Karnataka High Court

B.K. Siddaramappa vs State Of Karnataka on 15 September, 2022

Bench: J.M.Khazi

                            1         CRL.P.No.100808 /2016




IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH


     DATED THIS THE 15TH DAY OF SEPTEMBER, 2022

                        BEFORE


          THE HON'BLE MS.JUSTICE J.M.KHAZI

        CRIMINAL PETITION No.100808 OF 2016

BETWEEN:

B.K. SIDDARAMAPPA
S/O NAGAPPA B.K.,
AGED ABOUT 61 YEARS,
R/A NO.3, 1ST FLOOR,
8TH CROSS, GARDEN VILLAS,
NAGARBHAVI IST STAGE,
BENGALURU-560070.

AND ALSO AT NO.1593, 6TH MAIN,
6TH "C" CROSS, R.P.C. LAYOUT,
VIJAYA NAGAR, BENGALURU-560040.

                                             ... PETITIONER

(BY SRI. SADIQ N GOODWALA, ADVOCATE)

AND:

1.     STATE OF KARNATAKA
       BY BRUCEPET P.S BALLARI,
       REPRESENTED BY,
       THE STATE PUBLIC PROSECUTOR,
       HIGH COURT OF KARNATAKA,
       DHARWAD.

2.     THE SUPERINTENDENT OF POLICE
       CIVIL RIGHTS ENFORCEMENT CELL,
       II MAIN, 2ND CROSS,
                                2           CRL.P.No.100808 /2016




     SARASWATHI NAGAR, "B" BLOCK,
     DAVANGERE-577001.

                                     ...RESPONDENTS
(BY SMT.GIRIJA S HIREMATH, HCGP FOR R1;
SRI. C. JAGADISH FOR R2)

     THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF
CR.P.C., PRAYING TO QUASH THE PROCEEDINGS AGAINST THE
PETITIONER IN CR.NO.06/2016 ON 25.01.2016 FOR OFFENCES
U/SECS. 196, 198, 420 IPC AND SEC. 3(1)(9) OF THE SC AND
THE ST (PREVENTION OF ATROCITIES ACT) OF BRUCPET P.S.
BALLARY.


     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED ON 01.09.2022, COMING ON FOR PRONOUNCEMENT
OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

                      ORDER

Petitioner, who is arraigned as accused has filed

this petition under section 482 of Cr.P.C. to quash the

criminal proceedings in Crime No.6/2016 dated

25.01.2016 for the offences punishable under section

196, 198, 420 of IPC and Section 3(1) (9) of the

Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities Act) registered by the Brucepet P.S. of Ballari.

2. It is the case of the petitioner that based on

the complaint filed by one G. Somashekhar, Police

Inspector, Civil Rights Enforcement Directorate, a case

in Crime No.6/2016 is registered against him alleging

that though he belonged to Kuruba Community, he

obtained a caste certificate as though he belongs to

Kadu Kuruba (ST) and secured appointment in Bank of

Baroda, which was reserved for a person belonging to

Kadu Kuruba community. The said certificate is

cancelled by the Tahsildar on 04.03.2010. Being

aggrieved by initiation of criminal proceedings,

petitioner is seeking quashing of the said proceedings.

3. Respondent No.1 has appeared through

learned HCGP. On the other hand, respondent No.2

appeared through Sri. C. Jagadish, learned counsel.

4. During the course of arguments, learned

counsel for the petitioner submits that as per the orders

of the Chairman of District Caste Verification Committee,

dated 30.10.2000 at Annexure-B, as per the

government order No.SWL.63 SAD 85, dated

23.01.1986 no action shall be taken against such

persons. Petitioner has obtained caste certificate in the

year 1974. As per the government order dated

11.03.2002, such persons are required to surrender the

caste certificate and no action can be taken against

them. He would further submit that the petitioner has

not availed any facility or benefits as alleged in the

complaint. The petitioner has already retired from

service on 29.02.2016. Similar circular is issued by the

Joint Secretary, Social Welfare Department at Annexure-

E. He would further submit that in similar matters, in

criminal petition Nos.2482/2005, 2452/2008, 252/2009

and 371/2009, criminal proceedings have been quashed.

