I.A. Ansari, J.
1. This revision is directed against the judgment and order, dated 10-1-2006, passed, in Criminal Appeal No. 17/ 2005, by the learned Sessions Judge, Jorhat, whereby the Judgment and order, dated 26-5-2005, passed by the learned Sub-Divisional Judicial Magistrate, Jorhat, in GR Case No. 1036/1999, convicting the present accused-petitioner under Section 471, IPC has been upheld, but the sentence stands modified by directing the present accused-petitioner to undergo simple Imprisonment for 6 (six) months and pay a fine of Rs. l,000/- and, in default of payment of fine, suffer simple imprisonment for a further period of 1 (one) month instead of undergoing, as directed by the learned trial Court, the sentence of rigorous imprisonment for 2 (two) years with fine of Rs. 1,000/- and, in default of payment of fine, suffer simple imprisonment for a further period of 1 (one) month.
2. The case of the prosecution, as unfolded at the trial, may, in brief, be stated as follows:
On the death-in-harness of her father, Manik Bania, his daughter, Rupa Bania (the present accused-petitioner), applied for appointment on compassionate ground. Following the application, so made, the accused-petitioner was appointed, vide the order, dated 3-8-1996, as Lower Division Assistant in the office of the Executive Engineer, PWD, National Highway Division, Jorhat, on compassionate ground. Pursuant to the order, dated 3-8-1996, aforementioned, the accused-petitioner Joined the post of LDA on 26-8-1998. During the period, when the accused-petitioner was so working as an LDA, the Chief Engineer, PWD, Government of Assam, asked the Executive Engineer, PWD, National Highway Division, Jorhat, to submit the accused-petitioner's testimonials, based whereon she had been given the appointment. In terms of the directions, so issued, the Executive Engineer, PWD, National Highway Division, Jorhat, sent to the Chief Engineer, PWD, Admit Card (Ext. 'Ka'). Mark-Sheet. (Ext. 'Gha') and Pass Certificate (Ext. 'Ga') etc. which the accused-petitioner had submitted for the purpose of obtaining her appointment. On verification carried out as regard the genuineness and correctness of the testimonials, which the accused-petitioner had so submitted, it was found that her Admit Card, Mark-Sheet as well as Pass Certificate were forged ones, for, the Board of Secondary Education, Assam (SEBA) had found that the roll number whereunder the accused-petitioner had projected to have passed the HSLC examination was not even allotted to her and that the said roll number was actually allotted to one Pradip Mallik. Following the forgery so detected, the Executive Engineer, PWD, National Highway Division, Jorhat, lodged, on 10-12-99, an Ejahar at Jorhat Police Station. Treating this Ejahar as FIR, Jorhat Police Station Case No. 498/99 under Section 468, IPC was registered against the accused-petitioner. During the course of investigation, the police seized the said forged documents arid, on completion of investigation, laid charge-sheet under Section 468, IPC against the accused-petitioner.
3. To the charge framed against her under Section 468, IPC at the trial, the accused-petitioner pleaded not guilty.
4. In support of their case, prosecution examined five witnesses. The accused-petitioner was, then, examined under Section 313, Cr. P.C. and in her examination aforementioned, the accused-petitioner denied that she had committed the offence alleged to have been committed by her, the case of the defence being that of total denial. The defence also adduced evidence by examining one witness. Following the trial, so held, the accused-petitioner was found guilty of an offence under Section 465, IPC and sentenced to pay a fine of Rs. 5,000/- and. in default of payment of fine, suffer simple imprisonment for a period of three months. The findings, so reached, and the sentence, so passed, were challenged by the accused in Criminal Appeal No. 7/2002. By judgment and order, dated 15-3-2003, passed, in Criminal Appeal No. 7/2002, the learned Addl. Sessions Judge, Jorhat, held to the effect that while there was evidence to show that the accused had used the forged admit card and HSLC examination mark-sheet as genuine and materials for framing of a charge under Section 471, IPC existed, their was no material to sustain the charge under Section 465, IPC inasmuch as there was no evidence on record to show that it was the accused, who had forged the said documents. With the reasonings so assigned, the learned Additional Sessions Judge, Jorhat, set aside the judgment and order, dated 28-2-2001, which had been passed by the learned trial Court convicting the accused-petitioner under Section 465, IPC, and sent the case, on remand, for a fresh trial by, formally, framing a charge under Section 471, IPC against the accused-petitioner.
5. Upon receiving the case on remand, the learned trial Court framed a charge under Section 471, IPC, To the charge so framed, the accused-petitioner pleaded not guilty. Thereafter, the prosecution examined four witnesses in support of the charge so framed. The learned trial Court also examined the Assistant Controller of Examination, SEBA, under Section 311, IPC. The accused-petitioner was examined under Section 313, Cr. P.C. In her examination aforementioned, the accused-petitioner denied that she had committed the offence alleged to have been committed by her, the case of defence being that of denial. On conclusion of the trial, having found the accused-petitioner guilty of an offence under Section 471, IPC, the learned trial Court convicted her accordingly and passed sentence against her as indicated herelnabove. By the judgment and order, which, now, stands impugned in the present revision, the learned Sessions Judge, Jorhat, upheld the conviction of the accused-petitioner under Section 471, IPC and modified the sentence as indicated hereinabove. Feeling aggrieved by her conviction and the sentence, which, now, stands passed against her, the accused-petitioner has come to this Court with the present revision.
6. I have heard Mr. B. K. Bhattacharjee, learned Counsel, for the accused-petitioner, and Mr. B. S. Sinha, learned Additional Public Prosecutor, Assam.
7. Presenting the case on behalf of the accused-petitioner, Mr. B. K. Bhattacharjee learned Counsel, has assailed the impugned judgment and order on two grounds. Drawing attention of this Court to the provisions of Section 300, Cr. P.C. and also Article 20(2) of the Constitution of India, Mr. Bhattacharjee has submitted that when the learned appellate Court had, in Criminal Appeal No. 7/2000 aforementioned, set aside the conviction of the accused, she could not have been tried, once again, on the same set of facts for a charge under Section 471, IPC. It is next contended by Mr. Bhattacharjee that even if the trial, held on remand, was legally valid, the fact remains that the evidence on record was grossly inadequate to sustain the charge under Section 471, IPC inasmuch as there is, according to Mr. Bhattacharjee, no evidence to prove that the accused had herself forged the documents, in question, and/or that she was the one, who had handed over the said forged documents to the Department concerned for the purpose of obtaining her employment.
8. Controverting the submissions made on behalf of the accused-petitioner, learned Additional Public Prosecutor has submitted that it was not illegal for the learned appellate Court to direct, while setting aside the conviction of the accused-petitioner under Section 465, IPC, re-trial of the accused-petitioner by framing a charge under Section 471, IPC against her. For holding the re-trial, so directed, there was, insists the learned Additional Public Prosecutor, no impediment in law. It is also submitted by the learned Additional Public Prosecutor that the evidence on record amply prove that accused-petitioner did not pass the HSLC examination, which is the minimum educational qualification required for appointment as LDA, and yet she had procured the appointment on the strength of forged documents, which she knew to be forged, for, she had not, admittedly, passed the HSLC examination and that she has used the admit card, mark-sheet, etc., of another person to project as if she was the one, who had passed under the roll number, which was allotted to another successful candidate.
9. Before I enter into the question as to whether in the face of the evidence on record, conviction of the accused-petitioner under Section 471, IPC was permissible in law, it is apposite to ascertain if it is possible for a Sessions Court, while considering an appeal against conviction, to set aside the conviction and direct re-trial on a charge on which the accused person had not been tried. Can such a trial be said to be barred under Section 300, Cr.P.C. and/or Article 20(2) of the Constitution of India?
10. For the purpose of determining the question as to whether it is possible to direct re-trial of a person after setting aside his conviction on a charge on which he had not been tried, let me, first, refer to Article 20 of the Constitution of India, which reads as follows:
20. Protection in respect of conviction for offences.-- (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
11. Close on the heels of Article 20, Section 300, Cr.P.C. reads as follows:
300. Person once convicted or acquitted not to be tried for same offence:- (1) A person who has once been tried by a Court of competent Jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221, or for which he might have been convicted under Sub-section (2) thereof.
(2) A person acquitted or convicted of any offence, may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under Sub-section (1) of Section 220.
(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last mentioned offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) A person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate.
(6) Nothing in this Section shall affect the provisions of Section 26 of the General Clauses Act, 1897 (10 of 1897) or of Section 188 of this Code.
12. What is, now pertinent to note is that Clause (2) of Article 20, primarily, provides protection against being tried and punished, once again, for the same offence. Article 20(2), thus, guarantees protection from prosecution if the accused has already been prosecuted and punished for the offence for which he is, once again, sought to be prosecuted. Clause (2) of Article 20 does not, however, bar fresh prosecution of an accused, who may have been acquitted. In other words, for applicability of Article 20(2), essential it is that the previous prosecution must have ended in punishment of the accused. Section 330, Cr.P.C. is an extension of this guarantee and protects a person from being tried, once again, for the same offence irrespective of the fact whether his former trial had ended in his conviction or acquittal. In short, while Article 20(2) guarantees non-prosecution to a person, who has been punished of an offence, from being tried, once again, for the same offence, Section 300, Cr.P.C. protects such a person from being tried, once again, even if the person, so tried, was not convicted and stood acquitted. Thus, while Article 20(2) does not bar a person's trial, once again, for the same offence, if he stood acquitted. Section 300, Cr.P.C., on the other hand, not only protects the person, who has been punished for an offence from being tried, once again, for the same offence, but also protects him from being tried, once again, for the same offence even if he had been acquitted.
