Delhi District Court
Cbi vs . Jai Shankar Prasad on 13 March, 2023
IN THE COURT OF SH. RAJESH KUMAR GOEL
SPECIAL JUDGE (PC ACT) (CBI)-16
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
CBI Vs. Jai Shankar Prasad
RC No. DAI-2009-A-0012
C.A. No. 01/2023
Central Bureau of Investigation
Versus
Jai Shankar Prasasd S/o Lt. Sh. Ram Bahal Prasad
R/o Qr. No. 58 Type-II, Varun Niketan,
Haider Pur near Pitam Pura,
New Delhi
Permanent Address:
Village: Yado Rahimpur,
PO and PS Marhoura, District Chhapra (Saran),
Bihar.
Date of Institution : 13.01.2023
Date of Arguments: 09.02.2023
Date of Judgment : 13.03.2023
1. Aggrieved and dissatisfied with the judgment dated
17.08.2022, passed by the court of Ld. ACMM-2 cum-ACJ,
Rouse Avenue District Court, vide which
respondent/accused Jai Shankar Prasad has been acquitted
for the offences u/s 420/ 471 IPC, CBI has filed the instant appeal.
Factual Matrix
2. Briefly stated, the present case is shown to have been registered on the basis of source information that CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:12:59 +0530 Page no. 1 of 81 Date of decision 13.03.2023 respondent/accused dishonestly and fraudulently induced Delhi Jal Board Authorities to appoint him on the post of Assistant Pump Driver in Scheduled Tribe category by filing forged Scheduled Tribe Certificate No.152 dated 16.1.1991, purportedly issued from the office of District Magistrate, Chhapra (Saran), Bihar in the year 1991. It is mentioned in the chargesheet that during investigation, it was revealed that on the basis of forged Scheduled Tribe Certificate submitted by respondent/accused, he was appointed on the post of Assistant Pump Driver vide offer letter dated 21.5.1992, issued by the Competent Authority. Investigation further revealed that the present respondent/accused had used Scheduled Tribe Certificate showing himself belonging to 'Kharia' under the category of Scheduled Tribe but during investigation, the said Certificate dated 16.01.1991 was found not to have been issued from the office of District Magistrate Chhapra Bihar as per letter no. 72/Kalyan dated 07.3.2009, issued by the office of concerned District Magistrate. It was further revealed that the present respondent/accused was belonging to 'Nonia' caste falling under the OBC category and not Scheduled Tribe category.
Proceedings before Ld. Trial Court.
3. Matter was investigated and the chargesheet was filed. Vide order dated 28.05.2011, cognizance of the CBI Vs. Jai Shankar Prasad RC No. DAI-2009-A-0012 Digitally signed by RAJESH Criminal Appeal No. 01/2023 RAJESH KUMAR GOEL Page no. 2 of 81 Date of decision 13.03.2023 KUMAR GOEL Date: 2023.03.13 16:13:30 +0530 offences was taken by the Ld. Trial Court and respondent/accused was ordered to be summoned to face the trial. After the compliance of section 207 CrPC, respondent/accused was charged for the offences u/s 420/471 IPC vide order dated 04.01.2013, by the Ld. Trial Court. Respondent/accused pleaded not guilty and claimed trial.
4. In order to prove its case, CBI has examined 11 witnesses. Although, the detailed testimonies of the prosecution witnesses shall be discussed herein after in the subsequent para's, however, it would be appropriate to discuss in brief the testimonies of these witnesses to have an overview of the nature and kind of evidence which has come on the record:
(a) PW1 Manik Chand Verma is a witnesses from the office of Delhi Jal Board where respondent/accused was working. He has been examined with regard to the personal file and service book of the respondent/accused Jai Shankar Prasad which is having the applications etc. moved seeking the post of Assistant Pump Driver in Delhi Jal Board. He deposed that the attestation form submitted by the respondent/accused is ExPW1/A, joining report is ExPW1/B, the photocopy of the Caste Certificate produced by the respondent/accused is Ex. PW1/C (Here it is pertinent to mention that this document has been given exhibit mark twice i.e as ExPW1/C and as ExPW6/B), the acceptance of offer of appointment accepted by the respondent/accused is CBI Vs. Jai Shankar Prasad RAJESH Digitally signed by RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:14:01 +0530 Page no. 3 of 81 Date of decision 13.03.2023 Ex.PW1/D and service book of the respondent/accused is Ex. PW1/E. PW1 Manik Chand Verma was cross-
examined by the Ld. Counsel for the respondent/accused.
(b) PW2 Jai Kishore Singh is a witness to the search conducted by the CBI at one of the house of respondent/accused situated at the village Yado Rahim Pur, P.S Marhorwrah, Distt Saran, Chhapra, Bihar. He is a witness to the search memo prepared by the IO ExPW2/A vide which certain documents PW2/B, PW2/C, Ex. PW2/D, PW2/E were seized.
PW2 Jai Kishor Singh was also cross-
examined by the Ld. Counsel for the respondent/accused.
(c) PW3 Diwakar Singh was posted as Assistant in the office of District Welfare Office, Saran Chhapra, Bihar. Here, it is pertinent to mention that the testimony of PW3 Diwakar Singh was partly recorded in person by the Ld. Trial Court and partly through the commission appointed by the court u/s 284 Cr.P.C. PW3 Diwakar Singh deposed that in the year 2019, he was working as Assistant in the office of District Welfare Office. He handed over a letter bearing no. 72/Kalyan dated 07.03.2009 to the CBI which is Ex. PW3/A. He also handed over the documents ExPW3/B(colly) along with said letter which bears the signature of Sh. Surya Narayan Singh, the then District Welfare Officer at point A. PW3 Diwakar Singh identified the signature of Sh. Surya Narayan Singh.
During his examination through commission, he deposed that he had compared the Caste Certificate with the Caste Certificate Issuing Register and he informed that there was no caste certificate has been issued by his office in the name of Jai Shankar Prasad, respondent/accused. On some point CBI Vs. Jai Shankar Prasad RC No. DAI-2009-A-0012 RAJESH Digitally signed by RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:14:15 +0530 Page no. 4 of 81 Date of decision 13.03.2023 of his deposition, he was declared hostile but he admitted that CBI officer had visited his office and had recorded his statement regarding verification of Caste Certificate no. 152 dated 16.01.1991 pertaining to the respondent/accused. He further admitted that CBI officer had recorded his statement correctly which was read over to him and the same is ExCW1/A. During his cross-examination by the Ld. Counsel for the respondent/accused, he has shown his ignorance about the Constitution of some commission namely Murgali Lal Commission by the Government of Bihar. He replied that during his period of deputation in the office, no ST Certificate for Kharia/Nonia caste was issued during the cross- examination. He stated that CBI officer visited his office and recorded the statement u/s 161 CrPC which is not his statement.
He was re-examined by the Ld. PP for the CBI. During his re-examination also, he reiterated that the reply given by him during his cross- examination by Defence Counsel is correct.
(d) PW4 Rabindra Singh was working as a statistical Assistant in the office of SC & ST Welfare Department, Patna. He deposed that the Caste Certificates are issued from the office of DWO and processed from three levels. Firstly, the candidate applies to the BDO office then to the SDO and at last to the office of DM; The Caste Certificate issued by the SDO is used for the jobs of the State Governments and the Caste Certificate which is issued by DM is used for the jobs outside the State. All the entries pertaining to the issuance of the caste certificates are maintained in the office of DWO; letter dated 07.03.2009 bearing no. 72 Ex. PW3/A bears signature of Sh Prakash Kumar, the then Deputy Development Commissioner at point A and he has worked under him and seen him signing and CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:14:28 +0530 Page no. 5 of 81 Date of decision 13.03.2023 writing during course of his duties; vide letter ExPW3/A, information was provided along with two separate sheets which are Ex. PW3/B (colly.); after going through the first page of ExPW3/B, he deposed that the caste certificate at serial no.152 was issued to Sh. Ashok Saha s/o Ram Nath Saaha on 17.4.1991 which is verified by the DWO at point A; after seeing the second page of ExPW3/B, he deposed that the certificate was issued to Shri Hareshwar Shah s/o Vidhadta Shah on 24.4.1991 verified by the DWO at point A; Nooniya caste comes in the most backward class and does not come under the SC category.
PW4 Rabindra Singh was also cross-
examined by the Ld. Counsel for the respondent/accused.
(e) PW5 H.V. Tandon was posted as AO(G) DWS&SDU now known as Delhi Jal Board. He deposed that vide office letter dated 21.05.1992, offer-cum-appointment letter was issued to 179 selected candidates by the then Addl Commissioner (W) and the name of respondent/accused is at serial no. 176 under the ST category; that order was issued under his signature after obtaining approval of the competent authority; order is Ex. PW5/A which bears his signature at point A and B on the last page; ExPW5/A is the part of recruitment file for the post of APDs (file 117/-1-1990) under direct quota.
PW5 H.V. Tandon was also cross-examined by the Ld. Counsel for the respondent/accused.
(f) PW6 Sh. Sudhir Kumar is a witness to the search carried out at the residential premises of respondent/accused Jai Shankar Prasad at 58/II, Varun Niketan, Haiderpur, Delhi. PW6 is a witness to the search list ExPW6/A and seizure of Caste Certificate no.152 dated 16.1.1991 ExPW6/B. PW6 Sh. Sudhir Kumar was also cross-
examined by Ld. Counsel for respondent/accused.
Digitally signed by RAJESHCBI Vs. Jai Shankar Prasad RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 KUMAR GOEL Date: 2023.03.13 16:14:51 +0530 Criminal Appeal No. 01/2023 Page no. 6 of 81 Date of decision 13.03.2023
(g) PW7 Sh. Dharampal is another witness to the search which was conducted at the residential premises of Jai Shankar Prakash, respondent/accused, situated at 58/II, Varun Niketan, Haiderpur, Delhi and in his presence search list ExPW6/A was prepared and it bears his signature at point B on both sides; caste certificate no.152 dated 16.1.1991 ExPW 6/B which bears his signature at point C was seized.
PW7 was cross examined by Ld. Counsel for the respondent/accused.
(h) PW8 Sh. Raja Gopalan is the witness who was posted as Senior Investigating Officer, Vigilance Department, Delhi Jal Board in the year 2009 and he had conducted the departmental inquiry in respect of the respondent/accused regarding verification of the caste certificate of the respondent/accused; he handed over the personal file and service book of respondent/accused to the CBI vide seizure memo dated 20.05.2009; on 26.5.1992, the respondent/ accused had joined Delhi Jal Board as APD, against ST category and had submitted attested photocopy of his ST Caste Certificate No. 152 dated 16.01.1991, Ex. PW1/C (ExPW6/B).
PW8 Sh. Raja Gopala was cross-examined by the Ld. Counsel for the respondent/accused.
(i) PW9 Sh. Shyam Bahadur Baitha was posted as Postal Assistant in the office of Senior Post Master Chapra, HPO in the year 2009. He is the witness to the search conducted by the CBI on 05.03.2009, at the residential premises of respondent/accused Jai Shankar Prasad at Yado Rahim Pur, PS Marhowrah, Distt. Saran, Chapra, Bihar. He deposed that he alongwith his colleague Sh. Jai Kishor Singh, the then Accountant, Head Post Officer, Chapra were directed to join the search to be conducted by the CBI; he alongwith Sh. Jai Kishor CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:15:04 +0530 Page no. 7 of 81 Date of decision 13.03.2023 Singh and Sh. Golden Kumar, SHO, PS Marhowrah joined the CBI search team; Certain documents were seized from the spot and search memo ExPW2/A was prepared which bears his signature at point C and signature of his colleague Sh. Jai Kishore Singh at point B; items recovered during the search of the house of the respondent/accused is mentioned on page 2, at point 1 on seizure memo ExPW2/A; document D-10 photocopy of caste certificate is in the name of Sh. Nath Nain Prasad issued under OBC category ExPW2/B, D-11 original application form of Sh. Nath Nain Prasad, ExPW2/C and ExPW2/D( two pages of one application form), D-12 Original Caste certificate of Sh. Nath Nain Prasad ExPW2/E were recovered from the house situated at Bihar of the respondent /accused; he and his colleague Sh. Jai Kishore Prasad signed upon the recovered documents as token and he identified the signature of Sh.Jai Kishore Prasad as he had worked under him and is conversant with his signature.
PW9 was also cross examined by the Ld. Counsel for respondent/accused.
(j) PW10 Sh. Shiv Kumar Majhi is the witness who was posted as Block Development Officer (BDO office), Marora, Saran, Chhapra, Bihar from 2008 to 31.01.2011. He deposed that the letter no. 136 dated 05.03.2009 ExPW10/A, addressed to Sub Inspector, CBI/ACB/New Delhi is in his handwriting and bears his signature at point B and signed by Sh.Vinod Prasad Singh, the then BDO at point A and he identified his signature as he had worked under Sh.Vinod Prasad Singh; Vide letter Ex. PW10/A, his office was informed that respondent/ accused Jai Shankar Prasad belongs to "Nonia" caste which comes in the OBC category; No person of the "Kharia" caste resides in district Saran, Chhapra, Bihar.
CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH
RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL
Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:15:15
+0530 Page no. 8 of 81
Date of decision 13.03.2023
PW10 Shiv Kumar Majhi cross-examined by the Ld. Counsel for respondent/accused.
(k) PW11 Sh. Manoj Kumar is the IO who carried out the investigation of the present case. He deposed that case RC 12(A)/2009, ACB,CBI, New Delhi was entrusted to him for investigation; original copy of FIR is ExPW11/A bears signature of Sh. Vineet Aggarwal, the then Branch SP at point A; he got issued the Search Warrant and conducted the searches at the residential premises of respondent/accused Jai Shankar Prasad situated at Delhi and Bihar respectively; seized original OBC Caste Certificate issued for " Nonia" case ExPW2/E issued in the name of Sh. Nath Nayan Prasad, brother of the respondent/accused; duly filled in applications form for the post of Primary Teacher Examniation 2001 ExPW2/C, Bihar Lok Sewa Aayog Patna ExPW2/D wherein Sh. Nath Nayan Prasad, brother of the respondent/accused has shown his caste "Nonia" and category OBC; personal file of respondent/accused D-2 was collected by him during investigation; alongwith personal file, service book D-2 ExPW1/E which is part of D-2 was also collected; entire file regarding appointment of Assistant Pump Drivers of Delhi Jal Board D-3 is Mark PW11/A; letter dated 7.3.2009, ExPW3/A was received by him from Jila Paddhadhikari Saran,Chhapra; he also received attested copies of register and other documents ExPW3/B (Colly) and letter ExPW10/A and another letter ExPW11/C; PW11 Sh. Manoj Kumar has further deposed about search carried by him at the premises of respondent/accused.
PW11 was cross examined by the Ld. Counsel for the respondent/accused.
CBI Vs. Jai Shankar Prasad RAJESH Digitally signed by RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:15:27 +0530 Page no. 9 of 81 Date of decision 13.03.2023
5. Thereafter PE was closed and on 26.2.2021, Ld. Trial Court recorded the statement of respondent/accused u/s 313 Cr.P.C. Respondent/accused opted to lead defence evidence and has examined two witnesses Sh. Gurpreet Singh as DW1 and Sh. Ranjan as DW2. Both these witnesses have stated that son of the respondent/accused namely Vishal Kumar was their friend and classmate in the same school. They further stated that Vishal told them that he belongs to Khariya/Noonia caste from Bihar. Both these witnesses were cross-examined by the Ld. APP for the CBI.
6. After hearing the Ld.APP for the CBI and Ld. Counsel for the respondent/ accused, vide impugned judgment dated 17.08.2022, the Ld. Trial Court has acquitted the respondent/accused for the offences u/s 420/471 IPC which has been challenged by way of present appeal.
Submissions made on behalf of the CBI
7. Ld. PP for the CBI has made the following submission:
(i) During the pendency of the present case, CBI had moved an application u/s 311 CrPC making a request to summon few witnesses but that application was dismissed on the ground that such application cannot be allowed just to fill up the lacuna in the prosecution case. In this regard, Ld. PP for the CBI submitted that in CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:15:39 +0530 Page no. 10 of 81 Date of decision 13.03.2023 view of the recent judgment of the Hon'ble Supreme Court passed in a Criminal Appeal no.
1021 of 2022 titled as Varsha Garg Vs. State of Madhya Pradesh and Ors, even if there is an attempt to fill up the lacuna, such application cannot be dismissed.
(ii) By drawing my attention towards the impugned judgment, she pointed out that one of the ground for acquittal was that Original Caste Certificate Issuing Register was not produced before the court and the relevant witness has not been examined. But by way of application moved u/s section 311 CrPC, CBI had made same request which came to be dismissed. Had that application been allowed by the Ld. Trial Court, the original record and the relevant witness could have been produced to prove the Caste Certificate Issuing Register, whose attested copies are lying on the record which can be read in evidence.
(iii) Impugned judgment passed by the Ld. Trial Court is contrary to law and not sustainable as it is based on erroneous appreciation of evidence. During the search of the house of the respondent/accused, copy of the caste certificate was recovered which was got prepared by the respondent/accused with dishonest intention.
(iv) The findings of the Ld. Trial Court that no GEQD opinion was obtained to prove the fact that certificate was forged, is unwarranted. There was no requirement of taking GEQD opinion on forged certificate as during the investigation forger could not be identified. It is, therefore, prayed that the impugned judgment dated 17.8.2022, may kindly be set aside and the respondent/accused may kindly be convicted as prosecution has been able to prove its case beyond reasonable doubt.
CBI Vs. Jai Shankar Prasad RAJESH Digitally signed by RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:15:50 +0530 Page no. 11 of 81 Date of decision 13.03.2023 Submissions made on behalf of the respondent/accused
8. Per Contra, Ld. Counsel for the respondent/accused made following submissions:
(i) By referring judgment of Kumari Madhuri Patil Vs Addl Commissioner reported as (1994) 6 SCC 241, he submitted that the alleged forged caste certificate was to be sent to the Scrutiny Committee constituted pursuant to the directions passed in the aforesaid judgment but nothing was done in this regard by the CBI. Therefore, solely on this ground alone, respondent/accused is entitled for acquittal which was rightly done by the Ld. Trial Court.
(ii) Ld. Counsel for the respondent/accused has taken me to the entire impugned judgment para-wise and submitted that there is no illegality in the impugned judgment which is based upon correct appreciation of the evidence and application of the judicial mind.
(iii) Regarding application moved by CBI u/s 311 CrPC, it was submitted that it was moved at a very belated stage when the case was reserved for pronouncement of judgment and that's why the application of the CBI came to be dismissed.
(iv) Ld. Counsel for the respondent/accused has taken me to the testimonies of prosecution witnesses and tried to make a case that there is nothing on record indicating that the caste certificate in question is forged. By referring the testimony of PW3 Sh.
Diwakar Singh, Ld. Counsel vehemently argued that he was declared hostile and he was cross examined on behalf of the CBI. During his cross examination PW3 Diwakar Singh replied that CBI had never recorded his statement u/s 161 CrPC, which is sufficient to reject the testimony of PW3 recorded in the present case.
(v) He has taken me to the cross examination of PW1 Manik Chand Verma and submitted that during his cross examination, it has come on the record that Digitally signed by RAJESH CBI Vs. Jai Shankar Prasad RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 KUMAR GOEL Date: 2023.03.13 16:16:01 +0530 Criminal Appeal No. 01/2023 Page no. 12 of 81 Date of decision 13.03.2023 Attestation Form ExPW1/A, submitted by respondent/accused, was sent to the office of District Magistrate, Chhapra, Bihar and received back in the office of Delhi Jal Board. At that time, no objection was raised about the caste of respondent/accused.
(vi) The best evidence available before the prosecution was to produce the original Caste Certificate Issuing Register and the examination of the concerned witness but prosecution has failed on both counts. Neither the Caste Certificate Issuing Register nor the concerned witness was produced
(vii) Ld. Counsel has also drawn my attention towards the judgments passed by the Ld. Courts of ACMM, CMM and also the order passed by the Ld. Spl Judge, CBI Court in Delhi, whereby the accused persons in those cases, in similar circumstances, were acquitted by applying the law as laid down in Kumari Madhuri Patil case (Supra).
9. I have perused the record, heard the Ld. PP for CBI and Ld. Counsel for the respondent/accused.
Discussion and analysis
10. It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent till proved guilty and, therefore, the burden lies on the prosecution to prove the guilt of the accused beyond reasonable doubt. Now, it is to be seen whether prosecution could discharge that burden or not.
Digitally signed by RAJESHCBI Vs. Jai Shankar Prasad RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:16:14 +0530 Page no. 13 of 81 Date of decision 13.03.2023
11. The main salient findings of the Ld. Trial Court which resulted in acquittal of the respondent/ accused, can be epitomized as under:
i. Prosecution has not produced the original Caste Certificate Issuing Register and only the photocopies were filed. No explanation has been given for not producing the original Caste Certificate Issuing register at the time of recording of evidence. The Ld. Trial Court did not believe the report prepared by Zila Padadhikari ExPW3/A and attested copies of the Caste Certificate Issuing Register ExPW3/B(colly), being not proved in accordance with law therefore, inadmissible in evidence.
ii. In view of the law laid down by Hon'ble Supreme Court in the case titled as Kumari Madhuri Patil Vs Addl Commissioner,(1994) 6 SCC 241, CBI/Prosecution was supposed to refer the claim of the respondent/accused to the Caste Scrutiny Committee and even the Court does not have the jurisdiction to decide as to whether respondent/accused belongs to 'Kharia' Caste or not. That being so, the claim of the forgery pressed by the prosecution cannot be accepted.
12. In the present case, there is no dispute that Respondent/accused Jai Shankar Prasad accepted the offer of appointment for the Post of Assistant Pump Driver under ST Category and joined Delhi Jal Board.
CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH
RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL
Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:16:27
+0530 Page no. 14 of 81
Date of decision 13.03.2023
13. Respondent/accused has not disputed the aforesaid fact. During the statement recorded u/s 313 CrPC, while answering the question no.1, 2, 3, he admitted that vide office order no. 168 dated 21.5.1992 ExPW5/A, offer- cum-appointment letter was issued to 179 candidates for the post of Assistant Pump Drivers and his name found mentioned at serial no.176 under the ST category. The offer letter was issued by PW5 Sh. H.V Tandon. He also admitted the service book record ExPW1/E and attestation form ExPW1/A and as per the attestation form ExPW1/A wherein it has been shown that respondent/accused is a Hindu and the Caste is ST. Respondent/accused further admitted that as per his joining report ExPW1/B, he had submitted the photocopy of the documents including Caste Certificate ExPW1/C(ExPW6/B) bearing no. 152 dated 16.1.1991. He has not denied that as per the service book PW1/E, he declared himself Hindu (ST) in its second column.
14. To prove the aforesaid facts, prosecution has examined three witnesses namely PW1 Sh. Manik Chand Verma, PW5 Sh. H.V Tandon and PW8 Sh. Raja Gopalan, who were working in the Delhi Jal Board and were holding different posts in the Delhi Jal Board during the relevant time. They have mainly deposed about offer of CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:16:40 +0530 Page no. 15 of 81 Date of decision 13.03.2023 appointment ExPW1/B, the acceptance of that offer by respondent/accused ExPW1/D, the attestation form submitted by the respondent/accused ExPW1/A, the office order dated 21.5.1992 ExPW5/A vide which offer-cum- appointment letter was issued to 179 selected candidates, about the departmental enquiry conducted against the respondent/accused. All these witnesses were cross examined by the Ld. Counsel for the respondent/accused but their testimonies were not disputed on the point that respondent/accused accepted the offer of appointment at the post of Assistant Pump Driver in Delhi Jal Board under the ST category. Prosecution has been able to prove its case beyond reasonable doubt that respondent/accused Jai Shankar Prasad accepted the offer of appointment for the Post of Assistant Pump Driver under ST Category and subsequently joined Delhi Jal Board and also he has filed the copy of the Caste Certificate bearing no. 152 dated 16.01.1991 ExPW1/C (ExPW6/B).
15. In the present case, the main controversy revolves around following two issues, which have been noted in the Impugned Judgment also, passed by the Ld. Trial Court:
i. The report prepared by Zila Padadhikari ExPW3/A and attested copies of the Caste Certificate Issuing Register ExPW3/B(colly), being not proved in accordance with law, cannot be read in evidence. On the contrary, in case CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:16:52 +0530 Page no. 16 of 81 Date of decision 13.03.2023 these documents are found to be admissible, in that eventuality, it would be sufficient to hold that caste certificate ExPW1/C (ExPW6/B) produced by the respondent/accused for getting the said post in the Delhi Jal Board, is forged and fabricated.
ii. Whether the claim of the prosecution that the caste certificate is forged and fabricated, was required to be sent for verification to the Scrutiny Committee Constituted pursuant to the directions passed in Kumari Madhuri Patil's Case(Supra). Meaning thereby, it has to be seen whether aforesaid directions are applicable to the facts and circumstances of the present case or not?
16. The first point is whether the report prepared by Zila Padadhikari ExPW3/A and attested copies of the Caste Certificate Issuing Register ExPW3/B (colly) can be read in evidence or not?
17. PW3 Diwakar Singh was posted as Assistant in the office of District Welfare Office (DWO), Saran, Chapra, Bihar, during the year 2009. He deposed that he handed over a letter bearing no.72/Kalyan dated 7.3.2009, to the CBI official which is ExPW3/A. He further deposed that alongwith ExPW3/A, he handed over the enclosed documents bearing the signature of Sh. Surya Narayan Singh, the then District Welfare Officer at point A on each page and he can identify the signature of said Sh. Surya Narayan Singh as he is conversant with the same during CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:17:03 +0530 Page no. 17 of 81 Date of decision 13.03.2023 course of his official duty. The enclosed documents/annexures are ExPW3/B ( Colly).
18. PW3 further deposed that he was on deputation in the office of District Welfare Office, Govt of Bihar , Saran for six months and his duty was to verify the correctness/genuineness of any certificate issued by District Welfare Officer; an enquiry relating to caste certificate of respondent/accused came before him from CBI; he compared the caste certificate with Caste Certificate Issuing Register and found that no caste certificate has been issued by that office in favour of the respondent/accused. PW3 admitted that he had not prepared the report dated 7.3.2009 ExPW3/A and has not identified the signature mentioned at point A. PW3 further deposed that attested copies of Caste Certificate Issuing Register ExPW3/B is running into two pages which bears signatures of District Welfare Officer at point A on two pages alongwith official seal; PW3 identified the signature of Sh. Surya Narayan Singh, District Welfare Officer. Regarding the caste certificate ExPW1/C (ExPW6/B), PW3 deposed that the said certificate was not issued by their office.
Digitally signed by RAJESHCBI Vs. Jai Shankar Prasad RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 KUMAR GOEL Date: 2023.03.13 16:17:13 +0530 Criminal Appeal No. 01/2023 Page no. 18 of 81 Date of decision 13.03.2023
19. PW3 was declared hostile by the prosecution on the point of handing over of verification report dated 7.3.2009 ExPW3/A and he was cross examined by the Ld. PP for CBI. During his cross examination, he replied that CBI officers visited his office and has recorded his statement regarding verification of caste certificate PW1/C(PW6/B) belonging to the respondent/accused. He admitted of having made statement to the CBI ExCW1/A which was read over to him. He further admitted that the verification report no.72 dated 07.3.2009 ExPW3/A was handed over by him to CBI officer. He reiterated that in the Caste Certificate Issuing Register, copy of which was enclosed with the letter no. 72 dated 7.3.2009 ExPW3/A, no certificate for ST category in the name of respondent/accused was found issued from his office. PW3 admitted that he has stated before the CBI officer that caste "Kharia" and "Nonia" did not come under the ST category in the year 1991.
20. PW3 was cross examined by the Ld. Counsel for the respondent/accused. During his cross examination, he replied that he has no knowledge about Mungeri Lal Commission who has submitted its report stating that "Nonia" caste is also known by various other names including "Kharia". He further replied that CBI officer who CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:17:23 +0530 Page no. 19 of 81 Date of decision 13.03.2023 has visited his office has recorded his statement himself and the same is not his statement; he has no knowledge whether Nonia/Kharia castes comes under ST category but till that time, it was not in ST category. He denied the suggestion Kharia/Nonia Caste comes under ST Category and categorically stated that during his period of deputation, no ST certificate for Kharia/Nonia Caste had been issued.
21. PW3 was re-examined by the Ld. Prosecutor for CBI to clarify whether his statement was recorded by the CBI during investigation is true and correct as his deposition during his examination in chief and cross examination by ld. Counsel for the respondent/accused on this point, differed. During his re-examination, PW3 reiterated that his deposition made by him during his cross examination by defence counsel to the effect that CBI officer himself had recorded his statement u/s 161 CrPC and the same does not belong to him, is correct.
22. During the argument, Ld counsel for the respondent/accused submitted that the testimony of PW3 has no value in the eyes of law as he has turned hostile. PW3 has denied of even having made any statement to CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:17:34 +0530 Page no. 20 of 81 Date of decision 13.03.2023 CBI under section 161 CrPC during the investigation, which suggest that PW3 is a planted witness.
23. At the very outset, I may mention that when a witness has turned hostile, as per settled position of law, even the evidence of a hostile witness can be considered to the extent, it supports the case of the prosecution.
24. In Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389, Rabindra Kumar Dey v. State of Orissa, (1976) 4 SCC 233 and Syad Akbar v. State of Karnataka ,(1980)1 SCC 30, it has been held by the Honble Supreme Court that:
" the evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution witnesses turned hostile. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on careful scrutiny.
25. In another case titled as Khujji v. State of M.P. , (1991) 3 SCC 627 it was held that:
"6. ... The evidence of PW 3 Kishan Lal and PW
4 Ramesh came to be rejected by the trial court because they were declared hostile to the prosecution by the learned Public Prosecutor as they refused to identify the appellant and his companions in the dock as the assailants of the deceased. But the counsel for the State is right when he submits that the evidence of a witness, CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:17:44 +0530 Page no. 21 of 81 Date of decision 13.03.2023 declared hostile, is not wholly effaced from the record and the part of the evidence which is otherwise acceptable can be acted upon."
26. The above position in law was reiterated by Hon'ble Supreme Court in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 , wherein the Court held that:
"31. The next aspect which requires to be adverted to is whether testimony of a hostile witness that has come on record should be relied upon or not. Mr Jain, learned Senior Counsel for the appellant would contend that as PW 7 has totally resiled in his cross-examination, his evidence is to be discarded in toto. On a perusal of the testimony of the said witness, it is evincible that in examination-in-chief, he has supported the prosecution story in entirety and in the cross- examination, he has taken the path of prevarication. In Bhagwan Singh v. State of Haryana [Bhagwan Singh v. State of Haryana, (1976) 1 SCC 389 , it has been laid down that even if a witness is characterised as a hostile witness, his evidence is not completely effaced.
The said evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony, if corroborated by other reliable evidence."
27. In the present case, the questions put to PW3 Sh. Diwakar Singh during his cross examination would reveal that the witness turned hostile basically only on one point as he disowned his statement made to CBI under section 161 CrPC. Rest of his testimony has gone unrebutted and Digitally signed by RAJESH CBI Vs. Jai Shankar Prasad RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:17:54 +0530 Page no. 22 of 81 Date of decision 13.03.2023 unchallenged. Even during his cross examination, PW3 replied that during his period of deputation, no ST certificate for "Kharia/ Nonia" caste had been issued. He has denied the suggestion that at the particular time and also at present "Kharia/Nonia" caste come under ST Category.
28. The Testimony of PW3 has gone unrebutted and unchallenged on the following points:
i. He handed over a letter bearing no. 72/ Kalyan dated 07.3.2009 ExPW3/A to CBI.
ii. He also handed over the enclosed documents ExPW3/B (colly) alongwith ExPW3/A which bears the signature of Sh. Surya Narayan Singh, the then DWO.
iii. His duty was to verify the correctness/genuineness of caste certificate issued by DWO.
iv. An enquiry about caste certificate in the present case pertaining to respondent/accused came to him in his office.
v. Most importantly, he had compared the caste certificate with the Caste Certificate issuing Register and found that no Caste Certificate has been issued by their office in favour of respondent/accused .
vi. Attested copies of Caste Certificate Issuing Register ExPW3/B(colly) running into two pages bears signature of Sh. Surya Narayan Singh, the then DWO at point A on both pages alongwith official seal. The Caste Certificate ExPW1/C(ExPW6/B) in the name of CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:18:04 +0530 Page no. 23 of 81 Date of decision 13.03.2023 respondent/accused Jai Shankar Prasad was not issued by their office.
29. As argued by the Ld. Counsel for the respondent/accused that since PW3 Sh.Diwakar Singh has denied of having made any statement u/s 161 CrPC to CBI during investigation, therefore, Court should not read the deposition made by the witness before it. I am afraid that such type of analogy has no legs to stand in the background of settled principal of law. In any criminal trial, it is not always necessary to record the statement of witnesses under section 161 CrPC, though it may be advisable. At times, there are prosecution witnesses, whose statements are not recorded under section 161 CrPC, still they are called upon to depose before the court and their testimonies so recorded, are considered by the Court while taking the stock of the evidence.
30. In the present case, as per the prosecution, the statement of PW3 was recorded under section 161 CrPC and same is ExCW1/A. The statement is already on record. I have gone through the same. A careful examination of that statement would make it crystal clear that PW3 has deposed before the court almost on the same lines as narrated in his statement recorded under section 161 CrPC. Every fact stated by PW3 in his statement under section CBI Vs. Jai Shankar Prasad RC No. DAI-2009-A-0012 RAJESH Digitally signed by RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:18:15 +0530 Page no. 24 of 81 Date of decision 13.03.2023 161 CrPC, has been deposed by him under oath before the court. There is no material contradiction or exaggeration of facts or material addition to the case of prosecution.
31. That being so, the deposition made by PW3 Sh.Diwakar Singh before the court is a valuable piece of evidence in the form of oral evidence and the same cannot be rejected and ignored.
32. Testimony of PW3 Sh.Diwakar Singh has been supported and corroborated by PW4 Sh. Rabindra Singh . He deposed that in the year 2004, he was posted as Head Clerk in the office of District Welfare Office, District Saran, Chhapra, Bihar; the caste certificates are issued from the office of DWO; the certificates are processed from three levels; firstly the candidate applies to the BDO office; thereafter alongwith the certificate issued by the BDO the candidate applies to the office of SDO and thereafter alongwith the certificate of BDO the candidate apply with the office of DM ; the caste certificate issued by the DM is used for the job out of State; all the entries pertaining to the issuance of the caste certificate are maintained in the office of DWO.
Digitally signed byCBI Vs. Jai Shankar Prasad RAJESH RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:18:38 +0530 Page no. 25 of 81 Date of decision 13.03.2023
33. PW4 Sh. Rabindra Singh further deposed that the letter dated 07.03.2009, bearing no.72 addressed to SI, CBI,ACB, New Delhi ExPW3/A bears signature of Sh. Prakash Kumar, the then Deputy Development Commissioner at point A and he identifies his signature as he had worked under him and seen him signing and writing during his course of duty. PW4 further deposed that vide that letter, their office has also provided information which is mentioned at point no. A to A 1 alongwith two separate sheets ExPW3/B(colly) .
34. PW4 Sh. Rabindra Singh further deposed that at serial no.152 on ExPW3/B (colly), the certificate was issued to Shri. Ashok Kumar Shah s/o Ram Nath Shah on 17.4.1991, which is verified by the DWO at point A and at the same serial number,on page no.2 of ExPW3/B there is caste certificate dated 24.4.1991 issued in respect of Sh.Hareshwar s/o Vidhata Sah. PW4 deposed that the caste certificate no.152 of respondent/accused has not been issued by the DM Office; Nooniya caste comes under most backwrd class. Nonia caste does not comes under the SC Category.
35. Although, PW4 Sh. Rabindra Singh was also cross examined but even during his cross examination, CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:18:49 +0530 Page no. 26 of 81 Date of decision 13.03.2023 respondent/accused could not dent his testimony on the material points. Even during his cross examination, PW4 replied that he had verified the caste certificate of respondent/accused from the Caste Certificate Issuing Register of the year 1991; the ExPW3/B ( Colly) is part of the ST Register pertaining to the year 1991; there are separate Caste Certificate Issuance Register for different categories. Interestingly, one of the reply given by PW4 during his cross examination that " I have not brought the said caste issuance certificate register of the year 1991, from where I verified the genuineness of the caste certificate of the respondent/accused" would suggest that respondent/accused has taken a strong objection for not producing of original Caste Certificate Issuing Register but he has not challenged the fact that such a register actually exists and PW4 had compared the Caste Certificate in question with that register. Further, PW4 has denied the suggestion that the Caste Certificate of respondent/accused Jai Shankar Prasad is genuine and Khariya tribe is found in District Saran.
36. In this line, prosecution has examined one more witness as PW10. PW10 Sh. Shiv Kumar Majhi deposed that letter no.136 dated 5.3.2009, is in his hand writing and signed by Shri. Vinod Prasad Singh, the then BDO at point A. The letter is ExPW10/A and he can identify the signature of Sh. Vinod Prasad Singh at point A. PW10 CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:19:00 +0530 Page no. 27 of 81 Date of decision 13.03.2023 further deposed that vide above letter, his office has informed that respondent/accused belongs to Nonia Caste and this caste comes under OBC Category. No person of the "Kharia" caste resides in District Saran, Chhapra, Bihar.
37. PW10 was also cross examined by the Ld. Counsel for the respondent/accused but again his testimony also has gone unrebutted on important points. The only cross examination was that 'Nonia' caste is known by different names including "kharia". Respondent/accused has not disputed the letter dated 5.3.2009 ExPW10/A.
38. PW11 Sh. Manoj Kumar is the IO of the present case. He has also supported the case of the prosecution in this regard. He deposed that the letter ExPW3/A was received by him from Jila Padadhikari Saran Chhapra regarding his query pertaining to issuance of caste certificate to respondent/accused . Alongwith said letter, he had also received the attested copies of register and the documents ExPW3/B(colly). PW11 further deposed that he also received a letter ExPW10/A by way of which the caste of respondent/accused has been certified by Prakhand Vikas Padadhikri Marhoura.
CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH
RC No. DAI-2009-A-0012
RAJESH KUMAR GOEL
Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:19:13 +0530 Page no. 28 of 81 Date of decision 13.03.2023
39. PW11 was also cross examined by Ld. Counsel for respondent/accused. During his cross examination, PW11 replied that he gave one letter in the DM office to verify the certificate of the respondent/accused. The official of the DM office checked the record and register, which was used to maintain the record of issuance of certificates and informed him that the certificate in question was not issued from their office. They provided the attested copies of the relevant pages of the register. PW11 denied the suggestion that the caste Kharia and Nonia pertains to the same class of people or that the respondent/accused belongs to Kharia caste. There is no contradiction at all regarding the deposition made by PW11 during his examination in chief as recorded herein above.
40. This takes me to the statements of respondent/accused Jai Shankar Prasad recorded under section 313 CrPC. While replying to a question that "PW3 Sh.Diwakar Singh handed over the verification report no.72 dated 7.3.2009 ExPW3/A to the CBI officer", respondent/accused stated that it is a matter of record. He has not disputed that no such investigation was carried out by the IO or no such verification report was handed over to the CBI officer.
CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH
RAJESH KUMAR GOEL
RC No. DAI-2009-A-0012
Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:19:23
+0530 Page no. 29 of 81
Date of decision 13.03.2023
41. Similarly, respondent/accused avoided to answer the question that " PW10 Sh. Shiv Kumar Majhi had written in his own handwriting a letter no.136 dated 5.3.2009, ExPW10/A, addressed to Sub Inspector, CBI. Said letter was signed by Sh. Vinod Prasad Singh, the then BDO and PW10 has identified his signature." Respondent/accused replied that question partly and stated that it is incorrect that no person of Kharia Caste resides in Distt Saran. Even during the statement recorded u/s 313 CrPC, respondent/accused has not denied investigation qua aforesaid three letters/ documents i.e ExPW3/A, ExPW3/B (colly) and ExPW10/A.
42. It is true that it is the duty of the prosecution to prove its case beyond reasonable doubts but at the same time, recording of statement of accused under section 313 CrPC is not mere a formality. It confers valuable right upon the accused to establish his innocence and can well be considered beyond statutory rights as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence.
43. This court is conscious of the fact that statement of accused recorded under section 313 CrPC solely by itself is not enough for conviction but can be used for corroboration CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:19:32 +0530 Page no. 30 of 81 Date of decision 13.03.2023 alongwith other evidence for conviction. In few cases, silence of accused particularly on material piece of incriminating evidence, leads to adverse inference against the accused.
44. Honble Supreme Court in Mohan Singh v. Prem Singh (2002) 10 SCC 236 , held that :
"27. The statement made in defence by the accused under Section 313 CrPC can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 CrPC cannot be made the sole basis of his conviction."
In this connection, reference may also be made to the judgments of this Court in Devender Kumar Singla v. Baldev Krishan Singla [(2005) 9 SCC 15 and Bishnu Prasad Sinha v. State of Assam [(2007) 11 SCC 467 . The abovementioned decisions would indicate that the statement of the accused under Section 313 CrPC for the admission of his guilt or confession as such cannot be made the sole basis for finding the accused guilty, the reason being he is not making the statement on oath, but all the same the confession or admission of guilt can be taken as a piece of evidence since the same lends credence to the evidence led by the prosecution.
45. In Prahlad v. State of Rajasthan, (2019) 14 SCC 438 , it was held by Hon'ble Supreme Court that:
11. No explanation is forthcoming from the statement of the accused under Section 313 CBI Vs. Jai Shankar Prasad RC No. DAI-2009-A-0012 RAJESH Digitally signed by RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:19:41 +0530 Page no. 31 of 81 Date of decision 13.03.2023 CrPC as to when he parted the company of the victim. Also, no explanation is there as to what happened after getting the chocolates for the victim. The silence on the part of the accused, in such a matter wherein he is expected to come out with an explanation, leads to an adverse inference against the accused.
46. In another case titled as Paul v. State of Kerala, (2020) 3 SCC 115, it was held by Hon'ble Supreme Court that:
20. We, therefore, have no hesitation in holding that a statement made by the accused under Section 313 CrPC even if it contains inculpatory admissions cannot be ignored and the court may where there is evidence available proceed to enter a verdict of guilt.
47. In view of the settled position of law, in the present case, the statement of respondent/accused recorded u/s 313 CrPC, lends credence to the case of the prosecution.
48. From the testimonies of prosecution witnesses particularly PW3 Sh Diwakar Singh, PW4 Sh Rabindra Singh, PW10 Sh. Shiv Kumar Majhi and PW11 Sh. Manoj Kumar(IO) coupled with the statement of accused recorded under section 313 CrPC, it stands established beyond reasonable doubt that following letters/documents were duly executed and were collected by the IO PW11 Sh.
Manoj Kumar, during the course of investigation :
CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:19:53 +0530 Page no. 32 of 81 Date of decision 13.03.2023 i. Verification Letter bearing no. 72/Kalyan dated 7.3.2009 ExPW3/A of Jila Padadhikari, Saran, Chhapra addressed to CBI/ACB, New Delhi ii. Documents ExPW3/B (colly) handed over by PW3 along with letter ExPW3/A which bears the signature of Sh. Surya Narayan Singh, the then District Welfare Officer at point A. iii. Letter no. 136 dated 5.3.2009 ExPW10/A of Prakhand Vikas Padadhikri Marhoura, Saran, addressed to S.I, CBI/ACB, New Delhi in relation to verification of caste certificate of respondent/accused Jai Shankar Prasad.
49. Now, the moot question is whether these documents stands proved or not? In my considered opinion, prosecution has been successful in proving above documents in accordance with law and consequently are admissible in evidence. Ld. Trial Court erred in not relying upon these material pieces of evidence and in not considering the same and misdirected itself that in the absence of non production of original Caste Certificate Issuing Register, these documents particularly ExPW3/B(colly) cannot be read in evidence. The reasons for such findings by this court are as under:
i. It has come on the record that there is a caste Certificate Certificate Issuing Register maintained by the office of DWO and as and when Caste CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:20:02 +0530 Page no. 33 of 81 Date of decision 13.03.2023 Certificate is issued, the relevant entry is made in that register.
ii. Respondent/accused has not disputed the existence of such register.
iii. The communications/documents ExPW3/A and ExPW3/B (colly) are based on that register. iv. Documents ExPW3/B (Colly) is the attested copies of the official record maintained by a government office in discharge of their official duties. v. PW3 Sh Diwakar Singh deposed that ExPW3/B(colly) bears signature of Sh.Surya Narayana Singh, the then Distt Welfare Officer at point A on each page and he identified the signature of Sh Surya Narayan Singh as he was conversant with the same during course of his official duty.
vi. Ld. Trial Court in para 37 of the Impugned Judgment observed that the document ExPW3/A is the report prepared by Jila Padhadhikari under his signature in pursuance of letter dated 6.3.2009 of the investigating agency. Interestingly, the Jila Padhadhikari was not cited as a witness nor was he examined during the examination of PWs. Moreover, PW3 in his deposition did not testified that he was conversant with the signature of Jila Padhadhikari. PW3 has not prepared the document ExPW3/A and he had merely handed over the same to the CBI officials.
It is true that PW3 Diwakar Singh has not identified the signature of Jila Padhadhikari on ExPW3//A. But PW4 Rabindra Singh, who was working as a statistical assistant in the office of SC and ST Welfare department has categorically stated that letter dated 7.3.2009 ExPW3/A bears signature of Sh. Prakash Kumar, the then Deputy Development Commissioner at CBI Vs. Jai Shankar Prasad RAJESH Digitally signed by RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:20:13 +0530 Page no. 34 of 81 Date of decision 13.03.2023 point A and he has worked under him and seen him signing and writing during course of his duties. It appears that Ld. Trial Court missed the aforesaid testimony of PW4 and same was not considered while giving its finding that document ExPW3/A has not been proved.
vii. PW10 Sh. Shiv Kumar Majhi deposed that letter no.136 dated 5.3.2009 ExPW10/A is in his handwriting and bears his initial at point B and the signature of Sh. Vinod Prasad Singh, the then BDO at point A. Another aspect of the present case missed by the Ld. Trial Court is this document ExPW10/A. The Impugned Judgment is silent about this document. Document ExPW10/A being important piece of evidence should have been considered by the Ld. Trial Court while appreciating the evidence.
viii. The Ld. Trial Court has ignored the documents ExPW3/A and ExPW10/A completely which clearly establishes the case of the prosecution, even if the attested copies of the Caste Certificate Issuing Register ExPW3/B( colly) are ignored. ix. It is also established that all those documents were handed over to the IO during the investigation. x. The context and the chain of sequence in executing these documents have been sufficiently clarified by the aforesaid witnesses.
xi. The prosecution witnesses have deposed about the contents of these documents. In case the contents of a document are proved in that eventuality nothing stops the court to read that document.Digitally signed by RAJESH
CBI Vs. Jai Shankar Prasad RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:20:22 +0530 Page no. 35 of 81 Date of decision 13.03.2023
50. Letter dated 7.3.2009, bearing no.72 ExPW3/A is verification report given to IO during investigation. This letter reads as under :
( original letter is in Hindi language but it has been translated by this court for easy reference) " Saran Collectorate, Chhapra (District Welfare Office) Letter No. 72/Lkalyan dated 07.03.2009 Sender:
District Office Saran, Chhapra( Bihar) To, Sub Inspector A.P.E/C.B.I/A.C.B Block No.4, C.G.O Complex Sub: Investigation of CBI, ACB, Delhi Case No.12(A)/09 : reg Sir,
1. In the caste certificate (copy enclosed) bearing no.152 dated 16.1.1991, attached with the letter, of Sh. Jai Shankar Prasad, father-Ch. Ramvhaal Prasad, Gram-Yado Rahimpur, Po- Madhuara, Distt-Saran, Chhapra Bihar, Bihar Caste Kharia is mentioned, has not been issued from this office.
2. The registers about caste certificates issued in respect of STs in year 1991 are available in the Registration office. One register pertains to the certificates issued at the level of District Officer and the other one at the level of District Welfare Officer. In both the registers, at Sl No.152, there is no caste certificate issued in respect of Sh. Jai Shankar Prasad, S/o Sh.
Ram Bahal Prasad, Caste-Khadiya. Rather, in one register, at serial no.152, there is cste certificate dated 17.4.1991 issued in respect of Sh.Ashok Kumar Sah s/o Ramnath Sah, and in the other register, at the same serial number, there is caste certificate dated 24.4.1991 issued in respect of Sh.Areshwar s/o Vidhata Sah, Caste-Gond, attested copies of relevant pages pertaining to these certificates are attached herewith.
3. Attested copies of lists notified by the Government pertaining to SCs/STs are attached herewith.
4. Any document authorizing issuance of caste certificate on 16.1.1991, is not available in this office, however, during the said period, in Saran District, Sh. Vyas Ji was posted and working as District Officer and Sh.Ram Avatar Shrivastava as District Welfare Officer.
Encl: as above Yours faithfully
sd/-
(District Officer)
Saran, Chhapara
Digitally signed by RAJESH
CBI Vs. Jai Shankar Prasad RAJESH KUMAR GOEL
RC No. DAI-2009-A-0012 KUMAR GOEL Date: 2023.03.13 16:20:33
+0530
Criminal Appeal No. 01/2023 Page no. 36 of 81
Date of decision 13.03.2023
51. Letter bearing no. 136 dated 5.3.2009 ExPW10/A is also relevant. It reads as under :
( original letter is in Hindi language but it has been translated by this court for easy reference) Office of Block Development Officer:) letter no. 136 dated 5/3/09 From ;
Block Development Officer, Madhaura, Saran To, Sub Inspector S.P.E/C.B.I/A.C.B Lodhi Road, New Delhi Sub: Regarding caste certificate check Sir, Regarding your letter number RC 12(A)/2009-DLO, CBI,ACB, New Delhi on the captioned subject.
1. Based on the report of revenue employee and Circle Inspector, Madhaura, Mr. Jaishankar Prasad father Mr. Ram Bahal Prasad Village Yado Rahimpur Post + Police Station Madhaura District Saran Chhapra belongs to caste Nonia which comes under extremely backward caste.
2. Such village wise caste list is not there in the block office.
3. No person of Kharia caste of scheduled caste lives in the village Yado Rahimpur.
4. A copy of the caste list issued by the Government of Bihar is attached.
Therefore sent for information and necessary work.
Your faithfully sd/-
(Block Development Officer) Madhaura, Saran CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:20:43 +0530 Page no. 37 of 81 Date of decision 13.03.2023
52. In the background of the aforesaid facts, I have no hesitation to accept the case of the prosecution that documents ExPW3/A, ExPW3/B(colly) and ExPW10/A stands proved beyond reasonable doubt.
53. The letter ExPW3/A is a verification report given to IO (PW11 Manoj Kumar) during investigation. This communication clearly states that the Caste Certificate ExPW1/C( ExPW6/B) has not been issued from their office i.e District Welfare Office. In the said communication, it has been clarified that one register maintained by the office pertains to the certificates issued at the level of District Officer and other one at the level of District Welfare Officer. In both the registers, at serial no.152, there is no Caste Certificate issued in respect of respondent/accused.
54. The documents ExPW3/B (Colly) are the attested copies of relevant pages of the aforesaid two registers. It has come on the record that the first page of ExPW3/B(colly) indicates that the caste certificate at serial no.152 was issued to Sh. Ashok Saha s/o Ram Nath Saaha on 17.4.1991, which was verified by the DWO at point A and as per the second page of ExPW3/B( colly), the certificate was issued to Shri Hareshwar Shah s/o Vidhadta Shah on 24.4.1991 verified by the DWO at point A. Here it CBI Vs. Jai Shankar Prasad RC No. DAI-2009-A-0012 RAJESH Digitally signed by RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:20:53 +0530 Page no. 38 of 81 Date of decision 13.03.2023 is pertinent to mention that PW4 Rabinder Singh has clarified that above mentioned two registers are maintained for two different catergory of caste. One register pertains to ST category and second one was for other category. That the verification in connection with the verificiaton of Caste Certificate is done at the BDO level and ExPW3/B(colly) is part of the ST register pertaining to the year 1991.
55. Letter No. 136 dated 5.3.2009, ExPW10/A was written by Prakhand Vikas Padhadhikari( Block Development Officer). This letter also stands proved. It says that respondent/accused belongs to caste "Nonia" which comes under extremely backward caste. It further says that no person of Kharia caste of Scheduled Caste lives in the village Yado Rahimpur.
56. Attested copies of official record maintained by Competent Authority, can be read in evidence in the given circumstances. Further, it does not materially affect the case of the prosecution as to who had actually verified the caste certificate from the Caste Certificate Issuing Register. It is true that the testimony of few prosecution witnesses was little bit wavering on the point as to actually who had verified the caste certificate with the Caste Certificate Issuing Register but at the same time, it is not a material CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date:
+0530 2023.03.13 16:21:03 Page no. 39 of 81 Date of decision 13.03.2023 contradiction which may be treated as an event demolishing the entire case of prosecution. The case pertains to the year 2009 and during that period investigation was carried out. The aforesaid communications were handed over to the IO during the year 2009 itself. Prosecution witnesses have been examined after a lapse of considerable time After such a long gap one cannot be expected to keep the memory intact regarding minute investigation carried out by the investigating agency. In such situations, minor discrepancies in the testimony of prosecution witnesses are bound to happen which cannot be a basis for throwing the case of the prosecution. A person may tell a lie but not the document.
57. As noted, one of the reasons given by Ld. Trial Court in the impugned judgment acquitting the respondent/accused, was that original Caste Certificate Issuing Register was neither seized nor produced before the court and the relevant witness has not been examined. For the sake of convenience, the relevant extract of the observation of Ld. Trial Court noted in various para's of the impugned judgment, is reproduced as under:
"30.. In the present case, ExPW3/B(colly) are the photocopies of the caste issuance register and the original caste issuance register was not seized by the IO during the investigation nor produced before this court at the time of CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:21:12 +0530 Page no. 40 of 81 Date of decision 13.03.2023 recording of evidence. No explanation has been given for not producing the original caste issuance register at the time of recording of evidence and there is nothing on record to show that any attempt was made by the investigating agency to recover/seize the original caste issuance register at the time of investigation. Simply attested copies of original caste issuance register were collected by the IO from PW3 Diwakar Singh,during investigation and were filed with the chargesheet."
"32.......... Attested copies of the caste certificate issuing register were exhibited as ExPW3/B(Colly) bearing the signature of Surya Narayan Singh, District welfare Officer which were duly identified by this PW. However, in the present case for the best reasons known to the prosecution neither the District Welfare Officer and Zila Padadhikari were cited as witness nor examined and the Caste Issuance Register was never brought before this court nor it was seized by investigating officer. ....."
" 34....it is not the case of CBI/prosecution that caste issuance register was not available during the course of investigation. For the reasons best known to the IO he did not deem it proper to seize the same....."
"37. Furthermore, the document Exhibited as ExPW3/A is the report prepared by the Zila Padadhikari under his signatures, in pursuance of letter dated 06.03.2009 of the investigating agency. Interestingly, the Zila Padadhikari was not cited as a witness nor was he examined during the examination of PWs. Moreover, PW3 in his deposition did not testified that he was conversant with the signatures of Zila Padadhikari.PW3 has not prepared the document Ex.PW3/A. PW3 had merely handed over ExPW3/A to CBI official alongwith ExPW3/B(Colly). In view of the same, CBI Vs. Jai Shankar Prasad RAJESH Digitally signed by RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:21:22 +0530 Page no. 41 of 81 Date of decision 13.03.2023 the document ExPW3/A has not been proved in accordance with law."
58. The main reason given by the Ld. Trial Court is that original Caste Certificate Issuing Register was not produced and no efforts were made by prosecution to examine that witness.
59. The record would indicate that during the pendency of the present case, prosecution had moved an application u/s 91 r/w 311 CrPC. The application dated 7.4.2022, is lying on the record. In para 6 of that application it is stated that "the Dy. Development Commissioner Shri Prakash Kumar who has issued the letter dated 7.3.2009(D-4) and the then Zila Padhadhikari,Chhapra, Saran whose purported signature was affixed on the fake caste certificate are required to be examined for the just decision of the case." and accordingly prayer was made to summon the said witnesses alongwith original Caste Certificate Issuing Register. That application came to be dismissed by Ld. Trial Court vide order dated 21.5.2022. Ld Trial Court observed that "... it is clear that the instant application has been moved at the belated stage when the matter was fixed for orders/clarification, if any. Prosecution was having ample time to move the instant application at any of the previous stages of the trial as it is evident that recording of PE took almost eight years. However, for the reasons best known to the prosecution no such CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:21:32 +0530 Page no. 42 of 81 Date of decision 13.03.2023 application as is being adjudicated today was not filed.". After placing reliance on a judgment in case titled as Raghunath Prasad V State of Rajasthan reported As 1997 CrI.L.J 2219 (Rajasthan High Court) Jaipur Bench), said application was dismissed.
60. During the argument, Ld. PP for CBI made a reference to that order and has challenged the same stating that in view of the recent judgment of Hon'ble Supreme Court in a case titled as Varsha Garg vs State of Madhya Pradesh and ors, 2022 SCC OnLine SC 986 ,even if there is an attempt to fill up the lacuna, such application cannot be dismissed.
61. One of the reasons given by the Ld. Trial Court while deciding the above application moved u/s 91 r/w Section 311 Cr.P.C was that application was moved at belated stage at the time when matter was fixed for order/clarification, if any.
62. It is true that vide order dated 5.4.2022, Ld. Trial Court adjourned the case for "clarification, if any/order for 11.4.2022. thereafter, instant application was filed which was dismissed vide order dated 21.5.2022 and since there was change of Presiding Officer, the case was notified for final argument for various dates and finally impugned CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:21:42 +0530 Page no. 43 of 81 Date of decision 13.03.2023 judgment was announced on 17.8.2022. This all indicates that even after of disposal of application of prosecution moved u/s 91 r/w section 311 CrP.C, the case was adjourned for final argument or clarification for around seven dates.
63. Next question for consideration is that whether such an application can be moved at the stage of final argument or not. The answer is "Yes" as there is no as such bar or legal prohibition.
64. Section 311 of the Code of Criminal Procedure, 1973 (for short "the Code") provides for the power of the court to summon material witness or examination of a person present. It reads as follows:
"311. Power to summon material witness, or examine person present.--Any court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case."
65. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:21:53 +0530 Page no. 44 of 81 Date of decision 13.03.2023 namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.
66. Bare reading of the aforesaid section reveals that it is of a very wide amplitude and if there is any negligence, laches or mistakes by not examining material witnesses, the court's function to render just decision by examining such witnesses at any stage is not, in any way, impaired.
67. Hon'ble Supreme Court in Rajendra Prasad v. Narcotic Cell (1999) 6 SCC 110 observed that:
"After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."
68. In another case, as relied upon by the Ld. PP for the CBI, titled as Varsha Garg Vs State of Madhya Pradesh and Others, Crl Appeal no. 1021/2022, date of decision August,8,2022, Honble Supreme Court held that:
CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:22:03 +0530 Page no. 45 of 81 Date of decision 13.03.2023 "31. Summing up the position as it obtained from various decisions of this Court, namely Rameshwar Dayal v. State of U.P (1978) 2 SCC
518., State of W.B. v. Tulsidas Mundhra (1963) Supp1SCR1, Jamatraj Kewalji Govani v. State of Maharashtra(1967) 3SCR415, Masalti v. State of U.P.(1964) 8SCR133, Rajeswar Prosad Misra v.
State of W.B (1966) 1SCR178 and R.B. Mithani v. State of Maharashtra(1971)1SCC523, the Court held:
"27. The principle of law that emerges from the views expressed by this Court in the above decisions is that the criminal court has ample power to summon any person as a witness or recall and re-examine any such person even if the evidence on both sides is closed and the jurisdiction of the court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case."
32 The power of the court is not constrained by the closure of evidence. Therefore, it is amply clear from the above discussion that the broad powers under Section 311 are to be governed by the requirement of justice. The power must be exercised wherever the court finds that any evidence is essential for the just decision of the case. The statutory provision goes to emphasise that the court is not a hapless bystander in the derailment of justice. Quite to the contrary, the court has a vital role to discharge in ensuring that the cause of discovering truth as an aid in the realization of justice is manifest.
33. Section 91 CrPC empowers inter alia any Court to issue summons to a person in whose possession or power a document or thing is CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:22:13 +0530 Page no. 46 of 81 Date of decision 13.03.2023 believed to be, where it considers the production of the said document or thing necessary or desirable for the purpose of any investigation, inquiry, trial or other proceeding under the CrPC.
34. Section 91 forms part of Chapter VII of CrPC which is titled "Processes to Compel the Production of Things". Chapter XVI of the CrPC titled"Commencement of Proceedings before Magistrates" includes Section 207 which provides for the supply to the accused of a copy of the police report and other documents in any case where the proceeding has been instituted on a police report. Both operate in distinct spheres."
69. In another case titled as Godrej Pacific Tech Limited Vs. Computer Joint India Limited, reported as (2008) 11 SCC 108 , Hon'ble Supreme Court observed that "the resultant filing of loopholes on account of allowing an application u/s 311 is merely a subsidiary factor and the court's determination of the application should only be based on the test of the essentiality of the evidence."
70. In the present case also application was moved u/s 91 r/w section 311 CrPC making a request to produce original Caste Certificate Issuing Register. Said register was relevant as observed by Ld. Trial Court. In view of the aforesaid judgments, the reasons assigned by Ld. Trial Court while dismissing the said application, cannot be confirmed by this Court particularly the observation of Ld. CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:22:25 +0530 Page no. 47 of 81 Date of decision 13.03.2023 Trial Court that no effort was made by prosecution to examine the relevant witness to produce the original Caste Certificate Issuing Register.
71. This takes me to the next question as to how to deal with it at this stage. In such situation, this court being the appellate court has power to summon the requisite record and also to summon the relevant witness, as u/s 391 CrPC, additional evidence can be taken by the Appellate Court. The present case pertains to the year 2009. This court has already given findings that even if the original Caste Certificate Issuing Register was not produced, still there are sufficient reasons to consider the attested copies of that register as contents of those documents, as such have not been disputed and the same have been deposed by the prosecution witnesses. That being so, it would be a futile exercise in case this court asks for additional evidence in this regard.
72. Another important aspect of the present case is that during the investigation, the house of the respondent/accused, was searched and the caste certificate belonging to real brother of respondent /accused was recovered wherein it is mentioned that he belongs to OBC category issued for Nonia caste. PW2 Sh. Jai Kishor Singh CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:22:35 Page no. 48 of 81 +0530 Date of decision 13.03.2023 is a witness to search carried out by the CBI at one of the houses of respondent/accused situated at Bihar. He deposed that on 5.3.2009, the CBI team having search warrants issued by the Delhi Court reached the village Yado Rahim Pur, P.S Marhowrah, Distt Saran, Chhapra, Bihar. He alongwith his colleague joined the CBI team where, he also came to know that the search was going to be conducted at the residential premises of respondent/accused Jai Shankar Prasad. Search was carried out and certificates alongwith certain documents were seized from the spot. On the recovered documents, he as well as his colleague Shyam Bahadur put their signatures. Search memo is ExPW2/A; The document D-10 ExPW2/B was recovered from the spot and in token of the recover of this document, he put his signatures at point A; Another document D-11 ExPW2/C was recovered from the spot and in token of the recovery of the same, he put his signature at point 'A1'; Document D- 12 ExPW2/E was also recovered from the spot which bears signature of Sh. Shyam Bahadur at point A and he can identify his signatures as he had worked with him and is conversant with his signatures during course of his official duty.
73. Even during his cross examination, above deposition was not disputed by the respondent/accused. PW9 Sh.
CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:22:48 +0530 Page no. 49 of 81 Date of decision 13.03.2023 Shyam Bahadur Baitha is another witness who accompanied the IO during aforesaid search. He deposed that he was posted as Postal Assistant in the office of Senior Post Master Chapra, HPO in the year 2009. He is the witness to the search conducted by the CBI on 05.03.2009 at the residential premises of respondent/accused Jai Shankar Prasad at Yado Rahim Pur, PS Marhowrah, Distt. Saran, Chapra, Bihar. He deposed that he alongwith his colleague Sh. Jai Kishor Singh, the then Accountant, Head Post Officer, Chapra were directed to join the search conducted by the CBI; he alongwith Sh. Jai Kishor Singh and Sh. Golden Kumar, SHO, PS Marhowrah joined the CBI search team; Certain documents were seized from the spot and search memo ExPW2/A was prepared which bears his signature at point C and signature of his colleague Sh. Jai Kishore Singh at point B; items recovered during the search of the house of the respondent/accused is mentioned on page 2, at point 1 on seizure memo ExPW2/A; document D-10 photocopy of caste certificate in the name of Sh. Nath Nain Prasad issued under OBC category ExPW2/B, D-11 original application form of Sh. Nath Nain Prasad, ExPW2/C and ExPW2/D(two pages of one application form), D-12 Original Caste certificate of Sh. Nath Nain Prasd ExPW2/E were recovered from the house situated at Bihar CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:22:57 +0530 Page no. 50 of 81 Date of decision 13.03.2023 of the respondent/accused; he and his colleague Sh. Jai Kishore Prasad signed upon the recovered documents as token and he identified the signature of Sh.Jai Kishore Prasad as he had worked under him and is conversant with his signature.
74. PW9 was also cross examined by the Ld. Counsel for the respondent/accused. Respondent/accused has not challenged the aforesaid testimony of PW9 Sh. Shyam Bahadur Baitha. Testimony of PW2 and PW10 find corroboration and support from the testimony of PW11 Sh. Manoj Kumar, IO of the present case. He has deposed on the lines of PW2 and PW9 in this record.
75. Even the respondent/accused during his statement recorded under section 313 CrPC has not denied that above search was carried out and the above mentioned documents were recovered. Recovery of these documents and their genuineness has not been challenged by the respondent/accused.
76. What are those documents? Document ExPW2/B is form of certificate to be produced by other backward classes applying for appointment to posts under the Govt. of India. Document ExPW2/C is the application form and CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:23:06 +0530 Page no. 51 of 81 Date of decision 13.03.2023 ExPW2/E is the caste certificate belonging to real brother of respondent/accused namely Shri Nath Nayan Prasad. In all these documents the cast of Shri Nath Nayan Prasad, who admittedly is real brother of respondent/accused, has been shown as belonging to Nonia caste which comes under OBC Category. It has been established beyond reasonable doubt that real brother of respondent/accused namely Shri Nath Nayan Prasad belongs to Nonia caste which comes under OBC category. That being so, how respondent/accused being the real brother of Shri Nath Nayan Prasad claims that he belongs to different caste. In the background of findings of this court that caste certificate used by him is forged.
77. Further PW8 Sh Raja Gopalan deposed that he was posted as Senior Investigating Officer, Vigilance Department, Delhi Jal Board in the year 2009 and he had conducted a departmental inquiry in respect of the respondent/accused regarding verification of the caste certificate of the respondent/accused; handed over the personal file and service book of respondent/accused to the CBI while seizure memo dated 20.05.2009; on 26.5.1992, the respondent/accused had joined Delhi Jal Board as APD, against ST category and had submitted attested photocopy Digitally signed by CBI Vs. Jai Shankar Prasad RAJESH RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 KUMAR GOEL Date: 2023.03.13 Criminal Appeal No. 01/2023 16:23:14 +0530 Page no. 52 of 81 Date of decision 13.03.2023 of his ST caster Certificate No. 152 dated 16.01.1991, Ex. PW1/C(ExPW6/B).
78. PW8 Sh. Raja Gopala was cross-examined by the Ld. Counsel for the respondent/accused. Even during his cross examination, PW8 replied that he had conducted the departmental inquiry on the directions of Sh. R.S Godbole, the then Addl Director (Vigilance). At the time of recording of Statement of accused u/s 313 CrPC, a question was put to him in this regard as well. For the sake of convenience, the question and his answer to that are reproduced herein under :
"Q.4 It is in evidence against you that in the year 2009, he conducted the departmental enquiry in respect of verification of your caste certificate on the basis of which you had secured the post of APD in Delhi Jal Board under ST quota . During investigation, it was established that you did not belong to ST category. The witness handed over your personal file and service book to CBI vide seizure memo dated 20.5.2009. What you have to say?
A. It is correct that departmental enquiry in respect to verification of my caste certificate was conducted. It is incorrect that I do not belong to ST category. It is correct the witness handed over my personal file and service book to CBI vide seizure memo dated 20.5.2009."
79. This shows that the factum of enquiry as conducted by Delhi Jal Board and its findings that respondent/accused CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:23:23 +0530 Page no. 53 of 81 Date of decision 13.03.2023 does not belong to ST category has not been disputed even by the respondent/accused. There is nothing on record that said findings was ever challenged by respondent/accused before any Court or Tribunal. It is true that no conviction can be based solely upon such departmental enquiry also but it can be used by prosecution to lend credence to the case of prosecution.
80. One of the observation of the Ld. Trial Court, while acquitting the respondent/accused was that caste certificate ExPW1/C (PW6/B) was not sent for scientific examination. In the present case, initially FIR ExPw11/A was registered under section 420/468/471/473 IPC but after conclusion of investigation, the chargesheet has been filed for prosecuting the respondent/accused for the offences u/s 420/471 IPC only. Section 468 and 473 IPC were removed. It is not that all of a sudden above sections were deleted. The reason was that during the investigation it could not be established as to who had actually forged the said caste certificate used by the respondent/accused . Even the respondent/accused was charged for the offence u/s 420/471 IPC only.
81. That being so, no purpose was going to be served by sending the said document for expert opinion as questioned CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:23:36 +0530 Page no. 54 of 81 Date of decision 13.03.2023 documents need comparison with the admitted or/and specimen signatures/writings, which is not there in the present case. Moreover, the opinion of such an expert, would have been merely an opinion and not a substantial piece of evidence. Where there are other direct material evidence available on record, even if opinion of an expert is not there, it would not make any difference.
82. During the argument, Ld. Counsel for the respondent/accused has taken me to the cross examination of PW1 namely Manik Chand Verma who was posted as a Head Clerk in Delhi Jal Board during the relevant time. PW1 has deposed about submission of attestation form ExPW1/A by respondent/accused in the office of Delhi Jal Board at the time of taking the appointment at the post of Assistant Pump Driver. During the cross examination, PW1 replied that aforesaid attestation form ExPW1/A was duly sent to the office of District Magistrate Chhapra, Bihar and received back in the office of Delhi Jal Board after due attestation from the said office. In this regard, I may mention that the said attestation form has been verified with regard to the antecedent and character of the respondent/accused. There is no specific verification about the caste of the respondent/accused, as mentioned in that CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 Page no. 55 of 81 16:23:47 +0530 Date of decision 13.03.2023 attestation form. Therefore, respondent/accused cannot take any benefit from this.
83. Respondent/accused has examined two witnesses in his defence. DW1 Gurpreet Singh deposed that son of the accused Vishal Kumar being his school mate and friend and they are known to each other since the year 2010; his friend told him that he belongs to kharia/nonia case from Bihar. DW2 Ranjan has also deposed almost on the same line of DW1. Both these witnesses were cross examined by the Ld. PP for the CBI. Even the testimonies of these witnesses, cannot save the respondent/accused from vigour of the present case. Both these witnesses have merely deposed on the basis what was told to them by the son of the respondent/accused. Their testimony is hearsay evidence and has no values in the eyes of law.
84. In view of my aforesaid discussion, this Court is of the considered opinion that the aforesaid letters/documents ExPW3/A, ExPW3/B(Colly) and ExPW10/A, are admissible in evidence, consequently making it crystal clear that the Caste Certificate ExPW1/C (PW6/B) was never issued to the present respondent/accused and the same is forged and fabricated.
CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH
RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL
Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:23:56
+0530 Page no. 56 of 81
Date of decision 13.03.2023
85. The next point for consideration is that what is the effect of the directions passed in the case of Kumari Madhuri Patil Case(Supra).
86. In Kumari Madhuri Patil's case (Supra), Hon'ble Supreme Court found that spurious tribes and persons not belonging to Scheduled Tribes were snatching away the reservation benefits given to genuine tribals, by claiming to belong to the Scheduled Tribes. Hon'ble Court found that the admission wrongly gained or appointment wrongly obtained on the basis of false caste certificates had the effect of depriving the genuine Scheduled Castes or Scheduled Tribes of the benefits conferred on them by the Constitution. It also found that the genuine candidates were denied admission to the educational institutions or appointments to posts under the State, for want of social status certificate; and that ineligible or spurious candidates who falsely gained entry resorted to dilatory tactics and created hurdles in completion of the inquiries by the Scrutiny Committee, regarding their caste status. Hon'ble Court further noticed that admissions to educational institutions were generally made by the parents, as the students will be minors, and they (parents or the guardians) played fraud in claiming false status certificate.
CBI Vs. Jai Shankar Prasad Digitally signed by
RC No. DAI-2009-A-0012
RAJESH RAJESH KUMAR GOEL
Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13
16:24:05 +0530 Page no. 57 of 81
Date of decision 13.03.2023
87. Hon'ble Supreme Court was therefore of the view that the caste certificates issued should be scrutinised with utmost expedition and promptitude. To streamline the procedure for the issuance of caste (social status) certificates, their scrutiny and approval, Hon'ble Court issued the fifteen directions, relevant portions of which are extracted below:
"
i. 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.
ii. 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.
iii. 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. iv. 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 intimated knowledge in identifying the tribes, tribal CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:24:14 +0530 Page no. 58 of 81 Date of decision 13.03.2023 communities, parts of or groups of tribes or tribal communities.
v. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into the social status claims. vi. 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 acknowledgment due or through the head of the educational institution concerned in which the candidate is studying or employed. 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-à-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
vii. 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.
viii. 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. ix. 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.
CBI Vs. Jai Shankar Prasad RAJESH Digitally signed by RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:24:23 +0530 Page no. 59 of 81 Date of decision 13.03.2023 x. 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.
xi. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
xii. No suit or other proceedings before any other authority should lie.
xiii. 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.
xiv. 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.
xv. 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 acknowledgment due with a request to cancel the admission or the appointment. The Principal, etc. of the educational institution responsible for making the CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:24:32 +0530 Page no. 60 of 81 Date of decision 13.03.2023 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."
88. The aforesaid directions were confirmed by Hon'ble Supreme Court in another case Dayaram v. Sudhir Batham, (2012) 1 SCC 333, with slight modification. For the sake of convenience relevant paras of this judgment are reproduced as under:-
"33. The assumption that para 15 of Madhuri Patil's case extracted above curtails the power of judicial review under Article 226 is not correct. It is inconceivable to even think that this Court, by a judicial order would curtail or regulate the writ jurisdiction of the High Court under Article 226. All that para 15 of Madhuri Patil's case does is to draw attention to the settled parameters of judicial review and nothing more. We make it clear that nothing in para 15 of the decision in Madhuri Patil's case shall be construed as placing any fetters upon the High Court in dealing with writ petitions relating to caste certificates.
34. Each Scrutiny Committee has a vigilance cell which acts as the investigating wing of the committee. The core function of the Scrutiny Committee, in verification of caste certificates, is the investigation carried on by its vigilance cell. When an application for verification of the caste certificate is received by the Scrutiny Committee, its vigilance cell investigates into the claim, collects the facts, examines the records, examines the relations or friend and persons who have knowledge about the social status of the candidate CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:24:40 +0530 Page no. 61 of 81 Date of decision 13.03.2023 and submits a report to the committee. If the report supports the claim for caste status, there is no hearing and the caste claim is confirmed. If the report of the vigilance cell discloses that the claim for the social status claimed by the candidate was doubtful or not genuine, a show-cause notice is issued by the committee to the candidate. After giving due opportunity to the candidate to place any material in support of his claim, and after making such enquiry as it deems expedient, the Scrutiny Committee considers the claim for caste status and the vigilance cell report, as also any objections that may be raised by any opponent to the claim of the candidate for caste status, and passes appropriate orders.
35. The Scrutiny Committee is not an adjudicating authority like a court or tribunal, but an administrative body which verifies the facts, investigates into a specific claim (of caste status) and ascertains whether the caste/tribal status claimed is correct or not. Like any other decisions of administrative authorities, the orders of the Scrutiny Committee are also open to challenge in proceedings under Article 226 of the Constitution. Permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this Court wanted to eradicate. As this Court found that a large number of seats or posts reserved for the Scheduled Castes and Scheduled Tribes were being taken away by bogus candidates claiming to belong to Scheduled Castes and Scheduled Tribes, this Court directed the constitution of such Scrutiny Committees, to provide an expeditious, effective and efficacious remedy, in the absence of any statute or a legal framework for proper verification of false claims regarding SCs/STs status. This entire scheme in Madhuri Patil's case will only CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:24:48 +0530 Page no. 62 of 81 Date of decision 13.03.2023 continue till the legislature concerned makes an appropriate legislation in regard to verification of claims for caste status as SC/ST and issue of caste certificates, or in regard to verification of caste certificates already obtained by candidates who seek the benefit of reservation, relying upon such caste certificates.
36. Having regard to the scheme for verification formulated by this Court in Madhuri Patil's the Scrutiny Committees carry out verification of caste certificates issued without prior enquiry, as for example, the caste certificates issued by Tahsildars or other officers of the departments of Revenue/Social Welfare/Tribal Welfare, without any enquiry or on the basis of self-affidavits about caste. If there were to be a legislation governing or regulating grant of caste certificates, and if caste certificates are issued after due and proper inquiry, such caste certificates will not call for verification by the Scrutiny Committees. Madhuri Patil's case provides for verification only to avoid false and bogus claims. The said scheme and the directions therein have been satisfactorily functioning for the last one-and-a-half decades. If there are any shortcomings, the Government can always come up with an appropriate legislation to substitute the said scheme. We see no reason why the procedure laid down in Madhuri Patil's case should not continue in the absence of any legislation governing the matter.
44. In view of the above, we hold that the second sentence of Direction 13 of Madhuri Patil's providing that where the writ petition is disposed of by a Single Judge, no further appeal would lie against the order of the Division Bench (even when there is a vested right to file such intra-court appeal) and will only be subject to a special leave under Article 136, is not legally proper and Digitally signed by CBI Vs. Jai Shankar Prasad RAJESH RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 KUMAR GOEL Date: 2023.03.13 16:24:58 +0530 Criminal Appeal No. 01/2023 Page no. 63 of 81 Date of decision 13.03.2023 therefore, to that extent, is held to be not a good law. The second sentence of Direction 13 stands overruled. As a consequence, wherever the writ petitions against the orders of the Scrutiny Committee are heard by a Single Judge and the State law or Letters Patent permits an intra-court appeal, the same will be available.
89. In Kumari Madhuri Patil's case (Supra), the admission were taken by two sisters to the professional courses on the basis of false caste certificate on the basis of false caste certificate produced by them, which were cancelled after the report submitted by the verification committee to the effect that certificates produced by the appellants therein were false and the appellants did not belong to Scheduled Caste/Scheduled Tribes.
90. Here I may humbly mention that the directions issued in Kumari Madhuri Patil's case (Supra) are not applicable to the peculiar facts and circumstances of the present case. The reasons for saying so, are being discussed in subsequent para's.
91. There is difference between false caste certificate and fake/forged certificate. This we can understand by an example in the present context. Suppose there are two persons say 'A' and 'B'. Both claim that they belong to a particular community say for example 'ST' category. 'A' CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:25:08 +0530 Page no. 64 of 81 Date of decision 13.03.2023 applies for issuance of caste certificate claiming that he belongs to ST category to the competent authority and files certain documents which may not be genuine. The competent authority after verification or even without verification issues the caste certificate in favour of 'A' declaring that 'A' belongs to 'ST' category. But, whereas, 'B' does not apply to any Government agency or competent authority for issuance of such certificate and a certificate is created sitting at home. In such case the entire certificate is fake/forged as it was never issued by any Competent Authority. Later on, it is found that both these persons have secured some government job on the basis of said certificates. 'A' used the caste certificate duly issued by government agencies or office but obtained on the basis of false claim and 'B' used the caste certificate which was never issued to him. In that eventuality, in case of 'A' if need arises or the complaint is made or it is revealed otherwise, his certificate is required to be sent to Caste Scrutiny Committee constituted pursuant to the directions issued in Kumari Madhuri Patil's case (Supra) but not in the case of 'B'. Thus, there is lot of difference between getting the caste certificate issued on the basis of false claim and making a fake or forged caste certificate.
CBI Vs. Jai Shankar Prasad Digitally signed by
RC No. DAI-2009-A-0012
RAJESH RAJESH KUMAR GOEL
Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:25:17 +0530 Page no. 65 of 81 Date of decision 13.03.2023
92. The Scrutiny Committee so constituted, supposed to have vigilance cell as directed by Hon'ble Supreme Court. The Vigilance Cell will act as the investigating wing of the Committee. The core function of such Scrutiny Committee in verification of Caste Certificates is the investigation carried on by its vigilance cell. When one carry verification of caste certificate, it means caste certificate issued to a person by government but which may or may not be based upon false claims and documents. It does not mean verification of fake/forged caste certificate which was never issued.
93. Hon'ble Supreme Court in Dayaram case (Supra) in para no. 35, observed that "The Scrutiny Committee is not an adjudicating authority like a Court or Tribunal, but an Administrative body which verifies the facts, investigates into a specific claim (of caste status) and ascertains whether the caste/tribal status claimed is correct or not". It says about basically two things "verification of the facts"
and " investigation into a specific claim". Meaning thereby, a candidate has to submit certain facts while seeking issuance of a caste certificate. Those facts may be by way of an application accompanied by an affidavit and other documents and claim that he belongs to a particular caste. But when these two elements are missing, then what is to CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:25:25 +0530 Page no. 66 of 81 Date of decision 13.03.2023 be verified by the Scrutiny Committee. There is nothing to verify. The role of Scrutiny Committee would come into picture only when Caste Certificate has been issued and not in case it has been created /forged while sitting at home or in the office.
94. In Dayaram's case (Supra) in Para 36, Hon'ble Supreme Court observed that "Having regard to the scheme for verification formulated by this Court in Kumari Madhuri Patil, the Scrutiny Committees carry out verification of caste certificates issued without prior enquiry, as for example, the caste certificates issued by Tahsildars or other officers of the departments of Revenue/Social Welfare/Tribal Welfare, without any enquiry or on the basis of self-affidavits about caste".
95. Hon'ble Supreme Court in the above judgment has made it clear that the role of Scrutiny Committee is to carry out verification of caste certificate issued without prior enquiry only.
96. In the present case, respondent/accused has not claimed that the caste certificate in question ExPW1/C(ExPW6/B), was got issued by him or his parents by submitting some affidavit or application etc. The Digitally signed by CBI Vs. Jai Shankar Prasad RAJESH RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 KUMAR GOEL Date: 2023.03.13 Criminal Appeal No. 01/2023 16:25:35 +0530 Page no. 67 of 81 Date of decision 13.03.2023 defence taken by respondent/accused is on two counts. Firstly, Nonia caste is known by different names including 'Kharia' in the State of Bihar and there is Kharia Community in that State. This is not sufficient to throw the case of the prosecution.
97. Moreover, if the directions issued in Kumari Madhuri Patil's (Supra) are read in totality, one can say that it is the duty of the person, who claims that he belongs to a particular caste, to apply for grant of social category certificate. First direction says that application for grant of social status certificate shall be made to certain authorities but in the present case respondent/accused has not claimed that he had made any such application. Second condition requires filing of an affidavit by the parents/guardian or by the candidate which is also missing in the present case. Third condition which is very important, says 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. The respondent/accused has not claimed this also.
98. One may argue that it is the duty of prosecution to prove its case beyond reasonable doubt therefore, CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:25:45 Page no. 68 of 81 +0530 Date of decision 13.03.2023 respondent/accused cannot be asked for the same. No one can deny that settled principle of criminal jurisprudence that burden lies on prosecution to prove its case, but at the same time, it cannot also be denied that certain facts which are exclusively in the knowledge of accused, at least could have been mentioned at various opportunities available to the accused in a criminal trial to fetch the benefit of doubt. One such an opportunity is available at the time of recording of statement of accused under section 313 CrPC. As discussed in earlier paras of this order, respondent/accused remained silent to some material incriminating piece of evidence appearing against him or simply replied that "It is incorrect". At least he could have shown to the Court that he had applied for issuance of the caste certificate to a particular office in the State of Bihar on a particular day. There is not even a whisper as to who had applied for issuance of such certificate? when it was applied ? Where application was moved etc.? The said opportunity was available to him at the time of defence evidence also. At that stage also, nothing material was brought on record by him. Simply saying that the caste certificate is genuine would not be sufficient in the background of the fact that it has been proved beyond reasonable doubt that no such certificate was ever issued to him.
CBI Vs. Jai Shankar Prasad Digitally signed by
RC No. DAI-2009-A-0012
RAJESH RAJESH KUMAR GOEL
Criminal Appeal No. 01/2023 KUMAR GOEL Date:
+0530 2023.03.13 16:25:54 Page no. 69 of 81 Date of decision 13.03.2023
99. In a case titled as Sarvjeet Mahto vs State thr. CBI , (2013) 204 DLT (CN) 15, which has direct bearing on the present case, It was held by the Hon'ble High Court of Delhi.
"16. The petitioner in the present case got an employment at the post of peon against the scheduled tribe vacancy and in the said caste certificate he disclosed his caste as 'Kharia caste' which is enlisted as a Scheduled Tribe. It is after the said forgery was detected that the petitioner introduced this plea that 'Kharia caste' is interchangeable with 'Nonia caste' and therefore, 'Nonia caste' to which the petitioner belongs is also a Scheduled Tribe although it may not be specifically enlisted in the category of Schedule Tribe.
17. Undeniably, it is not the case of the petitioner that the 'Nonia caste' is also enlisted as a 'Scheduled Tribe' and his 'caste' falls under the 'Scheduled Tribe' category although prosecution on the other hand proved on record that 'Nonia' and 'Kharia' castes are two separate castes falling under two separate categories. The argument of the learned counsel for the petitioner raising a plea that 'nonia' and 'kharia' castes are interchangeable caste also merit outright rejection.
100. I am further fortified by the decision of another case in similar circumstances, titled as Bharat Singh Batham v. LIC, reported as (2021) 3 MP LJ 337, wherein it was held by the Hon'ble Court of Madhya Pradesh, that :
"40. Now the question for determination is that whether even a forged Caste Certificate is to be placed before High Power Caste Scrutiny Committee or not?
CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:26:03 +0530 Page no. 70 of 81 Date of decision 13.03.2023
101. Hon'ble High Court of M.P, by referring the directions given in the case of Kumari Madhuri Patil's Case(Supra) further held as under :
42. From the plain reading of above judgment, it is clear that whether a Caste Certificate is a false certificate or not is to be scrutinized by the High Power Caste Scrutiny Committee.
There is a difference between false Caste Certificate and forged Caste Certificate.
45. There is a difference between false certificate and forged certificate. False certificate would mean, that by misrepresenting or by giving false information to the competent authority, the aspirant has obtained a certificate from a competent authority, but the same is based on false evidence or information. Whereas the forged certificate would necessarily mean, that it was never issued by any competent authority, but it was created by the aspirant himself, with a sole intention to use the same as a genuine certificate.
46. Thus, it is clear that where the caste certificate was never issued by any competent authority, then there is no question of verification of the same. Only a caste certificate issued by a competent authority is required to be verified by the High Power Caste Scrutiny Committee. Thus, a forged caste certificate which was never issued by any competent authority is not required to be placed before the High Power Caste Scrutiny Committee. Although the petitioner has claimed in his writ petition, that the matter with regard to the verification of his caste certificate is pending before the High Power Caste Scrutiny Committee, but has not placed any document in support of his contention. During the course of arguments, it was submitted by Shri Kekre, that the complainant had approached the High Power Caste Scrutiny Committee in the year 2015 and the matter is pending before the Committee for the last more than 5 years, but in absence of any document in this regard, this Court cannot rely upon a bald statement made by the petitioner in his writ petition.
CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:26:10 +0530 Page no. 71 of 81 Date of decision 13.03.2023
47. In view of the above mentioned findings that the caste certificates relied upon by the petitioner are forged caste certificates and were never issued by the competent authorities, this Court is of the considered opinion, that the bar as contained in para 13.12 of judgment passed by the Supreme Court in the case of Madhuri Patil (Supra) would not apply and the respondents are well within their rights to proceed departmentally against the petitioner.
102. The net result of my aforesaid discussion is that Caste Certificate in the present case was not required to be sent to Scrutiny Committee as observed by the Ld. Trial Court in the impugned judgment.
103. Last but not the least, here it would be useful to refer the approach to be adopted while deciding an appeal against acquittal by the appellate court. Section 378 CrPC deals with appeals in case of acquittal.
104. In one of the earliest cases on the powers of the High Court in dealing with an appeal against an order of acquittal, the Judicial Committee of the Privy Council in Sheo Swarup vs. King Emperor, AIR 1934 PC 227 (2) considered the provisions relating to the power of an appellate court in dealing with an appeal against an order of acquittal and observed as under:
"16. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available CBI Vs. Jai Shankar Prasad RAJESH Digitally signed by RAJESH KUMAR GOEL RC No. DAI-2009-A-0012 KUMAR Date: 2023.03.13 Criminal Appeal No. 01/2023 GOEL 16:26:18 +0530 Page no. 72 of 81 Date of decision 13.03.2023 to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.
"... But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as: (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice."
It was stated that the appellate court has full powers to review and to reverse the acquittal.
105. After referring to a catena of judgments, Honble Supreme Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 ].
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:26:28 +0530 Page no. 73 of 81 Date of decision 13.03.2023 (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
106. Further, following the Constitution Bench decision (M.G Aggarwal Vs State of Maharashtra, AIR 1963 SC 200) , Hon'ble Supreme Court in Ghurey Lal v. State of UP, (2008)10, SCC, 450, has formulated the following principles:
"69. The following principles emerge from cases
1. The Appellate Court may review the evidence in appeals against acquittal under sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:26:38 +0530 Page no. 74 of 81 Date of decision 13.03.2023 can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
70. In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when:
i. The trial court's conclusion with regard to the facts is palpably wrong;
ii. The trial court's decision was based on an erroneous view of law;
iii. The trial court's judgment is likely to result in "grave miscarriage of justice";
iv. The entire approach of the trial court in dealing with the evidence was patently illegal; v. The trial court's judgment was manifestly unjust and unreasonable;
vi. The trial court has ignored the evidence or misread the material evidence or has ignored CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:26:47 +0530 Page no. 75 of 81 Date of decision 13.03.2023 material documents like dying declarations/report of the ballistic expert, etc. vii. This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/Appellate Courts must rule in favor of the accused."
107. Keeping in mind the above-referred principles, if the impugned judgment is contrasted with the above principles as laid down by Hon'ble Supreme Court, there are compelling reasons and sufficient grounds as discussed herein above, to reverse the order of acquittal. This Court is not in agreement with the observations of the Ld. Court Court that the attested copies of Caste Certificate Issuing Register, cannot be read in evidence. As discussed herein above, the prosecution has been able to prove the aforesaid document ExPW3/B (Colly) being attested copies of a government record maintained by an office and also the two communications ExPW3/A and ExPW10/A. This Court is also not in agreement with the further observation of the Ld. Trial Court that in the given facts and circumstances of the present case, as per the directions of Hon'ble Supreme Court, caste certificate was required to be sent to Scrutiny Committee.
Digitally signed by
CBI Vs. Jai Shankar Prasad RAJESH RAJESH KUMAR GOEL
RC No. DAI-2009-A-0012
Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13
16:26:55 +0530 Page no. 76 of 81
Date of decision 13.03.2023
Provision of Law
108. This takes me to the charges framed against the respondent/ accused. he has been charged for the offences under section 420/471 IPC. It is necessary to notice the ingredients for establishing a charge under Section 420 IPC. Section 415 IPC defines "cheating" which is to the following effect:
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."
109. Section 420 IPC is with regard to the cheating and dishonestly inducing delivery of property which is to the following effect:
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:27:03 +0530 Page no. 77 of 81 Date of decision 13.03.2023
110. According to Section 415 IPC, the inducement must be fraudulent and dishonest which depends upon the intention of the accused at the time of inducement.
111. Honble Supreme Court had occasion to consider Sections 415 and 420 IPC in Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : Honble Court after noticing the provisions of Sections 415 and 420 IPC held:-
"14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.
112. The respondent/accused has been charged for the offence u/s 471 IPC also. Section 471 IPC reads as under:
" Using as genuine a forged document or electronic record.- whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
113. The ingredients of section 471 IPC are (i) there must be fraudulent or dishonest use of a document as genuine CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:27:12 +0530 Page no. 78 of 81 Date of decision 13.03.2023 and (ii) the person using it must have knowledge or reason to believe that the document is forged one.
114. In Khandu Singh (1869) 22, Bom 768, it was observed as follows:
"The accused applied to the Superintendent of Police at Poona for employment in the police force. In support of his application, he presented two certificates which he knew to be false. One of these certificate was wholly fabricated whilst the other was altered by several additions made subsequently to the issue of the certificate. It was held that the accused was guilty of offences u/s 463 and 471 and 420 IPC"
115. In Empress Vs Abbas Ali (1896) 25, Cal 255 , it was held that " it is not an essential ingredients of the offence for forgery or using as genuine a forged document as defined in section 463 to 471 that there should be an intention on the part of the accused to deprive another of property".
116. In IshwarLal Girdhari Lal, 1969 CrLJ 271 , Hon'ble Supreme Court held that "the word 'property' as mentioned in section 420 IPC does not necessarily mean that the thing of which a delivery is dishonestly desired by the person who cheats must have a money value or a market value in the hand of the person cheated. Even if the things has no money value in the hand of the person cheated but becomes a thing of value in the hand of the person who CBI Vs. Jai Shankar Prasad Digitally signed by RC No. DAI-2009-A-0012 RAJESH RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:27:20 +0530 Page no. 79 of 81 Date of decision 13.03.2023 may get possession of it as a result of the cheating practised by him it would fall within the connotation of the term 'property'".
117. Now, take the present case in hand. It is an admitted fact that respondent/accused got an appointment in Delhi Jal Board at the post of Assistant Pump Driver on the basis of a Caste Certificate belonging to ST category. That caste certificate found to be forged, as proved by the prosecution. This indicates that respondent/accused has fraudulently and dishonestly cheated Delhi Jal Board as Delhi Jal Board believing that forged Caste Certificate to be genuine, issued offer-cum-appointment letter to the respondent/accused under ST category. Similarly, it has also come on the record that respondent/accused has fraudulently and dishonestly used a forged Caste Certificate knowingly well that the same is forged document for getting the appointment in Delhi Jal Board at the post of Assistant Pump Driver. That being so, the ingredients of section 420 and 471 IPC stands proved.
Conclusion
118. Considering the totality of the circumstances, in my view, the assessment on facts and law made by the Ld Trial court was not correct. I, therefore, allow this appeal and set aside the Impugned Judgment dated 17.8.2022, passed by CBI Vs. Jai Shankar Prasad Digitally signed by RAJESH RC No. DAI-2009-A-0012 RAJESH KUMAR GOEL Criminal Appeal No. 01/2023 KUMAR GOEL Date: 2023.03.13 16:27:28 +0530 Page no. 80 of 81 Date of decision 13.03.2023 the court of Ld. ACMM-2-cum-ACJ, Rouse Avenue District Court. Consequently,respondent/accused Jai Shankar Prasad stands Convicted for the offences under sections 420 and 471 Indian Penal Code.
Digitally signed byRAJESH RAJESH KUMAR GOEL KUMAR GOEL Date: 2023.03.13 16:27:37 +0530 Announced in the open (Rajesh Kumar Goel) Court today i.e 13.03.2023 Spl.Judge (PC Act)(CBI)-16 RADC CBI Vs. Jai Shankar Prasad RC No. DAI-2009-A-0012 Criminal Appeal No. 01/2023 Page no. 81 of 81 Date of decision 13.03.2023