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2014 DIGILAW 121 (BOM)

Sayyad Rafiq s/o. Sayyad Lal v. State of Maharashtra

2014-01-20

ABHAY M.THIPSAY

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JUDGMENT Heard Mr. S.G. Magre, the learned Counsel for the applicant. Heard Mr. P.P. More, the learned Additional Public Prosecutor, for the respondent nos. 1 and 2. Heard Mr. V.M. Kagne, the learned Counsel for the respondent no.3. 2. The petitioner, who claims to be a social worker, had filed a complaint against the respondent no. 3 herein, who is the Dean of the Government Medical College and Hospital at Aurangabad. The allegation in the complaint was that, the respondent no. 3 had secured his employment with the Government, on the basis of a forged caste certificate. The case of the applicant in the complaint, in brief, was that, the respondent no.3 had submitted a forged certificate purportedly issued by the Additional District Magistrate, Aurangabad, certifying the caste of the respondent no.3, to be 'Chambhar', which is a Scheduled Caste, and had secured his employment on the basis of such forged certificate. That, actually the respondent no. 3 does not belong to any Scheduled Caste. The respondent no. 3 had thus, deceived and cheated the Government and had secured benefits to which he was not entitled to. 3. On this complaint, the learned Magistrate ordered investigation to be carried out by the Police, as contemplated under Section 202 of the Code of Criminal Procedure [For short, "the Code"]. The Police accordingly carried out investigation and submitted report thereof to the learned Magistrate. On receipt of the report of the Police, the learned Magistrate, by an order dated 20-8-2013, dismissed the complaint, as contemplated under Section 203 of the Code. Being aggrieved by the said order of dismissal, the petitioner has approached this Court by filing the present Revision Application. 4. I have taken into consideration the contentions raised by the learned Counsel for the parties. With the assistance of the learned Counsel for the parties, I have gone through the revision petition and the annexures thereto. 5. The petitioner is not personally aggrieved by the offences allegedly committed by the respondent no. 3. He has filed the complaint to see that an offender/wrong doer is punished. He detected serious wrongs and offences committed by the respondent no. 3, on the basis of certain information obtained by him under the Right to Information Act. The information which he received, revealed that the caste certificate submitted by the respondent no. 3. He has filed the complaint to see that an offender/wrong doer is punished. He detected serious wrongs and offences committed by the respondent no. 3, on the basis of certain information obtained by him under the Right to Information Act. The information which he received, revealed that the caste certificate submitted by the respondent no. 3 for securing his employment in the Government was not issued in a proper form or format. The petitioner learnt that the caste certificate did not bear any outward number and date, and that, it had not been issued by the authority competent to issue the same. The complaint filed by the petitioner proceeds on the footing that, the respondent no. 3 is actually not a member belonging to any Scheduled Caste. 6. In the course of investigation that is carried out, it has been revealed that the petitioner indeed belongs to a Scheduled Caste i.e. 'Chambhar'. That, that is the result of the investigation carried out, is not disputed before me. On specific questioning, it is conceded before me that, the investigation does reveal the caste of the petitioner to be 'Chambhar' and that, it is a Scheduled Caste notified in the Constitution. 7. The basis on which the allegation against the respondent no.3, of his having committed offences of forgery for the purpose of cheating and using a forged document knowing it to be forged, has been levelled by the petitioner, is that, the caste certificate produced by the respondent no. 3 is not in the prescribed form; that, it is not issued by the authority competent to issue the same; and that, there is no outward number and date on this certificate'. On these grounds, it is claimed that the caste certificate in question is indeed a forged document, and though the fact reflected therein, namely, 'that the respondent no. 3 belongs to a Scheduled Caste', is true and correct, the certificate is, nevertheless a false and forged document and has been used for cheating. 8. Indeed, the absence of outward number on the certificate does create a suspicion about the genuineness of the said certificate. However, there are several other aspects of the matter, in the light of which, this aspect needs to be taken into consideration for deciding whether the order passed by the learned Magistrate in dismissing the complaint, suffers from any manifest error or illegality. 9. However, there are several other aspects of the matter, in the light of which, this aspect needs to be taken into consideration for deciding whether the order passed by the learned Magistrate in dismissing the complaint, suffers from any manifest error or illegality. 9. The crucial aspect of the matter is that, the caste certificate in question has been issued in the year 1978-79. It is purportedly issued by the Additional District Magistrate, Aurangabad. The investigation could not throw light on the fact as to whether or not it has indeed been issued by the Additional District Magistrate, Aurangabad. 