Smt Saraswati Moger vs The State Of Karnataka

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 27TH DAY OF SEPTEMBER, 2023

BEFORE THE HON'BLE MS. JUSTICE J.M.KHAZI CRIMINAL APPEAL NO. 100404 OF 2023 (U/S 14 A(2) of SC and ST ACT-)

BETWEEN:

SMT. SARASWATI D/O. BHAIRA MOGER, AGE: 36 YRS, OCC: HOUSEHOLD, R/O. SANNABAVI, BANGRE, TAL: BHATKAL, U.K.DISTRICT. ...APPELLANT (BY SRI. A. P. HEGDE JANMANE AND SRI. VIJAY MAKAKU, ADVOCATES)

AND:

1. THE STATE OF KARNATAKA, THROUGH BHATKAL TOWN POLICE STATION, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KARNATKA, DHARWAD-580009.

ANNAPURNA CHINNAPPA 2. THE SUPERINTENDENT OF POLICE, DANDAGAL DIRECTORATE, Digitally signed ENFORCEMENT OF CIVIL RIGHTS MANGALORE, by ANNAPURNA CHINNAPPA REP. BY STATE PUBLIC PROSECUTOR, DANDAGAL HIGH COURT OF KARNATAKA, DHARWAD-580009. ...RESPONDENTS (BY SMT. GIRIJA S. HIREMATH, HCGP FORM R1, SRI. C. JAGADISH, ADV. FOR R2)

THIS CRIMINAL APPEAL IS FILED U/SEC. 14A(2) OF SC/ST (POA) ACT, PRAYING THIS COURT TO, SET ASIDE THE ORDER DATED 31.10.2022 PASSED IN CRL. MISC. NO.410/2022 PASSED BY II ADDL. DIST AND SESSIONS JUDGE UTTAR KANNADA KARWAR AND GRANT ANTICIPATORY BAIL IN CRIME NO.170/2018 BHATKAL TOWN PS (AFTER FILING OF -2- NC: 2023:KHC-D:11446 CRL.A No. 100404 of 2023

CHARGE SHEET NUMBERED SPL SC NO.92/2022) IN BHATKAL TOWN POLICE STATION FOR THE OFFENCE PUNISHABLE U/S. 198, 420, 511 OF IPC AND SEC. 3(1)(ix) OF SC AND ST (POA) ACT 2015.

THIS APPEAL, COMING ON FOR FURTHER ARGUMENTS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

Appellant who is arraigned as accused No.1 has filed

this appeal u/sec.14-A(2) of Karnataka Scheduled Castes

and Scheduled Tribes (Prevention of Atrocities)

Amendment Act, 2015, (for short, "SC and ST (POA) Act")

with prayer to grant her anticipatory bail in Crime

No.170/2018 of Bhatkal Town Police Station (Special Case

No.92/2022 on the file of the II Addl. District and Sessions

Judge, Uttara Kannada, Karwar) for the offences

punishable under Sections 198, 420, 511 of Indian Penal

Code (for short, "IPC") and Section 3(1)(ix) of SC and ST

(POA) Act, by setting side the impugned order by which

her prayer for anticipatory bail was rejected by the

Sessions Court.

2. In support of her appeal, appellant has

contended that she belongs to caste "Hindu Moger", which -3- NC: 2023:KHC-D:11446 CRL.A No. 100404 of 2023

declared as scheduled caste by SC and ST (Amendment

Act, 1976). In the list of Scheduled Caste and Scheduled

Tribes applicable to Karnataka, "Hindu Moger" is

mentioned at item No.078. Prior to it only "Hindu Moger"

in the undivided South Canara District and Kollegal Taluka

were specified as scheduled caste and not persons

belonging to the "Hindu Moger" caste residing in other

parts of Karnataka.

3. But in terms of presidential order the SC and ST

Amendment Act, 1976, the area restriction is removed and

hence, persons belonging to "Hindu Moger" caste in any

parts of Karnataka are declared as scheduled caste.

