The Judgment of the Court was delivered by
Amaresh Ku. Singh, J.:— Heard the learned counsel for the petitioner and the learned Public Prosecutor.
2. By this petition under Section 482 Cr. P.C the petitioner has prayed that the charges framed against her by the learned Chief Judicial Magistrate, Dungarpur in criminal Case No. 614/93, under Sections 120-B, 474, 471, 420 and 198 IPC be quashed.
3. The facts of the case so far as they are relevant for the disposal of this petition may be summarised as below:
4. The applications were invited from the candidates by Mahila Vikas Abhikaran, Dungarpur for appointment as “Pracheta”. A copy of the notification which is in the file of the lower Court shows that the educational qualifications required for appointment were that the candidate must have passed Higher Secondary Examination or an equivalent examination; must be having experience of five years of working in villages (rural areas) and departmental training if any. According to the notification only those candidates were eligible who belonged to one of the five categories mentioned in the notification. In the first category were the employees duly appointed in schools run by Government or by Panchayat Samiti or private schools recognised by the Director of the Primary Education or by the Director Sanskrit Education. Second category was of the employees of Medical and Health Department belonging to Medical Services. Third category was of Gram Sevika/Mukhya Sevika employed under Panchayat Samiti and Zila Parishad. Fourth category was of the employees employed in connection with “Mahila Poshahar Prasar Adhikari”. Fifth category was of Mukhya Sevika employed by Welfare Department (I.C.D.S).
5. Below the eligibility clause it was provided in the notification that only those ladies can apply who were not less than 30 years of age and not more than 45 years of age and were duly selected and appointed in the respective department or in the education institutions in accordance with the rules applicable to them. A bare perusal of the notification shows that only those candidates were eligible (subject of course to the fulfillment of the educational qualification) who were appointed in the departments of the institutions mentioned in the notification in accordance with the rules applicable to them.
6. The petitioner Smt. Premlata was one of those candidates who applied for the post. In order to show her eligibility she submitted a certificate issued by the co-accused Pradeep, who was at that time working as the Head Master of Vidhya Niketan Prathmik Vidyalaya, Simalwada. In the certificate dated 28.9.1989 issued by the co-accused Pradeep, in the capacity of the Head Master, Vidhya Niketan Prathmik Vidhyalaya, Simalwada it was certified that Smt. Premlata was working on the post of teacher with effect from 1.7.1984 and was working on the date of issue of the certificate. And that she had completed the term of 5 years and 3 months while working in the institution. It was also certified in the certificate that her teaching work as well as her contribution to administration of the institution and welfare activities was commendable on account of devotion and that no departmental inquiry was pending against her. According to the prosecution, this certificate showed that Smt. Premlata was eligible for appointment as “Pracheta” in accordance with the terms and conditions laid down in the notification issued by Mahila Vikas Abhikaran, Dungarpur. After the completion and selection process Smt. Premlata was in fact selected and she was given an appointment and in pursuance of the appointment given to her she joined her duties on the post of “Pracheta”.
7. A complaint was made to the department against Smt. Premlata alleging that she had submitted a false certificate and obtained service on the basis of that false certificate. On being satisfied about the allegations, the Director of Zila Mahila Vikas Abhikaran, Dungarpur sent a first information report in writing to the Station House Officer of the Police Station, Sadar Kotwali on 30.1.1993 and on the basis of that report the Police registered a case under Sections 420, 465 and 467 IPC.
8. After completion of the investigation a charge-sheet was filed by the Police against Smt. Premlata and Shri Pradeep (the Head Master of the School who issued the certificate) alleging the commission of offences under Sections 420, 465, 468, 471, 198 and 120-B IPC. During investigation the original certificate was sent to the Forensic Science Laboratory for the purpose of ascertaining whether the signatures on the certificate were similar to the hand writing of Pradeep and the report of the Forensic Science Laboratory shows that there is a similarity between the disputed signature on the certificate and the speciman signature of Pradeep. In the statements recorded under Section 161 Cr. P.C it has been revealed that the certificate on the basis of which Smt. Premlata established her eligibility for appointment was in fact issued by the co-accused Pradeep though the contents there of were partly wrong in as much as Smt. Premlata was not a regularly appointed teacher of the school.
9. After hearing the arguments of both the parties the learned Chief Judicial Magistrate, Dungarpur framed charges under Sections 120-B and 466 IPC against Pradeep. Charge under Sections 120-B, 474, 471, 420 and 198 IPC were framed against Smt. Premlata. Feeling aggrieved by the framing of the charges Smt. Premlata had filed this petition under Section 482 Cr. P.C with a prayer that the charges against her should be quashed.
