Gauhati High Court
Koushik Kumar Nath And 3 Ors vs The State Of Assam And Anr on 4 February, 2019
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/7
GAHC010232352017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 80/2017
1:KOUSHIK KUMAR NATH and 3 ORS.
S/O LT. KSHITISH CHANDRA NATH R/O VILL- BRAHMANGRAM P.O.
KALAIN, P.S. KATIGORAH DIST. CACHAR, ASSAM.
2: RANJIT DAS
S/OLT. NABARAM DAS R/O VILL- TARAPUR P.O.JALALPUR
P.S. KATIGORAH DIST. CACHAR
ASSAM.
3: ABDUL KHALIQUE CHOUDHURY
S/OLT. AKLAQUL ASIFA CHOUDHURY R/O VILL- KANAKPUR PART-II
P.O. SILCHAR P.S. SILCHAR DIST. CACHAR
ASSAM.
4: ABU HURAIARA BARBHUIYA
S/O LT. ABDUL JABBAR BARBHUIYA R/O VILL- PAIKAN P.O. GUMRAH P.S.
KATIGORAH DIST. CACHAR
ASSAM
VERSUS
1:THE STATE OF ASSAM AND ANR.
ASSAM
2:ASRAF ALI
S/O LT. CHAND MIA R/O VILL- BEHARA PART-IV
P.O. HILARA
P.S. KATIGORAH DIST. CACHAR
ASSAM
Advocate for the Petitioner : MR.A H M R CHOUDHURY
Advocate for the Respondent : MR M J QUADIR (R2)
Page No.# 2/7
BEFORE
HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
Date : 04-02-2019
1. Heard Mr Alhajj Inam Uddin, learned counsel for the petitioners and Mr. M J Quadir, learned counsel for the respondent No. 2. Also heard Mr. B J Dutta, learned Addl. PP for the State/respondent No. 1.
2. All present 4 (four) petitioners have been arrayed as an accused in connection with Katigorah PS Case No. 711/2016 filed by the respondent No. 2 (Asraf Ali) u/s 468/471/474/406 of IPC.
3. So far as the prayer of the petitioners are concerned, it has been urged that they are graduate Assistant Teachers of Kalain Higher Secondary Schools in the District of Cachar and while serving as a teacher they also in due course of their service, pursuant to the advertisement by Crescent Academy Academy, Badarpur, Dist- Karimganj, with due permission of the Assistant of Inspector of Schools, Silchar, dated 28.08.2012 obtained B.Ed degree from the Chatrapati Shahu Ji Maharaj University, Kanpur, U.P as on 22.09.2013. Thereafter, on the basis of said certificate they claimed for increment before the school Authority. As it was denied they approach to the High Court by filing WP(C) 3555/2016 and this Court by order dated 15.06.2016 directed the Director of Secondary Education, Assam to look into the matter and pass appropriate order on the prayer so made by the petitioners.
4. Pursuant to the order of this Court, the Inspector of Schools, CDC, Silchar granted increment to all the 4 (four) petitioners by its order dated 01.08.2016 with effect from Passing B.Ed examination on 22.09.2013. The present petitioners on the very next date of granting increment made an appeal to the respondent authority/the Inspector of Schools, CDC, Silchar that Page No.# 3/7 they have come to know that the B.Ed degree obtained either through the private mode or without attending regular classes or through un-authorized study centre, is invalid as per norms of NCTE so they are not willing to avail the financial benefits like increment nor they will utilize the degree claiming promotion. They made a prayer to cancel the order for allowing them advance increment. On the basis of such representation made before the petitioners, the School Authority also cancelled the said increment by order dated 06.08.2016.
5. In the meantime, the school Authority received the complaint from one Milon Choudhury, Tarapur, Silchar dated 31.08.2016 regarding the procuration of B.Ed degree of the petitioners by forging their documents. The Inspector of Schools filed the report dated 26.10.2016 that the petitioners has already abonded their claim for increment and other benefit on the basis of such degree by way of their representation after they came to know about status of B.Ed certificates. Thereafter an FIR was also filed by one Sri Ashraf Ali before the Court of CJM, Silchar on the same subject matter regarding procurement of B.Ed & M.A degree by forged manner by the petitioners and some others. On the basis of the aforesaid FIR, a case was registered at katigorh PS Case No. 711/2016 u/s 468/471/474/406 of IPC against the petitioners.
6. Challenging the aforesaid FIR and further proceeding of the case, present petition has been preferred by the petitioners u/s 482 of CrPC read with Section 227 of the Constitution of India on the ground that there was no malafide on the part of the petitioners in respect of use of those documents/B.Ed certificate, which was produced before the school Authority earlier. Further contention of the petitioners was that although initially they preferred claim upon the said certificates but subsequently after knowing about the fact that the said authority is a private institution and certificate issued by them is not valid, they themselves withdrew their claim upon Page No.# 4/7 the said documents. In these circumstances, it is submitted that there is neither any mens rea on the part of the accused petitioners to gain illegally of any service benefit on the basis of such certificates rather they withdrew their claim after knowing about status of the B.Ed degree, they obtained. Accordingly it is contended that as the FIR does not contain the prima facie allegation against the petitioners, in view of the office communication in this regard wherein there was no allegation against them. It contends that such continuation of criminal proceeding against the petitioners is quite illegal and it will cause injustice to the petitioners, who have bona fidely withdrawn their claim on such certificates, so as to constitute any offence u/s 468/471/474/406 of IPC Prayer has been made to quash the entire criminal proceeding initiated against them.
7. The learned counsel for the petitioners have argued the matter on the basis of document pointing towards the fact that it is on the basis of certain advertisement they have applied for such degree with due permission from the authority vide annexure-1 & 2 and thereafter they obtained the B.Ed certificate, marksheet etc vie annexure 3 & 4 issued by the Chatrapati Sahuji Maharaj, University Kanpur. It has also been pointed out that school authority has not granted any sort of advance increment or service benefits to the petitioners on the basis of such documents and there is no mens rea on their part of the petitioners to commit the offence.
8. The learned counsel for the respondent No. 2 has however opposed such contention of the learned counsel for the petitioners on the ground that although, recently they have withdrawn their claim of advance increment and service benefit on the basis of such certificate but things remain that such certificate was received way back in the year 2013 and since then, they were intending to rely upon such certificate to obtain the service benefit which has been mentioned above since the year 2013 onwards, basing upon those documents. They have initiated litigation to claim the benefit earlier but subsequently filed representation before the authority Page No.# 5/7 withdrawing the claim for service benefit etc. Further, it has been contended that the private respondent has also obtained a reply through R.T.I from the said college authority namely Chandra Bhan Singh Memorial Shikshan Sansthan at Kanpur which is the college mentioned in the marksheet also and the said college authority has apprised that no such candidate namely Koushik Kumar Nath vide Enrolment No. K1121009 and Roll No. 09234 Session July 2012- June 2013 under regular or distance course of study was enrolled under the said college. It is stated that the said certificate is forged and the said institution received permanent approval in the year 2013-14. It has been vehemently submitted that although the petitioners have withdrawn their claim upon said certificates, but the fact remains that petitioners had raised their claim upon the said certificates stating it to be genuine one in the petition but the reply from the concerned college proves that it is not a genuine document. That being so, even though the petitioners tried to absolve from any criminal liability by asserting that they are not going to prefer any benefit on the basis of the said document but how they procured such document is not divulge at any point of time.
9. The learned counsel for the State/respondent has also submitted that in terms of the offence u/s 463/468 of IPC, the question now is that who is the maker of the said document, which could not yet be ascertained but the investigation has already been stayed by the Court.
10. I have considered the submission of learned counsel for both the parties and materials on record.
11. So far as the documents from the college authority is concerned, it does not reveal that they have raised any grievances against such documents. In view of of such type of certificate etc. which bears sign and signature of the University concerned. The school authority has not yet raised any suspicion over the same but things remain to ponder as to whether the said Page No.# 6/7 certificates were actually issued to the petitioners by the said University or not. As has been contended by petitioner whether such conferment of degree to the petitioners is valid or not as per norms of the University but question will be whether such document that has been relied upon by the petitioners since 2013 onwards is genuine or forged ? It is to be decided whether such certificate were actually issued by said University or college named or not ?
12. The learned counsel for the respondent No. 2 has pointed out that this type of forge document has been obtained by a large number of people for gaining service benefits and it is not only in the case of the present petitioners which is required to be enquired properly. Thus, it is of concern, that the petitioners have suddenly come up with the plea that they will not claim any service benefit but have not disclosed as to how they came to know that the certificates issued by the said University is not a recognized one, whereas as per reply of the RTI, the said college was granted permanent approval in the year 2013-14 (vide annexure -1) annexed to the affidavit-in- opposition filed by the respondent No. 2.
13. Of course, the second part of the conduct of the petitioners give some benefit on their part as they have not raised any claim upon the documents but still their 1 st part of conduct remains that they relied upon such document that have they duly obtained the degree from the University concerned. In the given circumstances, it can't be denied that, a thorough investigation is required for determining the authenticity of those documents procured and relied by the petitioners (B.Ed degree). The FIR was registered on 09.11.2016 and immediately thereafter the petitioners have come forward with the petition on 27.01.2017 and in view of prima facie submission of the learned counsel for the petitioners and the document produced, this Court granted stay of the further proceeding of investigation under challenge but after considered the pros and cons of the matter, it emerges that thorough investigation is required to unearth the authenticity of those Page No.# 7/7 documents/B.Ed degree issued to the petitioners from the concerned authority as has been stated above. Thus, Court is of considered opinion that investigation is required to verify the authenticity of those documents and stay of the investigation will not be proper and quashing of the FIR at the threshold of the investigation is unwarranted. Resultantly, the present petition stands dismissed with a direction to the investigation agency to proceed with the investigation as per law. However, the petitioners are at liberty to come forward with such petition even if further investigation could not make any case against them.
JUDGE Comparing Assistant