IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5980 OF 2013 BETWEEN:
SRI GANESH DASAYYA S/O CHANDAPPA DASAYYA AGED ABOUT 35 YEARS R/A KOTTARA HOUSE CHANDTHIMAR BANTWAL TALUK DAKSHINA KANNADA DISTRICT-574153 (BY SRI: NISHIT KUMAR SHETTY, ADVOCATE) AND STATE OF KARNATAKA BY BANTWAL TOWN POLICE STATION REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BANGALORE-560009 ... PETITIONER ... RESPONDENT (BY SRI: I.S.PRAMOD CHANDRA, SPP-II FOR R1; SRI: C.JAGADEESH, ADVOCATE FOR R2) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 16.12.2010 MADE IN C.C.NO.486/2007 BY THE ADDL. C.J. AND J.M.F.C., BANTWAL, DAKSHINA KANNADA, AND ORDER DATED 03.05.2013 MADE IN CRL.R.P.NO.32/2011 BY THE II ADDL. DIST. AND S.J., DAKSHINA KANNADA, MANGALORE AND DISCHARE THE PETITIONER FROM THE ABOVE CASE.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 26.02.2019 AND COMING ON FOR PRONOUNCMENT THIS DAY, JOHN MICHAEL CUNHA. J, MADE THE FOLLOWING:-
O R D E R Petitioner has sought to quash the order dated 16.12.2010 passed by the Addl. Civil Judge and JMFC, Bantwal in C.C. No.486/2007 and the order dated 03.05.2013 in Crl.R.P.No.32/2011 passed by the Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru.
2. The petitioner herein filed an application under section 239 Cr.P.C. praying to discharge him from the alleged offences punishable under sections 196, 198, 420 and 511 of IPC. The learned Magistrate by order dated 16.12.2010 dismissed the said application by placing reliance on the decision in RENU KUMARI vs. SANJAYKUMAR AND OTHERS and the decision reported in 2005(1) Crimes Page 1 SC. The revisional Court has confirmed the said order by its order dated 03.05.2013.
3. The case of the prosecution is that the petitioner/accused belonged to backward i.e., ‘Dasayya’ community, but he managed to obtain a caste certificate as belonging to ‘Chennadasar’ community and used the said certificate to secure employment in KSRTC. Subsequently, the said certificate was cancelled by orders of the Caste Verification Committee. Accordingly, the Tahsildar, Bantwal cancelled the caste certificate issued in favour of the petitioner.
4. The contention of the petitioner is that the prosecution has not produced any prima-facie material in proof of the alleged offences. Though, initially FIR was registered for the offence punishable under section 3(1) (ix) of the Act, said offence is dropped and a charge sheet is filed only under section 196 and 511 IPC. At the time of obtaining the caste certificate on 22.07.1988, the petitioner was aged only 16 years. The petitioner secured a job in KSRTC as conductor under General Merit category and he has not used the caste certificate to get a job and therefore, the material on record is not sufficient to sustain the charges against the petitioner and hence both the courts below have committed an error in rejecting the application filed by the petitioner under Section 239 Cr.P.C.
5. Learned counsel for the petitioner has mainly relied on the notification issued by the Government of Karnataka bearing No.SWD 713 SAD 93 dated 11.03.2002 and the decision of this Court in D.K. Prabhakar vs. State of Karnataka and others passed in Crl.P.5623/2009, wherein this Court has quashed the proceedings initiated against the accused therein for the offences punishable under sections 3 (1) (ix) and Section 7(1) (2) of the Act, based on the aforesaid notification.
6. Learned SPP-II appearing for respondent has however strongly opposed the petition inter-alia contending that where a candidate obtained an appointment on the basis that he belongs to a designated caste, tribe or class for whom post is meant and it is found upon verification by the scrutiny committee that such an individual does not belong to designated caste, he cannot be protected by taking recourse to administrative circulars and resolution. In support of his argument, learned counsel has referred to the decision of the Hon’ble Supreme Court in CHAIRMAN AND MANAGING DIRECTOR, FCI and others vs.
JAGADISH BALARAM BAHIRA and others, reported in AIR 2017 SC 3271 with specific reference to para 53 thereof, and the decision in SHOBA LAKSHMI vs. DIVISIONAL COMMISSIONER and others in W.P.No.8931/2016, W.A.No.2828/2011 and W.P.Nos.56358-56364/2014 and connected matters.
