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Gauhati High Court · body

2015 DIGILAW 1529 (GAU)

Runjun Saikia v. State of Assam

2015-12-15

P.K.SAIKIA

body2015
JUDGMENT AND ORDER P.K. Saikia, J. - This proceeding has been filed seeking quashment of CR Case No. 3476/2012, u/s 468/420 IPC, now, pending in the court of Judicial Magistrate, 1st Class, Nagaon Assam stating that initiation of such a case is nothing but a huge abuse of process of court. 2. Heard Mr. D. Das, learned senior counsel assisted by Mr. J.C. Borah, learned counsel for the petitioners and also heard Ms. R.D. Mozumdar, learned counsel appearing for the respondent No. 1 as well as Mr. A.K. Sarkar, learned counsel appearing for the respondent No. 2. 3. The facts, necessary for disposal of the present proceeding, in short, are that petitioner herein is the resident of Raha within a jurisdiction of Raha Police Station in the district of Nagaon. She claims that she belongs to SC community and has been working as Lecturer in Panigaon O.P.D. College, Panigaon, Lakhimpur. On 26.03.2009, one Achuit Das, Pulin Hazarika and Tankeswar Das claiming to the President, Chief Advisor and Secretary of the Asom Anusuchit Jati-Yuba-Chatra Santha, Telahi Anchalik Samitee, Milan Nagar, respectively submitted a complaint before the Deputy Commissioner, Nagaon alleging that the petitioner is a resident of Roha in the district of Nagaon and she belongs to OBC Community. 4. However, procuring SC certificate, the petitioner got the appointment to the post of lecturer in aforesaid college which was reserved for SC category candidate. In support of such contention, it has been stated while reading in Nagaon college, Nagaon in 1997-1998, she recorded herself as a member of OBC community. On the receipt of such complaint, DC, Nagaon directed his subordinate authority to list it for hearing. 5. The aforesaid persons submitted another written complaint before the Superintendent of Police, North Lakhimpur on 31.03.2009 seeking prosecution of present petitioner for securing service on the basis of false and fabricated caste certificate. On the receipt of such complaint, SP, North Lakhimpur forwarded the complaint to the officer-in-charge Panigaon PS for making an inquiry and for taking necessary action. 6. On receipt of such an FIR, a case was registered on the basis of such FIR vide North Lakhimpur P.S. Case No. 238/2009 u/s 466/468/474 IPC and investigation was ordered. In due course, the I.O. has submitted final report in North Lakhimpur P.S. Case No. 238/2009 u/s 466/468/474 IPC. 7. 6. On receipt of such an FIR, a case was registered on the basis of such FIR vide North Lakhimpur P.S. Case No. 238/2009 u/s 466/468/474 IPC and investigation was ordered. In due course, the I.O. has submitted final report in North Lakhimpur P.S. Case No. 238/2009 u/s 466/468/474 IPC. 7. One Hareswar Das, respondent No. 2 herein, also submitted another complaint before the DC, Nagaon on 06.04.2009 incorporating therein allegations which were similar to the allegations incorporated in the complaints submitted before the DC, Nagaon by aforesaid Achuit Das and others. On the receipt of the same, DC directed that such complaint to be kept in the file where other complaint was kept and processed. 8. Another application was submitted before the Principal of Om prakash Dinodiya College incorporating similar allegation against the petitioners herein. Such application was preferred seeking removal of the petitioner No. 1 from the post of lecturer in the college aforesaid. On 26.03.2009 another written application was filed before the National Commission for SC, State Officer, Guwahati incorporating similar allegation. 9. On the receipt of said complaint, the Commission has requested the DC, Nagaon to get the status of petitioner No. 1 herein verified and to submit the report before it for further necessary action. On receipt such application. DC, Nagaon ordered that such complaint to be kept in the file where other complaints were being processed. A copy of the said application dated 26.03.2009 was also submitted before the Director of Higher Education, Assam. 10. On the receipt of the same, Director, Higher Education, Assam forwarded the same to the Principal, Panigaon College seeking detailed report thereon. On the receipt of the same, Principal Panigaon College requested the Chairman of Sub Divisional Schedule Caste Development Board, Nagaon for taking further necessary action, vide his letter under Memo No. POPDC/PG/EST/1/2009/6368-69 dated 30.04.2009. In the meantime several other complaints were also filed before the various authorities levelling similar allegations against the petitioners herein. 