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2005 DIGILAW 46 (CAL)

ANIL KUMAR GAYEN v. STATE OF WEST BENGAL

2005-01-25

P.N.SINHA

body2005
P. N. SINHA, J. ( 1 ) THIS revisional application has been preferred by the petitioner under section 482 of the Code of Criminal Procedure (in short Code,) 1973 for quashing the criminal proceeding being G. R. Case No. 685/95 pending before the learned Sub-Divisionaljudicial Magistrate (in short SDJM), Contai arising out of Ramnagar P. S. Case No. 97 dated 18. 8. 95 under Sections 409/406/420 of the Indian Penal Code (in short I. P. C.) and cha'rge-sheet bearing No. 94/ 97 dated 15. 12. 1997. ( 2 ) THE facts of the case is that the First Information Report (in short fir) was lodged by the Secretary of the West Bengal Board of Secondary education before the Officer-in-Charge, Ramnagar Police Station alleging that the accused Anil Kumar Gayen was entrusted with examination of 302 english answer scripts of Madhyamik Examination, 1995. The complainant received certain documents which are xerox copy of anonymous letters in bengali written to one Tapasi Karan baring Roll 2792 No. 0041 along with xerox copy of page 6 of answer script in English and similar papers addressed to Pintu Das and others asking them to come to the residence of the said examiner along with the same pen used by the candidates at the time of writing their answers in the English answer script. The answer scripts of the said two candidates along with other candidates were in exclusive possession of Sri Gayen from 2. 4. 1998 to 2. 5. 1998. It is clear that by xeroxing the answer scripts he sent route direction of his residence to the candidates with ulterior motive of awarding inflated marks to them against payment of money by such candidates. The report of the head examiner on the standard of evaluation of answer scripts in English reveal that the accused Anil Kumar Gayen did not follow the time schedule fixed by the Board for submission of answer script with marks. It was also detected that he gave inflated marks to huge number of candidates of Batch III. On the basis of such FIR Ramnagar P. S. Case No. 97 dated 18. 8. 1995 under Sections 406/409/420 of I. P. C. was started against the accused petitioner and after complejing investigation the Investigating officer (I. O.) attached to CID, West Bengal submitted charge-sheet against the petitioner under Sections 406/409/420/511 of I. P. C. ( 3 ) MRS. On the basis of such FIR Ramnagar P. S. Case No. 97 dated 18. 8. 1995 under Sections 406/409/420 of I. P. C. was started against the accused petitioner and after complejing investigation the Investigating officer (I. O.) attached to CID, West Bengal submitted charge-sheet against the petitioner under Sections 406/409/420/511 of I. P. C. ( 3 ) MRS. Goswami for the petitioner contended that there was no delay at all in returning the answer scripts after examination giving marks. There was only one days delay and this delay cannot be termed as delay in returning the answer scripts according to norms of the Board. No inflated marks were given to the candidates and the candidate who received highest mark in English is 21 and the marks given to the candidates almost tallies with the standards of Board's scrutiny of marks. There was no material to show who sustained wrongful loss and who gained from the alleged act of the accused. There was nothing to show that the petitioner received money and awarded inflated marks and, therefore, gain by this petitioner is absolutely unacceptable. There was no breach of trust as alleged. No question of defalcation of public money arises. There is no element of the alleged offence under Sections 406/409/420 of IP. C. against the petitioner. ( 4 ) MRS. Goswami further contended that allegations in the FIR are vague and FIR do not disclose any cognizable offence. One Pradip Maity is an enemy of this petitioner and he belongs to a particular political party and the case was started by him behind the curtain. There was nothing to show that the petitioner was entrusted with some property or with domain over the property and he converted it to his own use or misappropriated the said property. In order to attract Section 420 of IP. C. there must be ingredient of deceit inducing a person to deliver some property causing loss to him and causing gain to the petitioner. There was no material of either Section 406 or section 409 or Section 420 of IP. C. against the petitioner. Continuation of the criminal proceeding would be an abuse of the process of the Court and accordingly it should be quashed. ( 5 ) MR. S. K. Mallick, learned Advocate appearing for the State contended that after investigation charge-sheet has already been submitted in this case. C. against the petitioner. Continuation of the criminal proceeding would be an abuse of the process of the Court and accordingly it should be quashed. ( 5 ) MR. S. K. Mallick, learned Advocate appearing for the State contended that after investigation charge-sheet has already been submitted in this case. During investigation sufficient materials and evidence