Gauhati High Court
Gaurav Upadhyay vs The State Of Assam And 7 Ors on 2 September, 2025
Page No.# 1/9
GAHC010240502024
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WA/5/2025
GAURAV UPADHYAY
S/O LATE SHYAM SUNDAR UPADHYAY, RESIDENT OF GOVT. QUARTER
NO. BII, AT ASSAM POLICE HOUSING COMPLEX, ULUBARI, DIST
KAMRUPM ASSAM 781007.
VERSUS
THE STATE OF ASSAM AND 7 ORS
REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM,
DISPUR ASSAM 781006.
2:DIVYANA A LAHAN
REP. BY HER MOTHER/NEXT FRIEND/LEGAL GUARDIAN SMT. LEENA
DOLEY
PERMANENT R/O- H.NO. 54
BELTOLA COLLEGE ROAD
BANGAON
BELTOLA
GHY-28
KAMRUP (M)
ASSAM
3:LEENA DOLEY
R/O- H.NO. 54
BELTOLA COLLEGE ROAD
BANGAON
BELTOLA
GHY-28
KAMRUP (M)
ASSAM
Page No.# 2/9
4:THE SECRETARY
DEPARTMENT OF TRIBAL AFFAIRS (PLAIN)
GOVERNMENT OF ASSAM
DISPUR
GUWAHATI-781006
ASSAM.
5:STATE LEVEL CASTE SCRUTINY COMMITTEE
ASSAM
REP. BY ITS CHAIRMAN
OFFICE OF THE SECRETARY
DEPARTMENT OF TRIBAL AFFAIRS (PLAIN)
GOVERNMENT OF ASSAM
DISPUR
GUWAHATI-781006
ASSAM.
6:THE DEPUTY COMMISSIONER
KAMRUP M GUWAHATI ASSAM 781001
7:VIGILANCE CELL
DIRECTORATE OF WPT AND BC DEPTT.
GOVT. OF ASSAM
RUKMINI GAON
GHY
PIN- 781006
REP. BY THE SUPERINTENDENT OF POLICE
CID
ASSAM
8:SUPERINTENDENT OF POLICE
CID
ASSAM
ULUBARI
GHY-0
Advocate for the Petitioner : MR. K P PATHAK, MR. K N CHOUDHURY,MR BHARGAV DAS
Advocate for the Respondent : GA, ASSAM, MR H K NATH,MR J BORAH,G. GOSWAMI,FOR
CAVEATOR,SC, WPT AND BC
Page No.# 3/9
Linked Case : WA/388/2022
GAURAV UPADHYAY
S/O LATE SHYAM SUNDAR UPADHYAY
R/O SILPUKHURI
GUWAHATI
ASSAM
PIN- 781003.
VERSUS
THE STATE OF ASSAM AND 6 ORS. B
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
DISPUR- 781006
ASSAM.
2:THE SECRETARY TO THE GOVERNMENT OF ASSAM
WPT AND BC DEPTT.
DISPUR
GUWAHATI- 6.
3:THE DEPUTY COMMISSIONER
KAMRUP (M)
GUWAHATI- 1.
4:THE CRIMINAL INVESTIGATION DEPARTMENT
ASSAM POLICE
ULUBARI
GUWAHATI- 781005.
5:THE PRESIDENT
ALL ASSAM TRIBAL SANGHA
TRIBAL REST HOUSE
SOLAPAR
PALTANBAZAR
GUWAHATI- 781008.
6:LEENA DOLEY
W/O LATE NILOTPAL LAHAN
R/O E/VI
ZONE II
POLICE QUARTERS
DR. B.K. KAKATI ROAD
ULUBARI
GUWAHATI- 781007.
Page No.# 4/9
7:THE STATE LEVEL CASTE SCRUTINY COMMITTEE ASSAM
REP. BY ITS CHAIRMAN
OFFICE OF THE COMMISSIONER AND SECRETARY GOVT. OF ASSAM WPT
AND BC DEPTT
DISPUR GUWAHATI- 6.
