2005 ALL MR (Cri) 3068
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)
S.P. KUKDAY, J.
Shaikh Parwej S/O M. A. Shaikh Vs. State Of Maharashtra
Criminal Revision Application No.263 of 2005
29th September, 2005
Petitioner Counsel: Shri. V. D. SAPKAL
Respondent Counsel: Shri. D. V. TELE
Criminal P.C. (1973), S.401 - Revision - Power of revisional Court - Revisional Court can exercise powers conferred on the appellate Court - However, revisional powers cannot be equated with the power of an appellate Court nor can it be treated even as a second appellate jurisdiction - Ordinarily it would not be appropriate for the revisional Court to re-appreciate the evidence and come to its own conclusion on the same facts when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal unless glaring feature is brought to the notice of High Court which would otherwise tantamount to gross miscarriage of justice. AIR 2004 SC 4412 - Followed. (Para 8)
K. Prema S. Rao Vs. Yadla Shrinivasa Rao, 2003 ALL MR (Cri) 334 (S.C.)=(2003)1 SCC 217 [Para 7]
Kumari Brahmaiah Vs. Public Prosecutor High Court of A. P., 1999 ALL MR (Cri) 555 (S.C.)=AIR 1999 SC 775 [Para 7]
Sau. Ranjana Shivaji Rakhpasare Vs. Shivaji Bapu Rakhpasare, 2003 ALL MR (Cri) 2430=2004 Cri.L.J. 145 [Para 8]
State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand, AIR 2004 SC 4412 [Para 9]
T. T. Antony Vs. State of Kerala, 2001 Cri.L.J. 3329 [Para 11]
2. By this petition the petitioner seeks to impugn order dated 02-01-2004 passed by J.M.F.C., Kannad in R.C.C. No.356/2000 convicting the petitioner of the offence punishable under Sections 465, 468 and 120-B of IPC. The petitioner is sentenced to suffer R.I. for six months and fine of Rs.250/- in default S.I. for 15 days for the offence punishable under Section 465; R.I. for one year and fine of Rs.500, in default S.I. for 30 days, for the offence punishable under Section 468 and R.I. for one year and fine of Rs.500/-, in default S.I. for 30 days for the offence punishable under Section 120-B of IPC. The petitioner further seeks to impugn the order dated 16-08-2005 passed by the appellate court in Criminal Appeal No.20/2004, confirming the order of conviction and sentence passed by JMFC, Kannad.
3. Relevant facts giving rise to this petition are that the petitioner is an Assistant Teacher in Sanjay Gandhi High School, Kannad. Maharashtra State Education Board held examinations in the year 1989. For the purpose of valuation of the papers, the petitioner was appointed as a valuer. PW-7 Mohammad Mujib Ulla was the moderator. After valuation of the papers by the petitioner, they were checked by the moderator and were sent to the Board. On 02-06-1989 Councilor I. M. Shaikh of Kannad Municipality and one Sk. Mukhtar filed a complaint with President of the Maharashtra State Secondary and Higher Secondary Education Board, Aurangabad in respect of the malpractices in valuation of the papers. For the purpose of making an inquiry into the allegations, PW-3 Shri. V. G. Suryawanshi was appointed as Enquiry Officer. The Enquiry Officer found that the petitioner did increase the marks after additional answers were written by the student (accused no.2) in the answer sheet and apparently has committed malpractices. On the basis of this report, Sayed Akhtar Hasan Abedi (PW-1) lodged a report. After investigation, the proceeding was initiated against the petitioner in the court of JMFC, Kannad.
4. Learned Magistrate framed charges against the petitioner for offences punishable under Sections 120-B, 465 and 468 of IPC. After hearing both the parties and appreciating the evidence on record, learned Magistrate answered the point for consideration in the affirmative and came to the conclusion that guilt of petitioner is established beyond doubt. He, therefore, sentenced the petitioner as above by his order dated 02-01-2004. This order was carried in appeal by the petitioner. The Appellate Court discussed the evidence on record and agreed with the conclusions arrived at by the trial Judge. In this view of the matter, the appeal was dismissed by order dated 16-08-2005 by 3rd Ad hoc Additional Sessions Judge, Aurangabad. Both these orders are impugned by the petitioner in this revision.
5. Learned Counsel for the petitioner has emphasized two points. The first is irregularity in framing of the charges. According to learned Counsel, the charge is not properly framed and this had occasioned miscarriage of justice. It is contended that the charge is vague and does not put the petitioner on his guard. The charge framed by the trial judge is at Exh.25. Three charges are framed one after other and at the end, it has been mentioned that the petitioner has thereby committed offence punishable under sections 120-B, 465 and 468 read with 34 of IPC.
6. From the manner in which the charges are framed, it can be seen that the first charge is in respect of offence punishable under Section 120-B. The second charge is for offence punishable under Section 465 and the third charge is for offence punishable under Section 468 of IPC. The offences are alleged to have been committed in pursuance of the conspiracy. Hence, addition of Section 34 of the Penal Code is not necessary. However, the order of conviction shows that the petitioner is convicted for offence punishable under Section 465, 468 and 120-B. The conviction is not with the aid of Section 34 of the Indian Penal Code. The offences for which the petitioner is tried are properly narrated in the opening paragraph of the judgment of the trial Court. This fact shows that the petitioner was aware of the charges for which he was facing the trial. It is pertinent to mention here that the point that charge was not properly framed is not raised either before the trial court or the Appellate Court. It has been raised for the first time in the revision. Be that, as it may; the reading of the charge would show that necessary details of allegations which the petitioner has to meet are given; the only defect in the first charge appears to be use of word 'mischief'. Offence punishable under Section 468 is punishable with imprisonment for seven years, therefore, considering the background it can be seen that the word forgery by cheating should have been used. However, having regard to the fact that other particulars are mentioned, this error cannot be magnified. The petitioner was represented by a counsel in the trial court as well as in the appellate court. The witnesses are cross-examined and the arguments are advanced in both the courts below. The proceedings show that the petitioner was aware of the charge he was facing. In this view of the matter the contention of learned Counsel that there is some error in framing of the charge, therefore, prejudice has been caused, cannot be sustained. At this stage, it may be pertinent to refer to Section 215 of Cr.P.C. which provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. Reference can also be made to Section 464 of Cr.P C. which mandates that no finding, sentence or order by Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
7. In this behalf reference can be made to the principle enunciated by Section 215, the Apex Court in the ruling reported in K. Prema S. Rao and Anr. Vs. Yadla Shrinivasa Rao and Ors. ((2003)1 SCC 217 : [2003 ALL MR (Cri) 334 (S.C.)]) in para 24 observed that Section 215 Cr.P.C. allows the criminal court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. Similar view is taken by the apex court in the matter of Kumari Brahmaiah and Ors Vs. Public Prosecutor, High Court of A. P., reported in AIR 1999 SC 775 : [1999 ALL MR (Cri) 555 (S.C.)]. In the present case the matter was contested in both the courts. The cross-examinations of P.Ws. etc. show that the petitioner was represented by competent lawyer and had full knowledge of the charge he was to meet. There is nothing on record to show that any error in framing the charge has led to failure of justice. Therefore, the contention of learned Counsel for the petitioner that the charge framed is defective and has resulted in causing prejudice to the petitioner, cannot be sustained.
8. Before arguing the matter on merits, learned Counsel for petitioner has contended that the revisional court has all the powers of the appellate court and can appreciate or re-appreciate the evidence led by the parties before the lower court. For this proposition, reliance is placed on the ruling of this Court, reported in 2004 Cri.L.J. 145 : [2003 ALL MR (Cri) 2430] in the matter of Sau. Ranjana Shivaji Rakhpasare Vs. Shivaji Bapu Rakhpasare and Anr. In that case, while considering the scope of revision, this Court has in para 10 of the report observed that it is the duty of revisional court to correct the error of appreciation of evidence, errors in recording the findings, errors of illegality in existence in the proceeding conducted by the inferior court. In para 16 of the report, this Court has observed that when a revisional authority decides to dissettle the conclusion and the judgment and order of the inferior Court, it has to point out as to how the inferior authority committed the error in appreciation of the evidence, recording of the evidence and error of law. There can be no dispute about the principle that revisional court can exercise powers conferred on the appellate court but it is to be borne in mind that the revisional powers cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the revisional Court to re-appreciate the evidence and come to its own conclusion on the same facts when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.
9. Scope of the revisional power has also been considered by the Apex Court in the ruling in the batch of criminal appeals in the matter of State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Ors. with Satish Kaur Sahani Vs. Jagmohan Singh, reported in AIR 2004 SC 4412. In para 22 of the report it is observed that : "The Revisional Court is empowered to exercise all the powers conferred on the Appellate Court by virtue of the provisions contained in Section 410 Cr.P.C." Section 401, Cr.P.C. is a provision enabling the High Court to exercise all powers of Appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or Sessions Court. Section 397, Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, "for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceeding of such inferior Court." It is for the above purpose, if necessary, the High Court or Sessions Court can exercise all appellate powers. Section 401, Cr.P.C. conferring powers of Appellate Court on the Revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401, Cr.P.C. read together do not indicate that the revisional power of the High Court can be exercised as a second appellate powers." In para 21 of the report, the Apex Court has further observed that : "In embarking upon the minutest re-examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self restraint that he was required to exercise in a revision under Section 397, Cr.P.C." It can be, therefore, seen that the evidence can be looked into for the purpose of ascertaining whether the finding recorded is perverse or not. The evidence cannot be re-appreciated and concurrent finding of fact cannot be unsettled merely because another view is possible. Keeping in mind these principles, the evidence on record will have to be scrutinized.
10. The main plank of argument by learned Counsel for the petitioner is that the learned trial Judge as well as Appellate Court have not taken into consideration the evidence of PW-7 Mohd. Mujib Ulla, who was the moderator. Learned Counsel contends that his evidence is deposed when be checked the papers. He has not found any irregularity and submitted such report. The contention that no reference is made to the evidence of moderator by the courts below, cannot be sustained. The trial Judge has made reference to the evidence of the moderator in para 11 of the judgment. The appellate court has also made reference to the moderator in para 9 of the judgment. Be that, as it may, it is the contention of learned Counsel that because no irregularity was found by the moderator, the manipulation in the marks could have been done after the papers were despatched to the Board. In this case, in fact, nothing turns on the oral evidence. PW-6 Shri. Suryawanshi, who is the Enquiry Officer, has testified to the procedure for valuation. There is no dispute about his portion of evidence. The moderator has also made reference to the procedure. Question in this behalf were put to the petitioner in the examination conducted under Section 313 of Cr.P.C. The petitioner has not disputed the procedure. The established procedure is that the papers were sent to the moderator, who distributed them to the valuer. After valuation, papers were received by the moderator. He checked the papers and then forwarded them to the Board. The marks are filled in a separate sheet. This sheet is used for the purpose of determining the marks obtained by the student while preparing result. It is, therefore, apparent that only in exceptional case, papers are disturbed after they are received by the Board. In the present case because of the complaint regarding the manipulation by the petitioner, the bundle was opened and paper was scrutinized. The findings of trial court as well as appellate court is not entirely based on the oral evidence but is based on the documentary evidence in the form of the answer paper. In the answer paper, Exh.65 (page 99 of the paper book), it can be seen that while answering question nos.3, 4 and 8, different ink is used. The marks are changed by overwriting. Marks at page Nos.3, 5, 6 and 7 of the answer book and first page of the supplementary are increased. The contention that the manipulation could have been done by someone else cannot be sustained for a simple reason that though the marks are increased by overwriting, there is no overwriting on the first page which gives marks for different questions and this is the basis for computation of marks. It may be pointed out here that as there is no overwriting on the first page, the moderator did not detect any irregularity. The moderator is not supposed to check each and every paper. Therefore, he might not have checked this particular paper. That is why the evidence of moderator cannot be against the petitioner. From the fact that different ink is used, but the handwriting is the same, it is obvious that this change is effected by the student, who had initially written the answers at the time of examination, in different ink. If the question paper itself is considered, it can be seen that the change is effected by the petitioner and the pupil in pursuance of the conspiracy for the purpose of increasing the marks, so that the pupil can pass examination in English subject. The ingredients of forgery and forgery for cheating in pursuance of the conspiracy are, therefore, satisfied in the present case and the answer papers can be treated as a valuable document. It is not always necessary that the loss caused should be a monetary loss. If such instances occur, reputation of the Board suffers in the eyes of public, loss of reputation is also sufficient to establish the offence of forgery for the purpose of cheating. That the act is illegal is not in dispute. The conspiracy hatched by the persons, namely the valuer and the pupil, therefore, ingredients of Section 120-B are also satisfied.
11. Learned Counsel for the petitioner has not referred to any other error in respect of appreciation of evidence on record. Having regard to the evidence on record, it is apparent that the findings reached by both the courts below are on the basis of the evidence of witnesses and cannot be termed as perverse. The contention of learned Counsel for the petitioner therefore, cannot be sustained. The learned Counsel for the petitioner has also contended that the finding cannot be based on the enquiry report submitted by the Enquiry Officer. For this purpose, reference is made to the rulling of the Apex Court reported in 2001 Cri.L.J. 3329 in the matter of T. T. Antony Vs. State of Kerala and Ors. and this Court, while making reference to the Commission of Enquiry Act, the Apex Court has observed in para 34 of the report that: the Civil or criminal Courts are not bound by the report of findings of the Commission of Inquiry as they have to arrive at their own decision on the evidence placed before them in accordance with law. There can be no dispute about the proposition. As observed earlier there is no illegality in framing of the charge. Even otherwise, there is nothing to show that any prejudice or failure of justice has occasioned on account of any error in framing of the charge. The findings arrived at by both the courts below are based on the documentary and oral evidence placed on record. The findings cannot be termed as perverse. Therefore, the revision fails and the same is dismissed accordingly.