Abdul Wahid Vs State of Maharashtra and Another

@JUDGMENTTAG-ORDER

T.V. Nalawade, J.@mdashThe petition is filed under Article 226 of Constitution of India and u/s 482 of Criminal Procedure Code for the relief of quashing of criminal proceeding bearing R.C.C. No. 192/2004, which is pending in the Court of Judicial Magistrate, First Class, Kannad, District Aurangabad. Both sides are heard. Copy of the charge-sheet and copies of papers of investigation are produced and this Court has perused the record. The charge-sheet, papers of investigation and the contentions made in the petition show that case is filed against the petitioner for offences committed of creating false record and of cheating for obtaining certificate from authority that the petitioner belongs to Momin caste, O.B.C. The Executive Magistrate, the authority, issued certificate in 1991. By using this certificate, the petitioner contested the election of Local Body and got elected from O.B.C. category. The caste certificate was referred to Caste Scrutiny Committee. The Committee invalidated the claim of petitioner and the certificate came to be confiscated. The decision of the Caste Scrutiny Committee was challenged by the petitioner by filing Writ Petition No. 4542/1999 in this Court. By the decision dated 4.9.2003, this Court dismissed the petition and gave further direction to Caste Scrutiny Committee to take steps like initiation of prosecution against the petitioner in respect of the false certificate obtained by him. The Caste Scrutiny Committee gave directions to the Deputy Superintendent of Police (Vigilance Cell) to initiate the proceeding. The Deputy Superintendent of Police gave report to police station for offences punishable under Sections 420, 468 and 471 of Indian Penal Code and also for the offence punishable u/s 11 of Maharashtra Act No. XXIII of 2001 (hereinafter referred to as ''the Act'' for short).

2. Police filed a charge-sheet for offences punishable under Sections 420, 468 and 471 of Indian Penal Code, but the charge-sheet is not filed for any offence under the Act. The charge-sheet came to be filed on 9.12.2010.

3. It is the case of the petitioner that in view of the provision of Section 11(2) of the Act, a complaint ought to have been filed and as ''complaint'' as defined in Cr.P.C. is not filed, the J.M.F.C. has committed error in taking cognizance of the offence on the aforesaid charge-sheet. It is also case of the petitioner that the certificate, was not forged and so no such prosecution can be allowed against him.

4. This Court has gone through the relevant provisions of the Act. The provision of Section 11 of the Act is as under:--

11. Offences and penalties.-- (1) Whoever--

(a) obtains a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means; or

(b) not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures any benefits or appointments exclusively reserved for such Castes, Tribes, or Classes in the Government, local authority or any other company or corporation owned or controlled by the Government or in any Government aided institution, or secures admission in any educational institution against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to. any of the elective offices of any local authority or Co-operative Society against the office, reserved for such Castes, Tribes or Classes by producing a false Caste Certificate;

shall on conviction, be punished, with rigorous imprisonment for a term which shall not be less than six months but which extent up to two years or with fine which shall not be less than two thousand rupees, but which may extend up to twenty thousand rupees or both.

(2) No Court shall take cognizance of an offence punishable under this section except upon a complaint, in writing, made by the Scrutiny Committee or by any other officer duly authorised by the Scrutiny Committee for this purpose.

The aforesaid provisions show that the condition of ''complaint'' is there in respect of offence of ''obtaining'' the caste certificate and also in respect of the offence of ''securing'' any benefits by using such caste certificate.

5. The F.I.R. and the papers of investigation show that there is the allegation against the petitioner/accused that he created false record like transfer certificate of one E.E.S. School. The record collected is to the effect that such school is not in existence and it was never in existence. There is allegation that when grandfather of the petitioner died in the year 1957, he created the record of the death in the year 1991 like making entry in respect of death of grandfather in 1991 in the relevant register to show that his grandfather was belonging to "Momin" O.B.C. caste. There is allegation that petitioner produced record like birth extract, which is also false, as record of Aurangabad Corporation shows that they had not issued such extract. False contention was made that the father of the petitioner was having hand loom at Mehetabnagar in Kannad and he was in the business of weaving. There is allegation that by creating aforesaid false record and by making false contentions, first, the certificate was obtained and then, the certificate was used for contesting the election. The aforesaid record and allegations are sufficient to make out the case for framing charge for offences punishable under Sections 420, 468 and 471 of IPC.

6. The aforesaid offences of I.P.C. are cognizable. Any person can give F.I.R. in respect of such offences. When such F.I.R. is received, the concern police are expected to make investigation of such offence. The J.M.F.C. can take cognizance of such offence, when the charge-sheet is filed, report is given to J.M.F.C. There is nothing in the Act to prevent giving of such F.I.R. and there is nothing in the. Act to show that there cannot be any prosecution for aforesaid offences under I.R.C. Thus, the concern police station has not made any error in filing the charge-sheet and the J.M.R.C. has not committed any error in taking the cognizance of the offence.

7. Submission was made for the petitioner that in view of Section 11(2) of the Act, the cognizance of such offence can be taken only after filing of the complaint by the authority. In view of the aforesaid discussion, such submission is not tenable. When the case is not filed for offence punishable u/s 11(2) of the Act, such contention cannot be accepted. Further, the contention that the act of the petitioner may amount only the offence punishable u/s 11 of the Act is not acceptable in view of the aforesaid discussion.

8. It was submitted for the petitioner that the certificate was obtained in the year 1991 and it was allegedly used in the year 1999 and at that time, the provisions of the Act were not in force. It was submitted that in view of these circumstances, the prosecution is not tenable. It is already observed that the prosecution is not for the offence punishable u/s 11 of the Act and so this contention is not acceptable.

9. For petitioner, reliance was placed on some reported cases. The case reported as Rajkumar Gaulkar Vs. The State of Maharashtra, The Scheduled Castes, Vimukta Jatis, OBCs and Special BCs Welfare Caste Certificate Verification Committee and Divisional Social Welfare Officer, Division Aurangabad, The Tahsildar and Taluqa and Navnath Kotsulwar, is in respect of Section 11 of the Act. Present case is not filed u/s 11 of the Act and so this case is of no help to the petitioner. The two cases reported as 2009 All MR (Cri) 1347: (AIR 2009 (2) Bom R 158 ) Bombay High Court(Vijay Bhagwan Shetty v. State of Maharashtra and Anr.) and Mahalakshmi Spinners Ltd. and Others Vs. State of Haryana and Another, are in respect of the offence of theft of electricity. The High Courts have observed that when there is special legislation, which covers the theft of electricity, cognizance of offence u/s 379 of I.P.C. cannot be taken and the procedure laid down in the Special Act needs to be followed. There cannot be any dispute over this proposition. It is already observed that Section 11 has created altogether different offence and it has not replaced the aforesaid offences under I.P.C. So, these observations are of no use to the petitioner. In the case reported as Soni Devrajbhai Babubhai Vs. State of Gujarat and others, , the Apex Court has discussed the prospective effect of criminal law and the provision of Section 304-B of I.P.C. is considered. There cannot be any dispute over the proposition made by the Apex Court in the above case. For the reasons already given, this case also cannot help the petitioner. One case reported as State of Orissa through Kumar Raghvendra Singh and Others Vs. Ganesh Chandra Jew, was cited. This case is in respect of sanction in respect of few offences, which is required to be obtained u/s 197 of Cr.P.C. though this case was cited on the aforesaid point itself, there is sufficient discussion made about the provisions of said the Act and the provisions of I.P.C. and so these observations are also of no help to the petitioner. In the result, the petition stands dismissed.