11. On receipt of final report in North Lakhimpur P.S. Case No. 238/2009 u/s 466/468/474 IPC learned CJM, North Lakhimpur, learned CJM, North Lakhimpur directed issuance of notice to the informant in Lakhipur P.S. case No. 238/2009 to communicate him about the outcome of the aforesaid police case. 12. However, after a very long interval, a protest petition was filed against the final report. 12. However, after a very long interval, a protest petition was filed against the final report. The protest petition was accepted by the Magistrate and treated the same as complaint vide CR No. 120/2011 and thereafter, the case was posted for inquiry. However, the informant in Lakhipur P.S. case No. 238/2009 did not conduct such case properly for which same was dismissed for default vide order dated 27.11.2011 rendered in CR No. 120/2011 13. In the meantime, DC, Nagaon inquired about the aforesaid allegations, highlighted in various complaints and found the petitioner to be a member of Jal Keyot, a recognised SC Community in the State of Assam. However, not being satisfied with the inquiry, the complainant requested the DC, Nagaon to review the aforesaid report and subsequently a review proceeding was conducted and that review proceeding also resulted in similar result showing the petitioner No. 1 to be a member of SC community. 14. However, in spite of all those findings, Sri Hareswar Das filed yet another criminal case before the learned CJM, Nagaon incorporating the allegations that the petitioner No. 1 herein had secured the appointment to the post of lecturer in aforesaid college on the basis of false and fabricated caste certificate. On the receipt of the same, the learned CJM, Nagaon took cognisance of offence and was pleased to issue process u/s 468/420 IPC against the petitioners herein. 15. Being aggrieved for taking cognisance of the offences against the present petitioners in the aforementioned case, they have approached this court seeking quashment of CR Case No. 3476/2012. 16. Mr. D. Das, learned senior counsel appearing for the petitioners submits that the initiation of the criminal proceeding against the present petitioners on the allegations aforesaid is nothing but a huge abuse of process of court since the question that the petitioner No. 1 is a member of SC Community has already been decided by the appropriate authorities on occasions more than one. Therefore, there cannot be any doubt that the petitioner No. 1 is a genuine member of SC Community. 17. It has also been contended that the complainant in CR Case No. 3476/2012 along with other had already lodged a series of cases/proceedings against the petitioner No. 1 alleging that she is not a genuine member of SC Community. But all those cases/proceedings were dismissed for one reason or other. 17. It has also been contended that the complainant in CR Case No. 3476/2012 along with other had already lodged a series of cases/proceedings against the petitioner No. 1 alleging that she is not a genuine member of SC Community. But all those cases/proceedings were dismissed for one reason or other. But suppressing all those facts, Sri Hareswar Das once again lodged another Criminal case against the petitioner No. 1 and others on very similar facts. These far too firmly show that the complainant in CR Case No. 3476/2012 was hell bent in abusing process of law. 18. Learned senior counsel appearing for the petitioners further submits that in view of the decision, rendered by Apex Court in the case of Kumari Madhuri Patil v. Addl. Commissioner on 2 September, 1994, reported in 1994 6 SCC 241 , so long this caste certificate, issued by appropriate authority holds the field, such a certificate cannot be questioned. The genuineness of such a certificate can be challenged only in a proceeding under Article 226 of the Constitution of India. Equally important, such a certificate can be recalled only after following the procedure prescribed in such a case. The relevant part of the judgment in Kumari Madhuri Patil (Supra) is reproduced below :- "For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following: 1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level. 2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazette officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned. 3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. 4. 3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post. 4. All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities. 5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc. 6. by the castes or tribes or tribal communities concerned etc. 6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof. 7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed. 8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates. 9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. 8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates. 9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant. 10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament. 15. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post. 16. Since this procedure could be fair and just and shorten the undue delay and also prevent avoidable expenditure for the State on the education of the candidate admitted/appointed on false social status or further continuance therein, every State concerned should endeavour to give effect to it and see that the constitutional objectives intended for the benefit and advancement of the genuine Scheduled Castes/Scheduled Tribes or backward classes, as the case may be are not defeated by unscrupulous persons." 19. The decision in Kumari Madhuri Patil (Supra) was also followed by this Court in the case of Sri Abhishek Chandra @ Sachin Besarya v. The State of Tripura & Ors. in W.P.(C) No. 300 of 2007 as well as in Sanjib Mazumdar @ Sonti Mazumdar v. State of Assam & Anr reported in 2015 (1) GLT 597. The relevant part of the judgment in Sanjib Mazumdar @ Sonti Mazumdar is reproduced below:- "8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates. 9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. 9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant. 10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee. 11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution. 12. No suit or other proceedings before any other authority should lie. 13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136. 14. In case, the certificate obtained or social status claimed is found to be false, the parents/guardian/the candidate should be prosecuted for making false claims. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to ahy local body, legislature or Parliament. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. 15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in officer in a post........" 9. It has been stated that the decision laid down in Kumari Madhuri Patel and Anr. (Supra) has also been followed by this Court in the case of Sri Abhishek Chandra @ Sachin Besarya v. The State of Tripura & Ors. in W.P.(C) No. 300 of 2007. 10. Therefore, unless the certificate issued in favour of the petitioner by the competent authority on 12.07.1990 is cancelled/annulled, no criminal case can be lodged against the petitioner as has been laid down in Kumari Madhuri Patil and anr. v. Addl. Commissioner Tribal Development and Ors. reported in (1994) 6 SCC 241 page 10." 20. Since the caste certificate issued in favour of petitioner No. 1 has not be recalled as yet, no one can file any criminal case against the petitioner No. 1 or for that matter other petitioners herein in view of law laid down in Madhuri Dixit (Supra). In view of above, learned counsel for the petitioner urges this court to quash the proceeding which is challenged in this proceeding. 21. I have also heard Mr. A.K. Sarkar, the counsel for respondent No. 2 herein. On perusal of the record, it is found that petitioner No. 1 was granted SC certificate by the Assam Asom Anusuchit Jati-Yuba-Chatra Santha which is said to be authority, entrusted with the duty of issuance of caste certificate to the genuine members of Schedule Caste Community.. We have found that certificate issued by said authority has not been recalled as yet on following the prescription of law. 22. Situation being such, it needs to be concluded that as long as, the caste certificate, issued by aforesaid authority holds the field, no criminal action can be initiated against the petitioners, petitioner No. 1 in particular. We have found that certificate issued by said authority has not been recalled as yet on following the prescription of law. 22. Situation being such, it needs to be concluded that as long as, the caste certificate, issued by aforesaid authority holds the field, no criminal action can be initiated against the petitioners, petitioner No. 1 in particular. Being so, lodging of criminal case against the petitioners is not in consonant with the requirement of law and on this count alone, the proceeding in question is liable to be quashed and set aside. 23. It is worth noting here that the complainant in CR Case No. 3476/2012 along with other had lodged series of proceedings/cases against the petitioner No. 1. All those proceedings were either dismissed for one reason or other or for being found allegations against the petitioner No. 1 without any substance, whatsoever. But all those facts were suppressed in filing CR Case No. 3476/2012 before the Court of Magistrate at Nagaon. This clearly shows that respondent No 2 did not approach the court in a fair manner. This is another reason as to why the case in question is liable to be quashed and set aside. 24. In view of above, I am of the considered opinion that complaint case, now, pending before the learned CJM, Nagaon is liable to be quashed and set aside. 25. Accordingly, the CR Case No. 3476/2012 is hereby quashed and set aside. 26. Resultantly, this petition is allowed.