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2021 DIGILAW 29 (GAU)

Divyana A Lahan (minor) v. Gaurav Upadhyay

2021-01-21

ACHINTYA MALLA BUJOR BARUA, SUDHANSHU DHULIA

body2021
JUDGMENT Sudhanshu Dhulia, C.J. - Heard Mr. K Goswami, learned counsel for the appellants. Also heard Mr. KN Choudhury, learned senior counsel assisted by Mr. PN Goswami, learned counsel for the respondent No.1, Mr. TC Chutia, learned Additional Senior Government Advocate for the respondent State of Assam and Mr. R Dhar, learned counsel for the WPT & BC Department. 2. This writ appeal has been filed against the order dated 21.10.2020 passed by the learned Single Judge in a pending writ petition being WP(C)No.4523/2020. The facts of this case are that the writ appellants before this Court had lodged an FIR against the private respondent No.1 under the POCSO Act. Later on the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Act has also been added. 3. Meanwhile, the Caste Certificate (more precisely the 'Tribal Certificate') was cancelled by the Deputy Commissioner, Kamrup(Metro) District by the order dated 22.09.2020 without giving an opportunity of hearing to the victim. The said order was challenged before this Court by the victim in a writ petition. During the pendency of the writ petition, the concerned authority who had cancelled the certificate by the order dated 22.09.2020 had withdrawn the said cancellation order and, thereafter, in terms of the direction given by the Hon'ble Apex Court in Kumari Madhuri Patil Vs. Additional Commissioner, (1995) AIR SC 94 had referred the matter to the Screening Committee appointed by the Government of Assam for such purposes. 4. The admitted position as of now is that the Caste Certificate (more precisely the 'Tribal Certificate') given to the victim by the appropriate authority is presently under consideration by the Screening Committee appointed by the Government of Assam. 4. The admitted position as of now is that the Caste Certificate (more precisely the 'Tribal Certificate') given to the victim by the appropriate authority is presently under consideration by the Screening Committee appointed by the Government of Assam. Meanwhile, since the private respondent No.1 was facing an ongoing investigation and as the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Act was also added therein, he had filed a writ petition before this Court being WP(C)No.4523/2020 and the learned Single Judge by the order dated 21.10.2020 passed the following order: "Considering the facts and circumstances of the case in its entirety and without expressing any opinion on the validity of the ST certificate held by the respondent Nos.6, 7 and 8 it is hereby provided that until such time the question of validity of the ST certificates is decided by the competent Committee, the provisions of the Act of 1989 shall not be applied in All Women Police Station Case No.5/2020. This order shall, however, not come in the way of investigation in the aforesaid police case carried out in accordance with law." 5. The matter is still pending before the learned Single Judge. Being aggrieved with the above interim order, this writ appeal has been filed. 6. Since a discretion has already been exercised by the learned Single Judge in this matter, presently we are not inclined to interfere with the same. But considering all contentions as well as arguments placed before us by the rival parties, we dispose of the present appeal with the following directions: (i) The Screening Committee which is presently seized with this matter is hereby directed to decide the validity of the Caste Certificate (more precisely the 'Tribal Certificate') positively within a period of 15(fifteen) days from the date of certified copy of this order is placed before the Screening Committee. (ii) Meanwhile, as the learned Single Judge has also rightly observed that the order dated 21.10.2020 will in no way come in the ongoing investigation that shall be followed, and the investigation shall continue. 7. Whether the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Act are attracted or not will ultimately depend upon the orders passed by the Screening Committee. 8. This Court has also been informed by Mr. 7. Whether the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Act are attracted or not will ultimately depend upon the orders passed by the Screening Committee. 8. This Court has also been informed by Mr. K Goswami, learned counsel for the appellant that as per his information, the investigation has already been completed, if this is so, the normal procedure and consequences shall follow. 9. With the above observations and directions, the writ appeal stands disposed of.