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2009 DIGILAW 380 (CAL)

Chinmoyee Pattanayak v. STATE OF WEST BENGAL

2009-05-14

PARTHA SAKHA DATTA

body2009
JUDGMENT Partha Sakha Datta, J. 1. Whether the petitioner should have been summoned by the learned Judge, Special Court, Tamluk vide order dated 21st of January, 2009 under section 319 Cr. PC in connection with Tamluk PS Case No. 138 of 2003 dated 06.11.2003 is the question involved in this application. 2. The prosecution case is as follows: One Suchintya Jana claiming to be an appointee in Naikuri Thakurdas Institution in the post of Assistant Teacher in the department of History has been drawing salary by virtue of his alleged employment. At the material point of time one Ram Krishna Maity and another Shyamalendu Manna had been respectively the Headmaster and the Secretary of the said school and during the tenure of these two persons Shri Jana was said to have been appointed in the school. Shri Jana was a candidate in the interview and he produced his academic certificate and other documents. Selection was made subject-wise and in the subject of History he was placed 2nd in the panel. Panel was approved by Office Memo No. 1862-S dated 16.10.1997. The said Shri Jana produced his appointment letter being letter No. 132/Appt./97 dated 16.10.1997 on the basis of a panel vide Memo No. 1864-S dated 16.10.1997 but no copy of the said Memo was produced before the District Inspector of Schools (Secondary Education, Purba Medinipur) either by the petitioner or by the Secretary or by the teacher-in-charge of the school and it was found that Memo No. 1864-S dated 16.10.1997 was issued for approval of panel for Mathematics Teacher of a different High School. The candidate who secured first position in History was one Birendra Nath Kar whose appointment was approved by the DI of Schools dated 16.10.1997 and the said Shri Kar has been working as Assistant Teacher of the school since 20.10.1997. Thus question of appointment of Shri Jana, the second candidate in the same subject does not arise. Shri Jana filed a writ petition being W.P. No. 3768 (W) of 2002 and pursuant to the order of the Writ Court dated 10.04.2002 Shri Jana appeared before the District Inspector of Schools (Secondary Education, Purba Midnapore) on 19.04.2002. 3. On appearance before the District Inspector of Schools (Secondary Education) Purba Medinipur, the petitioner could not produce his original copy of approval of appointment. 3. On appearance before the District Inspector of Schools (Secondary Education) Purba Medinipur, the petitioner could not produce his original copy of approval of appointment. He could only produce a xerox copy which would appear to be a copy of the office Memo No. 220-S dated 04.03.1998 but in it his name was interpolated in Sl. No.2 by deleting the name of one Sri Debangsu Das whose name originally existed which is evident from the original in Sl. No.2 of the said Memo No. 220-S dated 04.03.1998 and from the issue register of the office wherein the approval of appointment of Madhusudan Murmu and Debangshu Das was approved as Assistant Teachers of Naikuri Thakurdas Institution. This was also observed in the enquiry report of the District Inspector of Schools (Secondary Education) Tamluk (now redesignated as District Inspector of Schools (Secondary Education), Purba Medinipur which was communicated to the petitioner under Memo No. 198-S/10 dt. 03.01.2002. From the copy of the record as mentioned in Sl. No.5, it is revealed that the attendance register of the staff of the school from 1997 to 2000 was not found in the school and staff attendance register from 2001-2002 is kept in the office of the school. So, it was a surprise to note that the attendance register from 1997-2000, the major period of service of the petitioner is mysteriously not available in the school office. The Secretary of the school also could not produce the original copy of the approval of appointment of the petitioner. He stated that all office records are lying with the present teacher-in-charge of the School. The teacher-in-charge of the school did not appear before the District Inspector of schools (Secondary Education) Purba Medinipur, pursuant to the solemn order of the Hon'ble High Court though he was requested to appear before the District Inspector of Schools by the Secretary of the School. The District Inspector of school (Secondary Education), Purba Medinipur and the Secretary of the school tried to call the teacher-in-charge of the school from this office over telephone. but they failed to