The Republic of India vs Basanta Kumar Sahu and Another

K.P. Mohapatra, J.—This revision is directed against the order passed by the learned Additional Chief Judicial Magistrate, Bhubaneswar, discharging the opposite party of offences under Sections 120B, 420, 468 and 471, I.P.C. in S.P.E. Case No. 6 of 1987.

Prosecution case in brief is that the opposite party was serving as Pharmacist in the Reserve Bank of India, Bhubaneswar. In the year 1980 some posts of Typists fell vacant in the aforesaid Bank. For filling up the vacancies, an advertisement was issued in local newspapers inviting applications from candidates. One of the eligibility conditions, according to the requirement in the advertisement, was that the candidates should be under-graduates with minimum 45% marks in English either in the High School Examination or in the Intermediate

Examination The proforma opposite party was the daughter of the opposite party. She had passed the Intermediate Examination and offered her candidature for one of the posts of Typists by making an, application and enclosing various certificates, one of which was an attested copy of mark-sheet In the Intermediate Examination. It was mentioned in the said attested copy that she had secured 115 marks in English in the Intermediate Examination and the total marks were 385. On the basis of attested copy of the mark-sheet she was found eligible and after typing test and interview she was selected for appointment to one of the posts which she joined. Subsequently, it came to light that she had submitted a false attested copy of the mark-sheet in which the total marks in English and the grand total marks had been inflated by committing forgery.

Specific allegations against the opposite party as stated in the charge-sheet, are as follows:

Further during the investigation it was established that the application has been filled up by the father of the accused Sri Basanta Kumar Sahu in his own hand wherein he submitted false total marks of the accused in her I.A. examination as 385 and the accused put her signature therein. The official witnesses identified the handwriting of Smt. Minakhi Sahu and Sri Basanta Kumar Sahu in all the questioned documents.

Further the attested true copy of the I.A. Mark sheet and other attested certificates of the accused submitted by her along with the application was established to have contained false attestations.

Besides the C.E.Q.D. also opines that the handwriting in the application of Smt. Minakhi Sahu, is that of Sri Basanta Kumar Sahu (A-2) and the signature appended thereto is that of Smt. Minakhi Sahu (A-I). It is further opined that the handwriting in the staff application, and the signature available in the counter foil mark sheet are by the hand of Smt. Minakhi Sahu (A-I).

The case against the opposite party and the proforma opposite party was investigated by the Special Police Establishment and charge-sheet was submitted against them for having committed offences under Sections 120B, 420, 468 and 471, I.P.C.

The learned Additional Chief Judicial Magistrate heard the learned Counsel appearing for both parties at the time of framing of charges and by the impugned order which assumed the character of a, judgment as if, there had been a full-fledged trial and by making reference to a few decisions as to what is criminal conspiracy and how it is to be proved by direct as well a circumstantial evidence, he found absence of prima facie case against the opposite party and discharged him. Be it mentioned that in the impugned order he repeatedly made reference to the statements u/s 161 of the Code of Criminal Procedure (''Code'' for short) as evidence, although such statements are not evidence in a criminal proceeding, nor any evidence had been adduced by the prosecution at that stage of the case.

It is necessary to state the guidelines which a criminal Court shall take into consideration at the stage of framing of charge. At the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at the stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilty or otherwise of the accused is not exactly to be applied at the stage of framing of charge. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in, his conviction. Strong suspicion against t he accused, if the matter remains in the region of suspicion cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. (See State of Bihar Vs. Ramesh Singh, . Union of India v. Prafulla Kumar Samal and Anr. Union of India (UOI) Vs. Prafulla Kumar Samal and Another, , Sri L. Ramgopal Rao v. State of Orissa 57(1984) C.L.T. 233, Pradip Kumar Maharathi v. State of Orissa 63 (1987) C.L.T. 533.

In this case material documents had been obtained from R.D. Women''s College, Bhubaneswar, from which the proforma opposite party passed Intermediate in Arts Examination, as well as from Utkal University, Bhubaneswar, to show that she had secured only 65 out of 200 marks in English and her grand total marks were 335. In the attested copy of the mark sheet it was shown that she had secured 115 out of 200 marks in English, the grand total being 385. It was also found that the application form was written, by the opposite party along with which the attested copy of the mark-sheet showing inflated marks, as referred to above was enclosed. When called upon to produce the anginal mark-sheet which she had obtained from the college, the proforma opposite party did not produce the same. It is difficult to believe that the opposite party had absolutely no knowledge of the marks obtained by his daughter in the Intermediate Examination, although he took an active part in submitting the application offering her candidature for one of the posts of Typists.

When the facts of the case are considered in the light of the legal principle at the stage at framing of charge u/s 240 of the Code, conclusion is inescapable that in pursuance of a criminal conspiracy punishable u/s 120B, I.P.C. forgery was committed while enclosing the attested copy of the mark-sheet to the application. Therefore, against both the opposite parties, there is strong suspicion and hence a prima facie case under Sections 120B, 420, 468 and 471, I.P.C. is made out. In that view of the matter the order of the learned Magistrate, who did not keep himself informed with the Jaw, cannot be supported so far as it relates to the opposite party. Therefore, he has to frame charge against the opposite party for offences under Sections 120B, 420, 468 and 471. I.P.C. and add a charge against the proforma opposite party for having committed an offence u/s 120B, I.P.C. Before I close, I would like to say that none of the observations relating to the facts of the case itself shall influence the learned Magistrate during trial of the criminal case.

In the result, the criminal revision is allowed and the impugned order of discharge of the opposite party is vacated. The lower Court records be sent back forthwith so as to enable the learned Magistrate to proceed in accordance with law in the light of the observations made above.

Revision allowed.