Delhi District Court
Sh. Upender Kumar Prasad vs Central Bureau Of Investigation (Cbi) on 23 September, 2017
Criminal Appeal No.52/2016
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 52/2016
Under Section : 420/471 IPC read with Section 465 IPC
Zone/Branch : CBI/SCR-I/New Delhi
FIR No. : RC.11(S)2005-SCU-I/SCR-I/New Delhi
CNR No. : DLET01-000735-2017
In the matter of :-
SH. UPENDER KUMAR PRASAD
S/o. Late Kauleshwar Prasad,
R/o. H.No.B-128, Sitapuri, Part-II,
New Delhi-110045. ............APPELLANT
VERSUS
CENTRAL BUREAU OF INVESTIGATION (CBI)
...........RESPONDENT
Date of institution : 03.12.2012
Date of receiving in this court : 23.08.2017
Date of reserving judgment : 15.09.2017
Date of pronouncement : 23.09.2017
Decision : Appeal is dismissed.
JUDGMENT
1. This criminal appeal is directed against the judgment of conviction dated 31.10.2012 and order on sentence dated 27.11.2012, passed by ld. trial court, in a case titled as CBI v. Upender Kumar Prasad, bearing RC.11(S)2005-SCU-I/SCR-I/New Delhi, under Section 420/471 IPC read with Section 465 IPC, Branch-CBI/SCR-I/New Delhi. Vide impugned judgment of conviction dated 31.10.2012, the trial court convicted accused Upender Kumar Prasad (appellant herein) for aforesaid offences. Vide impugned order on sentence dated 27.11.2012, the trial court sentenced convict to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.50,000/- for offence punishable under Section 420 IPC and in Page 1 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 default of payment of fine, convict was to further undergo simple imprisonment for one year. The trial court further sentenced convict to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.10,000/- for offence punishable under Section 471 read with Section 465 IPC and in default of payment of fine, convict was to further undergo simple imprisonment for three months. BRIEF FACTS OF THIS CASE : -
2. Briefly stated, the relevant facts set up by CBI are that on 18.04.1994 accused Upender Kumar Prasad got appointment as Junior Engineer (Civil) vide NDMC committees resolution no.19 dated 18.03.1994 in the pay scale of Rs.1400-40-1800 against the reserved post of ST candidates on the basis of caste certificate of Kharia caste bearing No.242/91, purportedly issued by DM Chhapra on 10.12.1991. CBI alleged that accused did not belong to the ST category and the said caste certificate was not issued from the office of DM Chhapra. CBI further alleged that accused used the said forged caste certificate as genuine before NDMC authorities for getting employment as JE (C) mentioning his caste and showing that the same had been issued from DM Chhapra, having knowledge that the same was fake and forged document and was not issued from the office of DM Chhapra. Accordingly, Insp. Kanshi Ram Sharma made a complaint dated 06.06.2005 addressed to SP CBI SCR-I, New Delhi, on the basis of which present case was registered against accused and the investigation was carried out.
3. After completion of investigation chargesheet was filed against accused for offence punishable under Section 420/471 read with Section 465 IPC and on 05.02.2008 charges were framed against accused Upender Kumar Prasad/appellant herein for offences punishable under Section 420/471 read with Section 465 IPC, to Page 2 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 which he pleaded not guilty and claimed trial.