contact with him. Then the District Inspector of schools (Secondary Education), Purba Medinipur sent a special messenger to call for the Teacher-in-Charge of the School and he came to the office. The teacher-in-charge of the school stated that no original copy of the approval of appointment of Sri Suchintya Jana was in his custody. but they failed to contact with him. Then the District Inspector of schools (Secondary Education), Purba Medinipur sent a special messenger to call for the Teacher-in-Charge of the School and he came to the office. The teacher-in-charge of the school stated that no original copy of the approval of appointment of Sri Suchintya Jana was in his custody. On the statements of the petitioner and counter statements of the Secretary and teacher-in-charge of the school, it is clear that they could not produce the original copy of the approval of appointment of the petitioner. There is no record in office that the approval of appointment to Sri Suchintya Jana, the petitioner granted as Assistant Teacher of the School by the District Inspector of Schools (Secondary Education) Tamluk. Therefore, it was found that the petitioner is not an approved Assistant Teacher of the School and the xerox copy of the approval of appointment produced by the petitioner is fake. So the decision of the District Inspector of Schools (Secondary Education), Purba Medinipur to withhold the payment of the petitioner from November, 2001 and requesting the Secretary not to allow him to work in the school as was communicated under Memo No. 19-S/10 dt. 03.01.2002 and 56 dated 21.03.2002 respectively stood. Sri Ramkrishna Maity, Ex-Headmaster and the Secretary of the school submitted Grant-in-Aid application claiming the salary of the petitioner also for the period from November, 1997 to February, 2002 and pay statement/requisition upto November, 2001 and received the said amount upto October, 2001 in favour of Sri Jana. So it was decided to initiate charge against Sri Shyamalendu Manna, Secretary and Sri Ramkrishna Maity, Ex-Headmaster of the school for misappropriation of Govt. money for paying salary to the petitioner against a fake approval of appointment in favour of the petitioner. 4. Thus, a case was registered against Ram Krishna Maity and Shymalendu Manna on the complaint of the District Inspector of Schools dated 25.04.2002 under section 420/406/409 IPC. Chargesheet was submitted and the said two persons were facing trial. 5. In the midst of trial the learned Public Prosecutor filed an application before the learned Judge, Special Court, Tamluk under section 311 of the Cr.PC praying for examination of five persons of whom the present petitioner was one of them. Chargesheet was submitted and the said two persons were facing trial. 5. In the midst of trial the learned Public Prosecutor filed an application before the learned Judge, Special Court, Tamluk under section 311 of the Cr.PC praying for examination of five persons of whom the present petitioner was one of them. According to the prosecution, though the petitioner and others were not cited as witnesses in the chargesheet their evidence is necessary for just decision of the case. This petition was heard by the learned Judge, Special Court on 21.01.2009 and it was resisted by the accused persons on the ground that it was the present petitioner who approved the panel of Shri Jana as a successful candidate in History and therefore, the petitioner should have been made accused. The learned Trial Court observed as follows: "As regards the examination of Chinmoyee Pattanayek, the then D.I. of Schools, Secondary Education, Tamluk and Suchintya Jana, the Asst. Teacher of the said institution whose appointment was approved by the DI of Schools and which is in question in this case, cannot be examined as witnesses in this case because these two persons have hand in committing this offence as it appears from the evidence on record. Suchintya Jana knowing fully well that he has been empanelled in Sl. No.2 arranged appointment as Asst. Teacher in History and also arranged approval or the appointment knowing fully well that the person in the top of the list of candidate in the panel has already been appointed earlier. He also worked as Asst. Teacher and took salary from the said institution. It further reveals from the evidence on record that at the relevant time when Suchintya Jana was appointed, his appointment has been approved by Chinmoyee Pattanayek as the DI of Schools, (S.E.) Tamluk. Therefore, her hand in getting approval of the appointment of Suchintya Jana as Asst. Teacher