TANZIL HUSSAIN vs THE STATE OF ASSAM AND ANR

Heard Mr. A. Paul, learned counsel appearing for the petitioner and Mr. B. Gogoi, learned Addl.P.P. appearing for the state respondent. Also

heard Mr. D. P. Bora, learned Standing Counsel, Health Department, Assam.

By preferring the instant petition under Sections 482/397 read with Section 401 Cr.P.C., the petitioner namely, Tanzil Hussain has prayed for setting

aside and quashing of Dispur P.S. Case No. 2151/2014 under Sections 419/420/34 IPC arising out of an FIR, dated 07.10.2014, lodged by the Director

of Medical Education, Assam.

The petitioner’s case in a nutshell is that he was found qualified and eligible for admission into the MBBS course for the session 2014,

conducted by the Dibrugarh University and had appeared accordingly in the Combined Entrance Examination for the said course, held on 28.05.2014

at the G.C. College, Silchar. He was, thereafter, called for counseling at Guwahati, which was held, on 20.06.2014. He was eventually called for

admission on 03.07.2014. However, his admission was later on cancelled and the Commissioner & Secretary, Health & Family Welfare (B)

Department, Govt. of Assam by order, dated 06.09.2014, informed him that the Director of Forensic Science, Assam produced the enquiry report,

where it was found that the person, who appeared for counseling and selected for admission into the MBBS/BDS course was not the same person

and accordingly, ordered that his admission was liable to be cancelled as it was a case of impersonation. Consequently, his admission was cancelled

and a criminal proceeding has been drawn up against him.

The petitioner has contended that a single bench of this court, by an order, dated 23.06.2015, passed in W.P. (C) No. 5448/2014 quashed the order,

dated 06.09.2014, whereby the admission cancellation of the petitioner into the MBBS/BDS Course was quashed and therefore, launching of a

criminal case, based on the same set of facts contained in the FIR, dated 07.10.2014, whereupon Dispur P.S. Case No. 2151/2014 under Sections

419/420/34 IPC is not proper.

Mr. A. Paul, learned counsel for the petitioner, in the backdrop of facts, has drawn attention to various judgments rendered by the Supreme Court

inclusive in Ram Chandra Vs. State of U.P., reported in AIR 1957 SC 381, wherein it was held that it is unsafe to treat expert handwriting opinion as

sufficient evidence for conviction, but it may be relied upon when supported by other items of internal and external evidence. Mr. Paul submits that

this view was reiterated in the case of Shasi Kumar Banerjee V. Subodh Kumar Banerjee, reported in AIR 1964 SC 529, wherein it was pointed out

by the apex court that expert evidence as to handwriting being opinion evidence can rarely, if ever, take place of substantive evidence and before

acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence.

Mr. Paul has also drawn attention to the principles laid down in a catena of Judgments rendered by the Supreme Court, more particularly to the

judgment in Chatt Ram V. State of Haryana, reported in AIR 1979 SC 1980, where it was held that expert opinion of the handwriting even if

admissible, is not a safe basis for finding a forgery. Mr. Paul submits that in view of the aforesaid case laws laying down the value to be attached to

the opinion of a handwriting expert and thereupon recorded in the order passed by this court quashing the order of the Commissioner and Secretary,

Health & Family Welfare (B) Department, Government of Assam, dated 06.09.2014, the FIR filed by the respondent No. 2, the Director of Medical

Education, Assam and based thereon, the investigation accusing the petitioner for the offence of impersonation is not maintainable.

Mr. B. Gogoi, learned Addl. P.P. for the state respondent No. 1 submits that the petitioner is liable for criminal acts for the alleged offences

committed and the impugned order, which was quashed by this Court in W.P. (C) No. 5448/2014 within the sweep of article 226 of the Constitution of

India being on different grounds and as such, needs to be dealt with separately.

Mr. Gogoi, further submits that the question of criminal liability is purely a question of fact and law and therefore, the FIR cannot be quashed under

Section 482 Cr.P.C.

Perusal of the order, dated 23.06.2015, passed in W.P. ( C )No. 5448/2014, reveals that the said order was quashed, for not giving opportunity of

being heard to the petitioner before the said order for cancellation of his admission into MBBS/BDS course was passed. The quashment of the order

was passed with liberty to proceed against the petitioner, if so advised, but only after giving an opportunity of hearing to the petitioner, within a period

of 7(seven) days. Mr. Paul submits that pursuant to the said order, the Govt. of Assam has not exercised the liberty till date.

It is worthwhile to mention that availability of a civil action is no ground to throw away a criminal prosecution. The deciding factors in both the

actions are dependent on peculiar facts and circumstances in such cases. By the word ‘offence’ in Article 20(1) of the Constitution of India is

meant something, which is a violation of a law in force and for the violation of which, the law prescribes a penalty. A civil action, on the other hand,

connotes an action which deals with acts which constitute an infringement or privation of the private or civil rights belonging to individuals as opposed

to criminal actions.

In the instant case, what it crystallizes is that the petitioner allegedly impersonated in the Combined Entrance Examination for admission into the

MBBS/BDS Course as it appears from the report of the handwriting expert of the Forensic Science Laboratory (F.S.L.), Assam, which is, of course,

an opinion evidence. But such opinion evidence, which is relevant, may be worthy of credence, if there is internal or external evidence relating to

document(s) in question supporting the view expressed by the expert, rendering it a pure question of fact, which can be ascertained only by evidence.

Therefore, the case of the petitioner is not solely dependent on the opinion of handwriting expert. Resultantly, the petition stands dismissed.