2003 Supreme(SC) 773

2003(6) Supreme 907
SUPREME COURT OF INDIA
(From Patna High Court)
V.N. Khare, CJI., Brijesh Kumar and S.B. Sinha, JJ.
Punit Rai -Appellant
versus
Dinesh Chaudhary -Respondent
Civil Appeal No. 659 of 2003
Decided on 19-8-2003
Counsel for the Parties :
For the Appellant : Prabha Shanker Mishra, Sr. Advocate, Tathagat H. Vardhan, Vishnu Sharma, Amitesh C. Mishra and S. Chandra Shekhar, Advocates.
For the Respondent : L. Nageshwar Rao, S.B. Sanyal, Sr. Advocates, Deba Prasad Mukherjee, Arup Banerjee, Arup Kumar Chongar and K.C. Sudarsan, Advocates.

IMPORTANT POINT
When a caste certificate entitling a candidate from a reserved constituency, is suspected to be forged, after having taken a decision to criminally prosecute such a person on the charge of filing fabricated caste certificate, his nomination should not have been accepted by the Returning Officer.

Headnote:Representation of People Act, 1951-Sections 80 and 100-Constitution of India-Articles 341 and 342-Election to Reserved Assembly Constituency in State of Bihar-Objections raised regarding nomination of respondent that he does not belong to Scheduled Caste-Caste certificate furnished by respondent was suspicious-Returning Officer entertained grave suspicion and lodged FIR-However, respondent s nomination paper was accepted for contesting election-Election held-Respondent declared elected-Petitioner filed election petition challenging respondent s election-Appellant s case that respondent is Kurmi by caste and not Pasi as alleged-Respondent pleaded that his father, a Kurmi by caste, had married one D Pasi by caste and respondent was borne to her-Failure to produce evidence of his father and mother-However, his father presently living with one lady, a Kurmi by caste-Respondent s failure to prove his special case as alleged-Nomination paper of respondent was improperly accepted.

       As per Brijesh Kumar, J. (For himself and V.N. Khare, CJI) :

       Held : The case of the parties is clear from their pleadings and the evidence adduced by them as indicated above. The petitioner challenged the status of respondent Dinesh Chaudhary as a Scheduled Caste person belonging to the S.C. community. Precisely what was indicated in support of that case is that father of Dinesh Chaudhary and Naresh Chaduhary is Bhagwan Singh who is Kurmi by caste married to Jago Devi, also a Kurmi lady. The High Court has also observed that a person borne in a Kurmi family normally would be presumed that he is Kurmi by caste. In this background the initial burden of the petitioner would stand discharged and it would shift upon the respondent to prove his case which, in normal course of things, would be and is within his special knowledge. A case which has been set up by the respondent through his witnesses as well that his father had taken a fancy for Deo Kumari Devi, a resident of village Adai, who is Pasi by caste and married her who gave birth to two children including the respondent, would normally be not in the knowledge of people in general particularly when according to the case of the respondent himself Jago Devi lived in another village and she was never brought from there by Bhagwan Singh. More so, when Bhagwan Singh, a Kurmi by caste, is living with his wife Jago Devi, also a Kurmi, in their village Jahanabad. The best evidence, as also according to the High Court to prove the case of the respondent was, to produce Bhagwan Singh and Deo Kumari Devi but they have been withheld after being cited as witnesses for the respondent. These facts clearly make out a case for drawing an adverse inference that in case they had been produced they would not have supported the case of the respondent. (Para 13)

       The fact which is quite clear is that the Returning Officer had grave doubt about the veracity of the caste certificate to the extent that she lodged an FIR against the candidate namely Dinesh Chaudhary. In support of the suspicion entertained about the caste certificate being fabricated, she had a report from the District Welfare Officer, Gaya. A criminal case was registered and the respondent was also arrested. It is only surprising that despite such a grave suspicion and initiation of criminal proceedings against the candidate the Returning Officer still accepted his nomination paper. She has stated that on 1.2.2000 after she had lodged the report there was lot of opposition in respect of the nomination paper of the respondent. She has admitted that the respondent was a nominee of the ruling party in the State. She postponed the matter for the next day when she accepted the nomination paper of the respondent. Going by normal conduct no prudent person would accept such a nomination paper in respect of which there is an information that caste certificate entitling to be a candidate from a reserved constituency, is suspected to be forged and fabricated supported by a report subsequently by none else but a responsible officer, namely, the District Welfare Officer, Gaya. After taking a decision to criminally prosecute a person on the charge of filing fabricated caste certificate it goes against the normal human conduct of a prudent person who still accept such a nomination paper. (Para 17)

       S.B. Sinha, J. (Concurring opinion)

       Determination of caste of a person is governed by the customary laws. A person under the customary Hindu Law would be inheriting his caste from his father. In this case, it is not denied or disputed that the respondent s father belonged to a Kurmi caste. He was, therefore, not a member of Scheduled Caste. The caste of the father, therefore, will be the determinative factor in absence of any law. Reliance, however, has been placed upon a circular dated 3.3.1978 said to have been issued by the State of Bihar (Para 41)

       The High Court, therefore, erred in so far as it failed to consider that for the purpose of determination of caste, the Respondent could not have relied upon the circular letter dated 3.3.1978 in absence of any law. In any event, it has not been shown by the Respondent as to what enquiry was made for determination of his caste. If he had taken part in some enquiry, he had special knowledge in respect thereof within the meaning of Section 106 of the Evidence Act. He, therefore, was bound to prove the same by bringing on records relevant evidence which was in his power or possession. If a special case is to be made out, the same has to be done in accordance with law. It must meet the legal requirement. Unfortunately, this aspect of the matter has not been considered by the High Court. The impugned judgment, therefore, cannot be sustained. (Paras 47 and 48)