10. So far as the charges under Sections 471 and 474 IPC are concerned the learned counsel for the petitioner has submitted that no offence of forgery was committed in the instant case because the certificate dated 28.9.1989 purports to have been issued by the co-accused Pradeep who was at the time of issue of the certificate working as the Head Master of the Institution and that according to the statements recorded under Section 161 Cr. P.C as well as according to the report of Forensic Science Laboratory this certificate was in fact signed by the co-accused Pradeep and as such no part of the certificate can be regarded as a forged document under Section 464 IPC. In other words the submission made by the learned counsel for the petitioner is that since the authorship of the certificate is not dis-proved nor the execution of the certificate by the co-accused Pradeep is disproved the certificate dated 28.9.1989 does not fall in the category of forged documents though the contents thereof may not be true.
11. After carefully considering all the arguments advanced by the learned counsel for the petitioner and learned Public Prosecutor who has supported the charges framed against the petitioner, I am, of the opinion that in this case the authorship of the certificate dated 28.9.1989 by the co-accused Pradeep who put signatures on the certificate as the Head Master of the Institution is fully established by the record. And, therefore, so far as the signatures of the Head Master and certificate are concerned no forgery appears to have been committed. In view of the statement recorded under Section 161 Cr. P.C putting of signatures by Pradeep on the aforesaid certificate amounts to execution or in other words the admission of the contents written in the certificate and, therefore, the contents of the certificate cannot be said to have been forged though they may be incorrect. Section 464 IPC is, therefore, not applicable to this document and consequently, the charges under Sections 474 and 471 IPC cannot be said to be prima facie made out. The petition, therefore, deserves to be allowed in respect of the charges under Sections 474 and 471 IPC.
12. As regards the offence under Section 198 IPC prima facie it is established that the petitioner Smt. Premlata used the certificate dated 28.9.1989 for thepurpose of establishing her eligibility for appointment to the post of “Pracheta”. She has, therefore, used this certificate for the purpose of obtaining appointment. Whether this certificate is or is not covered by Section 198 IPC is another point. Section 198 IPC does not describe the certificate the use of which is made punishable by it. The certificate mentioned in this Section is indicated by expression “such certificate” and the expression “such certificate” in Section 198 IPC refers to the certificate described in Section 197 IPC. Section 197 IPC reads as below:
“ISSUING OR SIGNING FALSE CERTIFICATE SECTION 197. Whoever issues or signs any certificate required by law to be given signed, or relating to any fact of which such certificate is by law admissible in evidence, knowing or believing that such certificate is false in any material point, shall be punished in the same manner as if he gave false evidence.”
13. A bare perusal of Section 197 IPC shows that the certificate dealt with by this Section must be a certificate which is required by law to be given or signed, or is relating to any fact of which such certificate is by law admissible in evidence.
14. There is a substantial distinction between a mere statement in writing not amounting to a certificate contemplated by Section 197 IPC and a statement in writing amounting to a certificate contemplated by Section 197 IPC the distinction between the two: the statements in writing not amounting to certificate and the statement in writing amounting to a certificate is this that the former cannot be treated as legal evidence of the facts mentioned in the certificate but the statement in writing which amounts to a certificate can be used as legal evidence of the facts mentiond in the certificate. Keeping this distinction in view between the two statements in writing one which can be used as legal evidence without any formal proof and other which cannot be used as legal evidence unless formal proof is given according to law and the statement is subjected to scrutiny by cross-examination or otherwise, it would be proper to hold that no statement in writing can amount to certificate within the meaning of Section 197 IPC unless the law enacted by a competent legislature permits the issue of such certificate or provides that the certificate shall be receivable as legal evidence of the facts mentioned therein. The mere fact that the document is described as a certificate does not make it a certificate in the eye of law. This distinction must be kept in view by all those persons who have to deal with written statements of other persons. The hazard of dispensing with formal proof and the necessity of scrutinishing the verocity of the statements cannot be over estimated, particularly when unscrupulous persons frequently indulge in making false “certificate” for the purpose of obtaining wrongful gain or causing wrongful loss to others.
15. For reasons mentioned above, in order a statement in writing may amount to certificate within the meaning of Section 197 IPC it would not be sufficient that the maker of the certificate should describe it as a certificate. In order to treat such statement as a certificate it would be necessary that there should be a law requiring the issue of such certificate or providing that such written statement may be treated as legal statement without formal proof and without formal scrutiny.
16. In the instant case my attention has not been drawn to any provision of law which may be said to authorise to Head Master of the Institution to isue certificates of this kind nor any such law has been brought to my notice which may make the certificate admissible as legal evidence of the facts mentioned therein. That being the legal position the certificate dated 28.9.1989 could not be used as legal evidence for the purpose of proving that Smt. Premlata fulfilled the eligibility clause contained in the notification. In other words the proper course would have been to submit the appointment letter and other relevant documents for the purpose of showing that Smt. Premlata was regularly appointed teacher of the Institution and was in fact working as a teacher on the date she applied for appointment as “Pracheta”. It may not be out of place to point out that selection of candidates to public services is a very important matter and the conditions of eligibility must be shown to have been fulfilled by submission of legally admissible documents. If a written statement is not a certificate within the meaning of Section 197 IPC it cannot be used as legal evidence of the contents mentioned therein and if it cannot be used as legal evidence of the contents mentioned therein it cannot be treated as a legally admissible document for proving the contents. In the instant case the Appointing Authority has not paid its attention to the necessity of requiring legal evidence of the qualifications or the eligibility. Had the Appointing Authority taken care to insist upon the production of legally admissible documents the petitioner would not have succeeded in obtaining appointment as “Pracheta”. In the instant case the mistake of the department was partly on account of the casual manner in which the certificate was admitted as legal evidence of the contents thereof. Such practices where ever they are, must be stopped as soon as possible. However, Smt. Premlata cannot avoid the responsibility under Section 198 IPC for using this certificate. This certificate contains at least one fact that she was working in the institution even on the day of issue of the certificate and regarding that fact the certificate could be used by her. In any case, I am satisfied, that the prima facie charge under Section 198 IPC is made out against the petitioner.
17. So far as charge under Section 420 IPC is concerned prima facie it appears that Smt. Premlata wanted employment as “Pracheta”. In all public services appointment is made by means of an appointment letter which is to be issued after the selection process is over. The appointment letter is, therefore, the document which shows that the person in whose favour it has been issued is selected and is being offered the post mentioned in the letter. Such a document must be treated as properly within the meaning of Section 420 IPC. The use of the certificate by Smt. Premlata for the purpose of obtaining appointment letter thus prima facie attracts Section 420 IPC, because if a person who is not eligible for appointment, obtains appointment by making false representation regarding his/her eligibility and on the basis of that false representation the Appointing Authority gives appointment, the person must be said to be indulging in cheating. For reasons mentioned above charges under Section 420 IPC cannot be quashed at this stage.
18. As regards charge under Section 120-B IPC it is well known that there can be no direct evidence of conspiracy and, therefore, to prove the charge of conspiracy the evidence has to be produced would be circumstantial evidence. The circumstances which are prima facie established in the instant case are (a) that Smt. Premlata wanted employment as “Pracheta” (b) that in order to be eligible to apply for the post of “Pracheta” she had to show that she was regularly selected for appointment in the institution and that she was working on the post in the institution (c) that in fact Smt. Premlata was neither a regularly selected teacher in the institution nor she was working as a teacher in any institution. (d) that the co-accused Pradeep who was the Head Master of the Institution knew well that Smt. Premlata was not holding the post of teacher and that she was not regularly selected and appointed as teacher in the institution and, therefore, no question of conducting any department inquiry could arise. (e) that in the certificate of accused Pradeep purporting to act in the capacity of the Head Master of the Institution not only certified that experience of giving lessons to the students he further certified that she was holding the post of teacher and that she had put more than 5 years of service in the Institution and that no departmental inquiry was pending against her. Mention of departmental inquiry in the certificate was prima facie calculated to give the impression that Smt. Premlata was a regularly appointed teacher in the Institution, because the question of departmental inquiry can arise only against those persons who are regularly appointed teachers on that post. A bare reading of the certificate shows that prima facie this certificate was calculated to help Smt. Premlata in fulfilling eligibility clause of the notification. In the facts and circumstances of the case at least a strong suspicion arises that there was a conspiracy between Smt. Premlata and Shri Pradeep with the object of deceiving the department by means of the certificate. Therefore, charge under Section 120-B IPC cannot be quashed at this stage.
19. For reasons mentioned above the petition is partly allowed the charges under Sections 474 and 471 IPC against the petitioner are hereby quashed, the charges under Sections 120-B, 420 and 198 IPC are properly framed and the petitioner deserves to be tried on those charges. Therefore, in respect of those charges the petition fails. By way of abundant caution it is made clear that the observation made in this order shall not preclude the learned trial Magistrate from arriving at an independent opinion about the proof of the charges under Sections 120-B, 420 and 198 IPC.
20. The petition is disposed of accordingly. A copy of this order along with the record be sent to the learned Chief Judicial Magistrate, Dungarpur within 15 days.