Full Text
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.2489 OF 2022
Tulip Brian Miranda, Age : 42 Years, Occupation : Councillor, Residing at : 1, Louisa Villa, St. Antony
Street, Vakola, Santacruz (East), Mumbai – 55. ...Petitioner
Through its Secretary, the Ministry of
Social Justice, Mantralaya, Mumbai – 32.
2. The District Caste Scrutiny Committee
Mumbai, Suburban District at Bandra, Having Office at 5th
Floor, Administrative
Building, Bandra East, Mumbai : 400051.
3. Benedict Denis Kinny, Age : 44 Years, Occupation : Housewife, Residing at : Flat No.630, 6th
Floor, Marrygold Building, Nester Compound, Kalina, Santacruz (E), Mumbai : 400029.
4. Oniel Anthony Kinny, Age : 51 Years, Occupation : Not known, Residing at : Kolevari Village, Santacruz (E), Mumbai : 400 029.
5. Rajesh Kumar Kanojia, Age : 35 Years, Occupation : Advocate, Residing at : Akash Darshan CHS Ltd., Vidyanagari Marg, C. S. T. Road, Santacruz (East), Mumbai : 400029. ...Respondents
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Mr.Anil Sakhare (Sr.Advocate) a/w Mr.Pramod Kathane, Mr.Rohan
Mirpuri, Mr.Amol Ghurde and Mr.Krushna Ohere, Advocates for
Petitioner.
Mr.Manish Upadhye, AGP, for the Respondents-State.
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SANGAR
ORAL JUDGMENT
1. The petitioner invokes the writ jurisdiction of this Court under Article 226 of the Constitution of India, challenging a part of the order dated 30th September, 2019 (“Impugned Order”, for short) passed by the District Caste Certificate Scrutiny Committee, Mumbai Suburban (hereinafter, referred to as the “Scrutiny Committee”), directing the Police Inspector (Vigilance Cell) and the Law Officer, Scrutiny Committee to file a written complaint before the Criminal Court to initiate criminal proceedings against the petitioner for having relied on a false document during the proceedings for rectification of the Caste Certificate.
2. The circumstances that culminated in the filing of the present petition are detailed below:
(i) The petitioner was issued a Caste Certificate by the
Competent Authority on 19th November 2016 as belonging to “East Indian”. During the pendency of the proceedings before the Scrutiny Committee for validation of the Caste Certificate, the petitioner, on 25th February 2017, placed on record 11 documents in support of her caste claim. On being called upon by the Scrutiny Committee to produce additional documents, the petitioner, on 27th June 2017, placed additional documents, namely, the Birth Certificate and Village Extract of the petitioner’s Aunt, Emilda Wilma Misquitta. The Vigilance Cell, upon inquiry, concluded that the said Birth Certificate produced at Sr. No. 12, was not a genuine document. It was on this finding of the Vigilance Cell that in the first round, the Scrutiny Committee rejected the Caste Claim of the petitioner on 14th August 2017.
(ii) The aforesaid order of the Scrutiny Committee dated 14th August 2017 was challenged before this Court in Writ Petition No. 3673 of 2018. This Court, vide judgment dated 2nd April 2019, remitted the petitioner’s Caste Claim to the Scrutiny Committee for fresh consideration in accordance with law.
(iii) On 30th September 2019, the Scrutiny Committee passed the order validating the Caste Claim of the petitioner, part of which is impugned in this petition. Notwithstanding the grant of the Validity Certificate, the Scrutiny Committee, in paragraph 12 of the impugned order, directed the Police Inspector (Vigilance Cell) and the Law Officer to initiate criminal proceedings against the petitioner for having relied upon the Birth Certificate of his aunt, Emilda Wilma Misquitta, which was found to be a false document, while also recording that such reliance may not constitute an offence under Section 11 of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (“The Caste Certificate Act, 2000”, for short).; yet, on the allegation that the petitioner had attempted to mislead the Scrutiny Committee, it nonetheless directed initiation of criminal proceedings.
(iv) Aggrieved by this part of the impugned order, the aforesaid observation at paragraph No.12 being the basis, the petitioner filed the present petition, assailing the directions of the Scrutiny Committee, authorizing the Police Inspector (Vigilance Cell) and the Law Officer of the Scrutiny Committee to register criminal proceedings against the petitioner.
3. Shri.Sakhare, learned Senior Advocate for the petitioner, submitted that in the present case, despite having observed that Section 11 of the Caste Certificate Act, 2000 has no application, the Scrutiny Committee virtually exercised the powers under the said Section in authorizing the concerned Officers for the purpose of filing the criminal proceedings. It is submitted that there is no provision in the said Act which empowers the Scrutiny Committee to register a criminal offence if the document relied upon by the applicant is found to be false during the scrutiny of the Caste Claim, while at the same time validating the Caste Claim, which is the course that the Scrutiny Committee adopted in the present matter, completely contrary to provisions of the said Act and the Rules.
