Om Prakash vs State Of U.P. And Another
2018 Latest Caselaw 1614 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 53
 
Case :- APPLICATION U/S 482 No. - 23634 of 2018
 

 
Applicant :- Om Prakash
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Irshad Saleem,Abrar Ahmad
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble J.J. Munir,J.

Heard Sri Abrar Ahmad, learned counsel for the applicant and the learned A.G.A. appearing for the State.

This application under Section 482 Cr.P.C. has been filed seeking to quash the charge sheet dated 09.03.2018 giving rise to Sessions Trial no.154 of 2018, State vs. Lekhpal Om Prakash (arising out of Case Crime no.154 of 2017), under Sections 420, 467, 468, 471 IPC, Police Station Kotwali Dehat, District Bijnor, pending before the court of Additional Sessions Judge, Court no.2, Bijnor.

The allegations in the FIR are to the effect that one Smt. Shivali Mandal wife of Ashok Kumar Chauhan, a native of a certain place Manik Chak, District Malda, West Bengal contested the elections to the post of Pradhan, Gram Panchayat Asalampur Bhullan, Block Kotwali Dehat, District Bijnor on a seat reserved for the Scheduled Caste (Woman). She relied upon fake and forged documents for the purpose and succeeded to get elected to the post in connivance with others. It is also the prosecution case that the candidate polling the highest but one number of votes, Laxmi Devi wife of Rohtas, got a First Information Report lodged giving rise to Case Crime no.10 of 2016, under Sections 420, 467, 468, 471, 120B IPC at Police Station Kotwali, District Bijnor, but in connivance with the elected Pradhan, the police submitted a bogus final report and sent the informant to jail. It is alleged that in order to bring about the aforesaid support for a bogus Scheduled Caste candidature, services of functionaries from the Tehsil that includes the Lekhpal Om Prakash and the Kanungo Mahendrajeet were drafted. It is pointed out that it is the aforesaid last limb of the allegations that has brought the applicant's name into the whirlpool of criminal proceedings initiated by the second opposite party.

It is submitted by the learned counsel for the applicant that the present First Information Report lodged by opposite party no.2 is absolutely mala fide and carries the same contents as those in the First Information Report giving rise to Case Crime no.10 of 2016, wherein the police after investigation have submitted a final report, whereagainst a protest by Smt. Laxmi, the first informant of the last mentioned case is pending before the Magistrate. The allegations in the present First Information Report are said to be identical, wherein the name of the applicant figures as an abettor. In the present FIR registered as Case Crime no.154 of 2018, under 420, 467, 471 IPC and Section 3(1)(d) of the SC/ ST Act, Police Station Kotwali Dehat, District Bijnor, after investigation a charge sheet has been submitted by the Investigation Officer on 09.03.2018.

It is further submitted that the Tehsildar, Nagina has verified the caste certificate of co-accused Smt. Shivali, the Pradhan, from the Block Development Officer, Manik Chak, District Malda, West Bengal, and, the said Block Development Officer has sent an e-mail verifying the fact that Smt. Shivali belongs to the Chain caste, which is a Scheduled Caste in West Bengal. It has also been communicated that son of her brother also has a Scheduled Caste certificate. A copy of the said e-mail has been annexed as Annexure 5 to the affidavit. It is emphasized that a Scheduled Caste certificate has been issued to Smt. Shivali Mandal on 02.03.2011 by the Sub-Divisional Officer, Malda (Sadar), West Bengal, a copy of which is annexed as Annexure 6 to the affidavit. It is pointed out that this Court has granted relief to the main accused Smt. Shivali on an application under Section 482 Cr.P.C. being Application u/s 482 no.7935 of 2018 filed before this Court vide order dated 13.03.2018, and, therefore, the applicant who is an accessory to the offence, if any, committed by Smt. Shivali, is entitled to the same protection.

The learned A.G.A. has opposed the motion to admit this application to hearing and has submitted that the question is whether the caste Chain that is a Scheduled Caste in West Bengal is also a Scheduled Caste in Uttar Pradesh and in District Bijnor. According to the learned A.G.A. it is a question of fact that has to be determined with reference to the Constitution (Scheduled Castes) Order, 1950 made by the President of India under Article 341 of the Constitution as in force on the date of the certification of candidature of Smt. Shivali by the applicant.

