Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.M.C. 638/2009 & Crl.M.A.2384/09 (stay)
% Date of reserve: 04.03.2009
Date of decision: 23.03.2009
D.R. PATEL & ORS. …PETITIONERS
Through : Mr. S.C. Juneja, S.K. Anand &
Anil Anand, adv.
Versus
STATE & ANR. ...RESPONDENTS
Through : None
CORAM:
HON’BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
MOOL CHAND GARG, J.
1. The present petition arises out of an order passed by the
Learned Addl. Sessions Judge dated 09.04.2007 the Learned Addl.
Sessions Judge while deciding his second revision petition filed
under Section 397 Cr.P.C. has upheld the order of the
Metropolitan Magistrate dated 23.06.2007 directing the
petitioners to face a trial in case FIR No. 139/04 dated 28.04.2004
under Section 420/468/471/504/506/34 IPC which has been
registered at the instance of the second respondent.
2. Briefly stating the facts giving rise to this case are:
(i) An FIR was registered against the petitioners at the
Crl.M.C. 638/2009 Page 1 of 13
instance of the second respondent on the allegations
that the petitioners manipulated the report card of his
son Vishal Singh Rathore who was studying in the
school where the petitioners are working and one of
them is a principal so as to fail him because the
petitioners failed to abide by the illegal demands of
the respondents. It was also alleged that the answer
sheets of the papers given by his son were also
manipulated.
(ii) Originally the petitioner filed a Police complaint but
since the Police refused to register an FIR the second
respondent approached this Court and by way of a
writ petition it was pursuant to the orders passed by
this Court that the ACMM directed the registration of
an FIR on the basis of a complaint filed by the
petitioner dated 28.04.2004.
(iii) The Police filed a cancellation report after
investigating the allegations made in the FIR against
the petitioners but the Magistrate refused to accept
the cancellation report and summoned the petitioner
to face the trial for the offences under Section
420/468/471/504/506/34 IPC.
(iv) This order of the Magistrate was assailed by the
petitioner by filing a revision petition before District &
Crl.M.C. 638/2009 Page 2 of 13
Sessions Judge which was marked for disposal in the
Court of Ms. Reena Singh Nag, Learned Addl. Sessions
Judge who vide her order dated 23.06.2007 the case
back to the Magistrate with the following directions:
Having gone through the record in the light of
submissions addressed by both the sides and the
judgments referred, in my considered view a
grave prejudice has been caused to the accused
persons due to passing of a non speaking order
by Ld. MM. As such order dated 8.12.2006 is set
aside and Ld. MM is directed to pass a speaking
order touching upon all the aspects including role
of the accused persons qua their culpability
coming on record, with regard to taking of
cognizance and summoning of accused so that
neither accused nor complainant is prejudiced
due to non speaking order. Trial Court record be
sent back along with copy of this order.
Complainant is directed to appear before the trial
Court on 16.04.2007 at 2.00 PM.
(v) After the remand the Magistrate reiterated his earlier
order on 08.12.2006 but by a speaking order again
directed the petitioner to appear in his Court for facing
the charge against them on the basis of the FIR No.
139/04.
(vi) This order was again assailed by the petitioners by
filing a second revision petition.
(vii) This petition came up for hearing before an Addl.
Sessions Judge who was pleased to dismiss the said
revision vide order dated 11.02.2009 which has been
assailed now before this Court under Section 482
Cr.P.C.
3. It is the submission of the petitioner that despite availing
Crl.M.C. 638/2009 Page 3 of 13
remedy of revision under Section 397 Cr.P.C. the present petition
is still maintainable as while deciding the matter neither the
Magistrate nor the Addl. Sessions Judge has taken into
consideration the observations made by this Court and the
Hon‟ble Supreme Court of India in writ petition and SLP filed by
the petitioner seeking direction for admission of a child in the
next Class and where the Courts unequivocally held that the
prayer made by the complainant that his son has qualified/
passed in 11 (C) but was deliberately failed by the school
authorities was rejected. It has been submitted that the Courts
below have carried gross mis-carriage of justice by not disclosing
the findings of the CFSL which it is sated is the case of
complainant and where it has been find that there is no
alteration, manipulation and forgery in this case as the marks on
the answer-sheets are the same as were mentioned in the report.
The petitioners have relied upon the judgment delivered by the
Apex Court in Kailash Verma Vs. Punjab State Civil Supplies
Corporation (2005) 2 SCC 571.
4. Having gone through the record I find that the Learned
Addl. Sessions Judge while disposing of the revision petition has
taken note of the submissions made by the petitioner that the
writ petition was also filed by the complainant before the Hon‟ble
High Court in CM.No.6951/2004 against the school authorities
and were seeking a declaration that his child was wrongly been
Crl.M.C. 638/2009 Page 4 of 13
declared as failed and that the said writ petition was dismissed
and LPA filed against the said order was also dismissed. An SLP
filed against the order passed in LPA was also dismissed.
5. In addition to the aforesaid argument the Learned ASJ has
also taken note of the submission made by the petitioner that the
order of summoning by the Magistrate dated 23.06.2007
reiterated vide second order dated 08.12.2006 was bad in law
inasmuch as it was submitted that there was no manipulation in
the answer-sheet or the report card and, therefore, there was no
question of having committed forgery by the petitioners on the
basis of which they have been called upon to face prosecution.