------------
For petitioner/appellant(s) : Mr. K. N. Choudhury, Sr. Advocate
Mr. K.P. Pathak, Advocate
For respondent(s) : Mr. Pragyan Praqdip Sharma, Sr. Advocate
Mr. Hardik Jain, Advocate
Mr. Joyraj Borah, Advocate
Ms. Sumitra Sarma, GA, Assam
Mr. R. Dhar, SC, Tribal Affairs
- BEFORE -
HON'BLE THE CHIEF JUSTICE MR. ASHUTOSH KUMAR
HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
02.09.2025
(Ashutosh Kumar, CJ)
We have heard Mr. K. N. Choudhury, learned Senior Counsel for the
appellant and Mr. Pragyan Pradip Sharma, learned Senior Counsel for the private
respondent.
An FIR was registered by the mother of the victim against the appellant
vide FIR No.5/2020 for the offences under Section 354 of the IPC, read with
Section 10 of the POCSO Act, 2012.
The whole controversy with respect of issuance of the Caste Certificate to
the child, who was allegedly subjected to misdemeanour, began from here.
The claims of the parties are that the victim child was born out of a father,
who hailed from OBC category and a mother, who belongs to Miri Tribe . The
father of the victim died when she was 6 years of age and she was brought up
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by her mother, who too was in public service and associated with the appellant
and his family. The death of the father of the victim took place on 04.10.2012
and the FIR, referred to above, was lodged with respect to an occurrence which
took place on 31.12.2019.
On the representation made by the mother of the victim in the subject
FIR, various penal provisions under Section 3(1) (xi) and 3(1) (w)(i) and w(ii) of
the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989
(hereinafter referred as "Act of 1989") were also added.
This was contested by the appellant, but to no avail.
While all these were happening, the All Guwahati Missing Kebang issued a
Caste Certificate affirming that the mother had independently raised the victim,
which certificate was also endorsed by a senior Member of the Missing
community.
Later, on 21.08.2020, a Caste Certificate was issued in favour of the victim
by the Deputy Commissioner, Kamrup (Metro) on the recommendation of the
Assam Tribal Sangha. This was questioned by the appellant, whereupon the
Deputy Commissioner, Kamrup (Metro) vide his order dated 22.09.2020
cancelled the Caste Certificate earlier issued to the victim. This cancellation of
the Caste Certificate was challenged by the victim, but before any order could
be passed with respect to such challenge, the Deputy Commissioner, who had
cancelled the earlier Caste Certificate, withdrew the order of cancellation and
referred the matter to the State Level Caste Scrutiny Committee for proper
examination and determination.
In the meantime, the appellant, in an effort to seek protection from
Courts, got an order dated 21.10.2020 in WP(C) No. 4523/2020 to the effect
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that in the criminal case lodged against him, the provisions of the Act of 1989
shall not be made applicable till the matter of the issuance of the Caste
Certificate in favour of the victim was finally decided.
This order was challenged by the mother of the victim in WA No.
190/2020, which was disposed off vide order dated 21.01.2021 with the
direction that the Scrutiny Committee shall verify the validity of the certificate in
question within 15 days, but the investigation against the appellant shall
proceed unaffected by the order dated 21.10.2020.
In the meantime, on 31.03.2021, charge-sheet was submitted against the
appellant under Section 354/354A IPC, read with Section 10 of the POCSO Act,
2012. Curiously, the appellant was not charge-sheeted under any one of the
provisions of the Act of 1989.
Pursuant to such directions, referred to above, the State Level Scrutiny
Committee issued a speaking order that the victim was not a Member of the
ST(P) community and, resultantly, also cancelled the Caste Certificate issued in
her favour. This order was never communicated to the victim or her mother.
