Madhya Pradesh High Court
The State Of Madhya Pradesh vs Sanjay Kumar Koshti on 20 August, 2018
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
Writ Appeal No.538/2017
The State of M.P. & Others
Vs.
Sanjay Kumar Koshti
Present: Hon'ble Shri Justice Hemant Gupta, Chief Justice,
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
Shri Amit Seth, Govt. Advocate for the appellant/ State.
Smt. Shobha Menon, Senior Advocate with Shri Rahul
Choubey, Advocate for the respondent No.1.
Whether approved for YES
reporting ?
1. The report of Superintendent of Police in the
Law laid down matter of Caste Certificate is not final and binding on
the High-Power Committee constituted as per
judgment in the case of Ku. Madhuri Patil & Anr. Vs.
Addl. Commissioner, Tribal Development & Ors. - AIR
1995 SC 94.
2. The High-Power Committee is competent to
examine the entire material placed before it and record
finding that caste certificate issued to a candidate is
genuine or false.
3. The scope of interference in a writ petition under
Article 226 of the Constitution against a finding of
High-Power Committee is not of a Court of appeal to
appreciate the evidence. The Court has to see whether
the Committee considered all the relevant material
placed before it or has not applied its mind to the
relevant facts. Each case must be considered in the
backdrop of its own facts.
4. Nomenclature of a petition is not relevant, if the
Court has exercised its jurisdiction in a petition under
Section 482 of Cr.P.C. For quashing of FIR while
hearing a writ petition against the findings of High-
Power Committee for caste- writ appeal against the
quashing of FIR in a petition under Section 482 of
Cr.P.C. is maintainable.
Significant
paragraph Nos. Para 8 and Para 9
JUDGMENT
2 ( .08.2018 ) Per: Shri Vijay Kumar Shukla, J.
In the present intra Court appeal, challenge has been made to the order dated 30 th November, 2016 passed in Writ Petition No.9528/2014 and M.Cr.C. No.4208/2009.
2. By the impugned order the learned Single Judge has quashed the report of the High-Power Committee and held that the Caste Certificate issued to the writ petitioner is genuine as no aspersions relating to its authenticity has been cast by the Police report. In view of the order passed in the Writ Petition, the petition under Section 482 of the Code of Criminal Procedure for quashing the F.I.R. has also been allowed.
3. Learned counsel for the respondent-petitioner raised a preliminary objection that the present writ appeal is not maintainable so far as it relates to the challenge to the order passed in a petition filed under Section 482 of the Code of Criminal Procedure.
4. Before delving into the issue of preliminary objection raised by the respondent-writ petitioner, it is apposite to refer the facts of the case. The respondent-writ petitioner was appointed on 10.10.1996 as 'Fitter Electrician' in Ordnance Factory, Katni against a post reserved for Scheduled Tribe candidate. He claimed appointment on the basis of a Caste Certificated dated 15.3.1996 issued by Tahsildar, Jabalpur bearing No.1937-B/2/96 certifying the caste of the writ petitioner to be 'Halba'. On 1.8.2005 after verification from Tahsildar, Jabalpur, the employer General Manager, Ordnance Factory, Katni, informed that his Caste Certificate is found to be false. A writ petition was filed comprising W.P. No.7639/2005 challenging the aforesaid communication dated 3 1.8.2005 issued by the employer Ordnance Factory. The said petition was disposed of directing the High-Power Committee to cast an enquiry into Caste Certificate of the respondent and to pass appropriate order as per the law laid down by the Apex Court in the case of Ku.Madhuri Patil and another Vs. Additional Commissioner, Tribal Development and others - AIR 1995 SC 94 and till then the status quo was directed to be maintained. On 4.1.2009 on the written report of the employer dated 22.12.2008, F.I.R., bearing Crime No.6/2009 was registered on 4.1.2009 at Police Station Madhavnagar, District Katni against the respondent- writ petitioner for offences under Sections 420, 465, 467, 468 and 471 of IPC. After the investigation, the challan was filed by the police in the aforesaid crime on 6.4.2009. On 26 th April, 2009, the petitioner filed an application under Section 482 of Cr.P.C. Registered as M.Cr.C. No.4208/2009 seeking quashment of the aforesaid F.I.R. The further proceedings of the aforesaid criminal case was stayed by this Court in the proceedings under Section 482 Cr.P.C. On 3.11.2010 the Superintendent of Police, Katni, submitted his enquiry report to the High-Power Committee stating that caste of the respondent is 'Halba' only. After analyizing the entire record, the High-Power Committee found that the report submitted by the Superintendent of Police is not convincing and issued a show cause notice to the writ petitioner on 26 th March, 2011. The respondent-writ petitioner replied to the show cause notice and submitted that the Caste Certificate issued to him as Scheduled Tribe 'Halba' is correct. The Collector, Jabalpur had also forwarded the letter dated 16th July, 2013 of the Tahsildar, Jabalpur vide communication dated 15th January 2014, that the aforesaid Caste Certificate of the respondent dated 15th March, 1996 is not found to be issued from office as it is not recorded in its 'Diara Panji' in the year 1995-1996. The Committee further found that the 4 writ petitioner failed to produce any revenue record prior to the year 1950 wherein, his caste is recorded as 'Halba'. On the basis of the aforesaid material, the High-Power Committee held by the impugned decision dated 26th February 2014, that the Caste Certificate issued to the writ petitioner is forged. The aforesaid decision was challenged by the writ petitioner which has been allowed by the impugned order which has been challenged in the present intra Court appeal.
