R.B. Sen vs The State Of Madhya Pradesh
2022 Latest Caselaw 4246 MP

                            1




IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                         BEFORE

         HON'BLE SHRI JUSTICE ATUL SREEDHARAN
                ON THE 28th OF MARCH 2022

            MISC CRIMINAL CASE No. 15728 of 2016


      Between:-

 1.   LAXMI GIRI GOSWAMI W/O SHRI RAKESH GIRI
      GOSWAMI, , AGED ABOUT 33 YEARS, RORAIYA
      MOHALLA TIKAMGARH THANA TIKAMGARH
      (MADHYA PRADESH)


                                             .....PETITIONER
      (BY SHRI MANISH DATT, SENIOR ADVOCATE WITH SHRI
      SIDDHARTH KUMAR SHARMA, ADVOCATE)



      AND

 1.   STATE OF MADHYA PRADESH, THROUGH;
      POLICE STATION; CITY KOTWALI, TIKAMGARH,
      DISTRICT TIKAMGARH.

 2.   LAXMAN RAIKWAR, S/O LATE SHRI NATHU
      RAIKWAR, R/O NARIYA MOHALLA, DISTRICT ;
      TIKAMGARH (M.P)

                                           .....RESPONDENTS

      (BY SHRI NARENDRA CHOURASIYA, GOVT.ADVOCATE AND
      SHRI SANJAY PATEL, ADVOCATE RESPONDENT NO.2)



            MISC CRIMINAL CASE No. 15795 of 2016
 1.   NOMI BRAMHE, AGED ABOUT 57 YEARS, S/O
      SHRI LATE A.R. BRAMHE, PRESENTLY POSTED
      AS SUB DIVISION OFFICER 0REVENUE)
      TIKAMGARH, DISTRICT TIKAMGARH (M.P..)




                                             .....PETITIONER
      (BY SHRI PRAMOD THAKRE, ADVOCATE)
                                                    2




      AND

1.    STATE OF MADHYA PRADESH, THROUGH;
      POLICE STATION; CITY KOTWALI, TIKAMGARH,
      DISTRICT TIKAMGARH.

2.    LAXMAN RAIKWAR, S/O LATE SHRI NATHU
      RAIKWAR, R/O NARIYA MOHALLA, TAHSIL AND
      P.S. TIKAMGARH, DISTRICT ; TIKAMGARH (M.P)

                                                                                  .....RESPONDENT

      (BY SHRI NARENDRA CHOURASIYA, GOVT.ADVOCATE AND
      SHRI SANJAY PATEL, ADVOCATE RESPONDENT NO.2)



                MISC CRIMINAL CASE No. 10126 of 2018
1.    R.B.SEN, S/O SHRI NANELAL SEN, AGED ABOUT
      62 YEARS, R/O PURANI TEKARI, TIKAMGARH,
      DISTT. TIKAMGARH (M.P.)


                                                                                   .....PETITIONER
      (BY SHRI JAI SHUKLA, ADVOCATE)



      AND

1.    STATE OF MADHYA PRADESH, THROUGH;
      POLICE STATION; CITY KOTWALI, TIKAMGARH,
      DISTRICT TIKAMGARH.




                                                                                  .....RESPONDENT

      (BY SHRI NARENDRA CHOURASIYA, GOVT.ADVOCATE AND
      SHRI SANJAY PATEL, ADVOCATE RESPONDENT NO.2)
 ...........................................................................................................


                                               ORDER

The present petitions have been filed by the petitioners herein, who are aggrieved by the order dated 22.8.2016 passed by the Chief Judicial Magistrate, Tikamgarh, on an application filed by the respondent no.2 under section 156(3) of the Cr.P.C., whereby directions

were issued to the Police for the registration of a first information report for offences under sections 420,467,468,471 read with section 120-B IPC.

