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(SUPREME COURT)
V.N. Khare, C.J.I., Brijesh Kumar and S.B. Sinha, JJ.
Punit Rai v. Dinesh Chaudhary
Civil Appeal No. 659 of 2003; Decided on 19.8.2003.
(2) Representation of the People Act, 1951 -- Ss. 80 and 100 -election petition on the ground of wrong acceptance of nomination paper of returned candidate as a member of Scheduled Caste -- caste of parents -- special pleading based on special knowledge of respondent - petitioner cannot be expected to plead such facts of special knowledge. (1969) 3 SCC 238 and (2002) 1 SCC 160 distinguished. AIR 1960 SC 770 relied on.
(3) Evidence Act, 1872 -- Ss. 106 and 114(g) -- party having best evidence in his possession -- is bound to produce the same -- onus of proof may not lie upon him -- he can also not escape on the ground that he was not called upon to produce the same -- in case of non-production, adverse inference will be drawn against him. AIR 1968 SC 1413 relied on.
(4) Evidence Act, 1872 -- Ss. 106 and 114(g) -- material witnesses in possession of a party -- cited as witnesses in the list -- withholding them -- adverse inference of witnesses not supporting the case of such party may be drawn. 1973 JLJ 6 (SC), AIR 1964 SC 40, AIR 1961 SC 1316, AIR 1917 PC 6 and (1977) 3 SCC 540 relied on. AIR 1959 SC 914 distinguished.
(5) Civil P.C., 1908 -- O. 14 R. 1 -- plea of non-framing of correct issue -- parties understood the core issue involved in the case -- no party misled by issue as framed -- evidence also adduced on same line -- plea thereafter cannot be heard.
S.B. Sinha, T. (concurring)
(6) Constitution of India -- Art. 341(1) -- object of notification issued under -- is to provide preferential right by way of protection to the members of the Scheduled Castes -- notification issued in terms of the said provision -- is exhaustive.
(7) Words and Phrases -- word Caste -- any of the four major hereditary classes, namely, Brahman, Kshatriya, Vaisya and Sudra, into which Hindu Society is divided. Collins English Dictionary relied on.
(8) Words and Phrases -- word Caste -- a person belongs to a caste in which he is born -- in case of re-conversion, a person has the liberty to renounce his casteless status and voluntarily accept his original caste - his caste status at birth is not immutable -- change of religion does not necessarily mean loss of caste. Caste and the Law in India by S.B. Wad, J. P-30, relied on.
(9) Words and Phrases -- word Caste -- one accepted to be a member of Scheduled Caste -- he has to be accepted by the Community. (1976) 1 SCC 863 and (1976) 3 SCC 411 relied on.
(10) Words and Phrases -- word Caste -- converted Christian marrying a girl of Scheduled Caste -- wife belongs to her husbands caste. AIR 1984 SCC 600 relied on.
(11) Constitution of India -- Arts. 341(1), (2) and 342(1); (2) -- provisions are pari materia -- no person can lead evidence that the caste to which he belongs is the same as and/or part of another caste. AIR 1965 SC 1269 and AIR 1969 SC 597 relied on.
(12) Practice -- benefits conferred on Scheduled Tribes -- cannot be claimed by producing fake, false and fraudulent certificates -- such practice denounced. (1994) 6 SCC 241 and (1995) 4 SCC 32 relied on.
(13) Constitution of India -- Arts. 162, 166(3) and 13 -- circular not issued under Art. 162 -- decision not taken by Cabinet in terms of Art. 166(3) -- it is not law under Art. 13. AIR 1959 SC 249 relied on.
(14) Evidence Act, 1872 -- S. 106 -- party taking part in enquiry of caste -- fact is in his special knowledge -- should adduce evidence in his power and possession.