were collected against the petitioner showing his involvement in the alleged offence. Power under Section 482 of the Code for quashing a proceeding should be exercised very sparingly and that too with care and caution. Submission of charge-sheet indicates that prima facie materials and evidence have been collected against the petitioner justifying proceeding of the criminal proceeding further. The allegations are also very serious and the Board reposed confidence on the petitioner regarding matter of examination of English answer scripts. The petitioner not only committed breach of trust but also failed to maintain the official secrecy with which he was entrusted. Examination of answer scripts requires maintenance of strict secrecy, but the petitioner after getting address of several candidates lured them by sending anonymous letters requesting some of the candidates to come to his residence with the same pen and ink used by them at the time of giving answer in the answer scripts and in the letter he disclosed the amount required for inflation of marks. It is a very serious case and the FIR as well as materials in case diary reveal sufficient elements against the petitioner. It is not a fit case at all for quashing the proceeding. At this stage this Court cannot appreciate evidence meticulously like a trial Court or appellate Court. It is immaterial whether the case is based on direct or circumstantial evidence. Charge can be framed if there are materials showing possibility about the commission of the crime as against certainty. In support of his contention. Mr. Mallick cited the decision in State of Andhra Pradesh v. Golconda Linga Swamy and Anr. , reported in 2004 SCC (Cr) 1805. ( 6 ) I have considered the submission of the learned Advocates of the parties and perused the revisional application and materials on record and also the contents of the case diary. It is admitted that on the basis of FIR lodged by the Secretary of the West Bengal Board of Secondary Education the Ramnagar P. S. Case No. 97 dated 18. 8. It is admitted that on the basis of FIR lodged by the Secretary of the West Bengal Board of Secondary Education the Ramnagar P. S. Case No. 97 dated 18. 8. 1995 under Sections 406/409/420 of I. P. C. was started against the accused petitioner and after completing investigation charge-sheet under Sections 406/409/420/511 of I. P. C. has been submitted against the petitioner in the Court of the learned SDJM, Contai. The allegation against the petitioner was that sending anonymous letters to some Madhyamik examination candidates he instructed the candidates to come to his residence between 19. 4. 1995 and 24. 4. 1995 with the same pen having same ink which they used at the time of writing their answers during english examination. The main allegation against the petitioner was that receiving money from such candidates he awarded them inflated marks in english. ( 7 ) AFTER going through the materials on record and contents of the case diary and the contents of charge-sheet I find that it was not established at all that the petitioner received money from such candidates to whom he allegedly sent letters. It appears from the charge-sheet, the FIR and other papers that receiving such letters the said Madhyamik candidates informed the matter to their guardians as well as the headmaster of the school to which they were attached. Thereafter, the headmaster of the school informed the matter to the Secretary of the Board and the candidates also informed the matter to the Board. Accordingly, it was not at all established that the petitioner received money from such candidates. ( 8 ) THERE is nothing to show that the petitioner misappropriated any property or any money. He was entrusted with 302 English answer scripts and he returned the same after examination. There was 2/3 days delay in returning the answer scripts but that does not attract elements of Section 406 of I. P. C. No question of Section 409 of I. P. C. is attracted in this case as the petitioner did not commit any criminal breach of trust as a public servant or criminal breach of trust as banker, merchant, broker, Attorney or agent. There is nothing to show also that he committed misappropriation or defalcation of any public money. Accordingly, elements of either Section 406 or Section 409 are not at all attracted in this case against the petitioner. There is nothing to show also that he committed misappropriation or defalcation of any public money. Accordingly, elements of either Section 406 or Section 409 are not at all attracted in this case against the petitioner. ( 9 ) THERE was no element of cheating against the petitioneralso. Cheating has been defined in Section 415 of the I. P. C. which runs as follows : "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 to deceived 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". Section 420 of I. P. C. runs as fpllows :"whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. " ( 10 ) IN order to prove an offence under Section 420 of I. P. C. it must be established that the accused caused deception to any person and