Anjali Sharma vs Council For The Indian School Of ...
1988 Latest Caselaw 262 Del

JUDGMENT

Y.K. Sabharwal, J.

(1) The writ petition filed by the petitioner was dismissed on 20th July 198? and by orders made on 13th August 1987, the Registrar of this Court was directed to make a complaint in writing against the petitioner and Ms. Kamlesh Sharma for having committed offences under sections 191, 192 and 193 of the Indian Penal Code to the Magistrate having jurisdiction. This application though seeks review of these orders but learned counsel has confined her submissions only in regard to the review of order made on 13th August 1987. In para 3 of the application, the petitioner has referred to the orders passed by the Supreme Court on 30th November, 1987 in the following words :- "THAT vide order dated 30-11-1987 the Hon'ble Supreme Court was pleased to direct this Hon'ble Court to review its aforesaid judgment and order dated 20-7-1987 and 13-8-87 the Hon'ble Supreme Court was also pleased to grant ex-parte stay against the prosecution, vide order dated 7-9-1987. The copies of the said orders dated 30-11-1987 and 7-9-1987 of the Hon'ble Supreme Court of India are annexed herewith and marked as Annexures R/1 and R/2 respectively."

The order made by Supreme Court on 30th November 1987, however, shows that the petitioner has not made an accurate reference in aforesaid para 3 of the application. The application was filed on 14th December 1987. Certain objections were raised by the Registry and the application was returned. Objections were removed and the application was refiled on 18th December 1987 with a request that it be listed on 6th January 1980. On 6th January 198S, it was listed before a Bench it was directed to be listed before me on 8th January 1^88. On 8th January 1988, on a request made on behalf of the petitioner, hearing was adjourned to 22nd January 1988. The application came up for hearing on 29th January 1988 and it was adjourned, on request made on behalf of counsel for the petitioner, to 12th February 1988 and from 12th February, it was adjourned to 11th March 1988 and then to 8th April 1988. On 8th April 1988 no one was present on behalf of the petitioner and the application was adjourned to 22nd April 1988. By order made on 22nd April 1988 notice was directed to be issued to be issued to the respondents and their counsel returnable for 13th May 1983. On 13th May it was found that notices had not been issued to the respondents as process-fee had not been filed. Fresh Notice was directed to be issued to the respondent and their counsel for 15th July 1988. The respondents were granted 3 weeks' time to file reply on 15th July 1988. and the case was adjourned to 19th August 1988. Oo 19th August, on request of counsel for the petitioner, it was adjourned to 8th September 1988 when the arguments were heard.

(2) The respondents, in their reply, have taken an objection that the application had not been filed within time allowed by the Supreme Court and the court having not passed the orders within 6 weeks from 30th November 1987, no longer has any jurisdiction to bear the Review Application. As stated above, the Review Application was initially filed on 14th December 1987 which was within the time allowed by the Supreme Court. The spirit of the order of the Supreme Court, made on 30-11-1987, is not that if the orders are not passed within 6 weeks, this court will loose jurisdiction to hear and decide the application. Though the petitioner has been taking some adjournments which resulted in delay of the disposal of the application, but that cannot be made a ground for rejecting this application. In fairness to Mr. Probin Mitra, it may be mentioned that learned counsel did not seriously press the aforesaid objection taken in the reply and left the matter to the discretion of the court. In my opinion, the objection of limitation and delay based on the order made on 30th November 1987, cannot be entertained and has to be rejected.

