1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.661 OF 2009 Premchand s/o Soma Sonawane age 36 years, occup.service, r/o North Colony Railway Quarter No.RB-II, 620-B, Bhusawal, Taluka Bhusawal, District Jalgaon. Petitioner. versus 01. The State of Maharashtra, through its Secretary, Home Department, Mantralaya, Mumbai-32. 02. P.S.O., Bhusawal City Police Station, Taluka Bhusawal, Dist.Jalgaon. 03. Dharampal s/o Ghisaram Yadav age 54 years, occup. Senior Welfare Inspector, r/o North Colony, Quarter No.RB-II 865, Bhusawal, Taluka and District Bhusawal. Respondents. ---- Shri Vinod Patil, Advocate for the Petitioner. Smt.B.R.Khekale A.P.P. for Respondent Nos.1 and 2. Shri M.N.Navandar, Advocate, for Respondent No.3. 2 Coram: P.R. Borkar J. Date : November 4,2009. ORAL JUDGMENT 01. This writ petition is filed by petitioner Premchand Sonawane an employee of Indian Railways represented by Respondent No. 3 before this court, for quashing the First Information Report lodged by Respondent No. 3 with Respondent No. 2 which is registered as Crime No.30 of 2008 on 4.4.2008 for offences punishable under Sections 467,468, 471 and 420 of Indian Penal Code. 02. Briefly stated, it is the case of the petitioner that his father was in service with Indian Railways at Bhusawal. Father of the petitioner expired while in service and therefore petitioner approached the office of Indian Railways for appointment in Class III category on compassionate ground. His application was considered and accordingly he was given appointment as Trainee Fitter in C & W Department, Bhusawal Division by order dated 3 30.4.1998, the copy of which is produced at Exhibit A along with the writ petition. Thus the petitioner was employed not as a member of reserved category of Scheduled Tribe but he obtained appointment on compassionate ground and in spite of this, the employer sent caste certificate of the petitioner dated 26.6.1989 issued by the Executivve Magistrate, Jalgaon declaring him to be belonging to Tokare Koli (Scheduled Tribe) for verification to Tahsildar Jalgaon and since the Tahsildar Jalgaon by his letter dated 26.10.2007 addressed to the authorities of Indian Railways informed that there is no entry in the register of Tahsil office regarding issuance of said caste certificate in favour of the petitioner, it was therefore concluded that the said caste certificate was forged and bogus. Copy of the letter issued by Tahsildar on 26.10.2007 is at Exhibit B along with the Petition. Thereafter complaint was lodged by Respondent No.3 with respondent No. 2 to the effect that the petitioner has committed various offences by procuring employment by producing 4 false and bogus caste certificate. It is this F.I.R. which sough to be quashed and set aside by this writ petition. 03. Heard Advocate Shri Vinod Patil, Advocate for the petitioner, Smt. B.R.Khekale, APP for Respondent Nos. 1 and 2 and Shri M.N.Navandar, Advocate for Respondent No.3. 04. Advocate Shri Vinod Patil for the petitioner submitted that the appointment letter dated 30.4.1998 produced at Exhibit A with the petition indicates that the petitioner was appointed on compassionate ground provisionally as a Trainee Fitter in C & W Department, Bhusawal Division. The period of training was of six months. The The letter of appointment shows that the appointment was not from reserved category. Advocate Shri Patil also submitted merely because there is no entry in the register of Tahsil office, Jalgaon regarding issuance of the caste certificate in favour of the petitioner, it cannot be said that the certificate is false or bogus. 5 He also argued that whether the certificate is genuine or not has to be decided by competent authority i.e. Caste Scrutiny Committee under the provisions of Maharashtra Scheduled Caste, Scheduled Tribe, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (hereinafter referred to as "the Act of 2000"). 05. Advocate Shri Patil specifically referred to section 6(3) and section 11(2) of the said Act of 2000. As per Section 6(3), appointing authority of the Central or State Government, local authority, public sector undertakings, educational institutions, Co-operative societies or any other Government aided institutions, shall make an application in such form and in such manner as may be prescribed by the scrutiny committees for the verification of caste certificate and issue of a validity certificate, in case a person selected for appointment in the 6 government department has not obtained such certificate. 