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2005 DIGILAW 634 (KER)

Sreekumary v. State of Kerala

2005-09-26

K.BALAKRISHNAN NAIR

body2005
Judgment :- K. BalaKrishnan Nair, J. The petitioner is threatened with prosecution for the alleged violation of the provisions of the Kerala (Scheduled Castes And Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (Act 11 of 1996). So, this Writ Petition is filed, seeking appropriate reliefs. On the strength of Ext. P5(a) certificate issued by the Tahsildar, Kunnathur taluk in April 1986, the petitioner got employment in V.S.S.C. on 22.05.1987 as Tradesman ‘B’, in the vacancy reserved for the members of the Scheduled Tribe community. The said certificate showed that the petitioner belonged to Mala Araya Hindu community, which is treated as a Scheduled Tribe in the State of Kerala. Later, the V.S.S.C. asked the petitioner to produce a fresh caste certificate from the Tahsildar, Thiruvalla, where she was permanently residing. The Tahsildar, on 26.10.1991, declined to issue any caste certificate, holding that as per the report of the KIRTADS. There are no members of the Mala Araya community, residing in Thiruvalla taluk. The petitioner filed OP No.12430/91 challenging the orders of the V.S.S.C., directing her to produce fresh caste certificate. The said O.P. was allowed by Ext.P6 Judgment, holding that the direction to produce fresh community certificate is unsustainable. The Writ Appeal filed against the said Judgment by the State, was disposed of, affirming the findings therein, but, giving liberty to the Government to verify the genuineness of the Scheduled Tribe certificate of the petitioner. The matter was looked into by the Scrutiny Committee and the Committee rejected the claim of the petitioner. The Government accepted the findings of the committee and issued Ext.P8 order, declaring that the petitioner does not belong to Mala Araya community. By the said order, it was also ordered to prosecute the petitioner for obtaining a false community certificate. The petitioner challenged Ext.P8 by filing OP No. 14459/03. By Ext.P9 Judgment, the said O.P. was dismissed, but, the Government was directed to consider whether the petitioner should be subjected to prosecution? The Writ Appeal filed against the said Judgment by the petitioner was also dismissed. She submitted Ext.P11 representation before the Government on 14.01.2004, praying to exempt her from prosecution. The Government, by Ext.P12, order, rejected the claim of the petitioner for exemption from prosecution. Hence this Writ Petition, challenging the said order. The Writ Appeal filed against the said Judgment by the petitioner was also dismissed. She submitted Ext.P11 representation before the Government on 14.01.2004, praying to exempt her from prosecution. The Government, by Ext.P12, order, rejected the claim of the petitioner for exemption from prosecution. Hence this Writ Petition, challenging the said order. The only point urged before me by the learned counsel for the petitioner is that Act 11 of 1996 was enforced only with effect from 01.12.1996 and therefore, her alleged conduct in 1986, in obtaining the caste certificate, cannot be the subject matter of prosecution under the provisions of the Act introduced in 1996. Penal law can have no retrospective operation, in view of the provisions of Art.20(1) of the Constitution of India. Therefore, the petitioner seeks to quash Ext.P12, to the extent the Government keep open, its options to prosecute her. 2. Respondents 1 and 2 have filed a statement, supporting the impugned order. The learned Government Pleader, appearing for the respondents contended that the offence committed by her is a continuing offence and therefore, there is nothing wrong with the prosecution of her, under Act 11 of 1996. Even after 1996, Ext. P5(a) certificate was used by her for continuing in, service. It is also submitted that the conduct of the petitioner will disclose other offences also, like cheating under the Indian Penal Code. 3. Art.20(1) of the Constitution of India ‘prohibits ex post facto operation to penal laws. One may do something, which is perfectly legal today. Tomorrow, he cannot be accused of having committed an offence by enacting a law with retrospective effect and making his conduct, an offence. In this case, Ext.P12 concerns prosecution of the petitioner under Act 11 of 1996. Therefore, whether the petitioner has committed any other offence under some other law, need not be decided in this case. The petitioner obtained the caste certificate in April 1986 and used it for getting employment in V.S.S.C. The same was not used for any other purpose, thereafter. The conduct of the petitioner in 1986, cannot be said to be an offence under Act 11 of 1996, which was enforced with effect from 01.12.1996. The respondents do not have a case that the petitioner has used that certificate after 1.12.1996 for obtaining some benefit. The conduct of the petitioner in 1986, cannot be said to be an offence under Act 11 of 1996, which was enforced with effect from 01.12.1996. The respondents do not have a case that the petitioner has used that certificate after 1.12.1996 for obtaining some benefit. The contention of the learned Government Pleader that the offence committed, by the petitioner is a continuing offence, cannot be accepted, as her conduct in 1986, was not an offence in terms of the above said Act. S.15(1) of the aforementioned Act reads as follows: “15. Penalties-- (1) Whoever obtains a community certificate by-­- (a) furnishing false information or (b) filing a false statement or (c) by suppressing material facts and relevant evidence pertaining to his caste or tribal status or (d) any other fraudulent means. shall, on conviction, be punishable with rigorous imprisonment for a term, which shall not be less than six months, but which may extend upto two years and with fine, which shall not be less than one thousand rupees, but which may extend upto five thousand rupees. Provided that the Court may, for adequate and special reasons, to be recorded in the Judgment, impose a sentence of imprisonment for a lesser term or fine.” What is contemplated under the Act is obtaining a community certificate by furnishing false information etc. The respondents do not have a case that the petitioner has obtained a community certificate after 01.12.1996 as a member of Mala Araya community. In view of the above position, the petitioner cannot be’ prosecuted under the provisions of Act 11 of 1996 for having obtained Ext.P5(a) certificate in April 1986. It is declared so. The Writ Petition is allowed as above.