Partly allowed

Smt Manjula v. the State of Karnataka

Karnataka HC24 Jan 2022CRL.RP/1313/2021

Case brief

AI extract

What is this about?

In a revision regarding an election dispute involving false caste certification, the High Court held that obtaining a false certificate to claim reservation does not constitute the offence under Section 3(i)(ix) of the SC/ST (POA) Act as it lacks animus. Consequently, the court discharged the petitioner of this specific charge, while noting she may face prosecution under IPC.

What did the court decide?

The petitioner was discharged of the offence under Section 3(i)(ix) of the SC/ST (POA) Act; the application for discharge under Section 227 Cr.P.C. was allowed in part.

Smt Manjula Vs the State of Karnataka — Caste Atrocities | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR

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CRIMINAL REVISION PETITION NO.1313 OF 2021

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BETWEEN:

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Smt. Manjula Aged about 48 years W/o Shivaraju R/at Kudlapura Village Nanjanagud Taluk Mysuru District – 571301.

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…Petitioner

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(By Sri P.Nataraju, Advocate)

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AND:

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The State of Karnataka

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By Nanjanagud Police Station Mysuru District Represented by State Public Prosecutor High Court Building Bengaluru – 560 001.

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The Deputy Superintendent of Police Directorate of Civil Rights Enforcement Mysore-570 001

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Mahadevaiah, Major R/at Kudlapura Village Nanjanagud Taluk Mysuru District – 571 301.

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…Respondents

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(By Sri K.S.Abhijith, HCGP for R1; Sri C.Jagadish, Advocate for R2; Smt. G.S.Kavyashree, Advocate for R3)

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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 under Section 227 Cr.P.C. dated 17.04.2021 and allow the application on its file is prayed for and discharge 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 petition.

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This Criminal Revision Petition coming on for admission through video conferencing this day, the Court made the following:

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ORDER

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In this revision petition under section 397 Cr.P.C., the petitioner has challenged the order

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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:

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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

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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

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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.

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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.

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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.

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It was the argument of Sri. P.Nataraju that

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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

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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

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charged for the offence under section 3(i)(ix) of the Act. In this view the impugned order is liable to be quashed.

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The learned Government Pleader

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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.

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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

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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 Coordinate 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

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Police (CRl.P.2346/2014), Jayanthi Vs. State of Karnataka (Crl.P.778/2021) and Ramesh Vs. State of Karnataka (Crl.P.312/2014) .

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The counsel for respondent no.3 also argued that as a result of false caste certificate produced by the petitioner, a member of scheduled

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tribe was deprived of an opportunity from

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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

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S.L.Sathyanarayana Vs. State of Karnataka and Another (WP.No.8931/2016) .

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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

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

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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.

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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

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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

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judgment of Supreme Court in the case of Hitesh Verma Vs. State of Uttarakhand and another

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

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8. Against the backdrop of these facts, it is pertinent to refer to the Statement of Objects and Reasons of enactment of the Act. It is provided as under:

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“Statement of Objects and Reasons.Despite various measures to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes, they

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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.

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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

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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

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

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9. XXXX

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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.”

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The context of the case on hand is that she obtained a false certificate to claim

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reservation in order to contest in Grama Panchayat

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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

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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

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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

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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

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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

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Constitution of India. Article 20(1) reads

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“ 20.Protection in respect of

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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

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

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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.

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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

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sheet are sufficient enough to frame charge under Section 3(i)(ix) of the Act.

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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

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Appointment etc.) Rules, 1992 and opined that Directorate of Civil Enforcement could initiate prosecution against a person who obtains a false caste certificate.

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The case of Madhukar Vs. State by Hosanagara Police (Criminal Petition

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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

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of Appointment, etc) Rules, 1992. Therefore none of these decisions helps respondent No.2.

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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 :

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ORDER

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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.

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Sd/JUDGE

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Smt Manjula v. the State of Karnataka

Case brief

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Smt Manjula v. the State of Karnataka

Case brief

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