THE HIGH COURT OF SIKKIM : GANGTOK
(Criminal Appeal Jurisdiction)
DATED : 24th MARCH, 2021
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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Crl.A. No.15 of 2018
Appellant : Central Bureau of Investigation
versus
Respondents : Dr. Pratap Makhija and Others
Appeal under Section 378(2) of the
Code of Criminal Procedure, 1973
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Appearance
Mr. Kali Charan Mishra, Special Public Prosecutor/Additional Legal
Advisor, CBI, Kolkata, for the Appellant.
Mr. K. T. Bhutia, Senior Advocate with Ms. Sunita Chettri,
Advocate for the Respondent No.1.
Mr. S. K. Pandey, Advocate for the Respondent No.2.
Mr. N. Rai, Senior Advocate for the Respondent No.3.
Mr. B. K. Rai, Advocate with Mr. Loknath Khanal, Advocate for the
Respondent No.4.
Mr. S. S. Hamal, Advocate for the Respondent No.5.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Appellant assails the Judgment of the Learned
Special Judge, Prevention of Corruption Act, 1988, East District, at
Gangtok, dated 30-08-2016, in S.T. (CBI) Case No.01 of 2013, by
which,
(a) the Respondent No.1, Dr. Pratap Makhija, (hereinafter "A1") was acquitted of the offence under Sections 120B, 471 of the Indian Penal Code (for short, "IPC") and Section 13(1)(d)(iii) of the Prevention of Corruption Act, 1988 (for short, "P. C. Act");
Crl.A. No.15 of 2018 2
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
(b) the Respondent No.2, Ramayana Singh Meena
(hereinafter "A2"), was acquitted of the offence under Sections 420 and 120B of the IPC;
(c) the Respondent No.3, Surendra Mohan Sihara (hereinafter "A3"), was acquitted of the offence under Sections 420, 471 and 120B of the IPC;
(d) the Respondent No.4, Mukesh Kumar (hereinafter "A4"), was acquitted of the offence under Sections 420, 471 and 120B of the IPC; and
(e) the Respondent No.5, Tara Chand (hereinafter "A5"), was acquitted of the offence under Sections 197 and 120B of the IPC and Section 13(1)(d)(iii) of the P. C. Act.
2(i). The Special Public Prosecutor Mr. Kali Charan Mishra
for the Appellant/Central Bureau of Investigation (CBI) advancing
his arguments for the Appellant briefly put forth the facts leading
to registration of the case against the Respondents on 25-10-2006.
That, on completion of investigation Charge-Sheet was submitted
against A1 to A5 and one Dr. Khagendra Neopaney under Sections
120B, 420, 468, 471 of the IPC and Section 13(2) read with
13(1)(d) of the P.C. Act.
(ii) It was the submission of Learned Special Public
Prosecutor that relevant sanction for launching prosecution against
A1 to A4 had been obtained from the concerned authority, P.W.30
Ramesh Babu Devella as evident from Exhibits 111 to 114. That,
A1 in connivance with A2, A3 and A4 adopted procedural
irregularities in the selection process by accepting their applications
which were not only devoid of necessary documentation, but
forged documents had also been submitted. That, A2 while
seeking appointment as General Duty Attendant had submitted a Crl.A. No.15 of 2018 3
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
false Scheduled Caste Certificate, besides which his mother‟s name
was recorded as „Mina‟ in Exhibit 39 and "Sunhari" in Exhibit 40
with intent to cheat the Government. A3 while seeking
appointment as a Laboratory Attendant had furnished a false local
address to project himself as a local candidate, this act was duly
supported by the evidence of P.W.2, P.W.6, P.W.12, reliance was
also placed on Exhibit 60 and Exhibit 41. A4 had furnished a
forged Birth Certificate and inadequate Typing Certificate. The
furnishing of a forged Birth Certificate was established by the
evidence of P.W.21 and Exhibits 47, 48, 86 and 87. Exhibit 42
submitted by A4 stating that he was undergoing a typing course
was false as P.W.27 had deposed that he was suspended from the
course and P.W.15 vide Exhibit 85 proved that the typing speed of
A4 was „21‟ words per minute as against the required speed of 30
words per minute for a candidate. That, A2 and A4 had also
furnished local addresses dishonestly to project themselves as local
candidates and consequently obtained 5 (five) extra marks and
were selected for appointment by fraudulent means.
(iii) That, there were other procedural requirements that
were flouted by A1 since the Recruitment Rules, Exhibit „F‟ required
that appointments to the posts were to be made from local
candidates by obtaining information of eligible local candidates
from the Local Employment Cell. Contrary to the Rules, A1 issued
the advertisement for employment first and thereafter sought a list
of candidates from the Local Employment Cell. He had also not
maintained any backlog roster for Scheduled Caste (SC) and
Scheduled Tribe (ST) candidates and discrepancies were found in
the roster submitted by him. These facts were supported by the Crl.A. No.15 of 2018 4
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
evidence of P.W.1 and P.W.5 as also Exhibits 4, 5, 6, 19, 34, 35, „F‟
and „L‟. A1 deliberately concealed the medium of typing test as
being in Hindi to enable manipulation and select A2, A3 and A4 as
fortified by Section 164 of the Code of Criminal Procedure, 1973
(for short, Cr.P.C.) statements of P.W.6, P.W.7 and one K. K.
Rakshit. As per P.W.5, when he took over charge from A1, the
Files relating to the selection procedure of Group „C‟ and „D‟ staff
were concealed from him indicating the dubious intention of A1.
The Scrutiny Committee which was to scrutinize applications was
constituted by A1 who gave directions to the Committee to accept
the applications of A2, A3 and A4 even without the requisite
documentation.
(iv) A5 for his part in connivance with A2 issued and signed
a false Scheduled Tribe Certificate for A2 which helped him to
obtain employment in the Regional Research Institute (Ayurveda)
[for short, "RRI (Ay)"]. Arguments were also furnished with regard
to A2 and Exhibits 75 and 76 in this context, but as this has
already been discussed at length in Crl.A. No.29 of 2006 by this
Court, no further arguments of the Prosecution need be considered
being irrelevant. That, the evidence on record establishes the
Prosecution case against the Respondents. That, the Learned Trial
Court acquitted the Respondents herein on unfounded
considerations which thereby occasioned a total failure of justice,
as such, the Judgment of the Learned Trial Court is liable to be set
aside.
3(i). Learned Senior Counsel Mr. K. T. Bhutia placing his
arguments for A1 contended that the Prosecution has failed to Crl.A. No.15 of 2018 5
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
prove any mens rea and actus reus on the part of A1 for the
offences he was charged with. That, a simple case of recruitment
was blown out of proportion on a misunderstanding of facts. That,
A1 as the Head of the RRI (Ay) at the relevant time admittedly was
a novice in administrative matters, duly established by the
evidence of the Prosecution witnesses themselves. On a requisition
by the Central Office, A1 sent the roster indicating the vacancies
on the basis of percentage and then proceeded on leave. The next
In-Charge sent the vacancies category-wise. Till then, the roster
system had not been maintained by the RRI (Ay) as indicated in
the evidence of P.W.2 (Lakshmi Kanta Ganguli), P.W.5 (Dr. Ashok
Kumar Panda) and P.W.7 (Gopi Prasad). Following instructions
received from the Central Authority to fill up the posts for specified
categories A1 published the advertisement and on further
instructions he sought the names of eligible candidates from the
Employment Cell of the Government of Sikkim. The time for
interview was extended to enable the local candidates to appear
thereof. Pursuant thereto the Selection Committee was constituted
by the Central Authority comprising of A1, P.W.3 and P.W.4. This
Committee suo moto decided to give extra marks to the local
candidates as deposed by P.W.2, contingent upon production of
Certificate of Identification/Sikkim Subject.
