Motty Philopose vs State of Kerala, Represented by the Detective Inspector

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2005 Supreme(Ker) 684

Judges : K.A.ABDUL GAFOOR,R.BASANT
Motty Philopose - Appellant
Versus
State of Kerala, Represented by the Detective Inspector - Respondent
Case No : CRL.A.No.597 of 1992 (C)
Decided On : 11/22/2005
Advocates Appeared :
For the Appellants : K. Surendra Mohan, M.N. Sukumaran Naar (SR.), Advocates. For the Respondent: P.M. Habeeb, Public Prosecutor.

Headnote:
Criminal Law - Criminal Trail - Juvenile Justice (Care and Protection of Children) Act, 2000 - Sections 20 and 15 - Indian Penal Code, 1860 - Sections 120-B, 420, 465, 466, 468 and 471 - Convicted - 3rd accused was acquitted - The 4th accused is no more and the charge against him abated - Accused-turned-approver, hatched a conspiracy in order to forge a mark list of Pre-degree Examination held in March, 1977 in which first accused had appeared and to make use of it to secure admission for M.B.B.S. Course in merit quota for the 1st accused - Allegedly forged mark list, on strength of which, first accused obtained admission - Allegation was that he, after getting Ext. P-25, knowing it to be a forged document, made use of it to obtain admission in the Medical College and deceived the public authorities - Held, The intention of the Legislature was that the provisions of the 2000 Act were to apply to pending cases provided on 1-4-2001 i.e. the date on which the 2000 Act came into force, the person was a 'juvenile' within the meaning of the terms as defined in the 2000 Act i.e. he/she had not crossed 18 years of age. So, the benefit of dealing him under S.5 does not arise at all in this case.The relevant date for determining the age of the offender for applying S.6 of the Probation of Offenders' Act, is the date of conviction. That alone can be the relevant date because the purpose of the provision is not to allow offenders of tender age to mingle with hardened criminals who are already behind the bars. So, it shall be with reference to the situation as on the date of conviction. The age referred to in S.6 (1) of the Act is that when the court is dealing with the offender, that being the point of time when the court has to choose between the two alternatives, whether to sentence the offender to imprisonment or to apply to him, the provisions of S. 6 (1) of the Act.The consideration should be having regard to the circumstances of the case including the nature of the offence and character of the offender. The court has to decide taking into consideration the aforesaid aspect whether it is expedient to release the accused on probation. This being a case where the first accused had obtained admission to a medical college on the strength of Ext. P-25 showing it as a genuine document and the second accused had abetted that offence to steal a seat for his son in a Medical College, that shall have to be taken as offences committed against the society in general depriving the legitimate entitlement of others who had worked hard and genuinely scored higher marks than the first accused. Court view that, this is not a fit case where S.4 shall be applied to release the accused on probation. It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be a qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint - Appeal is accordingly disposed of - Probation of Offenders Act 1958 - Sections 4 and 6 - Constitution of India,1950 - Article. 21

Judgment :-

Abdul Gafoor, J.

This appeal is by accused 1 and 2, a student and his father, in S.C.No.128/91 on the file of the 5th Additional Special Sessions Court, Thiruvananthapuram. They stand convicted for offences punishable under Sections 120-B, 420, 465, 466, 468 and 471 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 3 years each under Sections 420, 466, 468 and 471 with a direction that the sentences shall run concurrently. No separate sentence was ordered under Sections 465 and 120-B IPC. They faced trial with two others for the offences mentioned above. The 3rd accused was acquitted. The 4th accused is no more and the charge against him abated.

2. The prosecution case was that they, along with CW.1, an accused-turned-approver, hatched a conspiracy in order to forge a mark list of the Pre Degree Examination held in March, 1977 in which the first accused had appeared and to make use of it to secure admission for M.B.B.S. Course in the merit quota for the 1st accused. Ext.P25 is the allegedly forged mark list, on the strength of which, the first accused obtained admission. The allegation was that he, after getting Ext.P25, knowing it to be a forged document, made use of it to obtain admission in the Medical College and deceived the public authorities.

3. While assailing the conviction, the prime contention urged by Sri. Surendra Mohan, the counsel for the appellants/accused is that Ext.P25 is not a forged document. It is the real and genuine mark list that the first accused had obtained from Mar Invanios College, Thiruvananthapuram, where he had undergone the course of study for Pre Degree during 1975-77. The college was affiliated to the University of Kerala.

4. It is an admitted fact that he had obtained admission in the Medical College, Thiruvananthapuram on the strength of Ext.P25. Apart from the admission, this is a duly proved fact in issue as well. Ext.P12 is the application that he had submitted to PW.4 the Principal of the Medical College, who was, at the relevant point of time, heading the committee to select candidates for admission to M.B.B.S. Course. Along with Ext.P12 he had also produced Ext.P18 attested copy of the mark list. It was attested by PW.22 an Assistant Engineer working under the second accused, the father of the first accused. He was, at the relevant point of time, an Executive Engineer in the Irrigation Department. PW.22 has deposed before the court below that he had attested Ext.P18 as ‘true copy’ of the original which had been shown to him by none other than the second accused. The entries contained in Ext.P18 are the same as contained in Ext.P25. Therefore, Ext.P12 application was submitted by accused No.1 obviously with the support of Ext.P25. Further, on selection, he had produced Ext.P25 before PW.5, an official in the Medical College, at the time of admission. He deposed that he had verified it and returned to the first accused. He later produced Ext.P25 before PW.6 another official in the Medical College, Thiruvananthapuram, who had forwarded it to the University for the purpose of registering him for 1st year M.B.B.S. Examination. Thus, it is a fact duly proved, apart from his admission, that the first accused had obtained admission to the M.B.B.S. Course in the Medical College, Thiruvananthapuram on the strength of Ext.P25 mark list.

5. The next consideration shall be whether Ext.P25 is a forged document. As already mentioned above, the contention of the first accused was that it was the mark list that he had obtained from Mar Ivanios College. It was given to him by PW.37, a clerk in that college, who was handling the issuance of mark list based on Ext.P61 register maintained by him. At that time, according to him, the mark list issued to the 1st accused did not conform to the entries as now contained in Ext.P61. PW.37 has deposed that whenever mark lists for Pre Degree Examination were received in the college, he used to enter the marks of various candidates

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