either fraudulently or dishonestly inducing that person caused him to deliver any property to any person or to consent that any person shall retain any property; or intentionally inducing that person to do to 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. ( 11 ) IN the instant case the Board was not induced to deliver any property or money to the accused. The Board gave 302 English answer scripts to the accused petitioner for examination and received back the said answer scripts though after a few days delay. ( 11 ) IN the instant case the Board was not induced to deliver any property or money to the accused. The Board gave 302 English answer scripts to the accused petitioner for examination and received back the said answer scripts though after a few days delay. This action does not attract elements of Section 420 of I. P. C. Tapasi Karan, Pintu Das and other candidates were also not deceived or induced as after receiving such anonymous letters along with route direction for going to house of accused petitioner, they did not go to the house of the petitioner and did not pay him any money. The alleged inflated marks cannot regarded at all as inflated as it appears that there is difference of only 2 to 4 marks in respect of the candidates answer scripts sent to the petitioner for examination in comparison to scrutiny standard of the Board. If another person was engaged by the Board for scrutiny there may not have been any difference between the marks given by the petitioner and the marks assessed by the Board after scrutiny as standard mark. It was also not established from the report of the handwriting expert that this petitioner was the scribe of the said anonymous letters. The above discussion makes it clear that elements of Section 420 of I. P. C. were not attracted against the petitioner. ( 12 ) THE decision cited by Mr. Mallick for the State is not applicable in this case as in this case after investigation charge-sheet has been submitted but nowhere in the charge-sheet it was mentioned that the accused petitioner receiving money from the Madhyamik candidates awarded them inflated marks. The allegation against the petitioner that he awarded inflated marks to the madhyamik candidates as named above and others is baseless when the materials collected during investigation could not establish at all that the petitioner received money from such candidates and thereafter awarded them higher or inflated marks. Submission of charge-sheet accordingly was not in accordance with iaw and taking of cognizance by the learned SDJM over such charge-sheet was bad in law. ( 13 ) THIS is a fit case where continuation of the criminal proceeding being G. R. Case No. 685/95 arising out of Ramnagar RS. Case No. 97 dated 18. 8. 1995 and charge-sheet No. 94 dated 15. 12. ( 13 ) THIS is a fit case where continuation of the criminal proceeding being G. R. Case No. 685/95 arising out of Ramnagar RS. Case No. 97 dated 18. 8. 1995 and charge-sheet No. 94 dated 15. 12. 1997 pending before the learned SDJM, Contai being an abuse of the process of Court should be quashed. ( 14 ) I make it clear here that the aforesaid observation shall not in any way curtail the power of the Board to make the petitioner black listed and the board shall be free not to allot in future answer scripts to this petitioner. It is clear that the petitioner failed to maintain the official secrecy and it is not desirable at all that after receiving answer scripts of Madhyamik examination allotted to him by the Board, he would sent instruction to some of the candidates, whose address he could collect from one answer of English question asking them to come to his house sending them route direction for reaching his house. It was established during investigation that the petitioner failed to maintain the official secrecy for which the petitioner should suffer necessary action like black listing by the Board as well as disciplinary action by the appointing authority. The appointing authority is at liberty to take necessary action against the petitioner through disciplinary action for his conduct and failure to maintain the official secrecy. The petitioner would have been prosecuted under the provisions of Prevention of Corruption Act, if it was established that he received money at least from one of the Madhyamik candidates. As it was not established during investigation that he received money from any candidate this Court could not give direction for proceeding against him under the Prevention of Corruption Act. ( 15 ) IN view of the aforesaid discussion made above, the revisional application succeeds and is allowed. The impugned criminal proceeding-being g. R. Case No. 685/95 arising out of Ramnagar RS. Case No. 97 dated 18. 8. 1995 pending before the learned SDJM, Contai is hereby quashed. The state administration may proceed with disciplinary action against the petitioner if they find materials of proceeding with such action. ( 16 ) ALL interim orders passed earlier stand vacated. ( 17 ) SEND a copy of this order to the learned SDJM, Contai for information and necessary action.