2. Briefly, the controversy in issue is as follows: the facts in this case have been taken from M.Cr.C No. 15728 of 2016 which is being treated as the lead case. The petitioner stood for election to the post of President of the Municipal Council Tikamgarh, which was a post reserved for an OBC candidate in which, the petitioner stood for and won. The caste certificate based on which she contested the election was issued in proforma -I for which the requirement is that the person had to be a local resident of that area since 1984 or before. The respondent filed an application under section 156(3) stating that the petitioner had secured the caste certificate under the wrong proforma and that, instead of a caste certificate under proforma-I, she was eligible for a caste certificate under proforma-III, which was issued to those persons who became residents of Madhya Pradesh on a date after 1984.

3. In this case, the respondent is not aggrieved by the backward status of the petitioner. The only fact that the respondent is aggrieved by is that the petitioner allegedly made false disclosures before the authorities and secured a caste certificate under proforma-I, which made her eligible to stand for the elections for the post of President of the Municipal Council Tikamgarh to which she was otherwise not eligible to stand had she been issued a caste certificate under proforma-III.

4. The election to the post of President of Municipal council Tikamgarh was held in the year 2014. As the post was reserved for the members of OBC category, the petitioner contested the same on an OBC certificate issued in proforma-I, which is annexed to the petition herein as Annexure A/1. Against her nomination, two writ petitions were filed. One was W.P.No.18303/2014 filed by the one Asfaque Mohammad and the other was W.P.No.19927/2014 filed by one Meena Raikwar. In the petition filed by Asfaque Mohammad, the nomination of the petitioner was challenged, and the petition filed by Miss Meena Raikwar, the caste certificate of the petitioner itself was challenged.

5. W.P.No.18303/2014 was disposed of by an order dated 5.12.2014, by which this Court held that the challenge in the petitions was given to the order passed by the Returning Officer and that the petitioner (Asfaque Mohammad) was free to take recourse of filing an election petition raising an election dispute as specified under section 441-B of the Madhya Pradesh Municipal Corporation Act, 1956. With the above, W.P.No.18303/2014 was disposed of. As regard, W.P.No.19927/2014, filed by Meena Raikwar, the same was disposed of vide order dated 29.7.2015, where this Court refused to interfere and held that the petition was not maintainable as the petitioner herself (Meena Raikwar) has stated that she had filed an election petition against the petitioner herein raising a dispute, which is pending. Therefore, though this Court held that the petition filed by Meena Raikwar was not maintainable, it gave her the liberty to pursue the election petition.

6. Thereafter, in December 2014, the petitioner herein was declared elected. Against her election two election petitions were filed. One by Vimla Singh, which was Election Petition no.1/2015 and other was by Meena Raikwar, which is Election Petition No.4/2014. The petitioner herein, who was the respondent in the said election petitions had filed an application under Order 7 Rule 11 CPC raising an objection regarding the maintainability of the petitions as they were not properly constituted. The application was rejected by the election tribunal against which the petitioner filed two writ petitions being, W.P.No.3838/2015 and W.P.No.6936/2015, before this Court. Vide order dated 23.9.2015, both the writ petitions filed by the petitioners herein were allowed. The election petitions filed by Vimla Singh and Miss Meena Raikwar, were dismissed by the High Court. The said order dated 23.9.2015 is from page 74 to 102 of this petition. A petition under Article 136 of the Constitution of India was filed before the Supreme Court by Meena Raikwar, which was SLP (Civil) No.8644/2016, which was dismissed in limine vide order dated 9.5.2016 passed by the Supreme Court.

7. A petition under Article 32 was preferred by one Anil Badkul in the Supreme Court wherein the caste certificate of the petitioner itself was

called in question. This petition was W.P.No.(Civil) 312/2016. The said writ petition was withdrawn by Anil Badkul with permission to approach the appropriate forum.

8. Thereafter, the learned counsel for the petitioners submits that instead of approaching the High-Power Committee, the petitioner filed an application under section 156(3) of the Cr.P.C. The allegation in the said 156(3) application before the Magistrate was not that the petitioner was not eligible to get a caste certificate as an OBC but that the caste certificate which ought to have been issued in proforma III was instead issued to the petitioner in proforma-I. the Magistrate passed an order directing the police to register an FIR against the petitioner. The petitioner challenged the direction given by the Magistrate to the Police to register an FIR by filing M.Cr.C.No.1917/2015 before this Court. This Court allowed the said petition vide order dated 19.10.2015 and quashed both, the order of the Magistrate under section 156(3) Cr.P.C. and the registration of the FIR pursuant thereto, on the grounds that the order passed by the Magistrate directing the Police to register the FIR was perfunctory and a non-speaking order which did not disclose the application of mind on the part of the Magistrate.

