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2016 DIGILAW 62 (MEG)

John Pajeelard K. Marak v. State of Meghalaya

2016-11-29

DINESH MAHESHWARI

body2016
JUDGMENT : DINESH MAHESHWARI, J. 1. These two petitions, as filed by the same petitioner and carrying inter-related facts and issues, have been considered together and are taken up for disposal by this common order. Contempt Case (C) No. 21 of 2015. 2. The relevant background aspects of this contempt petition are that by way of a writ petition [WP(C) (SH) No.120 of 2011], the present petitioner questioned the appointment of respondent No. 3 Shri Lowchimber W. Marak as Principal of Selsella Higher Secondary School, West Garo Hills District, Tura by the order dated 23.10.2010, which was approved by the Inspector of Schools, West Garo Hills, Tura under the Office Memo dated 02.03.2011. In the said writ petition, the petitioner also assailed the order dated 06.04.2011 as issued by the Secretary, Managing Committee of Selsella Higher Secondary School, reverting him to the post of Assistant Teacher from the post of Vice Principal. 3. The said writ petition was ultimately allowed by the learned Single Judge after finding infirmities in the impugned appointment order dated 23.10.2010 as also in the impugned reversion order dated 06.04.2011; and the impugned orders were set aside. A joint appeal preferred by the present respondents was considered and dismissed by a Division Bench of this Court on 13.11.2014; and the order passed by the learned Single Judge was affirmed. Even while affirming the order passed by the learned Single Judge, the Division Bench further ordered that the post of Principal be filled up after completing the requirements of the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 and the Assam Aided High and Higher Secondary School Employees Rule, 1965 and while keeping in view the law declared by the Hon'ble Supreme Court. 4. In the present contempt petition, the petitioner has submitted that after the order aforesaid, the post of Principal, Selsella Higher Secondary School, Tura was advertised and the interviews were held on 15.05.2015. The petitioner has asserted that in the said process of interviews, he too appeared for carrying the requisite qualifications and fulfilling the requisite criteria; and secured highest marks as per the result declared. The petitioner has alleged that despite himself having secured highest marks and being eligible, the Managing Committee of the School was deliberately avoiding to accord him appointment on the post of Principal. 5. In this contempt petition, notices were ordered to be issued on 16.07.2015. The petitioner has alleged that despite himself having secured highest marks and being eligible, the Managing Committee of the School was deliberately avoiding to accord him appointment on the post of Principal. 5. In this contempt petition, notices were ordered to be issued on 16.07.2015. Criminal Petition No.32 of 2015 6. It appears that after the proceedings aforesaid, the Secretary of Managing Committee of the Selsella Higher Secondary School proceeded to lodge an FIR with the allegations that the petitioner had submitted a fake and tampered mark sheet. On the basis of this FIR, Tura P.S. Case No. 247 (9) 2015 has been registered for offences under Sections 420/468/471 IPC. It is not in dispute that in relation to the said FIR, the petitioner submitted an application seeking pre-arrest bail wherein, while calling for the Case Diary, the Sessions Judge, West Garo Hills, Tura, by the order dated 03.11.2015, granted an interim bail to the petitioner. 7. Thereafter, the petitioner preferred this petition under section 482 CrPC, 1973 in this Court with the submissions, inter alia, that the issue relating to the mark sheet was examined in the writ petition and the fact was duly verified by the North Eastern Hill University in its affidavit filed in this Court; and thereafter, a categorical finding was recorded by the Court that nothing was suspicious about the mark sheet of the petitioner. Thus, according to the petitioner, the respondents had lodged the FIR only in order to subvert and negate the directions of this Court in the earlier round of litigation and to wreck their vengeance; and the FIR being a gross abuse of the process of law, deserves to be quashed. 8. Looking to the circumstances of the case, notices in this petition were ordered to be issued and both these matters, the contempt petition as also the criminal petition were placed before the Court together for consideration. Conduct Of The Petitioner 9. At the time of hearing of these petitions, when this Court noticed that there was no stay over investigation in Tura P.S. Case No. 247(9) 2015, the learned Public Prosecutor was queried on the progress of investigation; and was granted time to complete his instructions. Conduct Of The Petitioner 9. At the time of hearing of these petitions, when this Court noticed that there was no stay over investigation in Tura P.S. Case No. 247(9) 2015, the learned Public Prosecutor was queried on the progress of investigation; and was granted time to complete his instructions. After a few adjournments, this Court found that the Investigating Officer was alleging want of co-operation on the part of the