13. A careful reading of Section 300, Cr.P.C., as a whole, will show that if a person has been tried by a Court of competent jurisdiction for an offence and has been either convicted or acquitted of the offence, he/she may not be tried, once again, for the same offence or for another offence or the same set of facts so long as his/her conviction or acquittal remains in force, the exception to this general principle being that with the consent of the State Government, the acquitted or convicted person concerned may be tried for any distinct offence for which a separate charge might have been framed against him at the former trial. Thus, the bar for re-trial under Section 300, Cr.P.C. comes into play only when a person, having been tried, is either convicted or acquitted of the offence and the conviction or acquittal remains in force. Logically, therefore, when the conviction or acquittal is set aside, there remains no legal bar in holding a retrial, particularly, in respect of a charge on which the accused had not faced trial at all. This apart, an accused can be re-tried after removing the defects, which had led to the acquittal of the accused. For Instance, when the first prosecution was a nullity due to want of sanction required by law for the purpose of prosecution and the conviction and sentence were, for want of sanction, set aside in appeal, a fresh prosecution would not be a bar if requisite sanction for prosecution is, subsequently, granted (See Baijnath Prasad Tripathi v. The State of Bhopal reported in : 1957CriLJ597 . In fact, under Section 26 of the General Clauses Act as well as Article 20(2), double punishment for the same offence is prohibited; but there is no bar, either under Section 26 of the General Clauses Act or under Article 20(2), to a person being tried for the same offence, once again, if he was acquitted at the former trial.
14. Section 300, Cr.P.C. is nothing, but reiteration of the well-known maxim nemo debet bis vexari eadem causa (no person should be twice vexed for the same offence). This principle of criminal Jurisdiction rests on the established rule of common law that a man shall not be put twice in peril for the same offence. When an offence has been the subject of Judicial determination and even if there has been an acquittal, the acquittal is conclusive and it would be dangerous to regard a Judgment of acquittal as not fully establishing innocence of the accused (See Gurcharan Singh v. State of Punjab : [1963]3SCR585 .
15. As a corollary to what has been discussed above, it is clear that Section 300, Cr.P.C., which embodies the principle of autrefois acquit, does not apply to a case in which conviction or acquittal is set aside or is not in force, for, in order to attract the provisions of Section 300, Cr.P.C., there has to be, in force, either acquittal or conviction of a person, when he is sought to be tried either for the same offence or for a distinct offence based on the same set of facts.
16. Let me, now, point out that the power to hear an appeal from conviction is vested in the appellate Court under Clause (b) of Section 386, Cr.P.C, Let me, therefore, quote Section 386, which runs as follows:
386. Powers of the Appellate Court : After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may. If it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same.
17. Embedded in Clause (b) of Section 386 is the power given to the appellate Court to reverse the finding and sentence and after reversing the finding, the appellate Court can acquit the accused or discharge the accused or order re-trial of the accused or order that the accused be committed for trial. An appeal, thus, is not really a re-trial, but continuation of the same trial. As, on being acquitted, a re-trial is permissible in the face of the provision of Clause (b) of Section 386, it clearly follow that a conviction on re-trial is, in law and in fact, a conviction in the same prosecution. It is neither the second prosecution nor the second punishment. Retrial is, therefore, the continuation of the same prosecution and not a fresh trial. Acquittal, in certain cases, such as the present one, takes place for variety of reasons and, at times, even technical and, in such circumstances, the ends of justice may demand that the person be prosecuted after removing the defects in the procedure.
18. In fact, in Baijnath Prasad Tripathi v. State of Bhopal : 1957CriLJ597 , the Apex Court has made it clear that the whole basis of Section 403(1) of the Cr.P.C. (which is, now, Section 300 in the new Code), is that the first trial should have been before a Court competent to hear and determine the case and to record a verdict of either conviction or acquittal. If the Court is not competent to try an accused, e.g., in a case, wherein the requisite sanction, under Section 6 of the Prevention of Corruption Act, for prosecution of the accused had not been obtained, the trial, as a whole, is null and void. In such a case, observes the Apex Court, there was no conviction or acquittal in force within the meaning of Section 403, Cr.P.C. (i.e., Section 300 in the new code). Such a trial, according to the Apex Court, does not bar a subsequent trial of the accused under the Prevention of Corruption Act read with Section 161 of the Penal Code after obtaining proper sanction. The earlier proceedings, being null and void, the accused, emphasized the Supreme Court, cannot be said to have been prosecuted and punished for the same offence more than once and Article 20(2) of the Constitution is not attracted in such a case.
19. Explaining, in Ukha Koine v. State of Maharashtra AIR 1963 SC 1531 : 1963 (2) Cri LJ 418, the circumstances, where under a re-trial may be ordered, the Apex Court, in para 11, observed thus, 'An order for retrial of a criminal case is made in exceptional cases and not unless the appellate Court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the Persion accused to another trial, which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced, when it is made merely to enable the prosecutor to lead evidence, which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons.'