4. CBI examined 18 witnesses to prove its case. PW1/Sh. Kulbhushan Verma was Office Superintendent (NDMC), who proved recruitment file containing requisition for notification of vacancies issued for 3 vacancies of SC and 3 vacancies of ST and 1 unreserved category. He also proved list sent by Directorate of Employment, Delhi and also the recruitment file alongwith notings recorded therein; PW2/Sh. Yatender Prasad was Senior Assistant (NDMC), who proved the personal file containing photocopy of caste certificate and also the service book of appellant; PW3/Ms. Usha Raju was Lecturer (Chemistry) in PUSA Polytechnique, who proved the seizure of roll register of the appellant from PUSA Polytechnic; PW4/Sh. Kanshi Ram Sharma was the complainant, who conducted enquiry in the present matter and verified the caste certificate of appellant in Patna; PW5/Sh. Chand Verma was Assistant Employment Officer, Employment Exchange, PUSA, who proved list of candidates requisitioned by NDMC; PW6/Mohd. Ansaruddin was Additional Collector (Additional District Magistrate), Chhapra, who proved letter sent by CBI for verification of caste certificate of appellant and submitted his verification report of the caste certificate; PW7/Sh. Vijay Kumar was Assistant in Legal Section of DM Court, Chhapra, who proved order sheet Ex.PW-7/A and further proved seizure memo Ex.PW-7/B executed by CBI officer; PW8/Sh. K.S. Bharti was Section Officer, Civil Establishment (NDMC), who deposed that appellant was selected and appointed under scheduled tribe category and further deposed that at the time of his appointment and selection, photocopy of caste certificate was compared with the original caste certificate and the original documents were returned to the appellant. He further deposed that original caste certificate was Page 3 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 not verified by the NDMC; PW9/Sh. Ravinder Singh was Head Clerk in the office of DWO, Chhapra, Bihar, who proved the attested copies of ST certificate issue register and seizure of letters issued by District Welfare Officer Saran to all block development officers seeking information if any Kharia tribe was residing in their block; PW10/Sh. Gopalji Sharma was Rajasav Karamchari, BDO, Daryapur, Chhapra, Bihar, who proved copy of Khatiyan and Pedigree (vanshawali) of appellant; PW11/Sh. Raj Singh Malik was Head Assistant Vigilance Cell (NDMC), who proved seizure memo dated 01.07.2005 containing service records of appellant; PW12/Sh. S.S. Ali was Deputy Superintendent (CBI/SCR-I, New Delhi), who had collected and seized certain documents relating to this case from Chhapra, Saran, Bihar and also proved seizure of attested copies of ST certificate issue register of the year 1991; PW13/ Sh. Laxmi Narayan Arora was Senior Assistant, Civil Establishment-II, NDMC, who proved seizure of certain records relating to recruitment of JEs including appellant; PW14/Sh. Daroga Prasad Mehto was resident of village of appellant and deposed about appellant's family, occupation and lineage; PW15/ Sh. Nanda Prasad Mehto also deposed in the same lines, as deposed by PW14; PW16/Sh. Gulab Chand was the then District Welfare Officer, who described the procedure with regard to issuance of caste certificate in Bihar and further denied having issued caste certificate Ex.PW-4/F in favour of appellant, as it did not bear any endorsement, which was mandatory for issuance of caste certificate; PW17/Sh. T.P. Bhagat was the then DM of Saran, who deposed on the same lines and denied having issued caste certificate Ex.PW-4/F in favour of appellant, as neither it bore his signature nor his handwriting; PW18/ Sh. S.K. Deshwal is the IO of the case, who conducted investigation, collected evidence, recorded Page 4 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 statement of witnesses. He inter alia proved annual report of Ministry of Tribal Affair containing a list of ST with regard to State of Bihar as Ex.PW18/K1 to Ex.PW18/K4, and further proved documents collected by him during the course of investigation conducted by him including chargesheet.
5. After closing prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. Accused produced six witnesses in his defence i.e. Sh. Mosaheb Mehto as DW1, Sh. Lakhan Dev Mehto as DW2, Sh. Surender Manjhi as DW3, Ms. Rita Devi as DW4, Ms. Juhi Mukherji as DW5 and accused himself as DW6.
6. After appreciating the evidence on record, trial was concluded by convicting accused Upender Kumar Prasad/appellant herein on 31.10.2012 and impugned order on sentence was passed vide order dated 27.11.2012, accordingly.
GROUNDS :-
7. Being aggrieved of impugned judgment of conviction dated 31.10.2012 and order on sentence dated 27.11.2012, appellant has preferred this appeal on the following relevant grounds :-
● That ld. ACMM convicted the appellant without appreciating the fact that the prosecution version of the entire case is rendered doubtful as the same is not supported by any documents/ documentary evidences. The lacunae in the prosecution version is fatal to the prosecution case and hence, the impugned judgment dated 31.10.2012 is bad in the eyes of law, in view of the defective investigation.
● That ld. ACMM did not appreciate that the entire case of the prosecution was based on the unreliable evidence and the circumstances, which cannot be relied upon being untrustworthy. The chain of circumstances linking the appellant with the alleged Page 5 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 offences are not complete and hence, the appellant ought not have been convicted by the trial court.
