Smt Saraswati Moger vs The State Of Karnataka

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

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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

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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

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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

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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

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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

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(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