Bangalore District Court
Yelahanka Ps vs Uday Kumar on 5 September, 2024
KABC010162572019
IN THE COURT OF THE LXX ADDL. CITY CIVIL &
SESSIONS JUDGE & SPECIAL JUDGE, BENGALURU
CITY (CCH-71)
Dated this the 5th day of September, 2024.
Present;
Sri. Rajesh Karnam.K, B.Sc., LL.B., LL.M.,
LXIX Addl. City Civil and Sessions Judge
and Special Judge, Bengaluru.
Spl.Case.No.507/2019
COMPLAINANT: STATE
Represented by
Yelahanka Police Station,
Bengaluru.
(Rep.by Special Public Prosecutor).
-V/s-
ACCUSED : Uday Kumar,
S/o.Radhakrishnan,
Aged about 51 years,
R/at No.6/1, 1st Main road,
Yellamma temple Street road,
Ulsoor,
Bengaluru.
Reptd. by Sri. NM., Advocate)
1. Date of commission of : 28.02.1993 to 24.9.2018
offence
2. Date of report of Offence 24.09.2018
3. Name of the Complainant : Sri.Sunil H.B.
2
Spl.C.507/2019
4. Date of commencement of : 10.10.2022
recording of evidence
5. Date of closing of evidence : 01.09.2023
6. Offences Complained are : U/s.198, 196, 420 of IPC
& Sec.3(1) (q) of
SC/ST(POA) Act, 1989.
7. Opinion of the Judge : Charges not proved
JUDGMENT
This case is registered as per the charge sheet submitted by ACP Yelahanka Sub Division against accused for the offences punishable under Section U/sec.198, 196, 420 of IPC & Sec.3(1) (q) of SC/ST(POA) Act, 1989.
2. The complaint has been made by the Police Sub-Inspector, DCRE as per the enquiry conducted by the DCRE Authorities, the ADGP vide order No.ಜಾವಿ:18:ಬಿ:ನಾಹಜಾನಿ:2010; Bengaluru, Dtd: 20.9.2018.
3. It is reported in the complaint that accused when disclosing the actual caste did obtained 3 Spl.C.507/2019 caste certificate as on 28.2.1993 and contested Corporation Election and on the basis of the report of revenue authorities, though accused is originally belonging to 'Christian community' had played fraud by obtaining false caste certificate and contested the elections. The matter was referred to Bengaluru Urban Caste Verification Committee which took up the matter and passed order dated: 26.6.2018. On the basis of the order and report came to the ADGP, of DCRE, further enquired and directed to make a report of commission of offence before the jurisdictional police, in turn before this court.
4. On the basis of the complaint, Investigating Officer took up investigation and filed charge sheet. The complainant inspite of issuance of bailable warrant, has not preferred to appear for evidence. The evidence of prosecution is foreclosed. On giving sufficient opportunity to the prosecution to examine necessary witnesses. The 4 Spl.C.507/2019 prosecution at trial got examined PWs-1 to 6 and got exhibited Exs.P.1 to 9 and in defence Exs.D.1 to 5 are being got marked through prosecution witnesses. The statement of the accused u/sec 313 of Crpc recorded, read over and explained to the accused in vernacular language and the accused, denied all the incriminating evidence and he did not choose to lead defence evidence on his behalf.
5. Heard the arguments and perused the materials available on record.
6. The following points would arise for the determination of this Court are as follows;
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that within the Yelahanka police station, accused prepared false certificate that he belonging to Adi Dravida caste and on 28.2.1993, 7.7.2005 and 10.3.2010 received false certificate from Tahsildar and got elected as BBMP Member and acted that he is belonging to Adi Dravida caste and thereby cheated the Government and thereby committed offence punishable u/s 198, 196 of IPC ?
5
Spl.C.507/2019
2. Whether the prosecution proves beyond all reasonable doubt thaton the aforesaid date, time and place accused prepared false certificate that he belonging to Adi Dravida caste and on 28.2.1993, 7.7.2005 and 10.3.2010 took false certificate from Tahsildar, Bengaluru North Taluk and got the post of BBMP Member of BBMP Ward No.90 election 2010 and acted that he is belonging to Adi Dravida caste and thereby cheated the Government and thereby committed offence punishable u/s 420 of IPC ?
3. Whether the prosecution proves beyond all reasonable doubt that accused participated in BBMP Ward No.90 election 2010 and won as BBMP Member, belonging to Christian caste to get Government facilities gave false information that accused belonging to Adi Dravida caste and got false certificate and used on 28.2.1993, 7.7.2005 and 10.3.2010 and cheated the Government and thereby committed offence punishable u/s 3(1)(q) of SC/ST (POA) Act 1989 ?
4. What Order?
7. My findings to the above points are as follows;
Point No.1: In the Negative Point No.2: In the Negative;
Point No.3: In the Negative 6 Spl.C.507/2019 Point No.4: As per final order for the following;
REASONS
8. POINTS NO.1 AND 2 : The learned SPP submits arguments to prove ingredients of alleged offence punishable u/s.196, 198, 420 of IPC as the facts are interwoven, as such they can be considered simultaneously. This court on going through the material on record the allegations made in the complaint are very specific that the Caste Verification Committee has passed an order dated: 26.6.2018 canceling the caste certificate issued to the accused being not proper. Further the Deputy Commissioner by issuing notice to the present accused had conducted inquiry and found the caste certificate is obtained by playing fraud though father of the accused is 'Christian' accused has obtained as Adi Dravida which is opposed to law and facts. The Deputy Commissioner vide dated: 26.6.2018 has canceled the caste certificate 7 Spl.C.507/2019 of the accused. The same has been sent for DCRE which in turn conducted detailed inquiry and found there is violation made by the accused while obtaining caste report. Accordingly the complaint has been made through Sub Inspector DCRE to the jurisdictional Yelahanka Police. The jurisdictional police in turn registered Cr.No.223/2018, on conclusion of investigation had filed charge sheet.
9. In fact the accused had obtained the caste certificate and stood for election and won the same. The same has been questioned by the concerned unsuccessful candidate before the Deputy Commissioner. As such the Deputy Commissioner passed suitable orders. In fact the accused had obtained the caste certificate only for the sake of getting reserved constituency seat, accordingly he is liable to be punished for playing fraud in getting the caste certificate. The public servant has been induced to issue a false caste certificate, as such even the provisions of sec.3(1)(q) of SC/ST (POA) Act 1989 is 8 Spl.C.507/2019 established. Accordingly based on the material placed on record, accused is to be convicted is the prayer.
10. The learned counsel for the accused submits basically complaint has been made by the Sub- Inspector of DCRE to the jurisdictional police who in turn have filed charge sheet against the accused. However when the Deputy Commissioner who passed orders have been examined before this court who has deposed about passing order as per Ex.P.1, in his cross examination specific admissions got elicited, record has not been brought by the Deputy Commissioner before giving evidence in this case. This witness has admitted that without seeing the record he cannot give the evidence. This witness deposed he cannot say whether notice has been issued to the accused or not during the course of inquiry. This witness specifically deposes that as per the school records, he came to know accused is belonging to Adi Dravida. This witness admits on seeing the caste certificate which is got marked as Ex.D.1 further this 9 Spl.C.507/2019 witness admits the caste certificate issued to accused as Ex.D.2 the cumulative record of accused as Ex.D.3, this witness admits as per these documents the caste of the accused discloses he is Adi Dravida. Further the caste certificates issued to the children of the accused are marked as Ex.D.4 and 5. This witness deposes there is no mention made in the order passed by the Deputy Commissioner that the documents are now shown and obtained by playing fraud in his order. In fact this witness admits without seeing the report of DCRE cannot give whether the documents are obtained by fraud or not. This witness admits when there is complaint only then Tahsildar will examine documents. Further the investigation has to be conducted with regard to practices, food and other habits of the persons, before considering about the caste is of schedule caste or not, then the Tahsildar will do inquiry. This witness denies he has not collected any documents that accused is practicing 'Christianity'.
10
Spl.C.507/2019
11. The learned counsel for the accused argues as per the report placed on record, the ASI who has registered crime is examined as PW.2 Nagaraju, the P.W.3 Sunil.H.B. is a Police Inspector who made report as per the DCRE, SP who placed Ex.P.2 to be reported before the jurisdictional court.
12. The P.W.4 M.H.Somanna is the Grade-II Tahsildar incharge who has deposed about publishing the order of cancelling the caste report of accused. The P.W.5 Chandrashekar is another individual who deposed that accused had obtained false caste certificate and he had won elections and he made the complaint before the BBMP.
13. The P.W.6 John.M is the Head Master of the Lourdes High School, Bengaluru who has deposed about issuing of Ex.P.7, 8 and 9 to the concerned authorities with regard to school records of the accused available in their record.
14. The learned counsel for the accused submits as per the admissions given by the Head Master of the 11 Spl.C.507/2019 School since the date of admission accused is studying as a schedule caste Adi Dravida. In fact as per the report made to the jurisdictional police by the Police Inspector of DCRE, dated:14.9.2010 which clearly discloses the pre-history of the accused, that the mother of the accused is a 'Christian' and the accused since his adulthood is residing separately, the mother of the accused had married Radha Krishna father of the present accused who hails from Tamil Nadu, Adi.Dravida. person, after marriage with the mother of the accused he stayed in Ulsoor, Bengaluru, where he later shown allegnance to Lourde Martha temple, Ulsoor and he converted himself as Xavier Rathnakumar @ Radhakrishna and his another son Karthik is also converted as Karthigeyan @ Thomas. The accused had continued his education in Montessory school of Bengaluru and further studied in Lourde High School and his school records discloses he has not converted and he professed Hindu religion by practice. As such in the report dated: 14.9.2010 the 12 Spl.C.507/2019 Police Inspector had found on making personal inquiry that accused is not professing 'Christianity'. Therefore he has not at all come up before the court to give evidence against the accused in spite of opportunity given. Moreover the documents maintained in Lourde High School discloses accused is not professing 'Christianity' but he is professing Hindu religion. As per the exhibits placed on record, the application for SC/ST has been made in the year 1993-94 before the so called Circulars issued in the year 2002-03 and it has been mentioned accused is son of M.Radhakrishna and Smt.Vijayalakshmi who has got admitted in the year 1987 to school. Therefore the caste certificate issued in the year 1987 would not have been cancelled by the Deputy Commissioner under the Caste Verification Committee which has got jurisdiction only as per the Act of 1989 which came into existence only after 1989, SC/ST (POA) Act 1989 seems reasonable.
15. The Notification of Union of India as per constitution order dated:2.1.2009 the Government of 13 Spl.C.507/2019 Tamil Nadu has considered the Christian born children to Christian parents as per G.O.No.35/1/72 R.V.(SCT) the B dated:2.5.1975. Further the SLP(C)27571/1995 dtd:25.1.1996 of Hon'ble Supreme Court of India G.O.No.35/1/72 R.V.(SCT) the B dated:2.5.1975 it has been considered that Adi Dravida who are Christian religion and also considered as Adi Dravida the original religion to which their forefathers were belonging. The Government order dated: 2.1.2009 passed by the Government of Tamil Nadu 'Adi Dravida' Tribal Welfare (CB) and department is issued based on the circular of Government of India and G.O.No.35/1/72 R.V.(SCT) the B dated:2.5.1975.
16. Further on the recent citation of Hon'ble Apex Court in Civil Appeal No. of 2024, SLP (Civil)No(s).13484-13488 of 2019 dated:28.8.2024 in para-7 and 8 the Hon'ble Apex Court has observed as:
"7. A Constitution Bench of this Court in State of Maharashtra v. Milind and Others1, held that the State Government has no authority to amend or modify the Scheduled Castes and Scheduled Tribes 14 Spl.C.507/2019 list published under Articles 341 and 342 of the Constitution of India. A caste can only be classified as a Scheduled Caste or a Scheduled Tribe or a Socially and Educationally Backward Caste when the Presidential Order is issued to that effect in exercise of the powers prescribed under Articles 341, 342, and 342A of the Constitution of India respectively. In Milind(supra), this Court held as below: -
"15. Thus, it is clear that States have no power to amend Presidential Orders. Consequently, a party in power or the Government of the day in a State is relieved from the pressure or burden of tinkering with the Presidential Orders either to gain popularity or secure votes. Number of persons in order to gain advantage in securing admissions in educational institutions and employment in State services have been claiming as belonging to either Scheduled Castes or Scheduled Tribes depriving genuine and needy persons belonging to Scheduled Castes and Scheduled Tribes covered by the Presidential Orders, defeating and frustrating to a large extent the very object of protective discrimination given to such people based on their educational and social backwardness. Courts cannot and should not expand jurisdiction to deal with the question as to whether a particular caste, sub-caste; a group 1 (2001) 1 SCC 4 or part of tribe or sub-tribe is included in any one of the entries mentioned in the Presidential Orders issued under Articles 341 and 342 particularly so when in clause (2) of the said article, it is expressly stated 15 Spl.C.507/2019 that the said Orders cannot be amended or varied except by law made by Parliament.
The power to include or exclude, amend or alter Presidential Order is expressly and exclusively conferred on and vested with Parliament and that too by making a law in that regard.
The President had the benefit of consulting the States through Governors of States which had the means and machinery to find out and recommend as to whether a particular caste or tribe was to be included in the Presidential Order. If the said Orders are to be amended, it is Parliament that is in a better position to know having the means and machinery unlike courts as to why a particular caste or tribe is to be included or excluded by law to be made by Parliament. Allowing the State Governments or courts or other authorities or Tribunals to hold inquiry as to whether a particular caste or tribe should be considered as one included in the schedule of the Presidential Order, when it is not so specifically included, may lead to problems. In order to gain advantage of reservations for the purpose of Article 15(4) or 16(4) several persons have been coming forward claiming to be covered by Presidential Orders issued under Articles 341 and 342. This apart, when no other authority other than Parliament, that too by law alone can amend the Presidential Orders, neither the State Governments nor the courts nor Tribunals nor any authority can assume jurisdiction to hold inquiry and take evidence to declare that a caste or a tribe or part of or a group within a caste or tribe 16 Spl.C.507/2019 is included in Presidential Orders in one entry or the other although they are not expressly and specifically included. A court cannot alter or amend the said Presidential Orders for the very good reason that it has no power to do so within the meaning, content and scope of Articles 341 and 342. It is not possible to hold that either any inquiry is permissible or any evidence can be let in, in relation to a particular caste or tribe to say whether it is included within Presidential Orders when it is not so expressly included.
(emphasis supplied)
8. Pursuant to the judgment in the case of Milind(supra), the Ministry of Finance, Department of Economic Affairs(Banking Division), Government of India in consultation with the Ministry of Welfare vide letter dated 12th March 1987, declared the State of Karnataka circulars which included the 'Kotegara' caste in the list of Scheduled Castes in the State of Karnataka to be non-est. The letter addressed to the Chairman & Managing Director of the concerned authorities is reproduced herein below:-
"......Persons belonging to Kotegara, Kote- Kshatriya are not entitled to get benefits as scheduled castes in Karnataka. These communities have never been(sic) treated as scheduled castes in Karnataka. The State Government have no power to make any amendment in the existing lists of lists, of SCs/STs can be done only through an Act of Parliament in view of Articles 341(2) 17 Spl.C.507/2019 and 342(2) of the constitution. In view of this, the orders issued by the Govt. of Karnataka to this effect does not have any validity.
In view of the position explained above, persons belonging to Kotegara and Kote- Kshatriya who have been appointed against the vacancy reserved for scheduled castes cannot be treated as scheduled castes even at the time of their initial appointment because these community have never been treated as synonymous of Kotegar- Matri(sic) by the Government of India which is in the list of SC in Karnataka. It is infact, entirely the responsible of employer Department to have the matter verified through the State Government, before accepting the claim of the candidates who have been appointed against the reserved posts."
17. Under such circumstances the question of accused committing the offence does not arise. Since the caste report issued is based on the documents namely the documents issued by the authority has been presented before the admission of the accused to the school. In fact Cumulative record Ex.D.3 and the caste report issued to the accused is of the year 1987 and subsequently on 1993-94 and so on. As such, the Act came into 18 Spl.C.507/2019 effect subsequently as argued by the learned counsel for the accused seems reasonable. Moreover as per the admissions given by the P.W.6 the accused has been got admitted in the year 1.6.1983 but had failed to pas the 6th std who had got admission as on 1981-82 clearly shows that the father of the accused has got admitted him as a Hindu Schedule caste. These documents precede coming into effect, the order passed by the District Magistrate. Moreover, as per the Circular of Government of Tamil Nadu which saves the schedule caste person to profess 'Christianity as the father of the accused hails from Tamil Nadu, Hosuru, the same is clearly applicable to the case on hand. As such the ingredients of offence punishable u/s.196, 198, 420 of IPC are not established by the prosecution is my firm view. In fact, in the evidence of prosecution there is no direct evidence which can show that the documents placed by authority namely the complainant substantiates 19 Spl.C.507/2019 playing fraud by the accused on the Revenue authority while obtaining caste certificate is established. In fact the report of the Investigating Officer has been annexed to charge sheet dated:14.8.2018 runs contrary to the charge sheet filed by the Investigating Officer. Under such circumstances these Points No.1 and 2 are answered in the Negative.
18. POINT NO.3: In the case on hand, in proof of the offence punishable u/s.3(1)(q) of SC/ST (POA) Act 1989, that the accused has played fraud on the Revenue Authority namely Tahsildar in obtaining caste certificate as per the prosecution case, there is no material placed by the prosecution. Moreover the material placed by the prosecution as admitted by P.W.6 in his cross examination establishes accused had obtained the caste certificate from the date of his admission to the school in the year 1981-82 itself. Under such circumstances on going through 20 Spl.C.507/2019 the caste certificate issued as on 18.6.1987 runs contrary to the orders passed by the Deputy Commissioner since as per the decision of State of Maharashtra V/s. Milind and others the observations made by the Hon'ble Apex Court holds good in the present case though accused has not used the same for obtaining any employment, but he has applied as SC/ST member to contest the election as argued by the learned counsel for the accused seems reasonable. The evidence placed by the prosecution does not implicate the accused. Moreover order passed by the Deputy Commissioner though not a subject matter of the present proceedings as held by the Hon'ble Apex Court in Nirmala and others V/s. Canara Bank and another, the present case is not answerable with regard to the Criminal Civil liability and invoking the Act of 1989 to prosecute the accused for the caste certificate obtained even prior to that and moreover the summary prepared by the Investigating Officer 21 Spl.C.507/2019 which is part of the charge sheet, establishes accused is not guilty of the alleged offence punishable u/s.3(1)(q) of SC/ST (POA) Act 1989. Accordingly this court is satisfied to answer Point No.3 in the Negative.
19. POINT NO.4: The accused did complied the provisions of section 437A of Cr.P.C., by providing personal bond before this court, for his appearance before the Hon'ble Appellant court. In view of my foregoing reasons, I proceed the pass the following;
ORDER Acting under Section 235(1) of Cr.P.C., the accused is acquitted of the offences under Section 198, 196, 420 of IPC & Sec.3(1) (q) of SC/ST(POA) Act, 1989.
The accused is set at liberty.
The bail bond of the accused and his surety stands cancelled.
However, the bond executed in
compliance of Sec.437(A) of
22
Spl.C.507/2019
Cr.P.C., shall be in force till
appeal period.
(Dictated to the Stenographer Grade-I, transcribed and typed by her, corrected, signed and then pronounced by me in open Court on this the 5th day of September 2024).
(Rajesh Karnam.K) LXX Addl. City Civil & Session Judge, Special Judge, Bengaluru.
ANNEXURE
1.WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 : K.A Dayananda
P.W.2 : Nagaraju. K
P.W.3 : Sunil H.B
P.W.4 : M.H. Somanna
P.W.5 : Chandrashekar
P.W.6 : M. John
2.DOCUMENTS MARKED FOR THE
PROSECUTION:
Ex.P.1 : D.C. Order Copy
Ex.P.1(a) : Signature of PW.1
Ex.P.2 : Complaint
23
Spl.C.507/2019
Ex.P.2(a),(b) : Signature of P.W.2, P.W.3
Ex.P.3 : FIR
Ex.P.3(a) : Signature of PW.2
Ex.P.4 : Reminder
Ex.P.5 : Report regarding cancellation of
caste
Ex.P.5(a) : Signature of PW.4
Ex.P.6 : Complaint
Ex.P.6(a) : Signature of PW.5
Ex.P.7 : Letter
Ex.P.7(a) : Signature of P.W.6
Ex.P.8 : T.C
Ex.P.8(a) : Signature of P.W.6
Ex.P.9 : Admission Register
Ex.P.9(a) : Signature of P.W.6
Ex.P.9(b) : Selected portion of Ex.P.9
3. WITNESSES EXAMINED FOR THE DEFENCE:
Nil
4. DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D.1 : Form No.1
Ex.D.2 : Caste certificate of accused
24
Spl.C.507/2019
Ex.D.3 : Cumulative record of Uday Kumar
Ex.D.4 : Caste certificate of Akshay Kumar
Ex.D.5 : Caste certificate of Chandan
Kumar
5. LIST OF MATERIAL OBJECTS:
Nil
(Rajesh Karnam.K)
LXX Addl. City Civil & Session Judge, Special Judge, Bengaluru