Delhi District Court
At Present vs Central Bureau Of Investigation on 30 September, 2020
IN THE COURT OF SPECIAL JUDGE (P. C. ACT) (CBI20)
ROUSE AVENUE DISTRICT COURT, NEW DELHI
Crl. Appeal No. 01/2019
CNR No. DLCT110015432019
Ram Dayal Mehto
S/o Sh. Harakh Nath Mahto
Permanent R/o Village Saraut,
Post Bhagar, PS Siswan,
Distt. Siwan (Bihar)
At Present
R/o C227, Gali No. 39,
Mahavir Enclave
Near Power House
Dwarka, New Delhi .................... Appellant
VERSUS
Central Bureau of Investigation
Plot No. 5(B), 1st Floor, A & B Wing,
AntiCorruption Branch1,
CGO Complex, New Delhi 3 ............................ Respondent
RC No. 12/(S)/2009/SCIII/ND
U/s 420 & 471 IPC
Date of filing of appeal : 02.05.2019
Arguments concluded on : 13.08.2020
Date of judgment : 30.09.2020
Appeal u/s 374(3) CrPC against the judgment dated 29.03.2019
Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 1 of 36
and order of sentence dated 02.04.2019 passed by Ld. CMM,
NorthEast, Karkardooma, Delhi in case CBI/13/2011 titled as
"CBI vs. Ram Dayal Mahto".
JUDGEMENT
1. This is an appeal under Section 374(3) Cr.P.C. against conviction and sentencing rendered by Ld Trial Court presided over by CMM, NorthEast, Karkardooma, Delhi, vide judgement of conviction dt. 29.03.2019 and order on sentencing dt. 02.04.2019 respectively.
2. Vide judgement of conviction dt. 29.03.2019 appellant has been held guilty of offenses punishable under Sections 420 and 471 of Indian Penal Code and vide order on sentencing dt. 02.04.2019 he was sentenced for the offense under Section 420 IPC to undergo rigorous imprisonment for a period of three years and to pay fine of Rs. 10,000/, in default to pay fine, undergo 03 months simple imprisonment and for the offense under Section 471 IPC he was sentenced to rigorous imprisonment for a period of three years and to pay fine of Rs. 10,000/, in default to pay fine, undergo 03 months simple imprisonment.
3. Brief facts leading to the trial of the accused for offense under Section 420 and 471 of IPC are that following source information received at CBI branch at SPE/CBI/SCIII/Delhi present FIR bearing No. RC12(S)/2009/SCIII/ND dt 30.12.2009 was registered Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 2 of 36 on the allegation that appellant/accused Ram Dayal Mahto had secured employment in All India Institute of Medical Science (in short AIIMS), New Delhi as Security and Fire Guard against seat reserved for Schedule Tribe on the basis of a forged and fabricated Schedule Tribe (ST) Certificate dated 13.03.1978 purportedly issued by the District Magistrate, Siwan, Bihar certifying him to be belonging to the community of 'Kharia' recognized as a ST under the Schedule Caste and Schedule Tribe List (modification) Order 1956 and Schedule Cast & Schedule Tribe Orders (Amendment) Act, 1956. AIIMS had issued an appointment letter to the appellant on 20.05.1988 and appellant had joined AIIMS as Security and Fire Guard on 17.06.1988 (FN).
4. Investigation revealed that no such certificate was ever issued by the Office of District Magistrate, Siwan, Bihar nor did it bear genuine signature of any office bearer nor did it bear any serial number. Investigation further revealed that appellant belong to "Nonia" caste which is recognized as Other Backward Caste. Investigation further revealed that no family belonging to Schedule Tribe of "Kharia" ever resided in the Siswan Block. Therefore, the alleged ST Certificate dt. 13.03.1978 of the appellant/accused was forged and fabricated. Investigation further revealed that appellant had obtained the said forged and fabricated certificate from his mother who had reported to have expired and as such the identity of the person who had forged the Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 3 of 36 said ST Certificate dt. 13.03.1978 could not be revealed during investigation. Hence, accused was chargesheeted for offence under Section 420 IPC for cheating and for offense under section 471 IPC for using as genuine a forged and fabricated certificate.
5. After cognizance and compliance with provision of Section 207 CrPC, Ld. Trial Court framed following charges: "That during the year 1988 at Delhi, you Ram Dayal Mahto dishonestly and fraudulently induced the All India Institute of Medical Science (AIIMS) for appointing you as Security and Fire Guard reserved for ST community on the basis of forged Schedule tribes certificate dated 13.03.1978 belonging to the "Kharia" community purported to have been issued by Distt. Magistrate, Siwan and you actually belong to "Nonia" community which comes under the OBC category as mentioned at Sl. No. 42 of the OBC list and you consequently withdrew and received the salary from 1988 to 2009 which was not due to you and thus thereby committed an offense punishable under Sec. 420 IPC and within my cognizance.
Secondly, during the aforesaid period, you Ram Dayal Mahto dishonestly and fraudulently used as genuine document viz. Forged Schedule tribes certificate dated 13.03.1978 belonging to "Kharia" community purported to have been issued by Distt. Magistrate, Siwan which you know or has reason to believe at the time you used it to be forged document and thus, thereby committed an offense punishable under Sec. 471 IPC and within my cognizance."
6. In order to prove its case prosecution had examined 17 witnesses.
Thereafter, statement of appellant under Section 313 CrPC was Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 4 of 36 recored and appellant initially pleaded that he would like to lead defense evidence but later on submitted that he did not want to lead any defense evidence and as such DE was closed. After hearing both parties and appreciating evidence on record Ld. Trial Court of CMM, North East, Karkardooma, Delhi was pleased to convict and sentence the appellant as noted above. Challenging the impugned judgement of conviction and impugned order of sentencing, appellant has filed the present appeal.