(ii) Out of 45 (forty-five) non-local candidates, 25 (twenty-
five) had furnished local addresses for correspondence, hence the
furnishing of local address was not confined only to A2, A3 and A4
nor did they seek to project themselves as local candidates. A1 did
not participate in the scrutiny of applications and documents, but
constituted a Scrutiny Committee comprising of P.W.6, P.W.7 and Crl.A. No.15 of 2018 6
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
one K. K. Rakshit, vide Exhibit „C‟, based on their administrative
experience. Decisions for appointment were taken by the Selection
Committee, hence if A1 is found to have committed offences P.W.3
and P.W.4 were also equally liable and ought to have been arrayed
as accused persons. The Selection Committee was to award a total
of 50 (fifty) marks to the candidates and it was decided that 20
(twenty) marks would be allotted to A1 as Chairman for the
purpose of marking the candidates and the other two Members
would do so on 15 (fifteen) marks each. That, P.W.3 and P.W.4
have deposed that there was no unfairness in the functioning of the
Selection Committee and in such circumstances the Charge-Sheet
was filed merely to harass A1 to A5.
(iii) The departmental enquiry held against A1 during the
pendency of WP(C) No.22 of 2006 exonerated him from all
charges, while the services of A2, A3 and A4 were terminated but
the order of termination was set aside by the Central
Administrative Tribunal (CAT). The Order of the CAT came to be
challenged by way of WP(C) No.32 of 2009 in this Court which was
dismissed. Assailing this Court‟s Order, a Special Leave Petition
(SLP) was preferred before the Hon‟ble Supreme Court of India
which dismissed the SLP. That, despite these facts, the
Prosecution is pursuing this matter by way of Appeal.
(iv) Learned Senior Counsel further urged that the
Selection Committee gave extra marks to the local candidates
despite their lack of past experience and Exhibit „K‟ reveals this
circumstance, while P.W.2, P.W.3, P.W.6 and P.W.7 have deposed
in this context and P.W.32 has stated unequivocally that no Crl.A. No.15 of 2018 7
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
favouritism was shown to A2 by A1. That, Exhibit 3 the relevant
advertisement required the typing qualification to be not less than
30 (thirty) words per minute, but did not require the production of
a Certificate to that effect. The candidates appeared in person and
took the typing test where their speed was assessed. Besides, A1
had no motive to help A2 and the evidence would reveal that less
marks were awarded to A2 by A1. A1 at no point had forced the
inclusion of Hindi typing to facilitate the candidature of A2, and
Hindi was included on instructions from the Central Authority to
encourage the language. That, the entire procedure of appointment
was transparent with due information to the Central Authority
supported by Exhibit 61, the Dispatch Register, revealing such
correspondence buttressed by the evidence of P.W.7. The minutes
of the meeting pertaining to the examinations was scribed and
prepared by P.W.3 and A1 had no hand in it as evidenced by
Exhibits 15, 16 and 17. After the selection process was completed
details were forwarded to the Central Authority upon which
approval was granted for appointment, as stated by P.W.2
following which the appointments took place.
(v) That, the WP(C) 22 of 2006 came to be filed based on
Exhibit 7 dated 20-05-1985 wherein an LDC sought transfer from
Gangtok to Hyderabad which was disallowed. The correspondence
was leaked by an inimical employee of RRI (Ay) to the newspaper
"Hamro Prajashakti", Exhibit 58. The Writ Petitioner interpreted
the correspondence to mean that the advertised posts were meant
solely for local candidates which was an erroneous interpretation as
the Counter-Affidavit relied on by A2 herein would indicate
otherwise. Consequently, an Inspection Committee was constituted Crl.A. No.15 of 2018 8
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
by the Central Authority and inspection conducted by one Dr. Beni
Madhav, Deputy Director (Admn.) and L. K. Ganguly, Admn. Officer
(Vig.) [Exhibit 1] which in its report made vague allegations of
irregularities, but revealed no illegality. That, Exhibit 7 does not
reflect the provisions of the Recruitment Rules (Exhibit „F‟) and if
the letter had been brought to the notice of the Selection
Committee before completion of the recruitment process, a
clarification would have been issued to that effect. In the light of
these facts, the Appeal be dismissed.
4. Learned Counsel Mr. S. K. Pandey appearing for A2
submitted that A2 was acquitted of the Charges under Sections
420 and 120B of the IPC by the Learned Trial Court, but convicted
under Section 471 of the IPC, hence an Appeal was preferred being
Crl.A. No.29 of 2016. Vide Judgment of this Court dated 15-03-
2018, the Appeal was allowed and A2 acquitted of the offence
under Section 471 of the IPC. However, the instant Appeal against
A2 still pivots around Section 471 of the IPC. That, in fact the
prosecuting agency had failed to establish any of the allegations
against A2 or the nexus between A1 and A2. While adopting the
submissions made by Learned Senior Counsel for A1, Learned
Counsel for A2 contended that there was no requirement for
submission of past Experience Certificate and neither was he the
beneficiary by such non-furnishing. The local address furnished by
A2 was only for the purposes of correspondence and no benefit
accrued to A2 on this account. The evidence of P.W.6 in fact is
indicative of the fact that he had allowed use of his address to A2.
Due to non-possession of Certificate of Identification or a Sikkim
Subject Certificate A2 obtained no extra marks as revealed by the Crl.A. No.15 of 2018 9
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
deposition of P.W.2. There is no proof of criminal conspiracy
between A1 and A2 no offence by A2 as alleged is proved and the
Judgment of the Learned Trial Court be confirmed.
5. Advancing his arguments for A3, Learned Senior
Counsel Mr. N. Rai submitted that the specific allegation against A3
was that he had furnished the local address of P.W.12 without his
knowledge, which was in fact the culmination of acrimonious
relations between A3 and P.W.5 who vitiated the work environment
when he came to head the RRI (Ay) and had a fist fight with A3.
That, P.W.5 had inimical relations with most of the employees of
the Centre, resulting in the instant matter with the object of
harassing the Respondents herein. That, Exhibit 41, the
application form of A3 for the post of Laboratory Attendant does
not contain any requirement for permanent address, but merely
provides for postal address. A3 had furnished the address of
P.W.12 for correspondence on P.W.12 allowing D.W.3 to do so as
D.W.3 had sought permission on behalf of A3. That, Exhibit 43
dated 05-08-2006, a letter addressed to P.W.5 by P.W.12
complaining that A3 had used his residential address was written at
the behest of P.W.5 who was known to P.W.12, in order to harass
A3. Records would reveal that earlier in time Exhibit 49 the
Memorandum of appointment addressed to A3 dated December,
2005 was also delivered in the address of P.W.12 who had raised
no objection then. A3 received the letter of appointment issued in
the address of P.W.12 through one P.W.6, who was also known to
P.W.12. It was urged that no extra marks were given to A3 merely
because he furnished a local address. The prosecuting agency had
recorded the statement of D.W.3 in this context during Crl.A. No.15 of 2018 10
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
investigation, however the statement having failed to support their
case, he was not entered as a Prosecution witness. Relying on the
decision of State of Haryana vs. Ram Singh1 it was contended that
defence evidence is sufficient to disprove the Prosecution case.