Registering of criminal case against the petitioner is

contrary to the judgment of the Hon'ble Apex Court in

State of Maharashtra Vs. Milind and others1

(Milind's Case) and prays to allow the petition.

5. On the other hand, learned counsel

representing respondent No.2 submits that classification

of a caste as Scheduled Caste, Scheduled Tribes,

Backward Classes etc., is the prerogative of the

parliament and State Government has no authority to

issue circular relied upon by the petitioner. In fact, the

decisions relied upon by the petitioner in Criminal

Petition No. 2482/2005, 2452/2008, 252/2009 and

371/2009 are no longer good law in view of the decision

of the Hon'ble Apex Court in Chairman and Managing

Director, Food Corporation of India and others Vs.

Jagadish Balaram Bihara and others2 (Jagadish

Bihara's Case) and quashing of such criminal

proceedings is reversed by the Hon'ble Apex Court in

SLP (Criminal) No.161/2014 and in view of the same,

AIR 2001 SC 393

(2017) 8 SCC 670

the decisions relied upon by the petitioner are no longer

good law. So far as the decision of the Hon'ble Apex

Court in Milind's case relied upon by the petitioner is

concerned, it is congenial to the parties therein and not

a ratio applicable to all the cases.

6. Heard the arguments and perused the

records.

7. It is an undisputed fact that the petitioner

belonged to Kuruba community. However, he has

secured caste certificate claiming to be belonging to

Kadu Kuruba community and secured employment in

Bank of Baroda, which was reserved for a person

belonging to Kadu Kuruba community, which comes

under Scheduled Tribe category.

8. However, the State of Karnataka issued

government order dated 23.01.1986 bearing No.SWL.63

SAD 85 giving benefits of reservation in educational

institutions and also educational concessions available

for the persons belonging to Scheduled Tribe and also

persons belonging to Nayak, Naik, Beda, Walmiki,

Pariwara and Talawar on the ground that their surname

is Nayak.

9. Similar Government Order was issued i.e.

G.O.No.SWL170 SAD 81 (P) dated 02.09.1986 giving

similar benefit to persons belonging to Maalure who

have obtained caste certificate as Malure (ST) Kuruba

and those who belong to Kuruba having obtained

certificate as Kadu Kuruba.

10. However, after receiving letters from the

Government of India stating that the State Government

has no such power and authority to issue such circulars,

it was withdrawn vide Government Order No.SWD 713

SAD 93 dated 11.03.2002 by directing such persons to

surrender their caste certificates and if they failed to

surrender their certificate, the same shall be cancelled.

It also gave direction that no penal or disciplinary action

shall be taken against such persons and if already taken,

they shall be kept in abeyance. The petitioner relying

upon these circulars is seeking quashing of the criminal

proceedings initiated against him.

11. However, the circular dated 11.03.2002, is in

direct contravention of the decision of the Hon'ble

Supreme Court in Jagadish Bihara's case, wherein the

Hon'ble Supreme Court was please to hold as follows:

"A prosecution should be launched against the candidate or, as the case may be, the parents or guardians responsible for making the false claim. The regime postulated in the judgment of this Court in Madhuri Patil (supra) took effect from 2nd September 1994, which was the date of the judgment. Eventually in the State of Maharashtra these directions received legislative recognition upon the enactment of the Maharashtra Act XXIII of 2001 which came into force in the State on 18 October 2001. However, it is important to notice that even before the State Legislature stepped in to confer a statutory form to the directions which were issued by this Court in Madhuri Patil (supra) the regime, as it then obtained prior to the enactment of