(3) Turning now to the merits, Ms Rani Jethamalani, learned counsel for the petitioner submits, that the court has committed grave error of law by ordering prosecution for perjury without examining the handwriting expert on oath or without having his opinion on affidavits. It is true that handwriting expert was neither examined on oath nor was his opinion taken on affidavit. It was, prima facie, clear to the Bench that the disputed signatures, initials and handwriting were that of the petitioner but to clear any possible doubt and with the consent of the parties the documents were sent to Central Forensic Science Laboratory for their expert opinion. As noticed in the order made on 13th August 1987 it was not the case of any of the parties that the Senior Scientific Officer (Documents) -cum- Assistant Chemical Examiner of Central Forensic Science laboratory, who had given the report, was interested in giving a wrong report. The bench had the report of an independent person before directing prosecution. That was not the stage for permitting the cross-examination of the handwriting expert or to examine any private handwriting expert. The expert opinion, no doubt, is not conclusive evidence as contended by the learned counsel, and it has-to yield to the positive in the case. But the question for determination is whether such an exercise is necessary before forming an opinion under Section 340 of the Code of Criminal Procedure, the prima-facie opinion is required to be formed under Section 340. The Court may, in its disceretion, hold preliminary, inquiry, if it thinks necessary. If the Court, on its own or with the aid of expert opinion, forms a prima-facie opinion under section 340, it cannot be inferred that expert opinion is conclusive. It also cannot be said that at that stage expert should be examined on oath and parties given an opportunity to cross examine that expert and to produce other evidence. The parties will have ample opportunity to produce such evidence in proceedings before the Criminal Court. It is obvious that all the defenses including that the disputed signatures, initials and handwriting are not of Anjali Sharma would be open to her and her mother in proceedings before the criminal court. All these questions have been considered in the opinion expressed in the order made on 13th August 1987. Accordingly there is no substance in the contention of the learned counsel that prosecution could not be ordered without examining or cross-examining the said expert on oath. There is also no force in the contention that the handwriting expert did not express his opinion on the handwriting of the teacher. I fail to understand how the absence of such an opinion can effect the order directing the prosecution of the petitioner when definite opinion was given in so far as her handwriting and signatures is concerned.

(4) Pursuant to the orders made on 29th October 1986 direction was issued to respondents to produce answer books in all the subjects submitted by all the students of respondent No. 2, who appeared in the Indian Certificate of Secondary Education (ICSE) Examination held in March 1986. On the very first date of hearing dated 17th November 1986 counsel for the respondents submitted that answer books of other candidates had been destroyed. The respondents were directed to file an affidavit to that effect. Affidavit dated 22-1 l-i986 was filed by Mr. J. Fuste, Secretary, Council for the Indian School Certificate Examination staling that in terms of paragraph J. of revised Regulations of the Council, all answer scripts of subjects which are not subject matter of re-check, as per paragraph H of the said regulations, are destroyed by the Council. It was also stated that all those answer scripts of March 1986 examinations conducted by the Council which were not retained for re-check have been disposed of as waste paper on 16th September 1986. The documents in support of the said stand were also filed. It was further explained in the said affidavit that from Hapur Centre the Counsel has only the answer scripts of English subject of the petitioner and one Kumari Seema and those answer scripts had been retained for purposes of re-check. The affidavit stated that the Council was able to produce in Court the answer scripts of the petitioner and Kumari Seema only in the. English subject Along with the copy of the report of the expert. In view of the above, in my opinion, there is no merit in the contention of the learned . counsel, that it was most improbable for the Council to destroy all the answer scripts. I also fail to understand the effect of the non-production of all the answer scripts on the order directing the prosecution of the petitioner and, accordigly, I do not find any substance in this contention as well.

(5) The likely harassment to the petitioner because of her being minor and a student and to her mother has been considered in the order dated 13th August 1987. No new facts have been brought to may notice. After seriously pondering over these matters a conclusion was reached that not only is it expedient, but, also, necessary in the interest of justice that an order for the prosecution ought to be made. I do not find any illegality in this approach, particularly after, prima-facie, finding that false statements were not made only once but both daughter and mother persisted in making false statements not inadvertently but deliberately and the principal and the teachers were put to great jeopardy.

(6) For the reasons stated above. Review Application No. 32 of 1988 is dismissed leaving the parties to bear their own costs.