5. The learned Single Judge interfered with the findings of the High- Power Committee on the ground that the procedure prescribed in Ku.Madhuri Patil's case (supra) was subverted by the High Court and further held that the report submitted by the Superintendent of Police in favour of the writ petitioner was binding on the Committee.
6. Per contra, counsel for the appellant/ State submitted that if the contention of the writ petitioner is accepted that the report of the Superintendent of Police is binding on the High-Power Committee then very purpose of constituting a High-Power Committee to examine the social status of applicant claiming to be of a particular caste would be redundant/ otiose. The Committee is constituted as per the guide lines laid down in Ku.Madhuri Patil's case (supra) to decide the controvery arising from the social status Certificate and also the validity of caste certificate in the background of the claim of such social status. The finding of the learned Single Judge that the report of Superintendent of Police in favour of the writ petitioner is binding on the committee is contrary to the object and purpose of setting up such Committee.
7. In order to appreciate the aforesaid rival contentions, it is apposite to reproduce the guide lines laid down by the Apex Court in the case of Ku.Madhuri Patil's case (supra):-
5"12. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. 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- 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 6 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 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 7 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. 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.
810. 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. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to 9 the candidate and debar the candidate from further study or continue in office in a post. "
8. Learned counsel for the writ petitioner staneously relied on para 7 of the aforesaid guidelines to submit that if the report is in favour of the candidate and found to be genuine and true, no further action need to be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in that event the same procedure has to be followed as envisaged in para 6. The same does not lay down that the report of Superintendent of Police is final and binding on the Committee. The report referred in para 7 of the guide lines is the report of High- Power Committee. It contemplates that in case report of Committee is in favour of candidate and his claim is found to be genuine then no action is required. Thus, the contention of the counsel for the wirt petitioner cannot be accepted that the report of Superintendent of Police is binding on the Committee. In view of para 12.6, 12.7 and 12.14, we have no hesitation to hold that the High-Power Committee is competent to examine the entire material placed before it and record a finding that Caste Certificate issued to the candidate is genuine or false.
9. The learned Single Judge while allowing the petition recorded a finding that the procedure adopted by the High- Power Committee was not as per the guide-lines laid down in the case of Ku.Madhuri Patil's case (supra), not only quashed the report of the Committee but also held that the Caste Certificate issued to the writ petitioner is genuine certificate and FIR which was registered on the basis of the report of the Collector forwarded by the employer has also been quashed. The scope of interference in writ jurisdiction against the report of the High-Power Committee is discussed 10 in para 14 of the judgment in Ku.Madhuri Patil's case (supra), which is quoted as under :-
"14. The question then is whether the approach adopted by the High Court in not elaborately considering the case is vitiated by an error of law. High Court is not a court of appeal to appreciate the evidence. The Committee which is empowered to evaluate the evidence placed before it when records a finding of fact, it ought to prevail unless found vitiated by judicial review of any High Court subject to limitations of interference with findings of fact. The Committee when considers all the material facts and records a finding, though another view, as a court of appeal may be possible, it is not a ground to reverse the findings. The court has to see whether the Committee considered all the relevant material placed before it or has not applied its mind to relevant facts which have led the Committee ultimately record the finding. Each case must be considered in the backdrop of its own facts. "
10. In the present case, upon perusal of the record, it is noticed that the matter was referred to the Superintendent of Police to examine the genuineness of the alleged caste certificate. The Committee in its report in para 5 found that the report submitted by the Superintendent of Police was vague and the findings given by the Superintendent of Police that the petitioner belongs to 'Halba' caste with the surname Koshti. As per para 6 of the order notice was issued to the petitioner on 26.8.2011 and he was asked to submit a reply. In reply to the aforesaid notice, the writ petitioner demanded copy of the report of the Superintendent of Police which was supplied to him through his employer. The writ petitioner relied on a Certificate dated 13.7.2011 in support of his contention that he belongs to 'Halba' caste. Thereafter, a report was called 11 from the Collector with regard to the genuineness of the aforesaid Certificate. The Collector vide its report dated 15.1.2014 submitted that the aforesaid Certificate is a forged one as there is no such entry in the 'Diara Panji' which is a register maintained for issuance of the Certificate. On evaluation of the entire facts, circumstances and evidence the High-Power Committee came to the conclusion that the Caste Certificate issued to the petitioner is not a genuine certificate and is forged Certificate.
