Delhi District Court
Presently At vs Cbi on 18 January, 2018
Criminal Appeal No.210/2016
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 210/2016
Under Section : 420/177/120B/467 IPC
Zone : CBI/SC-1/New Delhi
FIR No. : RC/10(S)/2009/SCU-I
CNR No. : DLET01-006568-2016
In the matter of :-
SH. MILIND KUMAR NIMJE
S/o. Late Bhim Rao Govind Rao Nimje,
C/o. Sh. B.G. Nimje,
R/o. Plot No.487, Deshmukh Wadi,
Near LIC Office, Warud District, Amravati-444906.
Presently at :-
H.No.23, Laxmi Parisar, Phase-II,
Bawadia Kalan, PO Trilanga, Bhopal-462039.
............APPELLANT
VERSUS
1. CBI
(Through its Director)
2. STATE (NCT of DELHI)
............RESPONDENTS
Date of Institution : 19.05.2016
Date of Receiving : 20.05.2016
Date of reserving judgment : 04.01.2018
Date of pronouncement : 18.01.2018
Decision : Appeal is allowed.
JUDGMENT
1. This criminal appeal is directed against the judgment of conviction dated 02.05.2016 and order on sentence dated 17.05.2016, passed by the trial court, in a case titled as CBI v. Milind Kumar Nimje & Page 1 of 18 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 Anr., bearing RC No. 10(S)/2009/SCU-1, under Section 120B read with Section 420/177/467/471/474 IPC. Vide impugned judgment of conviction dated 02.05.2016, the trial court convicted accused Milind Kumar Nimje (appellant herein) for offence punishable under Section 420 IPC and vide impugned order on sentence dated 17.05.2016, the trial court sentenced convict/appellant herein to undergo simple imprisonment for a period of three years and to pay fine of Rs. 20,000/- for offence under Section 420 IPC. In default of payment of fine, convict was to further undergo simple imprisonment for two months.
BRIEF FACTS OF THIS CASE : -
2. Briefly stated, the relevant facts giving rise to this appeal are that on the direction of High Court of Delhi for verification of caste certificate of ST category of government servants and upon receiving certain informations, an FIR No.RC-10(S)/2009/SCU-1 was registered by CBI for offences punishable under Section 120-B read with Section 420, 474, 177, 468 read with Section 471 IPC and substantive offences thereof against accused Milind Kumar Nimje and others unknown.
3. After completion of investigation, on 30.07.2010 chargesheet was filed for offences punishable under Section 120B read with Section 420/177/467/471/474 IPC against accused Milind Kumar Nimje and Surendra Bhimrao Nimje. On 14.08.2013 charges were framed against accused Milind Kumar Nimje and Surendra Bheemrao Nimje for offences punishable under Section 120B read with Section 420 and 177 IPC and for offences punishable under Section 420/177 IPC against both accused, to which they pleaded not guilty and claimed trial.
4. Prosecution examined 12 witnesses in support of its case. PW1/Sh.Page 2 of 18 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 Sandeep Chowbey, who was an officer from UCO Bank, Bhopal and on 23.11.2009, he participated in a search proceeding conducted by CBI at the residence of accused Milind Kumar. Certain documents i.e. Ex. PW1/B (D5) and Ex.PW1/C (D6) were seized in his presence vide a memo Ex.PW1/A (D4). PW2/Insp. Rakesh Kumar Singh was working as Inspector of Police in CBI, Special Crime-I, New Delhi. On receipt of order passed by High Court of Delhi in CWP No.5976/2003 on 17.03.2004 and 14.09.2005 as well as on the basis of source information, he was directed by SP CBI to conduct verification of ST certificate furnished by accused Milind Kumar. During verification, he found that ST certificate in favour of accused Milind Kumar issued in January 2000 was cancelled by SDO, Morshi, Maharashtra in August 2000, since the same was obtained by furnishing incorrect information. He submitted his complaint to SP CBI and on his complaint present RC was registered by SP CBI. Inter alia other documents PW2 proved copy of FIR Ex.PW2/D.