20. From a careful reading of Ukha Kolhe's case 1963 (2) Cri LJ 418 (supra), it is clear that an order for retrial Is made in exceptional cases, and not unless the appellate Court! is satisfied that the Court, trying the appellant, had no jurisdiction to try or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and, following this misconception, there was, in substance, no real trial or that the prosecutor or the accused, as the case may be, was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and appellate Court deems it appropriate, having regard to the circumstances of the case, that in the interests of justice, the accused should be put on trial again. An order for re-trial may, in a given case, wipe out from the record the earlier proceedings and expose the accused to another trial, which may afford the prosecutor an opportunity to rectify the infirmities disclosed at the earlier trial.
21. The questions, which, now, arise for determination are whether re-trial of a person is not possible except under those circumstances, which are indicated in Ukha Kolhe's case 1963 (2) Cri LJ 418 (supra) and whether a re-trial will, invariably and in all cases, wipe out from the record the earlier proceedings as a whole? The answer to these vital questions are not very far to seek if one carefully takes note of the Apex Court's subsequent pronouncements in this regard,
22. In a subsequent case, in Rajeswar Prasad Misra v. State of West Bengal AIR 1965 SC 1887 : 1965 (2) Cri LJ 817, referring to, and relying upon, the decision in Ukha Kolhe's case (supra), it was contended that the Court had already given an exhaustive list of the circumstances in which an order, for re-trial could be made. Rejecting this contention and making it clear that the circumstances, which the Court had referred to in Ukha Kolhe's case (supra) as the circumstances in which re-trial can be ordered, were not exhaustive, but illustrative in nature, the Court, in Rajeswar Prasad Misra (supra), speaking through Hidayatullah, J. (as his Lordship then was) observed, 'These arguments disclose a tendency to read the observations of this Court as statutory enactments. No doubt, the law declared by this Court binds Courts in India but it should always be remembered that this Court does not enact. The two cases of this Court point out that in criminal jurisdiction the guiding principle is that a person must not be vexed twice for the same offence. That principle is embodied in Section 403 of the Code and is now included. as a Fundamental Right in Article 20(2) of the Constitution. The protection, however, is only as long as the conviction or acquittal stands. But the Code contemplates that a re-trial may be ordered after setting aside the conviction or acquittal (as the case may be) if the trial already held is found to be unsatisfactory or leads to a failure of justice.'
23. From what have been observed above in Rajeswar Prasad Misra (supra), it is abundantly clear that the instances cited, in Ukha Kolhe's case (supra), permitting re-trial, are merely illustrative and not exhaustive and that in order to avail the protection of Section 300, Cr.P.C. (Section 403 of the old Code), the conviction or acquittal, as the case may be, must stand and must be in force. The protection, thus, provided under Section 300, Cr.P.C. or even under Article 20(2) would not be applicable to a case, wherein the conviction is set aside and direction for re-trial is given.
24. Close on the heels of the decision in Rajeswar Prasad Misra (supra), the Apex Court, in Matukdhari Singh v. Janardan Prasad : 1966CriLJ307 , amplified further and explained its decision in Rajeswar Prasad Misra (supra). In Matukdhari (supra), the Magistrate had not framed a charge under Section 467, IPC against the accused, for, had a charge under Section 467, IPC been framed against the accused, he would not have been triable by a Magisterial Court inasmuch as an offence under Section 467, IPC. under the old Code of Criminal Procedure, was triable exclusively by Court of Session. Pointing out, in Matukdhari (supra), that it was wholly improper not to commit the case to the Court of Session for trial of offences under Section 467/471, IPC and to try the accused for offence, which the Magistrate was competent to try, the Apex Court, speaking through VR Ramaswami, J., observed, 'The two cases of this Court were considered by us in Rajeshwar Prasad Misra v. State of West Bengal (1) : 1965CriLJ817 . We have pointed out there that a re-trial may be ordered for a variety of reasons which it is hardly necessary or desirable to state in a set formula and the observations of this Court are illustrative but not exhaustive. The Code gives a wide discretion and deliberately does not specify the circumstances for the exercise of the discretion. because the facts of cases that come before the Courts are extremely-dissimilar. We pointed out that it would not be right to read the observations of this Court (intended to illustrate the meaning of the Code) as indicating in advance the rigid limits of a discretion, which the Code obviously intended should be developed in answer to problems as they arise. We gave some illustrations of our own which fell outside those observations but which might furnish grounds, in suitable cases, for an order or re-trial. This case also furnishes an example which may be added to that list.
25. From the above observations made in Matukdhari (supra), what becomes transparent is that the Code of Criminal Procedure has not deliberately enumerated the circumstances in which a re-trial can be ordered and it would, therefore, be possible for an appellate Court to direct re-trial in a case, where a re-trial is warranted and/or when not holding of the re-trial would result in miscarriage of justice.