That, Exhibit „AS‟ letter of show cause dated 28-06-2006 shows
two addresses of A3 and contrary to the evidence of P.W.5 that A3
did not reveal his permanent address his application form, Exhibit
41 and Caste Certificate, Exhibit „O‟ reflect his permanent address.
That, A3 was acquitted by the Learned Trial Court and the acquittal
be confirmed.
6. Learned Counsel Mr. B. K. Rai submitting his
contentions on behalf of A4 urged that there was no falsity in the
Birth Certificate Exhibit 87 or the local address furnished by him as
both his parents are employees at the RRI (Ay) and the address of
RRI (Ay) was furnished by him in Exhibit 42. Contending that
Exhibit 87 is the Birth Certificate of A4, it was argued that the
document is dated 10-06-1991, as A4 was born on 25-07-1979
and the document was obtained by his father when A4 was 12
years old a minor, at which time there was no advertisement for
vacancies in the RRI (Ay) thus no mens rea can be attributed to
A4. P.W.7 in his evidence has clearly stated that A4 has furnished
the address of Sikkim and Haryana and the evidence of P.W.8,
P.W.9 and P.W.20 are proof of the fact that he was a student in a
local school in Sikkim. That, in fact prior to the case under Appeal,
a case was earlier registered against A4 under Sections 420, 468
and 471 of the IPC where Charge-Sheet was filed against him
along with his father Ram Kishan Balmiki and one Khagendra
1 AIR 2002 SC 620 Crl.A. No.15 of 2018 11
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
Neopaney (Accused No.6) all of whom were arrested in G. R. Case
No.143 of 2007. During the hearing on consideration of Charge,
the Learned Chief Judicial Magistrate discharged all the three
persons supra vide Order dated 19-06-2008. That, the
Investigating Officer of the case has admitted that certain
documents pertaining to the case were not seized, hence the non-
seizure of relevant Registers fails to establish the alleged forgery of
Exhibit 87. That, nothing erroneous emanates in the reasoning of
the Learned Trial Court of the innocence of A4 and therefore the
Judgment of the Learned Trial Court be upheld.
7. Learned Counsel Mr. S. S. Hamal appearing for A5
submitted that A5 was the Patwari of Nadbai, District Bharatpur in
Rajasthan and retired in 2001. That, in fact, Exhibit 75 and Exhibit
81 are the relevant documents for the purposes of the case against
A5. A5 being the concerned Officer at the relevant time made the
necessary verification and submitted his report stating therein that
A2 belongs to the "Meena Caste" and is a resident of Nadbai. As
per the Prosecution, A2 is the son of „Munshi‟ when in fact A2 is the
son of "Rameshwar Dayal" as proved and buttressed by the
documents submitted by A2 before A1 for employment. A2 has
already been acquitted by the High Court of the Charge under
Section 471 of the IPC, hence the foundation of the Prosecution
case that A5 issued a false Scheduled Tribe Certificate to enable A2
to obtain employment is also demolished. The Prosecution
allegation that Exhibit 76 was submitted by A2 to the Tehsildar,
Nadbai is sans any proof. Reliance was placed on the evidence of
P.W.10, P.W.11, P.W.14, P.W.17, P.W.18, P.W.31, P.W.32, P.W.33,
D.W.1 and D.W.2. The issuance Register Exhibit 78 reveals that Crl.A. No.15 of 2018 12
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
Exhibit 81 was issued but there is no proof that Exhibit 75 was also
issued, hence the CBI has not been all to establish its allegations
against A5. It was next contended that Exhibit 81 and Exhibit 75
both are alleged to have been issued during the year 2005 to 2006
in all the three Charges framed against A5, as A5 had already
retired from service on 31-10-2001, he had no role to play in the
aforestated period. The CBI made no effort to have the Charges or
dates in the Charge-Sheet corrected. The first Charge against A5
stands categorically demolished as he was not required by law nor
issued or signed on Exhibit 75 or Exhibit 81 which was the duty of
the Tehsildar. The Dispatch Register, Exhibit 78 also does not
contain his signature. The custodian of Exhibit 75, Exhibit 78 and
Exhibit 81 one Amar Chand was not examined by the Prosecution.
The concerned authorities on submission of verification report by
the Patwari themselves verify the authenticity of the documents
furnished. The CBI‟s allegation is that the verification report was
made by A5 based on Document „X‟, the Ration Card, while A5
asserts that it could well have been based on the voter list or land
documents furnished before him. Advancing his arguments with
regard to the second Charge against A5, it was reiterated that he
retired in 2001 and A2 never claimed to be the son of „Munshi‟ and
the Prosecution failed to establish the mens rea of A2 and A5.
Reliance was placed on the documents of the Prosecution, i.e.,
Exhibits 37, 39, 40, 74 to 83 and Exhibit 92. That, in the absence
of any proof of any offence by A5 or connivance between A2 and
A5 the Judgment of the Learned Trial Court requires no
interference and the acquittal of A5 be upheld.
Crl.A. No.15 of 2018 13
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
8(i). Having heard Learned Counsel for the parties, it is
essential to briefly set out the facts of the case.
(ii) On 09-06-2006, this High Court in WP(C) No.22 of
2006 directed the CBI to conduct an enquiry into the process of
selection and appointment made by A1, the then Officer-in-Charge
of RRI (Ay) and Chairman of the Selection Committee constituted
for filling of backlog vacancies reserved for Scheduled Caste and
Scheduled Tribe categories to various posts in RRI (Ay) in Gangtok,
in pursuance to a special employment drive conducted by the
Department of Ayurveda (AYUSH) under Ministry of Health and
Family Welfare, Government of India. A preliminary enquiry was
conducted by the CBI and thereafter a regular case was registered
on 25-10-2006 against A1, A2, A3, A4, A5 and one Dr. Khagendra
Neopaney (Accused No.6). When the investigation commenced A2
filed an SLP in the Supreme Court of India against the Order of the
High Court dated 09-06-2006 (supra). Vide Order dated 31-01-
2007, the Supreme Court of India remitted the matter to the High
Court for fresh disposal and ordered discontinuation of CBI
investigation. Pursuant thereto, CBI filed a closure report dated
27-02-2007 before the Learned Court of Sessions Judge on 08-03-
2007. However, in Civil Appeal No.684/2008 arising out of SLP(C)
No.2301/2007 the Supreme Court passed an Order dated 25-01-
2008 wherein it inter alia observed that no opinion had been
expressed about some criminal proceedings stated to have been
initiated. Following this Order, the CBI withdrew the closure report
with the permission of the Court and continued investigation. The
allegations are that A1 in conspiracy with A2, A3 and A4 facilitated
their appointment in various posts at RRI (Ay) based on false Crl.A. No.15 of 2018 14
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
information/Certificate submitted by A2 to A4 to establish eligibility
of their candidature as well as to project themselves as local
residents of Sikkim. These fraudulent acts led to deprivation of
employment for the genuine local candidates. A5 was said to have
facilitated A2 to obtain a false Caste Certificate to obtain
employment at the RRI (Ay). Post based reservation rosters to
calculate backlog vacancies was not maintained by the RRI (Ay)
and the backlog vacancy position revealed discrepancies post-wise
and category-wise which was not brought to the notice of the
CCRAS to enable rectification. A1 published the advertisement in
the local newspapers for employment, on 04-10-2005 and again on
10-10-2005 and then only approached the Local Employment
Exchange on 13-10-2005 contrary to the Rules which required him
to first approach the Local Employment Exchange. The Local
Employment Cell allegedly sponsored sufficient suitable candidates
for the posts advertised which A1 ignored. The Corrigendum
issued in the daily local newspaper mentioning that local
candidates of Sikkim would be given priority indicated his
knowledge that recruitment in the Group „C‟ and „D‟ posts were to
be from local candidates. Investigation further revealed that A1
formed a Scrutiny Committee without ascertaining the competence
of the Members therein and despite the Committee finding the
application forms of A2 to A4 lacking in relevant documentation, he
directed them to accept the application forms. That, the selection
of A2 to A4 were at the behest of A1, the Chairman of the Selection
Committee.
