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2013 DIGILAW 482 (BOM)

Ganesh Jairamji Raut v. State ofMaharashtra

2013-02-28

A.B.CHAUDHARI, A.P.LAVANDE

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JUDGMENT A.B. CHAUDHARI, J. Heard. Rule. Rule returnable forthwith. Heard finally by consent of learned counsel for the parties. 2. In the present application, there is a challenge to the First Information Report in Crime No.1 88/2010 registered with Police Station, MIDC, Nagpur dated 03.01.2011 for an offence punishable under sections 107, 119, 120-B, 191, 202, 420, 465, 466, 471 and 472 of the Indian Penal Code. FACTS: 3. The applicant is a retired Police Inspector, having been retired on 05.06.2012. He was appointed on 03.05.1976 as Armed Constable in State Reserve Police Force (SRPF) Group-IV from Open category. He belongs to the caste 'Kunbi' i.e. OBC. On 04.04.1985, he was promoted as Head Constable and, thereafter, on 06.02.1992, the Police Department promoted him as Police Sub Inspector (Wireless). Thereafter on 13.11.2002, he was promoted as Police Inspector. The next post of promotion was Dy. Superintendent of Police. On 01.03.1996, a gradation list of the departmental employees was circulated and objections were called. In the gradation list, that was circulated, the applicant found that his caste was wrongly mentioned as 'Gond (ST)' so also his educational qualification was shown as 'SSC Pass' when, in fact, he was B.A., D.Ed. Having noticed the said mistake, he raised an objection on 06.06.1996 pointing out those mistakes and sought correction and the department, accordingly, corrected those entries. On 21.03.1997, however, the applicant was served with a demotion order on the ground that his caste was wrongly mentioned as 'ST'. The applicant, therefore, approached Maharashtra Administrative Tribunal (MAT) against the said order of demotion. The MAT granted stay of the order of demotion. Finally, the tribunal decided the application on 23.11.2000 and set aside the order of demotion and as such the applicant continued to work as Police Inspector. The department did not challenge the said order of MAT nor took any action against the applicant. Thereafter, on 05.11.2009, the police department recommended the applicant for being promoted the post of Dy. Superintendent of Police looking to his unblemished record. However, in the meanwhile, on 19.10.2010 at Police Station. MIDC, Crime No. 188/2010 was registered against the applicant with an allegation that the applicant had illegally, with the help of some officers of the department, made corrections in his Service Book in the name of his caste as Kunbi (Gond/Goud/ST). Superintendent of Police looking to his unblemished record. However, in the meanwhile, on 19.10.2010 at Police Station. MIDC, Crime No. 188/2010 was registered against the applicant with an allegation that the applicant had illegally, with the help of some officers of the department, made corrections in his Service Book in the name of his caste as Kunbi (Gond/Goud/ST). The applicant, therefore, applied on 25.01.2011 for supplying copies of documents, which he had allegedly submitted or forged but the applicant was given an answer that no such documents are in the custody of the department vide letter dated 25.01.2011 and that is how the present application has been tiled. SUBMISSIONS: 4. In support of the application, the learned counsel for the applicant made the following submission. (i) That the Caste Certificate of the applicant which is lying with the police department itself shows his caste as Kunbi which is OBC. The entry in the Service Book is also of Kunbi and if the photocopy thereof is seen to verify the allegations made by Police Department it is only mentioned as Kunbi (Gond). There is no such caste as Kunbi (Gond) or Goud. The caste Kunbi is distinct from the caste Gond or Goud and even an illiterate person would not talk about any such name of caste. At any rate, the applicant was given promotions on 04.04.1985, 06.02.1992 and 13.11.2002 and at that time his caste must have been noted by Officer of Departmental Promotion Committee recommending the promotions. It cannot be assumed that the Departmental Promotion Committee did not know that no such caste namely Kunbi (Gond) or Kunbi (Goud) exists. Still the allegation is being made that the applicant was promoted in the Scheduled Tribe category for which no such record has at all been produced even before this Court despite several adjournments. (ii) If the respondents show that the applicant was promoted in the ST category by mistake or as the case may be even then there is nothing on record to show that the applicant has done anything to supply any false documents or information regarding his caste as ST or made any representation, oral or written, that he may be promoted in the category of ST as belonging to Gondor Goud and it is not .even the case of the police department. (iii) He, then submitted that the applicant when become due for promotion to the higher post of Dy. Superintendent of Police, the insiders in the department started their endeavours to see that the applicant does not get promotion to the post of Dy. S.P. and that is why the entire story has been cooked up. (iv) At any rate, according to the learned counsel, what is alleged is that he got promotion to the post of Head Constable on 04.04.1985 and if looked in the context that entry in the service book has been allegedly tampered in the year 1985 itself, the criminal proceedings have been started in the year 2010 i.e. after 25 years. He further submitted that the case squarely falls within the parameters of the State of Haryana VS. Bhajanlal; 1992 SCC (Cri) 426 : [2013 ALL SCR (O.C.C.) 11 and hence the FIR deserves to be quashed. 