5. PW3/Sh. Praveen Mahendru was posted as AO (Administrative Officer) in Central Pollution Control Board (CPCB), Delhi. In 2009 CBI officer demanded personal file, recruitment file, service book etc of accused Milind Kumar, which was presented by him to that officer (Mr. Awasthi). Same were seized vide memo Ex.PW3/A. The documents delivered by him were Ex.PW3/B (D15), Ex.PW3/C (D16), Ex.PW3/D (D17), Ex.PW3/E (D18) and Ex.PW3/F (D19).
6. PW4/Sh. Bidhi Chand was posted as Assistant in CPCB in the year 2003. He proved advertisement for employment, application of accused Milind Kumar for the job of Senior Scientific Assistant, copy of ST certificate furnished by accused Milind Kumar with his application, offer of appointment of accused Milind Kumar, joining report of accused Milind Kumar, declaration form furnished by Milind Page 3 of 18 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 Kumar, attestation form furnished by accused Milind Kumar and transfer order of accused Milind Kumar as Ex.PW4/A to Ex.PW4/H respectively.
7. PW5/Shalini Narender Deshmukh was posted as Head Master in Zila Parishad Primary School, Rajoura Bazar, Amravati, Maharashtra in the year 2009. Vide letter dated 03.12.2009, he proved attested copy of admission register of this school relating to Ram Rao Govind Rao, Bhimrao Govind Rao and Namdev Laxman to CBI officer Mr. Awasthi. He proved this letter as Ex.PW5/A and attested copy of documents as Ex.PW5/B to Ex.PW5/E. He also proved certificates Ex.PW5/F to Ex.PW5/J, which were issued by another principal of this school.
8. PW6/Sh. Ramesh Bhajan Sahare produced original admission register from same school for the period from 04.07.1944 to 25.06.1951. PW7/Sh. Vijay Janardhan Raout was posted as Judicial Clerk in Tehshil Office, Warud, Amraavati, Maharashtra, in 2009-10. He proved letter dated 03.12.2009 and true copy of Kotwal Register as Ex.PW7/A and Ex.PW7/B. Original register was produced before the court. The entry related to Govind Raghoji Koshti in Kotwal registered was proved as Ex.PW7/C.
9. PW8/Sh. Shriram Rajender Waybhat produced original Kotwal Register for period of 24.02.1935 to 09.11.1939. PW9/Sh. Goraksha Mehadev Gadilkar was posted as SDO at Morshi between 1999- 2001. He had issued the caste certificate in the name of accused Milind Kumar i.e. Ex.PW1/B on 24.01.2000. Thereafter, he cancelled that certificate vide order Ex.PW9/C (D8). Copy of this order was received by Surender Bhimrao Nimje vide his signature appearing at point B on Ex.PW9/C. According to this witness, he had issued a show cause notice to father of accused Milind Kumar i.e. Ex.PW9/B before canceling his caste certificate. This notice was received by Page 4 of 18 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 brother of Milind Kumar namely Surender. An inquiry was conducted into the caste of Milind Kumar and despite service of notice Ex.PW9/B, original ST certificate i.e. Ex.PW1/B was neither produced nor returned by accused. This certificate was otherwise obtained on the basis of furnishing false information of caste.
10.PW10/Sh. Govind Awasthi was SI (Sub Inspector) in CBI and was investigating officer of this case. He conducted search at the residence of accused Milind Kumar and recovered two ST certificates i.e. Ex.PW1/B and Ex.PW1/C. He further collected documents related to service of accused Milind Kumar from his department. He also collected recordings of inquiry conducted by SDO, Morshi, before cancellation of caste certificate. He also collected copy of Kotwal register and copies of admission register related to admission of forefathers of Milind Kumar. He examined several witnesses. Thereafter, investigation was transferred to another IO/Smt. Seema Pahuja.
11.PW11/Sh. D.D. Bargir was working in Central Water Commission, Nagpur on 23.11.2009 and he had also joined raiding team at the residence of accused Milind Kumar. Search was conducted vide memo Ex.PW11/A and caste certificate in the name of Jagdish Bhimrao i.e. Ex.PW11/B was recovered during this search.
