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2019 Supreme(Kar) 2014
IN THE HIGH COURT OF KARNATAKA
John Michael Cunha, J.
Ganesh Dasayya - Appellant
Versus
State of Karnataka - Respondent
Criminal Petition No. 5980 of 2013
Decided On : 26-04-2019
Advocate Appeared:
For the Appellant : Sri. Nishit Kumar Shetty
For the Respondent:Sri. I.S. Pramod Chandra, SPP-II, Sri. C. Jagadeesh, Advocate
Headnote:
Karnataka Scheduled Castes Scheduled Tribes and Other Backward Rules, 1992 - Rule 7-A - Indian Penal Code - Sections 196, 198, 420 and 511 – Criminal Procedure Code - Section 239 - Constitution of India, 1950 - Articles 341 and 342 – Employment and service – First Information Report - Whether petitioner has secured employment under General category or not is not material at this juncture - Whether prosecution of petitioner for alleged offences punishable under sections 196, 198, 420 and 511 of IPC and section Act is sustainable in view of Notification issued by Government of Karnataka - Whether criminal prosecution could be launched against imposters who by posing themselves as members of caste tribe or class for whom reservation has been earmarked has been considered by Humble Supreme Court in case - Case of prosecution is that petitioner accused belonged to backward Masaya community but he managed to obtain a caste certificate as belonging to community and used said certificate to secure employment in KSRTC - Subsequently said certificate was cancelled by orders of Caste Verification Committee - Accordingly cancelled caste certificate issued in favor of petitioner - Contention of petitioner is that prosecution has not produced any prima-facie material in proof of alleged offences - Though initially First Information Report was registered for offence punishable under section 3(1) of Act said offence is dropped and a charge sheet is filed only under section 196 and 511 IPC - At time of obtaining caste certificate petitioner was aged only 16 years - Petitioner secured a job in KSRTC as conductor under General Merit category and he has not used caste certificate to get a job and therefore material on record is not sufficient to sustain charges against petitioner and hence both courts below have committed an error in rejecting application filed by petitioner under Section 239 Cr.P.C – Held, A prosecution should be launched against candidate or as case may be parents or guardians responsible for making false claim - Regime postulated in judgment of this Court in Madura Patel supra took effect from September 1994 which was date of the judgment - Eventually in State of Maharashtra these directions received legislative recognition upon enactment of Maharashtra Act which came into force in State on 18 October 2001 - However it is important to notice that even before State Legislature stepped in to confer a statutory form to directions which were issued by this Court in Madura Patel supra regime as it then obtained prior to enactment of law also envisaged consequences upon a caste or tribe claim being found to be false upon a verification by Scrutiny Committee - Cancellation of a certificate would as a necessary consequence involve invalidation of appointment to a post or admission to an educational institution - Where a candidate had been appointed to a reserved post on basis of claim that he or she was a member of group for which reservation is intended invalidation of claim to belong to that group would as a necessary consequence render appointment void initio - Rationale for this is that a candidate who would otherwise have to compete for a post in general pool of unreserved seats had secured appointment in a more restricted competition confined to reserved category and usurped a benefit meant for a designated caste tribe or class - Once it was found that candidate had obtained admission upon a false representation to belong to reserved category appointment would be vitiated by fraud and would be void initio - Falsity of claim lies in a representation that candidate belongs to a category of persons for whom reservation is intended whereas in fact candidate does not so belong - Reason for depriving candidate of benefit which she or he has obtained on strength of such a claim is that a person cannot retain fruits of a false claim on basis of which a scarce public resource is obtained - Same principle would apply where a candidate secures admission to an educational institution on the basis of a false claim to belong to a reserved category. A candidate who does so causes detriment to a genuine candidate who actually belongs to the reserved category who is deprived of the seat - In such a situation where the rights of genuine members of reserved groups or communities are liable to be affected detrimentally government circulars or resolutions cannot operate to their detriment - Petition is dismissed
JUDGMENT :
1. Petitioner has sought to quash the order dated 16.12.2010 passed by the Addl. Civil Judge and JMFC, Bantwal in C.C. No.486/2007 and the order dated 03.05.2013 in Crl.R.P.No.32/2011 passed by the Addl. District and Sessions Judge, Dakshina Kannada, Mangaluru.
2. The petitioner herein filed an application under section 239 Cr.P.C. praying to discharge him from the alleged offences punishable under sections 196, 198, 420 and 511 of IPC. The learned Magistrate by order dated 16.12.2010 dismissed the said application by placing reliance on the decision in Renu Kumari v. Sanjaykumar and Others and the decision reported in 2005(1) Crimes Page 1 SC. The revisional Court has confirmed the said order by its order dated 03.05.2013.
3. The case of the prosecution is that the petitioner/accused belonged to backward i.e., Dasayya community, but he managed to obtain a caste certificate as belonging to Chennadasar community and used the said certificate to secure employment in KSRTC. Subsequently, the said certificate was cancelled by orders of the Caste Verification Committee. Accordingly, the Tahsildar, Bantwal cancelled the caste certificate issued in favour of the petitioner.
4. The contention of the petitioner is that the prosecution has not produced any prima-facie material in proof of the alleged offences. Though, initially FIR was registered for the offence punishable under section 3(1) (ix) of the Act, said offence is dropped and a charge sheet is filed only under section 196 and 511 IPC. At the time of obtaining the caste certificate on 22.07.1988, the petitioner was aged only 16 years. The petitioner secured a job in KSRTC as conductor under General Merit category and he has not used the caste certificate to get a job and therefore, the material on record is not sufficient to sustain the charges against the petitioner and hence both the courts below have committed an error in rejecting the application filed by the petitioner under Section 239 Cr.P.C.
5. Learned counsel for the petitioner has mainly relied on the notification issued by the Government of Karnataka bearing No.SWD 713 SAD 93 dated 11.03.2002 and the decision of this Court in D.K. Prabhakar v. State of Karnataka and others passed in Crl.P.5623/2009, wherein this Court has quashed the proceedings initiated against the accused therein for the offences punishable under sections 3 (1) (ix) and Section 7(1) (2) of the Act, based on the aforesaid notification.
6. Learned SPP-II appearing for respondent has however strongly opposed the petition inter-alia contending that where a candidate obtained an appointment on the basis that he belongs to a designated caste, tribe or class for whom post is meant and it is found upon verification by the scrutiny committee that such an individual does not belong to designated caste, he cannot be protected by taking recourse to administrative circulars and resolution. In support of his argument, learned counsel has referred to the decision of the Hon’ble Supreme Court in Chairman and Managing Director, FCI and others v. Jagadish Balaram Bahira and others, reported in AIR 2017 SC 3271 with specific reference to para 53 thereof, and the decision in Shoba Lakshmi v. Divisional Commissioner and others in W.P.No.8931/2016, W.A.No.2828/2011 and W.P.Nos.56358-56364/2014 and connected matters.
7. Insofar as the factual matrix is concerned, there is no dispute that the petitioner herein belonged to backward community i.e., Dasayya community. However, he obtained a caste certificate as belonging to Chennadasar caste falling within Scheduled Caste.
8. Even though the petitioner has taken up a plea that he did not use the caste certificate to secure employment and that he was appointed under the General category, the revisional Court has referred to the document collected by the Investigating agency and in para 16 of the impugned order has observed that the Investigation Officer has collected the application submitted by the respondent to KSRTC fo
