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2019 DIGILAW 730 (CAL)

Satya Sundar Bhusan v. State of West Bengal

2019-07-19

ARIJIT BANERJEE

body2019
JUDGMENT : ARIJIT BANERJEE, J. 1. The entire process of Teacher Eligibility Test, 2014 (in short TET, 2014) is under challenge in the present writ petition. 2. The case of the petitioner in short is that he appeared for the TET 2014 on 11th October, 2015. After he came out of the examination centre, he was told by his close friends that different electronic media channels including ABP Ananda had reported that the question paper of TET 2014 had leaked out two hours before the scheduled time of commencement of the examination. The learned Senior Counsel referred to various newspaper reports and submitted that according to those reports at least two and a half hours before the commencement of the examination the question paper had leaked out. Hence, the examination should be cancelled. 3. Mr. Bhattacharya, learned Senior Counsel appearing for the petitioner took me in great details through the charge-sheet/final report submitted by the S.I of D.D/ Special Cell (GS). The operative portion of the police report reads as follows:- "After summing up the material evidences both oral and documentary it is prima facie revealed that no physical form of alleged TET 2014 question paper was circulated amongst any person before commencement of examination on 11/10/2015. Investigation also revealed that accused Moidul Islam Molla with an intention to malign the process of examination of TET 2014 and to make a news of leakage of question paper prior to commencement of examination, somehow dishonestly and fraudulently procured the images of question papers of TET 2014 examination pages 4SDL, 5SDL, 26 SDL, 27SDL, 28SDL, 29SDL, 30SDL, 31 SDL all total 8 pages of SDL series and sent it to Nakibuddin Gazi through whatsapp application registered in respect of mobile number 8001942355 in to the whatsapp application of Nakibuddin Gazi in his registered mobile number 9933459826 and subsequently Nakibuddin Gazi sent the same to Mr. Anupam Goswami mobile via Whatsapp in his registered mobile number 9883879465 and Mr. Anupam Goswami had sent the same to the Whatsapp application of Principal Secretary Mr. Arnab Roy on the date and time as mentioned in the foregoing paragraphs. Anupam Goswami mobile via Whatsapp in his registered mobile number 9883879465 and Mr. Anupam Goswami had sent the same to the Whatsapp application of Principal Secretary Mr. Arnab Roy on the date and time as mentioned in the foregoing paragraphs. Investigation in respect of procurement of images of alleged question papers by Moidul Islam Molla was carried out but no fruitful result could be yielded as the accused Moidul Islam Molla dishonestly and fraudulently concealed the alleged mobile wherein he had received the alleged images neither he disclosed the source from where he had obtained the same rather it is evident from the investigation that accused Moidul Islam Molla dishonestly and fraudulently with an intention to malign the process of TET 2014 examination did such act to cause damage or harm to the reputation of the examination process by concealment of fact which is a deception in committing such cheating. In doing so accused Moidul Islam Molla knowingly or having reason to believe that the said offence of cheating has been committed by him, caused the evidence of the commission of that offence to disappear with the intention to screen the offender. Thus Moidul Islam Molla has committed the offence U/S 417, 201 IPC. As such cognizance may kindly be taken into this case and necessary legal process may kindly be initiated against accused Moidul Islam Molla for committing offence U/S 417, 201 IPC in the interest of justice." 4. Learned Senior Counsel submitted that the police investigation was deliberately misguided. It was never the petitioner's allegation that there was physical leakage of question paper. The case is that the questions were leaked through mobile phone applications like Whatsapp. He submitted that the Apex Court has held that where the slightest possibility of leakage of question paper is found, the entire examination process must be cancelled. In support of his submission, Mr. Bhattacharya relied on the following decisions:- (i) Tanvi Sarwal versus Central Board of Secondary Education and others, 2015 6 SCC 573 . (ii) Nidhi Kaim versus State of Madhya Pradesh and others, 2016 7 SCC 615 . (iii) Nidhi Kaim and another versus State of Madhya Pradesh and others, 2017 4 SCC 1 . 5. Learned Senior Counsel submitted that the enquiry was held by the police authorities in such a manner that the State administration is not found to be at fault. (iii) Nidhi Kaim and another versus State of Madhya Pradesh and others, 2017 4 SCC 1 . 5. Learned Senior Counsel submitted that the enquiry was held by the police authorities in such a manner that the State administration is not found to be at fault. He submitted that an independent enquiry should be conducted into the matter. In this connection, he relied on the following decisions:- (i) Pratim Kumar Singha Ray versus Union of India, 2013 3 CalHN 172. (ii) Subrata Chattoraj versus Union of India and others, 2014 8 SCC 768 . (iii) Unreported judgment of a learned Single Judge delivered on 17th March, 2017 in W.P. 24365 (W) of 2014 (Arkadeb Mukherjee versus The State of West Bengal and others.). 6. Appearing for the West Bengal Board of Primary Education, Mr. L. K. Gupta, learned Senior Counsel submitted that the allegation that the question paper of TET, 2014 that was held on 11th October, 2015 had leaked out two hours before the scheduled time of commencement of the examination is baseless, concocted and motivated. The reporting by electronic media like ABP Ananda, ABP News Network etc. is unverified publication without determining the correctness and genuineness of the contents. 