Patna High Court - Orders
Madhuri Kumari vs The State Of Bihar & Ors on 17 April, 2012
Author: Navin Sinha
Bench: Navin Sinha
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.4875 of 2012
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1. Madhuri Kumari Daughter If Brij Deo Choudhary Resident Of Mohalla-
Kurji, Police Station-Digha And District-Patna
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Controller Of Examination, Bihar
Combined Entrance Competitive Examination Board, I.A.S. Association
Building, Near Airport, P.S.-Airport, District-Patna
2. The Secretary, Bihar Combined Entrance Competitive Examination
Board, I.A.S. Association Building, Near Airport, P.S.-Airport, District-
Patna
3. Officer On Special Duty, Bihar Combined Entrance Competitive
Examination Board, I.A.S. Association Building, Near Airport, P.S.-
Airport, District-Patna
4. Information Officer, Bihar Combined Entrance Competitive
Examination Board, I.A.S. Association Building, Near Airport, P.S.-
Airport, District-Patna
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Manish Kumar No-2
For the Respondent/s : Mr. Vikas Kumar
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CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA
ORAL ORDER
3 17-04-2012Heard learned Counsel for the petitioner and the Bihar Combined Entrance Competitive Examination Board (hereinafter referred to as „the Board).
The petitioner seeks the relief for grant of admission in Para Medical Dental Course (hereinafter referred as „Dental Course‟) pursuant to her candidature at the examination conducted by the Board in the year 2011.
It is submitted that after she competed in the written examination held on 4.6.2011 the petitioner was asked to appear for counseling on 10.11.2011. At the time of counseling an objection was raised by the three Professors constituting the Counseling Committee that the photograph of the candidate who appeared at the examination was not tallying with her Patna High Court CWJC No.4875 of 2012 (3) dt.17-04-2012 2 appearance before them. The petitioner was asked to write a passage. On comparison of her handwriting at the examination and the same passage during counseling it was opined on a joint consideration of the handwriting and photograph that it was a case of impersonation by the candidate recommending lodging of an FIR. Hawai Adda PS Case No. 200 of 2011 was lodged by one Umeshwar Prasad under Sections 419, 420, 468 and 34 IPC against the petitioner. Admission become a non issue. The petitioner was taken into custody on the date of counseling i.e. 10.11.2011and was released on 25.11.2011. She remained in custody for approximately two weeks. The petitioner denies that any dummy candidate appeared on her behalf. It is asserted that the photographs taken at the time of written examination and the counseling sufficiently disclose that they belong to the same person. There is no difference in the handwriting to warrant any such opinion as arrived at by the respondents.
Counsel for the Board submitted that the Counseling Committee followed a standard procedure by comparison of the handwriting at the time of examination with the sample of the same passage obtained at the time of counseling. The Committee was satisfied that the handwritings related to two different persons. It was therefore observed that her candidature required further verification. She was given a second opportunity to provide the specimen handwriting. Another committee of three senior teachers distinct from the three member Counseling Committee also opined that the handwritings did not match and that the video clip of the candidate taken during examination did not match with the face of the candidate appearing for counseling. The authorities of the Board then directed institution of the FIR and the petitioner was handed over to the Police. The Board has acted fairly and reasonably on the two issues that the handwriting did not tally and that the photographs of the candidate also did not match. The action of the Patna High Court CWJC No.4875 of 2012 (3) dt.17-04-2012 3 Board was not arbitrary devoid of reason. The actions were based upon satisfaction of a disputed identity that both were not the same person. The writ Court cannot examine this disputed question of fact if the two were the same person or different.
It is next submitted that whether the two handwritings match or they do not match is also a disputed question of fact best left to the expert. Reliance is placed on an order in CWJC No. 9747 of 2011. Declining to interfere with the opinion of the Forensic Science Laboratory in context of the difference in handwriting of the candidate at the two stages the Court opined that it was not safe for it to enter into the thicket of self examination of handwriting to arrive at any conclusion specially when there was a Forensic Science Laboratory Report available.
Reliance is also placed on another order in CWJC No. 11722 of 2008 when the Court declined to interfere with the decision of the Board with regard to the doubt over candidature when it was also noticed that the Board contended that videography of the candidate was also examined concluding in its opinion that they were different persons. It was noticed that an FIR had similarly been lodged holding that the issues go beyond the purview of the writ Court.
Summing up the argument learned Counsel for the Board urged that the entire controversy with regard to handwriting, videography involved complicated questions of fact requiring evidence. If the Court so considers proper it may send the video clippings of the candidate taken at the stage of examination and during counseling to any Forensic Science Laboratory deemed fit by the Court. The Board stands by its decision that the two photographs are not of the same candidate.
In the present case there is no Forensic Science Laboratory Report on comparison of the two handwritings of the petitioner. The issues Patna High Court CWJC No.4875 of 2012 (3) dt.17-04-2012 4 of law discussed in CWJC no. 9747 of 2011 are therefore not applicable to the facts of the present case. Each case is to be decided on its own facts. The ratio that may be laid down in an order cannot be considered in the abstract devoid of facts of the case. The conclusion therein that it was not safe for the Court to enter in to examination of the handwriting was arrived at for reason of the Forensic Science Laboratory Report from an expert. The case is clearly distinguishable from the facts of the present case.
In CWJC No. 11722 of 2008 the Board strongly contended that in the video footage the candidates were different. The petitioner therein did not challenge the assertion. The Court never called for the video footage. Whether the candidates were the same or not was decided on basis of the unchallenged assertion of the Board. In the present case, the petitioner specifically challenges the decision of the Board asserting that the candidate who appeared at the time of examination was the same at the time of counseling. Because of such assertion made on behalf of the petitioner, on 11.4.2012 it was observed that the Court shall make a self appraisal of the video footage prepared by the respondents at the time of examination and counseling. Counsel for the Board produced a C.D. recording of the video footage. The video footage was then viewed in chambers on 13.4.2012 at 4.15 PM in presence of the Counsel for the petitioner and the Board. The images at the two stages were transposed on the screen alongside each other. After viewing the same, Color print out of the two photographs was taken duly initialed by the Counsel for the petitioner and the Board. The C.D. was returned to the Counsel for the Board.
Before proceeding to the next aspect of the discussion, it is important to keep in mind that there would be a substantive difference in comparison of two photographs and handwritings. A photograph creates a Patna High Court CWJC No.4875 of 2012 (3) dt.17-04-2012 5 visual impact on the brain of the person viewing it while handwriting may require further examination to decipher whether they belong to the same person or not. In other words standards of assessment by comparison of the two would be entirely different. If there had been no video footage of the candidate, the Court would necessarily have had to rely on handwriting. In that event, the order in CWJC No. 9747 of 2011 sought to be relied upon by the Board may have had to be considered even though Forensic Science Laboratory Report may not have been available. Availability of the video footage makes a substantial difference. If the video footage at the two stages pertains to two different candidates, there is no need to examine the handwriting and the matter will stand concluded for impersonation. Conversely if the candidate is the same and the video footage does not reflect any semblance of controversy, the issue of handwriting becomes substantially irrelevant. Applying normal standards the same person who may write a passage and then rewrite the same passage after a reasonable period of time, would reflect change in the handwriting. The flow and the angle of the letters would not necessarily be the same. A candidate appearing at the examination is under a particular level of stress. The stress is not the same for all the candidates. The stress not only affects the mental faculty differently in different candidates but also affects the handwriting.
On record are the photographs of the candidate taken at the two stages. The photograph taken in the examination hall is from one angle. The photographer has stood in front at the left of the candidate. In the photograph taken at the time of counseling the photographer has stood in front and opposite the candidate. The photograph taken at the examination centre from an angle bears shadows on the face by light effect. The photograph taken at the counseling from the front is clear with no shadows. Patna High Court CWJC No.4875 of 2012 (3) dt.17-04-2012 6 The background light in the two photographs is again different. The former is dark, the latter bright. The availability or flow of light makes much difference to a photograph. The angle from which a photograph is taken can also make a difference. The photograph at the examination centre clearly and reasonably should have been taken from the front so as to get controversy of the candidate cleared. If it was taken from an angle, the respondents should have taken the photograph from the same angle at the time of counseling. The counter affidavit does not explain why the photographs were taken from different angles in different conditions of light.
The Court has assessed the photographs side by side. The broadness of the forehead in the two is common. The structure of the nostrail is common. The flair of the nostrails is common. The mark available on the left of the lower lip is common. The mole below the left nostrail is common. The structure of the space between the nostrail and upper lip is common. The contour of the upper and lower lip are common. The Court is satisfied that the two photographs are of the same candidate. The assertion of the Board that the two are different candidates is not approved by the Court.
The Court had put a question to the Counsel for the Board that if the Counseling Committee had expressed doubts on the photographs reaffirmed by the subsequent committee, did the Board apply its mind independently or did it proceed to act on the recommendation only. Counsel for the board fairly stated that the counter affidavit does not deal with that aspect and that he has no specific instruction upon the same.