10. The explanation of the respondent no. 3, in that regard, is found in his statement recorded by the Police in the course of investigation; and since that statement has been annexed to the petition and consists of the version of the respondent no.3, it can very well be looked into to see what explanation of the apparent suspicion has been offered by the respondent no. 3. The point of suspicion raised by the petitioner, namely that, 'though the respondent no. 3 was a resident of Buldhana, the certificate has been issued by an authority at Aurangabad', is replied by the respondent no.3 by saying that, 'at the material time, he was residing at Aurangabad', and that, therefore, the certificate was obtained from the authority at Aurangabad. The second point of suspicion, namely, 'that the Tahsildar was the competent authority to issue certificate at the material time', has been replied by saying that, 'the Additional District Magistrate was an officer superior to the Tahsildar'. 11. According to the respondent no. 3, the caste certificate in question has been duly verified by the Director, Social Welfare, Pune, as per the procedure, and the said certificate has been held to be valid. It is not in dispute that in his long service, not only the caste certificate of the petitioner, but his other documents, such as, educational qualifications, etc., were also verified by competent authorities on a number of occasions, and the documents were found to be genuine. Lastly, the respondent no. 3 has suggested that the petitioner wanted a deaf and dumb certificate from the respondent no.3, and as the respondent no.3 expressed his inability to issue such certificate, the complaint had been maliciously filed. 12. Lastly, the respondent no. 3 has suggested that the petitioner wanted a deaf and dumb certificate from the respondent no.3, and as the respondent no.3 expressed his inability to issue such certificate, the complaint had been maliciously filed. 12. There can be no doubt, that at this stage, one has to proceed on the basis that the respondent no.3 indeed belongs to a Scheduled Caste. Thus, the seriousness of the alleged offence which is based on the fact of a person not belonging to Scheduled Caste obtaining benefits meant for members of Scheduled Castes by committing forgery, cheating, etc., goes away. Undoubtedly, that, the respondent no.3 is indeed a member of a Scheduled Caste, does not mean that the caste certificate in question cannot be a forged document. But the fact remains that, this aspect throws doubt on the existence of the requisite mens rea on the part of the respondent no.3. When he indeed belongs to a Scheduled Caste, what was the occasion to obtain a caste certificate dishonestly, would need serious consideration, particularly because there is no clear-cut material before the court indicating the caste certificate to be certainly a forged document with the requisite degree of assurance. As aforesaid, only on the basis of the circumstance, namely, that it does not bear any outward number and date, the suspicion is sought to be created. It may be recalled that the certificate had been issued in the year 1978-79, and as such, it would be difficult to state precisely, what was the practice prevailing at the material time. Even assuming that there is some suspicion, in the absence of anything more, it would be difficult to hold that a case for prosecuting the respondent no.3 has been made out, particularly because the respondent indeed belongs to a Scheduled Caste which has been mentioned in the said certificate. 13. The petitioner had pointed out these shortcomings in the caste certificate produced by the respondent no.3, but the Government, who according to the petitioner, was deceived and cheated by the respondent no. 3, has not taken cognizance in the matter. Apparently, the concerned authorities have no doubt about the respondent no. 3 indeed belonging to a Scheduled Caste and further about the caste certificate in question being a genuine document. 14. 3, has not taken cognizance in the matter. Apparently, the concerned authorities have no doubt about the respondent no. 3 indeed belonging to a Scheduled Caste and further about the caste certificate in question being a genuine document. 14. Certainly, this was not a case where the material placed before the Magistrate would undoubtedly come to only one conclusion, namely, sufficiency of grounds for proceeding against the respondent no. 3. Since some of the issues were not clear, the Magistrate certainly could have ordered further investigation in the matter, which was not done by him. When this aspect of the matter was discussed, the learned Counsel for the petitioner urged that, at least, a direction to hold further inquiry into the matter be given to the Magistrate. 15. Though it is possible to hold further inquiry into the matter, in the peculiar facts and circumstances of the case, namely, (1) that, the alleged forged certificate has been issued in the year 1978-79 i.e. about more than 30 years back; (2) that, the petitioner is not personally aggrieved by the commission of the alleged offences, and the aggrieved party, namely, the State, has no grievance against the respondent no. 3, and has no disbelief about the certificate; and (3) that, the respondent no.3 actually and in fact, belongs to a Scheduled Caste, it would be futile to direct further inquiry into the matter, as contemplated under Section 398 of the Code. 16. It is well settled that, the revisional jurisdiction is to be exercised for correcting a manifest error of law resulting in miscarriage of justice. In my opinion, this is not a case where the order dismissing the complaint needs to be interfered with, in exercise of the revisional jurisdiction. 17. In the result, the Revision Application is dismissed. Application dismissed.