(iii) Based on the investigation, Charge-Sheet was
submitted against A1, A2, A3, A4 A5 and one Dr. Khagendra Crl.A. No.15 of 2018 15
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
Neopaney (Accused No.6) under Section 120B read with Sections
420, 468, 471 of the IPC and Section 13(2) read with Section
13(1)(d) of the P. C. Act. Dr. Khagendra Neopaney, the then
Registrar, Births and Deaths, Government of Sikkim on filing
Crl.Rev.P. No.04 of 2014 before this Court was discharged by the
Order dated 15-04-2015.
9. The Learned Trial Court framed Charge against the
Respondents as follows;
(i) A1 under Sections 120B, 471 of the IPC and
Section 13(1)(d)(iii) of the P. C. Act;
(ii) A2 under Sections 420, 471 and 120B of the IPC;
(iii) A3 under Sections 420, 471, 120B of the IPC;
(iv) A4 under Sections 420, 471 and 120B of the IPC;
and
(v) A5 under Section 197 of the IPC read with Section 13(1)(d)(iii) of the P. C. Act and 120B of the IPC.
On due consideration of the evidence on record all the
Respondents were acquitted of the offences charged with except
A2 who was acquitted of the Charge under Sections 420 and 120B
of the IPC, but convicted under Section 471 of the IPC. On Appeal
by A2, Vide Judgment of this Court dated 15-03-2018 in Crl.A.
No.29 of 2016, A2 was acquitted of the offence under Section 471
of the IPC.
10. The rival submissions of the parties were heard in
extenso, the impugned Judgment and all documents and evidence
on record carefully perused.
11. What falls for consideration of this Court is whether the
Learned Trial Court acquitted the Respondents of the Charges
without proper appreciation of the evidence on record? Crl.A. No.15 of 2018 16
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
12. A1 and A5 were charged with offences under Section
13(1)(d)(iii) of the P. C. Act. The relevant portion of the Section is
extracted hereinbelow;
"13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,--
.................................................................
(d) if he,--
.............................................
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or .................................................................."
Dishonest intention is the essence of an offence under
Section 13(1)(d)(iii) of the P. C. Act.
13. A2, A3 and A4 were charged under Section 420 of the
IPC which provides as follows;
"420. Cheating and dishonestly inducing delivery of property.─Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
The offence is defined under Section 415 of the IPC. For
establishing an offence under this Section it is necessary that there
should be direct connection between the false representation and
the delivery of the property for the doing of something by the
person deceived. It is also necessary that the act or the omission
complained of should cause or is likely to cause damage or harm to
the person deceived, in mind, body, reputation or property.
14. A1, A2, A3 and A4 were charged under Section 471
which provides as follows;
"471. Using as genuine a forged document or electronic record.─Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document Crl.A. No.15 of 2018 17
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
or electronic record, shall be punished in the same manner as if he had forged such document or electronic record."
As clarified supra, A2 on Appeal earlier was already acquitted
of the offence. Section 471 of the IPC requires that there must be
fraudulent or dishonest use of a document as genuine and
knowledge or reasonable belief on the part of the person using the
document that it is a forged one.
15. All the Respondents were charged under Section 120B
of the IPC which is penalty for criminal conspiracy, the offence
having been defined in Section 120A of the IPC. The Prosecution
was to establish that there was an agreement between A1, A2, A3
and A4 to commit a criminal offence irrespective of whether or not
the offence was actually committed. The evidence furnished must
establish the meeting of minds of A1 with all other Respondents
and that of A5 with A2.
16. Section 197 of the IPC under which A5 has been
charged with deals with issuance or signing of any certificate
required by law to be given or 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.
17(i). On careful perusal of the evidence furnished by the
Prosecution, P.W.2 revealed that no roster was being maintained in
the RRI (Ay), Gangtok, as also P.W.5 duly supported by the
evidence of P.W.7 a former employee of the RRI (Ay), who stated
that he along with P.W.6 after obtaining permission from A1 went
to the National Sample Survey Organisation, typed the roster and
handed it over to P.W.6 who affixed his signature on the same.
Hence, A1 cannot be foisted with the allegation of non- Crl.A. No.15 of 2018 18
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
maintenance of roster as his predecessors too had not taken steps
for such maintenance, consequently the blame for discrepancies in
the roster cannot be laid at the doorstep of A1 alone. In fact, his
predecessors ought to have been taken to task for shoddy
administration. The Recruitment Rules, Exhibit „F‟ indicates that the
eligibility condition therein was that Indian Nationals as defined by
the Union Public Service Commission were eligible for appointment
under the Council. For Group „C‟ and „D‟ posts, Rule 3.3 provided
that "These posts shall be filled through the Local Employment
Exchanges or the Central Employment Exchange as the case may be,
depending on the level of the posts and availability of candidates at the
Local/Central level. In cases where the local Employment Exchanges
issue non-availability certificate on requisition sent to them in respect of
the vacancies occurring in subordinate offices and Headquarters, the
Director, CCRAS, may advertise or authorize the Project Officer to
advertise these vacancies through Central Employment Exchange. If
there are difficulties in advertising vacancies through Employment
Exchange, he may advertise these vacancies at the Headquarters office
level through D.A.V.P. Employees of the Council who are appointed on
regular basis in the Council shall be eligible for consideration for higher
posts alongwith the Employment Exchange candidates, if they apply."
In the light of this Rule, it emerges that the posts were to be filled
by local candidates whose names were sent by the Local
Employment Exchanges. If the Employment Exchange issued non-
availability Certificate of local candidates, in such a situation, either
the Director, CCRAS was to advertise these vacancies or to
authorize the Project Officer to do so. Admittedly, the Local
Employment Exchange being the Department of Personnel,
Government of Sikkim, had furnished the list of eligible names for Crl.A. No.15 of 2018 19
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
filling up the vacancies that had occurred. However, contrary to
the aforementioned Rules, A1 first issued advertisement Exhibit 4
for vacancy of Laboratory Technician from SC candidates in an
English local daily newspaper „NOW‟ dated 05-10-2005. Following
this, on 18-10-2005, Exhibit 3, advertisement was issued in the
English local daily newspaper „NOW‟ for the posts of Lower Division
Clerk, General Duty Attendant, Laboratory Assistant and Peon with
the caption "SPECIAL RECRUITMENT DRIVE FOR SCs/STs" indicating
the vacancies therein. On 29-10-2005, A1 issued Exhibit 5, a
letter to the Editor of „NOW‟, stating that he was submitting
Corrigendum for publishing in the 31-10-2005 edition of the
newspaper. The Corrigendum provided that with reference to the
advertisement issued on 05-10-2005 applications were again
invited from 31-10-2005 to 05-11-2005. That, with reference to
advertisement published on 18-10-2005 the closing date of
applications would be 05-11-2005 instead of 31-10-2005. It
mentioned "NOTE: Local candidates of Sikkim will be given priority." In
the interim, on 13-10-2005, it appears that A1 issued Exhibit 6, a
letter to the Under Secretary, Employment Cell, Department of
Personnel, Government of Sikkim, requesting him to send bio-data
of suitable candidates within 20 (twenty) days from the date of
issuance of the Circular for appointment in the posts reflected
hereinabove. The procedure followed by A1 being contrary to the
Rules exhibits irregularity at the hands of an inexperienced
administrator, but in no way can it be given the garb of a criminal
offence. The Prosecution witnesses have themselves stated that
A1 was a technical person and had not been trained in Crl.A. No.15 of 2018 20
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
administrative procedure nor is it established that at any point in
time he had prior experience in administrative work.
