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2023 DIGILAW 92 (AP)

Yelda Chinnari v. State of Andhra Pradesh

2023-01-06

M.GANGA RAO

body2023
ORDER : 1. This writ petition is filed to issue a Writ of Mandamus declaring the action of the 4th respondent for not securing the Caste Certificate of deceased by name Yadla Chinna/victim in SC/ST S.C. No. 52 of 2016 on the file of the Court of the Special Judge for Trial of Cases under SC/ST (POA) Act, East Godavari at Rajamahendravaram, from the 3rd respondent in the light of the judgment of the Hon’ble Supreme Court in Kumari Madhuri Patil and Another vs. Additional Commissioner, Tribal Development and Others, (1994) 6 SCC 241 is bad, illegal, arbitrary and violative of Articles 14 and 21 of the Constitution of India. 2. The brief facts of the case are that the petitioner claims to be the sister of late Yedla Chinna who committed suicide. She lodged a complaint on 23.03.2016 in Rajanagaram Police Station and the same was registered as Crime No. 76 of 2016 for the offence punishable under Section 306 r/w 34 of IPC and under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended by Act 1 of 2016 (for short ‘the Act’). The 4th respondent had conducted investigation, collected caste certificate from the 5th respondent-Tahsildar Office and filed charge sheet. On committal, the Special Judge for trial of cases under the Act, East Godavari at Rajamahendravaram has numbered the same as S.C. No. 52 of 2016 and taken up for trial. 3. This Court, on 19.06.2018, while ordering notice before admission, granted stay of the trial schedule commencing from 28.05.2018 in SC/ST S.C. No. 52 of 2016 in the Court of the Special Judge for Trial of Cases under SC/ST (POA) Act, East Godavari at Rajamahendravaram, pending disposal of the writ petition. 4. All respondents except the 3rd respondent filed counters. The sum and substance of the counters are that the Government of Andhra Pradesh in consonance with the guidelines of the Hon’ble Supreme Court in Kumari Madhuri Patil’s case (supra), brought a legislation viz. The Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Regulation of Issue of Community Certificates Act, 1993 (for short ‘the A.P. Act 1993’) which came into force with effect from 08.09.1993. The said Act is to regulate the issue of community certificates relating to persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and matters connected therewith or incidental thereto. The said Act is to regulate the issue of community certificates relating to persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and matters connected therewith or incidental thereto. In furtherance of orders and guidelines of the Hon’ble Apex Court, the Government of Andhra Pradesh issued a Gazette notification bringing into force of Andhra Pradesh (Scheduled Castes, Scheduled Tribes and Backward Classes) Issue of Community, Nativity and Date of Birth Certificates Rules, 1997 (for short ‘the A.P. Rules, 1997’) through G.O.Ms. No. 58, Social Welfare (J) Department, dated 12.05.1997, which came into force with effect from 16.05.1997. The competent authorities for issue of caste certificates are notified in the A.P. Rules, 1997 at Annexure-I. The Scheduled Caste ‘Mala’ community is incorporated at S. No. 2 of Column-1 and the competent authority is Tahsildar (previously Mandal Revenue Officer) in the State now below the rank of Deputy Tahsildar within the territorial jurisdiction of a Mandal. In view of the request of the police department in respect of Crime No. 76 of 2016 dated 23.03.2016 for investigation of the case and filing of charge sheet, the then Tahsildar, Rajanagaram has issued caste certificates of the deceased and the accused in Form-III under the A.P. Rules, 1997. The 4th respondent has investigated the case and filed charge sheet before the Special Judge for trial of cases under SC/ST (POA) Act, East Godavari District at Rajamahendravaram. The trial of the said case was stayed as per the interim orders of this Court dated 19.06.2018 passed in I.A. No. 1 of 2018 in the present writ petition. The Judgment of the Hon’ble Apex Court in Kumari Madhuri Patil’s case (supra) passed in the year 1994, whereas the statutory rules came into force in the year 1997. In view of the statute, the Tahsildar exercised the powers under Section 3 of the A.P. Act, 1993 and the rules made thereunder, the caste certificate of the deceased was issued and handed over to the investigating authority. 