Karnataka High Court
B.K. Siddaramappa vs State Of Karnataka on 15 September, 2022
1 CRL.P.No.100808 /2016
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRIMINAL PETITION No.100808 OF 2016
BETWEEN:
B.K. SIDDARAMAPPA
S/O NAGAPPA B.K.,
AGED ABOUT 61 YEARS,
R/A NO.3, 1ST FLOOR,
8TH CROSS, GARDEN VILLAS,
NAGARBHAVI IST STAGE,
BENGALURU-560070.
AND ALSO AT NO.1593, 6TH MAIN,
6TH "C" CROSS, R.P.C. LAYOUT,
VIJAYA NAGAR, BENGALURU-560040.
... PETITIONER
(BY SRI. SADIQ N GOODWALA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY BRUCEPET P.S BALLARI,
REPRESENTED BY,
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD.
2. THE SUPERINTENDENT OF POLICE
CIVIL RIGHTS ENFORCEMENT CELL,
II MAIN, 2ND CROSS,
2 CRL.P.No.100808 /2016
SARASWATHI NAGAR, "B" BLOCK,
DAVANGERE-577001.
...RESPONDENTS
(BY SMT.GIRIJA S HIREMATH, HCGP FOR R1;
SRI. C. JAGADISH FOR R2)
THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF
CR.P.C., PRAYING TO QUASH THE PROCEEDINGS AGAINST THE
PETITIONER IN CR.NO.06/2016 ON 25.01.2016 FOR OFFENCES
U/SECS. 196, 198, 420 IPC AND SEC. 3(1)(9) OF THE SC AND
THE ST (PREVENTION OF ATROCITIES ACT) OF BRUCPET P.S.
BALLARY.
THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED ON 01.09.2022, COMING ON FOR PRONOUNCEMENT
OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner, who is arraigned as accused has filed this petition under section 482 of Cr.P.C. to quash the criminal proceedings in Crime No.6/2016 dated 25.01.2016 for the offences punishable under section 196, 198, 420 of IPC and Section 3(1) (9) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) registered by the Brucepet P.S. of Ballari. 3 CRL.P.No.100808 /2016
2. It is the case of the petitioner that based on the complaint filed by one G. Somashekhar, Police Inspector, Civil Rights Enforcement Directorate, a case in Crime No.6/2016 is registered against him alleging that though he belonged to Kuruba Community, he obtained a caste certificate as though he belongs to Kadu Kuruba (ST) and secured appointment in Bank of Baroda, which was reserved for a person belonging to Kadu Kuruba community. The said certificate is cancelled by the Tahsildar on 04.03.2010. Being aggrieved by initiation of criminal proceedings, petitioner is seeking quashing of the said proceedings.
3. Respondent No.1 has appeared through learned HCGP. On the other hand, respondent No.2 appeared through Sri. C. Jagadish, learned counsel.
4. During the course of arguments, learned counsel for the petitioner submits that as per the orders of the Chairman of District Caste Verification Committee, 4 CRL.P.No.100808 /2016 dated 30.10.2000 at Annexure-B, as per the government order No.SWL.63 SAD 85, dated 23.01.1986 no action shall be taken against such persons. Petitioner has obtained caste certificate in the year 1974. As per the government order dated 11.03.2002, such persons are required to surrender the caste certificate and no action can be taken against them. He would further submit that the petitioner has not availed any facility or benefits as alleged in the complaint. The petitioner has already retired from service on 29.02.2016. Similar circular is issued by the Joint Secretary, Social Welfare Department at Annexure- E. He would further submit that in similar matters, in criminal petition Nos.2482/2005, 2452/2008, 252/2009 and 371/2009, criminal proceedings have been quashed. Registering of criminal case against the petitioner is contrary to the judgment of the Hon'ble Apex Court in 5 CRL.P.No.100808 /2016 State of Maharashtra Vs. Milind and others1 (Milind's Case) and prays to allow the petition.
5. On the other hand, learned counsel representing respondent No.2 submits that classification of a caste as Scheduled Caste, Scheduled Tribes, Backward Classes etc., is the prerogative of the parliament and State Government has no authority to issue circular relied upon by the petitioner. In fact, the decisions relied upon by the petitioner in Criminal Petition No. 2482/2005, 2452/2008, 252/2009 and 371/2009 are no longer good law in view of the decision of the Hon'ble Apex Court in Chairman and Managing Director, Food Corporation of India and others Vs. Jagadish Balaram Bihara and others2 (Jagadish Bihara's Case) and quashing of such criminal proceedings is reversed by the Hon'ble Apex Court in SLP (Criminal) No.161/2014 and in view of the same, 1 AIR 2001 SC 393 2 (2017) 8 SCC 670 6 CRL.P.No.100808 /2016 the decisions relied upon by the petitioner are no longer good law. So far as the decision of the Hon'ble Apex Court in Milind's case relied upon by the petitioner is concerned, it is congenial to the parties therein and not a ratio applicable to all the cases.
6. Heard the arguments and perused the records.
7. It is an undisputed fact that the petitioner belonged to Kuruba community. However, he has secured caste certificate claiming to be belonging to Kadu Kuruba community and secured employment in Bank of Baroda, which was reserved for a person belonging to Kadu Kuruba community, which comes under Scheduled Tribe category.
8. However, the State of Karnataka issued government order dated 23.01.1986 bearing No.SWL.63 SAD 85 giving benefits of reservation in educational institutions and also educational concessions available 7 CRL.P.No.100808 /2016 for the persons belonging to Scheduled Tribe and also persons belonging to Nayak, Naik, Beda, Walmiki, Pariwara and Talawar on the ground that their surname is Nayak.
9. Similar Government Order was issued i.e. G.O.No.SWL170 SAD 81 (P) dated 02.09.1986 giving similar benefit to persons belonging to Maalure who have obtained caste certificate as Malure (ST) Kuruba and those who belong to Kuruba having obtained certificate as Kadu Kuruba.
10. However, after receiving letters from the Government of India stating that the State Government has no such power and authority to issue such circulars, it was withdrawn vide Government Order No.SWD 713 SAD 93 dated 11.03.2002 by directing such persons to surrender their caste certificates and if they failed to surrender their certificate, the same shall be cancelled. It also gave direction that no penal or disciplinary action 8 CRL.P.No.100808 /2016 shall be taken against such persons and if already taken, they shall be kept in abeyance. The petitioner relying upon these circulars is seeking quashing of the criminal proceedings initiated against him.
11. However, the circular dated 11.03.2002, is in direct contravention of the decision of the Hon'ble Supreme Court in Jagadish Bihara's case, wherein the Hon'ble Supreme Court was please to hold as follows:
"A prosecution should be launched against the candidate or, as the case may be, the parents or guardians responsible for making the false claim. The regime postulated in the judgment of this Court in Madhuri Patil (supra) took effect from 2nd September 1994, which was the date of the judgment. Eventually in the State of Maharashtra these directions received legislative recognition upon the enactment of the Maharashtra Act XXIII of 2001 which came into force in the State on 18 October 2001. However, it is important to notice that even before the State Legislature stepped in to confer a statutory form to the directions which were issued by this Court in Madhuri Patil (supra) the regime, as it then obtained prior to the enactment of 9 CRL.P.No.100808 /2016 the law, also envisaged consequences upon a caste or tribe claim being found to be false upon a verification by the Scrutiny Committee. The cancellation of a certificate would, as a necessary consequence, involve the invalidation of the appointment to a post or admission to an educational institution. Where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, render the appointment void ab initio. The rationale for this is that a candidate who would otherwise have to compete for a post in the general pool of unreserved seats had secured appointment in a more restricted competition confined to the reserved category and usurped a benefit meant for a designated caste, tribe or class. Once it was found that the candidate had obtained admission upon a false representation to belong to the reserved category, the appointment would be vitiated by fraud and would be void ab initio. The falsity of the claim lies in a representation that the candidate belongs to a category of persons for whom the reservation is intended whereas in fact the candidate does not so belong. The reason for depriving the candidate of the benefit 10 CRL.P.No.100808 /2016 which she or he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim on the basis of which a scarce public resource is obtained. The same principle would apply where a candidate secures admission to an educational institution on the basis of a false claim to belong to a reserved category. A candidate who does so causes detriment to a genuine candidate who actually belongs to the reserved category who is deprived of the seat. For that matter a detriment is caused to the entire class of persons for whom reservations are intended, the members of which are excluded as a result of an admission granted to an imposter who does not belong to the class. The withdrawal of benefits, either in terms of the revocation of employment or the termination of an admission was hence a necessary corollary of the invalidation of the claim on the basis of which the appointment or admission was obtained. The withdrawal of the benefit was not based on mens rea or the intent underlying the assertion of a false claim. In the case of a criminal prosecution, intent would be necessary. On the other hand, the withdrawal of civil benefits flowed as a logical result of the invalidation of a claim to belong to a group or category for whom the reservations is intended. This was the position under the 11 CRL.P.No.100808 /2016 regime which prevailed following the decision in Madhuri Patil."
12. Further, in para 53 of the said order, it is observed as under:-
"Administrative circulars and Government resolutions are subservient to legislative mandate and cannot be contrary either to constitutional norms or statutory principles. Where a candidate has obtained an appointment to a post on the solemn basis that he or she belongs to a designated caste, tribe or class for whom the post is meant and it is found upon verification by the Scrutiny Committee that the claim is false, the services of such an individual cannot be protected by taking recourse to administrative circulars or resolutions. Protection of claims of a usurper is an act of deviance to the constitutional scheme as well as to statutory mandate. No government resolution or circular can override constitutional or statutory norms. The principle that government is bound by its own circulars is well-settled but it cannot apply in a situation such as present. Protecting the services of a candidate who is found not to belong to the community or tribe 12 CRL.P.No.100808 /2016 for whom the reservation is intended substantially encroaches upon legal rights of genuine members of the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation where the rights of genuine members of reserved groups or communities are liable to be affected detrimentally, government circulars or resolutions cannot operate to their detriment."
13. The quashing of criminal proceedings based on Government Order dated 11.03.2002 in Priyadarshini and another Vs. The State of Karnataka3 was challenged before the Hon'ble Supreme Court in SLP (Criminal) No.1611/2014, wherein the Hon'ble Apex Court passed the following order:
"Leave granted.
We have heard Ms. Anitha Shenoy,
learned counsel appearing for the appellants and
Ms. Kiran Suri, learned Senior Counsel appearing for the respondents and perused the impugned order dated 26.07.2013 passed by the High Court 3 Crl.P.No.10746/2013 D.D.26.07.2013 13 CRL.P.No.100808 /2016 of Karnataka in Criminal Petition No.10746/2013. The High Court, while disposing of the said criminal petition, granted liberty to the respondents to surrender the caste certificate before the competent authority and produce acknowledgment before the Investigating Officer. It was further directed by the High Court that, in such eventuality, the investigating officer shall not proceed with the further investigation in Crime No.129/2013 registered for offences punishable under section 196, 198, 464, 468, 471, 420 of the Indian Penal Code and also for offences punishable under section 3(1)(ix) of the SC/ST (Prevention of Atrocities) Act, 1989. For better appreciation, the order impugned is being quoted hereinbelow :
"ORDER This petition is filed to quash the first information report in Crime No.129/2013 registered for offences punishable under section 196, 198, 464, 468, 471, 420 of the Indian Penal Code and also for offences punishable under section 3(1)(ix) of the SC/ST (Prevention of Atrocities) Act, 1989.
2. The learned counsel for petitioners has relied on the Government Order No. SWD 713 14 CRL.P.No.100808 /2016 SAD 93, Bangalore dated 11.03.2002, wherein it is stated that, in terms of aforestated Government Order reservation in admission to educational institutions and educational concessions extended to Pariwara, Talware, Maaleru, Kuruba communities in G.O's read at (1) and (2) above and Besta and Koli communities accordingly cease. They shall not be liable for the penal action if they had surrendered their certificates.
3. The learned counsel for petitioners submits that first petitioner has not surrendered her caste certificate. Therefore, petitioners are at liberty to surrender the Caste Certificate of petitioner before the competent authorities and produce acknowledgment before the Investigation Officer. In such an event, the investigation officer shall not proceed with further investigation.
4. The petition is disposed of with these observations."
Prima facie, we are of the view that the aforesaid impugned order is very cryptic in nature, inasmuch as, while quashing the criminal prosecution, the High Court has not considered the law settled by this Court on this point or even 15 CRL.P.No.100808 /2016 the provisions of the concerned Government Order No. SWD 713 SAD 93, Bangalore dated 11.03.2002. Be that as it may, in our opinion, the impugned order cannot be sustained in law. The matter needs to be examined by the High Court afresh in the light of the law laid down by this Court with regard to the jurisdiction under section 482 of the Code of Criminal Procedure while quashing the criminal prosecution.
For the reasons aforesaid, this appeal is allowed, the impugned order dated 26.07.2013 is set aside and the matter is remitted to the High Court for passing a fresh order in accordance with law."
14. After the remand, Criminal petition No.10746/2013 was dismissed in the light of the observations made by the learned Supreme Court. It is an undisputed fact that though petitioner belongs to Kuruba Community, he has secured false caste certificate as belonging to Kadu Kuruba. In fact, after completing his service, he is retired after superannuation. Certainly he has obtained benefit which 16 CRL.P.No.100808 /2016 was available on account of securing such caste certificate.
15. Rule 7-A of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward (Reservation of Appointments etc.) Rules 1992 specifically provides for prosecution of the offenders who obtained false certificates which reads as follows:
"Rule 7-A of The Karnataka Scheduled Castes, Scheduled Tribes and Other Backward(Reservations of Appointment, Etc.,) Rules, 1992 specifically provides for prosecution of the offenders who obtained false caste certificate. Said Rule reads as under:
7-A. Prosecution for obtaining false caste certificate-
(1) The Caste Verification Committee or the Caste and Income Verification Committee, as the case may be and the Divisional Commissioner, shall send a copy of the order rejecting claim of the applicant for grant of Validity Certificate or, as the case may be, a Copy of the order in 17 CRL.P.No.100808 /2016 appeal rejecting such claim, to the Directorate of Civil Rights Enforcement.
(2) The Directorate of Civil Rights Enforcement shall take steps to prosecute such claimant who has obtained a false Caste Certificate.
In view of the above legal and factual position, the prosecution of the petitioner for the alleged offences under Section 196,198,420 of Indian Penal Code and Section 3 (1)(ix) of The Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, cannot be faulted with as the allegations made in the complaint prima facie make out the ingredients of the above offences alleged against the petitioner.
As a result, there is no justifiable ground to quash the impugned proceedings. Consequently, the petition is dismissed."
16. As rightly argued by the learned counsel for respondent No.2, the decision of the Hon'ble Apex Court in Milind's case in exceptional cases wherein Hon'ble Apex Court refused to take away the benefit given to the petitioner therein.
18 CRL.P.No.100808 /2016
17. Thus, in the light of the decision of the Hon'ble Apex Court in Jagadish Bihara's case and Division Bench of this Court in Priyadarshini's case and Madhukar Vs. State by Hosanagar Police and others, absolutely there is no substance in the contentions raised by the petitioner and the petition is liable to be dismissed. Accordingly, I proceed to pass the following:
ORDER The petition is dismissed.
In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.
Sd/-
JUDGE YAN