(ii) The allegation of the Prosecution is that A2, A3 and A4
had received undue favour by wrongly furnishing local address to
project themselves as local candidates and had thereby obtained
the benefit of additional marks and selection in the posts does not
hold water. Contrary to the reasoning of the Learned Special Judge
in the impugned Judgment that there was no specified format in
which the applicants were supposed to submit their applications,
Exhibit 4 and Exhibit 3 provide the format and details which the
applicants were to submit in their applications. It is specified inter
alia that the candidate was to furnish his "permanent address" and
"correspondence address". A2 had given three addresses, one of
Gangtok being that of P.W.20 (wife of P.W.6) in the application
form Exhibit 37, another of Delhi in Exhibit 129 (collectively) and
third one in the Caste Certificate Exhibit 75, being of Rajasthan.
A3 had given two addresses, one of Gangtok of P.W.12 in the
application form Exhibit 41 and one of Rajasthan in the attestation
form Exhibit „O‟. A4 had given two addresses, one of Haryana and
the other of RRI (Ay), both mentioned in Exhibit 42. Exhibit 3 the
advertisement dated 18-10-2005 at Serial No.8 reads as follows;
"Permanent & Correspondence address (in block letters)"
(iii) Hence, A2, A3 and A4 cannot be faulted for furnishing
the address of their permanent homes and a second address in
which correspondence was to be made. Exhibit 129 (collectively)
the Service Book of A2 reveals that his permanent home address
has been mentioned as Delhi, but the Service Book would Crl.A. No.15 of 2018 21
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
obviously indicate his address after his appointment. The
Prosecution did not make efforts to trace whether he had shifted to
Delhi in the year 2006, the year his service book was signed by
him. Exhibit 75 which shows an address of Rajasthan, the father‟s
name as "Munshi" is relied on by the Prosecution. This argument is
being discarded by this Court in view of the discussions in Crl.A.
No.29 of 2016 where this document has been discussed at length
in Paragraph 21 of the Judgment which is as follows;
"21. What manifests from the evidence of the witnesses extracted hereinabove is that, in the first instance, Exhibit 81 which is the Scheduled Tribe Certificate in the name of A2, "Ramayan Singh, son of Rameshwar Dayal", was issued vide Exhibit 78, the Dispatch Register, which at Sl. No.1090 clearly reveals the name of "Ramayan Singh, son of Rameshwar Dayal". Exhibit 75 is a Caste Certificate in the name of "Ramayan Singh son of Munshi" purporting to be the Office copy of Exhibit 81, allegedly received by A2 after acknowledging receipt on Exhibit 75 by signing on it. Both Exhibits were admittedly issued by the Tehsildar, Nadbai and Exhibit 75 remained in the Office records. The evidence of P.Ws 10, 11, 14 and 31 clarifies that Exhibit 81 was issued from the Tehsil Office at Nadbai. The Prosecution case rages around the contention that Exhibit 81 is a forged document utilized by A2 to obtain employment at RRI (Ay) Gangtok. Although the Prosecution case is that Exhibit 76 was the application submitted by A2 in the printed proforma of the concerned Tehsil, addressed to the Tehsildar recording his father„s name as "Munshi", no proof of this allegation exists. Exhibit 81 has been issued on 30- 08-2000, but Exhibit 76 has not been dated by the applicant, it is only the concerned Officer who has endorsed a date below his signature. The signature alleged to be of A2 is unidentified and it is not proved that A2 is the applicant. Even assuming that Exhibit 81 was the offshoot of Exhibit 76, it has not been established by the Prosecution that the insertion of the name "Rameshwar Dayal" was infact made by A2 or that he had knowledge of such insertion or whether Exhibit 76 pertained at all to Exhibit 81. In other words, there could have been two persons by the name of "Ramayan Singh", of which one could have been the son of "Munshi" and the other the son of "Rameshwar Dayal". It is the constant refrain of the Prosecution that Exhibit 75 is the office copy of the Scheduled Tribe Certificate issued to A2 and is, therefore, the correct version of the document issued. If this be so, then one cannot help but be perplexed at the entry in the Dispatch Register Exhibit 78 which shows issuance of Certificate to "Ramayan Singh, son of Rameshwar Dayal" and not "Ramayan Singh, son of Munshi". The evidence on record has also clearly established that the Dispatch Register, Exhibit 78 remains in the custody of the Office and more specifically with the dealing Clerk, one Amar Chand and the general public have no access to it. The entries in Exhibit 78 are said to have been made by Amar Crl.A. No.15 of 2018 22
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
Chand. It is not the claim of any of the witnesses that the entry in Exhibit 78 was made by A2. A2 had no access to Exhibit 78 as per evidence on record. The I.O. has admitted that he examined Amar Chand recorded his statements and obtained his handwriting and signatures, but Amar Chand although listed as a Prosecution witness was not produced before the Learned Trial Court to establish the Prosecution case. Amar Chand appears to be a pivotal witness, therefore, on his non-production suspicion rears its head and enables this Court to draw an adverse inference under Section 114, Illustration (g) of the Evidence Act. It is also questionable as to why Ramcharan who accompanied P.W.11 was not produced as a witness although listed as a Prosecution witness."
(iv) The Prosecution has also tried to make out a case that,
as per P.W.6, A1 told him that the address of his wife was used by
one of the candidates and A1 being the In-Charge of RRI (Ay) of
which P.W.6 was an employee he could not refuse. However, on
perusal of the evidence of P.W.6 he has stated that he used to
reside in Daragaon, Tadong, along with his wife and one room
therein was rented out by him to A2 and A3. In the light of this
evidence, if A2 and A3 were tenants of P.W.6, in my considered
opinion, no fault or criminality arises on their furnishing the
address of P.W.6 as their correspondence address, in terms of
Exhibit 3, as they were in occupation of the said premises. Similar
would be the reasoning for A4 having furnished two different
addresses as it is his case that he was a resident of Sikkim, his
parents being employees in the RRI (Ay) but they originally came
from Haryana. Furnishing of the two addresses by him was also in
compliance to the requirement in Exhibit 3. The Prosecution has
relied on the evidence of P.W.2 that in view of the differing
signatures of A2 on the application form and the joining report
gave rise to a doubt that Ramayan Singh was a different person. If
that be so, it was for the Prosecution to have launched an
investigation into the matter and by evidence cleared all doubts Crl.A. No.15 of 2018 23
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
and established their allegation. No finding can be arrived at by
any Court based on conjectures and surmises.
(v) An effort has been made by the Prosecution to indicate
that A1 had told P.W.6 to go to Tadong Post Office and collect the
appointment letters in the name of A2 and A3, but P.W.6 in his
evidence has stated that A2 and A3 told him while leaving Sikkim
after the interview that in case they were successful and a calling
letter was sent in his address, he should receive it. P.W.6 has
specifically stated that he had no objection to them using his
address and admittedly collected the appointment letters of A2 and
A3 from the Post Office but not at the behest of or duress by A1.