5. Per contra, Mrs. Joshi, learned A.P.P. for respondent-State, placed before us record of Investigation conducted by the police department and argued that though there is no direct evidence against the applicant of scoring or making any entry as Kunbi (Gond) or Kunbi (Goud) (ST), there is reason to believe that the applicant has committed offence by causing the writing Gond/Goud after the word 'Kunbi' in his Service Book. She further argued that the delay caused in filing the FIR would not wipe out seriousness of the offence committed by the applicant. According to her, the MAT set aside the order not on merits but on the ground that the applicant was not given any hearing before the order of demotion was made. It is true that the police department has not utilised liberty granted by the MAT to proceed departmentally against the applicant which by itself would not make any difference if the applicant is required to prosecuted in law. She has placed on record police investigation papers. She prayed for dismissal of the application. CONSIDERATION: 6. We have gone through the record and proceedings of the application. We have gone through investigation papers submitted before us by the police department. We have heard learned counsel for the rival parties. 7. Keeping in mind the principles set out in the case of Bhajanlal, 12013 ALL SCR (O.C.C.) I) (supra) we proceed to record the findings. 8. We have gone through the record and proceedings of the application. We have gone through investigation papers submitted before us by the police department. We have heard learned counsel for the rival parties. 7. Keeping in mind the principles set out in the case of Bhajanlal, 12013 ALL SCR (O.C.C.) I) (supra) we proceed to record the findings. 8. We have gone through the photocopy of first page of Service Book of the applicant, which is said to have been tampered. In it the caste is mentioned as Kunbi and thereafter the words (Gond/Goud) have been added. It is clear from the perusal of the same that (Gond/Goud) words are added later on but then, admittedly, there is absolutely no evidence on record that it was the applicant who had manipulated the entry. That is not even the case of the department. Even in the investigation carried out by the police department, there is not a single piece of evidence that the applicant had been instrumental in tampering with the service book. We have perused the investigation papers. Admittedly, the original service book was in the custody of police department and not in the custody of the applicant. The investigation papers show that the employees who were at the relevant time working with the police department have retired or expired. The admission of the respondent police department to say that in the year 1985 when the applicant got first promotion as Head Constable or even in the year 1992 when he got second promotion, entry in the service book was tampered is obviously after a long period of more than 25 years. In the absence of any concrete evidence and even from the investigation papers, which we have seen, we do not find that there is indirect or remote evidence to show that the applicant was responsible for carrying out the said entry in the service book. Apart from that, what is most important is that there is no caste as Kunbi (Gond) or Kunbi (Goud) and we cannot believe that the Departmental Promotion Committee, which recommended the promotion of the applicant in the years 1985, 1992 and thereafter in the year 1997, did not know that there is no such caste as Kunbi (Gond). Apart from that, what is most important is that there is no caste as Kunbi (Gond) or Kunbi (Goud) and we cannot believe that the Departmental Promotion Committee, which recommended the promotion of the applicant in the years 1985, 1992 and thereafter in the year 1997, did not know that there is no such caste as Kunbi (Gond). Even an i1literate person in the village knows that Kunbi is a caste which has nothing to do with Gond or Goud nor there is any such caste like Kunbi (Gond) or Kunbi (Goud). At any rate, even if the applicant was given three promotions on misunderstanding by Departmental Promotion Committee, we do not understand as to how the applicant is said to have committed any criminal offence. It is, thus, clear that even after the order made by MAT, the police department did not proceed to take any action •departmenta1ly against him even till this date and by now the applicant has retired from service. Further, investigation papers do not at all show that the Departmental Promotion Committee promoted the applicant as a candidate belonging to Scheduled Tribe. Even then, no criminal offence can be said to have been made out since the mistake, if any, is attributable to the Departmental Promotion Committee or the officer issuing promotion order. We further find that the applicant himself had raised objection on 06.06.1996 in writing that gradation list wrongly indicated his caste as Gond (ST) when his caste is Kunbi so also his qualification was wrongly shown. It is, thus, clear that it was the applicant himself who pointed out in the year 1996 about the mistake in the caste shown in the gradation list and he wanted to have his correct caste to be shown against his name. Even thereafter the applicant was promoted on 13.11.2002 as Police Inspector which clearly means that the department had absolutely no grievance about the said issue. Thus, in our opinion the case at hand is such that even if prosecution is allowed to be filed against the applicant, by no stretch of imagination, it can at all succeed. At any rate, even on the facts and investigation papers as discussed above, we find that absolutely no offence can be made out against the applicant. Thus, in our opinion the case at hand is such that even if prosecution is allowed to be filed against the applicant, by no stretch of imagination, it can at all succeed. At any rate, even on the facts and investigation papers as discussed above, we find that absolutely no offence can be made out against the applicant. It, however, appears that after such a long period of 25 years and particularly when the applicant has now retired from service, FIR came to be lodged, obviously with a view to put spokes in his future promotion as Dy. Superintendent of Police. 9. It is, in this factual matrix, we are of the considered opinion that the application must succeed. Hence, we pass the following order. ORDER Rule is made absolute in terms of prayer clause (I) which reads thus: "(I) Quash the FIR in crime no. 188/2010 registered with police station MIDC Nagpur dt 3/11/2010 which initially registered as crime no 011 0 on 19/1 0/20 I 0 by P.S. Pune for the offence punishable under section 107, 119, 120B, 191, 202, 420, 465, 466, 471 and 472 of IPC in the interest of justice." No order as to costs. Application allowed.