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Madhya Pradesh High Court · body

2017 DIGILAW 791 (MP)

Hansraj Singh v. State Of M. P.

2017-07-01

S.K.PALO

body2017
ORDER : Shri A. M. Trivedi, learned Senior Advocate with Shri Sushil Tiwari, learned counsel for the petitioner. Shri Pramod Pandey, learned Government Advocate with Shri Ramji Pandey, learned Panel Lawyer for the respondent/State. The petitioners preferred this application under section 482 of Criminal Procedure Code for quashment of Criminal Case No. 11570/2012 pending in the Court of CJM, Jabalpur arising out of Crime No. 29/1998. 2. On the basis of a complaint dated 14-2-1998, FIR has been lodged on 15-7-1998 at Police Station Crime Investigation Department, Bhopal for offences under sections 420, 467, 468, 471 read with section 120-B of Indian Penal Code. After investigation, charge-sheet has been filed before the Court of CJM, Jabalpur. Criminal Case No. 11570/2012 has been registered against the accused perssons including the petitioners. The gist of the matter is that the petitioners, Hansraj Singh, Mahendra Raj Singh and Sushil Kumar Singh are the sons of Late Shri Ram Singh. Ram Singh son of Punnilal was resident of Jalalpur post Bareli District Barabanki, U.P. Ramsingh executing an affidavit obtained a caste certificate by committing forgery and he also obtained Caste Certificates of his children. The petitioners showing them to be scheduled caste and chamaar by caste and obtained illegal benefits by cheating, the department. The petitioners obtained an admission in engineering and medical colleges at Madhya Pradesh by means of the forged caste certificate. The petitioners having migrated from U.P. after 1950, hence are not entitled to reservation under the scheduled caste and consequential benefits, therefore, the petitioners have committed offences under sections 420, 467, 468, 471 read with section 120-B of Indian Penal Code. 3. On behalf of the petitioners, attention has been drawn to the order dated 3-7-2006 passed by the Department of Scheduled Caste and Scheduled Tribe Welfare in which the State Level Screening Committee has found that the petitioners have obtained their caste certificates by wrongly representing as member of scheduled caste. The committee held that by order dated 11-7-2005 issued by the Department of General Administrator, Mantralaya, Bhopal Government of Madhya Pradesh that the persons who fall under the category of Scheduled Caste, Scheduled Tribe or other backward classes after the notification of 1950 and have migrated to other State after 1984, shall be considered to be Inter- State migrants. The committee held that by order dated 11-7-2005 issued by the Department of General Administrator, Mantralaya, Bhopal Government of Madhya Pradesh that the persons who fall under the category of Scheduled Caste, Scheduled Tribe or other backward classes after the notification of 1950 and have migrated to other State after 1984, shall be considered to be Inter- State migrants. The person so migrated are entitled to obtain the caste certificate from their original State from where they have migrated. It also referred to Para 2 of notification dated 6-8-1984 of the Government of India, wherein it is clarified that, “the Scheduled Caste/Scheduled Tribe person on migration from the State of his origin to another State will not lose his status as Scheduled Caste/Scheduled Tribes but he will be entitled to the concessions/benefits admissible to the Scheduled Caste/ Scheduled Tribes from the State of his origin and not from the State where he has migrated.” 4. The learned counsel for the petitioner further referred to the following paragraphs :— 5. It is also argued that the petitioners are born and brought up at Madhya Pradesh. They lived at Madhya Pradesh for more than 15 years with their guardian and they have become the domiciles of Madhya Pradesh. He referred to notification dated 30-8-2006 issued by GAD, Mantralaya, Madhya Pradesh, Bhopal, in which it is mentioned that :— 6. Learned counsel for the respondent/State vehemently opposing the contentions submits that the petitioners fall under the category of Scheduled Caste in the State of U.P. But that does not entail them to any reservation benefits in the State of M.P., for they are not domicile of Madhya Pradesh. The reservation is only available to the Scheduled Caste persons who are domiciles of Madhya Pradesh. The petitioners have obtained the caste certificate by cheating and committing forgery, therefore, the FIR and the criminal proceeding. It is also vehemently contended that they have not migrated earlier to 1950, hence, the status of their caste and the benefits of reservation will not be available to them. It is also contended that the High Level Scrutinee Committee after the enquiry passed order dated 3-7-2006, which has attained finality and as it is not challenged, the same cannot be questioned in this criminal proceedings. 7. In the case of Neetu Singh vs. State of M.P. in W.P. No. 1160/2003 decided on 16-9-2003, similar question was raised. It is also contended that the High Level Scrutinee Committee after the enquiry passed order dated 3-7-2006, which has attained finality and as it is not challenged, the same cannot be questioned in this criminal proceedings. 7. In the case of Neetu Singh vs. State of M.P. in W.P. No. 1160/2003 decided on 16-9-2003, similar question was raised. It would be appropriate to reproduce the relevant parts of the order. As far as petitioner is concerned, she is undoubtedly gets the status of a permanent resident in the State of M.P. By virtue of birth and also by virtue of fact that she had her entire education in the State of M.P. Certificate of education has been filed which indicates that she had education in the State of M.P., and this fact is not disputed by the State Government. The case of the petitioner is distingushable in as much as she was born in M.P. had an entire education in the State of M.P. and therefore, she is domicile of State of M.P. in accordance with the policies and rules of the State Government. Being domicile of State of M.P. and the caste in question being Jatav, declared Scheduled Caste in the State of M.P. It is submitted by Shri Raghuwanshi, learned counsel for the petitioner that she is entitled to have the benefit of the aforesaid caste and the certificate issued to her by the competent authority of the State of M.P. Having been found to be proper the action of the respondent denying the benefit on the ground of migration of father is unsustainable. 8. The learned Single Bench in the operative part has granted the benefit to the petitioner in these words, accordingly respondents are directed to reconsider the matter afresh in accordance with the observation made here and in case petitioner is otherwise found eligible for appointment to the post in question, issue consequential orders within a period of 1 month from the date of filing of certified copy of this order. 9. Consequent thereto, the GAD, Mantralaya, Government of M.P. Vallan Bhawan, Bhopal issued notification dated 25-7-2005 which reads as under :— 10. In the case of Vandana Dhakad vs. State of M.P. reported as 2014(3) M.P.L.J. 79 , the Division Bench of this Court has come across similar question. 9. Consequent thereto, the GAD, Mantralaya, Government of M.P. Vallan Bhawan, Bhopal issued notification dated 25-7-2005 which reads as under :— 10. In the case of Vandana Dhakad vs. State of M.P. reported as 2014(3) M.P.L.J. 79 , the Division Bench of this Court has come across similar question. The Hon’ble Division Bench has set aside the order of the State Level Committee in the following words, Petitioner is born in the State of Madhya Pradesh. She had her entire education and career in the state of Madhya Pradesh. Her father migrated in Madhya Pradesh before her birth i.e. more than 20-25 years back. The caste “Dhanuk” is declared as Scheduled Caste in both the States and the compentent authority had issued caste certificate in her favour in the year 1989 and on 17-5-2002 by SDO, Gwalior. Thus, the petitioner in the present case is a bonafide resident of Madhya Pradesh and as has been held by this Court in the case of Neetu Singh (supra), she has acquired the status of permanent domicile in the State of Madhya Pradesh as she fulfills the following conditions viz. — (i) she has born in the State of Madhya Pradesh and had her entire education right from the beginning to M.B.B.S. In the State of Madhya Pradesh; and (ii) her parents are continuously residing in the State of Madhya Pradesh for more than 25 years. As the petitioner has complied with the conditions for acquiring the status of a permanent domicile and, the caste to which she belongs is declared as Scheduled Caste in the State of Madhya Pradesh, there is no reason to deny her the benefits of castes certificate. In the results, the findings arrived by the State Level Committee vide its order dated 29-6-2005 Annexure P/1 cannot be sustained and are hereby quashed. Order dated 29-6-2005 Annexure P/1 refusing her the caste certificate is quashed and the respondents are directed to extend all the benefits of Scheduled Caste to the present petitioner. 