It is further the Prosecution case that A3 furnished the address of
P.W.12 on the instructions of A1. This is not established by any
evidence. Consequently, it is apparent that the Prosecution has
failed to establish by any cogent evidence the allegation of the
furnishing of address of P.W.12 by A3 on the alleged manipulation
by A1. Evidently, A3 had in 2005 received correspondence in the
same address but at that time P.W.12 had raised no objection who
was offended only when the show cause notice of A3 was sent to
his address. The evidence of D.W.3 in fact reveals that he was
known to P.W.12 and on his request A3 had furnished the address
of P.W.12, who permitted it. In Hanumant, Son of Govind
Nargundhar vs. State of Madhya Pradesh2 it was observed thus;
"10. ................................................................... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be
2 AIR 1952 SC 343 Crl.A. No.15 of 2018 24
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. ..........................."
(vi) P.W.2 has under cross-examination admitted that 10
(ten) marks earmarked for local candidates was to be given on
production of Sikkim Subject/Certificate of Identification and not on
the basis of the address given on the application form. That, no
favouritism was shown to any candidate by virtue of having
furnished a local address. Column 5 of Exhibit 21 reflects that 10
(ten) marks were for local candidates and 5 (five) for non-local
candidates. The Prosecution was not able to establish by any
evidence that A2, A3 and A4 were given the said additional 10
(ten) marks which were set aside for local candidates on the basis
of the local addresses furnished by them. Exhibit 21 in fact reveals
that A3 was given 5 (five) marks, whereas the local candidates
were given 10 (ten) marks each. Admittedly, A2, A3 and A4 did
not possess Certificate of Identification or Sikkim Subject,
therefore, the question of awarding them extra marks did not
arise.
(vii) Reliance has been placed by the Prosecution on Exhibit
7 and evidence of P.W.8 to support their contentions that the posts
in Group „C‟ and „D‟ were meant only for local residents. The
correspondence reveals inter alia that P.W.8 was not granted
transfer to Hyderabad or Bhubaneswar and that the Council did not
encourage employees in Group „C‟ and „D‟ recruited locally to seek
transfer to other places since such posts are "mainly" meant for
local residents. Exhibit 7 does not specify that the posts were Crl.A. No.15 of 2018 25
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
"only" for local residents but "mainly" and the correspondence did
not reflect the Rules. That apart, the Selection Committee had
been clothed with sufficient powers to select the appropriate
candidate for a particular post. Even assuming that the Rules were
flouted no criminality emanates, as it appears to have been done
on account of lack of administrative experience.
(viii) It is not contested by the Prosecution that the Selection
Committee was formed by the Central Office vide Exhibit „B‟
comprising of one Dr. D. Baruah and B. Malik. No specific
allegation has arisen from the Prosecution that A1 wrongly
nominated himself as its Chairman of the Selection Committee. As
per P.W.2, the Selection Committee constituted by CCRAS was
incorrect, but the Prosecution did not take the concerned officials
of CCRAS to task for their act. Besides, the irregularity detected in
the Selection Committee, as per P.W.2, was that B. Mallick was not
a Member of the SC/ST Community and Dr. Baruah was not a
subject Expert, it was indeed not an error committed by A1. In
addition, it is relevant to notice that Exhibit „F‟ at Rule 5.5 provides
that the Selection Committee shall comprise of the Project Head.
As A1 was evidently heading the RRI (Ay) at the relevant time he
became the Chairman of the selection by default. Hence, the
constitution of the Selection Committee was not by or at the whim
of A1.
(ix) It is not the Prosecution case that the backlog
vacancies which were reserved for Scheduled Caste and Scheduled
Tribe candidates were filled up by candidates of any other category
by the Selection Committee. The Scrutiny Committee constituted Crl.A. No.15 of 2018 26
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
by A1 comprised of P.W.6, P.W.7 and one K. K. Rakshit who
scrutinized the documents submitted by the candidates. P.W.3 has
deposed that there were no adverse remarks about the integrity of
this Committee. Even if the Prosecution was of the opinion that
the Committee was incapable, this in itself would not qualify as a
criminal offence, all that was required was to reconstitute the
Scrutiny Committee on grounds of incompetence. The Prosecution
alleged that A1 had specifically directed the Scrutiny Committee to
accept the applications of A2, A3 and A4 irrespective of the
absence of relevant documents, this is devoid of any proof given
that the Prosecution witnesses have not stated that A1 had
directed them to accept the applications of A2 to A4.
(x) The Prosecution had also contended that in the
advertisement, Hindi as the medium of the typing test was not
mentioned nor was any Expert engaged for the typing test nor did
the candidates submit Certificate of Typing Speed. In my
considered opinion in the absence of proof of criminal intent this
cannot tantamount to a criminal offence but would be an
irregularity which could well have been rectified by cancelling the
entire selection process by the Central Authority who despite being
aware of the process being undertaken by the RRI (Ay) and
information being communicated to them did not deem it essential
to take rectifying steps or consider it criminal or irregular at that
relevant point in time. In fact, evidence reveals that the list of
selected candidates were forwarded to the CCRAS who granted
approval for their appointment. No enquiries pertaining to
irregularity or illegality was made by CCRAS. The transparency
maintained by the RRI (Ay) with the Central Authority is evident Crl.A. No.15 of 2018 27
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
from communications sent to the Central Authority vide Exhibits
"AO", "AN", "AB", Exhibit 61 and evidence of P.W.7 and other
Prosecution witnesses.
(xi) Exhibit 3 the advertisement issued mentions inter alia
that "............................. b) Not less then (sic) @ 30 W.P.M. in typing as
evident in test. .............." The advertisement made no mention of a
Certificate. The Selection Committee evidently made a decision
about the medium of the typing test in view of the guidelines
issued by the Central Authority. Relevant reference may be made
to the evidence of P.W.3 who stated that the RRI (Ay) was
adhering to the guidelines issued by the Central Authority,
informing them that there ought to be progressive use of Hindi as
issued by the Department of Official Language. Exhibit „T‟ is the
letter identified by P.W.3, dated 06-03-2014, from the Director
General, CCRAS to the Subordinate Council of all Institutions/
Centres/In-Charge of Units which cautions that the guidelines to
follow Hindi in the Institute were being disregarded and the
Parliamentary Official Language Committee could inspect the
Institution at any time and should it be discovered that the
guidelines of the Official Language Department were not complied
with then RRI (Ay) would have to face a lot of difficulties. It is
clear that A1 did not of his own accord include Hindi as the
language for typing, but it was the Selection Committee following
the instructions supra. Surely following instructions of a higher
authority does not constitute a criminal offence nor can it be
deduced that the medium of the typing test was kept under wraps
to manipulate the process in favour of A2, A3 and A4. The
independence of the Selection Committee is proved by the Crl.A. No.15 of 2018 28
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
evidence of P.W.3 who categorically stated that A1 had told him
that he could check the entire records including testimonials
submitted by the candidates and kept by the Scrutiny Committee.
A1 evidently did not scrutinize the documents or influence the
Members of the Selection Committee. P.W.2 has admitted that no
written instructions were issued for the Special Recruitment Drive
and it was up to the Interview Committee to judge the suitability of
a candidate for a particular post.
(xii) So far as the statement in Exhibits 59, 67 and 66 being
Section 164 Cr.P.C. statements of P.W.6, P.W.7 and one K. K.
Rakshit respectively, is of no assistance to the Prosecution case.
P.W.6 in his Section 164 Cr.P.C. statement has deposed that he
had made his statement before a Judge but that he was told by the
CBI Officer what was to be stated before the Judge. On the Court
questioning him as to whether he had made a true statement
before the Judge, he replied that he had told the Judge what had
occurred and what he knew. However, in a subsequent statement
he stated that the contents of Exhibit 59 were not read over or
explained to him and he was made to affix his signature on Exhibit
59. His vacillating evidence renders his evidence with regard to his
Section 164 Cr.P.C. statement unreliable.