This Court has given an anxious consideration to the matter and to the understanding of this Court the issue is whether the main accused Smt. Shivali falls into the category of Scheduled Caste by virtue of being a member of the caste known as Chain in the State of Uttar Pradesh and in the district of Bijnor by virtue of the Constitution (Scheduled Castes) Order, 1950 issued by the President of India under Article 341 of the Constitution as amended by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976, and, the said order as amended in force on the date when the candidature of the main accused, Smt. Shivali was certified by the applicant as a member of a Scheduled Caste in district Bijnor, Uttar Pradesh. It may be that the applicant is a member of a Scheduled Caste in West Bengal in the district of Maldah but may not be a Scheduled Caste in district Bijnor of Uttar Pradesh going by the Scheduled Caste Order as amended and in force on the date of certification of her candidature in Uttar Pradesh. In case the caste Chain was a Scheduled Caste on the date that her candidature was certified by the authorities in district Bijnor, Uttar Pradesh under the Scheduled Castes Order, no offence would be made out against the applicant ex facie; but in case caste Chain was not a Scheduled Caste in district Bijnor, Uttar Pradesh, even though a Scheduled Caste in district Maldah, West Bengal, an offence would certainly be made out against the applicant, who certified her candidature as such.

A Scheduled Caste in one State need not be a Scheduled Caste in another; even a Scheduled Caste in one district of the State may not be a Scheduled Caste in another district or another part of the same district. All that has to be seen with references to the Constitution (Scheduled Castes) Order, 1950 as in force on the date when a person claims that right for the purpose of some benefit in a particular district of a State. All that can be answered by an examination of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1976 read with 1st Schedule to the said Act and the Constitution (Scheduled Castes) Order, 1950 as amended and in force on the date when the certificate was issued in favour of the accused Smt. Shivali. It may be noticed that amendment to the Constitution (Scheduled Castes) Order, 1950 is brought about, whenever it has to be done, by an Act of Parliament to amend the said order. These Amendment Acts whenever passed are called the Constitution (Scheduled Castes) Order (Amendment) Act followed by the year in which the particular Amendment Act amending the Constitution (Scheduled Castes) Order, 1950 was passed. In this connection the Court has examined the Constitution (Scheduled Castes) Order, 1950 and finds that the Schedule appended to it in Part XIX relating to West Bengal shows that the caste 'Chain' has been included in the Order of 1950 in districts of Malda, Murshidabad, Nadia and Dakhin Dinajpur under entry 60 through the Constitution (Scheduled Castes) Order (Amendment) Act, 2002 being Act no.25 of 2002 w.e.f. 24.05.2002. The said caste has continued by virtue of entry 60 in Part XIX of the Constitution (Scheduled Castes) Order, 1950 as a Scheduled Caste in districts of Malda, Murshidabad, Nadia and Dakhin Dinajpur. It was, thus, no doubt a Scheduled Caste on the date when the certificate by the authorities in West Bengal was issued in favour of main accused Smt. Shivali. However, a perusal of Part XVIII of the Schedule relating to Uttar Pradesh does not show Chain to be Scheduled Caste in the State of Uttar Pradesh. Thus, there is no manner of doubt that Smt. Shivali, the main accused prima facie is not a member of a Scheduled Caste in Uttar Pradesh.

However, the moot question would remain whether the applicant who is a Lekhpal was aware about the aforesaid distinction in law about the variable caste status of a particular caste as a Scheduled Caste across different States in the country, and, further, as to what precise role did he play in certifying the status of the main accused, Smt. Shivali as a member of a Scheduled Caste. These are essentially questions of fact that cannot be gone into by this Court in the exercise of jurisdiction under Section 482 Cr.P.C. The said questions can be examined at the trial, and, may be, also at an earlier stage in case the applicant were to claim a discharge by making an appropriate application under Section 239 Cr.P.C.

Considering the aforesaid facts and circumstances, no case for quashing the impugned charge sheet is made out. The prayer for quashing the charge sheet is, therefore, refused.

However, it is provided that in case the applicant appears and surrenders before the court below within 45 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon'ble Supreme Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P. It is further provided that in case before framing of charges, the applicant makes an application seeking discharge under Section 239 Cr.P.C., the Magistrate shall decide the said application before proceeding ahead with the trial in accordance with law on various issues indicated above and others that the applicant may seek to canvas uninfluenced by anything said in this order.

This application stands disposed of in terms of above orders.

Order Date :- 20.7.2018

Anoop