Smt Manjula vs The State Of Karnataka
2022 Latest Caselaw 1021 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 24 T H DAY OF JANUARY, 2022

                        BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

CRIMINAL REVISION PETITION NO.1313 OF 2021

BETWEEN:

Smt. Manjula
Aged about 48 years
W/o Shivaraju
R/at Kud lapura Villag e
Nanjanag ud Taluk
Mysuru District - 571301.
                                            ...Petitioner
(By Sri P.Nataraj u, Advocate)

AND:

  1. The State of Karnataka
     By Nanjanag ud Police Station
     Mysuru District
     Represented by State Public Prosecutor
     Hig h Court Build ing
     Beng aluru - 560 001.

  2. The Dep uty Superintendent of Police
     Directorate of Civil Rights Enforcement
     Mysore-570 001

  3. Mahad evaiah, Major
     R/at Kud lap ura Villag e
     Nanjanag ud Taluk
     Mysuru District - 571 301.
                                        ...Respondents
(By Sri K.S.Abhijith, HCGP for R1;
    Sri C.Jag adish, Advocate for R2;
    Smt. G.S.Kavyashree, Advocate for R3)
                                :: 2 ::


      This Criminal Revision Petition is filed under
Section 397 r/w 401 Cr.P.C. praying to set aside the
order passed by the Learned VI Additional Sessions
and Special Judge at Mysuru in Spl.Case No.427/2017
on the application filed und er Section 227 Cr.P.C.
dated 17.04.2021 and allow the application on its file
is p rayed for and discharg e the petitioner for the
offence punishable under Sections 177, 198, 199, 420
and Section 3(i)(ix) of the SC/ST (POA) Act by
allowing this revision p etition.

     This Criminal Revision Petition coming on for
admission through video conferencing this d ay, the
Court mad e the following:

                           ORDER

In this revision petition under section 397

Cr.P.C., the petitioner has challenged the order

passed by VI Addl. District and Special Judge at

Mysuru on an application made under section 227

Cr.P.C. filed in Spl.C.No.427/2017. The brief facts

culminating into this revision petition are as

follows:

2. The petitioner is facing trial in the court

below in relation to offences punishable under

sections 177, 198, 199, 420 of IPC and section

3(i)(ix) of the Scheduled Castes and Scheduled :: 3 ::

Tribes (Prevention of Atrocities) Act (as it stood

before amendment and now 3(1)(q) after

amendment) ['Act' for short]. The case of the

prosecution is that the petitioner, who belongs to

Parivara caste, obtained a false caste certificate

and contested in the election held to Kudlapura

Grama Panchayat, Nanjanagud Hobli, Mysore

District, from the constituency reserved for

scheduled tribes and got elected also. She

became the President of the Grama Panchayat.

The third respondent viz., Mahadevaiah lodged a

complaint with ADGP, Directorate of Civil Rights

Enforcement Cell stating that the petitioner's caste

would not come under the category of scheduled

tribe and that she produced false caste certificate

for contesting in the election from the reserved

constituency. Pursuant to the inquiry held in this

regard, it was found that Parivara caste did not

come under scheduled tribe category and the

District Caste Verification Committee directed the :: 4 ::

Tahasildar, Nanjanagud Taluk to cancel the caste

certificate and it was cancelled also. Thereafter

the ADGP of the Directorate of Civil Rights

Enforcement Cell granted permission to register a

criminal case against the petitioner and thus

charge sheet came to be filed against her.

3. The petitioner filed an application under

section 227 Cr.P.C. seeking her discharge from the

offences for which she was charge sheeted. Since

the said application was rejected by the court

below, she has approached this court by filing the

revision petition.

4. I have heard Sri. P.Nataraju, learned

counsel for the petitioner, learned Government

Pleader for respondent no.1, Sri.C. Jagadish for

respondent no.2 and Smt. Kavyashree G.S. for

respondent no.3.