5. Sri Sriman, learned counsel appearing for the petitioner, would contend that as per the judgment of the Hon’ble Supreme Court in Kumari Madhuri Patil’s case (supra) passed in Civil Appeal No. 5854 of 1994 dated 02.09.1994, the Social status certificate shall be issued by the Revenue Divisional Officer, Deputy Collector or Deputy Commissioner. 5. Sri Sriman, learned counsel appearing for the petitioner, would contend that as per the judgment of the Hon’ble Supreme Court in Kumari Madhuri Patil’s case (supra) passed in Civil Appeal No. 5854 of 1994 dated 02.09.1994, the Social status certificate shall be issued by the Revenue Divisional Officer, Deputy Collector or Deputy Commissioner. But whereas, the 4th respondent during the course of investigation admittedly collected the caste certificate issued by the 5th respondent-Tahsildar, Rajanagaram Mandal. However, issuance of caste certificate is to be distinguished from collecting it. However, the 4th respondent being an Investigating Officer has to prove the caste of the victim by collecting the certificate from the revenue authorities. The 5th respondent-Tahsildar is not competent to issue certificate for the purpose of prosecuting the case under the provisions of the Act before the Sessions Judge. In number of cases, Sri N. Malyadri, Special Judge for trial of cases under SC/ST (POA) Act-cum-X Additional District Judge, having held that the certificate issued by the Tahsildar/Mandal Revenue Officer is not valid for the purpose of prosecution under the provisions of the Act and the 4th respondent has to obtain the certificate from the 3rd respondent about the community of the victim and thereafter proceed with the prosecution of the case, as per the law laid down by the Hon’ble Apex Court. If the caste certificate was issued by the authority not below the rank of Deputy Tahsildar, the Presiding Officer of the Court had interpreted the same in a different way and even some times went to the extent of holding that the certificate issued by Tahsildar is not based on any evidence and held that the said certificate is not issued in accordance with the provisions of the Act and Rules without any findings and brushed aside the same and acquitted the accused for the serious offences committed under the provisions of the Act and convicted the accused of the lesser offences under the provisions of IPC only, even if there is sufficient evidence available on record to convict the accused under the provisions of the Act. 6. Learned Government Pleader for Home appearing for the respondents 4 and 6 would contend that the allegation levelled by the petitioner is purely misconception and basing on G.O.Ms. 6. Learned Government Pleader for Home appearing for the respondents 4 and 6 would contend that the allegation levelled by the petitioner is purely misconception and basing on G.O.Ms. No. 58 dated 12.05.1997, the 4th respondent procured the caste certificate from the Tahsildar and filed charge sheet, as such there is no contravention in the procedure followed by the Investigating Officer during the course of investigation. Hence, there is no reason for the petitioner to assume that the Sessions Case will end in acquittal on the ground that the caste certificate was collected from the Tahsildar and there is no reason that the 4th respondent has violated the judgment of the Hon’ble Apex Court and thereby the apprehension of the petitioner is totally misconceived. 7. The Hon’ble Supreme Court in the case of Kumari Madhuri Patil’s case (supra), framed the following guidelines at Para 13 to streamline the procedure for the issuance of social status certificate: “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-gazetted 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. All the State Governments shall constitute a Committee of three officers, namely (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) 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. 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 pro forma, 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. 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. 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. 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. 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. 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 office in a post.” The Hon’ble Apex Court also held that 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. 