petitioner and prayer for cancellation of bail had also been made; and, on the other hand, it was sought to be asserted on behalf of the petitioner that he was always available and was ready to co-operate in the investigation. Having regard to the circumstances, this Court directed in the order dated 21.09.2016 that the petitioner shall appear before the Investigating Officer on 01.10.2016 and the learned Public Prosecutor shall produce the Case Diary on the next date. The order dated 21.09.2016 reads as under:- "Having regard to the circumstances of this case, in the order dated 22.08.2016, this Court expected of the Investigating Officer concerned to expedite the investigation and for that matter, it was also expected of the petitioner to cooperate in the same; and the Public Prosecutor was directed to place the Case Diary before the Court for perusal. Mr. S. Sen Gupta, learned Public Prosecutor submits today that the Case Diary has been received by him. On being queried about the progress of the investigation, Mr. S. Sen Gupta would submit that according to his instructions, the investigation could not be completed for want of cooperation of the petitioner. Such submissions have been countered by the learned counsel for the petitioner with the assertion that the petitioner is on anticipatory bail and is readily available in Selsella Higher Secondary School, West Garo Hills District, Meghalaya and has always been ready to cooperate in the investigation. The learned Public Prosecutor submits that as per his instructions, prayer has been made for cancellation of the bail of the petitioner. On being further queried, the Public Prosecutor submits that as per the Case Diary, lastly notice was issued to the petitioner on 28.01.2016. It is difficult to appreciate that the Investigating Officer has not been able to complete the investigation despite the petitioner being available at the station and at his work place. On being further queried, the Public Prosecutor submits that as per the Case Diary, lastly notice was issued to the petitioner on 28.01.2016. It is difficult to appreciate that the Investigating Officer has not been able to complete the investigation despite the petitioner being available at the station and at his work place. Having regard to the circumstances of the case, it is considered appropriate and hence directed that the Public Prosecutor may return the Case Diary to the Investigating Officer, who shall be expected to conclude the investigation at the earliest and for that matter, the petitioner is directed to present himself before the Selsella Out Post on 01.10.2016. The Investigating Officer shall be expected to proceed expeditiously in the matter. The Case Diary shall be produced before the Court on the next date. List the matter on 18.10.2016, as prayed." 10. Thereafter, it was given out by the Investigating Officer by way of an additional affidavit that the petitioner did not appear before him on the given date and was not co-operating in the investigation. On 15.11.2016, when the associate of learned counsel for the petitioner prayed for some more time, though this Court adjourned the matter to 21.11.2016 but while taking note of the facts that neither the Investigating Officer nor the counsel had been able to establish contact with the petitioner who was not co-operating in the investigation at all; and, allegedly, the petitioner was not attending on his duties in the school for about a year. In the order dated 15.11.2016, this Court, inter alia, observed as under: "An additional affidavit was, however, filed on 18.10.2016 by the Investigating Officer stating, inter alia, that the petitioner failed to appear before him as required by the order dated 21.09.2016 on the given date and in fact, was not even available in the school concerned where he was supposed to be working. On the matter being taken up, learned counsel Ms. R. Paul submitted that the arguing counsel for this matter Mr. K. Paul is not available today. However, on being queried on compliance of the order passed by this Court, learned counsel took some time to complete her instructions. Learned counsel has now reverted to the Court with the submissions that despite all efforts for about two hours, the petitioner could not be contacted. K. Paul is not available today. However, on being queried on compliance of the order passed by this Court, learned counsel took some time to complete her instructions. Learned counsel has now reverted to the Court with the submissions that despite all efforts for about two hours, the petitioner could not be contacted. It is noticed that the copy of the affidavit filed by the Investigating Officer, specifically stating non-compliance of the order passed by this Court by the petitioner, was served on the learned counsel for the petitioner on 18.10.2016. Learned counsel Mr. R. Kar appearing for the Managing Committee of Selsella Higher Secondary School, on the other hand submitted that as per his instructions, the petitioner is not attending on his duties for last about one year. Learned Public Prosecutor submits that according to his instructions too, the petitioner is not attending on his school duties for last about one year. According to the Public Prosecutor, thought the petitioner has the house and