4. Learned AGP supported the impugned order and submitted that though the order was passed by the Scrutiny Committee as far back as on 30th September 2019, pursuant to which the criminal proceedings were initiated. The present petition was filed belatedly i.e. on 13th August 2021 and that on this ground alone, the petition deserves to be dismissed. It is further submitted that the Committee has rightly observed that this may not be an offence under Section 11, but having found that the petitioner attempted to mislead the Scrutiny Committee, it was justified in authorizing the concerned Officer to file a complaint in writing to the competent Criminal Court.
5. Heard learned Counsel for the parties.
6. It is undisputed that, at the time of applying for the Caste Certificate, the petitioner relied upon various documents; however, she did not rely upon the Birth Certificate or the Village Extract of her aunt, Emilda Wilma Misquitta, for obtaining the said Caste Certificate. These documents were produced for the first time subsequently, during the proceedings for grant of a Caste Validity Certificate before the Scrutiny Committee, by way of an Additional Affidavit. The same were placed on record pursuant to the Scrutiny Committee calling upon the petitioner to produce additional material in support of her claim. Upon enquiry, the Birth Certificate of the petitioner’s aunt, Emilda, was found to be a false document, which resulted in the rejection of the petitioner’s Caste Claim. Aggrieved thereby, the petitioner preferred a writ petition before this Court. This Court remanded the matter back to the Scrutiny Committee for fresh consideration.
7. Upon hearing the matter after remand, the Scrutiny Committee granted a Caste Validity Certificate to the petitioner on the basis of other documents produced and relied upon by her, and not on the basis of the said Birth Certificate of her Aunt, Emilda. Having granted the Validity Certificate, the Scrutiny Committee observed in the impugned order that Section 11 would not be applicable, as the petitioner had not obtained the Caste Certificate by furnishing false information, filing any false statement or document, or by resorting to fraudulent means. Nevertheless, the Committee proceeded to authorize the concerned officers to initiate criminal proceedings against the petitioner. The relevant portion of paragraph 12 of the impugned order and the operative portion of the same is reproduced below for ready reference: “12. …….
1) …….
2) Secondly, the Applicant has admitted that Birth Certificate of her aunt Emilda Wilma Misquitta (Quinny) was a forged and fabricated document. This fabrication cannot be done by Emilda Wilma Misquitta, who appears to be a senior citizen having no interest or benefit to be accrued in her favour by way of any such forgery. Very innocently, in Para No. 13, the Applicant has sought to defend her criminal act by way of feeble and lame argument that the moment she (Applicant) came to know that the document of her real aunt was false, she restricted her argument to the extent of other document and did not place reliance on the birth record of her aunt Emilda Wilma Misquitta (Quinny). This admission of submitting forged and fabricated document on record of this Hon'ble Court is Sufficient to hold a case of contempt of authority this Hon'ble Court nay perjury attracting penal action u/s 11 of the Caste Certificate Act, 2000. The defense can be raised by the Applicant only at the stage of trial and not in present proceeding. The moment, this Hon'ble Caste Serutiny Committee comes across any document being fogged and fabricated submitted by the Applicants, the Scrutiny Committee is under obligation to launch prosecution by registering FIR through the concerned Officer with the police against such Applicant for offence u/s. 11 of the Caste Certificate Act being cognizable and bailable. This is mandatory provision and the Applicant cannot be granted any relaxation for the same. Admittedly, the aunt Emilda Wilma Misquitta being senior citizen would never have any interest in preparing her forged and fabricated Birth Certificate at this age, whereas, the present Applicant her all the interests in getting any such document prepared and submitted before this Hon'ble Court for establishing her Caste Claim. Hence, on the basis of such lapse/ excuses/defense, the proceeding u/s. 11 of the Caste Certificate Act, 2000 cannot be subverted.
3) ……. 4) ……. 5) ……. 6) ……. 7) ……. 8) ……. 1) ……. 2) ……. 3) ……. 4) ……. 5) ……. 6) ……. 7) ……. 8) ……. 9) ……. 10) ……. 11) …….
