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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Y.P. Nargotra, J.
Shabnam Nahid - Appellant
Versus
State Of J&K & Ors. - Respondent
561-A Cr.P.C. No. 34/2003
Decided On : 09 October, 2003
Held: As already said enquiry was conducted by the Crime Branch Jammu after receipt of a complaint that the petitioner has obtained a category certificate by false representation on the basis of which she has appeared in the entrance examination for MBBS course in which she has been declared success-ful. On the basis of this enquiry FIR was registered by the Crime Branch and investigated. In the investigation it was revealed to the investigating agency that the petitioner appeared in matriculation examination and passed the same through Board of School Education Jammu showing herself to be the daughter of Gulzar Hussain. Again she appeared in 10+2 examination under roll No. 109750 as a regular student of Govt. Girls Higher Secondary School Mubarakmandi Jammu in May 1995 showing herself to be the daughter of Gulzar Hussain. However for appearing in the entrance test to be conducted by the competent authority for MBBS course in May 1997 she submitted application form along with attested photostat copies of the testimonials showing herself to be daughter of Taj Din caste Gujjar instead of Gulzar Hussain, the real father. Along with her application form she also filed forged copies of matriculation and 10+2 marks cards and thereby succeeded in getting herself selected for MBBS course in 1997 session. The investigating agency concluded that the petitioner has thus fraudulently obtained admission in entrance examination in pursuance of a conspiracy entered into between her and the other accused and therefore the petitioner and her co-accused have committed offences under Sections 420, 467, 468, 471 and 120-B RPC. For seeking trial of the accused charge sheet has been filed. (Para 5)
In the present case the accused-petitioner is alleged to have obtained the category certificate on the basis of false assertions by concealment of true facts and thus factual foundation for commi-ssion of the alleged offences committed by the accused has been very well been laid in the charge sheet filed by the prose-cution against her. Simply because the accused-petitioner in a letter patent appeal has questioned the legality of cancellation of the category certificate, she cannot be allowed to urge that criminal proceedings should not be allowed to continue. Criminal procee-dings stand on a different footing in which on the facts alleged the trial court has to see whether such offences are made out or not prima facie for framing charges against the accused for putting her to trial for commission of such offences. Present case has yet to come before the trial court on the question of framing of charge and therefore without going into the question as to whether prima facie offences are constituted or not, in my view, criminal proceedings initiated against the petitioner cannot and should not be scuttled at the threshold. (Para 10)
Viewed thus there is no merit in the contention of learned counsel for the petitioner. The other authorities of the High Court relied upon by him do not cover the field and instead the case is covered by the above quoted judgment of the Apex Court. (Para 11)
Result: Petition dismissed.
2. The facts of the case stated in brief are that the petitioner had appeared in en trance examination for admission to MBBS course and was declared successful under scheduled tribe category. However soon after declaration of result Sr. Superintendent of Police Crimes and Railway received a complaint that the petitioner does not belong to Gujjar community and has prepared a false category certificate. On receipt of this complaint and after holding preliminary inquiry the S.S.P. Crimes and Railway Jammu requested the Chairman Competent Authority Entrance Examination, not to grant admission to the petitioner unless she produces the original certificate of secondary school examination in which she had appeared under Roll No. 120046 Session May-June 1993. While the matter was under investigation the petitioner moved OWP 238/98 in this court in which by way of interim relief the Competent Authority was directed to accord admission to the petitioner. While this petition was pending the Dy. Commissioner Jammu vide his order dated 23.5.1996 cancelled the scheduled tribe certificate dated 13.8.1996 issued in favour of the petitioner by Tehsildar Samba. This order of the Dy. Commissioner was challenged by the petitioner in OWP 394/98 AND OWP 424/98. Both these petitions were decided with the direction to the Dy. Copmmissioner to decide the application as also the revision petition depending upon the result of the finding on the application. The Dy. Copmmissioner Jammu decided the matter on 16.6.1998 by canceling the category certificate dated 13.8.1996 issued in favour of the petitioner. This order of cancellation of category certificate was challenged by the petitioner in OWP 520/1998. The category certificate of the petitioner was cancelled on the allegation that the petitioner is the daughter of Gulzar Hussain and not of Taj Din whereas wrong facts were recorded in the application moved before Tehsildar Samba for issuance of scheduled tribe certificate where the parentage of the petitioner was shown as Taj Din. The adoption deed registered on 11.4.1996 where under the petitioner was purportedly shown to have been adopted by Taj Din was in the knowledge of the petitioner but the same was not filed before Tehsildar Samba, who had issued the scheduled caste certificate in favour of the petitioner, treating her to be the real daughter of Taj Din. The petitioner, allegedly misrepresented the facts before the issuing authority only to get undue benefit.
3. Cancellation of the category certificate came up for consideration before this court in OWP 238/98 AND OWP 520/98. learned Single Judge of this Court (Mr. Justice O. P. Sharma) vide judgment dated 24.12.1998 dismissed both the writ petitions and order of cancellation of scheduled tribe certificate obtained by the petitioner was upheld. In Para 8 of the judgment it was observed as follows:--
"As noticed above, the petitioner had herself admitted before the Deputy Commissioner that she had applied for the issue of certificate as a natural born child of Shri Taj Din and not as his adopted daughter. The Tehsildar had thus issued certificate in her favour as the natural born daughter because Taj Din as well as the witnesses produced by her stated that she was a natural born child of Taj Din. The Deputy Commissioner had only to verify this fact. The petitioner did not stick to the claim made before the Tehsildar and tried to build up the case of adoption, so the certificate had to be canclled, and was rightly cancelled. "
4. Against the above said judgment of the learned Single Judge the petitioner has filed a Letters Patent Appeal which is pending before the Division Be
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