family at Selsella but, he is not found there and his whereabouts are not known despite all efforts. It appears to be a seriously questionable state of affairs that the petitioner has chosen not to cooperate in the investigation and prima facie, it appears to be a case of the petitioner misusing the indulgence granted to him by way of pre-arrest bail. Moreover, the petitioner has not complied with the order passed by this Court on 21.09.2016. Having regard to the circumstances of the case, when it is indicated that the application for cancellation of bail is pending, it is considered appropriate and hence directed that such application shall be taken up by the Court concerned in priority and shall be decided in accordance with law at the earliest. Having noticed the questionable conduct of the petitioner, this Court would have considered rejecting this petition and the connected contempt petition filed by him but, as it has been submitted that the arguing counsel is not available, while giving an opportunity to the arguing counsel to make submissions on the next date, the matter stands deferred today. Be listed on 21.11.2016." 11. Thereafter, on 21.11.2016, learned counsel for the petitioner prayed for yet further indulgence with the submissions that as per the information received by him, probably, the petitioner was not keeping in good health and hence, could not carry out the requisite compliance. Be listed on 21.11.2016." 11. Thereafter, on 21.11.2016, learned counsel for the petitioner prayed for yet further indulgence with the submissions that as per the information received by him, probably, the petitioner was not keeping in good health and hence, could not carry out the requisite compliance. Though no specific submission was forthcoming as to why the petitioner was not co-operating with the investigation and there was nothing specific regarding his alleged ailment yet, in the interest of justice, another opportunity was extended and the matter was posted to this date while still providing another chance to the petitioner to appear before the Investigating Officer on 25.11.2016 to explain the reasons of his absence earlier as also to cooperate in the investigation. 12. On the matter being taken up today, learned counsel, Shri K. Paul appearing for the petitioner expresses regrets that despite all efforts, he has not been able to establish contact with the petitioner and frankly submits that he is not in a position to make any further prayer on behalf of the petitioner. The learned Public Prosecutor submits, again, that the Investigating Officer has made further efforts to locate the petitioner and has contacted his family members too but, nobody was giving any information or any clue on the whereabouts of the petitioner. The learned counsel for the Managing Committee of the School as also the Public Prosecutor reiterate that the petitioner is not attending on his duties. These petitions cannot be continued further 13. The aforesaid conduct of the petitioner makes it absolutely clear that after being granted indulgence in the application for pre-arrest bail, he has chosen not to co-operate with the legal processes and despite repeated orders by this Court, has failed to turn up before the Investigating Officer. As noticed, even the learned counsel instructed to appear for the petitioner is unable to establish contact with him despite all efforts and repeated adjournments. In the given set of facts and circumstances, this Court is clearly of the view that even if the petitioner had some grounds to urge in the petition under section 482 CrPC, 1973 such inherent powers of this Court cannot be exercised in his favour. 14. In the given set of facts and circumstances, this Court is clearly of the view that even if the petitioner had some grounds to urge in the petition under section 482 CrPC, 1973 such inherent powers of this Court cannot be exercised in his favour. 14. Moreover, when an FIR has been lodged in relation to the documents produced by the petitioner, necessary investigation in that regard shall be carried out to find if the necessary ingredients of alleged offences exist or not. For that matter, the Investigating Officer is expected to carry out the investigation dispassionately and to file the result of investigation with the concerned Court at the earliest. 15. With the observations foregoing, the petition under section 482 CrPC, 1973 is required to be dismissed. 16. At this juncture, learned counsel for the petitioner submits that the petitioner may be allowed to withdraw. This submission has only been noted to be rejected. When the petitioner has chosen not to co-operate with the processes of law and has shown disrespect to the rule of law by his conduct of avoidance and defiance, nothing of indulgence could be considered available for him. 17. So far the contempt petition is concerned, when the qualification and credentials of petitioner are in question; and the petitioner is avoiding the process of law, this Court does not find it to be a case of deliberate disobedience on the part of respondents. The contempt petition is also required to be dismissed. Conclusion 18. Accordingly and in view of the above, both these petitions stand dismissed. Notices in the contempt petition stand discharged.