7. Insofar as the factual matrix is concerned, there is no dispute that the petitioner herein belonged to backward community i.e., Dasayya community. However, he obtained a caste certificate as belonging to Chennadasar caste falling within Scheduled Caste.
8. Even though the petitioner has taken up a plea that he did not use the caste certificate to secure employment and that he was appointed under the General category, the revisional Court has referred to the document collected by the Investigating agency and in para 16 of the impugned order has observed that the Investigation Officer has collected the application submitted by the respondent to KSRTC for the post of Conductor, wherein he has stated that he belongs to Scheduled Caste/Chennadasar. The copy of the caste certificate dated 07.10.1992 was also annexed to the said application. Thereafter the accused was employed in KSRTC as conductor. Though it is contended that the petitioner was appointed under General Merit category, but documents referred above go to show that the petitioner had managed to obtain the caste certificate in his name and had produced the same before the KSRTC for getting a job. It is pertinent to note that the Deputy Commissioner, Dakshina Kannada, Mangalore in his capacity as Chairman of the Caste Verification Committee, Dakshina Kannada, Mangalore had issued a direction to the Tahasildar, Bantwal on 28.12.2015 to cancel the caste certificate issued in favour of the petitioner. According to the prosecution the order of the Deputy Commissioner and the Chairman of the Committee is not challenged by the petitioner and the same has reached finality. This fact is not disputed by the petitioner.
9. Whether the petitioner has secured employment under General category or not is not material at this juncture. The application submitted by the petitioner clearly indicate that he sought employment only under reserved category and not as General merit candidate. As against said document, no material is available before this Court to show that the petitioner claimed employment as a general merit candidate and that he has been appointed under that category. Therefore, the contention urged in this regard cannot be accepted at this juncture. It is borne on record that the caste certificate obtained by the petitioner was later cancelled by the Tahsildar, Bantwal, in terms of the directions issued by Chairman of Caste Verification Committee on 28.12.2005. Under the said circumstances, the only question that arises for consideration is “Whether the prosecution of the petitioner for the alleged offences punishable under sections 196, 198, 420 and 511 of IPC and section 3(1)(ix) of the Act is sustainable in view of the Notification issued by the Government of Karnataka dated 11.03.2002 ?
10. Reliance on the Government Order No.SWD 713 SAD 93 dated 11.03.2002 by the learned counsel for the petitioner, in my view, is wholly misplaced. I have gone through the said order as well as the proceedings of the Government of Karnataka dated 11.3.2002 which reads as under:-
GOVERNMENT ORDER NO.SWD 713 SAD 93 BENGALURU, DATED:11TH MARCH 2002 In partial modification of Government Orders read at (1) and (2) Government are pleased to order as under:
1. The benefits of reservation in admission to educational institutions and educational concessions extended to Pariwara, Talwara, Mallcru, Kuruba communities in G.Os read at (1) and (2) above and Besta and Koli Communities accordingly cease. All persons of these communities who have obtained ST caste certificates shall surrender them immediately to the issuing authority for cancellation. They shall not be liable for penal action provided they surrender their certificates. The issuing authority shall cancel such certificates.
2. Wherever it comes to the notice of the appointing authority that a ST certificate has been issued to a persons belonging to these communities and which has not been surrendered or cancelled necessary action shall be taken for cancellation of such certificate by the issuing authority, with due regard to the principles of natural justice.
The benefits of reservation obtained by the persons in para (1)in educational and employment based on the wrong caste certificate issued by the competent authorities as ST and which have become final may also be not disturbed accordingly:
1. Enquires pending before the various Departments, Verification Committee, Appellate authorities, CRE cell and other authorities stands abated or dropped.
2. Action shall be taken to withdraw the cases filed before any court.
3. Suspension orders if any in such cases stands revoked.
4. Pensionary benefits that are withheld shall be released.
3. The competent authority to issue caste certificates shall independently verify each case before issuing a certificate and shall not issue a certificate merely because the father/brother or any relative of the person holds a certificate as belonging to a particular community.
4. The appointments already made in respect of the persons belonging to Pariwara, Talwar, Maalcru, Kuruba, Besta and Koli communities who have obtained employment under ST quota ( as Nayaka, Maalcru, Kadu Kuruba, Jenu Kuruba, Gond, Rajgond, Kolidhor and Tokrikoli) shall be treated as appointments under GM category w.e.f. the date of this order. They shall not be eligible for any promotion or any other benefits as STs in future. However, they could claim benefits under the respective category as Backward Classes to which they belong as per the existing Government Order.
