Abdul Wahid vs The State Of Maharashtra
2012 Latest Caselaw 428 Bom

                                                           Cri. W.P. No. 47/11
                                      1


                   IN THE HIGH COURT AT BOMBAY




                                                                         
               APPELLATE SIDE, BENCH AT AURANGABAD

               CRIMINAL WRIT PETITION NO. 47 OF 2011




                                                 
           Abdul Wahid s/o. Abdul Majid,
           Age 40 years, Occu. Social Service,
           R/o. Kannad, Tal. Kannad,




                                                
           Dist. Aurangabad.                              ....Petitioner.

                  Versus




                                     
     1.    The State of Maharashtra,
           through In-charge Police Station
           Kannad, Dist. Aurangabad.
                      
     2.    Caste Certificate Scrutiny and
           Verification Committee, Aurangabad
                     
           Through its Secretary                          ....Respondents.


     Mr. N.B. Suryawanshi, Advocate for petitioner.
     Mr. N.B. Patil, APP for State.
      
   



                        CORAM             : T. V. NALAWADE, J.
                        RESERVED ON       : 21st November, 2012.
                        PRONOUNCED ON : 3rd December, 2012.





     ORDER :

1. The petition is filed under Article 226 of Constitution

of India and under section 482 of Criminal Procedure Code for the

relief of quashing of criminal proceeding bearing R.C.C. No.

192/2004, which is pending in the Court of Judicial Magistrate,

First Class, Kannad, District Aurangabad. Both sides are heard.

Copy of the charge-sheet and copies of papers of investigation are

produced and this Court has perused the record.

Cri. W.P. No. 47/11

2. The charge-sheet, papers of investigation and the

contentions made in the petition show that case is filed against

the petitioner for offences committed of creating false record and

of cheating for obtaining certificate from authority that the

petitioner belongs to Momin caste, O.B.C. The Executive

Magistrate, the authority, issued certificate in 1991. By using this

certificate, the petitioner contested the election of Local Body and

got elected from O.B.C. category. The caste certificate was

referred to Caste Scrutiny Committed. The Committee invalidated

the claim of petitioner and the certificate came to be confiscated.

The decision of the Caste Scrutiny Committed was challenged by

the petitioner by filing Writ Petition No. 4542/1999 in this Court.

By the decision dated 4.9.2003, this Court dismissed the petition

and gave further direction to Caste Scrutiny Committed to take

steps like initiation of prosecution against the petitioner in respect

of the false certificate obtained by him. The Caste Scrutiny

Committee gave directions to the Deputy Superintendent of Police

(Vigilance Cell) to initiate the proceeding. The Deputy

Superintendent of Police gave report to police station for offences

punishable under sections 420, 468 and 471 of Indian Penal Code

and also for the offence punishable under section 11 of

Maharashtra Act No. XXIII of 2001 (hereinafter referred to as 'the

Act' for short).

Cri. W.P. No. 47/11

3. Police filed a charge-sheet for offences punishable

under section 420, 468 and 471 of Indian Penal Code, but the

charge-sheet is not filed for any offence under the Act. The

charge-sheet came to be filed on 9.12.2010.

4. It is the case of the petitioner that in view of the

provision of section 11 (2) of the Act, a complaint ought to have

been filed and as 'complaint' as defined in Cr.P.C. is not filed, the

J.M.F.C. has committed error in taking cognizance of the offence

on the aforesaid charge-sheet. It is also case of the petitioner that

the certificate, was not forged and so no such prosecution can be

allowed against him.

5. This Court has gone through the relevant provisions of

the Act. The provision of section 11 of the Act is as under :-

"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, De- notified Tribes, (Vimukta Jatis), Nomadic Tribes,

Cri. W.P. No. 47/11

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 Co-

operative 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 extent 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 cognizance 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."

The aforesaid provisions show that the condition of 'complaint' is

there in respect of offence of 'obtaining' the caste certificate and

Cri. W.P. No. 47/11

also in respect of the offence of 'securing' any benefits by using

such caste certificate.

6. The F.I.R. and the papers of investigation show that

there is the allegation against the petitioner/accused that he

created false record like transfer certificate of one E.E.S. School.