7. On 13th October, 2015, the office of the Board received a letter from the Officer-in-Charge, Gariahat Police Station, Kolkata, addressed to the President of the Board, enclosing a copy of a letter submitted by Mayukh Thakur Chakraborty, Reporter of ABP Ananda on 11th October, 2015 at about 13.50 hours along with some documents being purported copies of question papers (4 pages) and intimating that the matter had been duly reported to the Chairman, District Primary School Council, Kolkata over phone. Upon receipt of the said letter dated 13th October, 2015, the President of the Board requested the Commissioner of Police, Kolkata to make a thorough investigation into the matter to unearth the truth. 8. Mr. Gupta then submitted that there is no material produced with the writ petition to show that all the media (electronic and print) had received the question papers around two and half hours before the commencement of the examination as alleged. There is no basis for the apprehension of the petitioner that the question paper had leaked out much before the examination. There is no basis for the apprehension of the petitioner that the question paper had leaked out much before the examination. It is not the case of the petitioner that he had personal knowledge of leakage of the question paper before the commencement of the examination and his appearance at the examination. Newspaper reporting is no evidence. 9. From the petitioner's own averment, it would appear that by its notice dated 1st September, 2015 published in the electronic media as well as Newspapers, the Board notified to the public at large that the TET, 2014 that was scheduled for 4th October, 2015 would be held on 11th October, 2015 from 2.00 p.m. It was mentioned in the said notice, inter alia, that all examinees must reach the examination venue at least one hour before the scheduled time of commencement of the examination, i.e. by 1.00 p.m. Similar notice was again issued and published by the Board in the Newspapers on 9th October, 2015. Internal instructions were also issued by the Board to all the examination centres to the same effect. All the candidates including the petitioner entered their respective examination halls and received their OMR sheets and question booklet fifteen minutes prior to commencement of the examination i.e. by 1.45 p.m. and the examination commenced at 2.00 p.m. Prior thereto there was no complaint received by any authority regarding leakage of the question paper. It would appear from the letter dated 13th October, 2015 written by the Officer-in-Charge, Gariahat Police Station that the complaint of Mayukh Thakur Chakraborty was received by the Police Station at about 13.50 hours on 11th October, 2015, after all the candidates including the petitioner had entered their respective examination halls and had received the OMR sheets and question booklet. 10. Learned Senior Counsel then submitted that it is apparent from the four pages of the question papers annexed to the complaint letter dated 11th October, 2015 that the said four pages are photographs taken by electronic device and not photocopies of the question booklet which consisted of thirty two pages. There was no physical leakage of the question papers. 10. Learned Senior Counsel then submitted that it is apparent from the four pages of the question papers annexed to the complaint letter dated 11th October, 2015 that the said four pages are photographs taken by electronic device and not photocopies of the question booklet which consisted of thirty two pages. There was no physical leakage of the question papers. The question papers consisted of thirty two pages out of which copies of four pages could somehow be taken out through electronic devices from the examination venue by some interested persons with an ulterior motive only after distribution of the OMR sheets and question booklet to the candidates/examinees between 1.30 p.m and 1.45 p.m. During this short period, it was not possible for any person to leak out thirty two pages of the question paper of TET, 2014. 11. Mr. Gupta then submitted that admittedly there was some leakage but it could not be ascertained with any certainty as to the exact time when such leakage took place. There is no allegation that the leaked questions reached the examinees and there is no material to show the same. There were five sets of question papers and in each set arrangement of questions were different. Therefore, if the correct answer was leaked by electronic media a candidate would not know from which set he got the question paper. Hence, he would not be able to reap any undue benefit. 12. Cancellation of the examination would mean burial of the entire process. This cannot be lightly done. There is no evidence that any of the examinees got undue advantage due to the leakage. Leakage per se is not ground for cancellation of the examination. There is no presumption in law that the examinees benefited by the leakage of some of the questions. 13. Investigation of the police authorities was extensive and intensive. All connected persons were interrogated. The attempt on the part of a group to disseminate the leaked questions is a crime and disservice to the society. The object of such dissemination was to malign the system. The police has done its duty. There can be no question of transferring the investigation to any other authority. Further investigation by the State police authorities even after issuance of charge-sheet is possible as is contemplated by Section 173 (8) of the Criminal Procedure Code. The object of such dissemination was to malign the system. The police has done its duty. There can be no question of transferring the investigation to any other authority. Further investigation by the State police authorities even after issuance of charge-sheet is possible as is contemplated by Section 173 (8) of the Criminal Procedure Code. Transferring the investigation to any other authority for the mere asking would be casting aspersion on the State Police authorities without any basis. 