As aforesaid, only on the basis of the
circumstance, namely, that it does not bear any outward number and date,
the suspicion is sought to be created.
It may be recalled that, the
certificate had been issued in the year 1978-79, and as such, it would be
difficult to state precisely, what was the practice prevailing at the material
time. Even assuming that there is some suspicion, in the absence of
anything more, it would be difficult to hold that a case for prosecuting the
respondent no.3 has been made out, particularly, because the respondent
indeed belongs to a Scheduled Caste which has been mentioned in the said
certificate.
Criminal Revision Application No. 165 of 2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Sayyad Rafiq s/o. Sayyad Lal,
versus
The State of Maharashtra.
DATE : 20TH JANUARY 2014
CORAM : ABHAY M. THIPSAY, J.
Citation; 2014 ALLMR(cri) 2954 Bom
Heard Mr. S.G. Magre, the learned Counsel for the applicant.
Heard Mr. P.P. More, the learned Additional Public Prosecutor, for the
respondent nos.1 and 2. Heard Mr. V.M. Kagne, the learned Counsel for
2.
the respondent no.3.
The petitioner, who claims to be a social worker, had filed a
complaint against the respondent no.3 herein, who is the Dean of the
Government Medical College and Hospital at Aurangabad. The allegation
in the complaint was that, the respondent no.3 had secured his
employment with the Government, on the basis of a forged caste
certificate. The case of the applicant in the complaint, in brief, was that,
the respondent no.3 had submitted a forged certificate purportedly issued
by the Additional District Magistrate, Aurangabad, certifying the caste of
the respondent no.3, to be 'Chambhar', which is a Scheduled Caste, and
had secured his employment on the basis of such forged certificate. That,
actually the respondent no.3 does not belong to any Scheduled Caste. The
respondent no.3 had thus, deceived and cheated the Government and had
secured benefits to which he was not entitled to.
3.
On
this
complaint,
the
learned
Magistrate
ordered
investigation to be carried out by the Police, as contemplated under
Section 202 of the Code of Criminal Procedure [For short, "the Code"].
(3)
The Police accordingly carried out investigation and submitted report
thereof to the learned Magistrate. On receipt of the report of the Police,
the learned Magistrate, by an order dated 20-8-2013, dismissed the
Being
complaint, as contemplated under Section 203 of the Code.
aggrieved by the said order of dismissal, the petitioner has approached this
Court by filing the present Revision Application.
4.
I have taken into consideration the contentions raised by the
learned Counsel for the parties. With the assistance of the learned Counsel
for the parties, I have gone through the revision petition and the annexures
5.
thereto.
The petitioner is not personally aggrieved by the offences
allegedly committed by the respondent no.3. He has filed the complaint to
see that an offender / wrong doer is punished. He detected serious wrongs
and offences committed by the respondent no.3, on the basis of certain
information obtained by him under the Right to Information Act. The
information which he received, revealed that the caste certificate submitted
by the respondent no.3 for securing his employment in the Government
was not issued in a proper form or format. The petitioner learnt that the
caste certificate did not bear any outward number and date, and that, it had
not been issued by the authority competent to issue the same.
The
complaint filed by the petitioner proceeds on the footing that, the
respondent no.3 is actually not a member belonging to any Scheduled
Caste.
6.
In the course of investigation that is carried out, it has been
(4)
revealed that the petitioner indeed belongs to a Scheduled Caste i.e.
'Chambhar'. That, that is the result of the investigation carried out, is not
disputed before me. On specific questioning, it is conceded before me
that, the investigation does reveal the caste of the petitioner to be
'Chambhar' and that, it is a Scheduled Caste notified in the Constitution.
7.
The basis on which the allegation against the respondent no.3,
of his having committed offences of forgery for the purpose of cheating
and using a forged document knowing it to be forged, has been levelled by
the petitioner, is ‘that, the caste certificate produced by the respondent no.
3 is not in the prescribed form; that, it is not issued by the authority
on this certificate’.
competent to issue the same; and that, there is no outward number and date
On these grounds, it is claimed that the caste
certificate in question is indeed a forged document, and though the fact
reflected therein, namely, ‘that the respondent no.3 belongs to a Scheduled
Caste’, is true and correct, the certificate is, nevertheless a false and forged
document and has been used for cheating.
8.
Indeed, the absence of outward number on the certificate does
create a suspicion about the genuineness of the said certificate. However,
there are several other aspects of the matter, in the light of which, this
aspect needs to be taken into consideration for deciding whether the order
passed by the learned Magistrate in dismissing the complaint, suffers from
any manifest error or illegality.
9.
The crucial aspect of the matter is that, the caste certificate in
question has been issued in the year 1978-79. It is purportedly issued by
(5)
the Additional District Magistrate, Aurangabad. The invesetigation could
10.
by the Additional District Magistrate, Aurangabad.
not throw light on the fact, as to whether or not, it has indeed been issued
The explanation of the respondent no.3, in that regard, is
found in his statement recorded by the Police in the course of
investigation; and since that statement has been annexed to the petition
and consists of the version of the respondent no.3, it can very well be
looked into to see what explanation of the apparent suspicion has been
offered by the respondent no.3. The point of suspicion raised by the
petitioner, namely that, 'though the respondent no.3 was a resident of
Buldhana, the certificate has been issued by an authority at Aurangabad', is
replied by the respondent no.3 by saying that, ‘at the material time, he was
residing at Aurangabad’, and that, therefore, the certificate was obtained
from the authority at Aurangabad. The second point of suspicion, namely,
'that the Tahsildar was the competent authority to issue certificate at the
material time', has been replied by saying that, ‘the Additional District
Magistrate was an officer superior to the Tahsildar’.
11.
According to the respondent no.3, the caste certificate in
question has been duly verified by the Director, Social Welfare, Pune, as
per the procedure, and the said certificate has been held to be valid. It is
not in dispute that in his long service, not only the caste certificate of the
petitioner, but his other documents, such as, educational qualifications,
etc., were also verified by competent authorities on a number of occasions,
and the documents were found to be genuine. Lastly, the respondent no.3
has suggested that the petitioner wanted a deaf and dumb certificate from
(6)
issue such certificate, the complaint had been maliciously filed.
There can be no doubt, that at this stage, one has to proceed
12.
the respondent no.3, and as the respondent no.3 expressed his inability to
on the basis that the respondent no.3 indeed belongs to a Scheduled Caste.
Thus, the seriousness of the alleged offence which is based on the fact of a
person not belonging to Scheduled Caste obtaining benefits meant for
members of Scheduled Castes, by committing forgery, cheating, etc., goes
away. Undoubtedly, that, the respondent no.3 is indeed a member of a
Scheduled Caste, does not mean that the caste certificate in question
cannot be a forged document. But the fact remains that, this aspect throws
doubt on the existence of the requisite mens rea on the part of the
respondent no.3. When he indeed belongs to a Scheduled Caste, what was
the occasion to obtain a caste certificate dishonestly, would need serious
consideration, particularly because there is no clearcut material before the
court indicating the caste certificate to be certainly a forged document with
the requisite degree of assurance. As aforesaid, only on the basis of the
circumstance, namely, that it does not bear any outward number and date,
the suspicion is sought to be created.
It may be recalled that, the
certificate had been issued in the year 1978-79, and as such, it would be
difficult to state precisely, what was the practice prevailing at the material
time. Even assuming that there is some suspicion, in the absence of
anything more, it would be difficult to hold that a case for prosecuting the
respondent no.3 has been made out, particularly, because the respondent
indeed belongs to a Scheduled Caste which has been mentioned in the said
certificate.
(7)
13.
The petitioner had pointed out these shortcomings in the caste
certificate produced by the respondent no.3, but the Government, who
according to the petitioner, was deceived and cheated by the respondent
no.3, has not taken cognizance in the matter. Apparently, the concerned
authorities have no doubt about the respondent no.3 indeed belonging to a
Scheduled Caste and further about the caste certificate in question being a
genuine document.
Certainly, this was not a case where the material placed before
14.
the Magistrate would undoubtedly come to only one conclusion, namely,
sufficiency of grounds for proceeding against the respondent no.3. Since
some of the issues were not clear, the Magistrate certainly could have
ordered further investigation in the matter, which was not done by him.
When this aspect of the matter was discussed, the learned Counsel for the
petitioner urged that, at least, a direction to hold further inquiry into the
matter be given to the Magistrate.
15.
Though it is possible to hold further inquiry into the matter, in
the peculiar facts and circumstances of the case, namely, (1) that, the
alleged forged certificate has been issued in the year 1978-79 i.e. about
more than 30 years back; (2) that, the petitioner is not personally
aggrieved by the commission of the alleged offences, and the aggrieved
party, namely, the State, has no grievance against the respondent no.3, and
has no disbelief about the certificate; and (3) that, the respondent no.3
actually and in fact, belongs to a Scheduled Caste, it would be futile to
direct further inquiry into the matter, as contemplated under Section 398 of
the Code.
(8)
It is well settled that, the revisional jurisdiction is to be
16.
exercised for correcting a manifest error of law resulting in miscarriage of
justice. In my opinion, this is not a case where the order dismissing the
complaint needs to be interfered with, in exercise of the revisional
jurisdiction.
In the result, the Revision Application is dismissed.
17.
( ABHAY M. THIPSAY )
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