Calcutta High Court
Hemendra Nath Chakraborty vs State Of West Bengal And Ors. on 13 April, 1989
Equivalent citations: (1989)2CALLT93(HC)
JUDGMENT B.P. Banerjee, J.
1. This writ petition was filed by the petitioner for quashing the First Information Report which was filed against the petitioner alleging offence Under Section 419/468/471 of the Indian Penal Code on the basis of which a criminal case has been started.
2. The case of the petitioner is that the petitioner passed Matriculation Examination from the District of Moimansing under Dacca Board now in Bangladesh in the year 1948 and came to India as refugee after partition in the year 1947 and got himself admitted in Intermediate Science Class, in Charu Chandra College, Calcutta. It is stated that at the time of his entry in the college, the petitioner did not get his original Matriculation Certificate from Dacca Board but on production of the school leaving certificate issued by the Director of the Schools, the petitioner was allowed to be admitted in College. While the petitioner was a student of Second year of Intermediate Science Class, the petitioner applied for the recruitment in the Indian Airforce and ultimately the petitioner was selected and joined in the Airforce sometime on August 1949. The petitioner served the Indian Airforce for more than 17 years on different places in different ranks and on 24th July 1967, the petitioner was demobilised from Indian Airforce while he was working as Sergeant though his substantive rank at the time of demobilisation was corporal. The petitioner availed of the leave accrued to him before his retirement and after availing of the leave the petitioner was demobilised on and from 19th November 1967. In 1976 the petitioner came to know that the posts of Security Officer-cum-Caretaker in the Rabindra Bharati University were vacant and would billed up. The petitioner applied for the said post and ultimately the petitioner was. interviewed by the Vice-Chancellor of the Rabindra Bharati University and the petitioner was selected, in the said post. On being selected for the post of Security Officer-cum-Caretaker of Rabindra Bharati University, the petitioner joined in the said post on 3rd February 1976 on ad hoc basis for a period of six months. On 2nd June 1976 on behalf of the Rabindra Bha rati University an advertisement was published in the Statesman and Amrita Bazar Patrika inviting applications for the post of Security Officer-cum-Caretaker. The petitioner who was already working in the said post made an application pursuant to the said advertisement and the petitioner was interviewed by the Selection Committee consisting of the then Vice-Chan cellor Vidyasagar University, Registrar of the Calcutta University, Registrar of Burdwan University, Registrar of Jadavpur University and the then Registrar of Rabindra Bharati University and the petitioner was selected by the said Selected Committee and that after selection the petitioner was appointed on probation for one year in the said post and after successful completion of probation period the petitioner was confirmed in the said post on 18th August 1977. It is stated that for some unknown reasons the Government of West Bengal held an enquiry into the affairs of Rabindra Bharati University and Dr. P. K. Chowdhury, the then Deputy Director to the Public Instruction (NGC) made inspection and submitted a report. During inspection the said Dr. P. K. Chowdhury interviewed amongst other, the petitioner, and wanted to know the particulars of the service under the Indian Airforce as also the date of birth. It is stated by the petitioner that at the time when the application for the post of Security Officer-cum-Caretaker was made, the petitioner had not with him School Leaving Certificate and from his memory he mentioned above his date of birth and that on 29th August 1987 some police men visited the petitioner's residence at about 3 p.m. in plain cloths and asked the petitioner to produce discharge certificate from the Indian Airforce and other papers. The petitioner produced the Certificate and other documents as asked by the police officials which were seized under the seizure list and requested the petitioner to accompany them to Lalbazar Police Head Office Quarters. At Lal Bazar Police Head Quarters it was disclosed by the petitioner that a complaint has been lodged by Dr. A. K. Chatterjee, I.A.S. Secretary Department of Higher Education against the petitioner Under Section 419/468/471 of the Indian Penal Code and on the basis of the said complaint a police case being Section (E) Case No. LD367, dated 18.8.87 was started against the petitioner and that the petitioner was placed under arrest in connection with the said case on the date and ultimately the petitioner was released on bail on 4.9.87. On 14th September, 1987 the petitioner served with a letter of suspension from the service of the said University on the ground that the petitioner was detained for a period exceeding 48 hours. In the First Information Report it was alleged that the discharge Certificate from the Indian Airforce which was produced by the petitioner was tampered and false for the following reasons:
"(i) The word 'Corporal' has been crossed out and 'Sergeant' typed without any initial of Issuing Officer.