The Court holds that even if the actions of the Board are not malafide, it is certainly an act in gross haste without exercising reasonable care and caution unmindful of the serious nature for exercise of the power and its consequences. There shall be no hesitation in holding that the Patna High Court CWJC No.4875 of 2012 (3) dt.17-04-2012 7 actions of the Board were reckless. Even if the Counseling Committee and the subsequent Committee to which the matter was referred, had opined that there was difference in candidatures it was not conclusive. The action was to be of the Board. The decision was to be of the Board. Prudence dictated that the Board should have applied its independent mind and not acted mechanically without proper application of mind abdicating its authority and jurisdiction in favour of the Counseling Committee. The Counseling Committee consisted of two retired professors and a Senior Lecturer. The senior committee to which the matter was referred also consisted of academicians only. The academicians may have the final word on matters of academics. Their opinion on other aspects cannot be conclusive. The actions of the Board was in public domain exercising public power. The responsibility to act with prudence was onerous. Applying the standards of a common reasonable man, a proper appraisal of the photograph should have been done by the board itself. If the Board had any doubts it should have sought an expert opinion before arriving at such drastic conclusion guided only by opinion of others. The haste with which the Board acted blindly accepting the recommendation and instituting an FIR simultaneously is severely disapproved by the Court. The institution of an FIR is a serious matter. Even if the person impleaded is exonerated after investigation the stigma still attaches.
Public power vested in public authority is meant to be exercised for the public good. A functionary of the Government/authority vested with public power is required to act cautiously and carefully while dealing with a citizen. The power inheres in the authority and not the individual. If the power is not exercised properly and prudently the answerability has to be individual and not institutional. The constitutional protection under Article 311 cannot be a panacea for all ills by a public functionary. As society Patna High Court CWJC No.4875 of 2012 (3) dt.17-04-2012 8 advances, dissemination of knowledge and rights spread, those exercising public powers need to be cautious and careful. Issues of answerability and accountability shall necessarily arise. The manner in which the Board has insisted that the two candidates were different raises very serious issues of individual answerability and accountability. Since no arguments have been addressed on this issue the Court leaves the discussion at this stage.
In (2011) 9 SCC 354 (Delhi Airtech Services (P) Ltd. v. State of U.P,) it has been observed:-
"213....The well-established precepts of public trust and public accountability are fully applicable to the functions which emerge from the public servants or even the persons holding public office.
215. The concept of public accountability and performance of functions takes in its ambit, proper and timely action in accordance with law. Public duty and public obligation both are essentials of good administration whether by the State or its instrumentalities. In Centre for Public Interest Litigation v. Union of India, this Court declared the dictum that State actions causing loss are actionable under public law. This is a result of innovation, a new tool with the courts which are the protectors of civil liberties of the citizens and would ensure protection against devastating results of State action. The principles of public accountability and transparency in State action are applicable to cases of executive or statutory exercise of power, besides requiring that such actions also not lack bona fides. All these principles enunciated by the Court over a passage of time clearly mandate that public officers are answerable for both their inaction and irresponsible actions. If what ought to have been done is not done, responsibility should be fixed on the erring officers; then alone, the real public purpose of an answerable administration would be satisfied.
216. The doctrine of "full faith and credit" applies to the acts done by the officers. There is a presumptive evidence of regularity in official acts, done or performed, and there should be faithful discharge of duties to elongate public purpose in accordance with the procedure prescribed. Avoidance and delay in decision-making process in government hierarchy is a matter of growing concern. Sometimes delayed decisions can cause prejudice to the rights of the parties besides there being violation of the statutory rule."Patna High Court CWJC No.4875 of 2012 (3) dt.17-04-2012 9
The petitioner is aged approximately 24 years. The damage that had been done to her at this young age by institution of the FIR is not reversible. It shall be a stigma for her through out her life. If she applies for employment anywhere tomorrow, she shall have to disclose that she was made accused in a criminal case and was sent to custody on an allegation of impersonation. The employer may not wait or be willing to hear what happened thereafter. It may be end of her career.
If the petitioner was otherwise eligible at the counseling and her candidature does not suffer from any deficiency in law the Board is directed to grant her admission in the Dental Course.
The petitioner deserved retribution. In absence of any challenge to the First information Report, the Court refrains, and leaves her to pursue such remedies as she may be advised both with regard to the police report and retribution.
The writ application is allowed.
(Navin Sinha, J) Snkumar/-