26. What emerges from the above discussion is that Clause (b) of Section 386, Cr.P.C. provides that in an appeal from conviction, the appellate Court may, inter alia, reverse the finding of guilty and acquit the accused or may even direct him to be retried. Such a re-trial can be ordered for a variety of reasons and such reasons may be technical in nature also. On a re-trial, if ordered, the entire proceedings of the previous trial may, in a given case, be treated to have been completely washed out of the record or may, in a given case, remain on record. For instance, when a Court, which is not a competent to try an accused, tries the accused and such a trial is interfered with and the conviction is set aside, the appellate Court may direct re-trial by a Court of competent jurisdiction provided, of course, that the Court of competent jurisdiction is subordinate to the appellate Court. In such a case, the earlier trial, having been held without jurisdiction, will stand washed out of the record. Let us, now, assume cases, wherein a Court finds that the examination of the accused under Section 313, Cr.P.C. is not adequate and/or that the accused has not been allowed to cross-examine the prosecution witnesses effectively and/or that the accused has been unreasonably denied the opportunity to adduce adequate evidence in his defence. In such circumstances too, the conviction may bet set aside and the re-trial ordered. A re-trial, which may be held in such circumstances, would not efface all that existed on record in the earlier trial, for, such a re-trial would be nothing, but a continuation of the original prosecution. It is also noteworthy that to such a case, since the conviction of the accused does not remain in force. Article 20(2) does not apply. Even Section 300, Cr.P.C. does not get attracted to such a case, for, the conviction or acquittal does not remain in force, when the appellate Court, while acquitting the accused, direct his re-trial. In such a case, since there remains no acquittal in force. Section 300. Cr.P.C. has, if I may reiterate, no application. There is no bar, thus, for retrial of a person in such a case.
27. Bearing in mind what have been indicated above, when I turn to the case at hand, what attracts the eyes is that the accused-petitioner is alleged to have obtained employment on the strength of forged documents. Since the learned appellate Court found that the accused-petitioner had not been proved to have forged the documents, in question, the offence under Section 465, IPC cannot be said to have been made out against the accused; but, at the same time, the evidence on record reveals that the accused is alleged to have used the forged document for the purpose of obtaining employment and that while so using the documents. In question, the accused-petitioner knew or had reasons to believe that the documents, relied upon and sought to be used by her, were not genuine, but forged ones. In the face of such evidence on record, the appropriate charge ought to have been, concluded the learned appellate Court, a charge under Section 147, IPC. The correctness of this conclusion was never challenged by the accused-petitioner and has, in fact, not been challenged even in this revision. This apart, the conclusion, so reached, by the learned appellate Court did not suffer from any infirmity, legal or factual. In such a case, it was perfectly legal and justified for the learned appellate Court and it was within the ambit of its powers to set aside the finding of guilt, arrived at against the accused-petitioner under Section 465, IPC, and direct her to be re-tried on a charge under Section 471, IPC. Such a direction was not only within the ambits of powers of the appellate Court, but were, in fact, in the facts and attending circumstances of the case, wholly justified, for, omission to do so would have caused serious miscarriage of Justice.
28. Having, thus, concluded and found that in the facts of the present case, it was not only permissible, but imperative that the accused-petitioner be tried after, formally, framing a charge under Section 471, IPC, I have no hesitation in holding that the retrial of the accused-petitioner did not suffer from lack of jurisdiction or any other infirmity, legal or factual, particularly, when the accused-petitioner raised no objection, when the order for re-trial was passed by the appellate Court, on 15-3-2003, in Criminal Appeal No. 07/2002 aforementioned.
29. In the backdrop of what have been held above, let me, now, turn to the question as to whether the evidence on record was sufficient to found conviction of the accused-petitioner on a charge under Section 471, IPC. While considering this aspect of the case, what may be noted is that the fact that the accused-petitioner's father died-in-harness and she was appointed as LDA, in the year 1998, on compassionate ground and that she worked, in this capacity, for about a year have not been in dispute at the trial.
30. Bearing in mind what have been pointed out above, when I turn to the evidence of PW1 (Nagendra Nath Hazarika), who was the Accounts Officer, at the relevant time, in the office of the Executive Engineer, PWD National Highway Division, Jorhat, I noticed that this witness has deposed that the accused worked in the said office for about one year and, during the year 1999, the Chief Engineer, PWD, (Roads), sent a letter to the office of the Executive Engineer, PWD, National Highway Division, Jorhat, calling for the testimonials, in original, of the accused, namely, admit card, pass certificate and mark-sheet, whereupon the office of the Executive Engineer asked the accused to furnish, in original, her admit card, mark-sheet and pass certificate and when the accused produced the same, the office concerned sent the said documents to the Chief Engineer. It is in the evidence of PW1 that the office of the Executive Engineer, PWD, National Highway Division, Jorhat, was informed, vide a letter, by the Chief Engineer that the admit card, submitted by the accused, was a forged one and directed the Executive Engineer to take legal action against her. It is also in the evidence of PW1 that along with his letter, the Chief Engineer also sent a photostat of the letter of the Assistant Controller of Examinations, SEBA, which mentioned that the admit card of Rupa Bania was a. forged one, for, the roll number shown in the admit card by the accused did not belong to her, but to one Pradip Mallik,
31. PW1 has also deposed that their Executive Engineer, then, filed an Ejahar and police seized, vide Exhibit 2, the copies of the original testimonials of the accused, namely, admit card, pass certificate and mark-sheet given by the accused and also the letter of SEBA from the office. PW1 has proved M. Ext. 'Ka' as the HSLC examination admit card of the accused, M. Ext. 'Kha' as the copy of the letter of SEBA, Ext. 'Ga' as the HSLC pass certificate, submitted by the accused, which was shown to have been issued by the Principal, Arya Bidyapith Higher Secondary and Multi-purpose School, and Ext. 'Gha' as the mark-sheet shown to have been issued by the SEBA.