● That ld. ACMM did not appreciate that there are serious lapses on the part of the prosecution and the prosecution has miserably failed to bring home the guilt of the appellant. ● That ld. ACMM failed to appreciate that the prosecution has deliberately tried to manipulate the investigation in its favour and thereby falsely implicated the appellant in the above noted case. ● That ld. ACMM failed to appreciate that there are material contradictions and deliberate improvements in the statements of the prosecution witnesses, who were examined before the trial court.
● That the trial court did not appreciate the facts that the contradictions and improvements in the statements of the witnesses are such which go to the root of the case and no reliance could be placed on the testimonies of such witnesses. ● That ld. ACMM did not appreciate the testimony of PW18/Insp. S.K. Deswal (CBI) wherein he stated that "it was found that Kharia type tribe is recognized as schedule tribe in the State of Bihar". ● That ld. ACMM did not appreciate the testimony of PW17, wherein he clearly stated that the category of the register Ex.PW9/A to Ex.PW9/C, is not clear as there is no mention of any caste or category on the said register.
● That ld. ACMM committed grave errors by not appreciating the fact that the register on which the prosecution rely, was not the register meant for issuance of certificate to the Schedule Tribes as the copies of register produced by the prosecution bears the name of the caste 'Gonr' which admittedly falls under the OBC categories and the said list is also part of chargesheet and is listed at Page 6 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 document D-37/1 to DD-37/4.
● That ld. ACMM committed errors in not appreciating the documents/ evidences produced by the accused in support of existence of Kharia Tribe in Saran District as well as the documents/ evidences produced by the accused in support of issuance of duplicate education certificates as well as caste certificate, which were taken on record by ld. ACMM. ● That ld. ACMM wrongly observed that the Mukhia is a lay person and is not competent enough to give authentic opinion. ● That the trial court has committed errors in appreciating the general connotation of 'caste' which is meant for 'jaati/jaat' and the Kharia caste is a scheduled tribe, which is well established from the prosecution document listed as D-36/1 to D-36/7. The learned court failed to appreciate the fact that caste in general has different connotation from the constitutional connotation of 'caste' which means 'Scheduled Caste'.
● That the trial court committed error in not appreciating the judgment passed by High Court of Agartala Bench in the case of Shri Abhishek Chandra @ Sachin Besarya v. State of Tripura & Ors, WP No.300 of 2007, wherein High Court held that :-
"while dealing with the offence under Section 420 IPC, it needs to be borne in mind that the means rea is an essential ingredient of an offence of cheating. In the present case, when the petitioner was admittedly not a part of criminal conspiracy to commit "forgery" and it is not the petitioner who had obtained the caste certificate in question there can be no prosecution of the petitioner for offence under Section 420 IPC. In the absence of any cogent accusation indication that the petitioner had, at any stage, come to know, or had any reason to believe, that the caste certificate, which had been obtained by his father, was a false one, the petitioner's prosecution under Section 420 IPC is impermissible. This is besides the fact that the Page 7 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 accusation against the petitioner is otherwise also, not sustainable on the ground that falsity or otherwise of the caste certificate is, in the light of Kumari Madhuri Patil's case and the discussions held above for the Scrutiny Committee under the Maharashtra Act to adjudicate upon to determine and decide."
● That the trial court failed to appreciate the contradictory statement of PW6, PW7, PW9 and PW17 regarding the office from where caste certificates were issued. Trial court also did not appreciate that PW7 contradicted testimony of PW6 in respect of showing any document to him.
● That the trial court failed to appreciate that witnesses were tutored by prosecution and their testimonies are not reliable. ● That the trial court failed to appreciate that investigation was not conducted properly to look into the authenticity of caste certificate and that PW10 admitted that Anchal Adhikari and Anchal Nirikshak were not present during preparation of Ex.PW10/A and Ex. PW10/B. Though, these documents bore their signatures. ● That the trial court did not appreciate that the khatiyan and pedigree (vanshawali) produced before the court was erroneous and that PW10 could not tell the name of public persons from whom he had made inquiry regarding caste of the appellant. ● That the trial court failed to appreciate the testimony of defence witnesses, who vouched that appellant belongs to Kharia caste, which is schedule tribe.
● Thus, the alleged offences were not proved against the appellant and even the trial court was not having jurisdiction to try the cases of falsity of caste certificate and the only competent authority to try such cases is the State Caste Scrutiny Committee.
8.Ld. counsel for appellant relied upon several case laws in support of his contentions, which are as follows :-Page 8 of 22 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 ● Kumari Madhuri Patil & Ors. v. Addl. Commissioner, Tribal Development & Ors. (1994) 6 SCC 241.
● Chairman and Managing Directors FCI v. Jagdish Balaram Bahira & Ors. Civil Appeal No.8928/2015. APPRECIATION OF ARGUMENTS, EVIDENCE AND FINDINGS :-
9. First limb of argument made by ld. defence counsel was based on the guidelines laid down by Supreme Court in the case of Kumari Madhuri (supra). Ld. counsel submitted that this whole prosecution was bad in the eyes of law because CBI did not follow the guidelines laid down by Supreme Court in aforesaid case. According to ld.
counsel, the first step was that certificate in favour of appellant should have been scrutinized by the committee and this caste certificate should have been cancelled by that committee and thereafter, a recommendation should have been made for prosecution of the appellant. Only thereafter, CBI could have registered this case against the appellant. Ld. counsel further submitted that till the time this caste certificate in favour of appellant is cancelled, he is deemed to be Kharia by caste and there is no question to prosecute him.
10.This argument was countered by ld. PP for CBI submitting that the guidelines referred by ld. defence counsel are not applicable to this case because in this case the caste certificate i.e. Ex.PW4/F was never issued to the appellant and it was a forged document, which was not required to be cancelled by the State of Bihar. According to ld. PP for CBI, the guidelines referred by ld. defence counsel could be applicable only in a case where a caste certificate was actually issued by the concerned department.
11.In order to appreciate the rival contentions, it would be relevant to refer to the background in which hon'ble Supreme Court came up Page 9 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 with certain guidelines to streamline the procedure for the issuance of Social Status Certificates, their scrutiny and their approval. In the said case, one of the appellants had applied for issuance of caste certificate as "Mahadeo Koli" through her father. This application was rejected by concerned SDO informing the applicant that she was not a Scheduled Tribe. "Mahadeo Koli" was mentioned as Scheduled Tribe in the concerned Schedule of the State. Appellant filed appeal before Additional Commissioner and she also filed a writ petition before High Court seeking direction for Additional Commissioner to dispose off her appeal and to direct Dean of Medical College to permit her to appear for interview. The applicant had actually applied for admission into MBBS course and she had applied for caste certificate, so as to be treated as ST. She was admitted in MBBS course in pursuance of the direction of High Court and on other hand, Additional Commissioner also directed the Tehsildar to issue her certificate for "Mahadeo Koli". Accordingly, she was issued a certificate of Scheduled Tribe. The applicant further applied to the verification committee for confirmation of her status as Scheduled Tribe. Another appellant i.e. her sister also applied for issuance of Scheduled Tribe Certificate before Divisional Executive Magistrate, using the order passed by High Court in the writ petition filed by her sister. Consequently, the second applicant also applied to the verification committee for confirmation. The verification committee conducted proceedings into the claim of the applicants and found that they were "Koli" by caste and not "Mahadeo Koli". Koli caste was recognized as OBC in the State and thus, this matter reached to Supreme Court in the appeals filed by both the applicants.
12.The factual matrix of aforesaid case make it amply clear that the Supreme Court was dealing with a case, wherein caste certificates Page 10 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 were actually issued by the concerned authorities, but later on the verification committee had refused to confirm the status of applicants as Scheduled Tribe. In the backdrop of such situation, hon'ble court came up with the guidelines in para 13 of the judgment. The court used following language while laying down the guidelines "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."
13.The aforesaid wordings used by Supreme Court and the factual matrix of that case, leave no doubt that the guidelines were laid down in respect of issuance of caste certificates, their verification etc. The direction to launch prosecution against guardian of the minor applicants for making false claim was also issued in the backdrop of the situation that such caste certificate was to be issued on the basis of a claim filed by them. Apparently, the facts of this case are altogether different, wherein allegations have been made that the caste certificate furnished and used by appellant to seek employment in NDMC, was never issued by the concerned office. It was alleged that it was a forged document, which was used by appellant. Therefore, I am in agreement with the contention of ld. PP for CBI that the guidelines laid down in aforesaid case by Supreme Court do not have any application in the present case, as no caste certificate was actually issued by the concerned department (as per allegations). Therefore, I do not find any illegality in the prosecution of the appellant in this case.
14.Ld. defence counsel challenged the case of prosecution taking plea that High Court of Delhi had directed CBI to verify the caste Page 11 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 certificate submitted by those persons, who had secured employment against ST category during the year 1995-2000. However, appellant had secured employment in the year 1994 itself, therefore, CBI could not have lodged FIR against him. Ld. counsel further argued that this FIR was lodged without having backing of law and therefore, this prosecution was bad. Per contra, ld. PP for CBI submitted that CBI had the power to lodge FIR in other situations as well and therefore, there was nothing illegal in the registration of this case against appellant.
15.I am unable to convince myself with the bar presented by ld. defence counsel against registration of this case by CBI, for the reasons that CBI is empowered to lodge a case against any public servant working in Union Territories suo moto as well. CBI is constituted under The Delhi Special Police Establishment Act 1946 and they can suo moto take up investigation in Union Territories by virtue of Section 2 read with Section 3 of the Act. CBI register cases under directions of High Courts and Supreme Court as well. However, that does not mean that CBI could not register a case suo moto even if, crime detected by them was not covered by the directions given by Delhi High Court in the writ petition no.5976/2003. Therefore, once again I do not find any illegality committed by CBI in registering this case against appellant.
16.Next submission made by ld. defence counsel was to challenge the documents proved by CBI. The first document challenged by him was copies of caste issuance register proved by PW9 and his contention was that these documents show that they pertain to scheduled caste certificate issue register, rather that scheduled tribe certificate issue register. According to ld. defence counsel ST caste certificate issuance register was not produced before the court. This argument Page 12 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 was once again challenged by ld. PP for CBI submitting that there is no merit in this argument.
17.On perusal of testimony of PW9/Sh. Ravinder Singh, I find that he mentioned that he had brought original ST certificate issue register maintained in the office of District Welfare Office, Saran, Chhapra, Bihar. He deposed that as per ST certificate issue register, no ST certificate was issued on 10.12.1991 from the office of DM/DWO, Saran. He further deposed that certificate no.242 was issued in the name of Sharma Shah for the caste of Gond on 03.05.1991 and as per his record, the caste certificate of appellant i.e. Ex.PW4/F was never issued in favour of appellant. Attested copies of ST certificate issue register were proved as Ex.PW9/A to Ex.PW9/E. The first suggestion given in cross-examination to this witness was as follows :-
"It is correct that I have brought original ST certificate issue register w.e.f. 30.03.1991 to 20.06.1991 and 28.08.1991 to 12.05.1992."
18.This suggestion itself makes it clear that there was no dispute to the fact that the register produced by this witness was in fact original ST certificate issue register. Therefore, the argument of defence counsel that these documents show that they were copies of SC caste certificate issue register is without merit. In fact this was not the case of appellant during cross-examination of PW9 at all that a different register was produced by him rather than ST caste certificate issue register.
19.In the cross-examination of PW9, the defence counsel had concentrated over the fact that some pages were given numbers while column of number of pages were left blank in other pages. He also concentrated over the fact that the register did not bear seal or stamp of any officer or the date on the first page of the register. In my Page 13 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 opinion, these facts did not make the produced register as SC caste certificate issue register, nor these omissions can be a basis to discard the entries made in that register. These omissions can be attributed to different working style and level of diligence of different officials, who dealt with this register at different point of time. The fact remains that this register was the record of ST caste certificate issuance, which was being maintained in the office of District Welfare Officer, Saran, Bihar and any caste certificate issued from this office was entered in this register for the sake of record. Apparently, the certificate no. 242/91 as mentioned in Ex.PW4/F did not correspond to the relevant entry made in this register at serial no.242, in respect of the person for whom the caste certificate was actually issued from this office.
20.Ld. defence counsel made further submission that the appellant had taken admission in the institute at Pusa Road, New Delhi in the year 1987 on the basis of similar caste certificate. That certificate was misplaced by appellant, therefore, he had obtained duplicate certificate through his uncle in the year 1991 and the aforesaid register could not be the relevant register to show issuance of duplicate caste certificate. He further argued that IO was aware about admission of appellant in Pusa Institute, still he did not make inquiry about the certificate furnished by appellant there.
21.Once again, I do not find any merit in this argument because IO was concerned about the certificate furnished by appellant before NDMC for seeking the employment under ST category. If the certificate used by appellant in the past was not looked into by IO, that did not make any difference for the purpose of this case.
22.As far as issuance of duplicate certificate is concerned, PW9 categorically stated in his cross-examination that there was no Page 14 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 provision of issuance of duplicate certificate from DM Office. It was so reiterated by the then DM, Saran, Bihar i.e. PW17/Sh. T.P. Bhagat. Even I do not find any logic in this proposition of issuance of duplicate caste certificate. A person can obtain caste certificate as many times as he requires, by making relevant application as per procedure prescribed for this purpose. It is not similar situation like educational mark sheet or certificate issued by any educational institution and board suo moto. When the educational certificates or marksheets are issued suo moto by the concerned educational board or institution, then in case of misplacement of such certificate or marksheet, one is required to obtain duplicate copy. However, caste certificate is not issued suo moto by the department and it has a different procedure altogether. Caste certificate is issued on the basis of an application and hence, there is no occasion to issue duplicate certificate. Therefore, I find that such argument is not only contrary to established procedure for issuance of caste certificate (as vouched by PW9 and PW17), but at the same time, it is also illogical. Rather such argument goes on to show a cover up story being presented by appellant to show that he had actually obtained such certificate from the office of DM, Saran, Bihar.
23.Ld. defence counsel also made argument that no adverse finding was given either by Pusa Institute or NDMC in respect of caste certificate furnished by appellant, though they had also verified the same. However, it is to be seen that the verification done by those authorities, if any, was limited to verify the photocopy of certificate from the original certificate. None of the witnesses vouched that they had verified the authenticity of issuance of this certificate from the source. Therefore, such argument cannot help the appellant.
Page 15 of 22 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016
24.Ld. counsel further challenged Khatiyan (revenue record) and Pedigree (vansawali) proved by PW10, stating that these documents cannot prove caste of a person. According to ld. counsel, these documents could only show land holding and family tree of a person. He further submitted that even PW10 admitted that Anchal Adhikari and Anchal Nirikshak were not present when these documents were prepared.
25.In respect of probative value of these documents I would like to refer to the observations made by Supreme Court in the case of Kumari Madhuri (supra), which are as follows :-
"The entries in the school register preceding the Constitution do furnish great probative value to the declaration of the status of a caste. Hierarchical caste stratification of Hindu social order has its reflection in all entries in the public records. What would, therefore, depict the caste status of the people inclusive of the school or college records, as the then census rules insisted upon. Undoubtedly, Hindu social order is based on hierarchy and caste was one of the predominant factors during pre-constitution period. Unfortunately, instead of dissipating its incursion it is being needlessly accentuated, perpetrated and stratification is given legitimacy for selfish ends instead of being discouraged and put an end to by all measures, including administrative and legislative. Be it as it may, people are identified by their castes for one or the other is a reality. Therefore, it is no wonder that caste is reflected in relevant entries in the public records or school or college admission register at the relevant time and the certificates are issued on its basis."
26.The above mentioned observations show that Supreme Court recognized the hierarchal caste of a Hindu reflected in the entries made in the public records and their probative value was duly accepted by the court. Therefore, defence argument that Khatiyan Ex.PW10/A read with Pedigree Ex.PW10/B cannot be relied upon to ascertain caste of the appellant, cannot be sustained.