12) Birth Death Register of Mauje Dahisar, Taluka Thane issued by B R K R/Central (Emilda Wilma): This document is birth register of the Aunt of the Applicant. name of the child is written – Emilda Wilma, Gender – Female, date of birth 13.07.1947, date of registration 28.9.1947, full name of the father Peter Michael, name of mother Luisa Betris, residential address of parents Kandar Pada, Dahisar West, Mumbai-400 068, place of Birth – Mumbai etc. In order to make verification of the birth certificate when personally visit was given to R/C Ward, Borivli (W) and enquiry was made with Smt. Inamdar, Health Officer, it was informed that the said Birth certificate was not issued by the said Office. No number mentioned on the certificate was found in the said Office. At the time of said period Shri R.P. Sawant was not Medical Officer or Sub degree is mentioned as M.B.B.S. It was stated that no such degree in medicine is existing. For written report this office had issued letter No. JIJAPRAPAS/DAP/TARABH/2016- 17/544 dated 10.7.2017 and therefore by return of post they have submitted above information and also stated that R/Central Ward started in the year 1958 and therefore records prior to that date do not find in the Office. In respect of the registration No. Of the certificate when by personal visit to R/C Ward facility centre enquiry was made the facility centre Incharge Smt. Bharati Zarapkar informed that no such certificate of the said number was issued from the said civil facility centre and there was not record available in the office. The original documents relating to birth-death of the persons residing in Mumbai Municipal Corporation are preserved at Shri Gaurabai Hospital, Kamathipura and therefore personal visit was given for inspection and no record was found about the birth of the aunt of the applicant at that place. For written report a letter was issued to the Assistant Health Officer Dr. Smt. Pranita Tipre, F./ South Ward,Parel under this office letter No.JIJAPRAPAS/ DP/TARABH/545/2017 dated 10.7.2017. As the birth-date register in respect of aunt of the applicant appears not issued by the concerned office and change and scribbling appears in writing. Similarly the Office of R/C Ward of Mumbai Municipal Corporation also has confirmed that the birth certificate has not been issued by the said Ward.” During Vigilance Cell Verification the Birth Certificate and Birth Extract of the Applicant’s Aunt Emilda Wilma submitted by the Applicant Mrs. Tulip Brian Miranda is found false. As per Section 11 (1) (c) of the Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes; other Backward Classes and Verification of) Caste Certificate Act, 2000 it is mentioned that if Caste Certificate is obtains by furnishing false information or filing false statement or documents or by any other fraudulent means. However the Applicant while obtaining the Caste Certificate has not furnished any such document. Therefore, the said section is not applicable to the Applicant; however, the Applicant has submitted false Birth Certificate of her Aunt. On this basis the Applicant has tried to mislead this Committee as well as the Government therefore the action of Criminal Prosecution as per relevant Criminal Code be initiated against the Applicant.
13) …….
14) …….
15) …….
COMMITTEE DECISION Caste Certificate No. 122 of 2016 dated 19.11.2016 issued by the Deputy Collector, Sanjay Gandhi Scheme, Mumbai Suburban District, as to Applicant Tulip Brian Miranda belongs to East Indian is valid. Further as mentioned below to issue No. 12 it is hereby authorized to police Inspector (Vigilance Cell) Law officer, District Caste Verification Committee Mumbai Suburban to initiate Criminal prosecution as per relevant Penal Code.”
8. Thus, the question that arises for consideration is whether the Scrutiny Committee, having itself recorded that Section 11 of the Caste Certificate Act, 2000 is not attracted, erred in directing the initiation of criminal proceedings against the petitioner by authorizing the officers under Section 11 of the Caste Certificate Act, 2000 to file the written complaint before the competent court initiating criminal action against the petitioner.
9. Before proceeding further, it would be pertinent to discuss and appreciate the scheme of the Caste Certificate Act, 2000, which was enacted with the object to provide for the regulation of the issuance and verification of the Caste Certificates to the persons belonging to the Scheduled Castes, Scheduled Tribes, De-Dotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category and for matters connected therewith or incidental thereto. The Statement of Objects and Reasons published in relation to the Caste Certificate Act, 2000 is quoted below for ready reference: “STATEMENT OF OBJECTS AND REASONS It has been brought to the notice of the Government that the incidents of procuring false Caste Certificates, in respect of Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category have reached alarming figure. Such false Caste Certificates not only enable the ineligible persons to avail of the concessions and reservations in the matter of securing employment or admission in the educational institutions or contesting for or being elected to any of the elective offices reserved for the benefit of the aforesaid Castes, Tribes and Classes, but also result in depriving the genuine members of the said Castes, Tribes and Classes of the said concessions and reservations, thereby defeating the very purpose of such concessions and reservations.
