The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No.371 of 2023 ---- Abdul Halim …. …. Petitioner 1. The State of Jharkhand 2. Dr. Ishwar Chandra Vidyasagar -Versus- …. …. Respondents With W.P. (Cr.) No.327 of 2023 Prof. Nand Kumar Yadav ‘Indu’ …. …. Petitioner 1. The State of Jharkhand 2. Dr. Ishwar Chandra Vidyasagar -Versus- …. …. Respondents With W.P. (Cr.) No.393 of 2023 Tarun Kumar …. …. Petitioner 1. The State of Jharkhand 2. Dr. Ishwar Chandra Vidyasagar -Versus- …. …. Respondents
Legal Reasoning
---- CORAM: HON’BLE MR. JUSTICE RAJESH KUMAR ---- For the Petitioner(s) For the Respondent(s) 14/Dated: 10th April, 2024 : Mr. Sumeet Gadodia, Adv. : Mr. Pandey Neeraj Rai, Adv. : Mr. Rohit Ranjan Sinha, Adv. : Mr. Kaushik Sarkhel, Adv. : Mr. Deepankar, A.C to G.A.III ---- 1. 2. Heard the learned counsel for the parties. These criminal writ petitions have been filed for quashing of the order dated 08.05.2023 passed by the learned A.J.C.-II-cum-Special Judge, S.C/S.T.(PoA) Act, Ranchi in connection with SC/ST (Complaint) Case No.09 of 2020. 3. The status of these writ petitioners vis-a-vis the institution, in question, are as follows:- (i) Prof. Nand Kumar Yadav ‘Indu’ is the Vice Chancellor of the Central University of Jharkhand, Ranchi. (ii) Abdul Halim is the Deputy Registrar of the Central University of Jharkhand, Ranchi. (iii) Tarun Kumar is the Security Inspector of the Central University of Jharkhand, Ranchi 4. The brief facts of the case are as follows:- (a) The alleged victim namely, Dr. Ishwar Chandra Vidyasagar was an ex- employee of the Central University of Jharkhand, Ranchi, who was appointed as a Medical Officer. (b) It appears that the Central University has published an advertisement on 15.04.2011 for appointment of the Medical Officer and other posts. (c) The respondent No.2/victim has participated in the said selection process and ultimately, he was appointed on the post of Medical Officer on 18.11.2011 in the category of Other Backward Class. (d) It appears that the State of Bihar has issued notification dated 23.08.2016 clarifying that ‘Lohars’ has been declared as a sub caste of ‘Lohara’. (e) It appears that on the strength of that notification/clarification, a caste certificate has been issued in favour of the alleged victim namely, Dr. Ishwar Chandra Vidyasagar on 20.09.2016. The content of the caste certificate is hereby, reproduced:- “ঋमािणत िकया जाता है िक ी/ीमती/कु मारी ई(cid:695)र च(cid:573) िव(cid:552)ासागर Sri/Smt/Kumari Iswar Chand Bidyasagar पुআ/ पुআी हौरहर नारायण िव(cid:695)कमा१ son/Daughter Harihar Narayan Visvakarma, िनवासी िनचली बाजार िशव गली पो(cid:720) ऑिफस राजागीर थाना राजगीर ঋखਔ राजगीर अनुमਔल राजगृह िजला नालंदा, रा৸ िबहार लोहार लोहरा समुदाय के सद(cid:735) है जो िक संिवधान (अनुसूिचत जाित) आदेश, 1950, संिवधान (अनुसूिचत जाित एवं अनुसूिचत जनजाित) आदेश, 1950, संिवधान अनुसूिचत जाित एवं अनुसूिचत जनजाितआदेश (संशोधन) अिध िनयम, 1976 एवं समय समय पर यथासंशोिधत अिधिनयम के अंतग१त िबहार रा৸ की सूिच म७ अनुॿमांक 22 पर अंिकत है। अतः ी/ीमती/कु मारी ई(cid:695)र च(cid:573) िव(cid:552)ासागर पुআ/पुআी हौरहर नारायण िव(cid:695)कमा१ अनुसूिचत जाित / जनजाित, का/ की है।“ (f) It appears that on 14.05.2018, a show cause has been issued to the alleged victim (i.e. respondent No.2) for non-compliance of the certain administrative directions given under signature of the Registrar namely, S.L. Hari Kumar. Page | 2 W.P. (Cr.) Nos.371/327/393 of 2023 (g) A committee has been constituted and a report has been submitted on 26.07.2018. It further appears that on the report of the said committee, the Vice Chancellor of the Central University has constituted a committee of two person’s i.e, Deputy Registrar & Security Inspector (both are before me) for taking possession of the Registers etc. The said committee has been constituted on 10.01.2019. (h) It further appears that the alleged victim has been asked to hand over the Registers and ultimately, it has been taken over on 21.01.2019. (i) It further appears that an F.I.R has been lodged by the alleged victim under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. (j) It further appears that the police, after investigation, has submitted the final Form. The protest-cum-complaint petition has been filed on 15.02.2020, in which, cognizance has been taken by the Court below vide order dated 08.05.2023. (k) It further appears that there is another list of dates that is also relevant, which are as follows:- (1) The petitioners was the holder of the caste certificate under the category of Other Backward Class and on the strength of the said certificate, he has got appointment on the post of Medical Officer in the year 2011 in the Central University. (2) It further appears that the State of Bihar has made a clarification in the presidential notification specially in Item No.22, verifying that the ‘Lohar’ is the sub-caste of ‘Lohara’ and on that strength, a caste certificate has been issued. (3) It further appears that the matter has been verified by the Hon’ble Apex Court in its judgment dated 21.02.2022 in the case of Sunil Kumar Rai and others vrs. State of Bihar and others reported in 2022 SCC Online SC 232, wherein, it has clarified that the presidential notification cannot be clarified by the State Officials. The relevant paragraph Nos.25 & 27 of the said judgment, are as follows:- “25. We are deeply anguished by the state of affairs which has been brought to our notice through the contents of the petition under Article 32. This