Page 16 of 22 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016
27.As far as question of presence of two officials along with PW10 is concerned, in his cross-examination PW10 simply admitted the suggestion that these two officials were not present when he prepared Ex.PW10/A and Ex.PW10/B. However, it was neither suggested by appellant that these two documents were not prepared on the basis of actual revenue record or that these documents were not actually signed by these two officials at all, nor was it so stated by PW10. PW10 had testified that he prepared these two documents, after he was given direction to verify the caste of the appellant. Except for name of his brother, appellant did not challenge the correctness of the Pedigree. Name of his brother could be recorded differently at different point of time, hence, that does not make much difference. Appellant did not challenge that name of his great grand father was late Lomar Mehto. He did not challenge the correctness of Khatiyan i.e. Ex.PW10/A as well. In fact, if Ex.PW10/A was not true account of the entries made in revenue records, then same could have been easily rebutted by appellant by summoning the revenue records before the court and by showing that a different entry was made therein regarding particulars of his great grand father and his caste. Ex.PW10/A mentions caste of great grand father of the appellant as Nonia. Apparently, this was an entry made way back long in the public records, thereby mentioning the caste of great grand father of the appellant. Therefore, it has to be given much weightage to ascertain the actual caste of the appellant.
28.The defence witnesses produced by the appellant could not have authority to decide the caste of appellant and apparently being well wisher of the appellant, they came before the court to support and save the appellant.
29.Ld. defence counsel in the written argument has further stated that Page 17 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 caste of Gond for which certificate at serial no.242/91 was issued, was a Scheduled Caste. Therefore, it is apparent that the register produced by PW9 was in fact register for Scheduled Caste rather than Scheduled Tribe.
30.However, Ex.PW18/J i.e. annual report (2004-05) of Ministry of Tribal Affairs, Govt. of India in Annexure-VI mentioned the caste of Gond at serial no.12 for the State of Bihar. This Annexure was list of notified Scheduled Tribes in India. Therefore, the arguments of ld. defence counsel is factually incorrect.
31.Appellant had taken plea during trial and in his statement under Section 313 Cr.P.C that he was from Kharia Tribe, which was a sub- caste of Nonia and therefore, they were also called as 'Kharia Nonia'. He further claimed that since the British period his family was recognized as Kharia Tribe and they were called as Kharia Nonia.
32.The aforesaid Annexure-VI thereby mentioning the Scheduled Tribes in the State of Bihar mentions caste of Kharia at serial no.16. Besides Kharia, at same serial number some other tribes have been also mentioned, which are Dhelki Kharia, Dudh Kharia and Hill Kharia. On the other hand, another undisputed document i.e. Ex.PW18/K2 mentioning the list of OBC in Bihar, mentions caste of Nonia at serial no.42. These two documents are undisputed documents mentioning the list of caste falling under category of Scheduled Tribe and under category of OBC. Kharia and Nonia are apparently two different communities. Kharia has been categorized as Scheduled Tribe and Nonia has been categorized as OBC. Ld. defence counsel did not take my attention to any such list, if issued by the Government, which refer to 'Kharia Nonia' as a community covered under Scheduled Tribe in Bihar. In respect of finality of a community mentioned in these lists, Supreme Court in different cases made following Page 18 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 observations. In the case of Kumari Madhuri (supra), it was held that :-
"Presidential declaration, subject to amendment by Parliament being conclusive, no addition to it or declaration of castes/tribes or sub-castes/parts of or groups of tribes or tribal communities is permissible."
33.In the case of Chairman and Managing Directors FCI v. Jagdish Balaram Bahira & Ors., Civil Appeal No.8928 of 2015 decided on 06.07.2017, Supreme Court observed as under :-
"The Constitution Bench of Supreme Court which decided Milind (supra) was on a reference whether it is permissible to hold an inquiry and let in evidence to decide or declare that any tribe or tribal community or a part or group within the tribe or community is included in the general name, even though it is not so specifically mentioned in the entry contained in the Constitution (Scheduled Tribes) Order, 1950. The Constitution Bench held that it was not permissible either to hold an enquiry or to allow evidence to decide that though a tribe (or its sub group) is not specifically included in the Scheduled Tribes Order, 1950 it must, nonetheless, be treated or deemed to be included in the general name. The view of this court is that an entry in the Order has to be read as it stands."
34.In the case of State of Maharashtra v. Milind, 2017 SCC Online SC 715, Supreme Court held that :-
"36...(1). It is not at all permissible to hold any inquiry or let in any evidence to decide or declare that any tribe or tribal community or part of or group within any tribe or tribal community is included in the general name even though it is not specifically mentioned in the entry concerned in the Constitution (Scheduled Tribes) Order, 1950.
