issued by the Office of the District Basic Education Officer. Rather in his statement, which was recorded, the then District Basic Education Officer, he has made a specific statement, that the letter No. 2895-96/2000- 01 dated 2.2.2001, was specifically confined to and was in relation to the Rajendra Kumar Tamta, and he has made as statement, that apart from Mr. Rajendra Kumar Tamta, he had never approved the appointment of any other Teacher and thus, under what circumstances the letter appended to the C-482 Application by the applicant contending thereof that it was a joint approval granted by the District Basic Education Officer, which was placed before the Principle, and which has been taken as to be the basis for appointment of the present applicant, would be a subject matter which is to be decided by the Trial Court on its own merit, whether the said document, which was presented by the Principle was in fact a letter dated 2.2.2001, as it was specifically issued by District Basic Education Officer, only in relation to one of the Teachers, i.e., Mr. Rajendra Kumar Tamta. Particularly the statement which has been made by the Joint Director, Education, he submitted that when the aforesaid aspect was 7 brought to his knowledge, he found that the letter in relation to the two posts was a letter No. 2895, on which, the reference has been made by the applicant, but upon scrutiny of the records, it was contended that the approval which was actually granted, was by virtue of the communication dated 2895-96/2000-21 dated 02.02.2021, and it was specifically stated that the approval was specifically granted in relation to the appointment of Rajendra Kumar Tamta, and no approval as such, was granted to the present applicant and it was observed, that the letter thus produced before the Principle was carrying a fraudulent signature of then Basic Education Officer, namely, Mr. Diwan Singh Rawat.
13. Hence, the appointment of the present applicant was held to be fraudulent, and consequently, his services were terminated, which is now subject matter of Writ Petition, and ultimately on its dismissal in a Special Appeal.
14. The argument extended by the learned counsel for the applicant under the jurisdiction under Section 482 Cr.P.C., in order to make out his case, based upon an scrutinization of letter of approval granted by the District Basic Education Officer, where he tries to spilit his interpretation, that it cannot be presumed that when two appointments were made by the same letter, one appointment cannot be held to be fraudulent. Once this aspect has been denied by the Joint Director, Basic Education, that it was a fraudulent letter of the District Basic Education Officer, which was then issued, then the aspect falls for determination 8 to be considered by the Trial Court and not by the jurisdiction under Section 482 of the Cr.P.C.
15. As the respective evidences are required to be tested pertaining to the letter issued by the District Basic Education Officer, as to which was the actual letter presented before the Principle, whose connivance was shown to be apparent because of his involvement in granting the appointment to the applicant, who too, has been prosecuted for the aforesaid offences by drawing of the criminal proceedings, which is subject matter of C-482 Application No. 794 of 2018.
16. The argument of the learned counsel for the applicant, lastly was from the perspective, that the offences, for which, the cognizance have been taken particularly in the context of the provisions contained under Sections 465 and 467 of the IPC, that as to whether, under the aforesaid circumstances, there could at all be a forgery pertaining to a valuable security and the appointment which was obtained, based upon the fraudulent approval granted by the District Basic Education Officer, could be termed as to be a valuable security to attract the provisions contained under Section 467 of the IPC.
17. Literally, the meaning of valuable security is taken into consideration, it cannot be invariably taken into consideration only to determine a creation of an actual financial right in relation to an allegation levelled in the FIR. Valuable security, herein, would also denote to be when a 9 person derives a benefit, which entails an accruing of a capital right to him to bring an offence under Section 467 of the IPC. Thus the distinction attempted to be carved out, whether issuance of the appointment letter in connivance of the Principle on the basis of a fraudulent letter of Basic Education Officer, it amounts to be a valuable security or not, is a misnomer, because any document, which is used for accrual of a right in favour of an accused person, which is later on found to be fraudulent, will fall to be within the definition of valuable security because of the accrual of financial rights in his favour based upon the fraudulent document.
18. The counsel for the applicant has argued that the offence under Section 465 of the IPC too would not be made out as against the present applicant, and thus the same has been wrongly attracted.
19. In fact, the context in which Section 465 of the IPC has been read by the applicant was only from the view point because Section 465 IPC in itself is not a substantive provision. It is only a penal provision for the purposes of imposition of a sentence in relation to the offence which is determined to be a forgery, in the light of the forgery as described and provided under Section 463 of the IPC. Hence, the reference and determination of Section 465 of the IPC, is not to be read in its independent implication.
20. The penal Section 465 has to be read with Section 463 of the IPC, which relates to forgery and the said principal is the substantive provision relates to a production of a 10 fraudulent document, which has been manufactured by any electronic media or "otherwise", which intends to "cause damage or to claim a right by a person". Since here, the claim of right is based upon a fraudulent document, as stated by the Deputy Director, Basic Education, it will be a forgery committed by the applicant in connivance with the Principle, thus, once the element of Section 463 of the IPC is apparently made out, consequently, the penal Section 465 of the IPC is bound to be attracted.
21. Ultimately, owing to the aforesaid backdrop, since the issue entails a consideration of a voluminous evidence in order to make out an offence or to prove an innocence, it requires a detailed deliberation by the Trial Court. Thus, this Court is of the view, that the issue agitated in these two C-482 Applications, will not fall to be within the domain of Section 482 of the Cr.P.C., as this Court in the exercise of said powers, granted under Section 482 of the Cr.P.C., is not required to appreciate the evidence and to record its finding for the purposes of establishment or non establishment of the offence, which has been complained of, because that would be exclusively falling within the domain of Trial Court to be arrived at upon appreciation of evidence, which may not be a scope of interference under Section 482 of the Cr.P.C.
22. Thus, the C-482 Applications are failed and the same are accordingly dismissed.
(Sharad Kumar Sharma, J.) 04.08.2023 Shiv