12.PW12/Sh. Seema Pahuja was assigned further investigation of this case and she collected subsequent writing and signature of accused Milind Kumar and accused Surender Bhimrao. These specimens were sent along with questioned documents to CFSL for examination and the report was received from CFSL, which is Ex.CW1/C. After conclusion of investigation, she filed chargesheet against accused Milind Kumar and his brother Surender Bhimrao.
Page 5 of 18 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016
13.Accused Milind was examined under Section 313 Cr.P.C, wherein he denied all the allegations including factum of issuance of caste certificate in his favour. In respect of his appointment to the post of Senior Scientific Assistant and furnishing copy of ST certificate with his application, he did not raise any dispute. Though, he disputed that in the declaration form, attestation form and service book he had mentioned his category as SC. He pleaded that this was a false case and he belonged to Halba caste, which is ST caste in Maharashtra. The ST certificate was received by him from Maharashtra State on the basis of which he got the job. In his defence, he examined Sh. Devidas Nimje as DW1, who came to depose that he and his entire family belong to Halba caste, which was part of ST in Maharashtra State. Accused Milind was his nephew, who also belonged to same caste.
14.During trial, accused Milind Kumar had admitted certain documents, which were exhibited as Ex.PW1/A, Ex.PW1/B, Ex.PW1/C, Ex.PW3/A, Ex.PW3/B, Ex.PW3/C, Ex.PW3/D, Ex.PW3/E, Ex.PW3/F, Ex.PW9/A, Ex.PW11/A, Ex.PW11/B, Ex.CW1/B, Ex.CW1/C, Ex.CW1/D and Ex.CW1/E.
15.Final arguments were heard and trial was concluded by convicting Milind Kumar Nimje for offence punishable under Section 420 IPC and order on sentence was passed accordingly.
GROUNDS :-
16.Being aggrieved of impugned judgment of conviction and order on sentence, appellant Milind Kumar Nimje has preferred this appeal mainly on the following relevant grounds :-
● That there is no evidence whereon the impugned judgment and order could be passed and sustained and the trial court had committed a grave illegality in passing the same.Page 6 of 18 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 ● That the trial court failed to consider the fact that appellant got issued a ST certificate bearing No. MRC-81/1708/99-2000 from the office of Sub Divisional Officer, Morshi on 24.01.2000 by declaring and claiming himself as "Habla" (ST). But the same was cancelled in August 2000 without giving any opportunity to the appellant, by the SDO Morshi, Maharashtra, who had no right to cancel the said certificate without informing the appellant. Same was challenged before High Court Bench, Nagpur vide WP No. 2382/2010 and on 05.08.2011, the court issued direction to the Joint Commissioner, ST Caste Scrutiny Committee to be present before the Court on 29.08.2011. Thereafter, the appellant kept on appearing before that Court on various dates. Ultimately appellant filed contempt case on 28.04.2016, but the trial court failed to consider this fact while passing the impugned judgment and order on sentence.
● That the trial court failed to consider the fact that the appellant belongs to Halba as Koshti and both the caste belong to weavers and State time to time change the abovesaid case Halba into Koshti and Koshti into Halba and still Halba comes under the category of Scheduled Tribes.
● That the trial court failed to consider the fact that forefathers of the appellant belongs to Koshti caste (weavers on the basis of trading) and appellant produced the caste certificate of his forefathers since 1939 to till date. Now, the caste Koshti reformed as Halba.
● That the trial court failed to consider that only PW9 stated that the appellant did not belong to Scheduled Tribe and other witnesses have not supported the prosecution case as the same is under the doubt of shadow and benefit of the same goes always in favour of Page 7 of 18 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 the accused i.e. appellant.
● That the trial court has not given any weightage to the direction passed by High Court of Nagpur Bench to set up the Scrutiny Committee to the Joint Commissioner, Amravati, but no Scrutiny Committee was set up by the Govt. of Maharashtra and the matter is subjudice before High Court of Nagpur Bench. ARGUMENT :-
17.Written argument was filed by appellant. The crux of argument advanced on behalf of appellant had been that as per Section 11, 12 and 15 of the Maharashtra SC, ST, OBC and SBC (regulation of issuance and verification of caste) Certificate Act, 2000), Court in Delhi did not have jurisdiction to try this case and the jurisdiction lies only with Magistrate at Nagpur. The further contention of appellant had been that the order dated 04.08.2000 passed by SDO, Morshi so as to cancel the caste certificate in question was set aside by High Court of Mumbai and the matter was referred to Scrutiny Committee to take a decision in respect of caste of the appellant. Therefore, the certificate issued on 24.01.2000 is still valid unless canceled by the Scrutiny Committee and therefore, no offence under IPC including offence under Section 420 IPC was committed by appellant. This Scrutiny Committee is yet to give any finding and hence, this prosecution was bad. Ld. trial court ignored the provisions of Maharashtra Act and the caste of Halba Koshti was treated as SC (Scheduled Caste).
18.Per contra, ld. PP for CBI submitted that the caste certificate dated 24.01.2000 was already canceled prior to obtaining job by accused/ appellant. Appellant challenged order of SDO only after registration of FIR in this case i.e. in February 2010, though, the job was obtained on 01.10.2003. At that time, order of SDO was in operation so as to Page 8 of 18 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 cancel the caste certificate and thus, appellant despite having knowledge of cancellation of this caste certificate furnished the same as genuine certificate and thereby cheated CPCB.
19.Following judgments were relied upon by the counsel for appellant :-
●Sadique Hussain Sheikh Azim Qureshi v. Divisional Caste Certificate, 2010 (6) Mh.L.J. 417.
● Sudhir Vasanrao Dhekan, 2010 (5) Mh.L.J. 353. ● M/s. Nanak Chand Shadurain v. The Tinnelvely-Tuticorin Electric Supply Company Ltd., Calcutta, AIR 1975 Madras 103. APPRECIATION OF EVIDENCE AS WELL AS ARGUMENTS AND FINDINGS :-
20.In this case appellant has been convicted for offence under Section 420 IPC and the relevant conclusion of the trial court can be found in paragraph no.27 of impugned judgment. In this paragraph, it was concluded by the trial court that appellant belongs to Kosthi caste, but in order to have wrongful gains he obtained caste certificate fraudulently under ST category by misrepresenting his caste as Halba and subsequently secured a Government Job thereby depriving entitled candidate. Appellant has not been convicted of any other offence for which charges were framed on 14.08.2013. Even CBI has not opted to challenge acquittal of appellant for other charges.
21.In order to appreciate the rival contentions and evidences on the record, it is relevant to mention the charges framed against appellant for offence under Section 420 IPC. It was alleged that appellant falsely personating to be of Halba Tribe applied for ST certificate from the office of SDO, Morshi and by furnishing false information about his social status, he fraudulently and dishonestly deceived SDO, Morshi to sign and issue a ST certificate of Halba Tribe bearing no. MRC-81/1708/99-2000 dated 24.01.2000. Thus, he committed offence of cheating punishable under Section 420 IPC.
Page 9 of 18 (Pulastya Pramachala)Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016
22.Another charge was framed with allegation that in pursuance to criminal conspiracy, appellant in the year 2002 applied for the post of Senior Scientific Assistant in Central Pollution Control Board, Ministry of Environment and Forest, Delhi, which was reserved for ST candidate, by falsely personating to be a Halba Tribe, though he belongs to Kosthi caste and appellant submitted cancelled/invalid certificate dated 24.01.2000 shown to be issued from the office of SDO, Morshi and by doing so he dishonestly and intentionally induced Central Pollution Control Board to issue an offer of appointment for reserved post of Senior Scientific Assistant under ST category. Thus, he committed offence punishable under Section 420 IPC.