in the school cannot be ruled out. As such, these two persons who are named in Sl. Nos.1 and 2 cannot be treated as witnesses but they need be treated as accused and according to the provision of section 319 Cr. PC these two persons need be tried together with the two accused persons presently facing trial in view of the evidence brought on record in this case." 6. Nos.1 and 2 cannot be treated as witnesses but they need be treated as accused and according to the provision of section 319 Cr. PC these two persons need be tried together with the two accused persons presently facing trial in view of the evidence brought on record in this case." 6. It is this order of the learned Judge which is the subject-matter of challenge in this application. 7. There has been an extensive argument advanced by Mr. Milan Mukherjee, learned Advocate appearing for the petitioner to the effect that in spite of no evidence having transpired against the petitioner learned Judge simply being overwhelmed by a wrongful submission of the accused's Counsel summoned the petitioner under section 319 of the Cr. PC when in fact prayer was made for her examination by the prosecution under section 311 Cr. PC Mr. Alok Roychowdhury, learned Advocate appearing for the State of West Bengal did not oppose" the application rather supported the submission of Mr. Mukherjee. 8. Now, question is whether the petitioner was instrumental in approving the panel showing Shri Jana as a successful candidate in History for his appointment in the school concerned. The prosecution examined nine witnesses and fairly speaking so far as the petitioner is concerned there is no evidence. 9. P.W. 1, Mahadev Chandra Jana, the Deputy Inspector of Schools (Higher Secondary) who is the FIR maker and who is the successor of the present petitioner Smt. Chinmoyee Pattanayek said nothing against the present petitioner and his evidence is as follows: "I made inquiry regarding a complaint submitted by some guardians of the students of the school. On proper intimation I made inquiry of the said institution but the Headmaster was not present that day in the school. But in presence of the Secretary, I tried to enquire. But in presence of the Secretary, I tried to enquire. The Secretary failed to produce any document in absence of the Headmaster, so the inquiry could not be held that day. Subsequently, in view of the direction of the Hon'ble Court, Calcutta I held an inquiry at my office on 19.04.2002 in presence of Suchintya Jana, Shyamalendu Manna and Bijoy Kumar Sasmal, teacher-in-charge. On completion of inquiry I arrived at a conclusion that the order of approval passed in favour of the Suchinta Jana was fake. Subsequently, in view of the direction of the Hon'ble Court, Calcutta I held an inquiry at my office on 19.04.2002 in presence of Suchintya Jana, Shyamalendu Manna and Bijoy Kumar Sasmal, teacher-in-charge. On completion of inquiry I arrived at a conclusion that the order of approval passed in favour of the Suchinta Jana was fake. The accused persons 'are the Headmaster and the Secretary of the said Naikuri Thakurdas Institution who submitted grant-in-aids application before the office of the DI for payment of the teachers including the teacher namely, Suchintya Jana. This is the grant-in-aid application submitted by accused persons/teachers including Suchinta Jana before the DI of Schools with their seals and signatures. I know the signature of the accused persons namely. Ramkrishna Maity and Shyamalendu Manna. Signature dated 22.09.2001 of Ramkrishna Maity and signature dated 22.09.2001 of Shyamalendu Manna with their seals of office in grant-in-aid applications for the year ended 2001-02, marked Exbt. 2 series and 2/ 1 series respectively. The date of joining of Suchinta Jana as appearing in the grant-in-aid application is dt. 03.11.1997. He used to get more than salary of Rs.10,313/- p.m. This is the noting of attestation made by the Headmaster Ramkrishna Maity dt. 20.09.2001 i.e. seal in the copy of letter of approval of appointment of teaching staff of the school dt. 4.3.98 (note regarding attestation of the Headmaster dt. 20.09.2001 in the copy of letter of approval of appointment of teaching staff, marked Exbt. 3). The attestation by the Headmaster with seal and signature dt. 20.07.1999 in the copy of the approval of appointment of teaching staff dt. 4.3.1998 is marked Exbt. 3/1. This is the Option Form and Pay Fixation Form submitted by the Headmaster Ramkrishna Maity with his seal and signature at 20.07.1999. The two signatures of the Headmaster Ramkrishna Maity with his seal dt. 20.07.1999 in Option Form and Pay Fixation Form, marked Exbts. 