32. In his cross-examination, PW1 has clarified that the application of the accused contained the papers, which had been given to the office by the accused only, and that the pass certificate, mark-sheet, etc. were seized, vide seizure list (Ext.2), from the Executive Engineer after the same were submitted by the accused. PW1 has candidly submitted that he does not know as to who had forged the documents, but he asserted that it was the accused, who had handed over the documents, in question, to the office of the Executive Engineer concerned.
33. What is, now, of utmost importance to note is that nothing could be elicited from the cross-examination of PW1 to show that his evidence given to the effect that the accused was appointed as LDA, in the year 1998, on compassionate ground, in the office of the Executive Engineer, PWD. National Highway Division, Jorhat, and/or that while the accused was in service, a letter was received by their office from the Chief Engineer directing the Executive Engineer to send, in original, the accused-petitioner's admit card, pass certificate, mark-sheet, etc., to the office of the Chief Engineer and, thereafter, the accused was asked by the office of the Executive Engineer, PWD, National Highway Division, Jorhat, to furnish the said documents and when the accused produced the said documents, the same were sent to the Chief Engineer and, later on, the Chief Engineer Informed the Executive Engineer that the said testimonials of the accused were forged ones and directed the Executive Engineer to take legal action in the matter, whereupon the Executive Engineer Informed the police and the police seized the said testimonials, in original, namely, the accused-petitioner's HSLC admit card, pass certificate and mark-sheet along with a copy of a letter issued by the Assistant Controller of Examinations, SEBA, indicating to the effect that the said testimonials were forged ones. The evidence given by PW1 to the effect that M. Ext. 'Ka', 'Kha', 'Ga' and 'Gha' were seized by Police, Ext.2 have also remained unshaken and, in fact, undisputed. What was disputed was that those documents were submitted to the office concerned by the accused. The PW1, however, denied this assertion of the defence. In short, thus, the evidence of PW1 has remained unshaken.
34. Broadly in tune with the evidence PW1, PW2, who is a UDA in the office of the Executive Engineer, PWD, National Highway Division, Jorhat, has deposed that the accused worked in their office as LDA and during the period, when she was so working, the Chief Engineer, PWD (Roads), Jorhat for from their Executive Engineer the mark-sheet, admit card, pass certificate, etc., of the accused, whereupon they sent to their Chief Engineer the mark-sheet, admit card, pass certificate, etc., submitted by the accused. It is in the evidence of PW2, in tune with the evidence of PW1, that the Chief Engineer informed them that the documents given to them by the accused were forged ones and asked the Executive Engineer to take legal action in the matter, whereupon the Executive Engineer informed the police and the police seized, vide Ext.2, the said testimonials.
35. In his cross-examination, PW2 has asserted that the said documents were submitted by the accused. In fact. PW2 has re-iterated, in his cross-examination, that the documents, which were seized by (Police) Exhibit 2, were the documents, which the accused had submitted on being asked by the office of the Executive Engineer. Same as PW1, PW2 too boldly denied the defence allegation that the documents, seized under Exhibit 2, were not handed over to them by the accused.
36. Now, let me, turn to the evidence of PW3, who retired as a Chief Engineer, but was, at the relevant time, Executive Engineer, PWD, National Highway Division, Jorhat. This witness's evidence is that when he (PW3) was working as Executive Engineer, the accused, who had already been appointed on compassionate ground as LDA, had also been working there. It is in the evidence of PW3 that during the period, when the accused had been so working, their Executive Engineer sought for verification of the pass certificate, mark-sheet, etc., of the accused. The accused accordingly submitted those testimonials and SEBA, on examining the same, informed the PWD that said documents, i.e., mark-sheet, certificate, admit card, etc., were not in the name of the accused and that the same were forged ones. In fact, it is in the evidence of PW3 that the Assistant Controller of Examinations, SEBA, wrote to the Additional Chief Engineer that the photostat of the admit card of Rupa Bania being Roll No. 5-229 No. 718 of 1995 was verified and found to be forged and that the candidate, who had appeared in the HSLC examination under Roll No. 5-229 No. 718 of 1995, was one Pradip Mallik and not Rupa Bania, PW3 has also deposed that on being advised by the Chief Engineer, he informed the police, Ext.1 being the Ejahar in this regard.
37. In his cross-examination, though PW3 has admitted that he does not know as to what exactly were the documents, which the accused had submitted at the time of her appointment, the fact remains that the unshaken and wholly reliable evidence of PW1 and PW2 clearly proves that the documents, which the office of the Executive Engineer, PWD, National Highway Division, Jorhat, were Informed to be forged ones, had been actually submitted to the said office by the accused herself.
38. Keeping in mind what have been indicated hereinabove, when I proceed further with the evidence on record, 1 find that the learned trial Court has examined the Assistant Controller of Examinations, SEBA, as a Court witness, whose evidence, in fact, runs thus : 'Presently I have been working as Asst. Controller of Examination, SEBA, I have been working in that post for the last two years. Prior to this I was working as Superintendent in the general branch. Prior to this Sri Golap Das was the Asst. Controller. On his retirement in 2003, I came to the said post of Astt. Controller. Prior to Sri Golap Das, Sri Jagat Ch. Das was the Asst. Controller. During the tenure of service of Sri Jagat Ch. Das as Asstt. Controller the i/c Garmur police outpost wrote a letter asking 'whether Smt. Rupa Bania passed her HSLC Examination 1995 under Roll No. 5-229 No. 718 or not. Ex. 4 is the letter (proved in original). On receipt of the said letter the Astt. Controller Jagat Das vide his letter No. SEBA/Tech/Verl/1/95/242, dated 22nd Sept., 2000 informed that the candidate appearing in the examination under the same Roll No. is not of Smt. Rupa Bania. It was a candidate by the name of Sri Pradip Mallik who appeared in this examination under the same Roll No. and the case of Rupa Bania is one of Forgery. Ex. 5 is the said letter. Ex.5(1) is the signature of Jagat Das which I know (proved in original). As per the Order of the Court I have brought today the tabulation register of 1995. Ex. 6 is the said tabulation register (proved in original) Ex. 6(1) is the relevant portion at page 30 of the register (proved in original).
Ex.6(2) presence the name of Sri Pradip Mallik against Roll No. 5-229 No. 718. There is no any Name of Rupa Bania. The tabulation register contains the name of the candidate, Roll No. and the result. Marks of the examination is also contained therein. According to the said tabulation register Smt. Rupa Bania did not appear in the examination under Roll No. 5-229 No. 718. It was a boy named Pradip Mallik who appeared in the examination.
I have brought the manuscript sent by the school containing the particulars of the candidates.
Ex. 7 is the said manuscript. Ex. 7(1) is the relevant portion of the said manuscript.
Tabulation register is prepared from the manuscript. The name of Rupa Bania is not there in the manuscript. In this manuscript the name of Sri Pradip Mallik appeared at No. 918. It may be said from tile tabulation register of 1995 (Ex.6) and the manuscript (Ex. 7) that Rupa Bania did not appear in the HSLC Exam. under Roll No. 5-229 No. 718.
The mat. Ex. 'Ka', the admit card in the name of Rupa Bania 'the mat. Ex. Kha' the mark-sheet in the name of Rupa Bania which I can see today in the Court are both forged. It is because the name of Rupa Bania is not there against the said Roll No. in the tabulation register and the manuscript which I have filed in the meantime.
For the same reason, the mat. Ex. 'Ga' the certificate is also forged.
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I was not the Asst. Controller In 1999. I do not know what investigation is conducted by police in this connection.
It Is not a fact that my predecessor Astt. Controller did not report after seeing Ex. 'Ka' and 'Kha'. In 1995, B.C. Goswami was the Controller of Examinations.
I cannot say whether the mat Ex. 'Ka' and 'Kha' is in the SEBA format.
39. While considering the above evidence of CW.1, what is of immense importance to note is that the defence has not disputed the evidence given by this witness to effect that Roll No. 5-229 No. 718 stood in the name of one Pradip Mallik and not Rupa Bania, (i.e., the accused-petitioner) and, similarly, that the relevant tabulation register, which contains the name of the candidates, roll numbers, marks obtained and the results, reflect that accused Rupa Bania had not appeared in the HSLC examination under Roll No. 5-229 No. 718; rather, this Roll No. was of a boy named Pradip Mallik.
40. Nothing has been elicited by the defence to show that the accused-petitioner had appeared, in the HSLC examination, under Roll No. 5-229 No. 718 aforementioned nor is there anything on record to show that the accused-petitioner had ever succeeded in the HSLC examination.
41. What surfaces from the discussion of the evidence on record, as a whole, is that the accused-petitioner obtained appointment, on compassionate ground, in the office of the Executive Engineer, PWD, National Highway Division, Jorhat. as a Lower Division Assistant, and. on being directed by the Chief Engineer, when the Executive Engineer asked the accused-petitioner to submit her testimonials, the accused-petitioner submitted, in original, her admit card, mark-sheet and pass certificate. These testimonials were sent to the Chief Engineer's office, who. in turn, sent the same to the SEBA for verification and, on verification, the SEBA found that the Roll Number under which the accused had claimed or shown to have appeared and passed the HSLC examination was not, in fact, allotted to the accused-petitioner, but to one Pradip Mallik. It is of great significance to note that it is not the case of the accused-petitioner that the minimum qualification for appointment, as LD Assistant, is passing of the HSLC examination.
42. Coupled with the above, the defence has, nowhere, asserted - not even at the time of moving this revision - that the accused-petitioner had not passed the HSLC examination was incorrect inasmuch as the Roll No. 5-229 No. 718 did not belong to Pradip Mallik, but to the accused-petitioner.