9. However, before the filing of the application under section 156(3) Cr.P.C. on 27.1.2015 by the respondent no.2 and the order of this Court quashing the said the FIR and the order under section 156(3) dated 19.10.2015, certain incidents have taken place. On 20.10.2014, unknown to the petitioner, a caste certificate was issued in proforma - III in favour of the petitioner. When the petitioner came to know of the same, she moved an application for its cancellation on 30.12.2014 before the Collector. The Collector pursuant to an enquiry conducted by him and after getting the report of the Superintendent of Police came to the conclusion that the application for the issuance of the caste certificate under proforma III was not preferred by the petitioner as there were variation in hand writing and also there was manipulations of dates in the application form and, therefore, the Collector came to the conclusion that the said application for the issuance of caste certificate under Proforma-III was not preferred by the petitioner and,

therefore, vide order dated 7.4.2016, the Collector quashed the second caste certificate issued in the name of the petitioner under Proforma-III.

10. On 28.10.2015 the respondent No.2 preferred a second application under Section 156(3) of Cr.P.C. In the said complaint he levelled allegations against 9 persons, who were sought to be arrayed as prospective accused persons. On 18.01.2016 the CJM preferred a letter to the Collector, Tikamgarh to give a report whether the caste certificate issued in Proforma-1 was properly issued to the petitioner. Vide his report dated 26.02.2016, the Collector Tikamgarh, in his report to the CJM, stated that the caste certificate issued to the petitioner under Proforma-1 was genuine. Thereafter, the impugned order dated 02.08.2016 was passed by the C.J.M. directing the police to register an offence against the accused persons. The impugned order commences from page No.62 to 70.

11. The first finding of the learned trial Court is at paragraph 9 of its order where it holds that the Tahsildar, Tikamgarh had sought information from the Tahsildar Rajapur, District Chitrakoot (U.P.) regarding the domicile status of the petitioner. The Tahsildar Rajapur gives his report to the Tahsildar Tikamgarh to the effect that the petitioner belongs to the other backward caste and was a domicile of village Karondikala, Tahsil Rajapur, District Chitrakoot (U.P.) and that she has been issued a caste certificate as an OBC regularly. Relying upon that one fact, the learned CJM arrives at the opinion that the petitioner prima-facie was ineligible for a caste certificate in the Proforma-1 and that she could only have been issued a caste certificate under Proforma-3. He further held that based on false statements and fabricated documents, the petitioner has secured a caste certificate showing herself as an O.B.C. belonging to Goswami Caste in Proforma 1 for which she was ineligible as she has come to Tikamgarh only after the marriage of her husband. The impugned order does not reflect as to the date of the marriage of the petitioner with her husband or whether she had a domicile status in Tikamgarh also, since these are adjoining districts which have a common border with Uttar Pradesh.

12. Learned counsel for the respondent, on the other hand, has submitted that the impugned order has taken into consideration the submissions of both sides, relying upon the documents and the report of the Tahsildar Rajapur to come to a prima-facie finding that the petitioner was not legible for a caste certificate under Proforma-1. He has further submitted that the petitioner has falsified the details and fabricated documents to wrongly acquire a caste certificate under Proforma-1 which would show her as domicile of Tikamgarh as on 1984 or before that, which would enable her to contest the election of President of the Municipal Council of Tikamgarh to which she would otherwise be ineligible, had she been issued a caste certificate in Proforma 3.