(2) The Scheduled Tribes Order must be read as it is. It is not even permissible to say that a tribe, sub-tribe, part of or group of any tribe or tribal community is synonymous to the one mentioned in the Scheduled Tribes Order, if they are not so specifically mentioned in it.
(3) A notification issued under clause (1) of Article 342, Page 19 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 specifying Scheduled Tribes, can be amended only by law to be made by Parliament. In other words, any tribe or tribal community or part of or group within any tribe can be included or excluded from the list of Scheduled Tribes issued under clause (1) of Article 342 only by Parliament by law and by no other authority.
(4) It is not open to State Governments or courts or tribunals or any other authority to modify, amend or alter the list of Scheduled Tribes specified in the notification issued under clause (1) of Article 342. (ld at p. 30-31)"
35.The above mentioned observations of Supreme Court make it amply clear that any entry in respect of community included in the orders promulgated under authority of President of India has to be read without any variation, addition or modification. Therefore, contention of appellant that Kharia was sub-caste of Nonia, which was covered under Scheduled Tribe cannot be accepted.
36.Even otherwise a sub-caste of Nonia, if there be any, has to be treated as OBC because the parent caste of Nonia has been put under category of OBC. Accordingly, I find that the evidence produced by CBI is sufficient to show that appellant belong to Nonia community and he was not Kharia as shown in the certificate Ex.PW4/F. Thus, he was apparently not a member of Scheduled Tribe, but he did use Ex.PW4/F as a certificate of being member of Scheduled Tribe, to seek employment under category meant for Scheduled Tribe.
37.It has been well established by PW9, PW16 and PW17 that the caste certificate Ex.PW4/F was neither issued from the office of DM or from the office of District Welfare Officer, Saran, nor did it bear signature of the then DM or the then District Welfare Officer. Therefore, this document has to be treated as a forged document. Apparently, CBI did not charge appellant for offence of committing forgery, which could have required different evidences. Appellant was charged and Page 20 of 22 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016 convicted for offence under Section 420 and 471 read with Section 465 IPC.
38.It is well apparent that appellant had deceived NDMC to present himself as a candidate from Scheduled Tribe community and to get employment against a vacancy meant for Scheduled Tribe. It is also well established that this cheating was committed by using Ex.PW4/F, which is a forged document.
39.It cannot be possible that appellant was not aware of his actual caste/ community even if, he had used some caste certificate thereby claiming to be Kharia in the past. He cannot be said to have some misconception. Rather, it goes on to show that he had been misrepresenting himself as member of Kharia community since long. In these circumstances, I do find appellant guilty under Section 420 and 471 read with Section 465 IPC.
40.No specific arguments were made in respect of sentence, by either of the parties. The trial court has referred to the Constitutional objective behind enacting Articles 15 and 16 in the Constitution. Ld. trial court further referred to the observations made by Supreme Court in the case of Kumari Madhuri (supra) and held that this case was squarely covered within the purview of observations of Supreme Court made in the case of Kumari Madhuri (supra) and Regional Manager Central v. Madhulika. Supreme Court in the case of Kumari Madhuri (supra) made following observations :-
"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 Caste or Scheduled Tribe 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."Page 21 of 22 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.52/2016
41.Same sentiment was shown by Supreme Court in other cases like The Chairman, FCI (supra), R.Vishvanathan Pillai v. State of Kerala (2004) 2 SCC 105 etc. Therefore, I need not make any further comments in respect of effect of crime committed by appellant herein. I am in agreement with the reasons given by ld. trial court to adopt deterrent theory of punishment and to sentence accordingly. Therefore, I do not find any ground to interfere with order of sentence as well. Accordingly, present criminal appeal is dismissed.
42.In view of my foregoing discussions, findings and observations, impugned judgment of conviction dated 31.10.2012 and order on sentence dated 27.11.2012 are upheld.
43.TCR be sent back alongwith copy of the judgment to the trial court.
File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court
PRAMACHALA No.3, Karkardooma
Courts, Delhi
Date: 2017.09.26
14:50:43 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 23.09.2017 Special Judge (PC Act) CBI, East
(This order contains 22 pages) Karkardooma Courts, Delhi
Page 22 of 22 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi