Delhi District Court
Central Bureau Of Investigation vs Raj Kumar Mahato on 9 May, 2022
In the court of Shri Naresh Kumar Laka
Special Judge (PC Act) (CBI-20),
Rouse Avenue District Courts, New Delhi
Criminal Appeal No. 3/2021
CNR No. DLCT11-000294-2021
In the matter of:
Central Bureau of Investigation
through Shri Vikrant Tomer
Sub-Inspector of Police,
CBI, 5B, CGO Complex,
1st Floor, ACB, New Delhi.
........Appellant
Vs.
Raj Kumar Mahato
S/o Late Sh. Saudagar Mahato
R/o C-2, 114-A, Nangli Vihar Extn.,
New Delhi
...........Respondent/Accused
Date of filing of appeal : 14.09.2021
Arguments concluded on : 25.04.2022
Date of Judgment : 09.05.2022
Result : Appeal dismissed
CRIMINAL APPEAL U/S 378(2)(a) CR.P.C AGAINST THE
JUDGMENT DATED 27.02.2020 PASSED BY LD. CMM
JUDGMENT
The present criminal appeal under Section 378(2)(a) Cr.P.C Crl. Appeal No. 3/2021 Page no. 1 of 13 CBI vs. Ram Kumar Mahato has been preferred by CBI against the acquittal judgment dated 27.02.2020 passed by Sh. Harjyot Singh Bhalla, Ld. CMM in the case bearing RC No. DAI/2009(A)/0053 (case No. 74/2019) by challenging the said judgment on various grounds.
2. I have heard arguments on the said appeal from Sh. Parmod Singh, Ld. PP for the CBI/appellant and Sh. Ashish Aggarwal, Ld. Counsel for accused/respondent. File perused.
Brief Background
3. A notification was issued to fill-up certain posts of ST category in the Department of Delhi Water Supply and Sewage Disposal Unit (erstwhile office of Delhi Jal Board), MCD on 11.07.1997 for the post of Assistant Fitter as a special drive. The accused/respondent, namely, Sh. Raj Kumar Mahato was appointed in the said department vide appointment letter dated 24.12.1997 in the ST category. On the basis of some source information, the CBI registered an FIR on 11.11.2009 against the accused for committing an offence under Section 420 & 471 IPC for securing his employment on the basis of a forged caste certificate.
4. After completion of the investigation, the final report under Section 173 Cr.PC was filed by the CBI before the court of Ld. CMM.
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The accused/respondent faced trial before the Ld. Trial Court and during the course of examination of the witnesses, the Ld. Trial Court found that no incriminating evidence came on record and, therefore, the statement of accused under Section 313 Cr.P.C was dispensed with and the accused was acquitted vide the impugned judgment dated 27.02.2020.
Reasons for decision
5. From the perusal of judgment of the Ld. Trial Court, it is seen that after examination of various witnesses, Ld. Trial Court observed certain infirmities on the point of investigation especially the date of caste certificate and accordingly, it prompted him to take up the case for final disposal without completing the remaining evidence of the prosecution and reaching to the stage of examination of the accused under Section 313 Cr.PC. Apart from it, the Ld. Trial Court also kept in mind the observations of Hon'ble Supreme Court as made in the case of 'Kumari Madhuri Patil vs. Addl. Commissioner Triable Development & Ors; 1994 (6) SCC 241'. For ready reference, the relevant observations of the said case are reproduced as under:
"13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them by the Constitution. The genuine candidates are also denied admission to educational institutions or Crl. Appeal No. 3/2021 Page no. 3 of 13 CBI vs. Ram Kumar Mahato appointments to office or posts under a State for want of social status certificate. The ineligible or spurious persons who falsely gained entry resort to dilatory tactics and create hurdles in completion of the inquiries by the Scrutiny Committee. It is true that the applications for admission to educational institutions are generally made by a parent, since on that date many a time the student may be a minor. It is the parent or the guardian who may play fraud claiming false status certificate. It is, therefore, necessary that the certificates issued are scrutinised at the earliest and with utmost expedition and promptitude. For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which may be the following:
1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-gazetted officer with particulars of castes and sub-
castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (1) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (11) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such Crl. Appeal No. 3/2021 Page no. 4 of 13 CBI vs. Ram Kumar Mahato number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
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7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non- official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench but subject to special leave under Article 136.
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14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude, disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post."
6. The Ld. Trial Court also distinguished the question of determination of caste on two points i.e. relating to forgery/fabrication of the caste certificate and related ramification of criminal action and secondly when a caste certificate is issued by a Government agency then the factum of real caste involved to be inquired by a Caste Scrutiny Committee. The said inquiry has been held to be mandatory by various other judgments of Hon'ble Supreme Court of India which have been quoted in the impugned judgment and relevant paragraphs are as under:
"14. In the year 2007, the Hon'ble Apex Court in the case of GM, Indian Bank Vs. R. Rani & Anr. reported in 2007 (12) SCC 796 was dealing with the question whether the directions made in Kumari Madhuri Patil (Supra) were directory or mandatory and the Supreme Court concluded that the aforesaid directions given in the case of Kumari Madhuri Patil (Supra) were not mere guidelines but had the Crl. Appeal No. 3/2021 Page no. 7 of 13 CBI vs. Ram Kumar Mahato binding force of law till a suitable legislation was placed on the said aspect by the legislature.
15. I may further observe that the validity of the directions given and guidelines laid down in the case of Kumari Madhuri patil (Supra) came up for reconsideration in the case of Dayaram Vs. Sudhir Batham & Ors. (Supra) wherein the Hon'ble Apex Court was pleaded to uphold the directions issued by it earlier in the case of Kumari Madhuri Patil (Supra) as having CBI Vs. Rajkumar Mahato page 13 of 23 been issued in exercise of power under Articles 142 and 32 of the Constitution as being valid and laudable as they were made to fill the vacuum in the absence of any legislation, to ensure that only genuine Scheduled Caste and Scheduled Tribe candidates secured the benefits of reservation and the bogus candidates were kept out. In fact, in the case of Dayaram Vs. Sudhir Batham & Ors. (Supra) the Hon'ble Apex Court modified only two of the directions given in the case of Kumari Madhuri Patil (Supra) but at the same time held that the decision of the Scrutiny Committee has to be given finality on the question of fact since each Scrutiny Committee has a vigilance cell which acts as the investigating wing of the Committee. The relevant portion of the judgment is reproduced as under:
"...... 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, examine the records, examines the relations or friend and persons who have knowledge about the social status of the candidate and submits a report to the Committee......"
7. Further, if an allegation of fabrication or forgery of caste certificate is alleged/proved then there is no need to even scrutinize the real caste of the said person who had forged or used such forged caste certificate and in that eventuality a criminal case is held to be maintainable.
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8. The original caste certificate finds mentioned the date of issue as 06.01.1988 but it has been written in a very unusual manner which had invited confusion of the Investigating Agency which misconstrued it as 06.11.1988. The Ld. Trial Court has also reproduced the material testimonies of the prosecution witnesses in his judgment who have verified the said caste certificate and from the perusal of the said statements, it is evident that confusion and misconception of fact prevailed at time of investigation of the case and the verification inquiry was conducted by treating the date of caste certificate as 06.11.1988.
9. The prosecution as well as investigating agency had also acted on the said date of 06.11.1988 but in the opinion of this court, when there was a confusion with regard to the correct date of issuance of caste certificate, the investigation must have been conducted for the date of 06.01.1988 also. It is a settled preposition of law that the prosecution is required to prove a fact or charge whereby criminal punishment has been sought and the onus thereto lies on the prosecution only. Therefore, when no evidence had been produced on record with regard to verification of the caste certificate as on the date of its issuance i.e. 06.01.1988, the other evidence led on record becomes doubtful or immaterial. The prosecution is also required to prove a charge beyond all reasonable doubt. The inaction of the investigating agency to verify the record/register of the concerned revenue authority for the date of 06.01.1988 is sufficient to give benefit of doubt to the accused rather Crl. Appeal No. 3/2021 Page no. 9 of 13 CBI vs. Ram Kumar Mahato than putting him to further stages of the trial. This court is completely in agreement with the opinion of the Ld. Trial Court in this regard and does not find any infirmity in his observations.
10. Since the prosecution failed to prove whether the caste certificate in question was issued by the concerned revenue department or that it was a forged document, the accused was entitled for giving benefit of doubt and it can be presumed that the said certificate was issued by the revenue department especially when the prosecution even did not include or examine the concerned District Welfare Officer who had purportedly issued the said certificate. The ratio decende of the judgment of Hon'ble Supreme Court of India in the case of 'Kumari Madhuri Patil vs. Addl. Commissioner Trible Development & Ors (Supra)' clearly applies to the situation when such certificates are admittedly or presumably issued and there is no forgery with regard to issuance of certificate. The CBI is also not exempted to get the said caste status of the accused examined from the Caste Scrutiny Committee.
11. Ld. PP for CBI relied on the case of 'Sarvjeet Mehto vs. State through CBI dated 11.07.2013 (Criminal Revision Petition No. 711/2012) decided by Hon'ble High Court of Delhi where the judgment of Ld. Trial Court passed by Ld. ACMM Karkardooma Court was upheld regarding conviction and order on sentence. From the perusal of Crl. Appeal No. 3/2021 Page no. 10 of 13 CBI vs. Ram Kumar Mahato said judgment, it is seen that jdugment of 'Kumari Madhuri Patil vs. Addl. Commissioner Triable Development & Ors. (supra) was not brought to the notice of the said court nor it was discussed therein.
12. From the perusal of the facts, evidence and circumstances of the said case, this court is of the considered opinion that same is entirely different from the nature of the investigation and the evidence led before Ld. Trial Court especially on the point of holding no verification of the caste certificate on the date of its issuance i.e. 06.01.1988.
13. Ld. PP for CBI also contended that the Ld. Trial Court was not right in dispensing with the statement of accused under Section 313 Cr.P.C. and for not taking into consideration the oral as well as documentary evidence produced on record. The aforesaid contention is baseless in view of grave patent flaw in the investigation of the CBI especially with regard to date of issuance of certificate and its verification for the said date.
14. Ld. PP for CBI also argued that Ld. Trial Court even did not consider the statement of prosecution witnesses (PW-2 and PW-3) which were on the point that the accused does not belong to 'Kharia' caste but to 'Nonia' Caste. It is also pleaded that the said witnesses deposed that there is no ST category in the District Chhapra (Saran), Crl. Appeal No. 3/2021 Page no. 11 of 13 CBI vs. Ram Kumar Mahato Bihar at the time of issuance of caste certificate in question. In view of the mandatory requirement of holding an inquiry by the Caste Scrutiny Committee for determination of the caste of the accused, which specifically provide a procedure/guidelines to be strictly followed, the statement of said witnesses cannot be considered at all.
15. Further, on the point of a claim that there is no ST category in the District Saran, Bihar, no official evidence has been produced on record and the statement of PW-2 and PW-3 are not conclusive. Moreover, even if a caste is not registered in the government record, yet a person can migrate or stay in any area and the caste certificate is issued on the basis of origin of caste from patriarchal ascendant and not alone on the basis of area where a person resides.
16. On the other hand, the ld. Counsel for accused also placed on record the census record of the relevant time which finds mentioned that the people of 'Kharia' caste were resident in the District Saran. As the said record is official public record, this court can very well take judicial notice of the same as per Section 56 of the Indian Evidence Act, 1872. Therefore, the said census record prevails over the depositions of the said two witnesses (PW-2 and PW-3).
17. In the light of aforesaid facts and circumstances, the present appeal is dismissed and the impugned judgment of the Ld. Trial Court is Crl. Appeal No. 3/2021 Page no. 12 of 13 CBI vs. Ram Kumar Mahato upheld. Copy of judgment be sent along with Trial Court record to the Ld. Trial Court. Appeal file be consigned to record room. Copy of judgment be given dasti, if desired.
Digitally signed by NARESH NARESH KUMAR
KUMAR LAKA
Announced & dictated in LAKA
Date: 2022.05.09
16:06:46 +0530
the open court on 09.05.2022
(Naresh Kumar Laka)
Special Judge (PC Act) (CBI-20),
Rouse Avenue District Courts,
New Delhi/09.05.2022
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