the law, also envisaged consequences upon a caste or tribe claim being found to be false upon a verification by the Scrutiny Committee. The cancellation of a certificate would, as a necessary consequence, involve the invalidation of the appointment to a post or admission to an educational institution. Where a candidate had been appointed to a reserved post on the basis of the claim that he or she was a member of the group for which the reservation is intended, the invalidation of the claim to belong to that group would, as a necessary consequence, render the appointment void ab initio. The rationale for this is that a candidate who would otherwise have to compete for a post in the general pool of unreserved seats had secured appointment in a more restricted competition confined to the reserved category and usurped a benefit meant for a designated caste, tribe or class. Once it was found that the candidate had obtained admission upon a false representation to belong to the reserved category, the appointment would be vitiated by fraud and would be void ab initio. The falsity of the claim lies in a representation that the candidate belongs to a category of persons for whom the reservation is intended whereas in fact the candidate does not so belong.

The reason for depriving the candidate of the benefit

which she or he has obtained on the strength of such a claim, is that a person cannot retain the fruits of a false claim on the basis of which a scarce public resource is obtained. The same principle would apply where a candidate secures admission to an educational institution on the basis of a false claim to belong to a reserved category. A candidate who does so causes detriment to a genuine candidate who actually belongs to the reserved category who is deprived of the seat. For that matter a detriment is caused to the entire class of persons for whom reservations are intended, the members of which are excluded as a result of an admission granted to an imposter who does not belong to the class. The withdrawal of benefits, either in terms of the revocation of employment or the termination of an admission was hence a necessary corollary of the invalidation of the claim on the basis of which the appointment or admission was obtained. The withdrawal of the benefit was not based on mens rea or the intent underlying the assertion of a false claim. In the case of a criminal prosecution, intent would be necessary. On the other hand, the withdrawal of civil benefits flowed as a logical result of the invalidation of a claim to belong to a group or category for whom the reservations is intended. This was the position under the

regime which prevailed following the decision in Madhuri Patil."

12. Further, in para 53 of the said order, it

is observed as under:-

"Administrative circulars and Government resolutions are subservient to legislative mandate and cannot be contrary either to constitutional norms or statutory principles. Where a candidate has obtained an appointment to a post on the solemn basis that he or she belongs to a designated caste, tribe or class for whom the post is meant and it is found upon verification by the Scrutiny Committee that the claim is false, the services of such an individual cannot be protected by taking recourse to administrative circulars or resolutions. Protection of claims of a usurper is an act of deviance to the constitutional scheme as well as to statutory mandate. No government resolution or circular can override constitutional or statutory norms. The principle that government is bound by its own circulars is well-settled but it cannot apply in a situation such as present. Protecting the services of a candidate who is found not to belong to the community or tribe

for whom the reservation is intended substantially encroaches upon legal rights of genuine members of the reserved communities whose just entitlements are negated by the grant of a seat to an ineligible person. In such a situation where the rights of genuine members of reserved groups or communities are liable to be affected detrimentally, government circulars or resolutions cannot operate to their detriment."

13. The quashing of criminal proceedings based

on Government Order dated 11.03.2002 in

Priyadarshini and another Vs. The State of

Karnataka3 was challenged before the Hon'ble Supreme

Court in SLP (Criminal) No.1611/2014, wherein the

Hon'ble Apex Court passed the following order:

"Leave granted.

                We     have     heard      Ms.    Anitha     Shenoy,
        learned      counsel appearing for the appellants and

Ms. Kiran Suri, learned Senior Counsel appearing for the respondents and perused the impugned order dated 26.07.2013 passed by the High Court

Crl.P.No.10746/2013 D.D.26.07.2013

of Karnataka in Criminal Petition No.10746/2013.

The High Court, while disposing of the said criminal petition, granted liberty to the respondents to surrender the caste certificate before the competent authority and produce acknowledgment before the Investigating Officer. It was further directed by the High Court that, in such eventuality, the investigating officer shall not proceed with the further investigation in Crime No.129/2013 registered for offences punishable under section 196, 198, 464, 468, 471, 420 of the Indian Penal Code and also for offences punishable under section 3(1)(ix) of the SC/ST (Prevention of Atrocities) Act, 1989. For better appreciation, the order impugned is being quoted hereinbelow :

"ORDER This petition is filed to quash the first information report in Crime No.129/2013 registered for offences punishable under section 196, 198, 464, 468, 471, 420 of the Indian Penal Code and also for offences punishable under section 3(1)(ix) of the SC/ST (Prevention of Atrocities) Act, 1989.

