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8. Respondent No. 2 appeared and filed affidavit in reply and stated that the petitioner is the political opponent of respondent No. 2. He has filed this application for just harassment. It was held by this Court and the Supreme Court that respondent No. 2 had failed to prove his caste claim. The complaint was lodged against respondent No. 2 by the petitioner out of personal disputes over furnishing documents to one Akbar Baig and another person. It is case of personal vendetta out of political incidents and mainly because respondent No. 2 and other councillors had moved no confidence motion on 7.3.2005 against the petitioner. It is also stated that the petitioner has made false caste claim and he has not come with clean hand before the court and, therefore, the petition should not be entertained. It is further stated that as per Section 11(2) of the Maharashtra Act XXIII of 2001, no court shall take cognizance of an offence punishable under said Section except upon a complaint, in writing, made by the Scrutiny Committee or by any other officer duly authorised by the Scrutiny Committee. In the present case, respondent No. 1 Scrutiny Committee while adjudicating the caste claim did not find it fit case to initiate prosecution nor such direction was given by this Court in writ petition and, therefore, issue is already concluded. One letter dated 24.7.2006 issued by the Member Secretary of respondent No. 1 Committee is produced at Exh. 'R-4' and therein it is mentioned that respondent No. 1 Committee has not given any directions for prosecution in its decision nor authorised any officer to lodge prosecution. The petitioner is not a person who has Page 1085 obtained and produced a false certificate within language of Section 7 of the Maharashtra Act XXIII of 2001. Reference was made to Swami Kalawati v. State of Maharashtra and Anr. ; wherein this Court observed that said case was not fit for sanctioning prosecution. It is also observed that respondent No. 1 Committee rightly decided not to initiate prosecution against the petitioner. In view of Section 16 of the Maharashtra Act XXIII of 2001 no prosecution would lie and hence petition be dismissed.

11. Section 11 of the Maharashtra Act XXIII of 2001 is as follows:

11. Offences and penalties:
(1) Whoever (a) obtains a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means; or (b) not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures any benefits or appointments exclusively reserved for sch Castes, Tribes, or Classes in the Government, local authority or any other company or corporation owned or controlled by the Government or in any Government aided institution, or secures admission in any educational institution against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to any of the elective offices of any local authority or Co-operative Society against the office, reserved for such Castes, Tribes or Classes by producing a false Caste Certificate; shall on conviction, be punished, with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years or with fine which shall not be less than two thousand rupees, but which may extend upto twenty thousand rupees or both.

24. So far as Section 16 of the Maharashtra Act XXIII of 2001 is concerned, whether such defence of acting in good faith should be allowed in prosecution under Section 11 of the Maharashtra Act XXIII of 2001 or not, needs to be examined.

25. While considering Section 11 and particularly Section 11(2) of the Maharashtra Act XXIII of 2001, though ordinarily person who deliberately makes false claim of caste or tribe or who knows that he does not belong to particular Scheduled Caste, Scheduled Tribe, De-notified Tribe, Vimukta Jatis, Nomadic Tribe, Other Backward Class or Special Backward Category, secures such benefit or appointment to post exclusively reserved for such Caste, Tribe or Class, needs to be prosecuted. So if we consider Section 11(1)(a) of the Maharashtra Act XXIII of 2001, it lays down that obtaining a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means, is an offence. So far as Section 11(1)(b) of the Maharashtra Act XXIII of 2001 is concerned, it lays down a person not belonging to any of the Scheduled Caste, Scheduled Tribe, De-notified Tribe, Vimukta Jatis, Nomadic Tribe, Other Backward Class or Special Backward Category, secures such benefit or appointment to post exclusively reserved for such Caste, Tribe or Class is an offence. For offence under Sub-sections 1(a) and 1(b) of Section 11 of the Maharashtra Act XXIII of 2001 minimum punishment is provided. The last phrase used in Section 11(1)(b) of the Maharashtra Act XXIII of 2001 is "by producing a false Caste Certificate". In our opinion, Section 11(1) and Section 11(2) of the Maharashtra Act XXIII of 2001 will have to be read as a whole. There is no difficulty so far as Section 11(1)(a) of the Maharashtra Act XXIII of 2001 is concerned as it itself incorporates mens rea (guilty mind) of the claimant. So far as Section 1 (1)(b) of the Maharashtra Act XXIII of 2001 is concerned, the Full Bench Rulings referred Page 1092 to above clearly show that once person secures benefit or appointment by producing false caste certificate, it will be presumed that he has committed the offence and he will be liable for prosecution.

19. We may also notice that ordinarily a person, who has obtained appointment on the basis of a false certificate, cannot retain the said benefit. See Bank of India and Anr. v. Avinath D. Mandivikar and Ors. (2005) 7 SCC 690, Ram Saran v. I.G. of Police, CRPF and Ors. 2006 (2) SCALE 131 and The Superintendent of Post Offices and Ors. v. R. Valasina Babu Civil Appeal No. 5868 of 2006, disposed of on 14.12.2006.
20. In a situation of this nature, whether the court will refuse to exercise its discretionary jurisdiction under Article 136 of the Constitution of India or not would depend upon the facts and circumstances of each case. This aspect of the matter has been considered recently by this Court in Sandeep Subhash Parate v. State of Maharashtra and Ors. 2006 (8) SCALE 503.