8. The Government of Andhra Pradesh enacted the A.P. Act 16 of 1993, in the light of the law laid down by the Hon’ble Apex Court in the case of Kumari Madhuri Patil’s case (supra) and framed the statutory rules by issuing G.O.Ms. No. 58 dated 12.05.1997 i.e. A.P. Rules, 1997 and published the said Rules in the State Gazette. A perusal of the A.P. Rules, 1997, the Rules 1 to 21 held to be in conformity with the guidelines issued by the Hon’ble Apex Court except some variations with regard to Rules 7 to 9. 9. By virtue of A.P. Rules, 1997, the competent authority for issuance of caste certificate to the ‘Mala’ community under the category of Scheduled Caste is the Tahsildar. But, in the present case, the 5th respondent-Tahsildar, Rajanagaram Mandal has issued the caste certificate by exercising the powers under Section 3 of the A.P. Act, 1993, for the purpose of criminal trial, on the requisition made by the 4th respondent-Investigating Officer in the crime registered under the Act. But, earlier to the passing of the judgment of the Hon’ble Apex Court in Kumari Madhuri Patil’s case (supra), the 5th respondent used to issue community certificates to all communities in State of Andhra Pradesh. But, earlier to the passing of the judgment of the Hon’ble Apex Court in Kumari Madhuri Patil’s case (supra), the 5th respondent used to issue community certificates to all communities in State of Andhra Pradesh. But, in Kumari Madhuri Patil’s case (supra), in the guideline No. 1, it is specified that 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. Such certificate alone was valid for the purpose of prosecuting the case before the Special Court. Even the guideline No. 1 issued in Kumari Madhuri Patil’s case (supra) is valid only till passing the legislation and rules made thereunder. Moreover, the FIR No. 76 of 2016 was registered on 23.03.2016, and therefore, the 4th respondent could be forced to get the community certificate of the victim from the 3rd respondent-Revenue Divisional Officer as per the guidelines issued in Kumari Madhuri Patil’s case (supra) and said contention of the learned counsel for the petitioner that the victim community certificate shall be issued by the Revenue Divisional Officer, holds no water when the subsequent legislation came into force and the contentions of the petitioner is hypothetical. 10. The Hon’ble Apex Court in the case of Dayaram vs. Sudhir Batham and Others, (2012) 1 SCC 333 while deciding the issue raised in the case mainly with reference to the Directions 11 and 12 in Kumari Madhuri Patil’s case (supra) which excludes the jurisdiction of the Civil Court to entertain suits challenging the decisions of the Caste Scrutiny Committees in violation of Section 9 of CPC and also as to whether Direction 13 in Kumari Madhuri Patil’s case (supra) barring intra-court appeals against decisions of Single Judges of High Courts in writ petitions, when such appeals are specifically provided for in State enactments/Letters Patent of various High Courts, is valid and proper, held that the jurisdiction of the High Court under Article 226 of the Constitution of India cannot be taken away. However, the provisions of the Act bars the jurisdiction of the Civil Court under Section 9 of CPC to entertain any suits pertain to the community certificates. 11. However, the provisions of the Act bars the jurisdiction of the Civil Court under Section 9 of CPC to entertain any suits pertain to the community certificates. 11. However, it cannot be overlooked the fact of Presiding Officer of the Special Court to water down the provisions of the Act made for the protection of the Scheduled Castes and Scheduled Tribes and insisting for the community certificates issued by the Revenue Divisional Officer and not considering the certificate issued by the Tahsildar/Mandal Revenue Officer not below the rank of Deputy Tahsildar as per the provisions of the A.P. Act, 1993 and the Rules made therein and as per the decision of the Hon’ble Apex Court in Kumari Madhuri Patil’s case (supra), is unsustainable, illegal and contrary to the provisions of the Act. The Act and the Rules deal with the issuance of community certificates for various communities annexed therein, it is clearly mentioned that who is the competent authority to issue the said certificate. The certificate to be issued to the 12 communities of Scheduled Castes with respect to S. No. 2 in Column (1) of Annexure-I including ‘Mala’ community, all the Mandal Revenue Officers in the State not below the rank of Deputy Tahsildar are the competent authorities within the territorial jurisdiction of Mandal. Only in respect of communities shown at S. No. 3 in Column (1) of Annexure-I including ‘Mala Jangam’ or ‘Mala Masti’ and ‘Mala Sanyasi’ all Revenue officials not below the rank of a Revenue Divisional Officer/Sub-Collector/or Assistant Collector in the State within the territorial jurisdiction of a Revenue Division held by them are the competent authorities, but not with respect to ‘Mala’ community. 12. The Presiding Officers are even adjudicating the validity of the certificates issued to the victims and went to the extent of declaring them as invalid stating that they are not supported by any evidence or enquiry as contemplated under the Rules and acquitting all the accused persons, is illegal and arbitrary. But, once the certificate is obtained by the Investigating Officer, the veracity of the community certificate could not be doubted by the Presiding Officer of the Special Court. But, once the certificate is obtained by the Investigating Officer, the veracity of the community certificate could not be doubted by the Presiding Officer of the Special Court. But, such practice of officers needs to be deprecated and moreover some Presiding Officers are acquitting the accused under the provisions of the Act stating that the certificate issued by the Revenue Divisional Officer is not obtained and filed by the Investigating Officer, which alone is binding as directed by the Hon’ble Supreme Court in Kumari Madhuri Patil’s case (supra), without taking into consideration of the subsequent legislation and rules issued by the State legislature and the fact that the guidelines issued by the Hon’ble Supreme Court are only valid and in force, till enacting suitable legislation only. But, the Presiding Officers are still insisting for the certificates from the Revenue Divisional Officers and acquitting the accused, that could be the reason why the petitioner in the present case is driven to this Court. This Court, after perusal of the judgments of the Presiding Officer filed along with the writ petition viz. (1) SC/ST S.C. No. 35 of 2013 dated 13.07.2016 by the Special Judge for Trial of Cases under SC/ST (POA) Act-cum-10th Additional District & Sessions Judge, East Godavari at Rajahmundry and (2) SC/ST S.C. No. 44 of 2013 dated 29.04.2016 by the Special Judge for Trial of Cases under SC/ST (POA) Act-cum-10th Additional District and Sessions Judge, East Godavari at Rajahmundry in Annexure P.5 and P.6, found that the Special Judge has acquitted the accused for the serious offences which attracts the provisions of the Act wherein they provide rigorous punishments, whereas convicted the accused under the provisions of IPC for lesser punishments, on the ground that the Investigating authority has not filed the community certificates of the victims issued by the Revenue Divisional Officer, which is contrary to the provisions of the Act. 13. In the light of the above discussion, as per the provisions of the A.P. Act, 1993, the competent authority for issuance of community certificate of the deceased/victim is the Tahsildar/Mandal Revenue Officer not below the rank of Deputy Tahsildar of the local jurisdiction. 13. In the light of the above discussion, as per the provisions of the A.P. Act, 1993, the competent authority for issuance of community certificate of the deceased/victim is the Tahsildar/Mandal Revenue Officer not below the rank of Deputy Tahsildar of the local jurisdiction. Hence, the contention of the learned counsel for the petitioner is that the investigating authority, without getting the community certificate of the victim from the Revenue Divisional Officer, is prosecuting the case by obtaining the certificate from the Tahsildar, is unsustainable, in view of the provisions of the Act and the rules made thereunder. 14. However, this Court, in the interest of justice, felt it appropriate to dispose of the writ petition directing the Special Judge for Trial of Cases under SC/ST (POA) Act, East Godavari at Rajamahendravaram to complete the trial in SC/ST S.C. No. 52 of 2016, as per the provisions of law and dispose of the same as expeditiously as possible, preferably not later than six (6) months from the date of receipt of a copy of this order. 15. Accordingly, the Writ Petition is disposed of. No order as to costs. 16. Miscellaneous Petitions, if any, pending in this writ petition shall stand closed.