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2015 DIGILAW 352 (KAR)

Jayshree v. State

2015-03-30

K.N.PHANEENDRA

body2015
ORDER : K.N. Phaneendra, J. 1. The petitioner has sought for quashing of entire proceedings registered against her in Crime No. 90/2012 of Brahmapur police station, Gulbarga, for the offence punishable under Sections 198, 420, 465, 468 & 471 of IPC and under Section 3(1)(ix) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. 2. I have heard the arguments of the learned counsel for the petitioner. Sri C. Jagadish, Advocate has filed a memo of appearance on behalf of respondent No. 2. The learned High Court Government Pleader appearing for respondent No. 1 has in fact assisted the Court in disposing of the matter. 3. It is the case of the prosecution that on 27.07.2012 at about 20.00 hours, the Deputy Superintendent of Police, Civil Rights Enforcement Cell Directorate, Gulbarga, lodged a First Information Report stating that one Sri Baburo Badiger, Principal Secretary, SC/ST Civil Rights Protection State Committee has informed making allegations against 81 persons particularly showing name of the petitioner at item No. 46, alleging that this petitioner was working as a Junior Assistant in KSRTC Divisional Office at Gulbarga. On 13.12.1986 she obtained a caste certificate specifically mentioning her caste as "Beda Jangama" recognized as scheduled caste. On the basis of such caste certificate issued by the City Corporation of Gulbarga, she persuaded the KSRTC Department and obtained a job. Therefore, it is alleged that she committed the offences under the above said provisions. It is also alleged that complainant herself has sent the said caste certificate to the State Level Caste Verification Committee on 11.10.1999 and the said application was referred to the District Committee on 04.07.2000. It is further stated that the Deputy Commissioner-cum-President, District Verification Committee, Gulbarga, has given a report that the said lady (petitioner herein) due to her ill health she voluntarily submitted the resignation to the concerned Department, therefore, the said application was disposed of without passing any order on merits. It is also stated in the complaint that the City Corporation of Gulbarga, vide its circular dated 21.08.1989 cancelled all the caste certificates issued by them. Prior to the constitution of the committee by virtue of the directions of the State Government, authorities who have issued the certificates had competency to cancel the same. On that ground holding that according to the Government circular the certificate issued so far as petitioner is concerned has been cancelled. Prior to the constitution of the committee by virtue of the directions of the State Government, authorities who have issued the certificates had competency to cancel the same. On that ground holding that according to the Government circular the certificate issued so far as petitioner is concerned has been cancelled. Therefore, there is no necessity for once again referring the certificate to the committee for consideration, as such, it is a fit case, wherein the criminal prosecution can be launched on such basis. 4. It appears on the above FIR, the police have registered the case and taken up the investigation. At this juncture, when the case was registered in Crime No. 90/2012 for the above said offences, the petitioner has approached this Court. On 04.06.2013, this Court has granted stay order for further proceedings, as such the investigation has not proceeded with. 5. The two important legal points raised by the learned counsel for the petitioner before this Court are that, "(i) without any order by the District Verification Committee there cannot be launching of any criminal prosecution under Rule 7-A of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, Etc.) (Amendment) Rules, 1993 (for short "the Rules"). (ii) It is contended that though the City Corporation Gulbarga, has issued a circular or notification dated 21.08.1989, it is an omnibus circular and the said circular has been considered by this Court in the earlier writ petition filed by several Beda Jangama, Budga Jangama and Mala Jangama, Samaja Samstha, represented by its President in Writ Petition No. 18012/1989 with connected matters, wherein this Court has categorically ruled that, irrespective of any circulars or any orders passed by any authorities, the committee has to be constituted and the committee has to verify the caste certificate and thereafter only the criminal proceedings, if necessary, to be launched." 6. The learned High Court Government Pleader contended that the Government has also issued a circular in No. 47/S.A.D/5/Bangalore dated 30.06.2007 stating that prior to 1993, if any caste certificate were obtained and subsequently if any dispute arises with regard to the caste certificate, then District Caste Verification Committee has no jurisdiction to decide the same. However, the authority who have actually issued that certificates have got power to decide the validity of the certificate. However, the authority who have actually issued that certificates have got power to decide the validity of the certificate. Therefore, he contends that, in the year 1989 vide order dated 21.08.1989, the City Corporation of Gulbarga, has issued a circular declaring all the caste certificate issued by it, were cancelled and particularly this petitioner has obtained the caste certificate in the year 1986. The said certificate is also covered under the notification or the circular dated 21.08.1989. Therefore, the police investigated the matter and launched the prosecution as there was need of any verdict by District Caste Verification Committee. 