4 and 4/1. He further says in his evidence that during office inquiry I examined Chinmoy Pattanayek, the then DI of Schools but there is no reflection of such examination of Chinmoy Pattanayek in my inquiry report submitted. Prior to such inquiry I served notice upon the accused persons intimating that I shall hold inquiry. In the inquiry report attached by me with the FIR do not contain that I served notice upon Ramkrishna Maity. the Headmaster prior to such inquiry. Prior to such inquiry I served notice upon the accused persons intimating that I shall hold inquiry. In the inquiry report attached by me with the FIR do not contain that I served notice upon Ramkrishna Maity. the Headmaster prior to such inquiry. In the office of the DI of School i.e. our office have the list of all names of teachers who are appointed in the secondary school within our area. During inspection we meet the teachers appointed in the respective schools, inspect the teachers' Attendance Register. Not a fact the Secy. has no role to play in the day-to-day business of the school. During inquiry I have gone through the attesting signature of the Headmaster of the said institution. This attestation by the accused Headmaster has been made in the document and those documents were annexed with the grant-in-aid application to be submitted before the DI. These grant-in-aid applications alongwith annexed documents were submitted in my office during my tenure. Before submission of this FIR I verify the previous grant-in-aid applications submitted by the said accused persons in respect of .the said institution. The previous grant-in-aid applications were submitted prior to my tenure of office as DI but during the tenure of Chinmoy Pattanayek. The copy of approval of appointment of a teacher is written at the office of DI of Schools and the original was sent to school concerned who on their part sent a copy of the same to the incumbent teacher. The copy of approval of appointment of Suchinta Jana was there in our office but only on verification of the list of the teachers etc. mentioned in grant-in-aid application submitted by Headmaster and Secretary of the school we released the salary fund. List of contribution to the G.P. Fund of the teachers being prepared by school authorities were sent to our Sub-Div. Office where the same is maintained and the said Sub-Div. Office including myself as D.I. verify/ascertain as to whether the approval amount of G.P.F. was deducted. On 14.9.011 joined as DI of Schools. Tamluk and my immediate predecessor was Chinmoy Pattanayek. There is no mention in the inspection report (document marked "x" for identification) on the basis of some well-wishers of the said institution I held inquiry. Office including myself as D.I. verify/ascertain as to whether the approval amount of G.P.F. was deducted. On 14.9.011 joined as DI of Schools. Tamluk and my immediate predecessor was Chinmoy Pattanayek. There is no mention in the inspection report (document marked "x" for identification) on the basis of some well-wishers of the said institution I held inquiry. There is no mention in the inquiry report marked "x" for identification that I made enquiry in arriving at the said institution i.e. Naikuri Thakurdas Institution. I cannot say how the first salary disbursement of Suchinta Jana as Asst. Teacher of Thakurdas Institution was made and the same can be disclosed by Chinmoy Pattanayek, the then DI of Schools. After due checking of the amount mentioned in the grant-in-aid application we release the fund to the concerned school. Not a fact on disbursing the salary to Suchinta Jana as Asst. Teacher of the said institution the accused persons did not misappropriate the said salary amount. I cannot say and I do not know whether Suchinta Jana in collusion with my predecessor-in-office namely, Chinmoy Pattanayek prepared the fake approval of appointment of Suchinta Jana. Not a fact to save my predecessor Chinmoy Pattanayek, I lodged this FIR falsely against these accused persons. Not a fact the accused persons are in no way connected with the allegation made in this case. Not a fact some well-wisher guardians made complaint before me which prompted me to inquire into this matter. Not a fact I did not visit the said institution for causing any inquiry in this regard." 10. He said in his cross-examination that he does not know whether Shri Jana in collusion with his predecessor, namely Smt. Chinmoyee Pattanayak prepared the vague approval of appointment of Shri Jana. He denied the defence suggestion that to save his predecessor he lodged the FIR against the present accused persons. 