4. Admittedly, appellant is issued with scheduled

caste certificate dated 10.01.2008 by the Competent

Authority after 27.07.1997, when the Amendment Act of

1976 came into force. In Sashi Kumar Kittur V/s the

Government of Karnataka and others (Sashi Kumar

Kittur)1, the Hon'ble Division Bench of this Court is held

1 WP No.43196/2002 (P.I.L) dated 30.11.2004 -4- NC: 2023:KHC-D:11446 CRL.A No. 100404 of 2023

that in view of the presidential order (SC and ST

Amendment Act) 1976, persons belonging to "Hindu

Moger" caste in the entire State of Karnataka belongs to

schedule caste. In Writ Petition No.11756/2010 (GM-CC-

PIL) dated 29.06.2011, the Hon'ble Division Bench of this

Court held that irrespective their residence persons

belonging to "Moger" caste are to be treated as schedule

caste and directed the State Government to issue

certificate. S.L.P.(C) No.36462/2011 filed against the said

order came to be dismissed by the Hon'ble Supreme Court

on 03.08.2017.

5. Though selected for the post of teacher,

appellant did not avail the benefit of reservation. When

things stood thus, respondent No.2 has filed a complaint

falsely alleging that though the appellant belongs to

"Moger" caste classified as backward class, she has

obtained a false certificate as belonging to scheduled caste

and the scheduled caste certificate issued by Tahsildar is

cancelled by the District Caste Verification Committee,

Karwar (for short, 'DCVC Karwar').

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5.1. Based on the complaint, case is registered in

Crime No.170/2018 of Bhatkal Town Police Station for the

offences punishable under Sections 198, 420, 511 of IPC

and Section 3(1)(ix) of SC and ST (POA) Act. Charge sheet

is filed in Special Case No.92/2022 before the II Additional

District and Sessions Judge, Uttara Kannada, Karwar. Her

application filed u/sec.438 Cr.P.C. for anticipatory bail

came to be rejected by order dated 31.10.2022.

6. No prima facie case is made out to attract the

provision of SC and ST (POA) Act and therefore, there is

no impediment to grant anticipatory bail and prays to

allow the appeal, set-aside the impugned order and grant

anticipatory bail.

7. In support of his arguments, learned counsel for

appellant has relied upon the following decisions:

i. Uttara Kannada Zilla Moger Sangha ® Bhatkal and another V/s Union of India and others (UKZMS Bhatkal)2

2 W.P.No.11756/2010 dt: 29.06.2011 -6- NC: 2023:KHC-D:11446 CRL.A No. 100404 of 2023

ii. Sashi Kumar Kittur V/s the Government of Karnataka and others (Sashi Kumar Kittur)3

iii. Vinod Dayanand Jaiwant V/s the State of Karnataka and others (Vinod Dayanand Jaiwant)4

8. Learned High Court Government Pleader and

learned special counsel for respondent No.2 have

submitted their oral objections stating that appellant

belongs to "Moger" caste which comes under backward

class category-I. However on 10.01.2008, she has

obtained caste certificate from the Tahsildar, Bhatkal

falsely representing that she belongs to "SC Moger" and on

that basis, she was selected for the post of Assistant

Kannada Teacher. However, at the time of considering the

issue of validity certificate, the DCVC Karwar, found that

she has obtained false certificate and refused to issue

validity certificate. The caste certificate is also cancelled by

the Tahsildar. Knowing fully well that she belongs to

backward class category-I Hindu Moger, intentionally 3 WP No.43169 OF 2002 dt: 30.11.2004 4 CRL.A.NO.100269 OF 2021 dt: 14.01.2022 -7- NC: 2023:KHC-D:11446 CRL.A No. 100404 of 2023

appellant has secured a false caste certificate claming as

belonging schedule caste.

9. After cancellation of caste certificate, the police

Sub-Inspector attached to Directorate of Civil Rights

Enforcement filed complaint against the appellant. Based

on the same, case is registered in Crime No.170/2018 of

Bhatkal Town Police Station for the offences punishable

u/secs.198, 420, 511 of IPC and Section 3(1)(ix) of SC

and ST (POA) Act and investigation is taken up. After

completing detailed investigation, charge sheet is filed

against the appellant. Though appellant did not secure

employment based on the caste certificate in question,

mere production of false caste certificate is punishable

offence. A strong prima facie case is made out against the

appellant and in the light of prohibition contained in

Section 18 and 18A(2) of SC and ST (POA) Act 1989,

appellant is not entitled for anticipatory bail and prays to

dismiss the appeal.