23.Thus, it is apparent that appellant was tried under two heads of charge under Section 420 IPC, which were apparently distinct to each other. The first charge relating to inducing/deceiving SDO, Morshi to issue ST certificate dated 24.01.2000, was though framed in this case, but apparently the place of commission of this offence was not specifically set out in the charge. However, it is well apparent that the alleged deception played upon SDO, Morshi, District Amravati, Maharashtra, was not played in Delhi. It is also well apparent that there was no connection between deception played upon SDO, Morshi and alleged deception played upon Central Pollution Control Board, Delhi. Allegedly the first deception was played in the year 2000 or prior to that. While the second deception against CPCB was played in the year 2002. Testimony of PW4/Sh. Vidhi Chand further established that the advertisement for the post of Senior Scientific Assistant, in CPCB was issued in the year 2002. Meaning thereby, at the time of moving application before SDO, Morshi either in the year 2000 or prior to that, there could not be any Page 10 of 18 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 occasion for appellant to think about advertisement for the post of Senior Scientific Assistant in CPCB, Delhi. Thus, the alleged act of appellant in deceiving SDO, Morshi in the year 2000 at Morshi, District Amravati, Maharashtra was altogether a different cause of action taken place beyond Delhi. That cause of action could not be clubbed with alleged deception of CPCB taking place in Delhi in the year 2002. On the allegation of deception of SDO, Morshi, a separate case should have been registered there, which should have been tried in the court of Judicial Magistrate having jurisdiction over Morshi, District Amravati, Maharashtra. SDO, Morshi did not lodge any such complaint before police. CBI, unless so referred by State of Maharashtra, could not investigate into allegations of cheating of SDO, Morshi.
24.Now, coming to the allegations of deception played by appellant against CPCB to obtain job of Senior Scientific Assistant, reserved for ST candidate, it has to be seen whether appellant had deceived this department with dishonest intention, so as to cheat the department. Two aspects are attached with the alleged deception played by appellant. The first aspect is that though he belonged to Kosthi caste, but falsely personating to be of Halba Tribe, he applied before CPCB, Delhi. Another aspect is that appellant despite having knowledge of cancellation of his cast certificate dated 24.01.2000, furnished the same before CPCB so as to substantiate his claim of belonging to Halba Caste and thereby being entitled to be treated as ST candidate.
25.While dealing with the problem of taking admission on a seat reserved for ST candidate, on the basis of a caste certificate, Supreme Court in the case of Kumari Madhuri Patil and Another v. Additional Commissioner, Trible Development and Others, Page 11 of 18 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 (1994) 6 SCC 241, had laid down certain guidelines to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, in the following terms :-
1. "The application for grant of social status certificate shall be made to the Revenue Sub-Divisional 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 non-gazetted officer with particulars of castes and sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from which he originally hails from and other particulars as may be prescribed by the 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 Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in 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 over all charge and such number of Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance officer should personally verify and collect all the facts of the Page 12 of 18 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 social status claimed by the candidate or the parent or guardian, as the case may be. He should also examine the parent, guardian or the candidate in relation to their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together with all particulars as envisaged in the proforma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the 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 show-cause 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 vis-a-vis 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.Page 13 of 18 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016
8. Notice contemplated in para 6 should be issued to the parents/ guardian also in case candidate is minor to appear before the committee with all evidence in his or their support of the claim for the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to the parent/ guardian and the applicant.
10.In case of any delay in 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 appointment 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 non-official 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 Page 14 of 18 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 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 recovered by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and 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."
26.It is needless to say that the aforesaid guidelines were applicable in case of appellant as well because these guidelines were in operation from the date of judgment i.e. 02.09.1994 up to notification of The Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes And Special Backward Category (Regulation of Issuance and Verification of Caste) Certificate Act, 2000, on 17.10.2001.
27.As per these guidelines, the applicant had to move application for verification of caste certificate by Scrutiny Committee and all the State Governments were directed to constitute a Scrutiny Committee. Complete procedure was laid down for issuance and verification of caste certificate and cancellation thereof.
