Research › Search › Judgment

Karnataka High Court · body

2006 DIGILAW 343 (KAR)

IBRAHIM SAB IMAM SAB MULLA v. STATE OF KARNATAKA

2006-03-31

D.V.SHYLENDRA KUMAR

body2006
ORDER This writ petition, which should have been disposed of along with the order passed by this Court on 6-8-2004, when an application was filed by a party who came on record by way of impleadment, for vacating the earlier interim order of stay that had been granted by this Court on 29-7 -2004, has nevertheless been retained on the Board in this Court, as the circumstance indicated that the petitioners, if not both at least the first petitioner who has sworn to an affidavit in support of the petition averments, had caused not only production of a false or forged certificate on the basis of which an interim order has been obtained, but had also sworn to an affidavit affirming that such copy was a true copy of the original. The order dated 6-8-2004 gives the facts and circumstance, which reads as under: I.A. No. II of 2004 for impleading is an application filed by a sitting member of the Kustagi Town Panchayat, praying for being added as a party respondent to this writ petition. The applicant seeks to come on record for the purpose of pointing out the correct and factual position insofar as it relates to the ear-marked post of President in the Panchayat for the past three periods. Smt. Akkamahadevi, learned Counsel for the applicant submits that the petitioners by misrepresenting facts has sought for and obtained an interim order staying the election to the post of the President, which had not been reserved in favour of any category in tern1S of the notification dated 12-7-2004. 2. The applicant has sufficient locus to come on record and to participate in the proceeding, hence IA No. II of 2004 for impleading is allowed. Petitioners are directed to amend the cause-title. 3. I.A.No. III of 2004 for vacating the interim order is an application filed by the impleaded person praying for impleadment in the present proceedings and is seeking for vacating the interim order dated 29-7-2004. 4. Petitioners are directed to amend the cause-title. 3. I.A.No. III of 2004 for vacating the interim order is an application filed by the impleaded person praying for impleadment in the present proceedings and is seeking for vacating the interim order dated 29-7-2004. 4. This Court by an order dated 29-7-2004 had granted the interim order staying further action pursuant to the notification dated 12-7-2004 insofar as it related to the post of President in Kustagi Town Panchayat is concerned, for the reason that the notification as provided now, which provides for an opportunity to a candidate from general category to contest to the post of President is detriment to the persons belonging to the backward class in whose favour reservation is provided to the extent of 1/3rd in terms of the provisions of Section 142(2-A) of the Act. The interim order was granted on the premise that the backward classes had not been provided an opportunity during the last three elections and even now there is no opportunity provided to them in terms of the present notification 5. Learned Counsel appearing for the applicant points out that the information and data that had been placed by the petitioners in the above writ petition to indicate the pattern in which the elections are held is incorrect that the post of President had been reserved in favour of a person belonging to backward class B category in the very first term of elections during the year 1996 and as such not providing reservation in favour of backward classes in the present election, which is the 4th term in the series is not in violation of the provisions of Section 142(2-A) of the Act. 6. Sri Narayan, learned High Court Government Pleader for the State Government also affirms this factual position. Learned High Court Government Pleader submits that for the first term election was held in the year 1996, elections to the post of President had been earmarked in favour of backward classes - B category. If that is the factual position the present notification dated 12-7-2004, insofar as it relates to the post of President in the Kustagi Town Panchayat does not suffer from violation of the provisions under Section 142(2-A) of the Act. In the circumstances, there is no justification to continue the interim order dated 29-7 -2004. It is accordingly vacated. 7. If that is the factual position the present notification dated 12-7-2004, insofar as it relates to the post of President in the Kustagi Town Panchayat does not suffer from violation of the provisions under Section 142(2-A) of the Act. In the circumstances, there is no justification to continue the interim order dated 29-7 -2004. It is accordingly vacated. 7. Petitioner having misused the process of this Court by placing incorrect facts has to be dealt with accordingly. 8. Learned High Court Government Pleader and learned Counsel for the impleaded respondent/applicant points out that the Chief Officer, Kustagi Town Panchayat has in fact issued a false certificate based on which the petitioner could obtain such interim order. Learned High Court Government Pleader is directed to cause an enquiry into circumstances under which the Chief Officer could have issued such an incorrect certificate in favour of the petitioner. List this writ petition along with W.P. No. 29636 of 2004. Hand delivery of this order is permitted. 2. There were attempts on the part of the petitioners to have that order recalled, but failed and ultimately on 20-1-2005 this Court passed the following order: Sri Shivanand, learned Counsel for the petitioners, Sri Rayareddi, learned Counsel for the 5th respondent and other learned Counsel appearing for the parties in this writ petition, have been heard on the question of initiating appropriate proceedings against the petitioners, who, prima facie it appears to have committed an offence punishable under Section 193 of the IPC for having sworn to a false affidavit and for fabricating false evidence 2. Sri Rayareddi, learned Counsel for the 5th respondent, submits that if the Court is prima facie satisfied of the commission of the offence under Sections 191 and 192 of the IPC, which is punishable under Sections 192 and 193 of the IPC, action as contemplated under these sections are attracted and in such an event, further action and procedure as contemplated under Sections 195 and 340 of the Cr. P.C. is required to be followed. 3. P.C. is required to be followed. 3. The Court is of the opinion that it is expedient in the interest of justice that a preliminary enquiry should be held in this regard before this Court and record any finding to pursue further action either for forwarding a complaint in writing to the jurisdictional Magistrate after obtaining necessary undertaking and security from the persons or appearance before the Magistrate or to initiate contempt proceedings against the petitioners. 4. Petitioners though had been directed earlier to be present in person have not cared to appear so far. Therefore, petitioners are hereby specifically directed to appear before the Court on 4-2-2005 at 10.30 a.m. failing which warrants will have to be issued in their names to secure their presence before the Court. 5. Sri Shivanand, learned Counsel for the petitioners, seeks two weeks time to take instructions and to assist the Court in taking alternative action against the petitioners under contempt jurisdiction if it is found to be more appropriate in the present situation. 6. Call on 4-2-2005.- 7. Registry to issue a copy of this order to the learned Counsel appearing for the petitioners in these writ petitions. 3. The matter was further examined in the light of the subsequent developments as on 22-8-2005 and it was ordered as under: First petitioner, second petitioner and the third respondent (S.M. Rafiq) are present in person. Parties are represented by their respective Counsel. 2. The matter has come up for further orders only for deciding the question as to whether it is necessary to direct launching of prosecution as against the petitioners for having produced a concocted document before this Court to support the averments made by the petitioners and the first petitioner having sworn to an affidavit indicating that the copies of the documents produced along with the writ petition are true copies of the originals. The petitioners though had obtained an order of stay on the strength of such document i.e. Annexure-B, indicating the pattern of reservation of the posts of Adhyaksha and Upadhyaksha in respect of the earlier three elections to these posts i.e., two parts of 1996 to 2001 and the first part of 2003, it is turned out that the information as contained in Annexure-B with reference to the pattern of reservation for the first part of 1996 is incorrect and it was for such reason that an application filed by the present fifth respondent, who was sought to be impleaded as a respondent and who had also moved an application for vacating the interim order of stay and in terms of the order dated 6-8-2004, the interim order of stay was vacated and the High Court Government Pleader was directed to cause an enquiry into the circumstances under which the third respondent-Chief Officer is said to have issued such an incorrect certificate in favour of the petitioners. 3 Thereafter, the third respondent had filed statement of objections emphatically asserting that he had never issued any such letter or copy of the same; that the signature contained therein is also not his signature and that there were certain discrepancies in the copy of the document as produced by the petitioners vide Annexure-B to the writ petition, such as the letterhead being not the actual one that was being used by the Panchayat at the relevant point of time; that the seal was also not of the Panchayat and that it did not bear any date and the very fact that at the top of it indicated as one addressed to the Pattana Panchayat Karyalaya, Kustagi, Koppal District, which showed the artificial nature of the same, as the Chief Officer of the very Panchayat could not have addressed it to the office of the Panchayat etc. 4. 4. However, a rejoinder was filed by the first petitioner asserting that the first petitioner had approached the third respondent for furnishing of inforn1ation as regards the reservation for the post of Adhyaksha during the previous occasions, before filing the writ petition; that the third respondent had, in response to such request, asked him to come to collect the information after two days; that the third respondent when contacted again after two days had given the document at Annexure-B to the first petitioner from a file which was available at the office of third respondent and the petitioners, after obtaining the same had produced it before this Court as Annexure-B to the petition while filing the writ petition 5. Sri Shivanand, learned Counsel for the petitioners submits that it was only on the oral request of the first petitioner and not on an application filed by the first petitioner that the third respondent had obliged the first petitioner. Learned Counsel for the petitioners also submits that the contents of Annexure-B are to a considerable extent correct version and that it is only in respect of the reservation for the first part of 1996 which is indicated to be incorrect, as in tern1s of the Government notification for the relevant period the reservation was in favour of a person belonging to BCB, but on facts even the version as indicated in Annexure-B may be taken as correct version, as though the post of Adhyaksha it had been reserved for a person belonging to BCA, factually the post itself had come to be occupied by a person belonging to General Category and not be a person belonging to BCB category. Learned Counsel for the petitioners also submits that what the writ petitioner had contended was that the reservation had not been provided to a candidate belonging to BCA at all and such reservation should have been provided for. 6. Learned Counsel for the petitioners also submits that what the writ petitioner had contended was that the reservation had not been provided to a candidate belonging to BCA at all and such reservation should have been provided for. 6. Sri Javid Hussain, learned Counsel for the third respondent points out that when this is a circumstance in favour of the third respondent to support the stand that the third respondent had never issued such a copy; that the petitioner had not made any such request to the third respondent and if at all the third respondent should have issued such a document, it could have reflected the version as in the records and not as contained in Annexure-B, which if at all can be characterised as a lay person's understanding of the reservation, the Chief Officer, who is well-conversant with the records and issue of such certificates, would not have committed such a mistake or issue a copy of the letter which did not reflect the correct state of affairs in the records etc. 7 While the petitioners and the third respondent adhere to their respective stands, it is quite clear that one of the two is not coming out either with correct version or with the truth. 8. Learned Counsel for the parties submits that the Tahsildar had in fact initiated an enquiry for ascertaining as to whether the copy of Annexure-B was ever issued and as to whether it did contain the signature of the third respondent or any other person should have issued it by forging the signature etc.; that such enquiry was discontinued as the matter had been taken up by this Court on this aspect of the matter for verification etc., and even now the Tahsildar can be directed to complete the enquiry; that the Tahsildar had already recorded the statement of the third respondent and other officials working in the office of the Pattana Panchayat, Kustagi. 9. In the circumstances, the fourth respondent-Tahsildar is directed to complete the enquiry, which he had started earlier for ascertaining such facts and if no such enquiry had begun to hold an enquiry into the matter and submit a report to this Court within eight weeks from the date of receipt of a copy of this order. Registry is directed to send a copy of this order to the fourth respondent- Tahsildar forthwith. Registry is directed to send a copy of this order to the fourth respondent- Tahsildar forthwith. List the matter for further orders on 7-11-2005. First petitioner and the third respondent to be present before the Court on 7-11-2005. 4. The report of the Tahsildar dated 5-11-2005 was ultimately filed before this Court and the same has also been examined. In fact the report had been further commented by this Court in the order dated 14-11-2005, which reads as under: A copy of the report submitted by the Tahsildar is placed before the Court by the learned Government Pleader. Learned Government Pleader submits that the Tahsildar had by mistake filed the report before the Registry and that the Government Pleader has retrieved the same and is placing it before this Court. 2. Mr. Lalsingh Naik, Tahsildar, is also present before the Court. 3. The report does not throw much light on the controversy in dispute except to say that on being enquired by the Tahsildar, while the erstwhile C.E.O. as well as the staff at the office have maintained that the certificate issued by the C.E.O. is not issued by the then C.E. O. and it does not even bear the signature; that even the letter head used was not one which was in use at that time through the first petitioner, on the other hand, asserted that he had received the copy only from the Chief Officer. 4. The report is really not useful or helpful to this Court in resolving the controversy 5. However, Sri Shivanand, learned Counsel for the petitioner requests the matter to be called on 19-12-2005 as the first petitioner is unable to be present before the Court due to ill-health. Call on 19-12-2005. Further, personal presence of either the Chief Officer or the Tahsildar is not required. 5. However, Sri Shivanand, learned Counsel for the petitioner requests the matter to be called on 19-12-2005 as the first petitioner is unable to be present before the Court due to ill-health. Call on 19-12-2005. Further, personal presence of either the Chief Officer or the Tahsildar is not required. 5. The net result of all these developments is that there is a strong indication that the petitioners obviously have produced some material before this Court primarily for the purpose of supporting the case of the petitioners in the writ petition and for demonstrating the action taken by the fourth respondent-Tahsildar in providing or not providing for reservation and the manner of filling up of posts of President and the Vice-President of Kustagi Town Panchayat was not in accordance with law, was a material which is not borne on record; that though it was produced as an Annexure/exhibit (Annexure-B) to the writ petition, which is as an endorsement issued by the third respondent-Chief Officer; that the third respondent has emphatically denied having ever issued such endorsement or certificate; that he has in fact disowned his signature which is attributed to him as his signature; that if at all it figures on the Annexure-B, it is a forged one and is not his signature and the certificate or endorsement as at Annexure-B had never been from the office of the Taluk Panchayat. Such is the report of the Tahsildar, who had enquired not only the third respondent but also other staff members in the office. 6. In this regard, I have heard at length Sri Shiv anand, learned Counsel for the petitioner, Sri Javid Hussain, learned Counsel for the third respondent and learned Government Advocates/Pleaders, who appeared from time to time representing the Tahsildar, and also Sri V.T. Raya Reddy, lean1ed Counsel for the fifth respondent, who came on record by an application for impleadment and who was instrumental in demonstrating that what was produced before the Court in terms of Annexure-B and on the strength of which an interim order of stay of the election process had been obtained, was not a genuine document. 7. 7. The developments are of some consequence and of concern insofar as the proceedings before this Court are concerned; that the parties and the persons seeking for relief do come with material which is suspect, which is fabricated, which is forged and seek for orders, interim or final, on the basis of such concocted documents and further if they further embolden themselves to swearing to an affidavit indicating that such documents are either rule copies or certified copies, then matter calls for an appropriate action at least to send a light message to such errant and irresponsible persons. 8. While this Court did examine the possibility of proceeding against the first petitioner in contempt jurisdiction also, that course of action has been given up and instead, I am of the view that the first petitioner who is the one who has sworn to the affidavit in support of the writ petition averments and also affirmed the correctness or genuineness of the annexures produced along with the writ petition, should be proceeded against for committing acts of not only producing fabricated or forged document but also for swearing a solemn affidavit which to his knowledge would not have been correct or rule. There is a strong prima facie case for action against the first petitioner in the light of the developments as indicated in the orders referred to above and after the learned Counsel for the parties were heard as part of the preliminary enquiry, as it was felt that a report was required and examined before the action for launching prosecution is resorted to. 9. The outcome of this entire exercise is one leading to the view of the existence of a strong prima facie case against the first petitioner for having committed acts of forgery and perjury. The first petitioner is required to be proceeded before a Competent Court of jurisdiction and for such purpose, the Registrar General of this Court is directed to forward a complaint to the jurisdictional Magistrate to be registered and proceeded against the first respondent in accordance with law. The first petitioner to appear before the Registrar General on 12-4-2006 in person for this purpose and for further action and to take further instructions from the Registrar General. The first petitioner to appear before the Registrar General on 12-4-2006 in person for this purpose and for further action and to take further instructions from the Registrar General. The Registrar General is directed to ensure necessary compliance in this regard for forwarding complaint as indicated above and to take steps for ensuring the presence of the petitioner before the Magistrate Court on a fixed day and to obtain such undertaking or bond from the first petitioner for such purpose. 10. Writ petition obviously does not survive any more for consideration and is therefore dismissed as having become infructuous.