2. The Hon'ble Supreme Court in its judgement dated the 18th April 1995, in the case of Director of Tribal Welfare, Government of Andhra Pradesh Versus Laveti Giri and another has also desired that "the Government of India should have the matter examined in greater detail and bring about a uniform legislation with necessary guidelines and rules prescribing penal consequences on persons who flout the Constitution and corner the benefits reserved for the real tribals, etc. so that the menace of fabricating the false records and to gain unconstitutional advantage by plain/spurious persons could be prevented.".
3. As the existing instructions issued by Government, from time to time, are found to be inadequate, to curb this menace, it has been decided to undertake a suitable legislation for regulating the issue of the Caste Certificate and verification of such certificate and also providing for deterrent punishment for those who indulge in such illegal activity.
4. This Bill is intended to achieve the above objectives.” [Emphasis Supplied]
10. As is evidenced by point No. 3 of the Statement of Objects and Reasons, the provisions of the said Act have been enacted keeping in mind the inadequacy of the existing instructions issued by the Government in regulating the issue of Caste Certificate and verification of such certificate and also providing for deterrent punishment for those who indulge in such illegal activity.
11. Now let us try to understand the scope of the provisions of the Caste Certificate Act, 2000. Firstly, to obtain a Caste Certificate, a party shall make an application before the Competent Authority, under Section 3 along with particulars, as prescribed by under Rule 4 of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules, 2012 (“The Caste Certificate Rules, 2012”, for short). In accordance with the provisions of Section 4, Competent Authority then either issues or rejects a Caste Certificate after due verification, following the procedure prescribed under Rule and timelines and only certificates issued by the Competent Authority are valid, and they remain subject to further verification and approval by the Scrutiny Committee. Further, the party seeking the benefits of reservation or the appointing authority must apply to the concerned Scrutiny Committee for verification of the Caste Certificate and for issuance of a validity certificate under Section 6, supplying the information as enlisted under Rule 16 of the Rules. Upon following the procedure prescribed under Rule 17 of the Caste Certificate Rules, 2012, and conducting due enquiry, the Scrutiny Committee either issues the validity certificate or rejects the claim. Section 6 of the Caste Certificate Act, 2000 reads thus: “6. Verification of Caste Certificate by Scrutiny Committee.— (1) The Government shall constitute by notification in the Official Gazette, one or more Scrutiny Committee(s) for verification of Caste Certificates issued by the Competent Authorities under sub-section (1) of section 4 specifying in the said notification the functions and the area of jurisdiction of each of such Scrutiny Committee or Committees. (2) After obtaining the Caste Certificate from the Competent Authority, any person desirous of availing of the benefits or concessions provided to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category for the purposes mentioned in section 3 may make an application, well in time, in such form and in such manner as may be prescribed, to the concerned Scrutiny Committee for the verification of such Caste Certificate and issue of a validity certificate. (3) The appointing authority of the Central or State Government, local authority, public sector undertakings, educational institutions, Co-operative Societies or any other Government aided institutions shall, make an application in such form and in such manner as may be prescribed by the Scrutiny Committees for the verification of the Caste Certificate and issue of a validity certificate, in case a person selected for an appointment with the Government, local authority, public sector undertakings, educational institutions, Co-operative societies or any other Government aided institutions who has not obtain such certificate. (4) The Scrutiny Committee shall follow such procedure for verification of the Caste Certificate and adhere to the time limit for verification and grant of validity certificate, as prescribed.”
12. It would also be pertinent to refer to Rule 17 of the Caste Certificate Rules, 2012, which prescribes the procedure to be followed by the Scrutiny Committee while granting a Caste Validity Certificate. Rule 17 reads thus: “17. Procedure of Scrutiny Committee (1) On receipt of application, the Scrutiny Committee shall ensure that the application and the information supplied therewith is complete in all respects and to carry out scrutiny of the application. (2) Notwithstanding anything contained in these rules, the claimant or applicant or complainant shall be personally responsible for removal of objections raised by Scrutiny Committee, if any, within two weeks or within such extended period, which shall not be more than six weeks, failing which the claim or application or complaint shall be disposed of, by appreciating available records and such decision may be communicated to the applicant by the Scrutiny Committee. (3) The incomplete application may be rejected by recording reasons. (4) Notwithstanding anything contained in these rules, it will be the sole responsibility of the claimant or applicant to attend the dates of hearing. either personally or through duly authorised representative. (5) The roznama of the Scrutiny committee shall be self evident as to what transpired on a particular day and it shall be signed by all the members of the Scrutiny Committee. (6) If the Scrutiny Committee, upon appreciating the statement of applicant or claimant submitted in the form of Affidavit filed in consonance with Order 18 Rule 4 of the Code of Civil Procedure, 1908, as well as other evidence and documents furnished along with any application or proposal is satisfied, about the geniuneness of Scheduled Caste or Scheduled Caste converts to Buddhism or De-notified Tribes (Vimukta Jatis) or Nomadic Tribes or Other Backward Classes or Special Backward Category claim the scrutiny committee shall forthwith issue Validity Certificate in FORM-20 without enquiry by vigilance cell. (7) If the Scrutiny Committee, upon appreciating the statement of applicant or claimant submitted in the form of Affidavit filed in consonance with Order 18 Rule 4 of the Code of Civil Procedure, 1908, as well as other evidence and documents furnished along with any application or proposal, is of the opinion that the documents do not satisfy or conclusively prove the Scheduled Caste or Scheduled Caste converts to Buddhism or De-notified Tribes (Vimukta Jatia) or Nomadic Tribes or Other Backward Classes or Special Backward Category claim, the Scrutiny Committee by mentioning the same in the roznama, shall refer such case to the Vigilance Cell for carrying out suitable inquiry, as is deemed fit, by the Scrutiny Committee. Provided that, findings recorded by the Vigilance Cell shall not be binding on the Scrutiny Committee, as the vigilance inquiry is meant for internal assistance to the Scrutiny Committee. The Scrutiny Committee shall record its reasons for discarding the report of Vigilance Cell. (8) The Vigilance Cell shall complete the inquiry within six weeks, thereby making suitable inquiry, on all the issues or as specifically directed by the Scrutiny Committee. (9) Vigilance Inquiry shall be made for respective territorial area of jurisdiction of concerned Scrutiny Committee. (10) In case of those cases which are referred to Vigilance Cell, upon considering the report submitted by Vigilance Cell, if the Scrutiny Committee is satisfied about the genuineness of Scheduled Caste or Scheduled Caste converts to Buddhism or De-notified Tribes (Vimukta Jatis) or Nomadic Tribes or Other Backward Classes or Special Backward Category claim of claimant or applicant, it shall be lawful to decide the matter finally by its written decision, and forward the copy of decision and Validity Certificate in FORM-24, to the concerned parties or authority, by preserving its scanned copy (in electronic form). (11) (i) In case of those cases which are refereed to Vigilance Cell, upon considering the report of Vigilance Cell, if the Scrutiny Committee is not satisfied about the claim of the applicant, it shall call upon the applicant to prove his Caste claim, by discharging his burden, as contemplated under section 8 of the Act, by issuing a notice in FORM-25 coupled with copy of report of Vigilance Inquiry,
(ii) After issuance of notice, if applicant requests, by way of written application, for copies of vigilance inquiry report or any other document or prays for adjournment, reasonable time for final hearing or for submitting written submission, it may be granted;
(iii) After affording an opportunity of hearing, Scrutiny
Committee shall,- (a) being satisfied regarding the genuineness of the Caste claim, decide the matter finally, upon appreciation of evidence, by its reasoned decision, i.e. decision of committee and issue Certificate of Validity, in FORM-24; and forward the same to concerned authorities within thirty days, by preserving its scanned copy (in electronic form); (b) being not satisfied about the genuineness of the claim and veracity of the Caste Certificate, it shall pass its decision, thereby cancelling and confiscating the original Caste Certificate and invalidating the Caste or Tribe claim of the applicant or claimant;
(c) upon invalidation of Caste or Tribe claim, the Caste
Certificate under inquiry shall be stamped as "cancelled and confiscated", and forward the same along with copy of decision, to the Competent Authority and concerned parties, by preserving its scanned copy (in electronic form);
(d) after conclusion of the hearing of the case, the work of writing of the decision shall be assigned to one of its member by the Scrutiny Committee; (e) in case of difference of opinion amongst the members of Committee, on the main order of majority, the dissenting member shall write his separate order; (f) The name of member of Committee to whom work of writing final order was assigned, shall be mentioned in the roznama. Moreover, front page of final order shall disclose the date of the order. (12) Notwithstanding anything contained in these rules, it is incumbent on the applicant to disclose all the true and correct information, including disclosure of adverse entries or material, failing which, it shall be lawful for the Scrutiny Committee to draw adverse inference. (13) If the Scrutiny Committee finds and concludes that the report of Vigilance Cell is false or unrealistic, it shall record the reason in decision and direct appropriate action as contemplated under section 14, read with section 11 and 12 of the Act and also recommend Departmental inquiry against such Vigilance Officer. Provided that, an opportunity of being heard be granted to the concerned Vigilance Cell officer prior to any direction for appropriate action. This hearing shall be independent to adjudication of Caste or Tribe claim.” [Emphasis Supplied]
13. As we proceed further, it would be apposite to refer to Section 7 as it stands in the Caste Certificate Act, 2000. Section 7 reads thus: “7. Confiscation and cancellation of false Certificate.— (1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any. (2) The order passed by the Scrutiny Committee under this Act shall be final and shall not be challenged before any authority or court except the High Court under Article 226 of the Constitution of India.”
