Delhi District Court
Cbi vs . : Tun Tun Mahto on 24 February, 2020
IN THE COURT OF HARJYOT SINGH BHALLA
CHIEF METROPOLITAN MAGISTRATE,
ROUSE AVENUE COURT COMPLEX, DELHI.
CBI Vs. : Tun Tun Mahto
Case No. : 73/2019 Digitally signed
RC No : DAI/2009/A0050
HARJYOT by HARJYOT
SINGH BHALLA
U/s : 420/471 of IPC
SINGH Date:
Branch : ACB/Delhi BHALLA 2020.03.02
13:10:59 +0530
JUDGMENT (ORAL)
a) The date of commission of the offence : In the year 1997
b) Name of the Complainant : Source Information
c) Name, parentage & address of accused : Tun Tun Mahto S/o Bankey Lal Mahto R/o Village & Post: Sahasraon, Tehsil: Bhagwanpur, District Siwan, Bihar
d) Offences complained of : 420/471 of IPC
e) The plea of the accused : Pleaded not guilty
f) Date of institution of case : 18.12.2009
g) Date of final arguments : 24.02.2019
h) Date of Reserving Judgment : Oral I) Final order : Acquitted CBI Vs. Tun Tun Mahto page 1 of 30
j) Pronouncement of Judgment : 24.02.2020 BRIEF FACTS AND REASONS FOR THE DECISION:
1. The present case has been registered against accused Tun Tun Mahto on the ground that he got the appointment as Assistant Pump Driver in Delhi Jal Board, Delhi to a post reserved for the "ST" category, on the basis of a forged Caste Certificate bearing no. 205 dated 10.03.1990 and as also a forged National Trade certificate (Technician Certificate) issued by ITI, Marhorah, Bihar.
2. The caste certificate was allegedly issued by the Office of District Welfare Officer, Siwan, Bihar. It is alleged that in the said certificate "Kharia" has been mentioned as his caste, although, he does not belong to the said caste and belongs to "Nonia" caste which is not a Scheduled Tribe but is an other backward caste of Bihar. The said certificate was found not to have been issued by the office of the District Magistrate, Siwan.
3. It is further alleged that the Technician Certificate no. 064160 and Mark Sheet no. 05966 for the Tradewireman for the exam period 18.07.1991 to 31.07.1991of the accused were also found to be forged and, investigation carried out at ITI Institute, Marhorah, Saran, Bihar revealed that, no such certificate or mark sheet was issued to the accused nor was he enrolled for the said course for the said period.
4. The CBI carried out investigation and after completion of investigation, charge sheet was filed in the Court. Copy of the charge sheet was supplied to CBI Vs. Tun Tun Mahto page 2 of 30 the accused under Section 207 Cr.P.C. Charges under Section 420/471 IPC were framed against the accused, to which he pleaded not guilty and claimed trial.
5. The Prosecution has examined following witnesses to prove their case:
PW1 Sh. Birender He was working as DWO, Siwan, Bihar in the Choudhary year 2009. He deposed about the procedure for issuance of caste certificate as per which it was firstly issued at the BDO Level and thereafter, at Sub Divisional Level while retaining the certificate issued by BDO and thirdly, at the DM Level after retaining the certificate issued by SDO. He deposed that caste certificate issued by the DM had a particular number and date of issue and the number was supposed to be unique. He exhibited his letter dated 27.11.2009 and proved the signatures on the same. He deposed that as per official records available in the office caste certificate against entry no. 205 stood issued in the name of one Shiv Kumar Manjhi. He exhibited copy of the relevant page of the issuing register as Ex.PW1/B (the exhibition was objected on the ground that the original was not produced in the court). He proved his signatures attesting the copy. He disputed the certificate CBI Vs. Tun Tun Mahto page 3 of 30 Mark A in favour of the accused. He was duly cross examined by the defence counsel. PW2 Sh. Baid Nath He was working as Revenue Karamchari, BDO, Sah Bhagwan Pur, District Siwan, Bihar during the period 2006 to July 2012 and he exhibited the certified copy of the Khatiyan pertaining to the ancestors of accused Tun Tun Mahto as Ex.PW2/A. He also exhibited his report regarding the caste verification of the accused as Ex.PW2/B. This witness was also cross examined.