14. Appearing for the State Mr. Amitesh Banerjee, learned Senior Counsel submitted that merely alleging that the investigation was bad is not enough. No lacuna in the investigation process has been pointed out. What has not been investigated has not been told. 15. He submitted that the entire incident relates to 11th October, 2015. All the candidates were inside the examination hall prior to alleged leakage of some of the questions. None of the candidates were allowed to carry their mobile phones. There were about 5,200 centres and 23 lakhs candidates. There is no whisper in the petition that even a single candidate received the questions. Wild and vague allegations have been made. Excepting the petitioner nobody has complained. It is significant that the petitioner did not succeed in the examination. 16. A general diary being No. 866 dated 11th October, 2015 was duly recorded by the police. The Officer-in-Charge realising the sensitive nature of the complaint, immediately entrusted the complaint to Sub-Inspector Bireswar Roy for enquiry. The records also show that the Officer-in-Charge, Gariahat Police Station and Sub-Inspector Bireswar Roy immediately contacted Kartick Manna, Chairman, District Primary School Council, Kolkata over phone who informed that the examination had duly commenced and examinees had entered the examination hall by 13.00 hours. 17. Records also show that on 13th October, 2015, the Officer-in-Charge, Gariahat Police Station forwarded the four pages of the question paper with the covering letter of Mayukh Thakur Chakraborty of ABP Ananda to the President of West Bengal Board of Primary Education who, by his letter dated 16th October, 2015 addressed to the Commissioner of Police, Kolkata requested that the allegation of leakage of question papers be investigated and the truth be found out. The Commissioner of Police, Kolkata upon discussion with other senior officials decided to entrust the matter to the Detective Department of Kolkata for investigation. The Commissioner of Police, Kolkata upon discussion with other senior officials decided to entrust the matter to the Detective Department of Kolkata for investigation. Sub-Inspector Rupesh Sapui of the Detective Department of Kolkata Police was entrusted with the investigation. Detailed investigation was held and final report/charge-sheet has been filed. The police has done everything to unearth the person responsible who has been identified and criminal case has been registered against him. The petitioner's prayer for conducting investigation through the Central Bureau of Investigation or any other investigating agency is not justified at all and should be rejected. 18. In reply Mr. Bhattacharya, learned Senior Counsel submitted that whether or not somebody has benefited by reason of the leakage of questions is for the Board to find out. In any event, the said question is of no consequence. Even a minute of leakage of question paper would be sufficient to vitiate the examination and reason enough to hold re-examination so as to achieve the ultimate object of fair selection. 19. I have considered the rival contentions of the parties. It is not in dispute that there was no leakage of the question paper in physical form. The police report indicates, images of eight (8) pages of the SDL series of question paper were somehow obtained by one Nakibuddin Gazi. He sent such images to one Anupam Goswami via Whatsapp who in turn sent the same through Whatsapp application to the Principal Secretary, Mr. Arnab Roy. There is no evidence at all that the said images of the eight pages of the question paper were available to any of the examinees. The allegations made in the writ petition as regards the primary teacher appointment becoming a purchasable commodity and the examinations becoming a force are bald and not supported by any evidence at all. 20. At least a prima facie case has to be made out showing that any of the candidates benefited by having advance access to the electronic images of the eight pages of the question paper to persuade the Court to cancel the examination process. An examination which was taken by approximately 23 lakhs candidates cannot be nullified on the basis of bald and vague allegations. An examination which was taken by approximately 23 lakhs candidates cannot be nullified on the basis of bald and vague allegations. It is highly improbable that Nakibuddin Gazi or Anupam Goswami had the mobile phone number of any of the candidates which would enable them to forward the electronic images of the eight pages of the question paper to such candidate. It may be noted that out of about 23 lakh candidates, nobody excepting the writ petitioner has challenged the examination process. It is also significant that the petitioner did not succeed in the examination. 21. It is trite law that newspaper report per se is no evidence in the eye of law. Apart from the newspaper reports, no material has been produced by the writ petitioner in support of his case that the media, both electronic and print, had received the 8 pages of the question paper approximately two and half hours prior to the scheduled time of the examination. I am not inclined to interfere with the examination process merely on the basis of certain newspaper reports in the absence of the authors of the reports pledging their oath for correctness of the contents of the reports. The law lays down a procedure for proving the contents of a newspaper report and make it admissible evidence in a court of law. Such procedure has not been adopted by the writ petitioner. 