7. In view of the above said submissions, now let me consider what exactly Rule 7-A of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointments, Etc.) (Amendment) Rules, 1993 says. Prior to that, Rule 4 of the Rules also play little importance in this case. Rule 4 of the Rules says that; "4. Caste Verification Committee.--(1) There shall be a committee called the Caste Verification Committee for each district to verify the caste certificate issued in respect of the persons belonging to Scheduled Castes and Scheduled Tribes. The committee shall consist of the following members namely:-- (1) The Deputy Commissioner of the District who shall be the Chairman; (2) The Deputy Secretary (Administration) of the Zilla Panchayat; (3) The Tahsildar of Taluk; (4) The District Social Welfare Officer who shall be the Member Secretary." 8. Rule 7 imposes the responsibility on the committee, which says as follows; "7. Issue of Validity Certificate.--(1) After getting a report on a reference made under Rule 6-A, the Caste Verification Committee and the Caste and Income Verification Committee shall hold an enquiry after giving opportunity to the parties concerned. (2) The Committee may examine school records, birth registration certificate if any, and such other relevant materials and may also examine any other person who has the knowledge of the community of the applicant; Provided that in case of an applicant who belongs to the Scheduled Tribes, the Committee may also examine the anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies and such other matters. (3) If on such enquiry the Committee finds that the applicants claim is genuine it may issue the certificate sought for, in Form I-A, but where the committee finds that the applicant obtained the Caste Certificate or Income and Caste Certificate by making a false representation, it shall pass an order rejecting the application indicating the reasons therefor for such refusal. An order under this sub-rule shall be passed within one month from the date of receipt of the application. (4) Where the Committee even after the enquiry referred to in sub-rules (2) and (3) finds that the claim is doubtful, and is not in a position to come to a conclusion it shall refer the matter to the Directorate of Civil Rights Enforcement for detailed investigation and report. On receipt of the report from the Directorate of Civil Rights Enforcement, the Committee shall dispose off the case on merit, after holding such enquiry as it deems fit and after giving the applicant an opportunity of being heard. An order under this sub-rule shall be made within one month from the date of receipt of the application. (5) Any person aggrieved by an order of the Caste Verification Committee or Caste and Income Verification Committee may appeal to the Divisional Commissioner. The Divisional Commissioner shall after giving an opportunity of being heard to both the parties pass such order as he deems fit within forty-five days from the date of filing of such appear". Rule 7-A is in my opinion, dependant upon the proceedings contemplated under 7 of the Rules. Rule 7-A says that. "7-A. Prosecution for obtaining false caste certificate.--(1) The Caste Verification Committee or the Caste and Income Verification Committee, as the case may be and the Divisional Commissioner, shall send a copy of the order rejecting claim of the applicant for grant of Validity Certificate or, as the case may be, a copy of the order in appeal rejecting such claim, to the Directorate of Civil Rights Enforcement. (2) The Directorate of Civil Rights Enforcement shall take steps to prosecute such claimant who has obtained a false Caste Certificate". 9. (2) The Directorate of Civil Rights Enforcement shall take steps to prosecute such claimant who has obtained a false Caste Certificate". 9. On plain reading of the above said provision under Rule 7 and 7-A of the Rules it clearly disclose that only after the enquiry under Rule 7 of the Rules by the competent District Caste Verification Committee, the said committee or the appellate authority have to send their report to the Directorate of Civil Rights Enforcement and thereafter only, the Directorate of Civil Rights Enforcement shall take steps to prosecute the persons who falsely obtained the certificate. Therefore, the above said provision clearly disclose that preliminary enquiry is contemplated under Rule 7 of the Rules by the District Caste Verification Committee before which no prosecution is contemplated under Rule 7-A of the Rules. In this particular case, it is clear that the Dy. SP, Directorate of Civil Rights Enforcement, Gulbarga has registered the case without there being any order passed after enquiry under Rule 7 by the District Caste Verification Committee and there is no material in the FIR itself that Caste Verification Committee or the appellate authority passed any order and have sent any copy of the order by rejecting the claim or declaring that Caste Certificate of the petitioner is false or fake, and it requires prosecution and Directorate is empowered to prosecute such person. Therefore, without there being any direction from the District Caste Verification Committee independently, the Directorate of Civil Rights Enforcement has no jurisdiction to directly investigate into the matter and file any charge sheet to the Court when the procedure as contemplated under the Rules are not followed. 10. Now let me come to other important aspect. According to the respondents, the Caste Verification Committee has already disposed off the application filed by the petitioner. On her request that she has already voluntarily resigned the job, therefore, the matter has to be closed. It goes without saying that the District Caste Verification Committee has not at all followed the procedure contemplated under Rule 7 of the Rules in order to ascertain as to whether the certificate obtained by the petitioner was a false, fake or forged certificate or it is not an authenticated document issued by the competent authority and only for the purpose of getting a job, she has manipulated the said document and produced before the competent authority. For that, Rule 7 is an elaborate procedure contemplated for the purpose of ascertaining as to the genuinity of such document. Particularly, the said provision empowers the committee to ascertain whether such person belongs to the said caste or not. For that enquiry contemplated clearly discloses that the committee can consider any other material and may also examine any person and also examine the anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies and such other matters. These provisions clearly indicate that a person who actually belonging to the said community, merely because of some discrepancy in the certificate should not be unnecessarily harassed and that is the object of the above said rule. In my opinion, those procedures should be very strictly complied with. The Deputy Commissioner being the Chairman of the said Committee could not have closed the application merely because the said lady resigned the job or made an application for closing the proceedings. It is mere closure of the said proceedings without ascertaining and adjudicating the point as to whether the said certificate is genuine one or fake or fabricated document. Irrespective claim of the petitioner, the committee and the appellate authorities are duty bound to adjudicate the case when it is called in question, under Rule 7 of the said Rules, when statute under Rule 7-A further contemplates that, if any offence being committed with reference to the said certificate then the person is liable for prosecution. Therefore, irrespective of intention of the parties, it is incumbent upon the committee to decide as to whether such document is genuine or fake or it is a forged document. If such proceedings have not been concluded with an adjudicatory report and merely on the basis of closing of the application, no authority can infer that the said document is a false or fake document, to invoke the provisions under the Rule 7-A of the Rules. In this case, when such an adjudicatory order is not passed by the District Committee, the Directorate of Civil Rights Enforcement has no jurisdiction to invoke Rule 7-A of the said rules to prosecute the petitioner. Therefore, in my opinion, such initiation of the criminal proceeding is premature one. 11. In this case, when such an adjudicatory order is not passed by the District Committee, the Directorate of Civil Rights Enforcement has no jurisdiction to invoke Rule 7-A of the said rules to prosecute the petitioner. Therefore, in my opinion, such initiation of the criminal proceeding is premature one. 11. Now coming to the other important aspect with regard to the circular issued by the Government on 30.06.2007 and also notification or circular issued by the Corporation City of Gulbarga dated 21.08.1989, this particular aspect is no more res-integra by virtue of the decision of this Court in W.P. No. 18012/1989 and connected matters, dated 27.01.1995, wherein the said notification dated 21.08.1989 was called in question. Though this petitioner was not a specific party to the said proceedings but a Samstha constituted for the welfare of the Mala Jangam, Beda Jangam, Budga Jangam Samaja Samstha have filed petition before the Court in the said case. In the said case, similar set of facts were involved. The Court at paragraph-2 has culled out the categories of cases pending before the High Court which are as follows: "(i) Cases where caste certificates had been issued, but subsequently withdrawn, cancelled or suspended; (ii) Application for caste certificates have been rejected on the basis of the impugned circulars, but subsequently caste certificates have been issued pursuant to the interim orders granted by this Court and in some cases, interim orders have not been granted. (iii) Applications for issue of caste certificates are still pending. (iv) Prosecution has been launched on the basis of the C.O.D. reports that caste certificates have been obtained by playing fraud" 12. So far as this case is concerned, item Nos. 1 and 4 are applicable. In this case also caste certificate had been issued by the Corporation City Gulbarga and subsequently, on 21.08.1989, the same has been cancelled in an omnibus circular issued by it. In fact, the said Circular dated 21.08.1989 issued by the Corporation City Gulbarga was the subject matter in the High Court in the above said writ petitions. In this case also caste certificate had been issued by the Corporation City Gulbarga and subsequently, on 21.08.1989, the same has been cancelled in an omnibus circular issued by it. In fact, the said Circular dated 21.08.1989 issued by the Corporation City Gulbarga was the subject matter in the High Court in the above said writ petitions. After analyzing the circular issued by the Government from time to time and also the notification issued by the different authorities, the Court has ultimately held in the following manner: "The Supreme Court having examined the question of recognizing the caste status of a person and prescribed the procedure thereto, the entire matter will have to be re-examined in that light. Therefore, the learned Advocate General submits the State will constitute a Committee as contemplated in the said decision and that Committee will be free to decide the same and unhampered by any of the circulars issued by the Government. In view of this undertaking given, it is not necessary to quash the impugned circulars. All that needs to be noticed is, the Committee to be constituted as directed by the Supreme Court shall not be bound by any of the circulars. The learned Advocate General also submits that such Committee will be constituted within a period of six weeks from today. Recording his submission, these petitions will have to be disposed of. Whatever may have been the stage of proceedings, whether the certificates have been issued, cancelled, suspended or whether any certificates have been issued pursuant to the interim orders granted by this Court or applications for issue of caste certificates are pending before the authorities or cases where prosecution has been launched on the basis of the C.O.D. reports shall all be governed by this order and any interim order granted by this Court shall enure to the benefit of the petitioners during the pendency of the proceedings before the concerned Committee. Notwithstanding the endorsement given to the petitioners, the matter shall be reconsidered by the said Committee irrespective of the circulars issued by the Government. Similarly where applications have not been disposed off the concerned officers shall bear in mind the said decision of the Supreme Court and dispose off the applications without reference to any of the circulars. The authorities concerned have got to dispose of the matters as expeditiously as possible. Similarly where applications have not been disposed off the concerned officers shall bear in mind the said decision of the Supreme Court and dispose off the applications without reference to any of the circulars. The authorities concerned have got to dispose of the matters as expeditiously as possible. Depending upon the outcome of the proceedings before the authorities, further steps have to be taken including continuation of prosecutions." 13. The above said observation made by this Court abundantly makes it clear that after constitution of the committee by the government, there cannot be any circulars be issued empowering any parallel authorities either to cancel the certificate, suspend the certificate or to pass any orders with regard to the genuinety of such certificates. Therefore, the argument of the learned High Court Government Pleader that the Government has issued notification dated 30.06.2007 stating that caste certificates issued prior to 1993 can be cancelled by the same authorities holds no water. The Government has absolutely no power to issue such circular in utter disregard to the decision rendered by this Court. Perhaps, having come to know of this aspect, the government vide its further Notification No. dated 06.05.2009 has cancelled the earlier notification dated 30.06.2007. 14. Therefore, looking from the above said facts and circumstances, so far as this case is concerned, as I have already narrated that Caste Verification Committee has not at all decided the genuinety, falsity, fakeness or forgery of the caste certificate pertaining to the petitioner. The complaint itself shows that the Deputy Commissioner-cum-President of the Committee has simply closed the case of the petitioner. Therefore, it is incumbent upon the Directorate of Civil Rights Enforcement to initiate the proceedings as per Rule 7-A of the Rules only after getting the report from the District Caste Verification Committee. Respondent No. 2 is at liberty to initiate the proceedings if necessary, only after any report is received by him under Rule 7 of the Rules. 15. With these observations, I am of the opinion that the case registered against the petitioner in Crime No. 90/2012 for the above said offences does not survive and the same deserves to be quashed. However, as I have said, quashment of the present proceedings would not obstruct the said authorities in initiating the proceedings in accordance with law after following the procedure contemplated under Rule 7 and 7-A of the Rules. However, as I have said, quashment of the present proceedings would not obstruct the said authorities in initiating the proceedings in accordance with law after following the procedure contemplated under Rule 7 and 7-A of the Rules. Accordingly, the petition is allowed. Consequently, all further proceedings in Crime No. 90/2012 of Brahmapur Police Station, are hereby quashed.