06. As per Section 11(1), obtaining false caste certificate by furnishing false information or by filing false document or by any other fraudulent means; so also person, who not being a member of Scheduled Tribe or Scheduled Caste etc., secures any benefit or appointment specifically reserved for such class or classes in the government is liable to be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two years or with fine which shall not be less than two thousand rupees, but which may extend upto twenty thousand rupees or both. Section 11 (2) states that no court shall take cognizance of an offence punishable under this section except upon a complaint, in writing, made by the Scrutiny Committee or person authorised by it for this purpose. So, it is argued by Advocate Shri Patil that no cognizance could have been taken unless a complaint was made in writing by the Scrutiny 7 Committee or its duly authorised officer. 07. Advocate Shri Patil further referred to the caste certificate issued by the Deputy Collector (D.R.O.) Jalgoan on 31.7.2008, the copy of which is produced at Exhibit D with petition. According to Advocate Shri Patil, Deputy Collector, as a competent authority, has issued the certificate that the petitioner belongs to Tokare-Koli and as such F.I.R. deserves to be quashed and set aside. 08. On the other hand, Advocate Shri M.N.Navandar for Respondent No.3 submitted that though initial employment was not obtained by petitioner on the basis of caste certificate showing him belonging to reserved category, the documents produced with affidavit in reply dated 15.10.2009, clearly indicate that by orders dated 4.4.2002 and 17.5.2004 (R-1 and R-2) the petitioner has produced the certificate claiming to have been issued by the Executive Magistrate, Jalgaon i.e. Tahsildar and the copy of which is 8 produced with petition but entry regarding which is not available in the register of the Tahsil office. It is further submitted by Advocate Shri Navandar that the petitioner has obtained promotion on a post meant or reserved for a Scheduled Tribe candidates on the basis of the caste certificate which he claims to have been issued in his favour by the Executive Magistrate although entry of issuance of that certificate is not found in the register maintained by the tahsil office and thus the FIR cannot be quashed and set aside. 09. So far as Sections 6(3) and 11(2) of the Act of 2000 are concerned, it may be noted that Section 11(1) specifically makes certain acts punishable as a distinct offence cognizance of which cannot be taken except upon a complaint made in writing by the scrutiny committee or its duly authorised officer. As regards Section 6(3), the main question is not whether the Petitioner belongs to reserved category of Tokare-Koli, but the question is whether he had forged false caste 9 certificate purportedly issued by the Tahsildar and/or used the forged certificate for getting promotion. 10. In the present case, FIR does not say that the petitioner has forged the document in question. So, in my opinion, Sections 467 and 468 of IPC may not be applicable unless there is some evidence collected during investigation to show that the petitioner has fabricated the document. The investigation is pending and what is challenged is the FIR and its cognizance. As far as offence under Section 471 is concerned, Section 471 of IPC reads as follows; "471. Using as genuine a forged [document or electronic record]:- Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]" 10 11. So, if Respondent No. 3 could prove that the alleged forged caste certificate was produced by the petitioner knowing or having reason to believe it to be a forged document, that would be sufficient to make out offence under Section 471. One thing is clear that at this stage it cannot be said that offence under Section 420 has been committed in so far as initial appointment of the petitioner is concerned. However, said offence can be said to have been committed if ultimately after investigation it is found that the petitioner produced the caste certificate dated 26.6.1989 knowing that it is not a genuine document in order to secure promotions from reserved category. In my considered opinion this is too premature stage to opine anything definitely. In fact only after investigation is over, it can be determined what offence/s is/are committed. This is not a case where F.I.R. should be quashed, but this is a case which requires investigation. 11 12. Therefore, having regard to above details, at this preliminary stage this is not a case where FIR should be quashed and set aside. However, it is made clear that after investigation is over, the petitioner is at liberty to challenge the same by way of appropriate proceedings. 13. Writ Petition, therefore, stands dismissed. pnd/criwp661.09 (P.R.BORKAR, J.)