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2017 DIGILAW 740 (KER)

K. PRADEEP KUMAR v. STATE OF KERALA REP. BY PUBLIC PROSECUTOR

2017-04-12

A.M.BABU

body2017
ORDER : 1. Petitioner seeks bail under Sec.438 of Cr.P.C. He is the accused in crime no. 472/2017, registered at Kottarakkara police station. He allegedly committed offences under Secs 420, 468 and 471 of IPC. 2. The prosecution case is this : The petitioner was working in the taluk office, Kottarakkara as Deputy Tahasildar. While so, he forged a document to cheat the government and used it as genuine for his promotion. He created a fake 'criminal judicial certificate' for getting promotion. 3. Heard the learned senior counsel for the petitioner and the learned senior Public Prosecutor. 4. Perused the case diary. 5. There are a few admitted facts. The petitioner was working as Deputy Tahsildar. He was promoted as Tahsildar in August, 2015. He retired from service in May, 2016. The above are admitted facts. 6. I have seen in the case diary a copy of an attested copy of a certificate. It certifies that the petitioner has passed the Kerala criminal judicial test conducted by the Kerala Public Service Commission. The certificate is dated 9.4.2010. The prosecution alleges that the attested copy of the certificate was produced by the petitioner in order to consider him for promotion. According to the prosecution, the said certificate is a forgery. 7. The petitioner contends that the only criterion for promotion is seniority. The learned senior counsel handed over to me for perusal a document entitled 'norms to be followed for preparation of Deputy Tahasildar/Junior Superintendent seniority list'. (The same shall be incorporated in the file). Norm No.10 states that employees who attain the age of 50 years shall be exempted from passing certain obligatory tests, including the criminal judicial test, for declaration of probation in the Deputy Tahasildar/Junior Superintendent cadre. The learned senior counsel referred to rule 13B of Part II of the Kerala State & Subordinate Service Rules, 1958 (KSSSR for short). The rule provides that notwithstanding anything contained in the KSSSR or in the Special Rules, persons in government service who attain the age of 50 years and who have put in 25 years of service shall be eligible for permanent exemption from passing the obligatory departmental tests, other than those prescribed as qualification in the Special Rules, for all purposes such as promotion, appointment as full member of a service et cetera. The point is that it was not necessary for the petitioner to forge any document to get promotion. 8. The learned senior Public Prosecutor referred to rules 4 and 6 of the Kerala Revenue Service Special Rules, 1980 (KRSSR for short). Rule 4 deals with appointment of Tahsildars. Appointment shall be made by recruitment by transfer from among full members and approved probationers in the Kerala Revenue Subordinate Service. The rule further provides that the persons included in a select list shall be ranked in the order of their seniority in the category of Deputy Tahsildars. It is also provided that the seniority will be considered only where the merit and ability are approximately equal. Rule 4 has been brought to my notice to meet the contention of the petitioner that seniority is the only criterion for promotion. 9. Rule 6 of the KRSSR provides, inter alia, that no person shall be eligible for appointment to the service unless he holds a degree in law of a recognized university or has passed the criminal judicial test. Therefore, according to the learned senior Public Prosecutor, the petitioner who was not a law graduate had to pass the criminal judicial test for being considered for promotion. It was argued that the petitioner would not have been promoted had not the attested copy of the fake certificate been produced. 10. It is not necessary to go very deep into the service rules and norms to decide a bail application. But I cannot skip also as the rules and a particular norm have been pressed into service vehemently. The norm referred to at paragraph 7 of this order is a norm in the matter of declaration of probation only. Seniority is not the only criterion for promotion as provided in rule 4(2) of the KRSSR. Rule 13B of Part II of KSSSR can have application only if the incumbent has attained the age of 50 years and has put in 25 years of service. The certificate in question was allegedly produced by the petitioner in 2010. He retired from service in 2016 and therefore he did attain the age of 50 years in 2010. But he who presses into service rule 13B of Part II of KSSSR did not produce any material to show that his length of service in 2010 was 25 years. The certificate in question was allegedly produced by the petitioner in 2010. He retired from service in 2016 and therefore he did attain the age of 50 years in 2010. But he who presses into service rule 13B of Part II of KSSSR did not produce any material to show that his length of service in 2010 was 25 years. Even the age and the length of service do not appear to be much material. For, rule 13B itself has no application if any qualification is prescribed for promotion in any Special Rule as rule 13B itself states. The KRSSR is a Special Rule. Rule 6, KRSSR, insists on a law degree or passing of the criminal judicial test as one of the minimum requirements for being considered for promotion as Tahsildar from among the cadre of Deputy Tahsildar. Therefore the petitioner cannot be heard to say that he cannot even be suspected to have forged the certificate in question. 11. I have read every paper in the case diary. There are materials in it against the petitioner. An attested copy of a certificate certifying that the petitioner has passed the criminal judicial test is in existence. There are papers in the case diary suggesting that the said certificate is fake. Even the petitioner has no case that it is a genuine certificate. The learned senior Public Prosecutor submitted as to who else other than the petitioner was interested in his promotion and would produce the certificate for being considered for his promotion. I am not expected to find anything at this stage of the case. But I cannot brush aside the aforesaid submission of the learned senior Public Prosecutor. 12. The learned Senior counsel has submitted that custodial interrogation is absolutely unnecessary in this case. Therefore, according to the senior counsel, the petitioner need not be denied bail even if the argument of the prosecution is accepted. The learned senior Public Prosecutor has made the following submissions, namely, (i) what is available at present is only an attested copy of the certificate, (ii) the original certificate should be recovered and (iii) the modus operandi and the involvement of any other person should be ascertained. Therefore, according to the senior Public Prosecutor, custodial interrogation is necessary. The learned senior Public Prosecutor has made the following submissions, namely, (i) what is available at present is only an attested copy of the certificate, (ii) the original certificate should be recovered and (iii) the modus operandi and the involvement of any other person should be ascertained. Therefore, according to the senior Public Prosecutor, custodial interrogation is necessary. Should the petitioner be given to the custody of the police is for the Magistrate to consider and decide if such custody is requested for. But, in the facts and circumstances of the case, this court cannot hold that custodial interrogation is absolutely unnecessary. 13. The investigation is at its initial stage. It started just less than a month ago. Granting bail to the petitioner under Sec.438 of Cr.P.C is likely to affect the investigation. Therefore, and for other reasons stated already, I am not inclined to grant bail to the petitioner under Sec.438 of Cr.P.C. The bail application is liable to be dismissed. 14. Dismissed.