43. The learned trial Court, I find, examines the accused-petitioner adequately under Section 313, Cr.P.C. In her examination aforementioned, the accused-petitioner merely claimed that she had not submitted the testimonials, in question, and that she knows nothing. In the fact of the evidence on record, particularly, when one considers the evidence of PW1 and PW2, in the light of the evidence of CW1, there remains no escape from the conclusion that the documents, on the basis of which the accused-petitioner had obtained her appointment on compassionate ground, were forged ones. The question, now, is this : whether in the face of such evidence on record, accused-petitioner could have been held guilty of the offence under Section 471, IPC?
44. While considering the question posed above, it is pertinent to note that to constitute an offence under Section 471, IPC, prosecution must prove the following ingredients-
i) That the document was forged one.
ii) That the accused person used such document fraudulently or dishonestly.
iii) That the accused used the document, in question, as a genuine one.
iv) That the accused knew or had reason to believe that it was a forged document.
45. Bearing in mind the ingredients of Section 471, IPC, when I revert to the evidence on record, I notice that there is no dispute that the minimum qualification prescribed for appointment as Lower Division Assistant is passing of the HSLC examination or equivalent examination. Claiming to have passed the HSLC examination, the accused-petitioner had obtained her appointment as Lower Division Assistant, on compassionate ground, in the office of the Executive Engineer, PWD, National Highway Division, Jorhat. There is not even an iota of evidence on record to show that the accused-petitioner has passed the HSLC examination. There is, therefore, no doubt that she could not have obtained her appointment as Lower Division Assistant on compassionate ground. This apart, the accused-petitioner had submitted, in original, the admit card, pass certificate, mark-sheet, etc., indicating as if she had passed the HSLC examination under Roll No. 5-229 No. 718. The verification by the office of the SEBA, later on, revealed that the documents, in question, were actually forged ones inasmuch as the accused projected to have passed the HSLC examination under Roll No. 5-229 No. 718, whereas the said Roll No. was actually allotted against the name of one Pradip Mallik and not to the accused-petitioner, namely, Rupa Bania.
46. In the face of the above proven facts, there can be no escape from the conclusion, and not a shadow of doubt for any prudent man, that the accused-petitioner, having not passed the HSLC examination, used the said forged documents to obtain (sic), on compassionate ground, in the office of the Executive Engineer, PWD, National Highway Division, Jorhat, got appointment as Lower Division Assistant, knowing full well that the said documents were forged ones. Had the Roll No. 5-229 No. 718 belonging to the accused-petitioner, she could have been misled by someone to believe that she had passed the HSLC examination; but when the Roll No. 5-229 No. 718 was not even allotted against her, it cannot be said that the accused did not know that the Roll Number, whereunder she claimed to have appeared in the HSLC examination and passed the same were all forged ones. In the face of such facts, the conviction of the accused-petitioner under Section 471, IPC cannot be held to have suffered from any illegality, impropriety and/or incorrectness.
47. It is also worth noticing that the learned trial Court had sentenced the accused to undergo rigorous imprisonment for two years with fine of Rs. 1,000/- and, in default of payment of fine, suffer simple imprisonment for one month: but the learned Sessions Judge has reduced the sentence of rigorous imprisonment to simple imprisonment and the period of imprisonment from two years to six months. In the face of the facts and circumstances of the present case, one can entertain no doubt that the offence committed by the accused-petitioner has serious ramification in the society and when the job market, in the country, is shrinking, no one can be allowed to deny lawful appointment to honest candidates by adopting illegal and foul means and, hence, obtaining of such public appointment with the help of forged documents is a social evil and if this social evil is not crushed dispassionately and with iron hands, it is the society, as a whole, which will, eventually, be affected and suffer. Any misplaced sympathy, in a case of present nature, may encourage free use of forged documents for obtaining public appointments, because it is rare, if at all, that the documents produced by a candidate are sent for verification to the Board(s), which conduct examination. Ordinarily, the documents, submitted by an applicant, while applying for a job, are not verified by the Board concerned. If the tendency to obtain public appointment with the help of forged documents is not nipped in the bud, it will put additional burden on the State inasmuch as the State would, then, be required to cross-check the genuineness of each and every document or testimonial, which a candidate may submit for the purpose of obtaining appointment. In the face of these facts, the learned Sessions Judge appears to have dealt with the case leniently and no further leniency is, in the facts and attending circumstances of the case, called for.
48. What crystallizes from the above discussion is that the accused-petitioner has not been able to make out any case calling for interference by this Court in exercise of its revisional jurisdiction or inherent powers. This revision is, therefore, wholly without merit the same is not admitted and shall accordingly stand dismissed.
49. Before parting with this revision, it is hereby directed that the accused-petitioner shall surrender, forthwith, in the Court of the Chief Judicial Magistrate, Jorhat, in order to serve the sentence of imprisonment passed against her.
50. Send forthwith copies of this order to the learned Courts below.