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IN THE HIGH COURT OF GAUHATI
Ajit Borthakur, J.
Kishore Kumar Baishya and Ors. – Appellants
Versus
State of Assam and Ors. – Respondents
Crl. Pet. Nos. 741 and 754 of 2018
Decided On : 28-11-2018
Constitution of India – Article 226 – Code of Criminal Procedure, 1973 – Section 41(A) 482 – Indian Penal Code – S. 420/468 –Constitution (Scheduled Castes), Order 1950 – Scheduled Castes and Scheduled Tribes Lists (Modification Order), 1976 – Petition Against Proceedings For Holding Wrong Caste Certificates – By preferring the petitions the petitioners has prayed for setting aside and quashing of the impugned FIRs, P.S. Cases has been registered – Learned senior counsel for the petitioners, in both these cases, further submits that the investigating authority while drawing-up the investigation, without proper application of mind and misunderstanding the facts and circumstances of the cases, registered the criminal cases under Section 420/468 IPC against the petitioners even when there is a separate Caste Scrutiny Committee constituted under the State Government for efficacious redressal of such complaints as regards the veracity of the SC certificates – Learned senior counsel also submits that the contents of the FIRs do not constitute any offence or make-out a case against the petitioners, herein, and as such, the impugned FIRs may be set aside and quashed – Learned counsel, therefore, submits that considering the matter in its entirety, the impugned FIRs appeared to be highly illegal and arbitrary and as such, he prays that the said FIRs may be quashed and set aside – Held, This Court in Sanjib Mazumdar @ Sonti Mazumdar (Supra) placing reliance on the guidelines laid by the Apex Court in Kumari Madhuri Patil (Supra) held that no criminal proceeding can be initiated questioning the validity of the caste certificate or alleging that the certificate was obtain from the authority by fraud, unless considered and decided by the Caste Scrutiny Committee – In Rajesh Jaiswal (Supra), this Court held that such disputed caste certificate has to be considered and decided by the Caste Scrutiny Committee only – Perusal of the F.I.R.s registered do not reveal anything as to whether a duly constituted Caste Scrutiny Committee considered and recorded finding on the allegations through a process of discrete inquiry as per the guidelines given in Kumari Madhuri Patil Case (Supra) – The disputed caste certificates issued in favour of the petitioners are yet to be cancelled/annulled by the competent authorities and as such, so long the said certificates remain in operation, no criminal prosecution can be launched against the petitioners – The validity of such certificate can be questioned only in a proceeding under Article 226 of the Constitution of India, subject, of course, to the satisfaction of the guidelines laid in Kumari Madhuri Patil (Supra) – In the result, P.S. Case under Section 420/468 of the IPC stand set aside and quashed – The criminal petitions, accordingly, allowed – Petitions Allowed
JUDGMENT :
Ajit Borthakur, J.
1. Heard Mr. S.N. Sarma, learned senior counsel for the petitioners in Crl. P. No. 741/2018 and Crl. P. No. 754/2018. Also heard Ms. S. Jahan, learned Addl. P.P., Assam, for the respondent No. 1, in both these criminal petitions.
2. By preferring the petition i.e. Crl. Pet. No. 741/2018, under Section 482 of the Code of Criminal Procedure, 1973, the petitioner has prayed for setting aside and quashing of the impugned FIR, dated 25.6.2018, whereupon Duliajan P.S. Case No. 220/2018 u/s. 420/468 IPC (corresponding to G.R. No. 2201/2018) has been registered.
3. According to Mr. Sarma, learned senior counsel, the petitioner, herein, who is a graduate in B.E.(Mechanical), belongs to "Bania" sub-caste, which is recognized as Scheduled Castes under the Constitution (Scheduled Castes), Order 1950, as amended by the Scheduled Castes and Scheduled Tribes Lists (Modification Order), 1976. The petitioner, after successfully pursuing his MBA, joined Oil India Ltd. (for short, 'OIL') in the year 1993 and is presently serving as Deputy General Manager (Planning). While serving thus, the petitioner received a Notice under sub-Section (1) of Section 41(A) of the Code of Criminal Procedure, 1973, directing him to appear before the I.O. of Duliajan P.S. on 3.7.2018 in connection with Duliajan P.S. Case No. 220/2018 u/s. 420/468 IPC. He obtained the certified copy of the FIR, dated 25.06.2018, on 04.07.2018, which goes to indicate that the respondent No. 2 had leveled an allegation to the effect that the petitioner and another lady, are serving in their respective posts, by obtaining fraudulent SC certificates through false documents, thereby depriving the genuine candidates of SC community from such employment. Upon receipt of the said FIR, the OC of Duliajan P.S. started the investigation of the case.
4. Mr. Sarma, learned senior counsel, submits that though the petitioner's forefathers belonged to "Bania" community which is recognized as SC community in Assam, however, inadvertently, the name of the petitioner's father was recorded as Bagaram Baishya instead of Bagaram Bania. An affidavit was executed by his father before the Magistrate at Guwahati declaring that he will be known as Sri Bagaram Bania for all purposes during his lifetime and that his legal heirs i.e. sons and daughters, will be entitled to use the title "Bania". The petitioner was accordingly issued the SC certificate by the competent authority i.e. Asom Anusuchit Jati Parishad, Assam, Guwahati, duly countersigned by the Sub-Divisional Magistrate, Rangia, way back in 1985. He, thereafter, got job in OIL, Duliajan, and has so far completed 25 years of service without any blemish.
5. By preferring the petition i.e. Crl. Pet. No. 754/2018, under Section 482 of the Code of Criminal Procedure, 1973, the petitioner has prayed for setting aside and quashing of the impugned FIR, dated 7.7.2018, whereupon Duliajan P.S. Case No. 234/2018 u/s. 420/468 IPC (corresponding to GR. No. 2377/2018) has been registered.
6. The petitioner, in this case too, belongs to "Mali" caste, which is recognized as Scheduled Castes under the Constitution (Scheduled Castes), Order 1950, as amended by the Scheduled Castes and Scheduled Tribes Lists (Modification Order), 1976. The petitioner, after successfully completing her academic career, joined Oil India Ltd. (for short, 'OIL'), a Government of India undertaking in the year 1991 as Executive Trainee and is presently serving as General Manager (Administration). While serving thus, the petitioner received a Notice under Section 41(A) of the Code of Criminal Procedure, 1973, directing him to appear before the IO of Nowholia Police Out-Post on 20.07.2018, in connection with Duliajan P.S. Case No. 234/2018, u/s. 420/468 IPC. The petitioner received another Notice dated 18.7.2018 u/s. 91 of the Code of Criminal Procedure, 1973, to produce the original Caste Certificate on 20.7.2018 before the same police authority. The petitioner accordingl
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