11. Further, we find that the writ petitioner failed to produce any document that prior to year 1950, his caste is recorded as 'Halba'. The Apex Court in the case of Damodar Vs. Secretary, Industrial, Energy and Labour Department and others -(2010)15 SCC 537 referring to para 5 of the judgment passed in the case of State of Maharashtra Vs. Milind and others - (2001)1 SCC 4 held that "Halba/Koshti" is not a Scheduled caste and "Koshti" was infact the category under the Special Backward Classes.
12. Since the writ petitioner has failed to adduce any document in support of his contention that he belongs to 'Halba' Caste, we find that the High-Power Committee has rightly held that the writ petitioner does not belong to 'Halba' Caste. Consequently, the writ appeal is allowed.
13. Now we advert to the objection raised by the counsel for the respondent/ writ petitioner that the writ appeal is not maintainable.
14. The learned counsel for the appellant submitted that so far as the order of quashing of FIR is concerned, though the said application was filed under Section 482 of the Code of Criminal Procedure but the learned Single Judge has quashed the FIR by a common order deciding the writ petition 12 challenging the findings of the High-Power Committee, scrutinizing the caste of the writ petitioner and therefore, the learned Single Judge has exercised the writ jurisdiction while quashing the FIR only on the ground that the same was registered even before the report of the High-Power Committee and the report of Superintendent of Police. Thus, the learned Single Judge has exercised writ jurisdiction while quashing the FIR and therefore, the present intra court appeal is maintainable.
15. In State of Haryana and others Vs. Bhajan Lal and others- 1992 Supp (1) SCC 335, the Apex court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice. While laying down certain guidelines where the court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to the followed by the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. One of such guideline is where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior courts and to see that the stream of administration of justice remains clean and pure, The power conferred on the High Court under Articles 226 and 227 of the constitution and under Section 13 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to.
16. In the case of M/S. Pepsi Foods Ltd. & Anr vs Special Judicial Magistrate & Ors -1998(5) SCC 749 the Apex Court in para 22 has dealt with the scope of High Court's power to quash the criminal proceedings in exercise of the powers under Article 226 and 227 of the Constitution or Section 482 of Code of Criminal Procedure and held that nomenclature under which petition is filed is not quite relevant. The petition filed under Article 226 can be treated as one under Article 227 or Section 482 Cr.P.C. The relevant para 22 reads as under :-
"22. Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court find that the appellants could not invoke its jurisdiction under Article 226 , the court can certainly treat the petition one under Article 227 or Section 482 of the Code. it may not however, be lost sight of that provisions exist in the Code of revision and appeal but sometime for immediate relief Section 482 of the Code or Article 227 may have to be resorted to for correcting some grave errors 14 that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution."
17. In view of the aforesaid enunciation of law, we held that the writ appeal is maintainable against the order passed by the learned Single Judge quashing the FIR. Resultantly, the writ appeal is allowed. Order passed by the learned Single Judge in W.P. No. No.9528/2014 as well as in petition under Section 482 Cr.P.C., in M.Cr.C. No.4208/2009 are set aside.
( HEMANT GUPTA) ( VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
mrs. Mishra
Digitally signed by DEEPA MISHRA
Date: 2018.08.23 22:27:37 -07'00'