:: 5 ::

5. It was the argument of Sri. P.Nataraju that

the petitioner had been falsely implicated of the

offences mentioned in the charge sheet. The

petitioner's caste, Parivara is one of the castes

included in the category of scheduled tribe. It is a

synonym for Nayaka caste. For the first time,

caste certificate was issued to the petitioner in the

year 1995 when she was admitted to school. She

belongs to scheduled tribe as per the school

records and that she never intended to give false

particulars to obtain a caste certificate at the time

when she contested in the election. The

Tahasildar issued the caste certificate after due

verification. At the time of canceling the caste

certificate, the petitioner was not given due

opportunity of being heard. On the basis of

Government notification dated 11.3.2002, this

court quashed criminal proceedings against some

persons who had obtained appointments by

producing false caste certificates. Even assuming :: 6 ::

that the Tahasildar cancelled the caste certificate

issued to the petitioner coming to conclusion that

the petitioner had provided false information, no

prosecution can be undertaken against the

petitioner by virtue of the Government notification

dated 11.3.2002. Now after amendment to the

Constitution, the State Government issued another

circular extending the benefit of scheduled tribes

to parivara community. He further argued that

even if it is assumed for argument sake that the

petitioner obtained false caste certificate, it will

not constitute an offence under section 3(i)(ix) of

the Act. The scope of this section is quite

different and that no member of scheduled caste

or scheduled tribe has been annoyed or injured on

account of false caste certificate issued to the

petitioner. This being the factual position, the

court below ought to have discharged the

petitioner. He submitted further that atleast the

petitioner has made out a case that she cannot be :: 7 ::

charged for the offence under section 3(i)(ix) of

the Act. In this view the impugned order is liable

to be quashed.

6. The learned Government Pleader

submitted that in view of the materials collected

by the investigating officer, the petitioner has to

be prosecuted. All the evidence collected by the

investigating officer do indicate the offence

mentioned in the charge sheet being committed.

The trial court has come to right conclusion.

7. Sri. C.Jagadish appearing for respondent

no.2 argued that the trial court has come to right

conclusion to dismiss the application filed under

section 227 Cr.P.C. The petitioner's caste does

not come under the scheduled tribe category.

Obtaining of a false caste certificate in order to

claim reservation to contest in the election from

the reserved category deprived a member of

scheduled caste and scheduled tribe an :: 8 ::

opportunity of contesting in the election. The

false information that the petitioner gave for

obtaining caste certificate squarely falls within the

purview of offence punishable under Section

3(i)(ix) of the Act. It is nothing but violation of

Articles 46, 341 and 342 of the Constitution of

India. In this view the petitioner is liable for

prosecution. He submitted that already the Co-

ordinate Benches of this court have dismissed the

identical petitions and therefore this petition also

deserves to be dismissed. Sri. C. Jagadish has

referred to the judgments of this court in the

cases of Madhukar Vs. State by Hosanagara

Police (CRl.P.2346/2014), Jayanthi Vs. State

of Karnataka (Crl.P.778/2021) and Ramesh

Vs. State of Karnataka (Crl.P.312/2014).

8. The counsel for respondent no.3 also

argued that as a result of false caste certificate

produced by the petitioner, a member of scheduled :: 9 ::

tribe was deprived of an opportunity from

contesting in the election. This was a kind of

atrocity and in this view the petitioner has to be

tried. The trial court has rightly held that the

petitioner cannot be discharged of the offences as

there is a case for trial. In support of her

argument, she placed reliance on a judgment of

the Co-ordinate bench of this court in

S.L.Sathyanarayana Vs. State of Karnataka

and Another (WP.No.8931/2016).

9. The arguments of the learned counsel give

rise to a question whether a person can be

prosecuted for the offence under section 3(i)(ix) of

the Act, if he obtains a false caste certificate for

claiming reservation to secure an employment or a

seat in an educational institution or contesting in

an election. In fact this question arose for

consideration in an identical matter in Crl.

Revision Petition No.989/2012 filed under section :: 10 ::

482 Cr.P.C. and I have already taken a view that

it would not amount to an offence. Since Sri.

C.Jagadish, tried to base his argument by referring

to some decisions rendered by Co-ordinate

Benches and Article 46 of the Constitution of

India, the question needs to be dealt with

elaborately.

10. The source for enacting the Act is Article

17 of the Constitution of India. The purpose of the

special law is to prevent the members of scheduled

caste or scheduled tribe from being subjected to

atrocity. The word 'atrocity' is defined in section

2(1) (a) as an offence punishable under section 3

of the Act. This section enumerates various types

of offences, and commission of any one of them

amounts to an offence of atrocity. If it is to be

stated that a member of scheduled caste or

scheduled tribe is subjected to atrocity, it must

have been committed in utter dislike, and hatred :: 11 ::

towards that community; the person committing it

must have clear intention to insult or humiliate or

subjugate a member of a scheduled caste or

scheduled tribe as he or she belongs to that caste

or tribe. In other words, if an act should amount

to an offence under any of the clauses of section 3

of the Act, it should have taken place in the

backdrop of animosity towards the members of

scheduled caste or scheduled tribe. Pertinently a

judgment of Supreme Court in the case of Hitesh

Verma Vs. State of Uttarakhand and another

[2020 (10) SCC 710] may be referred here. It is

held:

8. Against the backd rop of these facts, it is p ertinent to refer to the Statement of Objects and Reasons of enactment of the Act. It is provided as und er:

            "Statement               of         Objects        and
     Reasons.-            Desp ite    various        measures
     to       improv e          the          socio-economic
     conditions           of   the        Scheduled       Castes
     and       the         Scheduled            Tribes,        they
                              :: 12 ::

remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of their life and property. Serious crimes are committed against them for various historical, social and economic reasons.

      2.    Because           of     the     awareness
created         amongst             the      Scheduled
Castes     and        the         Scheduled         Tribes
through       spread         of    education,        etc.,

they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self- respect or :: 13 ::

honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has been an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes.

Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Penal Code, 1860 have been found to be inadequate to check these crimes. A special Legislation to check and deter crimes against them committed by non-Scheduled Castes :: 14 ::

      and          non-Scheduled               Tribes        has,
      therefore, become necessary."


             9. XXXX

             10.     The        Act     was         enacted    to
      improve             the          social         economic

conditions of the vulnerable sections of the society as they have been subjected to various offences such as indignities, humiliations and harassment. They have been deprived of life and property as well. The object of the Act is thus to punish the violators who inflict indignities, humiliations and harassment and commit the offence as defined under Section 3 of the Act. The Act is thus intended to punish the acts of the upper caste against the vulnerable section of the society for the reason that they belong to a particular community."

11. The context of the case on hand is that

she obtained a false certificate to claim

reservation in order to contest in Grama Panchayat :: 15 ::

election. The charge sheet states that the

Tahasildar of Nanjanagud Taluk cancelled the caste

certificate on 8.6.2016. Argument of Sri.

P.Nataraju, for the petitioner is that when caste

certificate was issued to her, 'Parivara caste' to

which she belongs was notified as scheduled tribe

and later on, by virtue of a Government Order, her

caste was de-notified from the list of scheduled

tribe category and therefore when she contested in

the election, she was a scheduled tribe. If what

Sri. P. Nataraju submitted is true, the petitioner

has not committed any offence. Even otherwise, if

charge sheet allegations are taken to be true on

their face value, it is impossible to bring the

prosecution case within the ambit of section

3(i)(ix) of the Act. Analysis of this section is

necessary. The essential ingredients to be present

are, firstly that a person other than a scheduled

caste or scheduled tribe must give some false

information to a public servant. Secondly, the :: 16 ::

public servant, based on false information must

initiate action against a member of scheduled

caste or scheduled tribe. And finally, on account

of action so taken by the public servant, a member

of scheduled caste or scheduled tribe must be put

to annoyance or suffer an injury of any kind.

Injury means as defined in section 44 of IPC. That

means, even giving of false information to a public

servant to prompt him to take action against a

member of scheduled caste or scheduled tribe

must be outcome of vengeance based on caste

factor. Now if a person other than a scheduled

caste or scheduled tribe obtains a false certificate

to claim reservation, it is only with a view to

benefiting himself, not with an intention to annoy

or injure a scheduled caste or scheduled member.

No doubt, a person obtaining a false caste

certificate seizes the benefit extended to

unprivileged community and in that event, a

member of scheduled caste or scheduled tribe may :: 17 ::

feel annoyed, but such an act cannot be brought

within the purview of Section 3(i)(ix) of the Act or

3(1)(q) as it stands today after amendment of the

Act. Because, the public servant does not proceed

to take action against a member of scheduled

caste or scheduled tribe on the basis of false

information given to obtain a caste certificate by

non scheduled caste or scheduled tribe. Giving

false information to secure a caste certificate is no

doubt an offence, and it is punishable under IPC.

