W.A. No. 80 of 2016. Case: Gauri Rani Malakar Vs The State of Tripura and Ors.. Tripura High Court

Case NumberW.A. No. 80 of 2016
Party NameGauri Rani Malakar Vs The State of Tripura and Ors.
CounselFor Appellant: S. Kar Bhowmik, Advocate and For Respondents: J. Majumder, Advocate
JudgesDeepak Gupta, C.J. and S. Talapatra, J.
IssueIndian Penal Code 1860, (IPC) - Section 468; Limitation Act, 1963 - Section 17
Judgement DateFebruary 02, 2017
CourtTripura High Court

Judgment:

S. Talapatra, J., (At Agartala)

  1. By this intra-court appeal, the judgment and order dated 19.08.2016 delivered in W.P.(C) No. 62 of 2009 by a learned Single Judge of this Court has been challenged by the writ petitioner, the appellant herein.

  2. By means of the writ petition, the memorandum under No. F.14(115)-HFW/97/2512(V-III) dated 12.07.2004, Annexure-2 to the writ petition, has been challenged on two grounds that the charge, as framed by the said memorandum dated 12.07.2004, relates to a misconduct which occurred more than 4(four) years before when the memorandum dated 12.07.2004, was issued. Since the petitioner has been made to retire on 12.04.1999, in terms of Rule 9(2)(b) of the Central Civil Services (Pension) Rules, 1972 as adopted in the State of Tripura, the departmental proceeding on the basis of the said misconduct cannot proceed legally even with leave of the Governor. That apart, since the charge as framed by the said memorandum dated 12.07.2004 is exactly identical to the charges framed in GR 671 of 2002 emanated from the same 'act' by the petitioner, the appellant herein, and when by the judgment dated 20.02.2008, the petitioner has been acquitted from the said charge under Section 468 of the IPC as the prosecution has failed to establish the charge beyond reasonable doubt no departmental action cannot survive thereafter. It would be apposite to reproduce the basis on which the said acquittal was recorded by the Chief Judicial Magistrate, West Tripura, Agartala by his judgment dated 20.02.2008 in GR No. 671 of 2002 and accordingly, the same is reproduced:

    Now, it is very difficult to arrive at a decision whether the Matriculation Certificate as was produced by the accused person before her authority was a genuine one or forged. As per letter of the Controller of Examinations, Dhaka the date of birth of the accused person was not same as was recorded in the Service Book at the time of entry into the service of the accused person, but according to the prosecution the Duplicate Matriculation Certificate as produced by the accused was forged and so, to prove a document as forged, it is the duty of the prosecution to cover up all procedures so that the clear opinion can be formed that really the document is forged one. But here in this case regarding the Matriculation Certificate as was submitted by the accused person no effort was made to establish the said certificate as a forged one. It is also might happen that the Duplicate Matriculation Certificate as produced by the accused was not at all issued by the Dhaka Board, but at present position of the case it is impossible to ascertain regarding the genuineness of the said Matriculation Certificate of the accused. The issuing authority i.e. the Controller of Examinations was the best person to say about the genuineness of the Duplicate Certificate as it was issued by him. The prosecution case is that the accused forged the date of birth in the Matriculation Certificate issued by Dhaka Board. So, without proper examination by the appropriate authority (Controller of Examinations, Dhaka) plain way it cannot be said that the whole Matriculation Certificate is forged one and it was created by the accused for the purpose of illegal gain by cheating her authority.

  3. The charge was framed under Section 468 of the IPC for forging a duplicate matriculation certificate issued by the Board of Intermediate and Secondary Education, Dhaka, now in Bangladesh where her date of birth was shown as 13.04.1946. In the service record, her date of birth was recorded as on 13.04.1941 at the time of opening. After investigation, the prima-facie materials including a letter of the said board [Exbt. M.O. III] which was issued by the said board and wherefrom it surfaced that the recorded date of birth of the petitioner in their record was 30.04.1941 and not 13.04.1946 were gathered. Having found thus, the said charge was framed for trial.

  4. There is no dispute that one complaint was filed against the petitioner to the Officer-in-Charge, East Agartala Police Station from the Government of Tripura, Health and Family Welfare Department on 20.08.2002, Annexure-1 to the writ petition, and the case being East Agartala P.S. case No. 174/2002 under Section 468 of the IPC was registered and the final police report chargesheeting the petitioner was filed in due course. By the memorandum dated 12.07.2004 for committing the said misconduct, the following charge was leveled against the petitioner:

    That the said Smt. Gouri Rani Malakar while functioning as Staff Nurse in the Sub-divisional Hospital, North Tripura submitted false certificate and affidavit indicating her date of birth is on 30.04.1946 though her actual date of birth is on 30.04.1941 as informed and confirmed by the Controller of Examination Board of Intermediate and Secondary Education, Dhaka, Bangladesh vide their No. 4378/Con/2002 dated 12.06.2002.

    By submitting false certificate and affidavit and...

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