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10. In support of his arguments, learned special

counsel has relied upon the following decisions:

i. Vigneshwar V/s B.Krishnayya and others (Vigneshwar)5

ii. Smt.Jayanthi V/s State of Karnataka (Jayanthi)6

11. Heard arguments and perused the records.

12. Before appreciating the facts of the case and

grounds urged by the appellant seeking anticipatory bail, it

is relevant to note that Section 18-A(2) of SC and ST

(POA) Act, 1989, provides that the provisions of Section

438 of Cr.P.C. are not applicable to a case, where the

accused persons are alleged to have committed the

offences punishable under the provisions of SC and ST

(POA) Act, 1989. However, in Chandra Poojari vs. State

of Karnataka Seshadripuram police, Bangalore7, the

Co-ordinate Bench of this Court held that where the

allegations does not attract the provisions of SC and ST

5 CCC NO.2393/2011 (Civil) dt: 19.01.2012 6 CRL.P.NO.778/2021 dt: 17.03.2021 7 1997(4) Kar. L.J.81 -9- NC: 2023:KHC-D:11446 CRL.A No. 100404 of 2023

(POA) Act, 1989, the prohibition under Section 18A(2) of

SC and ST (POA) Act, 1989, is not applicable.

12.1 In Dr.Subhash Kashinath Mahajan V/s State of

Maharashtra and another (Dr.Subhash Kashinath

Mahajan)8, the Hon'ble Supreme Court held that the bar

to grant anticipatory bail contained in Sec.18 of SC and ST

(POA) Act is not absolute and applies only when prima

facie case of commission of offence under the Act is made

out. If the allegations of offence are found to be prima

facie motivated and false, exclusion of Sec.438 Cr.P.C.

would not apply.

12.2 In Prathvi Raj Chauhan also the Hon'ble

Supreme Court has held that where a prima facie case is

not made out, then Section 18 and 18-A have no

application. In the light of the ratio in above decisions, it is

necessary to examine whether the prosecution has made

out a prima facie case against the appellant so far as

offences punishable under the provision of SC and ST

8 AIR 2018 SC 1498

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(POA) Act are concerned. The prohibition under Section

18-A(2) would not come in the way of granting

anticipatory bail to the accused, when prima facie case is

not made out.

13. Thus, it is the definite case of appellant that she

belongs to Moger which is classified as scheduled caste

and accordingly she secured caste certificate and applied

for the post of Assistant Kannada Teacher and infact was

selected against the post reserved for candidates

belonging scheduled caste. However, when applied for

validity certificate, the DCVC Karwar has cancelled the

caste certificate issued in her favour by holding that she

belongs to Hindu Moger which is classified as backward

class category-I and consequently she has not availed the

benefit of the said caste certificate. However on the basis

of complaint filed by Police Sub-Inspector, Directorate of

Civil Rights Enforcement, Mangaluru, case is registered

and charge sheet is filed and there is threat of her arrest.

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14. On the other hand, learned Special counsel for

respondent No.2 as well as learned HCGP submitted that

though appellant belongs to Hindu Moger, which is

classified as backward class category-I, in order to snatch

away the post reserved for scheduled caste candidate, by

false representation, she has secured caste certificate as

belonging to scheduled caste and this fact has come to the

notice of the concerned authority i.e. DCVC, Karwar when

request was made for issue of validity certificate. After

conducting detailed enquiry, the caste certificate was

cancelled and having regard to the fact that appellant has

committed the offence under the SC and ST (POA) Act,

complaint came to be filed by the PSI, Directorate of Civil

Rights Enforcement, Mangaluru and after conducting

detailed investigation, charge sheet is filed. In the light of

prima facie case made out against the appellant, she is not

entitled for anticipatory bail.

15. During the course of his arguments, learned

counsel for appellant has relied upon UKZMS Bhatkal and

submitted that in the light of said order, all the persons

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who belong to Hindu Moger come under SC category and

as such, the DCVC Karwar has erred in cancelling her

caste certificate. He would further submit that the order

was challenged by the State before the Hon'ble Supreme

Court in SLP (C) No.36462/2011 and vide order dated

10.11.2017, it came to be disposed off and in the light of

the same, no action could be taken against the appellant.

16. On the other hand, placing reliance on the order

passed by the Hon'ble Division Bench of this Court in

Vigneshwar, learned special counsel for respondent No.2

submitted that the Hon'ble Division Bench clarified that the

order in W.P.No.11756/2010 only state that the

presidential order of 1976 does not impose any restriction

in respect of Moger community, which is scheduled caste

and wherefore irrespective of his domicile the person is

entitled to get scheduled caste certificate. It further held

that the Hon'ble Division Bench decision does not deal with

the matter whether the "Moger" fisherman community

coming within category-I and the "Moger" scheduled caste

found in the presidential order are one and the same and

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in the light of the same, it refused to initiate contempt

proceedings and consequently, there is no impediment to

proceed against the appellant.