14. A plain reading of Section 7 indicates that it applies to cases where, during the verification of a Caste Certificate issued by the Competent Authority, the Scrutiny Committee finds that a person who does not belong to any of the notified reserved categories has obtained a false Caste Certificate, either for himself or for his children. In such circumstances, the Scrutiny Committee may, suo motu or otherwise, call for the relevant records and conduct an inquiry into the validity of the certificate. If it concludes that the certificate was obtained fraudulently, the Committee is empowered to cancel and confiscate the said certificate by a reasoned order, in accordance with the prescribed procedure, after affording the concerned person an opportunity of being heard, and to communicate such decision to the person concerned and the relevant authority, if any. Moreover, the order of the Scrutiny Committee passed under the Caste Certificate Act, 2000 shall be final and binding, and shall not be questioned before any authority or court, except by way of a writ petition before the High Court under Article 226 of the Constitution of India.
15. Now, as far as the penal consequences for obtaining a Caste Certificate fraudulently are concerned, one has to read Section 7 in conjunction with Section 11, which reads thus: “11. Offences and penalties.— (1) Whoever,— (a) obtains a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means; or (b) not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures any benefits or appointments exclusively reserved for such Castes, Tribes, or Classes in the Government, local authority or any other company or corporation owned or controlled by the Government or in any Government aided institution, or secures admission in any educational institution against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to any of the elective offices of any local authority or Cooperative Society against the office, reserved for such Castes, Tribes or Classes by producing a false Caste Certificate; Shall, on conviction, be punished, with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years or with fine which shall not be less than two thousand rupees, but which may extend upto twenty thousand rupees or both. (2) No court shall take congnizance of an offence punishable under this section except upon a complaint, in writing, made by the Scrutiny Committee or by any other officer duly authorised by the Scrutiny Committee for this purpose.”
16. Section 11 criminalises the act of obtaining a “false Caste Certificate” by furnishing false information, making false statements, producing false documents, or by any other fraudulent means. A conjoint reading of Sections 7 and 11(1) makes it clear that cognizance of such an offence can be taken only after the Scrutiny Committee records a finding that a false Caste Certificate was obtained fraudulently and issues an order cancelling and confiscating the certificate. Accordingly, a written complaint by the Scrutiny Committee, which is a precondition for initiating prosecution under Section 11, can be made only subsequent to such a finding and order. In other words, a determination by the Scrutiny Committee that a false Caste Certificate has been obtained through fraudulent means, culminating in an order for its cancellation and confiscation, is a sine qua non for the Scrutiny Committee to file a written complaint for the purpose of taking cognizance of the offence.
17. The said Act is a complete Code in itself. Section 11 provides for offences and penalties. Sub-Section (2) of Section 11 as indicated earlier, provides that no Court shall take congnizance of an offence punishable under this Section except upon a complaint, in writing, made by the Scrutiny Committee or by any other officer duly authorised by the Scrutiny Committee for this purpose.
18. Section 12 of the said Act provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, (a) offences punishable under Section 11 shall be cognizable and nonbailable; (b) every offence punishable under this Act, shall be tried by any Magistrate of First Class in a summary way and provisions of Section 262 except Sub-Section (2) to 265 both inclusive of this Code, shall as far as possible may be applied to such trial.
19. Section 13 of the said Act provides for penalty for issuing false Caste Certificate, whereas Section 14 of the said Act makes an offence of abetment punishable under the Act. No doubt, Section 17 provides that provisions of the said Act shall be in addition to any other law for the time being in force.
20. The question in the present case is whether the Scrutiny Committee could have indirectly resorted to the provisions of Sub- Section (2) of Section 11 of the said Act when this is not a case of the petitioner having obtained false Caste Certificate, on the contrary, the Caste Certificate is validated by reasoned order on the basis of materials relied by the petitioner.
21. To understand the scope of the Application of Section 7 and Section 11, let us contemplate and distinguish between the following fact situations:
I. The Scrutiny Committee rejects the caste claim, after following the prescribed procedure and conducting due enquiry, on not being satisfied about the genuineness of the caste claim and veracity of the Caste Certificate:-
(i) In this scenario, the Scrutiny Committee, after following the procedure contemplated under Sub-Rule 11(iii)(b) and (c) of Rule 17 and conducting a due and proper enquiry, may arrive at a conclusion that it is not satisfied about the genuineness of the caste claim or the veracity of the Caste Certificate. In such circumstances, the Committee would pass a reasoned order invalidating the caste or tribe claim of the applicant or claimant, and cancelling and confiscating the original Caste Certificate.
(ii) Upon such cancellation, the Caste Certificate under enquiry would be stamped as “cancelled and confiscated” and forwarded, along with a copy of the decision, to the Competent Authority and the concerned parties. (iii)It is material to note that in this situation there is no finding that the certificate was obtained by fraud, misrepresentation, or deliberate falsehood. The rejection is premised on the Committee not being satisfied with the evidence adduced in support of the claim. (iv)In such a case, Section 7 would not be attracted, as there is no finding of fraudulent procurement of a false Caste Certificate by a person not belonging to the claimed caste or tribe. So also, Section 11 would not be attracted, since no offence is made out in the absence of a false Caste Certificate. Criminal action is not prescribed on such a scenario either under the provisions of the Act or the Rules.
(v) Thus, the consequences in this scenario remain confined to cancellation and invalidation, and the penal consequences contemplated under Section 11 would not follow.
II. Now coming to the other scenario, whereby the Scrutiny
Committee rejects the caste claim after following the prescribed procedure and conducting due enquiry, on the ground that a “false Caste Certificate” was obtained by furnishing false information, filing any false statement or document, or by resorting to any other fraudulent means:-
(i) In this scenario, the Scrutiny Committee, upon due enquiry and after affording the applicant an opportunity of being heard, records a specific finding that the Caste Certificate before it is a false Caste Certificate and that it has been obtained fraudulently by a person not belonging to the claimed Scheduled Caste, Scheduled Tribe, De-notified Tribe (Vimukta Jatis), Nomadic Tribe, Other Backward Class or Special Backward Category.
(ii) In such circumstances, Section 7 would squarely apply.
Section 7 contemplates that where a person not belonging to any of the aforesaid castes, tribes or classes has obtained a false Caste Certificate for himself or his children by fraudulent means, the Scrutiny Committee may, either suo motu or otherwise, call for the record, enquire into the correctness of such certificate, and if satisfied that it was obtained fraudulently, cancel and confiscate the same after following the prescribed procedure and after giving the person concerned an opportunity of being heard. The decision must then be communicated to the concerned person and the concerned authority. (iii)Thus, the essential prerequisite for the application of Section 7 is a finding that a person not belonging to the claimed caste or class has procured the certificate by fraudulent means. (iv)The sequence of events that would follow is as delineated below: (a) The applicant would be afforded an opportunity of hearing in accordance with the prescribed procedure. (b) If the Scrutiny Committee is satisfied that the Caste Certificate is false and has been fraudulently obtained, it would pass an order cancelling and confiscating the said certificate.
(c) The Scrutiny Committee would communicate its decision to the concerned person and the concerned Authority.
(d) If the applicant had secured educational admission, employment, or any other statutory benefit on the basis of such false Caste Certificate, the said benefits would become liable to be withdrawn by operation of Section 10, upon cancellation and confiscation of the certificate obtained fraudulently. (e) Further, upon a written complaint made to the competent criminal court by the Scrutiny Committee or any officer duly authorised by it, penal consequences under Section 11 would follow. Subsection (1)(a) of Section 11 makes the act of obtaining a false Caste Certificate by furnishing false information, filing false statements or documents, or by any other fraudulent means, an offence punishable with rigorous imprisonment for a term not less than six months, which may extend up to two years, or with fine not less than two thousand rupees, which may extend to twenty thousand rupees, or with both. Under sub-section (2) of Section 11, cognizance of such offence can be taken by a competent court only upon receipt of a written complaint from the Scrutiny Committee or an officer duly authorised by it for this purpose.
22. Therefore, while every case where the Caste Certificate is invalidated necessarily results in cancellation and confiscation, not every invalidation of a caste claim amounts to fraud. It is only in cases where fraudulent procurement is specifically established under Sections 7, that Section 11 operates, leading not merely to cancellation, but also to withdrawal of benefits and potential criminal prosecution.
23. As far as the present case is concerned, the document on the basis of which the Scrutiny Committee issued a direction to the concerned officers to file a written complaint against the petitioner for having relied on a false document to establish his caste claim before the committee, is the Birth Certificate of his Aunt, Emilda. It bears emphasis that the aforesaid document was not relied upon by the petitioner to obtain the Caste Certificate. It was only before the Scrutiny Committee at the stage of Caste Certificate Verification that the said document came to be placed before the committee by means of an additional affidavit. Thus, the Caste Certificate issued to the petitioner, validated by the Scrutiny Committee, even according to the Committee is not a false Caste Certificate in terms of Section 7. The Caste Certificate was not granted on the basis of the said false document.
24. What also warrants consideration is that the document in question, namely the Birth Certificate of the petitioner’s aunt, Emilda, was produced during the proceedings before the Scrutiny Committee on the first occasion, that is, prior to the order of this Court remanding the matter to the Scrutiny Committee for fresh consideration. At that time, the document was found to be false, which was one of the reasons that led the Scrutiny Committee to reject the petitioner’s caste claim.
25. Following the remand, the petitioner relied upon other additional documents, to substantiate her caste claim. Moreover, the petitioner filed an affidavit in support of her caste claim, in paragraph 13 of which she addressed the disputed Birth Certificate of her Aunt. She explicitly stated that she had withdrawn reliance on that document and confined her arguments to the other documents placed on record, following the filing of the report of the Vigilance Cell, which had noted the said document to be false.
26. Furthermore, by the impugned order, the Scrutiny Committee has, at paragraph 12, while discussing the said Birth Certificate of the petitioner’s Aunt, clearly stated that provisions of Section 11 would not be applicable as the said document had not been relied upon by the petitioner to procure the Caste Certificate. However, the Scrutiny Committee, in the operative portion of the order, despite validating the petitioner’s caste claim, indirectly, virtually exercised its powers under Section 11(2) of the Caste Certificate Act, 2000 in initiating criminal proceedings against the petitioner for having filed a false document. This course is impermissible, considering that neither the provisions of Section 7 nor Section 11 would apply to the case of the petitioner, as the petitioner has not obtained a “false Caste Certificate” by relying on the said document, which is an essential condition for the aforesaid Sections to apply.
27. The Scrutiny Committee by issuing such a direction has done something indirectly which it could not do directly. It is well settled that where a statute prescribes the manner in which a particular act is to be done, the act must be performed strictly in that manner or not at all. This principle traces its origin to the decision in Taylor v. Taylor[1], and has consistently been followed and applied by various courts for over a century. The rule accords with the ancient Latin maxim Quando aliquid prohibetur ex directo, prohibetur et per obliquum, meaning that what is prohibited directly is also prohibited indirectly.
28. The Scrutiny Committee has correctly observed that, in the facts of the present case, it cannot invoke sub-section (2) of Section 11. The Committee has merely discarded the document of the Petitioner’s aunt, Emilda, while ultimately granting validity to the Petitioner’s caste claim. The Act does not contemplate or prescribe any consequence for relying on a false document, where Validity Certificate is granted, 1 (1875) 1 Ch. D. 426. despite the document being discarded from consideration.
29. However, by directing the filing of a written complaint before the competent Court and authorising the Police Inspector (Vigilance Cell) and the Law Officer to initiate such proceedings, the Scrutiny Committee has, in effect, exercised powers under sub-section (2) of Section 11 of the Caste Certificate Act, 2000. Such exercise is impermissible under the scheme of the Act. The jurisdiction to invoke sub-section (2) of Section 11 arises only where the ingredients of subsection (1)(a) or(1)(b) of Section 11 are satisfied. In the present case, there is no finding that the Petitioner obtained a false Caste Certificate, nor does the case fall within sub-section (1)(b) of Section 11.
30. Moreover, even assuming that the present case falls within the ambit of Section 7, it cannot be said that the Scrutiny Committee complied with the mandatory requirements of the said provision. Although the Vigilance Cell reported that the Birth Certificate of the petitioner’s aunt, Emilda, was a false document, the Scrutiny Committee did not afford the petitioner even a minimal opportunity of being heard, as contemplated under Section 7 of the Caste Certificate Act, 2000, before issuing the direction initiating criminal action against the petitioner. Even on this count, the impugned direction contained in the said order of the Scrutiny Committee is vitiated for non-compliance with the principles of natural justice.
31. The question of delay does not arise. The impugned order is dated 30th September 2019. This petition was filed on 13th August
2021. This petition challenges a direction which is in the teeth of the provisions of Caste Certificate Act, 2000. We are not inclined to hold that this is a belated challenge.
32. Consequently, the direction in the impugned order authorising initiation of criminal proceedings against the Petitioner, is unsustainable and is accordingly quashed and set aside.
33. It is, however, clarified that if the provisions of any other law for the time being in force permit the Scrutiny Committee to initiate appropriate criminal action on the basis of the discarded document of the Petitioner’s aunt, it would be open to the Scrutiny Committee to take such action in accordance with law.
34. The Petition is allowed to that extent and is disposed of.
35. Pending Applications, if any, also stand disposed of. (S. M. MODAK, J.) (M. S. KARNIK, J.)