22. In so far as the decisions cited by Learned Senior Counsel for the petitioner in support of his prayer for cancellation of the examination are concerned, the facts of all the cases were completely different. In Tanvi Sarwal (supra), some students were caught red-handed with vests fitted with electronic communication devices. The investigation reports revealed that 44 candidates were found to be confirmed beneficiaries who were supplied answer keys during the examination through special vests fitted with electronic gadgets. The answer keys were provided by a gang of people against payment of money. Similarly in the two Nidhi Kaim (supra) cases, there was unquestionable evidence that some of the examinees were confirmed beneficiaries of illegal means adopted by them. The answer keys were provided by a gang of people against payment of money. Similarly in the two Nidhi Kaim (supra) cases, there was unquestionable evidence that some of the examinees were confirmed beneficiaries of illegal means adopted by them. Thus, in all the three cases relied upon by the petitioner either some of the examinees were caught red handed in the course of taking resort to illegal means or clinching evidence surfaced upon investigation that a section of the examinees had benefited as a result of taking resort to illegal means. In the present case, there is no evidence at all that any examinee benefited by reason of leakage of the some of the pages of the question paper. There is not even an averment to that effect in the writ petition. I have already indicated above as to why, in my opinion, the leakage of some of the pages of the question paper was unlikely to benefit any of the examinees. In my view, none of the three decisions advance the case of the petitioner. 23. In so far as the decisions regarding transferring the investigation from the State Police to CBI are concerned, all the three decisions were rendered in the special facts of those cases. In Pratim Kumar Singha Ray (supra), the Division Bench found in the facts of the case that there was grave and palpable dereliction of duty on the part of the State Police to fairly investigate the crime in the face of involvement of high police functionaries and local politicians. Under those circumstances, the Division Bench directed transfer of the case to CBI for the purpose of fair and impartial investigation and to ensure credibility and public confidence in the investigating process. In Subrata Chattoraj (supra), which was a case involving the Saradha chit fund scam, the Apex Court came to a conclusion that what had been done by the State Police was not sufficient to inspire confidence of those who were aggrieved. It was observed that although the State Police had done all that it should have done the money trail had not yet been traced. The collections made from the public far exceeded the visible investment that the investigating agency had identified. Under those circumstances, the cases registered in the various police stations in West Bengal and Odisha were directed to be transferred to the CBI. The collections made from the public far exceeded the visible investment that the investigating agency had identified. Under those circumstances, the cases registered in the various police stations in West Bengal and Odisha were directed to be transferred to the CBI. In the unreported judgment delivered in WP 24365 (W) of 2014, which was a case of brutal murder of a popular personality on the streets of an industrial town i.e., Burnpur, the learned Judge came to the conclusion that the investigating agency had failed miserably to indentify the assailants which exposed its inefficiencies and also dealt a severe blow to the upholding of rule of law, and hence, to instil confidence in the mind of society in general, and the family members of the victim in particular, it was imperative that the Court does not turn its eyes away and permit a hiatus in the quest for truth in the commission of such a heinous crime by acceptance of closure report. Under those circumstances, the learned judge opined that it was a fit and proper case where the investigation ought to be transferred to the CBI. 24. In fine, though it appears that electronic images of eight pages of the question paper were forwarded by Nakibuddin Gazi to Anupan Goswami and then to the Principal Secretary, there is not even an iota of evidence on record showing that the said images reached any of the examinees prior to the examinees entering the examination hall. It is not in dispute that the examinees were not permitted to carry their mobile phones inside the examination hall. I am not prepared to cancel the examination and set the entire process at naught on the basis of bald allegations and conjectures which are not supported or substantiated by any evidence at all. 25. I am also not inclined to allow the prayer regarding investigation by the CBI. In the present case, except making a bald allegation that the respondent authorities have failed to perform their statutory duties and discharge their obligation, no particulars have been furnished as regards any alleged shortcoming in the investigation undertaken by the State Police I am satisfied from the charge-sheet placed before me that the State Police have done all that they should have done. It has not been indicated by the petitioner as to what the State Police have failed to do. It has not been indicated by the petitioner as to what the State Police have failed to do. In any event, further investigation by the State Police authorities even after issuance of charge-sheet is possible as is contemplated by Section 173(8) of the Cr. P.C. I do not find any reason for directing transfer of the investigation in this case from the State Police to the CBI. 26. For the reasons aforesaid, this writ petition fails and is dismissed. There shall, however, be no order as to costs. Urgent certified copies of this judgment, if applied for, be made available to the parties subject to compliance with all requisite formalities.