(xiii) In the same thread, it is worthwhile noticing that
although the Prosecution raised a brouhaha over non-submission of
Experience Certificate by A2 when subjected to cross-examine
P.W.6 specifically stated that A2 was not required to submit
Experience Certificate along with his application and the local
candidates also did not submit Experience Certificate. P.W.2 Crl.A. No.15 of 2018 29
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
deposed under cross-examination that A2 was not awarded any
marks for past experience. That, applications of 43 (forty three)
candidates without past experience were also accepted by the
Scrutiny Committee, thus A2 was not an exception. According to
P.W.6 and P.W.7, A1 did not tell them specifically to accept the
application of A2 even without past experience or other documents.
Exhibit 37, according to P.W.7, was accepted as per the discussions
amongst the Scrutiny Committee Members that the candidate was
qualified and the evidence of typing speed could be produced later.
Under cross-examination, he admitted that the acceptance of the
application of the candidates were correct and not erroneous and
the applications had been thoroughly scrutinized by all Members of
the Scrutiny Committee before it was accepted. Although his
Section 164 Cr.P.C. statement was shown to him wherein he stated
that "the statement made before the Judge was my true statement",
but he was not confronted with any specific statement made by
him under Section 164 Cr.P.C. before the Learned Trial Court and
in the absence of such corroboration his Section 164 of the Cr.P.C.
statement merits no consideration by this Court. It is trite that a
statement under Section 164 Cr.P.C. is not substantive evidence
but can be used only for corroboration or contradiction, no such
circumstance arose in his evidence before the Court. What is telling
and has negative import on the Prosecution case is that P.W.5,
according to P.W.6, used to threaten him by saying that he would
falsely implicate him in the case if he did not depose in accordance
with his instructions. Section 164 Cr.P.C. statement of K. K.
Rakshit, Exhibit 66, is of no assistance to the Prosecution case as Crl.A. No.15 of 2018 30
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
the said person was not examined as a Prosecution witness to test
the veracity of his statement.
(xiv) The Prosecution had contended that A1 did not inform
P.W.3 of the procedure and guidelines, however under cross-
examination P.W.3 has stated that A1 had told him that he could
check the entire records including the testimonials submitted by
the candidates and kept by the Scrutiny Committee. This evidence
indicates that P.W.3 was at liberty to have examined any of the
records including the Rules and convinced himself as to whether
there were any procedure and guidelines provided by the Central
Authority. A1 evidently did not keep any document concealed for
the purposes of giving illegal benefit to A2 to A4. It was also in the
evidence of P.W.3 that discussions were held in respect of
allocation of marks amongst them to be awarded to the candidates
and they themselves decided that the total of 50 (fifty) marks to be
allotted by the Members would be in the ratio of 20 : 15 : 15. The
Chairman of the Selection Committee was allotted 20 (twenty)
marks out of 50 (fifty) and P.W.3 and the other Member of the
Committee were allotted 15 (fifteen) marks each, as according to
him 50 (fifty) marks could not be equally divided amongst three
persons.
(xv) The allegation that different signatures were affixed by
A2 in his application form and in his joining report has not been
tested during investigation as no forensic examination was carried
out to clear this issue. Allegations cannot establish the Prosecution
case, forgery if suspected must be established by cogent evidence.
In any event, how different signatures indicate the fraudulent Crl.A. No.15 of 2018 31
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
intention of A2 has not been explained or proved by the
Prosecution. The Prosecution also sought to make out that the act
of A2 in producing Exhibit 39 and Exhibit 40 wherein the name of
his mother is given as „Mina‟ in the former and "Sunhari Devi" in
the second document was an indication of his intention to cheat the
Government. However, the Prosecution has made no investigation
to find out whether the mother of A2 went by both names, i.e.,
„Mina‟ and "Sunhari", or whether it was wrongly inserted by the
concerned authority. Document Z/6 was not exhibited by the
Prosecution on this aspect and therefore I desist from examining
the document or remarking on its contents. The allegation of the
Prosecution is not verified by any investigation or supporting
documents nor has it been established by any evidence that by
allegedly furnishing two different names of his mother A2 intended
to cheat the Government.
(xvi) So far as the evidence of P.W.11, P.W.14, P.W.18 and
P.W.29 relied on by the Prosecution and reliance on Exhibits 81,
79, 10, 74, 76, 75, 78 and 77 are concerned, in the context of A2
this Court is not taking these evidence into consideration in view of
the fact that these documents and the evidence of these witnesses
have already been considered at length in Crl.A. No.29 of 2016 as
already mentioned supra.
18(i). The argument of the Prosecution against A4 is that the
record of birth of A4 is not mentioned in the Birth Register
maintained by the Office of the Registrar, Births and Deaths.
P.W.21 has stated that the Birth Certificate, Exhibit 87 bears
Registration No.5255 dated 10-06-1991. However, in the Register Crl.A. No.15 of 2018 32
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
shown to him Exhibit 86, he found 11 (eleven) entries on 10-06-
1991 bearing No.4059 to 4069. The Prosecution failed to establish
as to whether there was any other Live Birth Register or whether
the births of 1991 truncated on 10-06-1991 with no other births for
that year. P.W.21 has admitted that one Dr. Khagendra Neopaney
was the In-Charge of the Office of the Births and Deaths. That, in
Exhibit 87 the Birth Certificate of A4 the signature appearing in the
space meant for the "signature of the Registrar" reads as "K.
Neopaney".
(ii) P.W.22 under cross-examination stated that even in
delayed cases when the births and deaths were not registered
within the stipulated period, the Department has been registering
the births and issuing Certificates as per the Rules. The Learned
Trial Court was of the opinion that Exhibit 87 was a false document
not having been issued by the competent authority as the Register
Exhibit 86 started from Serial No.2555 and ended at Serial
No.4703 with no entry No.5255 in the said Register. The Learned
Trial Court despite such finding was of the opinion that as A4 was
only 12 years old at the relevant time, he could not be held liable
for obtaining the false Birth Certificate. While disagreeing with the
finding of the Learned Trial Court that Exhibit 87 is a false
document, it is important at this juncture to consider the admission
of P.W.22 that the Birth Register Exhibit 86 pertains to Registration
No.2555 onwards up to 4703. That, the records of births after
Registration No.4703 were not produced before the Court and the
Police did not seize the Birth Register from their Office beginning
from registration No.4704 onwards. This admission raises doubts
about the efficiency of the Prosecution investigation which appears Crl.A. No.15 of 2018 33
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
to be remiss and perfunctory. P.W.22 also admitted that Exhibit
87 bears the Office seal of the Department and is in the format
issued by their Department and indicates that the applicant was 12
years old when the Certificate was prepared. The signature on
Exhibit 87 remained unidentified as Dr. Khagendra Neopaney
whose signature it purportedly was discharged by an Order of this
Court as already extracted supra. However, this would not render
the document false for reasons enumerated supra and in fact
prompts the Court to draw an adverse inference against the
Prosecution. The benefit of doubt is thus extended to A4 as the
Learned Trial Court had no occasion to examine whether an entry
pertaining to Exhibit 87 existed in any other Birth Register
maintained by the Office of the Births and Deaths, Government of
Sikkim. That apart, the argument of the Prosecution pertaining to
A4 furnishing a false Birth Certificate cannot be countenanced as
he was 12 years old on the date the document was issued and
obviously had no inkling about its preparation. On this aspect,
while discussing the principle of ante litem motam, the Hon‟ble
Supreme Court in Murugan alias Settu v. State of Tamil Nadu3 held as
follows;
"23. In Mohd. Ikram Hussain v. State of U.P. [AIR 1964 SC 1625]this Court had an occasion to examine a similar issue and held as under: (AIR p. 1631, para 16)
"16. In the present case Kaniz Fatima was stated to be under the age of 18. There were two certified copies from school registers which showed that on 20-6-1960 she was under 17 years of age. There [was] also the affidavit of the father stating the date of her birth and the statement of Kaniz Fatima to the police with regard to her own age. These amounted to evidence under the Evidence Act and the entries in the school registers were made ante litem motam. As against this the learned Judges apparently held that Kaniz Fatima was over 18 years of age. They relied upon what was said to have
3 (2011) 6 SCC 111 Crl.A. No.15 of 2018 34
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
been mentioned in a report of the doctor who examined Kaniz Fatima,.... The High Court thus reached the conclusion about the majority without any evidence before it in support of it and in the face of direct evidence against it."