6. However, the Addl. Sessions Judge has not accepted the
contentions of the petitioner and has disposed of the second
revision petition by a speaking order. The relevant portion of the
order is being reproduced hereunder:
2.I have perused the impugned order of Ld. MM vide
which the processes to all the revisionists were issued
holding that:
As far as the removal of staple pins is
concerned the IO has given his opinion
that mere removal of staples pins is no
offence. In the present case, the question
is not only of the removal of the staple
pins, but that of the manipulation, and
change of one sheet of the report card.
There would have been no offence if only
a staple pin is removed and another staple
pin is placed in place of the previous
staple pin, but when a sheet or document
is completely removed and some other
sheet or documents is placed back with
some other particulars, the offence of
forgery is committed.
Allegedly, when the complainant received
the report card of his son he saw that
Vishal Singh Rathore got more than 33%
Crl.M.C. 638/2009 Page 5 of 13
in every subject. According to the
complainant as per rules if a student gets
more than 33% in each subject and gets
required percentage of marks in
aggregate, he has to be declared pass.
When the complainant saw the
percentage of marks in the report of his
son as mentioned above and if any
change is made by the school authority or
the accused persons in the report card to
the prejudice of his son, it would certainly
amount to be forgery.
It is further seen that in the report card
Vishal Singh Rathore has been declared
failed in three subjects i.e. Maths, Physics
and Chemistry whereas in the remarks
column, he has been put for re-exam in
chemistry and Maths only. It is surprising
that when Vishal Singh Rathore was
allowed re-exam in Chemistry and Maths
only, why he has been shown failed in
Physics also. Even in the register which
was seized by the IO containing the marks
of the students, Vishal Singh Rathore was
put in the re-exam for Maths and
Chemistry whereas in the mark-sheet he
was declared failed in the physics also. If
Vishal Singh Rathore was failed in three
subjects there would be no question of re-
examination in two subjects, and he had
to be declared failed completely. This fact
also give enough suspicion on the accused
persons for the manipulation of the report
card.”
3.These observations are purely pertaining to the facts
which can only be decided during the course of
examination and cross-examination. The offence
against which revisionists have been summoned are
warrant trial cases. Therefore, before matter is
considered for trial the pre-charge evidence is
mandatory. So the question of disputed facts can only
be looked into during the course of enquiry or prior to
the trial stage by the Court concerned. The contentions
of revisionists are not sustainable at this stage since
they can raised their plea before the original court of
jurisdiction during the pre charge evidence for
determination of the exact and proximate facts of the
case. The revision jurisdiction only extend to the
legality, correctness and propriety. The disputed
question is not covered under the legality. So long as
the correctness and propriety is concerned to my view
revisionist Court has very limited jurisdiction to
determine the fact except in the exceptional cases.
Therefore, in my view it will neither be justifiable nor
correct and proper if this Court sits to supervise the
jurisdiction of the trial Court at this stage on the
determination of the facts in question. The contentions
of the Ld. APP regarding the remedy available with the
revisionists, is only u/s 482 read with 204 IPC in this
regard he has quoted the judgment „M/s Hindustan
Cables Ltd and others Vs. State Govt. of NCT of Delhi
and others‟ and relied upon the para 6 which spells out
Crl.M.C. 638/2009 Page 6 of 13
as under:
“Aggrieved thereby the petitioners filed a
Revision Petition before the Sessions
Judge. The Ld. Addl. Sessions Judge
observed that in view of the judgment
passed by the Supreme Court in Adalat
Prasad Vs. Rooplal Jindal and others, 2004
(4) RCR (Criminal) 1: 2004 (3) Apex
Criminal 459: 113 (2004) DLT 356 (SC)
and Subramanium Sethuraman Vs. State
of Maharashtra and Another, 2004 (4) RCR
(Criminal) 349: 2004 (3) Apex Criminal
535: 2004 (4) Crimes 78 (SC), the only
course of action available to the accused/
petitioners by way of filing a Petition u/s
482 Cr.P.C. before this Court against the
order of the Ld. Metropolitan Magistrate
relating to the summoning order. Accused
persons have got no right to ask recalling
of the summoning order either directly/
indirectly by way of filing the Revision
Petition; hence, dismissed the said
Revision Petition being not maintainable in
the eyes of law, without entering into the
merits of the case.”
The citation relied upon by respondent is not
applicable in this case as facts mentioned in the
aforesaid citation and the case are different as the
offence u/s 138 N.I. Act 1881 is a summoned trial case
where as the offence u/s 420/468/471/504/506/34 IPC
pertains to the warrant trial cases. Therefore, the
revisionists have an opportunity during the course of
pre-charge evidence to cross-examine witnesses so as to
arrive at the determination of the facts before the
revisionists are put on trial. In view of these facts and
circumstances of the case I do not agree with the
contentions of Ld. Counsel for revisionists. The matter is
remanded back to the trial court and with the direction
to complete the pre-charge evidence as early as possible
but not later than six months. Accordingly, revision
petition is dismissed.
7. Learned counsel for the petitioner has tried to assail the
order passed by the Addl. Sessions Judge and the Magistrate by
again reiterating that the Special Leave Petition filed by the
complainant against the petitioners which was basically for a
declaration that the action of the petitioners in having failed the
son of the petitioner was not correct which fact has already been
considered by the Revisional Court as stated above submits that
the allegation which have been made against him were very
Crl.M.C. 638/2009 Page 7 of 13
much the subject matter of the petitions filed by the petitioner
which stands disposed of by this Court as well as by the Hon‟ble
Supreme Court and, therefore, there is no question of a second
trial of the petitioner before the Criminal Court for which the
proceedings have been undertaken by the petitioners and order
of summoning has been issued by the Magistrate and which order
has been upheld by the Addl. Sessions Judge.
8. It has been submitted that in view of the observations made
by the Writ Court as well as by the Hon‟ble Supreme Court in the
order dismissing the SLP the proceedings which are being sought
to be continued by the petitioner tantamount to be abuse of the
process of this Court and, therefore, this Court can intervene and
pass appropriate directions to stop abuse of the process of the
Court by quashing the FIR as well as the summoning order,
relying upon the judgment of the Apex Court delivered in the
case of Kailash Verma Vs. Punjab State Civil Supplies Corporation
(Supra) where it has been held:
5. It may also be noticed that this Court in Rajathi Vs. C.
Ganesan said that the power under Section 482 of the
Criminal Procedure Code has to be exercised sparingly
and such power shall not be utilized as a substitute for
second revision. Ordinarily, when a revision has been
barred under Section 397(3) of the Code, the
complainant or the accused cannot be allowed to take
recourse to revision before the High Court under Section
397(1) of the Criminal Procedure Code as it is prohibited
under Section 397(3) thereof. However, the High Court
can entertain a petition under Section 482 of the
Criminal Procedure Code when there is serious
miscarriage of justice and abuse of the process of the
court or when mandatory provisions of law are not
complied with and when the High Court feels that the
inherent jurisdiction is to be exercised to correct the
mistake committed by the revisional court.
Crl.M.C. 638/2009 Page 8 of 13
9. Having gone through the record I am not able to convince
that it is a fit case where this Court should interfere by exercising
its powers under Section 482 Cr.P.C. as I find, in this case, it is
the petitioners who are trying to mis-use the process of Court
inasmuch as having failed in the first revision petition they filed a
second revision petition. Despite being unsuccessful they have
come to this Court under Section 482 Cr.P.C. raising similar
grievances which have been taken note of by the Addl. Sessions
Judge and have not been accepted for cogent reasons.
10. In so far as the adjudication by this Court and the Hon‟ble
Supreme Court is concerned, the writ petition as well as the
Special Leave Petition were disposed of on legal issues dealing
with the powers of the Directorate of Education in accordance
with the School Education Act. Those decisions does not take
note of the factual aspects such as forgery which has been
alleged to have been committed by the complainant in his FIR
and which is a matter to be tried by the Magistrate concerned
after recording the evidence of the parties.
11. As such it is not a case where this Court should interfere
under Section 482 Cr.P.C. which if allowed would tantamount to
entertain a second revision which is barred by the provisions
contained under Section 397(2) Cr.P.C. which issue is no more
res-integra more particularly because nothing new has been
Crl.M.C. 638/2009 Page 9 of 13
brought to the notice of this Court. All the issues raised by the
petitioners which have been raised firstly before Ms. Reena Singh
Nag and thereafter before Shri Raj Kapoor Addl. Sessions Judge
have been taken note of by the Metropolitan Magistrate in his
order dated 27.06.2006 as well as in the order dated 11.02.2009.
12. It may also be observed that Ms. Reena Singh Nag, J while
decided to send back the matter to Magistrate for passing a
speaking order including the role of the accused persons qua
their culpability having come in record in view of the report of
CFSL has taken note of the allegations which were made by the
petitioner with regard to the dismissal of the writ petition of the
complainant in not permitting the son of the complainant to join
th
12 Class which in fact is a different question and in fact in the
writ petition directions were given to the Director of Education to
hold enquiry and after order so passed when LPA so filed by the
complainant the only observation which was made by the
Division Bench was an advise to the complainant not to waste the
time of the child. However, on the basis of a writ petition filed by
the complainant before this Court an order was passed on
22.02.2006 whereby the matter was referred to anti-forgery
Section of EOW Cell to reinvestigate the case i.e. the complaint
filed by the complainant and it is thereafter the matter came up
for consideration afresh before the Magistrate who vide his order
dated 23.06.2006 has reiterated the order of summoning which
Crl.M.C. 638/2009 Page 10 of 13
order was the subject matter of adjudication before the second
revisional Court who again did not agree with the petitioner for
the reasons stated above.
13. I have also gone through the order of the Magistrate dated
23.06.2007 which is also the subject matter of the challenge. A
perusal of the aforesaid order goes to show that after the case
was remanded back by the Addl. Sessions Judge Reena Singh Nag
the Magistrate has passed a speaking order even after taking
note of the cancellation report by making the following
observations:
In the present case as per the contentions of the
complainant the sole question is whether there was any
tampering in the report card of Vishal Singh Rathore.
The IO in his report states that the following
shortcomings were found in the report card of the son of
the complainant. First, that the report card of Vishal
Singh Rathore was bearing 07 pages whereas all the
other report cards were having 08 pages. Secondly,
there was no cutting in the attendance column of Vishal
Singh Rathore‟s report card whereas cutting can be seen
in the column of remaining report cards. Thirdly,
practical marks of Vishal Singh Rathore has not been
added whereas rest of the report cards were made after
adding the practical marks. Fourthly, signature of the
guardian in the half yearly terms in the report card of
Vishal Singh Rathore did not exist. Fifth, Vishal Singh
Rathore‟s report card had three staple pins and lastly,
Vishal Singh Rathore had been failed in three subject,
but was given compartment in only two subject.
When the report card was found to have above
mentioned discrepancies, prima facie, it is to be believed
that the same was manipulated. The IO has given the
explanation as given by the accused persons of each
and every discrepancy. In my opinion when the report
card was found to be manipulated or had discrepancies
the matter was subject to trial. The explanations of the
accused persons cannot be believed and considered
unless the same are proved by them in their defence.
As far as the removal of staple pins is concerned
the IO has given his opinion that mere removal of
staples pins is no offence. In the present case, the
question is not only of the removal of the staple pins, but
that of the manipulation, and change of one sheet of the
report card. There would have been no offence if only a
staple pin is removed and another staple pin is placed in
Crl.M.C. 638/2009 Page 11 of 13
place of the previous staple pin, but when a sheet or
document is completely removed and some other sheet
or documents is placed back with some other particulars,
the offence of forgery is committed.
Allegedly, when the complainant received the
report card of his son he saw that Vishal Singh Rathore
got more than 33% in every subject. According to the
complainant as per rules if a student gets more than
33% marks in each subject and gets required
percentage of marks in aggregate, he has to be declared
pass. When the complainant saw the percentage of
marks in the report of his son as mentioned above and if
any change is made by the school authority or the
accused persons in the report card to the prejudice of his
son, it would certainly amount to be forgery.
It is further seen that in the report card Vishal
Singh Rathore has been declared failed in three subjects
i.e. Maths, Physics and Chemistry whereas in the
remarks column, he has been put for re-exam in
chemistry and Maths only. It is surprising that when
Vishal Singh Rathore was allowed re-exam in Chemistry
and Maths only, why he has been shown failed in Physics
also. Even in the register which was seized by the IO
containing the marks of the students, Vishal Siingh
Rathore was put in re-exam for Maths and Chemistry
whereas in the mark-sheet he was declared failed in the
physics also. If Vishal Singh Rathore was failed in three
subjects there would be no question of re-examination in
two subjects, and he had to be declared failed
completely. This fact also given enough suspicion on the
accused persons for the manipulation of the report card.
Even Hon‟ble Mr. Justice R.C. Jain in his order
dated 02.02.2006 had observed that the investigation in
the case had not been taken up in the real earnest and
core question which was required to be investigated was
as to whether the report card of the son of the petitioner
was in fact manipulated or not. Hon‟ble Mr. Justice R.C.
Jain further observed the FSL report about the staple
pins, and gave observation that status report filed by the
Asst. Commissioner of police clearly overlooked the
missing of one sheet of the report card prior to its last
page, and insertion of another staple pin between top
and bottom which was found to be different then the one
used for stapling the report cards of the other students.
It was further observed by the Lordship that the very
fact that one page was found missing from the report
card of the petitioner‟s son lends credit to the version of
the petitioner that the report card of his son Vishal Singh
Rathore was manipulated by someone at some stage
with some ulterior motive. It was further the observation
of the Lordship that the Investigation officers mis-
conducted themselves with a view to help the persons
who were responsible for manipulating the report card of
Vishal Singh Rathore, after petitioner took up the matter
with the concerned authorities of the Directorate of
education, Govt. of NCT of Delhi.
This Court follows the observation of Hon‟ble Mr.
Justice R.C. Jain.
At this stage, the court just has to see whether
there is prima facie case against the accused persons or
Crl.M.C. 638/2009 Page 12 of 13
there are sufficient grounds to prosecute the accused
persons. At the time of summoning the accused
persons, the court has not to see the sufficient ground
for conviction but only to see whether there are
sufficient ground to proceed. Further, the question
whether the evidence is adequate for supporting the
conviction can be determined only at the trial and not at
this stage. At this stage, of issuing process the court is
mainly concerned with the allegations made in the
complaint, and material collected by the investigating
agency.
14. The aforesaid goes to show that a conscious decision was
taken by the Magistrate based upon the material placed on
record which prima facie shows that the petitioners are guilty of
committing forgery in having manipulated the report card and
answer-sheets of the son of the petitioner. The issue of
commission of forgery and not permitting the son of the
th
petitioner to join 12 Class are two independent issues. The
second issue has been sorted out by an adjudication by this Court
as well as the Apex Court in having dismissed the petitions filed
by the complainant but the issue of forgery which is a disputed
question of facts could not have been decided by this Court in
writ jurisdiction. Accordingly, I do not find any merit in the
petition which in view of Section 397(2) Cr.P.C. is even otherwise
not maintainable. Hence the same is dismissed.
Crl.M.A.2384/09 (stay)
In view of the aforesaid orders stay application also stands
dismissed.
MOOL CHAND GARG, J.
MARCH 23, 2009
ag
Crl.M.C. 638/2009 Page 13 of 13
+ Crl.M.C. 638/2009 & Crl.M.A.2384/09 (stay)
% Date of reserve: 04.03.2009
Date of decision: 23.03.2009
D.R. PATEL & ORS. …PETITIONERS
Through : Mr. S.C. Juneja, S.K. Anand &
Anil Anand, adv.
Versus
STATE & ANR. ...RESPONDENTS
Through : None
CORAM:
HON’BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
MOOL CHAND GARG, J.
1. The present petition arises out of an order passed by the
Learned Addl. Sessions Judge dated 09.04.2007 the Learned Addl.
Sessions Judge while deciding his second revision petition filed
under Section 397 Cr.P.C. has upheld the order of the
Metropolitan Magistrate dated 23.06.2007 directing the
petitioners to face a trial in case FIR No. 139/04 dated 28.04.2004
under Section 420/468/471/504/506/34 IPC which has been
registered at the instance of the second respondent.
2. Briefly stating the facts giving rise to this case are:
(i) An FIR was registered against the petitioners at the
Crl.M.C. 638/2009 Page 1 of 13
instance of the second respondent on the allegations
that the petitioners manipulated the report card of his
son Vishal Singh Rathore who was studying in the
school where the petitioners are working and one of
them is a principal so as to fail him because the
petitioners failed to abide by the illegal demands of
the respondents. It was also alleged that the answer
sheets of the papers given by his son were also
manipulated.
(ii) Originally the petitioner filed a Police complaint but
since the Police refused to register an FIR the second
respondent approached this Court and by way of a
writ petition it was pursuant to the orders passed by
this Court that the ACMM directed the registration of
an FIR on the basis of a complaint filed by the
petitioner dated 28.04.2004.
(iii) The Police filed a cancellation report after
investigating the allegations made in the FIR against
the petitioners but the Magistrate refused to accept
the cancellation report and summoned the petitioner
to face the trial for the offences under Section
420/468/471/504/506/34 IPC.
(iv) This order of the Magistrate was assailed by the
petitioner by filing a revision petition before District &
Crl.M.C. 638/2009 Page 2 of 13
Sessions Judge which was marked for disposal in the
Court of Ms. Reena Singh Nag, Learned Addl. Sessions
Judge who vide her order dated 23.06.2007 the case
back to the Magistrate with the following directions:
Having gone through the record in the light of
submissions addressed by both the sides and the
judgments referred, in my considered view a
grave prejudice has been caused to the accused
persons due to passing of a non speaking order
by Ld. MM. As such order dated 8.12.2006 is set
aside and Ld. MM is directed to pass a speaking
order touching upon all the aspects including role
of the accused persons qua their culpability
coming on record, with regard to taking of
cognizance and summoning of accused so that
neither accused nor complainant is prejudiced
due to non speaking order. Trial Court record be
sent back along with copy of this order.
Complainant is directed to appear before the trial
Court on 16.04.2007 at 2.00 PM.
(v) After the remand the Magistrate reiterated his earlier
order on 08.12.2006 but by a speaking order again
directed the petitioner to appear in his Court for facing
the charge against them on the basis of the FIR No.
139/04.
(vi) This order was again assailed by the petitioners by
filing a second revision petition.
(vii) This petition came up for hearing before an Addl.
Sessions Judge who was pleased to dismiss the said
revision vide order dated 11.02.2009 which has been
assailed now before this Court under Section 482
Cr.P.C.
3. It is the submission of the petitioner that despite availing
Crl.M.C. 638/2009 Page 3 of 13
remedy of revision under Section 397 Cr.P.C. the present petition
is still maintainable as while deciding the matter neither the
Magistrate nor the Addl. Sessions Judge has taken into
consideration the observations made by this Court and the
Hon‟ble Supreme Court of India in writ petition and SLP filed by
the petitioner seeking direction for admission of a child in the
next Class and where the Courts unequivocally held that the
prayer made by the complainant that his son has qualified/
passed in 11 (C) but was deliberately failed by the school
authorities was rejected. It has been submitted that the Courts
below have carried gross mis-carriage of justice by not disclosing
the findings of the CFSL which it is sated is the case of
complainant and where it has been find that there is no
alteration, manipulation and forgery in this case as the marks on
the answer-sheets are the same as were mentioned in the report.
The petitioners have relied upon the judgment delivered by the
Apex Court in Kailash Verma Vs. Punjab State Civil Supplies
Corporation (2005) 2 SCC 571.
4. Having gone through the record I find that the Learned
Addl. Sessions Judge while disposing of the revision petition has
taken note of the submissions made by the petitioner that the
writ petition was also filed by the complainant before the Hon‟ble
High Court in CM.No.6951/2004 against the school authorities
and were seeking a declaration that his child was wrongly been
Crl.M.C. 638/2009 Page 4 of 13
declared as failed and that the said writ petition was dismissed
and LPA filed against the said order was also dismissed. An SLP
filed against the order passed in LPA was also dismissed.
5. In addition to the aforesaid argument the Learned ASJ has
also taken note of the submission made by the petitioner that the
order of summoning by the Magistrate dated 23.06.2007
reiterated vide second order dated 08.12.2006 was bad in law
inasmuch as it was submitted that there was no manipulation in
the answer-sheet or the report card and, therefore, there was no
question of having committed forgery by the petitioners on the
basis of which they have been called upon to face prosecution.
6. However, the Addl. Sessions Judge has not accepted the
contentions of the petitioner and has disposed of the second
revision petition by a speaking order. The relevant portion of the
order is being reproduced hereunder:
2.I have perused the impugned order of Ld. MM vide
which the processes to all the revisionists were issued
holding that:
As far as the removal of staple pins is
concerned the IO has given his opinion
that mere removal of staples pins is no
offence. In the present case, the question
is not only of the removal of the staple
pins, but that of the manipulation, and
change of one sheet of the report card.
There would have been no offence if only
a staple pin is removed and another staple
pin is placed in place of the previous
staple pin, but when a sheet or document
is completely removed and some other
sheet or documents is placed back with
some other particulars, the offence of
forgery is committed.
Allegedly, when the complainant received
the report card of his son he saw that
Vishal Singh Rathore got more than 33%
Crl.M.C. 638/2009 Page 5 of 13
in every subject. According to the
complainant as per rules if a student gets
more than 33% in each subject and gets
required percentage of marks in
aggregate, he has to be declared pass.
When the complainant saw the
percentage of marks in the report of his
son as mentioned above and if any
change is made by the school authority or
the accused persons in the report card to
the prejudice of his son, it would certainly
amount to be forgery.
It is further seen that in the report card
Vishal Singh Rathore has been declared
failed in three subjects i.e. Maths, Physics
and Chemistry whereas in the remarks
column, he has been put for re-exam in
chemistry and Maths only. It is surprising
that when Vishal Singh Rathore was
allowed re-exam in Chemistry and Maths
only, why he has been shown failed in
Physics also. Even in the register which
was seized by the IO containing the marks
of the students, Vishal Singh Rathore was
put in the re-exam for Maths and
Chemistry whereas in the mark-sheet he
was declared failed in the physics also. If
Vishal Singh Rathore was failed in three
subjects there would be no question of re-
examination in two subjects, and he had
to be declared failed completely. This fact
also give enough suspicion on the accused
persons for the manipulation of the report
card.”
3.These observations are purely pertaining to the facts
which can only be decided during the course of
examination and cross-examination. The offence
against which revisionists have been summoned are
warrant trial cases. Therefore, before matter is
considered for trial the pre-charge evidence is
mandatory. So the question of disputed facts can only
be looked into during the course of enquiry or prior to
the trial stage by the Court concerned. The contentions
of revisionists are not sustainable at this stage since
they can raised their plea before the original court of
jurisdiction during the pre charge evidence for
determination of the exact and proximate facts of the
case. The revision jurisdiction only extend to the
legality, correctness and propriety. The disputed
question is not covered under the legality. So long as
the correctness and propriety is concerned to my view
revisionist Court has very limited jurisdiction to
determine the fact except in the exceptional cases.
Therefore, in my view it will neither be justifiable nor
correct and proper if this Court sits to supervise the
jurisdiction of the trial Court at this stage on the
determination of the facts in question. The contentions
of the Ld. APP regarding the remedy available with the
revisionists, is only u/s 482 read with 204 IPC in this
regard he has quoted the judgment „M/s Hindustan
Cables Ltd and others Vs. State Govt. of NCT of Delhi
and others‟ and relied upon the para 6 which spells out
Crl.M.C. 638/2009 Page 6 of 13
as under:
“Aggrieved thereby the petitioners filed a
Revision Petition before the Sessions
Judge. The Ld. Addl. Sessions Judge
observed that in view of the judgment
passed by the Supreme Court in Adalat
Prasad Vs. Rooplal Jindal and others, 2004
(4) RCR (Criminal) 1: 2004 (3) Apex
Criminal 459: 113 (2004) DLT 356 (SC)
and Subramanium Sethuraman Vs. State
of Maharashtra and Another, 2004 (4) RCR
(Criminal) 349: 2004 (3) Apex Criminal
535: 2004 (4) Crimes 78 (SC), the only
course of action available to the accused/
petitioners by way of filing a Petition u/s
482 Cr.P.C. before this Court against the
order of the Ld. Metropolitan Magistrate
relating to the summoning order. Accused
persons have got no right to ask recalling
of the summoning order either directly/
indirectly by way of filing the Revision
Petition; hence, dismissed the said
Revision Petition being not maintainable in
the eyes of law, without entering into the
merits of the case.”
The citation relied upon by respondent is not
applicable in this case as facts mentioned in the
aforesaid citation and the case are different as the
offence u/s 138 N.I. Act 1881 is a summoned trial case
where as the offence u/s 420/468/471/504/506/34 IPC
pertains to the warrant trial cases. Therefore, the
revisionists have an opportunity during the course of
pre-charge evidence to cross-examine witnesses so as to
arrive at the determination of the facts before the
revisionists are put on trial. In view of these facts and
circumstances of the case I do not agree with the
contentions of Ld. Counsel for revisionists. The matter is
remanded back to the trial court and with the direction
to complete the pre-charge evidence as early as possible
but not later than six months. Accordingly, revision
petition is dismissed.
7. Learned counsel for the petitioner has tried to assail the
order passed by the Addl. Sessions Judge and the Magistrate by
again reiterating that the Special Leave Petition filed by the
complainant against the petitioners which was basically for a
declaration that the action of the petitioners in having failed the
son of the petitioner was not correct which fact has already been
considered by the Revisional Court as stated above submits that
the allegation which have been made against him were very
Crl.M.C. 638/2009 Page 7 of 13
much the subject matter of the petitions filed by the petitioner
which stands disposed of by this Court as well as by the Hon‟ble
Supreme Court and, therefore, there is no question of a second
trial of the petitioner before the Criminal Court for which the
proceedings have been undertaken by the petitioners and order
of summoning has been issued by the Magistrate and which order
has been upheld by the Addl. Sessions Judge.
8. It has been submitted that in view of the observations made
by the Writ Court as well as by the Hon‟ble Supreme Court in the
order dismissing the SLP the proceedings which are being sought
to be continued by the petitioner tantamount to be abuse of the
process of this Court and, therefore, this Court can intervene and
pass appropriate directions to stop abuse of the process of the
Court by quashing the FIR as well as the summoning order,
relying upon the judgment of the Apex Court delivered in the
case of Kailash Verma Vs. Punjab State Civil Supplies Corporation
(Supra) where it has been held:
5. It may also be noticed that this Court in Rajathi Vs. C.
Ganesan said that the power under Section 482 of the
Criminal Procedure Code has to be exercised sparingly
and such power shall not be utilized as a substitute for
second revision. Ordinarily, when a revision has been
barred under Section 397(3) of the Code, the
complainant or the accused cannot be allowed to take
recourse to revision before the High Court under Section
397(1) of the Criminal Procedure Code as it is prohibited
under Section 397(3) thereof. However, the High Court
can entertain a petition under Section 482 of the
Criminal Procedure Code when there is serious
miscarriage of justice and abuse of the process of the
court or when mandatory provisions of law are not
complied with and when the High Court feels that the
inherent jurisdiction is to be exercised to correct the
mistake committed by the revisional court.
Crl.M.C. 638/2009 Page 8 of 13
9. Having gone through the record I am not able to convince
that it is a fit case where this Court should interfere by exercising
its powers under Section 482 Cr.P.C. as I find, in this case, it is
the petitioners who are trying to mis-use the process of Court
inasmuch as having failed in the first revision petition they filed a
second revision petition. Despite being unsuccessful they have
come to this Court under Section 482 Cr.P.C. raising similar
grievances which have been taken note of by the Addl. Sessions
Judge and have not been accepted for cogent reasons.
10. In so far as the adjudication by this Court and the Hon‟ble
Supreme Court is concerned, the writ petition as well as the
Special Leave Petition were disposed of on legal issues dealing
with the powers of the Directorate of Education in accordance
with the School Education Act. Those decisions does not take
note of the factual aspects such as forgery which has been
alleged to have been committed by the complainant in his FIR
and which is a matter to be tried by the Magistrate concerned
after recording the evidence of the parties.
11. As such it is not a case where this Court should interfere
under Section 482 Cr.P.C. which if allowed would tantamount to
entertain a second revision which is barred by the provisions
contained under Section 397(2) Cr.P.C. which issue is no more
res-integra more particularly because nothing new has been
Crl.M.C. 638/2009 Page 9 of 13
brought to the notice of this Court. All the issues raised by the
petitioners which have been raised firstly before Ms. Reena Singh
Nag and thereafter before Shri Raj Kapoor Addl. Sessions Judge
have been taken note of by the Metropolitan Magistrate in his
order dated 27.06.2006 as well as in the order dated 11.02.2009.
12. It may also be observed that Ms. Reena Singh Nag, J while
decided to send back the matter to Magistrate for passing a
speaking order including the role of the accused persons qua
their culpability having come in record in view of the report of
CFSL has taken note of the allegations which were made by the
petitioner with regard to the dismissal of the writ petition of the
complainant in not permitting the son of the complainant to join
th
12 Class which in fact is a different question and in fact in the
writ petition directions were given to the Director of Education to
hold enquiry and after order so passed when LPA so filed by the
complainant the only observation which was made by the
Division Bench was an advise to the complainant not to waste the
time of the child. However, on the basis of a writ petition filed by
the complainant before this Court an order was passed on
22.02.2006 whereby the matter was referred to anti-forgery
Section of EOW Cell to reinvestigate the case i.e. the complaint
filed by the complainant and it is thereafter the matter came up
for consideration afresh before the Magistrate who vide his order
dated 23.06.2006 has reiterated the order of summoning which
Crl.M.C. 638/2009 Page 10 of 13
order was the subject matter of adjudication before the second
revisional Court who again did not agree with the petitioner for
the reasons stated above.
13. I have also gone through the order of the Magistrate dated
23.06.2007 which is also the subject matter of the challenge. A
perusal of the aforesaid order goes to show that after the case
was remanded back by the Addl. Sessions Judge Reena Singh Nag
the Magistrate has passed a speaking order even after taking
note of the cancellation report by making the following
observations:
In the present case as per the contentions of the
complainant the sole question is whether there was any
tampering in the report card of Vishal Singh Rathore.
The IO in his report states that the following
shortcomings were found in the report card of the son of
the complainant. First, that the report card of Vishal
Singh Rathore was bearing 07 pages whereas all the
other report cards were having 08 pages. Secondly,
there was no cutting in the attendance column of Vishal
Singh Rathore‟s report card whereas cutting can be seen
in the column of remaining report cards. Thirdly,
practical marks of Vishal Singh Rathore has not been
added whereas rest of the report cards were made after
adding the practical marks. Fourthly, signature of the
guardian in the half yearly terms in the report card of
Vishal Singh Rathore did not exist. Fifth, Vishal Singh
Rathore‟s report card had three staple pins and lastly,
Vishal Singh Rathore had been failed in three subject,
but was given compartment in only two subject.
When the report card was found to have above
mentioned discrepancies, prima facie, it is to be believed
that the same was manipulated. The IO has given the
explanation as given by the accused persons of each
and every discrepancy. In my opinion when the report
card was found to be manipulated or had discrepancies
the matter was subject to trial. The explanations of the
accused persons cannot be believed and considered
unless the same are proved by them in their defence.
As far as the removal of staple pins is concerned
the IO has given his opinion that mere removal of
staples pins is no offence. In the present case, the
question is not only of the removal of the staple pins, but
that of the manipulation, and change of one sheet of the
report card. There would have been no offence if only a
staple pin is removed and another staple pin is placed in
Crl.M.C. 638/2009 Page 11 of 13
place of the previous staple pin, but when a sheet or
document is completely removed and some other sheet
or documents is placed back with some other particulars,
the offence of forgery is committed.
Allegedly, when the complainant received the
report card of his son he saw that Vishal Singh Rathore
got more than 33% in every subject. According to the
complainant as per rules if a student gets more than
33% marks in each subject and gets required
percentage of marks in aggregate, he has to be declared
pass. When the complainant saw the percentage of
marks in the report of his son as mentioned above and if
any change is made by the school authority or the
accused persons in the report card to the prejudice of his
son, it would certainly amount to be forgery.
It is further seen that in the report card Vishal
Singh Rathore has been declared failed in three subjects
i.e. Maths, Physics and Chemistry whereas in the
remarks column, he has been put for re-exam in
chemistry and Maths only. It is surprising that when
Vishal Singh Rathore was allowed re-exam in Chemistry
and Maths only, why he has been shown failed in Physics
also. Even in the register which was seized by the IO
containing the marks of the students, Vishal Siingh
Rathore was put in re-exam for Maths and Chemistry
whereas in the mark-sheet he was declared failed in the
physics also. If Vishal Singh Rathore was failed in three
subjects there would be no question of re-examination in
two subjects, and he had to be declared failed
completely. This fact also given enough suspicion on the
accused persons for the manipulation of the report card.
Even Hon‟ble Mr. Justice R.C. Jain in his order
dated 02.02.2006 had observed that the investigation in
the case had not been taken up in the real earnest and
core question which was required to be investigated was
as to whether the report card of the son of the petitioner
was in fact manipulated or not. Hon‟ble Mr. Justice R.C.
Jain further observed the FSL report about the staple
pins, and gave observation that status report filed by the
Asst. Commissioner of police clearly overlooked the
missing of one sheet of the report card prior to its last
page, and insertion of another staple pin between top
and bottom which was found to be different then the one
used for stapling the report cards of the other students.
It was further observed by the Lordship that the very
fact that one page was found missing from the report
card of the petitioner‟s son lends credit to the version of
the petitioner that the report card of his son Vishal Singh
Rathore was manipulated by someone at some stage
with some ulterior motive. It was further the observation
of the Lordship that the Investigation officers mis-
conducted themselves with a view to help the persons
who were responsible for manipulating the report card of
Vishal Singh Rathore, after petitioner took up the matter
with the concerned authorities of the Directorate of
education, Govt. of NCT of Delhi.
This Court follows the observation of Hon‟ble Mr.
Justice R.C. Jain.
At this stage, the court just has to see whether
there is prima facie case against the accused persons or
Crl.M.C. 638/2009 Page 12 of 13
there are sufficient grounds to prosecute the accused
persons. At the time of summoning the accused
persons, the court has not to see the sufficient ground
for conviction but only to see whether there are
sufficient ground to proceed. Further, the question
whether the evidence is adequate for supporting the
conviction can be determined only at the trial and not at
this stage. At this stage, of issuing process the court is
mainly concerned with the allegations made in the
complaint, and material collected by the investigating
agency.
14. The aforesaid goes to show that a conscious decision was
taken by the Magistrate based upon the material placed on
record which prima facie shows that the petitioners are guilty of
committing forgery in having manipulated the report card and
answer-sheets of the son of the petitioner. The issue of
commission of forgery and not permitting the son of the
th
petitioner to join 12 Class are two independent issues. The
second issue has been sorted out by an adjudication by this Court
as well as the Apex Court in having dismissed the petitions filed
by the complainant but the issue of forgery which is a disputed
question of facts could not have been decided by this Court in
writ jurisdiction. Accordingly, I do not find any merit in the
petition which in view of Section 397(2) Cr.P.C. is even otherwise
not maintainable. Hence the same is dismissed.
Crl.M.A.2384/09 (stay)
In view of the aforesaid orders stay application also stands
dismissed.
MOOL CHAND GARG, J.
MARCH 23, 2009
ag
Crl.M.C. 638/2009 Page 13 of 13