11. In the results, the findings arrived by the State Level Committee vide its order dated 29-6-2005 Annexure P/1 cannot be sustained and are hereby quashed. Order dated 29-6-2005 Annexure P/1 refusing her the caste certificate is quashed and the respondents are directed to extend all the benefits of Scheduled Caste to the present petitioner. 11. Counsel for the respondent placed reliance on the judgment rendered in the case of Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another vs. Union of India and another reported as (1994) 5 SCC 244 , wherein the Hon’ble Apex Court has expressed the view that a person belonging to SC/ST in relation to his original State of which he is permanent or ordinary resident cannot be deemed to be so in relation to any other State on his migration to the State for the purpose of employment, education, etc and stand taken to that effect by Government of India in its communication dated 22-3-1997 and in subsequent communication affirmed. 12. The above case was related to People Representative Act and subsequent to the judgment. The present case, the State Government has come up with the notification dated 30-8-2006 and also 25-7-2005, therefore, the subsequent change in the position of the stand of the State Government, the legal position has been changed. 13. Similar is the case of S. Pushpa and others vs. Sivachanmugavelu and others reported as (2005) 3 SCC 1 . In the case of Union of India and others vs. Dudh Nath Prasad reported as AIR 2000 SC 525 , the Apex Court has granted relief to the candidate in the examination for the Indian Civil Services holding that as his parents were residing for 30 years in West Bengal. The candidate was a resident of Bihar. Candidate had belongs to Nuniya Caste of West Bengal held entitled to the benefit of reservation. 14. The candidate was a resident of Bihar. Candidate had belongs to Nuniya Caste of West Bengal held entitled to the benefit of reservation. 14. In the case of Jitu Prasad vs. Industrial Development Bank and another reported as 2013 (1) M.P.L.J. 428 and in the case of Netram and others vs. Koushlendra Singh and another reported as 2014 (1) MPHT 477 , the Co-ordinate Benches of this Court has held that validity of caste certificate must be enquired by the High Power Scrutinee Committee, therefore, the order of Magistrate under section 156(3) of Criminal Procedure Code to register offences under sections 420, 467, 468, 471 read with section 120-B of Indian Penal Code has been quashed. 15. In the present case, FIR has been lodged in the year 1998 without the order of the Caste Scrutiny Committee. As regarding the civil liability, this Court to express any refrain opinion, but keeping in view the legal analysis and the notification dated 25-7-2005 and 30-8-2006, it would be appropriate to hold that the mens rea for commission of offense is lacking in the present case. The father of the petitioners lived in M.P. for almost 30 years. The petitioners are born in M.P. They studied in M.P. for more than 15 years. Therefore, their domicile cannot be said to be not of M.P. Hence, the interim of commission of offense is completely missing. The criminal liability is not fastened on the petitioners. If the petitioners are allowed to face the criminal proceeding it would be abuse of process of Court. 16. In the case of Madhu Limaye vs. State of Maharashtra reported as AIR 1978 SC 47 , Hon’ble the Apex Court has held that, the Supreme Court has held that the following principles would govern the exercise of the inherent jurisdiction of a High Court given by section 482 : (1) the power is not to be restored to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2) it should be exercised very sparingly to prevent abuse of the process of any Court or otherwise to secure the ends of justice; (3) it should not be exercised as against the express bar of the law engrafted in any other provision of the Code. 17. 17. The Hon’ble Apex Court in the case of State of Haryana vs. Bhajanlal reported as 1992 AIR SCW 237, which is reproduced as under : 1. Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the FIR and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156 (1) of the Code except under an order of a Magistrate within the purview of section 155 (2) of the Code. 3. xxx 4. Where, the allegation in the FIR do not constitute a cognizable offense but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. 18. In view of the above, it would be appropriate to drop the proceedings instituted against the petitioners. Therefore, the petition is allowed. FIR No. 29/1998 registered by the Crime Investigation Department, Bhopal and subsequent criminal case No. 11570/2012 pending before the Court of CJM, Jabalpur is quashed.