28.In the present case, PW9/Sh. Goraksha Mehadev Gadilkar had issued caste certificate in favour of appellant for the caste of Halba Tribe on 24.01.2000. As per testimony of PW9, later on, he came to know that appellant did not belong to Halba Tribe and he actually belonged to Kosthi caste. Thereafter, he conducted an inquiry and finally cancelled the caste certificate vide his order dated 04.08.2000. PW9 also testified that he sent a notice to father of appellant to return Page 15 of 18 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 the original caste certificate dated 24.01.2000 and this notice was received by brother of appellant namely Sh. Surender. However, still the original certificate was not returned by the appellant and the cancellation order was also duly received by brother of appellant namely Sh. Surender.
29.First of all, I find that the process of cancellation of this caste certificate was not in conformity with the guidelines mentioned herein above. The matter should have been referred to Scrutiny Committee and decision in respect of actual caste of the appellant was to be taken by the Scrutiny Committee. Depending upon the decision of the Scrutiny Committee, further action to cancel the caste certificate of appellant could have been taken.
30.Appellant admittedly challenged the cancellation order dated 04.08.2000 before High Court of Mumbai in a Writ Petition and High Court of Mumbai in Writ Petition No.2382/2010 vide order dated 05.08.2011 held that SDO, Morshi could not have cancelled the caste certificate, which could have been cancelled by Caste Scrutiny Committee after caste claim of appellant being verified by the Committee. For such reasons, the cancellation order was quashed with direction to appellant to appear before Scrutiny Committee. Thus, the question whether appellant belongs to Halba Tribe or Kosthi caste has to be decided by the Caste Scrutiny Committee. The decision can go either way and in my opinion, it was not appropriate for the trial court to give a particular decision in respect of actual caste of the appellant. The proceeding before Scrutiny Committee is still not complete and in that situation, there is no ground for any court to say that appellant does not belong to Halba Tribe and he cheated SDO, Morshi by making a false claim.
31.The next question is that whether at the time of applying for the job of Page 16 of 18 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 Senior Scientific Assistant in CPCB, appellant had knowledge of cancellation of the caste certificate dated 24.01.2000? If appellant did not have the knowledge of cancellation order dated 04.08.2000, then there remains no ground to say that despite cancellation of this caste certificate, appellant dishonestly applied for job in the year 2002 on the basis of same certificate. The fraudulent and mala fide act on the part of appellant can be inferred only when it is established that appellant despite having knowledge of cancellation dated 04.08.2000, used the same as genuine certificate in force, to claim his status of belonging to Halba Tribe.
32.As per testimony of PW9, notice of inquiry was sent to father of appellant, which was received by brother of appellant. The further part of his testimony shows that the notice of cancellation order dated 04.08.2000 was also delivered to brother of appellant namely Sh. Surender, who was co-accused before the trial court. The trial court has given a finding that the allegations of conspiracy between appellant and his brother Sh. Surener was not established. For such reasons, Sh. Surender was acquitted in this case. Apparently, CBI has not challenged that part of finding of trial court, which is final now. If there was no criminal conspiracy between appellant and his brother Sh. Surender, then it cannot be presumed that appellant was having knowledge of cancellation order dated 04.08.2000. CBI has not produced any such piece of evidence to say and establish that appellant had acquired the knowledge of cancellation order dated 04.08.2000. Therefore, the inevitable conclusion is to be that no fraudulent intention can be inferred against the appellant for using the caste certificate dated 24.01.2000, while applying for the job in CPCB. For want of any finding by Caste Scrutiny Committee and consequent cancellation of the certificate dated 24.01.2000, this Page 17 of 18 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.210/2016 certificate is still presumed to be valid.
33.In view of my foregoing discussions, findings and observations, I find that appellant is entitled for acquittal as the charges for offence under Section 420 IPC against him were not proved beyond all reasonable doubts. Accordingly, present criminal appeal is allowed and impugned judgment of conviction dated 02.05.2016 and order on sentence dated 17.05.2016 are hereby set aside.
34.TCR be sent back along with copy of 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: 2018.01.18
16:00:55 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 18.01.2018 Special Judge (PC Act) CBI, East
(This order contains 18 pages) Karkardooma Courts, Delhi
Page 18 of 18 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi