Isabella Mariam

The Calcutta High Court, Criminal Revisional Jurisdiction, Appellate Side, Single Bench of Justice Apurba Sinha Ray, upheld the conviction of a Central Reserve Police Force (CRPF) constable for using a fake Scheduled Tribe (ST) certificate to secure employment, while setting aside the sentence and directing a fresh hearing on the point of sentencing under Section 360 of the Code of Criminal Procedure.

The court directed the Judicial Magistrate, 3rd Court, Krishnagar, Nadia to rehear the matter on sentencing within three months, citing failure to consider provisions of Section 360 and 361 of the CrPC and absence of recorded special reasons for denial of probation.

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The case arose from allegations that the revisionist, Samir Kumar Das alias Samir Das, fraudulently used a forged caste certificate to secure employment in the CRPF under a post reserved for ST category. The prosecution contended that the accused; despite knowing he was not an ST, submitted a forged certificate and was consequently appointed as a constable (GD).

Mr. Debabrata Ray, learned counsel for the revisionist, argued that the Trial Court and First Appellate Court erred in law and procedure. He challenged the admissibility of the letter dated 21.08.2008 (Exhibit-4), contending it was neither sent by registered post as claimed in oral testimony nor supported by postal documentation. He stated discrepancies between the stated and actual mode of dispatch of the complaint, and the six-day delay in presenting the FIR to the Chief Judicial Magistrate. Relying on Balaka Singh & Ors. v. State of Punjab, Ishwar Singh v. State of UP, and other decisions, he contended the FIR was invalid and unfit to form the foundation of prosecution.

Further, he pointed to inconsistencies in the investigation, particularly in the testimony of PW10, the Investigating Officer, who contradicted himself regarding how the fake certificate was obtained. According to the counsel, no CRPF official or constable Sukdeb Dey was examined to corroborate PW10’s version.

Counsel asserted that to secure a conviction under Section 471 IPC, the prosecution must prove forgery under Sections 464 and 470 IPC, which it failed to do. Reliance was placed on Supreme Court decisions including Mir Nagvi Askari v. CBI, Sheila Sebastian v. R. Jawaharaj, and Mohammed Ibrahim v. State of Bihar to argue that in absence of proof of the accused preparing or authorizing the forged document, a conviction under Section 471 cannot be sustained.

He also submitted that the Trial Court did not consider the applicability of Sections 360 and 361 of the CrPC or the Probation of Offenders Act, despite the petitioner being a first-time offender.

In contrast, the State’s counsel, Mr. Joydeep Ray, contended that sufficient material existed to prove that the accused knowingly used a fraudulent document to gain reserved category employment. He referred to Exhibit-8, the verification report stating the certificate was fake, and Exhibit-12, the impugned document. The State argued that Sections 471, 417, and 420 IPC were appropriately applied, and the accused's act deprived a genuine ST candidate of rightful employment.

The court recorded, "It is said that men may lie but documents may not." Noting that the revisionist admitted he was employed in CRPF and not from the ST category, and the post was reserved for ST candidates, the court found that the burden shifted to the accused under Section 106 of the Indian Evidence Act, 1872 (now Section 109 of Bharatiya Sakshya Adhiniyam, 2023) to prove his caste.

The Bench observed that the revisionist "did not discharge his onus by producing materials on record showing that he actually belongs to ST in spite of getting opportunity." It stated that even if there were discrepancies in FIR registration, the forged document and its use remained independently proved.

Justice Apurba Sinha Ray stated, "Though there are certain lacuna in the prosecution case as alleged by the learned counsel of the revisionist... the prosecution has been able to show that the caste certificate on the basis of which the revisionist was able to secure a job... is a fake one, [and] the entire onus shifts upon the revisionist."

Rejecting the argument that Section 471 IPC cannot be invoked without proving Section 464 IPC, the court clarified: "Even if the concerned person does not himself make such a fraudulent document, he shall be deemed to have forged such a document if he intentionally uses the said document as genuine after knowing that the same is not."

On sentencing, the court found serious procedural deficiencies. It noted that the Learned Judicial Magistrate merely stated, "Considering the nature and circumstances of the offences the benefit of Probation of Offenders Act, 1958 is not extended," without addressing Sections 360 and 361 CrPC or providing special reasons for denying probation.

Justice Ray quoted Ved Prakash v. State of Haryana and stated: "Sentencing an accused person is a sensitive exercise of discretion and not a routine or mechanical prescription acting on hunch... the Trial Court should have collected materials necessary to help award a just punishment."

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The court noted the failure to consider the convict’s social background, financial condition, or whether he was a first-time offender. It held that "the sentencing process remains incomplete if the Judicial Magistrate does not comply with the requirements as mentioned in Sections 360 and 361 of the Code of Criminal Procedure, 1973."

While upholding the conviction, the court held: "The conviction order of the petitioner... is hereby affirmed, but the order of sentence is set aside. The Learned Judicial Magistrate... is to hear the convict afresh on the point of sentence and also on the provisions of Section 360 of the Code of Criminal Procedure... within three months from date..."

The court concluded: The revisional application being CRR 137 of 2017 is allowed in part on contest. No order as to costs. The trial court record be returned to the concerned court at once.

Advocates Representing the Parties

For the Petitioner: Mr. Debabrata Ray, Mr. Prabir Majumder, Mr. S. Majumder, Mr. Debasis Shil, Ms. Sangeeta Chakraborty

For the State: Mr. Joydeep Ray, Jr. Government Advocate, Mr. Samarjit Balial

Case Title: Samir Kumar Das @ Samir Das vs. The State of West Bengal

Case Number: CRR 137 of 2017

Bench: Justice Apurba Sinha Ray

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