is not a matter which has not been engaged the attention of this Page | 3 W.P. (Cr.) Nos.371/327/393 of 2023 Court, which as we have noticed has dealt with the issue on as many as three occasions. It has been clearly and unequivocally declared that Lohars are not members of the Scheduled Tribe and they are members of the OBCs. Under the principle of separation of powers, in the manner we have it under the Constitution, it becomes the duty and the right of the Courts to settle disputes. The Constitution, no doubt, has given powers to the other organs of the State. When it comes to taking decisions which affect the rights of the citizens, it is the paramount duty of the Executive to enquire carefully about the implications of its decisions. At the very minimum, it must equip itself with the law which is laid down by the Courts and find out whether the decision will occasion a breach of law declared by the highest Court of the land. This is a case where we have noticed an unbroken line of reasoning and decisions as noticed in the three judgments which we have referred to. This Court has also pronounced on the aspect of the English language prevailing over the Hindi version, if there is a conflict. In this case, it is clear as daylight that the Lohars were not 27. included as members of the Scheduled Tribe right from the beginning and they were, in fact, included as members of the 0BCs in the State of Bihar. This position has attained articulation at the hands of this Court and this Court has traced the history of the matter in the decision in Prabhat Kumar Sharma (supra)”. 5. Now, the arguments have been advanced by the learned counsel for the petitioners:- (i). The SC/ST offence related to SC/ST Act can be committed only by the non-members against the members of SC/ST Community. The member has been defined under Section 2 (c) of the Scheduled Castes and Scheduled Tribes. Section 2(c) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, is as follows:- “Section 2(C):- Scheduled Castes and Scheduled Tribes" shall have the meanings assigned to them respectively under clause (24) and clause (25) of article 366 of the Constitution” (ii). There was an employer-employee relationship which has been aggravated to the criminality, which is otherwise not permissible, rather it is malicious prosecution. (iii) Even if the entire allegation is accepted, no offence either under the Indian Penal Code or SC/ST (PoA) Act is made out. 6. Learned counsel for the respondent No.2-victim has supported the order of taking cognizance and it has been submitted that during that period, the respondent No.2/victim was in possession of the caste certificate declaring him as a Member of Scheduled Tribes. Since during that period, he Page | 4 W.P. (Cr.) Nos.371/327/393 of 2023 was holder of the certificate and as such, the offence under the SC/ST Act, is made out. Even if, he is treated as a Member of Other Backward Class, the offence under the Indian Penal Code is made out as he has been humiliated in his office. 7. Having heard the learned counsel for the parties and from perusal of the records:- (i) It appears that the petitioner has brought the certificate on the strength of clarification given by the State of Bihar and referring to Item No.22, the Certificate of Schedule Tribe has been issued in favour of the respondent No.2/victim. (ii) On mere perusal of the certificate suggest that the same has been issued with reference to the item No.22 which refers to the community known as ‘Lohara’, while the respondent No.2 belongs to the community known as ‘Lohars’. (iii) The clarification issued by the State of Bihar has been nullified by the Hon’ble Apex Court in the above mentioned judgment. The reason has been assigned by the Hon’ble Apex Court that the State of Bihar is not an authority to clarify any notification issued by the President of India under the Constitution of India. (iv) Further, section 2 (c) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act also talks about the Presidential notification only issued under the Constitution of India. 8. Thus, the respondent No.2 cannot be treated as a Member of Scheduled Tribes at any point of time. Since the respondent No.2 are not a member of Scheduled Tribes and as such, the order taking cognizance dated 08.05.2023 passed by the learned A.J.C.-II-cum-Special Judge, S.C/S.T.(PoA) Act, Ranchi in connection with SC/ST (Complaint) Case No.09 of 2020 is per se illegal. Accordingly, the same is hereby, quashed and set aside. 9. So far as the allegation made under IPC is concerned, it clearly suggests that there was some dispute between the parties with regard to certain documents which has been seized on the strength of the official order passed by the Vice Chancellor and for this purpose, co-accused has been Page | 5 W.P. (Cr.) Nos.371/327/393 of 2023 assigned. Thus, no offence under the Indian Penal Code is made out. Even considered otherwise also, it is a clear cut case of malicious prosecution; rather, there is employer-employee relationship between the parties, which has been wrongly aggravated into criminality. 10. Accordingly, these criminal writ petitions stands allowed and the entire criminal proceedings initiated by the Court below including the order taking cognizance dated 08.05.2023 in connection with SC/ST (Complaint) Case No.09 of 2020 are hereby quashed and set-aside. (Rajesh Kumar, J.) Raja/- Uploaded Page | 6 W.P. (Cr.) Nos.371/327/393 of 2023