11. P.W. 2, Abhijit Mishra did not say anything against the petitioner. 12. P.W. 3. Bijoy Krishna Sasmal said that Shri Jana worked as Assistant Teacher of the school from 1997-2001. 13. P.W.4, Shruhid Baran Maity, P.W. 5, Mukunda Hembram, P.W. 6, Sitangshu Sekhar Ghorai, P.W. 7, Prabitra Nath Gajendra Mahapatra. P.W. 8, Ganesh Chandra Mondal and P.W. 9, Manik Chandra Bera did not adduce any evidence in the form that it was the petitioner who is instrumental in appointing Shri Jana as teacher of the school. 14. 13. P.W.4, Shruhid Baran Maity, P.W. 5, Mukunda Hembram, P.W. 6, Sitangshu Sekhar Ghorai, P.W. 7, Prabitra Nath Gajendra Mahapatra. P.W. 8, Ganesh Chandra Mondal and P.W. 9, Manik Chandra Bera did not adduce any evidence in the form that it was the petitioner who is instrumental in appointing Shri Jana as teacher of the school. 14. Certain documents formed the core of the matter. No doubt, at the material point of time the present petitioner was the District Inspector of Schools (S.E., Purba Midnapore) at Tamluk. She is the predecessor in the office of the FIR maker. Memo No. 220-S dated 04.03.1998 is approval of appointment of two teachers, namely Madhusudan Murmu and Debangshu Das as serial Nos. 1 and 2 respectively. The first one was recommended for appointment as a teacher in English and Bengali and the second one in Geography. This approval was signed by the petitioner as District Inspector of Schools on 2nd March, 1998. Memo No. 1858-S dated 16th October, 1997 is another approval of panel issued by the petitioner in favour of Madhusudan Murmu, Bidyadhar Mundi and Rajendra Nath Soren in the category of first, second and third. On the basis of this approval of panel dated 16.10.1997 the petitioner recommended approval of appointment of Madhusudan Murmu by letter dated 02.03.1998 addressed to the Secretary of the school. Now, Memo No. 1859-S dated 16.10.1997 is another panel of Debangshu Das. Chanchal Gayen and Uttam Das in Geography and on the basis of this panel approved by the petitioner she recommended appointment through her letter dated 02.03.1998 for appointment of Debangshu Das. Now, so far as Shri Jana is concerned, the petitioner forwarded a panel in respect of Birendra Nath Kar, Shri Jana and Gourhari Das as first, second and third in the History. This is by Memo No. 1862-S dated 16.10.1997. The first candidate Birendra Nath Kar was recommended for appointment by another District Inspector of Schools on 10.12.1997 under Memo No. 2107-S. Now, the only evidence purported to be existing against the present petitioner is an attested copy of approval of appointment in favour of the Shri Jana. This is Memo No. 220-S dated 04.03.1998 which is said to be approval of appointment. Now. This is Memo No. 220-S dated 04.03.1998 which is said to be approval of appointment. Now. what is submitted by the learned Advocate for the petitioner is that in the said letter No. 220-S dated 04.03.1998 which is said to be attested copy of the original Memo Shri Jana appears under serial No.2 in History and serial No.1 is Madhusudan Murmu but Madhusudan Murmu's appointment letter appears in serial No.1 of an identical Memo no. 220-S dated 04.03.1998 wherein serial No. 2 was Debangshu Das. What is submitted is that the Memo No. 220-S dated 04.03.1998 wherein Madhusudan Murmu and Debangshu Das were recommended for the appointment is the genuine Memo and what the earlier Headmaster and the earlier Secretary did was to incorporate the name of Shri Jana in serial No.2 of the said Memo by pasting the name of Shri Jana in place of Debangshu Das in item No.2 by forging and manipulating the genuine Memo No. 220-S dated 04.03.1998 so as to incorporate the name of Shri Jana in S.L. No.2 (History) while in the genuine memo Sl. No.2 was Debangshu Das (Geography). It is argued that since there was one vacancy in History, which ,was filled up by Sri Birendra Nath Kar, the first candidate in order of merit there was no scope of appointment of Sri Jana in the same subject and the Headmaster and the Secretary did never had guts to produce the Memo No. 220-S dt. 4.3.98 which they claimed to be in their possession and from which an attested copy was issued to Sri Jana after getting it attested by the Headmaster. It is submitted that the petitioner did not issue any letter of appointment in favour of Shri Jana and it was the accused persons in collusion with Shri Jana who managed to prepare a xerox copy so as to put the name of Shri Jana in serial No.2 in the fake approval letter while in the original approval in serial No.2 there appears the name of Debangshu Das. The signature of the petitioner in the said two Memos - one original and the other copy is the same. This argument has not been countered by the State. 