IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH )

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1 IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA, MANIPUR, TRIPURA, MIZORAM AND ARUNACHAL PRADESH ) KOHIMA BENCH Crl. Revision Petn. No. 2(K)/ Smti Zavekholu Epao, W/o. Vizekho Kennao, Resident of Kenuozou Colony, Kohima, Nagaland. 2. Smti Phuholi Sumi, W/o. Tokheho Aye, Resident of Kenuozou Colony, Kohima, Nagaland..Petitioners. -Versus _ The State of Nagaland. Respondent BEFORE THE HON BLE MR. JUSTICE B.K. SHARMA For the Petitioners : Mr. S. Dutta. Adv. For the respondents : Mr. N.M. Jamir, PP. Date of hearing & : Judgement. B.K. Sharma, J JUDGEMENT AND ORDER (ORAL) Heard Mr. S. Dutta, learned counsel appearing for the accused petitioners, namely, Smt. Zavekholu Epao and Smt. Phuholi Sumi. Also heard Mr. N.M. Jamir, learned PP, Nagaland. 2. This application under Section 397/401 of the Cr.P.C. read with Article 227 of the Constitution of India, has been filed by the accused petitioners challenging the order dated Crl. Revision Petn. 2(K) of 2010 Page 1 of 12

2 passed by Smt. M.T. Therieh, Judicial Magistrate, First Class, Kohima in GR Case No. 40/2009, by which charges against the accused petitioners have been framed under Section 119/477/409/403/465/471/120(B) of IPC. Upon framing of the charge, the accused petitioners pleaded not guilty and claimed to be tried. Accordingly, summon had been issued to PW-1 for examination on However, because of pendency of the instant proceeding, there is no progress in the criminal proceeding pending before the learned Trial Court. 3. Mr. Dutta, learned counsel for the accused petitioners submits that since the learned trial court has failed to comply with the requirement of Section 207 Cr.P.C. by not furnishing the required documents to the accused petitioners and framed the charges against the accused petitioners, the entire proceeding including the impugned order is liable to be interfered with. In this connection, he has exclusively referred to the various orders passed in the proceeding towards framing of the charges against the accused petitioners. 4. Mr. Jamir, learned PP, Nagaland on the other hand submits that the instant proceeding is nothing but a dilatory tactics by the accused petitioners to delay the criminal proceeding. He further submits that all the required documents having been furnished to the accused petitioners as per the provisions of Section 207 Cr.P.C., the accused petitioners cannot go on demanding further documents. Supporting the impugned order, by which the charge against the accused petitioners has been framed, the learned PP submits that the instant criminal revision petition is an Crl. Revision Petn. 2(K) of 2010 Page 2 of 12

3 abuse of the process of law and consequently liable to be dismissed. 5. I have considered the rival submissions made by the learned counsel for the parties and have also perused the entire materials on record. 6. The criminal case against the accused petitioners emanated on the basis of the Annexure-P/1 FIR dated lodged with the Officer-in-charge of North Police Station, Kohima. For a ready reference, the FIR is quoted below :- No. NPSC/CON-10/2009 NAGALAND PUBLIC SERVICE COMMISSION KOHIMA Dated Kohima, the 2 nd March, 2009 To The Officer-in-Charge, North Police Station, Kohima. Sub : Complaint. Sir, In course of scrutiny of the Answer Scripts of Marks scored by the candidates short listed for final Merit list for NCS/NPS & Allied Services Recruitment Exam, 2008 after Interview and Lecturers Recruitment Exam, 2008 under Higher Education, it has been found that 11 (Eleven) candidates have been found involved in some malpractices in connivance with some staff of the Commission by replacing the actual Answer Scripts with other Answer Scripts written outside the Examination Hall. You are therefore, requested to register a case and investigate into it for prosecution. Yours faithfully, Crl. Revision Petn. 2(K) of 2010 Page 3 of 12

4 Sd/ (DELI IROSE M. SAKHRIE) Secretary Nagaland Public Service Commission, Kohima. 7. On the basis of the said FIR, case No. 0022/2009 under Section 199/477/409/403/464/471/474/120B IPC was registered and investigated upon. On the basis of the materials available on records, the learned trial court has framed the aforementioned charge against the two accused petitioners by the impugned order dated In the revision petition, the petitioner has stated in details about the proceedings before the learned trial court. The various dates fixed till passing of the impugned order dated are indicated below along with the proceedings thereof as projected by the petitioners : The learned trial court on receipt of the record passed the order for consideration of charge on According to the petitioner the said order could not have been passed without first furnishing the copies as mentioned in Section 207 Cr.P.C. It is the stand of the petitioners that they were not furnished with the police papers : Order passed to the effect that the matter would be taken up for consideration of charge on Crl. Revision Petn. 2(K) of 2010 Page 4 of 12

5 According to the petitioners, the orders so passed was without furnishing the copies of the police documents : The learned trial court issued notice to both the accused petitioners to appear before the Court on : Both the petitioners appeared before the leaned trial court and asked for necessary police papers in terms of Section 207 of Cr.P.C. The learned trial court passed order for furnishing necessary documents to the accused petitioners and fixed the matter on : It was discovered that the documents were not furnished to the accused petitioners and thus the matter was adjourned to : The accused petitioners were not present in the Court as according to them their counsel had recorded a wrong date. Consequently, their engaged counsel also did not appear on the said date. Accordingly, order was passed by the trial court for appearance of the accused petitioners on The court Crl. Revision Petn. 2(K) of 2010 Page 5 of 12

6 recorded in its order that the accused petitioners were not cooperating with the proceeding : The court granted 18 (eighteen) days time to the accused petitioners to prepare their defence and fixed the matter on for consideration of charge : The accused petitioners prayed for adjournment on the ground of nonfurnishing of the police papers and accordingly the Court granted 2 (two) weeks time fixing the mater on for consideration of charge : The accused petitioners appeared and prayed for time as according to them they were yet to receive certain documents which they had prayed for to the Public Information Officer, NPSC as per the provisions of RTI Act, : When the matter was again taken up by the trial court, the accused petitioners again prayed for time on the ground of non-receipt of documents applied for to the NPSC. Crl. Revision Petn. 2(K) of 2010 Page 6 of 12

7 : The petitioners again prayed for time on the ground of non-furnsihing of documents applied for to the NPSC : The accused petitioners appeared and prayed for two months time. Matter was adjourned to : The impugned charge against the accused petitioners framed. 9. Above is the narration of proceedings by accused petitioners before the learned trial court but on consideration of the orders passed in the proceedings by the learned trial court, what has appeared is that the accused petitioners had already been furnished with the required documents as per the provisions of Section 207 of Cr.P.C. The documents, the accused petitioners had insisted upon are the documents lying with the NPSC. The accused petitioners tried to camouflage the issue relating to furnishing of documents by merging the documents they had sought for as per the provisions of RTI Act. 10. As per the provisions of Section 207 Cr.P.C., an accused is entitled to copy of police report and other documents as mentioned therein. For a ready reference, Section 207 Cr.P.C. is quoted below : Supply to the accused of copy of police report and other documents. In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following :- (i) the police report ; Crl. Revision Petn. 2(K) of 2010 Page 7 of 12

8 (ii) (iii) (iv) (v) the first information report recorded under section 154 ; the statements recorded under sub-section (3) of section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173 ; the confessions and statements, if an, recorded under section 164; any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173. Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause(iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused ; Provided further that if the Magistrate is satisfied that any document referred to in clause(v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court. 11. The order passed by the learned trial court on (Annexure-P/10) will go to show that the accused petitioners had received the documents on On the said date, the learned APP raised objection for granting of further time for preparation to the accused petitioners. However, the learned trial court adjourned the matter to On , a prayer was made on behalf of the Crl. Revision Petn. 2(K) of 2010 Page 8 of 12

9 accused petitioners that the matter be adjourned as some more documents are required for preparation of their defence. As per the submissions made on behalf of the accused petitioners, the whole lot of the answer scripts was directed to be photostated and supplied to the accused petitioners. 12. Being not satisfied with that the accused petitioners made the Annexure- P/12 application to the Public Information Officer, NPSC, Kohima, making the following request :- To The Public Information Officer, NPSC, Kohima. 1.Name of the applicant : Smti. Zavekholu Epao. 2. Full Address : C/o. J. Khetoholi Yeputhomi Acvocate, Bar Room, ADC (Judicial) Building, Kohima , Nagaland. 3. Contact Number : / (M) 4. Kindly furnish the following information :- (a) Copy of the letter written to the Post- Master Kohima for dispatch of Answer scripts to the examiner for NCS, NPS & Allied services Examination 2008 and Lecturers Examination (b) Copy of the appointment order of Invigilators in respect of Room No. 4 and 9 for NCS, NPS & Allied services Examination 2008, and for all the rooms in respect of Lecturers Examination (c) Record of distribution and receipt of Answer scripts of NCS, NPS & Allied services Examination 2008 and Lecturers Crl. Revision Petn. 2(K) of 2010 Page 9 of 12

10 Examination 2008 from the invigilators / supervisors. (d) Order of duties details for code numbering of answer scripts in respect of NCS, NPS & Allied services Examination 2008 and Lecturers Examination How many days and how many hours it took for codification? And under whose supervision codification was done? (e) (f) (g) Furnish detail information regarding the seize of the office rook of Controller of Examination, NPSC, and the numbers of chair, table and almirah in it. What are the other facilities provided by the commission in this room? Furnish copy of the file noting leading to the dismissal of Smti. Phuholi Sumi, UDA and Smti. Zavekholu Epao, Asst. Supt. Copy of attendance sheet of 10(ten) candidates for NCS, NPS & Allied services Examination 2008, namely :- Name Roll No. (1) N. Hito Yepthomi 160 (2) Allen Wobemo Jami 161 (3) Kipito Swu 162 (4) Nusa Thisa 163 (5) V. Kaliho Sema 165 (6) N. Tokato Yepthomi 166 (7) Arayi Sumi 279 (8) Ki Vitovi V.Yepthomi 314 (9) H. Hinatoli Assumi 316 (10) Ayeto Swu 676 And 1(one) candidate for lecturers Examination 2008, namely, Name Roll No. (1) Daham Jurry 209 (h) Extract of the revenue register relating to NCS, NPS & Allied services Crl. Revision Petn. 2(K) of 2010 Page 10 of 12

11 Examination 2008 showing total number of candidates and Lecturers Examination 2008 showing total number of candidates. (i) Copy of the Order relating to allocation / re-allocation of works amongst the NPSC Staff prior to I hereby, state that the information sought is not covered under the categories which are exempted from disclosure of information under the section 8 or section 9 of the Right to Information Act, 2005 and to the best of my knowledge, it is pertaining to your Department/Office. 6. Application fee of Rs. 10/- (ten) only is paid through treasury bearing treasury Challen No.1 dated 9/4/10. Place : Kohima Date : Sd/ Signature of the applicant 13. Thereafter the accused petitioners made an appeal to the Secretary, NPSC, Kohima for furnishing more documents on the alleged ground of non-furnishing of the same by the NPSC. 14. On a total reading of the pleadings and the orders passed by the learned trial court, what has transpired is that the accused petitioners have already been furnished with the police documents, as envisaged under Section 207 Cr.P.C. However, they wanted to have some more documents from the NPSC. If the said documents have not been furnished to them, the same cannot be a cause to delay the proceeding before the learned trial court. As per the requirement of Section 207 Cr.P.C., the documents Crl. Revision Petn. 2(K) of 2010 Page 11 of 12

12 forming the police report are only to be furnished. However, the accused petitioners kept on praying for time on the ground of non-availability of documents, which they had prayed for through the RTI Act before the NPSC. 15. Since there is sufficient compliance of Section 207 Cr.P.C., I see no reason to interfere with the impugned order dated , by which the charges have been framed against the accused petitioners. The matter is a serious one in which allegation of malpractices in the examination conducted by the NPSC by 11 candidates has been alleged. The matter has already been considerably delayed and it is in the interest of justice, the criminal trial should come to an end as expeditiously as possible. 16. For all the aforesaid reasons, I do not find any merit in the revision petition and accordingly it is dismissed. The trial court shall now proceed with the trial. Needless to say that while proceeding with the trial, all reasonable opportunity would be given to the accused petitioners. 17. Registry shall send down the LCR immediately along with the copy of this judgement and order. Interim order operating in this proceeding shall cease to have its affect. JUDGE Sukhamay Crl. Revision Petn. 2(K) of 2010 Page 12 of 12