7. Appellant has not disputed that he secured employment with AIIMS as a Security and Fire Guard against a reserved seat for Schedule Tribe and has used his Schedule Tribe Certificate dt. 13.03.1978 to support his claim that he belonged to Schedule Tribe "Kharia". He had denied that the Schedule Cast Certificate dt. 13.03.1978 was forged and fabricated and further submitted that it was given to him by his mother. He had submitted that in the year 1978 he was about 16 years old.
8. Central point of challenge to the impugned judgement laid by the appellant through his Counsel Sh. Sanjeet Kumar is that evidences led by the prosecution do not prove that certificate in question was forged and fabricated and that Ld Trial Court committed error in appreciating evidence led by prosecution as Ld. Trial Court in doing so traversed across the realm prohibited for it by law. In the alternative it has been pleaded that even if it is Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 5 of 36 held that the certificate was forged, nothing has been brought on record by the prosecution to establish that appellant knew or had reason to believe that the certificate in question was forged one.
9. Ld PP for CBI Shri Darshan Singh while making the Court to go through the testimonies of all witnesses and record countered the challenge to the impugned judgement submitting that prosecution had established beyond reasonable doubt that the certificate in question was forged and fabricated and that appellant knew it to be so and thus, appellant/accused was rightly convicted on both counts. Sh. Darshan Singh has, thus, supported the impugned judgment. It has been further asserted by him that Ld. Trial Court has flawlessly appreciated the evidence on record and has not traveled into area restricted by law.
10. After hearing submission of both Counsels, this court perused the entire trial court record and took the submissions of the Ld Counsel for parties into consideration.
11. Hon'ble Supreme Court in Kumari Madhuri Patil v. Addl.
Commissioner; 1994 (6) SCC 241 held as under: "13. The admission wrongly gained or appointment wrongly obtained on the basis of false social status certificate necessarily has the effect of depriving the genuine Schedule Castes or Schedule 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 Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 6 of 36 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 SubDivisional Officer and Deputy Collector or Deputy Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or nongazetted officer with particulars of castes and subcastes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a Committee of three officers, namely, (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and (III) in the case of Schedule Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Schedule 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 Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 7 of 36 from. The vigilance officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Schedule Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal communities concerned etc.
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be "not genuine" or 'doubtful' or spurious or falsely or wrongly claimed, the Director concerned should issue showcause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgement due or through the head of the educational institution concerned in which the candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims 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.
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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 daytoday 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 canceling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or 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 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 Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 9 of 36 confiscation simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with acknowledgement due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar the candidate from further study or continue in office in a post."
12. Thus, Hon'ble Supreme Court laid down detail code for the purpose of issuance, approval and scrutiny of Social Status Certificate i.e. Caste/Tribe Certificate along with judicial remedy to the aggrieved person and conferred exclusive jurisdiction upon the Scrutiny Committee as it made its order final subject only to the writ jurisdiction under Article 226 of the Constitution of India.
13. The nature of the above laid down code/guidelines came into discussion in GM, Indian Bank v. R. Rani & Anr.; 2007 (12) SCC 796 and the Honb'le Supreme Court held as under: "6. The directions given in the decision of Kumari Madhuri Patil (supra) have been reiterated in the case of Director of Tribal Welfare, Government of A.P. vs. Laveti Giri and Anr., (1995) 4 SCC 32 in which while reiterating it was observed that Government of India should have the matter examined in greater detail and bring about a uniform legislation in relation to these matters. In the case of Baswant vs. State of Maharashtra & Ors., JT 2000 (10) SC 280 this Court held that the constitution of the Committee was not in accordance with the decision rendered by this Court in Kumari Madhuri Patil (supra), as such the appeal was allowed and it was directed to constitute the Committee in terms of the decision of this Court in the case of Kumari Madhuri Patil (supra) and decide the matter afresh. The said directions of this Court in the case of Kumari Madhuri Patil (supra) regarding constitution of Committee have been approved by a 3Judge Bench of this Court in the case of Sudhakar Vithal Kumbhare v. State of Maharastra and Ors., (2004) 9 SCC 481 in which as the matter was not referred to Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 10 of 36 appropriate Committee in terms of directions given in the case of Kumari Madhuri Patil (supra) the appeal was allowed and it was directed that the properly constituted Committee shall decide the matter. In view of the foregoing discussions it cannot be said that the directions given in the case of Kumari Madhuri Patil (supra) were simply guidelines. In our view, the law laid down in the case of Kumari Madhuri Patil (supra) has been reiterated times without number not only by 2Judge Benches but even by a 3Judge Bench of this Court."
(Emphasis Supplied)
14. The legality and validity of the guidelines laid down in Kumari Madhuri Patil (supra) was doubted in Dayaram v. Sudhir Batham & Ors and as such said case was referred to larger bench and three judge bench of Hon'ble Suprme Court in Dayaram v.
Sudhir Batham & Ors.; 2012(1) SCC 333 held as under: "14. Therefore, we are of the view that directions 1 to 15 issued in exercise of power under Articles 142 and 32 of the Constitution, are valid and laudable, as they were made to fill the vacuum in the absence of any legislation, to ensure that only genuine Schedule caste and Schedule tribe candidates secured the benefits of reservation and the bogus candidates were kept out. By issuing such directions, this court was not taking over the functions of the legislature but merely filling up the vacuum till legislature chose to make an appropriate law."
15. In fact, in the case of Dayaram (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:
Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 11 of 36 "22. 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. If the report supports the claim for caste status, there is no hearing and the caste claim is confirmed. If the report of the vigilance cell discloses that the claim for the social status claimed by the candidate was doubtful or not genuine, a showcause notice is issued by the committee to the candidate. After giving due opportunity to the candidate to place any material in support of his claim, and after making such enquiry as it deems expedient, the scrutiny committee considers the claim for caste status and the vigilance cell report, as also any objections that may be raised by any opponent to the claim of the candidate for caste status, and passes appropriate orders. The scrutiny committee is not an adjudicating authority like a Court or Tribunal, but an administrative body which verifies the facts, investigates into a specific claim (of caste status) and ascertains whether the caste/tribal status claimed is correct or not.
Like any other decisions of administrative authorities, the orders of the scrutiny committee are also open to challenge in proceedings under Article 226 of the Constitution. Permitting civil suits with provisions for appeals and further appeals would defeat the very scheme and will encourage the very evils which this court wanted to eradicate. As this Court found that a large number of seats or posts reserved for Schedule castes and Schedule tribes were being taken away by bogus candidates claiming to belong to Schedule castes and Schedule tribes, this Court directed constitution of such scrutiny committees, to provide an expeditious, effective and efficacious remedy, in the absence of any statute or a legal framework for proper verification of false claims regarding SCs/STs status. This entire scheme in Madhuri Patil will only continue till the concerned legislature makes appropriate legislation in regard to verification of claims for caste status as SC/ST and issue of caste certificates, or in regard to verification of caste certificates already obtained by candidates who seek the benefit of reservation, relying upon such caste certificates."
16. Division Bench of Hon'ble Delhi High Court in Union of India v.
Durjan Mehto 131(2006) DLT 282 held as under: Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 12 of 36 "2. The tribunal in its impugned judgment by relying upon the judgment reported as R. Vishwanatha Pillai v. State of Kerala & Ors. 2004 SCC (LandS) 350, observed that it was incumbent upon the concerned Government department where the employee was alleged to have obtained appointment on forged caste certificate, to refer the matter to the Verification Committee constituted in each State to verify the genuineness of the caste certificate. In the present case the finding as to the respondent's certificate was based upon an investigation held by the CBI which the tribunal noted had even not contacted its Collector for the verification and was further merely based upon a finding by the District Welfare and Circle Officer.
3. In our view since the petitioner had not referred for the verification of the caste certificate of the respondent before the Verification Committee required to be formed after the judgment of the Hon'ble Supreme Court in Madhuri Patil's case (supra) the tribunal has rightly given an opportunity to the petitioner, Union of India, to refer the caste certificate of the applicant to the verification committee and pass a further direction on the basis of the findings of the verification committee." (Emphasis supplied)
17. Hon'ble Delhi High Court in Vimla Singh v. State of NCT;
2015 SCC Online Del 7173 directed the prosecution to file final report under Section 173 CrPC only after obtaining verification report from Scrutiny Committee in following words: "In view of the dictum of Apex Court in Kumari Madhuri Patil (Supra) as reiterated in Dayaram (Supra), let the prosecution obtain a Verification Report regarding caste certificate in question from the Caste Scrutiny Committee, Babu Bhawan, Uttar Pradesh Sachivalya, Lucknow, Uttar Pradesh and for this purpose, communication be addressed to the Principal Secretary, Samaj Kalyan Vibhag, Naveen Bhavan, Uttar Pradesh Sachivalya, Lucknow and thereafter only, final report be filed before the trial court." (Emphasis supplied)
18. In Vikash Jagdish Shipuriya & Anr. v. State of M.P; 2002(3) MPLJ 417 Hon'ble High Court of Madhya Pradesh held as Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 13 of 36 under: "3. This order was assailed before the revisional court and the same has been dismissed, hence, this petition has been filed praying for exercising of inherent power for quashing the courts below orders by this court. The contention of LC for the applicants is that the Supreme Court has ruled in a case of Ku Madhuri Patil and another vs. Additional Commissioner Tribal Development, AIR 1995 SC 94.
11. The order passed by the Committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie. In paragraph 12 of the aforesaid judgment the Supreme court has held as under : For that purpose, it is necessary to streamline the procedure for the issuance of a social status certificate, their scrutiny and their approval.
The Supreme Court has also directed in paragraph 14 as per : 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 the Parliament.
4. In view of the aforesaid directions and guidelines set up by the Supreme court in Madhuri Patil's case (supra) the police has no jurisdiction to take cognizance of complaint lodged by Shri Sharma retired Principal, Hoshangabad for registration of aforesaid offences and investigate into the matters, therefore, the charge sheet filed by Kalapeepal Police against the applicants for offences punishable under sections 420, 467, 468, IPC vide Crime No.213/96 is without jurisdiction and taking of cognizance over the said charge sheet under section 190, Criminal Procedure Code by Magistrate is also without jurisdiction because if anybody has obtained admission or service after procuring false caste certificate relating to ST, SC or OBC, the matter will be enquired into by the Caste Scrutiny Committee constituted in each State and after its final decision, if it is found that the certificate obtained or social status claim is found to be false the parents/ guardian / candidates shall 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, Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 14 of 36 disqualification for elective posts or offices, under the State or the Union or elections to any local body, legislature or the Parliament."
(Emphasis supplied)
19. In Malkit Singh v. State of M.P.; 2010 (5) MPHT 246 Hon'ble Madhya Pradesh High Court quashed the FIR registered against the petitioner for having allegedly used forged caste Certificate, in the following words: "(10.) It is apparent that complaint is based on the fact that the petitioner not being a member of Schedule Caste by falsely representing to be a member of Schedule Caste has filled nomination form for election on the post of Chairman, Jila Panchayat, Ashoknagar. Hence the only allegation against the petitioner is with respect to obtaining forged certificate concerning his caste. As per the law laid down by Apex Court in Kumari Madhuri Patel (supra), such matter with respect to obtaining false certificate is to be inquired into by Caste Scrutiny Committee/State Level Committee constituting in each State. Hence, the proceedings concerning Crime No. 261/2010 registered against the petitioner deserve to be quashed. The State/complainant may refer the matter to State Level Committee for holding an inquiry in accordance with law and guidelines set up by Supreme Court in Kumari Madhuri Patil (supra). It is further directed that in case of such reference, Committee shall inquire into the matter and final verdict be delivered as early as possible keeping in view the guidelines/directions in the aforequoted judgment/order. With the aforesaid direction, the petition is disposed of."
(Emphasis supplied)
20. Similarly, Hon'ble Madhaya Pradesh High Court in Netram v.
Kaushlendra Singh 2013 SCC Online MP 10538 quashed private criminal complaint as well as order directing registration of FIR under Section 120B, 420, 467 and 468 IPC. It held as under: "I have perused the impugned order passed by Judicial Magistrate Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 15 of 36 First Class alongwith the contents of private complaint (Annexure A
2) filed before aforesaid court. It is well settled principle of law that all the State Governments shall constitute a Caste Scrutiny Committee for investigation and enquire into in connection with issuance of false caste certificate relating to ST, SC and OBC. Thus, police has no jurisdiction to investigate the matter regarding issuance of false caste certificate relating to ST, SC and OBC. In these circumstances, the trial Court has committed illegality in passing the aforesaid order of registration of aforesaid complaint against the applicants. If the aforesaid order shall remain continue, it will amount to abuse of process of court."
21. Again in 2018 in Dalchand v. State of M.P. bearing Crl. Rev. No. 1965/2012 decided on 22.02.2018 Single Judge of Hon'ble High Court of Madhya Pradesh relying upon Kumari Madhuri Patil (supra) and Vikas Jagdish Shipuriya (supra) quashed the criminal proceedings in following words: "4. In view of the facts of the present case and the case law as cited above, this court is of the view that the proceeding against the applicants cannot be continued on the basis of the police investigation as the powers are vested only to the Caste Scrutiny Committee constituted in each State.
5. As a result, this criminal revision is allowed and the proceeding of Sessions Trial No.121/09 pending against the applicant is quashed; and following the procedure as laid down in Vikas Jagdish Shpuriya (supra), learned Trial court is directed to return the charge sheet to the concerned Police Authority to have been referred to the State Level Committee for holding an enquiry in accordance with law and guidelines set up by the Supreme Court in Madhuri Patil's case (supra)." (Emphasis supplied)
22. In 2019 the Hon'ble High Court of Madhya Pradesh in Fakira Kachke v. State of M.P. bearing M.Cr.C.No. 11684/2017 decided on 28.11.2019 wherein petitioner therein had approached the Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 16 of 36 Court for quashing of FIR registered against him for allegedly using forged caste certificate, held as under: "7. This Court has gone through the record and arguments put forth by the learned counsel of both the parties. It is undisputed that the jurisdiction to decide whether a person belongs to Schedule caste community or not is solely vested in the caste scrutiny committee as held by the apex court in the case of Kumar Madhuri Patil (supra). From the perusal of Caste Scrutiny community's report filed by the applicant in support of his petition, it appears that the caste scrutiny committee held that it appears that the applicant belonged to Schedule caste community. But the issue before this court is not whether applicant belongs to the Schedule Caste community or not but the question is whether the caste certificate filed by the applicant along with his nomination form is forged or not. It appears from the record that in the caste certificate filed by the applicant along with his nomination form, it is mentioned that said certificate is issued by the Sub Divisional Officer, Tahsil Hujur, Distt. Bhopal. While from the statement of prosecution witnesses and documents filed by the prosecution along with the chargesheet, it appears that the said certificate has not been issued by the Sub Divisional Officer, Tahsil Hujur, Distt. Bhopal. So, it is apparent that the certificate filed by the applicant along with his nomination papers is forged and the applicant used that forged certificate in filing nomination papers in the election of councillor of municipal corporation Bhopal. So, prima facie offence under Section 471 of the IPC is clearly made out against the applicant. The facts of the case Vikas Jagdish Shipuriya (Supra) relied upon by the learned counsel of the applicant do not match with the present case. In that case, it was alleged that accused obtained caste certificate from the authority by producing false affidavit that he belongs to Schedule Tribe community. In this case, it is alleged that the applicant filed forged caste certificate along with his nomination papers which is not issued by the authority. So that judgments also do not assist the applicant." (Emphasis Supplied)
23. Division bench of Hon'ble Bombay High Court in Bajrangsingh v.
State of Maharashtra; 2013 SCC Online Bom 1531 quashed the FIR against the petitioner therein as there was nothing in the order of the Scrutiny Committee by which it had invalidated the Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 17 of 36 caste certificate that the applicant had obtained the false caste certificate by furnishing false information or filing false statement or documents or by any other fraudulent means.
24. Hon'ble Gauhati High Court in Sri Abhishek Chandra @ Sachin Besarya v. State of Tripura bearing W.P.(C) No. 300/2017 decided on 05.09.2011 held as under: "68. I find considerable force in the above submissions, made on behalf of the petitioner, inasmuch as the fact as to whether a caste certificate, issued to a person, is or is not true, correct and valid has to be determined by the Caste Scrutiny Committee in terms of the mechanism, which Kumari Madhuri Patil‟s case (supra), lays down. In terms of the decision, in Kumari Madhuri Patil (supra), when there is a State legislation, in place, in the present case, the correctness and validity of the caste certificate, in the present case, which has been granted in the State of Maharashtra, cannot be scrutinized by way of investigation, or otherwise, by any authority or body or by any Court except the Scrutiny Committee. The only ground, perhaps, which remains open for investigation is as to whether the caste certificate, which the petitioner relies upon, is or is not a forged one and, if the caste certificate is found to be a forged one, there may, perhaps, be a criminal prosecution; but, if the caste certificate has been incorrectly granted, in the State of Maharashtra, cancellation thereof has to be also under the mechanism of the Maharashtra Act and the validity of such a caste certificate cannot be challenged in any court of law, civil or criminal, on the ground that the petitioner does not belong to the Schedule caste except by taking recourse to Article 226 of the Constitution of India.
(Emphasis supplied)
25. Hon'ble Gauhati High Court in Sanjib Mazumdar Sontimazumdar v. State of Assam; 2015 (2) Gauhati Law Reporter 216 quashed the FIR against the petitioner observing as under : Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 18 of 36 "15. In view of what emerged from our forgoing discussion and what have emerged therefrom, I am of the opinion that in terms of law laid down in Kumari Madhuri Patil (supra), the lodging of a criminal case alleging that the petitioner obtained Schedule Castes certificate in his favour by practicing fraud from the authority concerned is not permissible and as such, the criminal proceedings aforementioned needs to be quashed and set aside."
26. From the above discussed excerpts of judgements of Hon'ble Supreme Court and followed and interpreted by many Hon'ble High Courts what has emerged is that guidelines/code laid down in Kumari Madhuri Patil (supra) as modified in Dayaram (supra) is bindings on all as law of land and whenever Social Status Certificate of anyone is doubted or questioned, same may be referred to Scrutiny Committee of concerned State constituted following the guidelines in Kumari Madhuri Patil (supra). The order of the Committee shall be final subject only to writ jurisdiction of Hon'ble High Court under Article 226. No other agency of the state shall look into it and no civil suit or other proceeding shall lie against the order passed by Scrutiny Committee in respect of said Social Status Certificate. Any criminal proceedings qua the said certificate or qua the claim to such social status shall lie only on the direction of the Scrutiny Committee.
27. But above guideline and exclusive jurisdiction of Scrutiny Committee shall come into operation only when the Social Status Certificate has been issued by an authority and is questioned, Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 19 of 36 even if it was issued under false representation or was obtained by practicing fraud upon authority or by filling false affidavit or by any other fraudulent manner. In all such case it has got to be referred to the Scrutiny Committee of the concerned State, if there is no legislation in this respect and if there is legislation to this effect then in accordance with the said legislation. Seer by common knowledge it can be said that even if issuing authority comes to know that such Social Status Certificate has been issued by it on false representation or on fraudulent claim, it has got to refer the matter to the Scrutiny Committee of its State for its revocation/cancellation.
28. But when a Social Status Certificate has been forged that is to say when it has not at all been issued by any authority then the exclusive jurisdiction of the Scrutiny Committee shall not come in the way of investigating agency to investigate forgery and other connected offense. But the scope of investigation shall be limited to forgery and other connected offense only, it shall not go into question if or not the concerned person/accused belong to a particular caste/Tribe. This is so because forging a Social Status Certificate is an offense independent of caste/tribe status. A person belonging to a particular social status may also come with a forged Social Status Certificate and he shall not be absolved of his offense if he happens to be of the same the caste/tribe which his forged certificate purportedly represent.
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29. Thus, when a Social Status Certificate is issued by an authority even on false representation or on fraudulent claim then except for Scrutiny Committee no other agency has got jurisdiction to look into validity and genuineness of the said certificate and claim so made, however, when it has not at all been issued by any authority, not to talk of appropriate authority, that is to say when such certificate is said to have been forged, then investigating agency of the State has got jurisdiction to investigate but limited to aspect of forgery and other connected offense only. It essentially leads to the conclusion that evidence or material connected with the social status aspect of the accused shall be irrelevant for the purpose of establishing forgery and other connected offense.
30. In the present case the allegation against the appellant/accused is that he, knowing that he belonged to "Nonia" caste, a other backward caste, dishonestly and fraudulently represented himself to be belonging to "Kharia", a Schedule Tribe and thus, induced authorities of his employer to issue him letter of appointment against seat reserved for candidate belonging to Schedule Tribe and thus, committed offense of cheating as punishable under Section 420 IPC. He is alleged to have supported his misrepresentation about his social status by his forged Social Status Certificate dt. 13.03.1978 which was found to have not been issued by D.M, Siwan, Bihar.
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31. As already held herein before, in view of the law discussed above, criminal courts have no jurisdiction to go into question as to which caste/tribe accused belong to. Further, till the time it is not established that appellant/accused belong to other backward caste "Nonia", it cannot be held that he knowingly and fraudulently misrepresented about his social status and induced authorities of his employer to appointment him as Security and Fire Guard against seat reserved for ST candidate. Therefore, this court is of the view that the charge to the extent that he dishonestly and fraudulently misrepresented his caste/tribe to authorities of his employer and induced them to appointment him against seat reserved for ST candidate, is not sustainable in view of the bar on the jurisdiction of the criminal court as discussed above. Consequently, any evidence or material collected by Investigation agency and sought to be proved on record by prosecution to prove that appellant/accused belong to "Nonia" caste, the other backward caste and not "Khari", a Schedule Tribe, cannot be taken into consideration for the reason discussed above.
32. So far as remaining part of the first charge that appellant/accused supported his claim by a forged certificate, is concerned that depends upon question as to whether or not prosecution has successfully proved that impugned certificate dt 28.01.1985 is forged and fabricated.
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33. In the light of the above it has now got to be seen what evidences in the form of testimonies and records/documents proved through witnesses, have come on record during trial to sustain the charges against the appellant/accused. Therefore, entire evidence led on the part of the prosecution and defense, if any, has got to be re appreciated.
34. As noted above prosecution has examined as many as 17 witnesses. PW1 Sh. Ravi Chauhan, the Administrative officer at AIIMS. He had handed over to the CBI the recruitment file of the appellant vide seizure memo Ex PW1/1. PW2 Ms. Savita Kumari, the LDC in Vigilance Cell of AIIMS. She had handed over to the CBI vide seizure memo Ex PW2/1 the Service Book Ex. PW2/2, Personal File Ex. PW2/3, Attestation Form and Statement of Salary (w.e.f 01.01.1996 to 31.12.2009) of the appellant/accused.
PW3 Sh. Harish Kalra from Examination Section of AIIMS. He was maintaining Personal File Ex. PW2/3 and Service Book Ex. PW2/2 of the appellant since 1995. He had deposed that in the Service File Ex PW2/2 photocopy of Caste Certificate of appellant was at page No.3. He further deposed that vide letter Ex.PW3/2 appellant was asked to deposit his original Caste Certificate but appellant replied that same was lost. PW5 Sh. S. K. Gupta Sr. Accounts Officer in Krishi Bhawan under Ministry of Consumer Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 23 of 36 Affairs. He had joined AIIMS as Account Officer on deputation. He had handed over to CBI the statement of salary Ex. PW5/1 drawn by appellant/accused. PW9 Sh. R. K. Puri is the retired Registrar AIIMS, Delhi. He deposed about the entire procedure as to how 7 candidates including the appellant/accused were selected for the appointment with AIIMS as Security and Fire Guard. He deposed that appellant was selected against reserved seat for ST having claimed that he came from ST community. PW12 Sh. Amrender Kumar Singh retired from the post of Head Master From Govt. Aided middle School, Chainpur, Bihar. He had handed over to CBI School Leaving Certificate (SLC) Ex. PW12/1 of the accused and other document.
35. Thus, the testimonies of witnesses PW1, PW2, PW3, PW5 and PW12 are not at all relevant for proving that Social Status Certificate of the appellant was forged and fabricated. They have at best proved otherwise undisputed fact that appellant secured employment in AIIMS as Security and Fire Guard against seat reserved for ST category relying upon his Social Status Certificate dt. 13.03.1978 photocopy of which was at page No. 3 of Service Book Ex PW2/2. Testimony of PW12 is not relevant for the question in hand as there is no allegation of misrepresentation qua educational qualification of the appellant/accused.
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36. PW4 Mohd. Ismile and PW8 Sh. Shashi Bhushan Verma are co resident of the village of the accused and both of them deposed in their examinationinchief that accused belonged to "Kharia" community. Surprisingly they were not cross examined by the prosecution. PW7 Sh. Chatto Mehto, PW16 Sh. Sarvan Mehto and PW17 Sh. Ram Balak Mahto, all three are relative of appellant/accused and all three in their respective examinationin chief deposed that accused belonged to "Kharia" community. Only PW16 and PW17 were cross examined by the prosecution. Although prosecution has sought to examine them to prove that appellant/accused belonged to other backward caste "Nonia" community and not "Kharia" community but they did not support case of the prosecution. In any case testimonies of PW4, PW7, PW8, PW16 and PW17 are absolutely not relevant for proving that Social Status Certificate of the appellant/accused was forged and fabricated certificate or that same was not issued from DM or office of DM, Siwan.
37. Similarly, testimony of PW14 Mrs. Sunita Devi is of little help as she had only handed over to CBI various documents allegedly containing signatures of Sh. Ram Bhajan Singh, the then Distt. Magistrate of Siwan. She categorically deposed that she had never seen or met late Sh. Ram Bhajan Singh.
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38. With testimonies of PW1, PW2, PW3, PW4, PW5, PW7, PW8, PW9, PW12, PW14, PW16 and PW17 having become irrelevant for the purpose in hand, prosecution is left with testimonies of PW6 Birender Chaudhary, PW10 Nand Kumar Singh, PW11 Ms. Rekha Rani, PW13 Sh. Mahesh Prasad and Investigating Officer PW15 Sh. A. K. Mukhopadhaya to prove that Social Status Certificate of the appellant was forged and fabricated and that appellant dishonestly and fraudulently used the said forged certificate for securing job with AIIMS against the seat reserved for ST candidate.
39. PW6 Birender Chaudhary in his examinationinchief deposed as under: "At present, I am working at Mahadalit Vikas Mishan at Patna, Bihar as Astt. Director. I have joined service as Block Welfare Officer, Rohtas, Sasaram in 1983. I have joined Siwan as Distt. Welfare Officer on August 2009. All types of welfare activities of the government are being dealt from the office including Caste Certificate is also issued from the office. Witness is shown one document, purportedly issued from his department. After seeing the same, the witness states that this document Mark X1 is photocopy of Caste Certificate of accused Ram Dayal Mahto bearing no serial number whereas this office did not issue any caste certificate without serial number. Furthermore, 'Kharia' Caste which comes under ST Category of caste list, does not reside in the Siswan Block. On the basis of above fact, ADM Sh. Ravinder Tiwari has issued a letter to CBI Ex PW6/1 bearing his signature at point A whom I identify as I have worked with him. In the above mentioned letter, ADM Sh. Ravinder Tiwari has stated that the questioned caste certificate (D2) is forged and the same was not issued from our office. Ex. PW6/1 was attested by me on page no.2 bearing my signatures at point B and is Ex. PW6/2."
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40. Relevant portion of his testimony in his cross examination is as under: "......... I had given statement to CBI officials during investigation. It is correct that I had also mentioned in my statement that the register and other documents in connection with the issue of caste certificate were not found available for the year 1978. I cannot say as to what was the criteria of the concerned department to issue Caste certificates. It is wrong to suggest that only primafacie looking into the document Mark X1, I have said that the said document is forged one. Vol. From official record shown to me including Mark X1, I can say that Mark X1 does not pertain our department as the same does not contain any serial number, Registration Number, date of issuance etc. which is generally required. It is wrong to suggest that Mark X1 has been duly issued from our department and is not forged or fabricated one or that Ex PW6/1 and PW6/2 are also baseless as these do not pertain to the basis of survey showing the criteria of reaching the opinion that case Kharia falls in the category of Schedule Tribe."
41. Ex. PW6/1 is a letter in Hindi stated to be written by ADM Sh.
Ravinder Tiwari to the Superintendent of Police, CBI, though perusal thereof show that it does not contain name of the official who had signed it. In any case it has been issued from Collectorate, Siwan, District Welfare Branch signed by "Apur Samharta" means Additional Collector for and on behalf of "Zilaadhikari" means District Collector, Siwan. The substance of the said letter in English is as under: "In reference to above mentioned letter it is to inform that in the enclosed photocopy of Caste Certificate of Sh. Ram Dayal Mahto, S/o Sh. Harakh Nath Mahto, Vill. Saraut, Post. Bhagar, P.S. Siswan, Distt. Siwan there is no mention of certificate issuance number from district.
Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 27 of 36 Photocopy of the report/certificate of Block Development Officer, Siswan is attached, reporting/certifying to the effect that no kharia (Schedule tribe) resides in the concerned block of Siswan. Issuance Register of the above mentioned period is not available in the office. Therefore, it appears that certificate is forged. Submitted for information."
42. Ex PW6/2 is the photocopy of report of the Block Development Officer of the Siswan block to the effect that no person of kharia Schedule tribe resides in the Siswan block.
43. Thus, PW6 Birender Chaudhary himself has not seen any official record pertaining to year 1978 and concerning issuance of Social Status Certificates nor did he depose to have seen the office record between 1978 and 2009 concerning issuance of Social Status Certificate. The nutshell of the testimony of PW6 is that since Social Status Certificate dt 13.03.1978 of appellant/accused did not contain serial number, registration number or date of issuance etc. and since no such tribe resided in Siswan district, hence same is forged one. He did not produce any record to show the formate of such certificates issued in the year 1978 or around the year 1978. Without going into question as to whether Ex PW6/1 and ExPW6/2 stand proved or not suffice it to say that the Officer in Ex. PW6/2 is assuming the certificate to be forged for the reason that it did not contain certificate issuance number and that it was reported to him that no person of kharia community resided in the Siswan Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 28 of 36 block. The officer in Ex. PW6/2 admitted therein that Certificate Issuance Register of the concerned period is not available. Thus, from the testimony of PW6 and contents of Ex PW6/2 at best it can be said that both PW6 and the officer in Ex PW6/2 doubts the genuineness of the Social Status Certificate of the accused for the aforesaid reason. Thus, the testimony of PW6 and contents of PW6/2 are no better than the testimony of an expert having gained expertise due to long association with work in a particular field or due to specialization in a particular field of knowledge but they are not witness to the fact.
44. PW10 Sh. Nand Kumar Singh is the revenue officials and was posted in the Siswan block in the year 2006. His testimony in examinationinchief is as under: "At present, I am posted at Hussain Ganj, District Siswan, Bihar as a Revenue Karamchari. I have been working as a Revenue Karmachari since 1997.
In the year 2006, I was posted at Sishwan, District Siwan, Bihar. After seeing the document D8 which is a Survey Khatiyan (document regarding the land of the person in whose name is written on the document) which bears my signatures at point A is now Ex PW10/A. In the said, the caste of the person is written as 'Nonia'. The said document is in the name of Sh. Khakol Nonia who is having a land under Khata No. 14, Survey No. 533, 1027, 1028, 1029, 1521 and total land is 15 Khata, 1 Dhur."
45. Thus, it can be seen that testimony of PW10 is directed towards proving that appellant/accused belonged to 'Nonia' community, the other backward caste and not to "kharia" a schedule tribe. His Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 29 of 36 testimony is nowhere near to proving that Social Status Certificate dt. 13.03.1978 of appellant/accused was forged and fabricated. Even if it is held that accused belonged to "Nonia" community that would not prove that his certificate was forged and fabricated. His testimony as well as the Survey Khatiyan record are not helpful in establishing that Social Status Certificate dt 13.03.1978 Mark X1 is forged and fabricated.
46. PW11 Ms. Rekha Rani is the daughter of the then District Magistrate, Siwan, Bihar namely Sh. Ram Bhajan Singh. She was examined to prove that the certificate dt. 13.03.1978 Mark X1 did not bear the signature of Sh. Ram Bhajan Singh but she was unable to admit or deny the signature on the certificate Mark X1 purportedly of Sh. Ram Bhajan Singh. She in examinationon chief deposed as under: "My father Sh. Ram Bhajan Singh was posted as D.M. Siwan. I have seen him writing letters to me or my family and I am well acquainted with his handwriting. Now, I have seen document D2 which is already marked 'X' which is a caste certificate issued to Ram Dayal Mahto under the seal and signature of Sh. Ram Bhajan Singh, the then D.M, Siwan at point A. The said letter issued on 13.03.1978. I have seen the signature of my father Sh. Ram Bhajan Singh, however, at this point of time I cannot say whether these are signatures of my father as it has already been passed long time since my father expired."
47. Thus, even testimony of PW11 Ms. Rekha Rani fails to support the Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 30 of 36 prosecution's case. It is important to note that she did not show her inability to identify the signature on the certificate being photocopy. Infact her inability to deny the signature on the certificate MarkX as that of her father do lead this Court to assume that the form of signature on the certificate was similar to the one her father used to put otherwise if the signature on the certificate had drastically varied in form then she would have denied it on mere seeing it.
48. PW13 Sh. Mahesh Prasad deposed that he was working as District Welfare Officer, Siwan in the year 2010. He stated that vide seizure memo Ex PW13/1 documents mentioned therein at Sl. A to E were seized from him by CBI. The documents mentioned at Sl. No. A to E have been exhibited as Ex PW13/2 to Ex. PW13/6 respectively. All these documents are various office record stated to contain signature of Sh. Ram Bhajan Singh. This witness in cross examination categorically deposed that he had never worked with Sh. Ram Bhajan Singh, the then IAS Officer/District Magistrate of Siwan. He categorically deposed that he cannot identify the signature of Sh. Ram Bhajan Singh, the then DM of District Siwan.
49. The testimony of PW13 is at best proves that he handed over documents mentioned at Sl. No. A to E of the seizure memo Ex PW13/1 allegedly containing signature of the then District Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 31 of 36 Magistrate Sh. Ram Bhajan Singh and list of names of various District Magistrate posted in Siwan at different time. He cannot be said to have proved the documents allegedly containing signatures of Sh. Ram Bhajan Singh. Surprisingly when PW9 Ms Rekha Rani, the daughter of Sh. Ram Bhajan Singh, was in the witness box, prosecution did not show her these to documents so as to get the signatures on documents at Sl. No. A to D identified as that of Sh. Ram Bhajan Singh. Thus, it is found that even in the testimony of PW13 there is nothing which could lead this Court towards believing that certificate in question is forged and fabricated or that same has not been issued from the office of D.M, Siwan under the signature of Sh. Ram Bhajan Singh the then D.M, Siwan.
50. PW15 Sh. A.K. Mukhopadhaya is the investigating Officer. He proved his investigation. In his examinationinchief he deposed how he seized various documents vide various seizure memos as has already been noted above while noting testimonies of various witnesses. His testimony minus cross examination proves nothing but the collection of various documents and examination of witnesses as has already been noted above. It has already been discussed above that documents collected and testimonies of witnesses do not help in establishing even iota of element that the certificate in question is forged and fabricated.
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51. It is also worthwhile to note that in cross examination of PW15 Sh.
A. K. Mukhopadhya nothing came which can buttress the case of the prosecution. In fact he admitted that at the time of employment, letter Ex PW2/4 regarding verification of character and antecedents of accused of appellant and attestation form disclosed the caste of appellant/accused as Kharia and DIU Siswan also remarked on 30.12.1988 that there was nothing adverse against appellant/accused. He further admitted that at the time of employment concerned authority of AIIMS did not get any adverse remarks against appellant/accused. He further admitted that he did not enquire from DIU Siwan regarding the endorsement made. He was unable to answer as to whether any adverse remarks against the appellant was given by D.M, Siwan at the time of employment of accused.
52. It has been seen above that no evidence has came on record which could allow this court to even draw an inference that Social Status Certificate dt 13.03.1978 Mark X1 of the appellant is forged one that is to say that same was not issued by D.M, Siwan or from the office of D.M, Siwan or that signature on the certificate is not that of Ram Bhajan Singh, the then D.M, Siwan.
53. It has been contended by Ld. PP for CBI that evidence on record does prove that appellant/accused belonged to community of "Nonia" which is recognised as other backward caste but appellant Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 33 of 36 despite knowing that he belonged to "Nonia" community represented to AIIMS that he belonged to "kharia" community which is recognised as Schedule Tribe and secured his job against the seat reserved for ST category and thus he committed cheating upon AIIMS and as such he is guilty of offense under Section 420 IPC.
54. The contention of Ld. PP for CBI is not sustainable as it has already been held herein before that in view of the rulings in Kumari Madhuri Patel (supra) no court or agency other than Scrutiny Committee can go into question determining the caste of a person and therefore evidence seeking to prove that appellant/accused belonged to a particular caste and not to a particular tribe, cannot be gone into by this Court and Ld. Trial should have also steered clear of it. Ld. Trial Court having appreciated the evidence seeking to prove caste/tribe of the appellant of the accused, definitely traversed jurisdiction exclusive reserved for Scrutiny Committee. Once this Court or the Court below does not have jurisdiction to decide the caste of appellant/accused, therefore, it cannot be concluded that appellant misrepresented himself before AIIMS regarding his Social Status to secure job against seat reserved for candidate belonging to Schedule Tribe.
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55. As noted above prosecution failed to lead any evidence to the effect that Social Status Certificate dt 13.03.1978 Mark X (also marked as MarkX1) of the appellant/accused is forged and fabricated. Both PW6 and author of Ex PW6/1 remained within the field of suspicion and left the entire case of the prosecution in the realm of suspicion only. It is well settled that suspicion howsoever grave cannot be substitute for proof. Since prosecution failed to prove that Social Status Certificate of the appellant/accused was forged and fabricated it cannot be said that he induced AIIMS for appointing him as Security and Fire Guard against seat reserved for ST community on the basis of forged Schedule tribe certificate dt 13.03.1978 belonging to 'Kharia' community. Further, since prosecution failed to prove that the ST Certificate dt 13.03.1978 marked MarkX1 of the appellant/accused is forged and fabricated, charge under Section 471 IPC for using the said alleged certificate as genuine can also not be sustained. Even if it is assumed that prosecution successfully proved the certificate of the appellant/accused to be forged and fabricated one, there is absolutely no evidence on record that appellant/accused knew his certificate to be forged and fabricated or has reason to believe that his certificate was forged and fabricated.
56. In view of the above discussion and reasoning the impugned judgement of conviction and impugned order on sentence are hereby set aside and appellant/accused is acquitted of both charges Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 35 of 36 under Section 420 and 471 IPC. Fine, if already deposited by him, be returned to him as per rules.
57. Bail bond of the accused and surety bond of the surety is hereby discharged. Original document, if any, of the surety be returned to him as per rules.
58. In terms of section 437A Cr.P.C. appellant is hereby required to furnish personal bond in the sum of Rs. 25,000/ with one surety of like amount. Such bond and surety shall remain valid for a period of six months from the date of furnishing.
59. TCR be sent back with copy of this judgment placed on it.
60. Appeal file be consigned to Record Room after necessary compliance. Digitally signed HARISH by HARISH KUMAR KUMAR Date: 2020.09.30 17:11:20 +0530 (Harish Kumar) Special Judge (PC Act), CBI20 Rouse Avenue District Court (Announced in open Court) New Delhi/30.09.2020 (Judgement contains 36 pages) Crl A. No. 1/2019 Ram Dayal Mahto v. CBI Page No. 36 of 36