Separate orders shall be issued regarding the manner in which the vacancies lost to STs on account of G.Os read as (1) and (2) above have to be restored.
A reading of the above order on the face of its discloses that it relates to the benefits of reservation in admission to educational institutions and educational concessions extended to Pariwara, Talwara, Maalcru, Kuruba Community. Clause 4 of the aforesaid order provides that the appointments already made in respect of the persons belonging to Pariwara, Talwar, Maalcru, Kuruba, Besta and Koli communities who have obtained employment under ST quota as Nayaka, Maalcru, Kadu Kuruba, Jenu Kuruba, Gond, Rajgond, Kolidhor and Tokrikoli shall be treated as appointments under ‘General Merit’ category with effect from the date of the said order. In the instant case, undisputedly, the petitioner belongs to Dasayya community and he obtained caste certificate as belonging to ‘Chennadasar’ community. The aforesaid order does not extend the exemption to the persons belonging to Dasayya community who have secured employment under SC/ST quota. Therefore, on factual matrix, the petitioner cannot claim to defend the benefits secured by him on the strength of the aforesaid notification. Consequently the contention urged by the petitioner based on the aforesaid Government Order is liable to be rejected.
11. Even on question of law, the petitioner being a party to the fraud cannot take advantage of his own fraud and seek exemption from criminal prosecution. In STATE OF MAHARASTRA AND OTHERS vs. RAVI PRAKASH BABULALSING PARMAR AND ANOTHER reported in (2007) 1 SCC 80 while considering the implications of the false caste certificates obtained by unscrupulous elements, in para 23 of the judgment, it is observed that:-
“The makers of the Constitution laid emphasis on equality amongst citizens. The Constitution of India provides for protective discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter.”
12. In SHOBA LAKSHMI vs. DIVISIONAL COMMISSIONER & Ors( In Spl. Leave to Appeal(Civil) No.138/2013 dated 28.01.2013), the petitioner therein secured employment as Assistant against the vacancy reserved for Scheduled Tribe by producing the caste certificates issued by Tahsildar, Shimoga and Tahsildar, Bengaluru North Taluk. Said certificates were cancelled by the CRE Cell. In order steer clear from the impending prosecution, petitioner therein took shelter under the aforesaid order of Government dated 11th March 2002. However, the Hon’ble Supreme Court in the above decision ratified the view taken by the Division Bench of this Court which reads as under:-
“Be that as it may, there was certain confusion in regard to treating ‘Maleru’ and ‘Maaleru’ as Scheduled Tribe. The said fact has been settled stating that ‘Maleru’ alone belongs to Scheduled Tribe and not ‘Maaleru’. A Co-ordinate Bench of this Court in W.A.No.4023/2004 and other connected writ appeals has decided that ‘Maaleru’ does not belong to Scheduled Tribe and that such candidates cannot claim the benefit of Scheduled Tribe and therefore, the said question is no more a integra. The judgment relied upon by the learned counsel for the appellant in Union of India vs. H. Ramakrishna is also not helpful to the appellant in view of the subsequent judgment of the Hon’ble Supreme Court which are relied upon by the learned counsel for the appellant. When the order of the State Government cannot be extened to the central Government Employees as ruled by the Hon’ble Supreme Court in Addl. General Manager-Human Resources, Bharat Heavy Electricals Ltd., vs. Suresh Ramkrishna Burde ((2007) 5 SCC 336]. It is clear that the appellant cannot contend that in view of the order of the Government dated 11th March 2002, the appellant’s appointment has been saved because the Parliament has not declared ‘Maaleru’ as Scheduled Tribe to save the appointment of the appellant based on the order of the State of Karnataka. In addition to that, by the order of the State a right vested under Articles 341 and 342 of the Constitution of India cannot be diluted and cannot be taken away.”