U;k- czts‘k dqekj ¼Hkkjr ds eq[; U;k;ewfrZ vkSj Lo;a viuh vksj ls½ &&
¼1½ yksd izfrfuf/kRo vf/kfu;e] 1951 && /kkjk 100 rFkk 30 && ukefunsZ‘ku&i= dh Lohd`fr && fjVfuZax vf/kdkjh dks tkfr izek.ki= ij ?kksj lansg && vH;FkhZ ds fo:) izFke bfRryk fjiksVZ nkf[ky dh xbZ && rRi‘pkr~ ukefunsZ‘ku&i= Lohdkj fd;k tkuk vk‘p;Ztud gSA
¼2½ yksd izfrfuf/kRo vf/kfu;e] 1951 && /kkjk 80 rFkk 100 && vuqlwfpr tkfr ds lnL; dh Hkk¡fr lQy vH;FkhZ dk ukefunsZ‘ku&i= xyr Lohdkj fd, tkus ds vk/kkj ij fuo"kZpu vthZ && ekrk&firk dh tkfr && izR;FkhZ ds fo‘ks"k Kku ds vk/kkj ij fo‘ks"k vfHkopu && ;kph ls fo‘ks"k tkudkjh ds ,sls rF;ksa ds vfHkokd~ dh izR;k‘kk ugha dh tk ldrhA ¼1969½3 ,l lh lh 238 rFkk ¼2002½1 ,l lh lh 160 izHksfnrA , vkb vkj 1960 ,l lh 770 voyafcrA
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 106 rFkk 114 ¼N½ && ftl i{kdkj ds ikl loksZRre lk{; gS && og mls is‘k djus ds fy, ck/; gS && lcwr dk Hkkj Hkys&gh ml ij ugha gks && fdarq og bl vk/kkj ij cp ugha ldrk fd mls og lcwr is‘k djus ds fy, cqyk;k ugha x;k && is‘k ugha djus dh fLFkfr esa mlds fo:) izfrdwy fu"d"kZ fudkyk tk,xkA
¼4½ lk{; vf/kfu;e] 1872 && /kkjk 106 rFkk 114 ¼N½ && i{kdkj ds ikl rkfRod lk{khx.k && lwph esa lk{kh ds :i esa vafdr && fQj Hkh mUgsa ihNs jksd j[kuk && lkf{k;ksa }kjk ,sls i{kdkj dks leFkZu ugha fn, tkus dk izfrdwy fu"d"kZ fudkyk tk ldrk gSA 1973 ts ,y ts 6 ¼mPpre U;k-½] , vkb vkj 1964 ,l lh 40] , vkb vkj 1961 ,l lh 1316] , vkb vkj 1917 ih lh 6 rFkk ¼1977½3 ,l lh lh 540 voyafcrA , vkb vkj 1959 ,l lh 914 izHksfnrA
¼5½ flfoy Áfdz;k lafgrk] 1908 && vk- 14 fu- 1 && lgh fook|d fojfpr ugha fd, tkus dk vfHkokd~ && i{kdkjksa us ekeys esa varxZzLr eq[; fook|d le> fy;k && ;Fkk fojfpr fook|d ls dksbZ Hkh i{kdkj xqejkg ugha && mlh izdkj dk lk{; Hkh is‘k && rRi‘pkr~ vfHkokd~ ugha lquk tk ldrkA
U;k- ,l-ch- flUgk ¼lger½ &&
¼6½ Hkkjr dk lafo/kku && vuq- 341¼1½ && blds v/khu fudkyh xbZ vf/klwpuk dk mn~ns‘; && vuqlwfpr tkfr ds lnL;ksa dks laj{k.k ds :i esa vf/kekuh dk vf/kdkj nsuk gS && mDr mica/k ds vuqlkj fudkyh xbZ vf/klwpuk fu%‘ks"kh gSA
¼7½ ‘‘kCn rFkk okD; && ‘‘kCn ^tkfr* && pkj izeq[k ikjaifjd oxksZa vFkkZr~ czkã.k] {f=;] oS‘; vkSj ‘kwnz esa ls ftuesa fganw lekt foHkDr gS] dksbZ tkfrA dksfyUl baxfy‘k fMD‘kujh voyafcrA
¼8½ ‘‘kCn rFkk okD; && ‘‘kCn ^tkfr* && O;fDr mlh tkfr dk gksrk gS ftleas og tUe ysrk gS] iqu% /keZ ifjorZu ds ekeys esa dksbZ O;fDr viuh tkfrghu izkfLFkfr R;kxus ds fy, rFkk LosPN;k viuh ewy tkfr Lohdkj djus ds fy, Lora= gS && tUe ds le; mldh tkfr dh izkfLFkfr vifjorZuh; ugha gS && vko‘;d ugha gS fd /keZ ifjorZu ls tkfr ls gkFk /kksuk iM+sA U;k- ,l-ch- okM d`r dkLV ,aM n ykW bu bafM;k i`"B 30 voyafcrA
¼9½ ‘‘kCn rFkk okD; && ‘‘kCn ^tkfr* && ;fn ,d O;fDr us vuqlwfpr tkfr dk gksuk Lohdkj dj fy;k gS && rc lekt dks Hkh mls Lohdkj djuk gksxkA ¼1976½1 ,l lh lh 863 rFkk ¼1976½3 ,l lh lh 411 voyafcrA
¼10½ ‘‘kCn rFkk okD; && ‘‘kCn ^tkfr* && /keZ&ifjofrZr bZlkbZ }kjk vuqlwfpr tkfr dh yM+dh ls fookg && iRuh vius ifr dh tkfr dh gksxhA , vkb vkj 1984 ,l lh 600 voyafcrA
¼11½ Hkkjr dk lafo/kku && vuq- 341¼1½] ¼2½ rFkk 342¼1½] ¼2½ && mica/k lefo"k;d gSa && dksbZ O;fDr ;g lk{; ugha ns ldrk fd og tkfr ftldk og gS] ogh gS tSlh vkSjA ;k dksbZ nwljh tkfr ;k mldk HkkxA , vkb vkj 1965 ,l lh 1269 rFkk , vkb vkj 1969 ,l lh 597 voyafcrA
¼12½ izFkk && vuqlwfpr tutkfr dks iznRr izlqfo/kk,¡ && tkyh] >wBs vkSj diViw.kZ izek.ki= is‘k djds mu izlqfo/kkvksa dk nkok ugha fd;k tk ldrk && ,slh izFkk dh fuank dh xbZA ¼1994½6 ,l lh lh 241 rFkk ¼1995½4 ,l lh lh 32 voyafcrA
¼13½ Hkkjr dk lafo/kku && vuq- 162] 166¼3½ rFkk 13 && vuq- 162 ds v/khu ifji= ugha fudkyk x;k && eaf=eaMy }kjk vuq- 166¼3½ ds fuca/kuksa ds vuqlkj fofu‘p; ugha fd;k tkuk && og vuqPNsn 13 ds v/khu fof/k ugha gSA , vkb vkj 1959 ,l lh 249 voyafcrA
¼14½ lk{; vf/kfu;e] 1872 && /kkjk 106 && i{kdkj }kjk tkfr laca/kh tk¡p esa Hkkx fy;k tkuk && ;g rF; mldh fo‘ks"k tkudkjh esa gSa && mls viuh ‘kfDr vkSj dCts dk lk{; is‘k djuk pkfg,A