24. The documents made ante litem motam can be relied upon safely, when such documents are admissible under Section 35 of the Evidence Act, 1872. (Vide Umesh Chandra v. State of Rajasthan [(1982) 2 SCC 202] and State of Bihar v. Radha Krishna Singh [(1983) 3 SCC 118]."
[emphasis supplied]
The extract above applies with equal vigour in this matter
and thereby lends a quietus to the issue of Exhibit 87.
(iii) It is also the contention of the Prosecution that A4 had
furnished a false Typing Certificate stating that he was doing typing
course from 23-09-2005 in Palbheu Institute, but the Certificate
did not reflect that he had typing speed of 30 words per minute.
Firstly, it is relevant to mention that the advertisement did not
require furnishing of a Typing Certificate. P.W.27 mentioned that
the typing speed of A4 as 21 w.p.m. only and that on account of
this circumstance A4 was suspended from the course, but the
Prosecution has produced no document to augment this evidence
or such suspension. P.W.15 appears to have been the Examiner for
the typing test. According to him, the typing speed of A4 was
106/5 which amounted to 21 w.p.m. Exhibit 85 is the typing test
sheet of A4 for the test conducted on 07-01-2006. The document
as per P.W.15 was prepared by him in his own handwriting but his
signature does not find place on the document. According to him,
the Principal of the Palbheu Institute signed on Exhibit 85 on 06-
12-2006. The test was conducted on 07-01-2006 but the
Prosecution has not explained as to why the Principal of the
Palbheu Institute who evidently had not conducted the examination
signed on Exhibit 85 on 06-12-2006, 11 (eleven) months‟ after the
examination. That apart, although assuming that A4 could only Crl.A. No.15 of 2018 35
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
type 21 w.p.m. the Prosecution did not furnish the typing test
result of any other candidates for a comparative study by the
Learned Trial Court to assess whether there was a candidate who
had performed better in the typing test than A4 which could have
been indicative of special favours, if any, extended to A4. Without
such comparison, the Court cannot off hand state that the
Selection Committee was in error in selecting A4 despite his speed.
The Selection Committee was clothed with discretionary powers as
deposed by P.W.2 and has exercised the powers and any
irregularity if committed does not tantamount to criminality.
Hence, I am not inclined to accept this argument of the Prosecution
that A4 ought not to have been selected on the basis of his typing
speed.
19. So far as the Charge against A5 is concerned, the
origins of Exhibit 75 and Exhibit 81 have already been discussed at
length by this Court in Crl.A. No.29 of 2016 filed by A2. As pointed
out by Learned Counsel for the Appellant, the Charge framed
against A5 is for offences committed between 2005 and 2006
whereas it is proved by the evidence of the Prosecution witnesses
that he had retired from service in 2001. It is clear that all that A5
was required to do was to verify as to whether A2 was a resident of
Nadbai and belonged to the ST community. He has verified the
same and evidence reveals that he is not responsible for signing or
issuing of either Exhibit 75 or Exhibit 81 which is issued by
Authorities higher than him, thus the ingredients of Section 197 of
the IPC remain unfulfilled. Besides the mens rea of A5 has not
been established by the Prosecution. No person can be prosecuted
for having carried out his duties. If the Prosecution alleges that a Crl.A. No.15 of 2018 36
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
person had mens rea and consequently actus reus in an offence
then it is the bounden duty of the Prosecution to join the dots and
prove such a circumstance beyond reasonable doubt.
20. In conclusion, no evidence establishes that A1 in
conspiracy with A2, A3 and A4 appointed them in various posts
knowing that A2 had produced a fake ST Certificate, A3 had
furnished a false local address and A4 had filed a false Birth
Certificate and inadequate Typing Certificate. To bring home an
offence under Section 120B of the IPC, it is necessary to establish
that there was an agreement between the parties for doing an
unlawful act. Undoubtedly, it is difficult to establish conspiracy by
direct evidence, but circumstantial evidence must link the offence
unerringly to each of the accused who allegedly enter into a
conspiracy. The enigma that presents itself in the matter is the
lack of evidence to prove such conspiracy or any motive attributed
to A1 to favour A2, A3 and A4. Evidently, no investigation was
undertaken to establish any relationship between A1 and A2, A3 &
A4 before their appointment to the posts. No evidence was led to
establish that they were either related, or that they belonged to
the same area/cities/State for A1 to favour them. No material
benefits are alleged to have accrued to A1 by appointing A2 to A4
neither has any other altruistic motive been attributed to A1 which
would egg him on to sully his own reputation by making such
appointments. In the absence of any evidence, whatsoever to
indicate meeting of minds between A1, A2, A3 and A4, the offence
under Section 120B of the IPC has not been made out by the
Prosecution against any of the Respondents charged with the
offence. No evidence points to any dishonest intention of A1 and Crl.A. No.15 of 2018 37
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
A5 as required under Section 13(1)(d) of the P.C. Act. The
Prosecution failed to establish that A1, A2, A3 and A4 had used as
genuine forged documents to make out an offence under Section
471 of the IPC. The conspiracy between A2 and A5 has also not
been established by any evidence or any motive imputed on A5 to
favour A2. The Prosecution has not denied that A2 belonged to the
tribe "Meena" recognised as Scheduled Tribe in Rajasthan,
therefore, there was no reason for him to induce A5 to deliver any
forged property to him. None of the evidence on record
establishes that A2, A3 and A4 cheated and dishonestly induced
delivery of property as required under Section 420 of the IPC. A5
was said to have misused his official position and issued and signed
a false Scheduled Tribe Certificate for the benefit of A2 this has
been demolished by the evidence on record. In conclusion, none of
the Charges against the Respondents have been proved by the
Prosecution.
21. The Prosecution after making imputations against the
Respondents are required to prove its case beyond reasonable
doubt. In the absence of any cogent and clinching evidence
against any of the Respondents under the offences charged with, I
find no infirmity in the conclusion of the Learned Trial Court except
for conviction of A2 under Section 471 of the IPC which was
however dealt with in Crl.A. No.29 of 2016.
22. Consequently, the Appeal is dismissed.
23. No order as to costs.
Crl.A. No.15 of 2018 38
Central Bureau of Investigation vs. Dr. Pratap Makhija and Others
24. Copy of this Judgment be transmitted to the Learned
Trial Court for information along with records of the Learned Trial
Court.
( Justice Meenakshi Madan Rai ) Judge 24-03-2021
Approved for reporting : Yes
ds