(ii) There are erasing marks in at least two places. The word 'SGT' meaning Sergeant and the number 17 in length of service appear to have been typed after such erasures.
(iii) The date of issue of the Certificate is 24.07.67 while it certifies that Sri Chakraborty was discharged on 19.11.67. The inconsistency is obvious. The service particulars of Sri Chakraborty as obtained from Air Force Record Officer, New Delhi-110010 vide their Letter No. RO/2908/NERT(Tel), dated 13.03.86 mentions him as CORPORAL but shows his rank as SGT for the period 02.05.67 to 19.11.67. The last pay Certificate furnished by Air Force Officer Commanding (Letter No. CAO/1030/204997 NEAS/Fix/Pt. 139A, dated May, 1986) mentions his rank as CPL and his last pay on 19.11.67 as Rs. 293.00 including allowances, in the scale of Rs. 170-5-180.
The further charge was with regard to the date of birth of the petitioner. It was stated in the said complaint that the petitioner had stated the date of birth as per Affidavit filed by his father as 1.10.31 and on the contrary, in the application made before the University the petitioner had stated the date of birth to be 1.10.32 and again the petitioner has stated before the Selection Committee that his date of birth was 1st September 1932 and on that basis it was held in the First Information Report that-
We, therefore, could not ascertain the date of birth of Sri Chakraborty. It is clear, however, that Sri Chakraborty has made false statements regarding his date of birth."
3. Mr. S. P. Talukdar, learned Advocate appearing on behalf of the petitioner contended that the First Information Report contained false and frivolous allegations made with some ulterior motive and the whole purpose of the false and frivolous allegation with ulterior motive was to harass the petitioner and keep the petitioner under suspension. It was stated that there was no interpolation whatsoever in the discharge Certificate produced by the petitioner. In the discharge Certificate it was alleged that the word 'Corporal' changed by the word 'Sergeant'. This discharge Certificate was issued by 24th July 1967 by Sri M. Ghosh, FG Officer commanding and that in order to establish in the said document that there was no interpolation in the said document, the petitioner made representation before the Zila Sainik Board, Calcutta, Defence Department, Government of West Bengal and that the Secretary of the said Sainik Board by the Letter, dated 10th January 1988 informed the Vice-Chancellor of the Rabindra Bharati University that-
"It was represented by Sri H. N. Chakraborty (No. 204997 Ex-Corporal) (Acting Sergeant) that a case was registered against him for producing a tampered/forged discharge Certificate. His rank and the date of issue of the discharge Certificate on 24th July 1967 was also stated to have been suspected by you.
In this connection it is pointed out that on receipt of the representation from the above individual, the matter was reported to the Air Force Record Office who is the Competent Authority in this particular case. Unfortunately this has not been followed in the instant case resulting in harassment of an individual and causing damage to his reputation. The Air Force Record Office has confirmed and issued a Certificate of genuineness of the claim of the individual. Therefore, issue of warrant of arrest and keeping a dignified citizen in the police custody for 5 days, without enquiring the genuineness of the allegation, seems to be unjust.
4. It is also seen that the individual was appointed on 3rd February 1986 as Security Officer-cum-Caretaker and was confirmed on 14th August 1977 in the present post which he held upto the date of arrest and subsequently suspended him w.e.f. 29th August 1987. It is not clear as to how the case came to your notice after 11 years of service of an individual in such an Organisation as yours. It is, therefore, tantamount to harassment of an individual in particular and ex-servicemen in general and calling a genuine document as forged, humiliates the Issuing Authority.
5. Sri H. N. Chakraborty was discharged on fulfilling the conditions of his enrolment on completion of 17 years and 101 days of service in the rank of Corporal and was Acting Sergeant at the time of his discharge. As per orders of the Government then in force, an individual was to serve for a period of minimum of two years in that particular rank in order to enable him to earn his pension of that rank the individual does not fall in that category, but his rank as Acting Sergeant can be written/used for all purposes without getting pensionary benefits of that rank.
6. As regards issue of discharge Certificate on 24th July 1967 it is again pointed out that the individual was granted 120 days Annual Leave pending Retirement w.e.f. 23rd July 1967 to 19th November 1967 and as such the date of issue of discharge Certificate was correctly mentioned by 20 Signal Unit, Air Force as 24th July 1967.