17. From the material placed on record and in the

light of ratio in the decision of the Hon'ble Division Bench

in UKZMS Bhatkal and Vigneshwar, it is evident that in

Karnataka, caste Moger is classified as scheduled caste as

well as backward class category-I. The burden is on the

person claiming to belong to scheduled caste "Moger" to

prove the same. Though both "Moger" are homonyms i.e.

sound alike and also spelled alike, but they are having

having different connotation.

18. The specific allegations against appellant are

that though she belongs to backward class category-I

Moger, by falsely representing that she belong to

scheduled caste Moger secured caste certificate and after

the said fact came to the notice of the concerned authority

not only it refused to issue validity certificate but also

criminal prosecution is initiated against her. From the

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charge sheet, it is evident that a detailed enquiry was held

before the DCVC Karwar and vide order dated 08.06.2018,

it ordered for cancellation of the caste certificate.

19. Against the said order appellant approached the

Commissioner, Social Welfare Department in appeal and

the matter was remanded to DCVC Karwar for

reconsideration. After remand, once again holding detailed

enquiry, the DCVC Karwar has passed order dated

20.10.2020 holding that appellant belongs to backward

class category-I Moger and not scheduled caste Moger and

cancelled the caste certificate issued in her favour. Infact,

charge sheet is filed not only against the appellant as

accused No.1 but also against the concerned Tahsildar and

Revenue Inspectors who were instrumental in issuing false

caste certificate as accused No.2 to 4.

20. As held by the Hon'ble Supreme Court in Anjan

Kumar V/s Union of India and others (Anjan Kumar)9,

the scheduled caste and scheduled tribe certificate is not a

9 AIR 2006 SC 1177

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bounty to be distributed. To sustain the claim, one must

show that he/she suffered disabilities-socially,

economically and educationally-cumulatively. The

concerned authority, before whom such claim is made, is

duty bound to satisfy itself that the applicant suffered

disabilities-socially, economically and educationally before

such certificate is issued. Any concerned authority issuing

such certificates in a routine manner would be committing

the dereliction of constitutional duty.

21. As rightly clarified and interpreted in

Vigneshwar, the Hon'ble Division Bench of this Court held

that in UKZMS Bhatkal, the Hon'ble Division Bench has

only held that the presidential order of 1976 does not

impose any area restrictions in respect of persons

belonging to scheduled caste Moger irrespective of their

domicile and they are entitled for issue of scheduled caste

certificate and since the State Government had issued

circular contrary to the presidential order imposing area

restrictions it was struck down. However the Hon'ble

Division Bench has not dealt with the matter whether the

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Moger fisherman community coming under backward class

category-I and Moger scheduled caste found in the

presidential order are one and the same. In other words in

UKZMS Bhatkal, the Hon'ble Division Bench has not held

that persons who are Moger irrespective of whether they

are scheduled caste Moger or backward class category-I

Moger should be given caste certificate as belong to

scheduled caste. It is for the concerned authority to

examine whether the person belong to scheduled caste

Moger or backward class category-I Moger.

22. In the present case, after conducting detailed

enquiry, the concerned authority has held that appellant

belongs to backward class category-I Moger and as such

she is not entitled for caste certificate as scheduled caste

Moger. In Sashi Kumar Kittur also the issue involved

was whether there should be area restriction to claim SC

Moger certificate, which the Hon'ble Division Bench held in

the negative. In Vinod Dayanand Jaiwant, the

co-ordinate bench of this Court granted bail on the ground

that when bail was sought the matter was pending with

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District Caste Verification Committee and though he

claimed appointment on the basis of caste certificate,

infact he was appointed on merit. Therefore, the appellant

cannot take advantage of these decisions.

23. Thus from the above discussion, this Court is of

the considered opinion that a prima facie case is made out

against the appellant to attract the provisions of SC and

ST (POA) Act and therefore, in the light of Sections 18 and

18(A) of the said Act, appellant is not entitled for

anticipatory bail and accordingly, the following:

ORDER

Appeal filed by appellant u/sec.14-A(2) of Karnataka Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Amendment Act, 2015 is dismissed.

In view of dismissal of appeal, pending I.A. does not survive for consideration.

Sd/-

JUDGE

AC, CLK