13. As far as the legal argument of the learned counsel for the petitioner is concerned, predictably, the petitioner has relied upon the judgment of the Supreme Court reported in 1994(6) SCC 241 (Kumari Madhuri Patil and another Vs. Additional Commissioner, Tribal Development and others). He has specifically referred to paragraph No.13 of the judgment in which guidelines have been issued for the constitution of a High Power Committee which would be constituted of three officers namely (I) an Additional or Joint Secretary or any officer higher in rank of the Director of the department concerned, (II) the Director, Social Welfare/ Tribal Welfare / Backward Class Welfare, as the case may be and (III) in the case of Scheduled Castes another officer, who has intimate knowledge in the verification and issuance of the social status certificates. Referring to paragraph 5, learned counsel for the petitioner has submitted that the same provides for setting up a Directorate which would also have a vigilance cell consisting of Senior Deputy Superintend of Police in over-all charge and such number of Police Inspectors to investigate into the social status claims. It further required the inspector to go to the local place of residence and original place from which the candidate hails and usually resides or in case of migration, to the town or city, the place from which he/she originally hailed from. It also required that the vigilance officer personally verify and collect all the facts of the social status claimed by the candidate or the parent or the guardian, as the case may be and he would also

examine the school records, birth certificate, if any. He would then submit the report to the Directorate along with all particulars as envisaged in the Proforma.

14. Learned counsel for the petitioner, thereafter, has drawn the attention of this Court to guideline No.6 with much prominence and has stated that the Director concerned, on receipt of report from the vigilance officer, if he found the claim for social status to be "not genuine "or "doubtful" or spurious or falsely or "wrongly claimed", the Director concerned would issue a show-cause notice supplying a copy of the report of the vigilance officer to the candidate by a registered post with acknowledgment due or through the head of the educational institution concerned in which the candidate is studying or employed.

15. Learned counsel for the petitioner submits that in this case, the caste status of the petitioner is not in question and neither that has been challenged by the respondent No.2 so admittedly, the caste to which the petitioner belongs (Goswami) makes her a member of Other Backward Castes. The allegation in the complaint is that the caste certificate under Proforma 1 was wrongly issued to the petitioner and if that be so, then only a High-Power Committee following the guidelines and the procedure laid down in Kumari Madhuri Patil's case (Supra) could arrive at a finding whether the caste certificate issued to the petitioner in Proforma 1 was wrongly issued or not ?

16. Therefore, learned counsel for the petitioner has argued that as the Supreme Court has laid down unambiguously and unequivocally in paragraph 13 of Madhuri Patil's case, the procedure that must be followed is where a caste certificate called into question, not merely for its genuineness, but also whether the same has rightly or wrongly been issued it, must comply with the procedure laid down in the said judgment and anything otherwise would be unlawful. He further submits that if the High Power Committee had come to the finding that the petitioner was wrongly issued a caste certificate under proforma-I, then the procedure under guideline-6 would have to be adopted where, notice would have been issued to the petitioner and an opportunity to

place her case before the High Power Committee would be given to her and only thereafter, would the final order have been passed by the High Power Committee establishing whether the caste certificate to the petitioner in proforma-I was wrongly issued. He has further argued that it would be the finding of the High-Power Committee that the caste certificate has wrongly been issued which would constitute prima-facie evidence for the Court of the Magistrate who could thereafter passed an order under Section 156 (3) Cr.P.C. for the registration of the offence but not before that.

17. Having heard the submissions from both the sides, this Court is of the opinion that the petitioner has made out a case for quash of the impugned order as, Madhuri Patil's case very clearly and unambiguously lays down the procedure that must be followed when a caste certificate is called into question for its genuineness or its propriety. It is only the High-Power Committee, which can come to a finding regarding both its genuineness and/or the proprietary of the caste certificate issued.

18. The procedure that was followed by the learned CJM, cannot be sustained in the eyes of law. It would have been another thing if the CJM had relied upon a final order passed by High Power Committee giving its opinion on the caste certificate issued to the petitioner but that not being the case in hand and so, the impugned order is unsustainable in the eyes of the law and is therefore, quashed. All proceedings arising from the impugned order dated 22.08.2016 also stand quashed.

With the above, these petitions are disposed of finally.

(ATUL SREEDHARAN) JUDGE

ss/vikram/pnm

Digitally signed by SHYAMLEE SINGH SOLANKI Date: 2022.03.29 15:11:10 +05'30' Adobe Reader version: 11.0.8