7. The word 'Corporal' was crossed out by the Issuing Authority and has not signed/initialled by the Issuing Officer but the word 'SGT' is clearly written after the word Rank in the discharge Certificate and as such, there should not have been any doubt about the rank of an individual after 11 years of service in your University.
8. The Copy of the reply received from the AIR Force Record Office is held by this Office and can be verified by any of your1 Officers duly authorised by you.
9. Copy of the said letter was also forwarded to the Director Recruitment East Zone, Head Quarters Eastern Command with request to take up the case with the Authorities concerned so that an ex-service man is not harassed with mala fide intention.
10. Mr. Talukdar further submitted that this document conclusively proved that the allegation regarding interpolation in the discharge Certificate was false, frivolous and designedly made, and as such it was submitted that the case against the petitioner Under Section 468 and 471 of the Indian Penal Code was not maintainable at all.
Section 468 of the Indian Penal Code provides that-"Whoever commits forgery, intending that the documents forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 471 of the Indian Penal Code provides that-"Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document."
11. According to Mr. Talukdar there could not be any case against the petitioner Under Section 468 and 471 of the Indian Penal Code, in as much as, there was no forgery was made by the petitioner and secondly, there was no question of cheating the Authorities concerned on the basis of the said document. With regard to the allegation regarding the offence Under Section 419 of the Indian Penal Code, it was alleged in the First Information Report that the Affidavit filed by the father of the petitioner indicated one date of birth which was 1.10.31 whereas the petitioner had declared his date of birth as on 1.10.32 in his application for initial appointment in the year 1976 and 1.9.32 as per statement before the Selection Committee made on 4.8.76.
12. The petitioner's case is that the petitioner could not get his Original Matriculation Certificate due to partition of India which was accompanied by strained relationship between two countries, India and Pakistan and in spite of best efforts the petitioner could not get a Duplicate Certificate from the Eastern Pakistan and accordingly, the petitioner got his date of birth from the Affidavit filed by his father and it was stated that the petitioner's date of birth was on the basis of the Certificate issued by the Head Master of School showing his date of birth. The petitioner submitted an application before the Rabindra Bharati University for making necessary correction of his age of the service record.
13. The allegation of the petitioner was that the petitioner made false statement regarding his date of birth. There might have been some discrepancy in the date of birth and Mr. Talukdar submitted discrepancy in the date of birth did not and could not attract the provision of Section 419 of the Indian Penal Code which provides that-
"Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both."
14. It was submitted that the question of cheating the University did not and could not arise by the discrepancy if any, in the date of birth. The petitioner has some explanation in this matter but it is submitted that on the face of it the provisions of Section 419 could not be invoked or attracted even if the case where there is an admitted discrepancy in the date of birth, inasmuch as, necessary ingredients of Section 419 was wholly absent in the instant case.
15. Mr. Samaraditya Pal, Learned Advocate appearing on behalf of the University, submitted that the writ Court should not interfere with this matter, inasmuch as, this defence of the petitioner could effectively take these grounds in the Criminal Case and if the petitioner could satisfy the Court that the said document was genuine one and there was no forgery, the petitioner would be exonerated from the charge of forgery and secondly, it was submitted that similarly when the petitioner had alleged to have been committed offence Under Section 419 of the Indian Penal Code, the same should be allowed to be decided by the Criminal Court and not by the Writ Court.
16. Let me deal with the allegation regarding commission of offence Under Section 419 of the Indian Penal Code where the petitioner by making statement indicated some discrepancies in the date of birth. Section 419 of the Indian Penal Code provides punishment for the offence described in Section 416 of the Indian Penal Code.
17. Section 416 of the Indian Penal Code provides that-
"A person is said to 'cheat by personation' if he cheats by pretending to be some other person or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is."
Necessary ingredients of Section 416 of the Indian Penal Code are that-
(a) Pretention by a person to be some other person.
(b) Knowingly substituting one person fox another.
(c) Representation that the person representing or any other person is a person other than he or such other person really is.
18. The question is whether there is any case against the petitioner for cheating by personation. Cheating is defined Under Section 415 of the Indian Penal Code which provides that-
"Whoever by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything, which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to 'cheat'.
19. The definition of cheating contains two parts. First comes the main part "whoever, by deceiving any person......"words which obviously apply to the whole section. Then comes the first part "fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property". Then comes second part which is an alternative to sub-part 1. The person means to pretent to be a particular person or in other words, if A represents as B, then it is a case of cheating by personation, when by such representation he deceives other for some unlawful gain. Such impersonation may arise by appearing at examination by false representation or cast vote in the election by false representation, etc. There may be case of false personation by obtaining a job by production of Certificate of a third party. It is a matter of common knowledge that the Government Employees while entering into service, give one date of birth but ultimately on production of the Matriculation Certificate or School Leaving Certificate the date of birth is found to be different. In such case, if the Authority was satisfied that it was a case of bona fide mistake in that event, such mistake is allowed to be corrected. Sometimes the Authorities concerned may refuse to correct. In my view, the discrepancy in the date of birth does not and cannot per se comes within the mischief of Section 416 read with Section 419 of the Indian Penal Code. It is an admitted position that the petitioner was the real man. But the question is whether by giving one date in the application and stating the another date of birth before the Selection Committee, the petitioner had committed an offence Under Section 419 of the Indian Penal Code. It does not require any further scrutiny or exercise of any skill to hold that such discrepancy in the date of birth does not come under the preview of Section 419 read with Section 415 of the Indian Penal Code. The allegation in this regard against the petitioner even assuming was correct, the same does not come within the mischief of Section 419 of the Indian Penal Code.
20. It is a principle of legal policy that a person should not be penalised except under a clear law. The Court when considering in relation to the facts of the case which of the opposing construction of enactment would give effect to the legislative intention should presume that the legislature intended to observe this principle. It should, therefore, strive to avoid adopting a construction which penalise a person where the legislative intention is so doubtful or penalise him in a way which was not made clear. (See para 129 at page 302 of Francies Bennion's Statutory Interpretation).
21. In the instant case, there is no case of cheating by personation and further the word 'cheating' has been defined in the Court. Cheating by personation has also been defined in the Court. By any stretch of imagination it cannot be said that the petitioner had committed cheating or cheating by personation in the facts and circumstances of the case. Necessary ingredients of cheating and cheating by personation are wholly absent in the instant case. In my view, a person could not be said to have committed offence cheating by personation merely he has made a wrong declaration of his age. It is well within the power of the employer to correct the date of birth on the basis of Matriculation Certificate and the School Leaving Certificate and/or documents on records. But in the instant case, the petitioner is a refugee from Eastern Pakistan who had passed from Dacca Board and that after partition being a refugee the petitioner had come: for shelter in India and under such circumstances, it would be travesty of justice and it would be against all principles of fair play if in the facts and circumstances of the case it is held that such discrepancy amounts to an offence punishable under the law. The Court cannot and should not take matters like this so lightly. Simply by saying the petitioner was guilty of cheating or cheating by personation, will not make the same. Accordingly, in my view, there was no case against the petitioner Under Section 419 of the Indian Penal Code.
22. With regard to the allegations regarding forgery, the petitioner annexed a copy of the letter from the Board which shows that the said document was not forged or interpolated. It could not be ascertained conclusively whether there was any interpolation or whether by such interpolation the petitioner has made some wrongful gain or caused wrongful loss to the University. In my view, whether there had been forgery or not on the basis of the said document is a question which should be decided by the criminal court and in my view it would not be appropriate on the part of this Court to decide such question on writ application merely on affidavits. Accordingly, the criminal court before such case is pending, is directed to decide this question within a period of three months from today whereon the basis of materials and documents produced before this Court and/or on the basis of further materials and evidence whether any case Under Sections 466 and 471 of the Indian Penal Code had been made cut. This direction is given by this Court considering the fact that it should not be the intention that a Criminal Case should be kept pending for an indefinite period of time, particularly when it is now established principle that right to speedy trial is a fundamental right Under Section 21 of the Constitution of India and further when on the basis of the arrest made in connection with the case the petitioner had been suspended, his livelihood is at stake. So long the Criminal Case is continued the petitioner would remain under suspension. Accordingly, the writ petition succeeds to the extent indicated above. The Criminal Court would only decide the question whether there has been any case Under Sections 468 and 471 of the Indian Penal Code by production of the said Discharge Certificate from the Indian Air Force and this matter should be taken expeditiously and should be decided within a period of three months from today. But the First Information Report in so far as the offence Under Section 419 of the Indian Penal Code for furnishing different particulars with regard to the age stand quashed for the reasons aforesaid.
23. The writ application succeeds to the extent indicated above. There will be no order as to costs.