The record collected is to the effect that such school is not in

existence and it was never in existence. There is allegation that

when grandfather of the petitioner died in the year 1957, he

created the record of the death in the year 1991 like making entry

in respect of death of grandfather in 1991 in the relevant register

to show that his grandfather was belonging to "Momin" O.B.C.

Caste. There is allegation that petitioner produced record like birth

extract, which is also false, as record of Aurangabad Corporation

shows that they had not issued such extract. False contention was

made that the father of the petitioner was having hand loom at

Mehetabnagar in Kannad and he was in the business of weaving.

There is allegation that by creating aforesaid false record and by

making false contentions, first, the certificate was obtained and

then, the certificate was used for contesting the election. The

aforesaid record and allegations are sufficient to make out the

case for framing charge for offences punishable under sections

420, 468 and 471 of I.P.C.

Cri. W.P. No. 47/11

7. The aforesaid offences of I.P.C. are cognizable. Any

person can give F.I.R. in respect of such offences. When such F.I.R.

is received, the concern police are expected to make investigation

of such offence. The J.M.F.C. can take cognizance of such offence,

when the charge-sheet is filed, report is given to J.M.F.C. There is

nothing in the Act to prevent giving of such F.I.R. and there is

nothing in the Act to show that there cannot be any prosecution

for aforesaid offences under I.P.C. Thus, the concern police station

has not made any error in filing the charge-sheet and the J.M.F.C.

has not committed any error in taking the cognizance of the

offence.

8. Submission was made for the petitioner that in view of

section 11 (2) of the Act, the cognizance of such offence can be

taken only after filing of the complaint by the authority. In view of

the aforesaid discussion, such submission is not tenable. When

the case is not filed for offence punishable under section 11 (2) of

the Act, such contention cannot be accepted. Further, the

contention that the act of the petitioner may amount only the

offence punishable under section 11 of the Act is not acceptable

in view of the aforesaid discussion.

9. It was submitted for the petitioner that the certificate

was obtained in the year 1991 and it was allegedly used in the

Cri. W.P. No. 47/11

year 1999 and at that time, the provisions of the Act were not in

force. It was submitted that in view of these circumstances, the

prosecution is not tenable. It is already observed that the

prosecution is not for the offence punishable under section 11 of

the Act and so this contention is not acceptable.

10. For petitioner, reliance was placed on some reported

cases. The case reported as 2010 (1) Bom.C.R. (Cri.) 673

[Rajkumar Shivlingrao Gaulkar Vs. State of Maharashtra

and Ors.] is in respect of section 11 of the Act. Present case is

not filed under section 11 of the Act and so this case is of no help

to the petitioner. The two cases reported as 2009 ALL MR (Cri)

1347 BOMBAY HIGH COURT [Vijay Bhagwan Shetty Vs.

State of Maharashtra and Anr.] and 2007 CRI.L.J. 429

PUNJAB AND HARYANA HIGH COURT [M/s. Mahalakshmi

Spinners Ltd. and Ors. Vs. State of Haryana and Anr.] are in

respect of the offence of theft of electricity. The High Courts have

observed that when there is special legislation, which covers the

theft of electricity, cognizance of offence under section 379 of

I.P.C. cannot be taken and the procedure laid down in the Special

Act needs to be followed. There cannot be any dispute over this

proposition. It is already observed that section 11 has created

altogether different offence and it has not replaced the aforesaid

offences under I.P.C. So, these observations are of no use to the

Cri. W.P. No. 47/11

petitioner. In the case reported as AIR 1991 SC 2173 [Soni

Devrajbhai Babubhai Vs. State of Gujrat and Ors.], the Apex

Court has discussed the prospective effect of criminal law and the

provision of section 304-B of I.P.C. is considered. There cannot be

any dispute over the proposition made by the Apex Court in the

above case. For the reasons already given, this case also cannot

help the petitioner. One case reported as AIR 2004 SC 2179 (1)

[State of Orissa and others Vs. Ganesh Chandra Jew] was

cited. This case is in respect of sanction in respect of few

offences, which is required to be obtained under section 197 of

Cr.P.C. Though this case was cited on the aforesaid point itself,

there is sufficient discussion made about the provisions of said

the Act and the provisions of I.P.C. and so these observations are

also of no help to the petitioner.

11. In the result, the petition stands dismissed.

[ T. V. NALAWADE, J. ]

ssc/