PW3 Sh. Subhash He was working as Block Development Officer Narain cumCircle Officer during the period 2009 and he deposed that he had issued instructions to PW2 to verify the caste of the accused and deposed that PW2 had furnished his report being Ex.PW2/B and the handwritten certified copy of relevant page of Khatiyan being Ex.PW2/A. On the said basis, he had issued the letter dated 26.11.2009 to SI Vikas Pathak, CBI which was exhibited as Ex.PW3/A. He also marked as A, a copy of the notification pertaining to caste issued by the Government of Bihar in the year 2005.
PW4 Sh. Paras Ram He was posted as Administrative Officer during the period May 1996 to March 1998 with the CBI Vs. Tun Tun Mahto page 4 of 30 Delhi Jal Board and he exhibited the recruitment file and the signatures of various Delhi Jal Board officials. He basically deposed regarding the selection of the accused as a Scheduled Tribe candidate against the post of Assistant Pump Driver reserved as such.
PW5 Rajniti Devi She is the neighbour of accused at his native place in Bihar. She deposed that the accused belongs to "Nonia" caste.
PW6 Sh. Pramod He was an employee of Delhi Jal Board in the Kumar year 1990 and had maintained the service book and personal file of the accused and he exhibited the same. He proved the various documents pertaining to the appointment of the accused. He also marked as X1 and X2, the National Trade Certificate and Mark Sheet which he claimed was furnished by the accused.
PW7 Sh. Kedar Shah He was posted as Clerk in ITI, Marhorah, District Saran, Bihar during the period 1998 and he exhibited his letter sent in response to the query of the IO as Ex.PW7/1. He also exhibited copy of the Mark Sheet (2 pages) for the exam for Wireman Trade held during 18.07.1991 to 31.07.1991 (I may note here itself that this document was never filed with the chargesheet CBI Vs. Tun Tun Mahto page 5 of 30 and was produced for the first time by the witness).
PW8 Sh. Raja He was a Senior Investigating Officer in Gopalan Vigilance Branch of DJB during the period May 2003 to October 2010. He exhibited the seizure memos of the service book, personal file and recruitment file etc. of the accused.
PW9 Sh. Vikas He is the IO of the case.
Kumar Pathak
6. Prosecution has exhibited following documents: Ex. PW1/A Letter of Birender Choudhary Ex. PW1/B Copy of relevant page of Issuing Register Ex. PW2/A Hand written copy of Khatiyan (signed by Baid Nath Saha) counter signed by Subhash Narain Ex. PW2/B Report of Baid Nath Sah Ex. PW3/A Letter dated 26.11.2009 to SI Vikas Pathak Ex. PW4/A Recruitment file Ex. PW4/B Part of Recruitment File (note 1/N dated 23.09.1996) Ex. PW4/C Part of Recruitment File (letter dated 09.10.1996) Ex. PW4/D Part of Recruitment File (circular dated 09.10.1996) Ex. PW4/E Part of Recruitment File (Minutes of Selection CBI Vs. Tun Tun Mahto page 6 of 30 Committee) Ex. PW4/F Part of Recruitment File (order dated 22.09.1997) Ex. PW4/G Part of Recruitment File (order) Ex. PW4/H Part of Recruitment File (offer of appointment) Ex. PW6/A Personal File and Service Book of accused (colly) Ex. PW6/B Part of Personal File and Service Book (first page of service book) Ex. PW6/C Part of Personal File and Service Book (acceptance of officer at page 11/C) Ex. PW6/D Part of Personal File and Service Book (medical report of accused at page 12/C) Ex. PW6/E Part of Personal File and Service Book (joining report) Ex. PW7/1 Letter dated 25.11.2009 Ex. PW7/2 CForm/Result of ITI for Wireman Ex. PW8/A Seizure memo dated 20.11.2009 Ex. PW8/B Seizure memo dated 02.12.2009 Ex. PW8/C Production cum Seizure memo Ex. PW8/D Letter of accused 04.12.2009 Ex. PW9/A FIR Ex. PW9/B Statement of Birender Choudhary Ex. PW9/C Statement of Subhash Narain Ex. PW9/D Caste Certificate CBI Vs. Tun Tun Mahto page 7 of 30
7. After examining the aforesaid witnesses, PE was closed. In a nutshell, besides the IO, who appeared as PW9, prosecution examined four type of witnesses i.e.:
firstly, those who were employed at Delhi Jal Board and were required to prove the service record / recruitment record of the accused as ST (i.e., PW4, PW6 and PW8);
secondly, those who were involved in the process of issuance of the caste certificate, or responsible for preserving /handling records of the said office and were required to prove that the same was forged ( i.e., PW1);
thirdly, those who were aware about or could prove the caste of the accused as "Nonia" and not "Kharia"(i.e., PW2, PW3 and PW5); (and for reasons stated below their testimony is irrelevant and has been ignored) fourthly, those who could prove that the National Trade Certificate/ITI Certificate for the Tradewireman was forged i.e., (PW7).
8. Accused was examined under Section 313 Cr.P.C. He admitted that he was appointed as Assistant Pump Driver under the ST category and he also accepted his caste certificate (Ex.PW9/D or Mark X2) and claimed that the same was genuine. He, however, declined that the ITI Mark Sheet Mark X and X1 were related to him in any manner or that he had submitted the same with the department. He disputed the copy of the caste issuing register placed on record by PW1 and claimed that the original record had been intentionally withheld and even an incomplete copy is placed on record. He maintained that he belonged to ST category. He also disputed the Khatiyan Ex.PW2/A CBI Vs. Tun Tun Mahto page 8 of 30 produced by the witness. He disputed the reports made by different officials to the IO.
9. Accused examined two witnesses in his defence and erroneously both have been referred to as DW1 in the record. DW1 (Lalit Kumar) exhibited one order dated 30.03.2002 passed by Sh. A.K. Paitendy as Ex.DW1/1 and DW1 (Ashish Kumar Mishra) exhibited the census of India for the years 1981, 1991 and 2001 with respect to District Saran, Bihar and exhibited the same as Ex.DW1/A to Ex.DW1/C.
10. In view of the aforesaid evidence and the stand of the prosecution and the accused following questions arise for consideration:
firstly, whether the certificate Ex.PW9/D was never issued by the concerned authority and was forged?If so, who had forged it?
secondly, whether the accused has used the forged caste certificate knowing or having reason to believe that the same was forged?
thirdly, whether the National Trade Certificate/ITI Certificate was never issued by the concerned authority and was forged?If so, who had forged it?
fourthly, whether the accused has used the forged National Trade Certificate/ITI Certificate knowing or having reason to believe that the same was forged?
fifthly, whether the accused had made a false claim that he was of "Kharia" caste and whereby obtained employment by practicing deception?
sixthly, what offence has been committed?
CBI Vs. Tun Tun Mahto page 9 of 30
11. At the outset, I may point out that CBI has sought to prove that accused has forged/used forged caste certificate and National Trade Certificate. These are two different documents issued by two different authorities. The caste certificate is alleged to have been issued by the DWO, Saran, Bihar and the National Trade Certificate/ITI Certificate by ITI, Marhorah, Saran, Bihar. The caste certificate is being claimed as forged on two counts: i.e. that there is no record of the same having been issued; and secondly, the claim that accused belongs to "Kharia" tribe is itself false, as he belongs to "Nonia" caste.
Similarly, the National Trade Certificate is being claimed as forged on the basis that there is no record of the same having been issued.
12. I shall first deal with the claim that the caste certificate (Ex.PW9/D) is forged because the accused does not even belong to "Kharia" caste which is mentioned on the certificate. I shall do so briefly, ignoring the testimony of PW2, PW3 and PW5 as the said claim cannot be gone into by this court in the facts and circumstances of the present case and the law laid down by the Hon'ble Supreme Court in this regard.
13. Clearly, in the present case, the certificate or the claim that accused did not even belong to "Kharia" caste was never referred to a Scrutiny Committee as directed to be done by the Supreme Court in the decision in Kumari Madhuri Patil Vs. Addl. Commissioner Tribal Development & Ors. reported in 1994 (6) SCC 241. Therefore, the argument that accused was not even of "Kharia" caste and therefore, the document was definitely forged, cannot be even looked into.
CBI Vs. Tun Tun Mahto page 10 of 30
14. I would now deal with the case law dealing with the Supreme Court's direction in the Kumari Madhuri Patil (Supra) and the nature of obligation it created on the State agencies for deciding the claim pertaining to caste claims.
15. The Hon'ble Apex Court in the case of Kumari Madhuri Patil Vs. Addl. Commissioner Tribal Development & Ors. reported in 1994 (6) SCC 241 had laid down the detailed procedure for scrutiny of caste certificates whenever a complaint with regard to its forgery is received which is mandatory and required to be followed, which observations I quote as under:
"....... 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 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 scrutinized 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 CBI Vs. Tun Tun Mahto page 11 of 30 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 concerned Directorate.
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, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the concerned department, (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 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 overall charge and such 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 CBI Vs. Tun Tun Mahto page 12 of 30 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 proforma, 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 concerned castes or tribes or tribal communities 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 acknowledgment due or through the head of the concerned educational institution 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 CBI Vs. Tun Tun Mahto page 13 of 30 claims visavis the objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
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 finalizing the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an office or 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 nonofficial 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 CBI Vs. Tun Tun Mahto page 14 of 30 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.
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 concerned educational institution 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 admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate for further study or continue in office in a post......" (Emphasis is mine)
16. 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 binding force of law till a suitable legislation CBI Vs. Tun Tun Mahto page 15 of 30 was placed on the said aspect by the legislature.
17. 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 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......"
CBI Vs. Tun Tun Mahto page 16 of 30
18. It was made clear in the case of Dayaram Vs. Sudhir Batham & Ors. (Supra) that the Vigilance Cell can make such an inquiry as it may deem expedient and submit its report to the Scrutiny Committee who after giving due hearing to the parties and considering the caste status and objections raised, may pass appropriate orders. It was also observed that the Scrutiny Committee is not an adjudicating authority like a Court or Tribunal but an administrative body which verifies the facts. It investigates into a specific claim of caste status and ascertains whether the caste/ tribal status claimed is correct or not.
19. Thus, the law laid down by the Hon'ble Apex Court in the cases of Kumari Madhuri Patil Vs. Addl. Commissioner Tribal Development & Ors.
reported in 1994 (6) SCC 241; GM, Indian Bank Vs. R. Rani & Anr. reported in 2007 (12) SCC 796 and Dayaram Vs. Sudhir Batham & Ors. reported in 2012 (1) SCC 333 is binding not only upon the investigating agency but also upon this court.
20. In view of my above discussion and by applying the principles as laid down in the case of Kumari Madhuri Patil Vs. Addl. Commissioner Tribal Development & Ors. reported in 1994 (6) SCC 241 as upheld in the cases of GM, Indian Bank Vs. R. Rani & Anr. reported in 2007 (12) SCC 796 and Dayaram Vs. Sudhir Batham & Ors. reported in 2012 (1) SCC 333 to the facts of the present case, it is writ large that on receipt of the information, the CBI did not refer the present case to the Caste Scrutiny Committee which was mandatory.
CBI Vs. Tun Tun Mahto page 17 of 30
21. When confronted with similar issue, the various High Courts i.e. the Gauhati High Court in the case of Sanjib Mazumdar @ Sonti Mazumdar Vs. Sate of Assam reported in 2015 (2) Gauhati Law Reports 216; the Madhya Pradesh High Court in the case of Netram Vs. Koushlendra Singh reported in 2013 SCC Online MP 10538; the Bombay High Court in the case of Bajrangsingh Vs. State of Maharashtra reported in 2013 SCC Online Bom 1531 and our own Delhi High Court in the case of Vimla Singh Vs. State (NCT of Delhi) reported in 2015 SCC Online Del. 7173 had intervened and specifically held that the lodging of criminal case on the allegations of the petitioner having obtained a Caste Certificate by practicing fraud, is impermissible and all criminal proceedings emitting from the same to be a nullity requiring to be set aside and quashed.
22. Therefore, the issue that the accused did not belong to "Kharia" caste cannot be gone into by this court in these proceedings. Therefore, the forgery cannot be proved on the basis of the claim that accused never belonged to "Kharia" caste and he had forged or used the said forged certificate to gain an advantage.
23. I would, at this stage, like to deal with the submission of the counsel for the accused that no criminal proceedings can be initiated for forging a caste certificate unless the matter is referred to Caste Scrutiny Committee. The said submission may not be completely correct. The observations of the Hon'ble Supreme Court in Kumari Madhuri Patil (Supra) carefully use the CBI Vs. Tun Tun Mahto page 18 of 30 expression "certificate issued". What the Supreme Court intended was that if a certificate is found to have been issued by competent authority on the basis of false claim or documents, the same would require scrutiny of the Committee and only thereafter, the same was required to be cancelled. The same cannot be extended to any document which may have been prepared by a person sitting at his home and which is not issued by any Government Department as such a document cannot be said to have been "issued". Therefore, the Supreme Court has in my humble view never directed that in cases of blatant forgery also no prosecution will lie unless the document is referred to Caste Scrutiny Committee. Therefore, this court would be precluded only from going into the question of which is the caste of the accused and not if the document produced was never even issued by any Government Department. It may be pointed out that Supreme Court has not expressly stated that no prosecution will lie under any circumstance but has stated that if a claim is found to be false or a document was gotten "issued" on false claim, prosecution shall be initiated on the basis of the decision of the Scrutiny Committee. Therefore, the forgery of a document i.e. of a purported caste certificate never issued by any authority can always be looked into by criminal courts and the claim that a certificate was obtained on the basis of false claim of caste cannot be gone into by the courts.
24. Whether a particular document is forged or genuine can be established by direct evidence or indirect evidence. Direct evidence may be in the form of the statement of the person in whose name/favour the document has been issued (in this case, the said person is accused and he cannot be expected to prove that the document is forged); or statement of the person who has CBI Vs. Tun Tun Mahto page 19 of 30 prepared the document and signed the same as maker thereof (in the present case, even the concerned officer i.e. the DWO for the period March 1990 has not been examined). Further, the records kept at the concerned office may be proved to show that such certificate was never issued (on this aspect the certified copy of the relevant register has been attempted to be proved). The said fact may also be proved by way of indirect evidence such as by placing on record scientific opinion that the contents of the same are in the opinion of an expert manipulated or forged. However, no such exercise to place any scientific opinion has been carried out in the present case and the case has to proceed on the testimony of the PW1 alone on this aspect who tried to prove the caste issuing register for the relevant period as Ex.PW1/B, as also his own letter dated 27.11.2009 claiming that the certificate was forged as Ex.PW1/A.
25. Therefore, for answering the first question, I would now refer to the testimony of PW1 who claimed to be custodian of the relevant record during the period 2009 when the investigation was being carried out and had joined the investigation (allegedly).
26. PW1 deposed that he was working as DWO, Siwan, Bihar in the year 2009. He deposed about the procedure for issuance of caste certificate as per which it was firstly issued at the BDO Level and thereafter, at Sub Divisional Level while retaining the certificate issued by BDO and thirdly, at the DM Level after retaining the certificate issued by SDO. He deposed that caste certificate issued by the DM had a particular number and date of issue and the number was supposed to be unique. He exhibited his letter dated 27.11.2009 and proved the signatures on the same. He deposed that as per official records CBI Vs. Tun Tun Mahto page 20 of 30 available in the office caste certificate against entry no. 205 stood issued in the name of one Shiv Kumar Manjhi. He exhibited copy of the relevant page of the issuing register as Ex.PW1/B (the exhibition was objected on the ground that the original was not produced in the court). He proved his signatures attesting the copy. He disputed the certificate Mark A in favour of the accused.
27. He was duly cross examined by the defence counsel. He was questioned about his name as disclosed to the IO as the list of witnesses never had his name and the entry at serial no.1 in the list of witnesses reads as follows:
Sh. Madan Chaudhary, (D.O.B 22.12.59) S/o Birender Chaudhary presently working as Distt Welfare Officer, Siwan, residing at Qr. No. DII, Block Colony, Permanent resident of Siri Nagar, Hata, Siwan, Tel no. 9430883183.
28. Now I would refer to relevant portion of his cross examination and I quote the same for ease of reference:
CBI official had visited my office at Siwan and had also recorded my statement at that time. I had disclosed my name as Birender Choudhary but it appears that CBI officials had noted down my name as Madan Choudhary due to some mistake..."
Further in the cross dated 29.06.2016 he deposed as follows:
I had read my statement u/s161 recorded by the CBI officials after it was recorded. I do not recollect in my statement u/s 161 the IO had recorded in my name or in the name of Madan Chaudhary. I do not know CBI Vs. Tun Tun Mahto page 21 of 30 any person with the name of Madan Chaudhary. I have seen my statement and the same is Mark X1. I do not recollect if it is my statement. It is correct that the name mentioned in (PW1) Mark X1 is Madan Chaudhary S/o Devender Chaudhary.
29. It is surprising how the name of the witness was recorded wrongly by the IO and even the witness failed to point out the same when his statement might have been shown to or read out to him. What is more interesting is his statement under Section 161 of Cr.PC where the witness does not depose about handing over of the alleged copy of the caste certificate issuance register to the IO and rather states that he will on the next day supply a copy of the relevant record to the IO whereby it can be concluded whether the certificate is forged or genuine. He also states about giving a written reply to the IO on the next day. Perhaps this written reply which was supposed to be given has been exhibited as Ex.PW1/A. IO had examined the said witness on 27.11.2009 and his written reply Ex.PW1/A is also so dated. However, the alleged copy of the caste certificate issuance register (Ex.PW1/B) is allegedly certified on 30.11.2009. How and when this copy was supplied to the IO is not mentioned in any supplementary statement. There is no seizure memo recording the seizure of the said Ex.PW1/B. The copy does not even seem to be complete. Therefore, I would now revert to the cross examination of PW1 in this regard:
Issuing Register is in the custody of Issuing Clerk posted in the concerned office and the relevant entries are made in the said register by the said clerk. Issuing Register is not lying in the custody of Welfare Officer but Welfare Officer is the over all Controlling Authority of the office wherein issuing Clerk also performs his duty. Issuing CBI Vs. Tun Tun Mahto page 22 of 30 Register is changed only after it gets exhausted and it is immaterial as to whether the same register contains relevant entries of year or more than one year together. I do not remember as to how many entries pertaining to which period, had been made in the Issuing Register attested copy of the relevant page of which has been shown to me today. It is correct that there is neither any signature nor any initial or even the name of the person who had made the entries as appearing in the document Ex PW1/B. It is correct that there is a column appearing on every page of Issuing Register which is meant for signature of the concerned official making relevant entry therein. It is correct that there is no such signature or even initial of any official appearing in document Ex PW1/B. Vol. The xerox copy i.e Ex PW1/B is not the complete photostate copy of the relevant page of Issuing Register. The original Issuing Register must be available in the concerned office. At this stage, further cross examination of the witness is deferred and CBI is directed to take necessary steps for summoning the original Issuing Register for perusal of the Court and for verification of the relevant facts, for the next date of hearing.(emphasis supplied)
30. Therefore, patently, the copy exhibited as Ex.PW1/B is not even complete and proper as far as the relevant entry no. 205 is concerned. Even otherwise, there is nothing to indicate as to from which register the page has been copied as even the first page of the register which would indicate the title of the register has not been properly proved or even annexed to the copy.
The defect was brought to the notice of CBI and direction was passed to them to take necessary steps for summoning the original register and despite that the same was never produced before the court for its perusal. Therefore, in my view, the Ex.PW1/B cannot be said to have been proved in accordance with CBI Vs. Tun Tun Mahto page 23 of 30 law. The alleged copy on record cannot be treated as a certified copy prepared as per law. Even its seizure is not proved and remains doused in mystery.
31. The CBI even failed to investigate whether the alleged certificate was in the format being used by the department or was in some completely unknown format. Relevant portion of the cross examination of PW1 in this regard is as follows:
I was not posted in Welfare office at Siwan in March 1990. I am not aware as to who was posted as District Welfare Officer or District Magistrate in District Siwan in the year 1990. However, the relevant record in this regard, must be available in the office. CBI officials did not ask for providing the relevant record regarding posting of District Welfare Officer of District Magistrate in District Siwan during the period 1990 and that is why, I did not provide any such record to them.
There is prescribed format for issuance of caste certificate. It is correct that I had not brought any such prescribed format today in the Court. Vol. Same was not summoned by the Court for today. Neither I was asked by CBI official about prescribed format of issuance of caste certificate nor I supplied the same. (emphasis supplied)
32. Besides the aforesaid defect, CBI has failed to show that it made any attempt to trace out the District Welfare Officer posted at Siwan on 10.03.1990 who could have admitted or denied the signatures occurring on the questioned document Ex.PW9/D. The incomplete copy of some register, whose title is not indicated by the officer preparing the certified copy, cannot be accepted as clinching evidence to conclude that the document Ex.PW9/D is forged. Needless to say that even the witness PW1 admitted in his cross CBI Vs. Tun Tun Mahto page 24 of 30 examination that:
I can not say if the stamp and seal of District Welfare Officer or district Siwan and Saran for the year 1990 would be available in the said office or not. At the time of investigation the IO did not ask for the said stamps and seal of District Welfare Officer or district Siwan and Saran for the year 1990 from me. During investigation I did not supply the said stamps and seal to the IO.
33. Therefore, investigation on the caste certificate was completely defective and accused is entitled to receive the benefit of the same. Question no. 1 and 2 are accordingly answered in favour of the accused.
34. As far as question no. 3 and 4 are concerned, the manner of proving forgery viz a viz this document is also not much different from the manner in which the caste certificate was sought to be proved as forged i.e. neither the maker has been examined nor records of enrollment of students, nominal roll or examination result have been seized to show that the accused never studied in the said institute, only oral testimony of PW7 was being relied upon besides a letter Ex.PW7/1. Therefore, for deciding this issue testimony of only PW7 and the IO has to be seen. The witness PW7 had deposed that he was posted as Clerk in ITI, Marhorah, District Saran, Bihar during the period 1998 and he exhibited his letter sent in response to the query of the IO as Ex.PW7/1. He also exhibited copy of the Mark Sheet (2 pages) for the exam for Wireman Trade held during 18.07.1991 to 31.07.1991 as Ex.PW7/2 (I may note here itself that this document was never filed with the chargesheet and was produced for the first time by the witness and an objection in this regard was also raised by the counsel for the accused at the stage of exhibition of document).
CBI Vs. Tun Tun Mahto page 25 of 30
35. Counsel for the accused had pointed out that the CForm are usually kept in a bound form and the production of the document in the proposed manner raised suspicion. Ld. Counsel had specifically brought to my attention the cross examination of the witness on 02.04.2016 and the relevant portion is quoted as follows:
I have brought the original of CForm, copy of which is already Ex.PW7/2 today. It is correct that the original of CForm (copy of which is already Ex.PW7/2) is kept in a bound form in the form of book with other CForms for other years/periods....
...It is wrong to suggest that original of CForm could not have been taken from the bound book in any circumstances. It is correct that the bound book containing CForms is paginated. The pages which I have brought today are bearing page no. 20 and 21.
36. He thereafter, pointed out that the witness had also admitted that at the time of his evidence he was posted at Women ITI, Siwan and not at the ITI Marhorah to which the document belongs. The relevant portion of cross examination is as follows:
I am presently posted at Women ITI Siwan, Bihar and upon receipt of summons of the present case I gave written request to ITI Madhoura, Saran, Bihar and thereafter I was handed over the original of original of CForm against the proper receipt by Shri D.N. Singh (Clerk).
37. Therefore, from the above two important aspects arise for consideration i.e. firstly, why this document was not collected by the IO during the investigation as ought to have been done in the present case. Secondly, CBI Vs. Tun Tun Mahto page 26 of 30 whether the production of the two pages of the register by the witness who is not even otherwise posted at the relevant institute can be considered as proper production.
38. As far as the first aspect is concerned, it may be pointed out that it is the duty of the IO to collect all the relevant documents on the basis of which an accused is to be put to trial. All this material is then required to be supplied to the accused under Section 207 of Cr.PC. The idea is clearly to give advance notice to the accused of the documents that will be proved against him during trial. The purpose of advance notice is to ensure fairness of trial by offering opportunity to the accused to offer rebuttal evidence at the relevant stage. Failure on part of the IO to collect a copy of this record definitely impinges upon the right of the accused to a free and fair trial.
39. Coming to the second aspect, it is apparent from the aforesaid portions of cross examination that the two pages in original were supposed to be part of a bound register, that too, in custody of the concerned Clerk at ITI Marhorah, Saran, Bihar. Whereas the witness was working at Women ITI, Siwan, Bihar. How, therefore, he got custody of the two pages out of a bound register kept in some other institute? He did not produce any authority indicating that he had been handed over the two pages by the concerned clerk. He also admitted that he had not handed over this document to IO during investigation while he was posted at ITI, Marhorah, Saran, Bihar during investigation in the following words:
It is correct that document Ex.PW7/2 was not handed over to IO at the time of investigation by me.
CBI Vs. Tun Tun Mahto page 27 of 30
40. Why the two pages were removed from the register has also not been explained. This cast a doubt on the chain of custody and production of the document itself in court.
41. Needless to say that the court cannot conclude that these two pages constitute complete record of the examination and result for the students enrolled for Wiremantrade test during the year 19891991. In fact, this issue was raised by the counsel during cross examination by putting questions to the witness, whose answers are as follows:
The Session of Wireman Trade Test is for a period of two years.
I did not verify as to how many student got enrolled in the year 1989 for the course of Wireman Trade Test. The record of enrollment/admission in the year 1989 must be available with the office of ITI. The CBI official did not take any record regarding the admission/enrollment for the session 19891991. There is a provision of supplementary examination with ITI which is generally held after 45 months of the final result. No supplementary examination of this trade during for the session 19891991 took place VOL: "If any supplementary examination had taken place the record thereof must have been with the CForm but in the present case there was no such record in this file. It is correct that there was no inquiry/investigation by the CBI officers with respect to the supplementary examination. It is wrong to suggest that record of supplementary examination is available in the department, however, it has been deliberately withheld. It is wrong to suggest that I have given false report Ex.PW7/1. It is wrong to suggest that Ex.PW7/2 is not the correct copy of the marksheet (C Form). It is wrong to suggest that since Ex.PW7/2 is not the correct copy that is why it was not handed over to the CBI Vs. Tun Tun Mahto page 28 of 30 IO at the time of investigation. It is wrong to suggest that Ex.PW7/2 is not a genuine document which has been created subsequently in order to favour CBI.
42. Therefore, in my view, the so called extract of the CForm register at the belated stage in the aforesaid circumstances cannot be believed. Further, the IO also admitted that he barely carried out the investigation with regard to the ITI Certificate and I quote the relevant portion thereof:
I have received the letter Ex.PW7/1 from the office of Principal, ITI, Saran. Apart from this letter I did not receive/seize any other document from the office of Principal, ITI, Saran...
...I have not carried out investigation as to who prepared the trade certificate. I did not inquire if there was any provision for supplementary examination. It is correct that I have not seized the marksheet and result sheet of the relevant time from the office of Prinicpal, ITI...
...It is correct that Ex.PW7/1 does not refer to marksheet. It is correct that I carried out investigation with respect to the trade certificate and not with respect to the marksheet.
43. In may view the IO failed to carry out investigation on the said aspect in a proper manner. The original record pertaining to admissions and results was never verified by the IO at the stage of investigation and the alleged two pages produced by the witness PW7 first time in the court in the aforesaid circumstances will not enure to the benefit of the prosecution. It cannot be concluded that the accused never studied at the said institute and never participated in the examination. The question no. 3 and 4 are therefore, answered in favour of the accused.
CBI Vs. Tun Tun Mahto page 29 of 30
44. In these circumstances, accused is clearly entitled to benefit of doubt and entitled to be acquitted. Accordingly, accused is acquitted.
Announced in the open court (HARJYOT SINGH BHALLA)
on 24.02.2020 Chief Metropolitan Magistrate
Rouse Avenue Courts, New Delhi
CBI Vs. Tun Tun Mahto page 30 of 30