15. The signature of the petitioner in the said two Memos - one original and the other copy is the same. This argument has not been countered by the State. 15. Since the trial is in progress this Court is not called upon to comment whether the Memo No. 220-S wherein Debangshu Das (Geography) was put in serial No.2 or the attested copy of the Memo being 220-S showing Shri S. Jana (History as serial No.2) is genuine. The Court again is not called upon to pronounce a verdict of guilt or innocence in favour of the petitioner but the fact remains that no evidence did transpire as yet in positive terms that can propel the learned Judge to summon the petitioner under section 319. The evidence disclosed certain doubts with regard to how during the regime of the petitioner as District Inspector of Schools Shri Jana could be allowed to draw his salary. P.W. 1 said in cross-examination that he cannot say how the first salary disbursement of Shri Jana as an Assistant Teacher of the school was made and the same can be disclosed by the petitioner. He further said that after due checking of the amount 'mentioned in the grant-in-aid application fund is released to the school. He further said that on verification of the list of teachers etc. mentioned in grant-in-aid application submitted by Headmaster and Secretary salary fund is released. How the first salary of Shri Jana was released during the tenure of the petitioner has been the question. This can be presumably explained by the petitioner. Yet, since there is no evidence till now enabling the learned Judge to summon the petitioner as an accused the order impugned cannot be sustained. The provision of section 319 can be resorted to when it would appear before the learned Judge that evidence has been adduced in trial so as to find involvement of persons other than the accused on dock in the commission of the offence. If during trial and as examination of the witnesses proceeds the learned Judge find involvement of the present petitioner as an accused then and then provision of section 319 Cr. PC can be invoked but when there is no evidence the aid of section 319 cannot be invoked. 16. In this connection decision in Lal Suraj @ Suraj Singh & Anr. vs. State of Jharkhand, 2009(1) C Cr. PC can be invoked but when there is no evidence the aid of section 319 cannot be invoked. 16. In this connection decision in Lal Suraj @ Suraj Singh & Anr. vs. State of Jharkhand, 2009(1) C Cr. LR (SC) 505, has been referred. In this decision on the basis of P.W.6 and P.W.7 they were summoned under section 319 of the Cr. PC by the learned Trial Court. Their Lordships of the Supreme Court observed as follows : "Section 319 of the Code is a special provision. It seeks to meet an extraordinary situation. It although confers a power of wide amplitude but is required to be exercised very sparingly. Before an order summoning an accused is passed, the Trial Court must form an opinion on the basis of the evidence brought before it that a case has been made out that such person could be tried together with the other accused. There is no dispute with the legal proposition that even if a person had not been chargesheeted, he may come within the purview of the description of such a person as contained in section 319 of the Code." 17. It has been further observed which is as follows : "The approach of the learned Sessions Judge was wholly incorrect. The principle of strong suspicion may be a criterion at the stage of framing of charge as all the materials brought during investigation were required to be taken into consideration, but, for the purpose of summoning a person, who did not figure as accused, a different legal principle is required to be applied. A Court framing a charge would have before it all the materials on record which were required to be proved by the prosecution. In a case where, however, the Court exercises its jurisdiction under section 319 of the Code the power has to be exercised on the basis of the fresh evidence brought before the Court. There lies a find but clear distinction." 18. Accordingly, the application is allowed. The order of the learned Judge is set aside. 19. A copy of this judgment shall be sent to the learned Judge, Special Court, Tamluk for information and necessary action. Appeal allowed.