On the basis of the afore-noted order of the State Level Scrutiny Committee,
the appellant, emboldened by the observations made by the Supreme Court in
Kumar Madhuri Patil & Another vs. Additional Commissioner, Tribal Development
& Others, (1994) 6 SCC 241, viz., in case the certificate obtained or the social
status claimed by a person is found to be false, the parent/guardian or the
candidate ought to be prosecuted for making a false claim and that if the
prosecution ends in a conviction of sentence of the accused, it could be
regarded as an offence involving moral turpitude, disqualification for elective
posts or offices under the State or the Union or elections to any local body,
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legislature or Parliament, preferred a writ petition seeking initiation of both
criminal and departmental proceeding against the mother of the victim for using
false Caste Certificate to prosecute him. This writ petition [WP(C) 1867/2022]
was, however, dismissed and the dismissal order referred to above was
challenged vide WA No. 388/2022.
The victim also challenged the order dated 24.09.2021 passed by the
State Level Caste Scrutiny Committee, vide WP(C) No. 8024/2022.
The learned Single Judge set aside the order passed by the State Level
Scrutiny Committee, whereby the Caste Certificate issued in favour of the victim
was held to be bad. However, the learned Single Judge observed very
categorically that the victim, after the death of her father, was under the care
and custody of her mother and since the mother hails from a tribal family , the
victim did not get any advantageous start in her life despite her father being a
non-tribal and that the victim and her brother were raised under such
circumstances wherein they suffered deprivations, indignities, humiliations and
handicaps. This, according to the learned Single Judge, was acknowledged by
the Members of the tribal community.
However, whether the perception of the people outside the community
was the same, was not very clear from the records of the case and, precisely for
that reason, the learned Single Judge considered it appropriate to remand the
matter to the State Level Caste Scrutiny Committee to decide only that aspect of
the matter, namely, whether the people outside the community of the victim's
family also identified the victim and her family to be belonging to the tribal
community.
The learned counsel for the appellant, while questioning the afore-noted
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judgment of the learned Single Judge, has raised several issues, including such
conditional remand of the matter to the statutory authority, contending that
such conditional remand only amounts to dictating the terms for passing a fresh
order in a particular way. Thus, according to him, the State Level Caste Scrutiny
Committee will be left with no option but to pass an order against the appellant
and in favour of the victim.
The other ground of challenge is especially to the holding of the opinion of
the Scrutiny Committee to be bad in law; that the Scrutiny Committee had
considered the entire aspects of the matter and had come to the conclusion that
the victim could not have been granted a tribal status and this ought not to
have been lightly disturbed by the learned Single Judge who did not have the
necessary wherewithhals to decide such factual issues and therefore had a
limited jurisdiction to test whether the order passed by the Scrutiny Committee
was within the parameters of law.
The last of the submissions advanced on behalf of the appellant is with
respect to the justification of the locus to challenge the issuance or non-
issuance of a Caste Certificate to the victim who has alleged misdemeanour
against the appellant. It has been submitted that since the appellant would be
directly affected by the decision either way, he has the locus to challenge the
decision regarding grant or refusal of Caste Certificate to the person concerned.
Mr. Sharma, learned counsel for the private respondent has, however,
submitted that the appellant would have no locus in the matter and that the
investigation or prosecution in a criminal case, even though, in this case, would
be linked in some way or the other to the status of the victim, would not be
wholly dependent on any discussion on the validity of the Caste Certificate or its
cancellation by the authorities.
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Apart from this, it has been argued that the victim is continuously
haunded by the appellant.
The apprehensions of the appellant are absolutely uncalled for him to
acquire any locus as even the charge-sheet has not yet been submitted under
any of the provisions of the 1989 Act.
After having heard the learned counsel for the parties, we deem it
appropriate to direct the learned counsel for the parties to provide a
convenience volume along with case laws, especially with respect to the locus of
the appellant to challenge the grant of ST(P) certificate to the victim when he
himself does not fall in any of the reserved categories.
Let the matter come up for consideration on 16.10.2025.
JUDGE CHIEF JUSTICE
Comparing Assistant