Brijesh Kumar, J. (for Khare, C.J.I. and himself) -- The instant appeal arises out of a judgment and order passed by the Patna High Court, dismissing Election Petition No.2 of 2000 preferred by the appellant, challenging the election of the respondent herein, Dinesh Chaudhary, the returned candidate to the Legislative Assembly.
The dispute relates to the election held in 204, Fatua Reserved Assembly Constituency (SC) in the State of Bihar, in the year 2000. The appellant, amongst others in the fray, was a candidate for the election as a nominee of Janata Dal (U). He belongs to a Scheduled Caste. The respondent Dinesh Chaudhary was a nominee of Janata Dal (R) claiming to be belonging to the Pasi community which is one of the Scheduled Caste communities. It appears that some objections were raised regarding the nomination of the respondent Dinesh Chaudhary on the ground that he does not belong to the Scheduled Caste community; rather, he is Kurmi by caste which falls in the category of Other Backward Classes. The caste certificate furnished by the respondent before the Returning Officer was also under a cloud, in respect whereof, the Returning Officer entertained grave suspicion as a result of which she lodged an FIR on the basis of which a criminal case has also been registered against the respondent. He was also arrested in connection with that case. However, the Returning Officer accepted the nomination paper of the respondent for contesting the aforesaid election. The election was held on 17.2.2000 and the result was ultimately declared on 26.2.2000 declaring respondent Dinesh Chaudhary as elected, having polled 46,850 votes whereas the petitioner-appellant had secured 39,897 votes which was next to the highest polled in favour of the respondent.
As indicated above, the petitioner filed an election petition challenging the election of the respondent, amongst others, on the ground that he was not entitled to contest from a reserved constituency as a Scheduled Caste candidate since he is a Kurmi by caste. In this light, the case of the petitioner was that the nomination paper of the respondent was wrongly accepted by the Returning Officer. More particularly, since the Returning Officer herself had initiated criminal proceedings by filing an FIR relating to the certificate furnished by the respondent, being a fabricated document. The definite case of the appellant is that the respondent is a resident of Surangpur of Jehanabad Assembly Constituency and he is the son of Bhagwan Singh who was married to Jago Devi and both are Kurmi by caste. Evidence has been led to indicate that Dinesh Chaudhary and his brother are also married in Kurmi families. The voters' list of Jehanabad Assembly Constituency was also summoned indicating the respondent as the son of Bhagwan Singh and Jago Devi is shown to be Bhagwan Singh's wife. Dinesh Chaudhary and his brother have been shown to be the two sons of Bhagwan Singh.
The case of the respondent as pleaded in the written statement is that his father Bhagwan Singh, a Kurmi by caste, had married one Deo Kumari Devi at Village Adai, who is Pasi by caste. The respondent and his brother are born to the said Smt. Deo Kumar Devi. The two brothers remained in Village Adai with their mother at the house of their maternal uncle until they attained majority, whereafter they, along with their mother shifted to Patna. Bhagwan Singh had been visiting their mother occasionally at Village Adai. According to the respondent, in view of certain circulars issued by the State Government, in case of an inter caste marriage where the wife is a Scheduled Caste, the children born from the wedlock would be treated as Scheduled Caste. The voters' list of Village Adai also seems to have been filed indicating the respondent as the son of Bhagwan Singh and Deo Kumari Devi. So far as the question of submission of caste certificate before the Returning Officer is concerned, the respondent's case is t
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