(underline supplied) Whether criminal prosecution could be launched against imposters who by posing themselves as members of the caste, tribe or class for whom reservation has been earmarked has been considered by the Hon’ble Supreme Court in the case of KUMARI MADHURI PATIL vs. ADDITIONAL COMMISSIONER, TRIBAL DEVELOPMENT, reported in AIR 1995 SC 1994. In CHAIRMAN AND MANAGING DIRECTOR, FCI and Ors VS. JAGDISH BALARAM BAHIRA AND Ors. reported in AIR 2017 SC 3271, of the said judgment, Hon’ble Supreme Court has summed up the directions as under:-
“A prosecution should be launched against the candidate or, as the case may be, the parents or guardians responsible for making the false claim. The regime postulated in the judgment of this Court in Madhuri Patil (supra) took effect from 2 September 1994, which was the date of the judgment. Eventually in the State of Maharashtra these directions received legislative recognition upon the enactment of the Maharashtra Act XXIII of 2001 which came into force in the State on 18 October 2001. However, it is important to notice that even before the State Legislature stepped in to confer a statutory form to the directions which were issued by this Court in Madhuri Patil (supra) the regime, as it then obtained prior to the enactment of the law, also envisaged consequences upon a caste or tribe claim being found to be false upon a verification by the Scrutiny Committee. The cancellation of a certificate would, as a necessary consequence, involve the invalidation of the appointment to a post or admission to an educational institution. Where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, render the appointment void ab initio. The rationale for this is that a candidate who would otherwise have to compete for a post in the general pool of unreserved seats had secured appointment in a more restricted competition confined to the reserved category and usurped a benefit meant for a designated caste, tribe or class. Once it was found that the candidate had obtained admission upon a false representation to belong to the reserved category, the appointment would be vitiated by fraud and would be void ab initio. The falsity of the claim lies in a representation that the candidate belongs to a category of persons for whom the reservation is intended whereas in fact the candidate does not so belong. The reason for depriving the candidate of the benefit which she or he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim on the basis of which a scarce public resource is obtained. The same principle would apply where a candidate secures admission to an educational institution on the basis of a false claim to belong to a reserved category. A candidate who does so causes detriment to a genuine candidate who actually belongs to the reserved category who is deprived of the seat. For that matter a detriment is caused to the entire class of persons for whom reservations are intended, the members of which are excluded as a result of an admission granted to an imposter who does not belong to the class. The withdrawal of benefits, either in terms of the revocation of employment or the termination of an admission was hence a necessary corollary of the invalidation of the claim on the basis of which the appointment or admission was obtained. The withdrawal of the benefit was not based on mens rea or the intent underlying the assertion of a false claim. In the case of a criminal prosecution, intent would be necessary. On the other hand, the withdrawal of civil benefits flowed as a logical result of the invalidation of a claim to belong to a group or category for whom the reservations is intended. This was the position under the regime which prevailed following the decision in Madhuri Patil.”
Further, in para 53 of the said order, it is observed as under:-
“Administrative circulars and Government resolutions are subservient to legislative mandate and cannot be contrary either to constitutional norms or statutory principles. Where a candidate has obtained an appointment to a post on the solemn basis that he or she belongs to a designated caste, tribe or class for whom the post is meant and it is found upon verification by the Scrutiny Committee that the claim is false, the services of such an individual cannot be protected by taking recourse to administrative circulars or resolutions. Protection of claims of a usurper is an act of deviance to the constitutional scheme as well as to statutory mandate. No government resolution or circular can override constitutional or statutory norms. The principle that government is bound by its own circulars is well-settled but it cannot apply in a situation such as present. Protecting the services of a candidate who is found not to belong to the community or tribe for whom the reservation is intended substantially encroaches upon legal rights of genuine members of the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation where the rights of genuine members of reserved groups or communities are liable to be affected detrimentally, government circulars or resolutions cannot operate to their detriment.”
(underling supplied) Lastly, Rule 7-A of The Karnataka Scheduled Castes, Scheduled Tribes and Other Backward(Reservations of Appointment, Etc.,) Rules, 1992 specifically provides for prosecution of the offenders who obtained false caste certificate. Said Rule reads as under:
7-A. Prosecution for obtaining false caste certificate- (1) The Caste Verification Committee or the Caste and Income Verification Committee, as the case may be and the Divisional Commissioner, shall send a copy of the order rejecting claim of the applicant for grant of Validity Certificate or, as the case may be, a Copy of the order in appeal rejecting such claim, to the Directorate of Civil Rights Enforcement.
(2) The Directorate of Civil Rights Enforcement shall take steps to prosecute such claimant who has obtained a false Caste Certificate.
In view of the above legal and factual position, the prosecution of the petitioner for the alleged offences under Section 196,198, 420 and 511 of Indian Penal Code and Section 3(1) (ix) of The Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989 cannot be faulted with as the allegations made in the complaint prima facie make out the ingredients of the above offences. As a result, there is no justifiable ground to quash the impugned proceedings. Consequently the, petition is dismissed.
Sd/- JUDGE *mn/-