2. The learned counsel for petitioners has

SAD 93, Bangalore dated 11.03.2002, wherein it is stated that, in terms of aforestated Government Order reservation in admission to educational institutions and educational concessions extended to Pariwara, Talware, Maaleru, Kuruba communities in G.O's read at (1) and (2) above and Besta and Koli communities accordingly cease. They shall not be liable for the penal action if they had surrendered their certificates.

3. The learned counsel for petitioners submits that first petitioner has not surrendered her caste certificate. Therefore, petitioners are at liberty to surrender the Caste Certificate of petitioner before the competent authorities and produce acknowledgment before the Investigation Officer. In such an event, the investigation officer shall not proceed with further investigation.

4. The petition is disposed of with these observations."

Prima facie, we are of the view that the aforesaid impugned order is very cryptic in nature, inasmuch as, while quashing the criminal prosecution, the High Court has not considered the law settled by this Court on this point or even

the provisions of the concerned Government Order No. SWD 713 SAD 93, Bangalore dated 11.03.2002. Be that as it may, in our opinion, the impugned order cannot be sustained in law. The matter needs to be examined by the High Court afresh in the light of the law laid down by this Court with regard to the jurisdiction under section 482 of the Code of Criminal Procedure while quashing the criminal prosecution.

For the reasons aforesaid, this appeal is allowed, the impugned order dated 26.07.2013 is set aside and the matter is remitted to the High Court for passing a fresh order in accordance with law."

14. After the remand, Criminal petition

No.10746/2013 was dismissed in the light of the

observations made by the learned Supreme Court. It is

an undisputed fact that though petitioner belongs to

Kuruba Community, he has secured false caste

certificate as belonging to Kadu Kuruba. In fact, after

completing his service, he is retired after

superannuation. Certainly he has obtained benefit which

was available on account of securing such caste

certificate.

15. Rule 7-A of the Karnataka Scheduled Castes,

Scheduled Tribes and Other Backward (Reservation of

Appointments etc.) Rules 1992 specifically provides for

prosecution of the offenders who obtained false

certificates which reads as follows:

"Rule 7-A of The Karnataka Scheduled Castes, Scheduled Tribes and Other Backward(Reservations of Appointment, Etc.,) Rules, 1992 specifically provides for prosecution of the offenders who obtained false caste certificate. Said Rule reads as under:

7-A. Prosecution for obtaining false caste certificate-

(1) The Caste Verification Committee or the Caste and Income Verification Committee, as the case may be and the Divisional Commissioner, shall send a copy of the order rejecting claim of the applicant for grant of Validity Certificate or, as the case may be, a Copy of the order in

appeal rejecting such claim, to the Directorate of Civil Rights Enforcement.

(2) The Directorate of Civil Rights Enforcement shall take steps to prosecute such claimant who has obtained a false Caste Certificate.

In view of the above legal and factual position, the prosecution of the petitioner for the alleged offences under Section 196,198,420 of Indian Penal Code and Section 3 (1)(ix) of The Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, cannot be faulted with as the allegations made in the complaint prima facie make out the ingredients of the above offences alleged against the petitioner. As a result, there is no justifiable ground to quash the impugned proceedings. Consequently, the petition is dismissed."

16. As rightly argued by the learned counsel for

respondent No.2, the decision of the Hon'ble Apex Court

in Milind's case in exceptional cases wherein Hon'ble

Apex Court refused to take away the benefit given to the

petitioner therein.

17. Thus, in the light of the decision of the

Hon'ble Apex Court in Jagadish Bihara's case and

Division Bench of this Court in Priyadarshini's case and

Madhukar Vs. State by Hosanagar Police and others,

absolutely there is no substance in the contentions

raised by the petitioner and the petition is liable to be

dismissed. Accordingly, I proceed to pass the following: