Karnataka High Court
Srimant@ Shreemanth vs The State on 10 September, 2024
Author: K Natarajan
Bench: K Natarajan
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NC: 2024:KHC-K:6773
CRL.P No. 200204 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL PETITION NO.200204 OF 2018 (482)
BETWEEN:
SRIMANT S/O ARJUN NATIKAR
AGE: 65 YEARS, OCC: RETD. GOVT. SERVANT,
R/O JAPUR, TQ. & DIST: KALABURAGI.
...PETITIONER
(BY SRI. SHIVAKUMAR MALIPATIL, ADVOCATE)
AND:
1. THE STATE THROUGH
BRAHAMPUR POLICE STATION,
REPRESENTED BY S.P.P HIGH COURT
2. THE ADDITIONAL DIRECTOR GENERAL OF POLICE
Digitally signed by (CRE CELL) BANGALORE.
SHIVALEELA
DATTATRAYA
UDAGI ...RESPONDENTS
Location: High
Court Of (BY SMT. ANITA M. REDDY, HCGP FOR R1;
Karnataka
SRI. C. JAGADISH (BY VC), SPL.STANDING COUNSEL FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO ALLOW THE PETITION AND QUASH THE
PROCEEDINGS IN CR.NO.193/2017 OF BRAHMPUR POLICE STATION,
ON THE FILE OF IV ADDL. JMFC, KALABURAGI AS AGAINST THE
PETITIONER.
THIS PETITION, COMING ON FOR FURTHER HEARING THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
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NC: 2024:KHC-K:6773
CRL.P No. 200204 of 2018
CORAM: HON'BLE MR. JUSTICE K NATARAJAN
ORAL ORDER
(PER: HON'BLE MR. JUSTICE K NATARAJAN) This petition is filed by the petitioner/accused under Section 482 of Cr.P.C., seeking to quash the FIR in Crime No.193/2017 registered by Brahmpur Police Station, Kalaburagi, for the offences punishable under Sections 196, 198, 420 of IPC.
2. Heard learned counsel for the petitioner, learned High Court Government Pleader for the respondent-State and learned Special counsel for respondent No.2/CRE cell.
3. The case of the petitioner is that on the complaint filed by one Shivanand H.C.549 pertaining to DCRE, Kalaburagi, filed a complaint to the police alleging that the petitioner said to be belongs to Kabbaliga caste, but he has obtained the false certificate in the name of Koli Dhor comes under the ST and joined in the office of -3- NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 the BSNL as Telephone Operator, thereby he has cheated the State. The police after receiving the complaint have registered the FIR and same is under challenge.
4. The learned counsel for the petitioner has seriously contended that at the time of obtaining certificate there is no restriction in the year 1978 to say he has obtained the false certificate. The Tahsildar after considering the application, issued the certificate. It is genuine at that time and subsequent to the enforcement of the Rule in the year 1993, there was change in the list and deleted said caste. Therefore, it cannot be said a false certificate obtained by the petitioner. He has obtained the certificate and joined the service at the undisputed time and he also retired from service in the year 2013 and after four years, the complaint came to be filed only on the basis of a complaint lodged by the officer of the DCRE and decision taken by the District Caste Verification Committee (for short, hereinafter referred to as 'the DCVC') by canceling the certificate. Therefore, the criminal -4- NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 prosecution cannot be launched against the petitioner and it is nothing but abuse of process of law. In support of his case, he has relied upon the judgment of the Co-ordinate Bench of this Court in the case of Chidanandappa H. Hunagund vs. The Additional Director General of Police and others in W.P.No.61614/2009(S-K) dated 13.08.2015.
5. Per contra, Sri.C.Jagadish, learned Special Counsel appearing for respondent No.2 has seriously objected the petition and contended that the certificate was obtained by the petitioner by misrepresentation as Koli Dhor comes under ST, even though the petitioner belongs to Kabbaliga caste, which comes under OBC. Even otherwise, the certificate issued in the year 1978, but in view of the enforcement of Act in 1993 i.e. Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointment Etc.,) Rules, 1993, the Division Bench has held it has given retrospective effect and petitioner cannot claim any -5- NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 exemption and he has relied upon the judgment of the Division Bench of this Court in the case of Smt.Geethanjali vs. The Canara Bank, rep. by its General Manager, Bangalore and Others reported in ILR 2012 KAR 4384.
6. The learned counsel for respondent further contended that the fact in the case of Chidanandappa's (supra) altogether different and the petitioner fraudulently obtained the certificate and joined the service and thereby cheated the State and defeated the right of the members of the ST, it cannot be acceptable. The prosecution can be launched as per the judgment passed by the Co-ordinate Bench of this Court in the case of Madhukar vs. State by Hosanagar police and another in Criminal Petition No.2346/2014 dated 26.04.2019.
7. The learned counsel further contended that the Co-ordinate Bench has relied upon the judgment of the Hon'ble Supreme Court and other cases and has held the prosecution shall have to be launched. He has also -6- NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 contended that the DCVC order has not been challenged by the petitioner. Such being the case, the petitioner has to undergo investigation and face the trial. Hence, prayed for dismissal of petition.
8. Having heard the arguments and perused the records. On perusal of the same, which reveals that it is not in dispute the petitioner obtained the caste certificate as Koli Dhor in the year 1978, which was issued by the Tahsildar. It is also admitted fact that he has joined the service as Telephone Operator in the office of the BSNL in the year 1978 itself and retired in 2013. After receipt of the complaint by the DCVC, they verified the caste of the petitioner wherein it is revealed that the petitioner belongs to Kabbaliga, but not Koli Dhor caste has obtained certificate by him in the year 1978.
9. Now the learned counsel for the petitioner submits that at the time of obtaining certificate, it cannot be said that it is false certificate, it is genuine certificate and subsequent to commencement of Act (i.e. Karnataka -7- NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment Etc.,) Rules 1993) in the year 1993, the same was not mentioned in the list of the caste. Therefore, the certificate obtained in the year 1978 cannot be said as it is illegal or false certificate in view of the commencement of the Act in the year 1993.
10. In this regard, the learned counsel for respondent has seriously contended that this aspect in respect of the issuing certificate prior to commencement of the Karnataka Scheduled Castes, Scheduled Tribes and Other Backward Classes (Reservation of Appointment Etc.,) Rules 1993, came into force. This aspect was considered by the Division Bench of this Court in the case of Geethanjali's (supra) wherein the Hon'ble Supreme Court has held at para-8 and 9 as under:
"8. This comprehensively and completely answers any doubts that may remain in the mind of the learned Single Judge. Having regard to the ratio of PILLAI'S case what the learned Single Judge would have to satisfy himself, on is whether the -8- NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 investigation into the genuineness of the caste certificate produced by the petitioner had come to its culmination before the Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointment etc.,) Rules, 1993 came into force. The DCVC is a creature of these Rules. If the answer is in the negative PILLAI will clarify that there is no scope to hold to conviction that retrospectively of the Rules would result.
9. We hold that after the promulgation of Karnataka Scheduled Castes, Scheduled Tribes and other Backward Classes (Reservation of Appointment etc.,) Rules, 1993, it will only be the DCVC which is the Competent Authority to look into the genuineness or otherwise of any caste certificate, even if it be had been issued by the Tahsildar in the previous legal regime as it was then prevailing."
11. In view of the judgment of the Division Bench of this Court that even though the said rules came into force on 1993 and the petitioner said to be obtained certificate in the year 1978, it has retrospective effect.
12. That apart the judgment of the Co-ordinate Bench relied by the learned counsel in the case of -9- NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 Chidanandappa's (supra) wherein at para-8 which is as under:
"8. However by way of reply, the learned counsel for the petitioner would point out that the attention drawn to several orders of the Supreme Court pertains to cases where false caste certificates have been produced. In the present case on hand, the terminology used, insofar as, the certificate produced by the petitioner as being a false certificate, is wholly incorrect and misleading. He has produced certificates issued by the competent authority at the relevant point of time. The fact that the Tokar Koli caste could not be treated as Scheduled Tribe is subsequent event, which may have been realised by the State Government itself and the further action in seeking withdrawal of the classification was again at the instance of the State Government and the further direction that any person who has entered into service on the basis of such a caste certificate claiming to be Tokari Koli Tribe would be treated as general merit category and therefore, the petitioner was lawfully entitled to be continued in service even according to the State Government. It is only thereafter that a hybrid view has been taken as to such certificates being in the nature of false caste certificate and the extreme action of removal from service on that basis is
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NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 certainly illegal and results in miscarriage of justice."
13. On careful reading of the judgment of the Co-ordinate Bench of this Court where the fact has altogether different in the case on hand. In the said case the certificate was issued earlier where the said caste Tokari Koli was continued as list in ST, but subsequent to the notification issued by the Government, the same was withdrawn by the State Government and classification and issued the notification that subsequent to the notification Tokari Koli should be treated as General Merit category. In the said case of petitioner was already worked and subsequently he was suspended or dismissed from the service. Till then the High Court has ordered to grant the salary and other reliefs, but rejected for arrears of salary as there is no work no pay. The facts in the said case is altogether different from the case on hand, wherein this case there is no notification issued by the State Government earlier the Kabbaliga caste was in the list and subsequently it was withdrawn by the Government. It is
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NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 specific case of the respondent that petitioner belongs to Kabbaliga which is not comes under SC/ST list, but by misrepresentation he obtained certificate as Koli Dhor which comes under ST and after verification the caste competent authority DCVC has cancelled the certificate and said cancellation order has not been challenged by the petitioner Court of law, which has attained the finality. Therefore, complaint came to be filed by the respondent.
14. In a similar case the Co-ordinate Bench in the case of Madhukar's (supra) at para-8 and 9 held as under:
"8. Even on question of law, the petitioner being a party to the fraud cannot take advantage of his own fraud and seek exemption from criminal prosecution. In STATE OF MAHARASTRA AND OTHERS vs. RAVI PRAKASH BABULALSING PARMAR AND ANOTHER reported in (2007) 1 SCC 80 while considering the implications of the false caste certificates obtained by unscrupulous elements, in para 23 of the judgment, it is observed that:-
"The makers of the Constitution laid emphasis on equality amongst citizens. The Constitution of India provides for protective
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NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 discrimination and reservation so as to enable the disadvantaged group to come on the same platform as that of the forward community. If and when a person takes an undue advantage of the said beneficent provision of the Constitution by obtaining the benefits of reservation and other benefits provided under the Presidential Order although he is not entitled thereto, he not only plays a fraud on the society but in effect and substance plays a fraud on the Constitution. When, therefore, a certificate is granted to a person who is not otherwise entitled thereto, it is entirely incorrect to contend that the State shall be helpless spectator in the matter."
9. In SHOBA LAKSHMI vs. DIVISIONAL COMMISSIONER & Ors (In Spl. Leave to Appeal(Civil) No.138/2013 dated 28.01.2013), the petitioner therein secured employment as Assistant against the vacancy reserved for Scheduled Tribe by producing the caste certificates issued by Tahsildar, Shimoga and Tahsildar, Bengaluru North Taluk. Said certificates were cancelled by the CRE Cell. In order steer clear from the impending prosecution, petitioner therein took shelter under the aforesaid order of Government dated 11th March 2002. However, the Hon'ble Supreme Court in the above decision ratified the view taken by the Division Bench of this Court which reads as under:-
"Be that as it may, there was certain confusion in regard to treating 'Maleru' and 'Maaleru' as Scheduled Tribe. The said fact has been settled stating that 'Maleru' alone belongs to Scheduled Tribe and not 'Maaleru'.
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NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 A Co-ordinate Bench of this Court in W.A.No.4023/2004 and other connected writ appeals has decided that 'Maaleru' does not belong to Scheduled Tribe and that such candidates cannot claim the benefit of Scheduled Tribe and therefore, the said question is no more a integra. The judgment relied upon by the learned counsel for the appellant in Union of India vs. H. Ramakrishna is also not helpful to the appellant in view of the subsequent judgment of the Hon'ble Supreme Court which are relied upon by the learned counsel for the appellant. When the order of the State Government cannot be extended to the central Government Employees as ruled by the Hon'ble Supreme Court in Addl. General Manager-Human Resources, Bharat Heavy Electricals Ltd., vs. Suresh Ramkrishna Burde ((2007) 5 SCC 336]. It is clear that the appellant cannot contend that in view of the order of the Government dated 11th March 2002, the appellant's appointment has been saved because the Parliament has not declared 'Maaleru' as Scheduled Tribe to save the appointment of the appellant based on the order of the State of Karnataka. In addition to that, by the order of the State a right vested under Articles 341 and 342 of the Constitution of India cannot be diluted and cannot be taken away."
(underline supplied) Whether criminal prosecution could be launched against imposters who by posing themselves as members of the caste, tribe or class for whom reservation has been earmarked has been considered by the Hon'ble Supreme Court in the case of KUMARI MADHURI PATIL vs. ADDITIONAL COMMISSIONER,
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NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 TRIBAL DEVELOPMENT, reported in AIR 1995 SC 1994. In CHAIRMAN AND MANAGING DIRECTOR, FCI and Ors VS. JAGDISH BALARAM BAHIRA AND Ors. reported in AIR 2017 SC 3271, of the said judgment, Hon'ble Supreme Court has summed up the directions as under:-
"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 2 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 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
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NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 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 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 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 caused 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 re 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
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NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 under the regime which prevailed following the decision in Madhuri Patil."
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 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."
(underling supplied) Lastly, Rule 7-A of The Karnataka Scheduled Castes, Scheduled Tribes and Other Backward
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NC: 2024:KHC-K:6773 CRL.P No. 200204 of 2018 (Reservations16 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 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 justifiable ground to quash the impugned proceedings. Consequently, the petition is dismissed."
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15. Based upon the said judgment, this Court also taken the similar view K.M.Nagaraj vs. State of Karnataka and others in W.P.No.5414/2021 (GM- RES) dated 14.03.2024 was dismissed the petition.
16. Considering the entire facts and circumstances of the case, it is a clear case where the petitioner belongs to Kabbaliga and obtained the certificate as Koli Dhor by misrepresentation in the year 1978 and secured the job in BSNL and enjoyed the job and retired from the service in the year 2013 and subsequently the DCVC has cancelled the certificate and based upon the recommendation the complaint came to be filed. Therefore, the matter requires for investigation and launching the prosecution against the petitioner for having cheated the State and defeated the rights of the members of ST in recruitment for job. Therefore, the petitioner required to face trial and take defence whatever he get as per law.
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17. Accordingly, the petition is dismissed.
Sd/-
(K NATARAJAN) JUDGE SDU LIST NO.: 1 SL NO.: 1 CT:SI