The argument of Sri Jagadish that the case on

hand violates Article 46 of the Constitution of

India is difficult to be accepted, as the said Article

directs the state to promote the educational

interest of the weaker sections of the people and

in particular, the interest of scheduled castes and

scheduled tribes. That means, not only the

scheduled castes or scheduled tribes, but also

interest of weaker sections of people must be

protected. More emphasis may be there towards :: 18 ::

people of scheduled castes and scheduled tribes,

but this Article cannot be applied for interpreting

Section 3(i)(ix) of the Act, which is a penal

provision. Its meaning must be gathered from its

language itself. Penal provisions must be strictly

construed; no extraneous meanings can be

supplied. The language of Section 3(i)(ix) of the

Act is very plain, simple and unambiguous. The

offence under this section is committed only in the

circumstances as discussed above. If the

petitioner is prosecuted for the offence under

Section 3(i)(ix) of the Act under the factual

circumstances projected in the charge sheet, such

a prosecution offends Article 20(1) of the

Constitution of India. Article 20(1) reads

"20.Protection in respect of conviction for offences:-(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty :: 19 ::

greater than that which might have been inflicted under the law in force at the time of the commission of the offence."

12. There are two parts in Article 20(1).

According to first part, which is relevant here, to

convict any person for an offence, it must be an

offence for violation of law in force at the time of

commission of Act charged as an offence. If the

expression 'charged as an offence' is considered,

and applied to the factual aspect here, obtaining

of a false caste certificate can be punished under

the relevant provisions of IPC, but not for an

offence as envisaged under Section 3(i)(ix) of the

Act, in as much as no charge can be framed for it.

13. Now if the impugned order is perused

what appears is that the trial court judge has just

discussed the principles as to under what

circumstances an accused can be discharged of an

offence, but there is no discussion whether the

factual circumstance brought forth in the charge :: 20 ::

sheet are sufficient enough to frame charge under

Section 3(i)(ix) of the Act.

14. The respondents have relied upon some

decisions of the Co-ordinate Benches of this court.

But in none of these decisions, the question as has

arisen here, arose for discussion. In the case of

S.L.Satyanarayana Rao Vs. The State of

Karnataka (W.P.8931/2016) of course, action

was initiated against the petitioner therein for the

offences under Sections 198 and 420 IPC besides

Section 3(i)(ix) of the Act in connection with

production of false caste certificate for securing an

employment. The question that emerged for

consideration was whether action could still be

taken even after the State Government issued an

order on 11.03.2002. While answering this aspect,

the Co-ordinate Bench referred to Rule 7A of the

Karnataka Scheduled Castes, Scheduled Tribes and

other Backward Classes (Reservation for :: 21 ::

Appointment etc.) Rules, 1992 and opined that

Directorate of Civil Enforcement could initiate

prosecution against a person who obtains a false

caste certificate.

15. The case of Madhukar Vs. State by

Hosanagara Police (Criminal Petition

2346/2014) was decided on 26th April 2019 by

another Co-ordinate Bench. The facts involved in

the case are more or less similar to facts in

S.L.Satyanarayana and the discussion therein is

regard to implication of Government notification

dated 11.03.2002. Another decision cited by

respondent No. 2 is Jayanthi Vs. State of

Karnataka (Criminal Petition 778/2021). It

was application for anticipatory bail and for

rejecting the application, reference was made to

Rule 7A of the Karnataka Scheduled Castes,

Scheduled Tribes and Other Backward (Reservation :: 22 ::

of Appointment, etc) Rules, 1992. Therefore none

of these decisions helps respondent No.2.

16. To conclude, it may be stated that there

are no materials to charge the accused for the

offence under Section 3(i)(ix) of the Act, but she

may be charged for appropriate offences under IPC

as mentioned in the charge sheet. Therefore the

revision petition partially succeeds and in the

result the following :

ORDER

The impugned order is modified. The

application filed by the petitioner under Section

227 Cr.P.C. is party allowed, the petitioner is

discharged of the offence under Section 3(i)(ix) of

the Act. The remaining part of impugned order is

not altered.

Sd/-

JUDGE sd