Raj Kumar Dogra vs State of H.P.

Kuldip Singh, J.—This judgment shall dispose of Cr.MMO No. 166 of 2011 and Cr.MMO No. 198 of 2011 as both have arisen out of Criminal Case No. 8 of 2009, titled State vs. Raj Kumar pending in the Court of learned Special Judge, Kullu.

The petitioners have filed the above petitions u/s 482 Criminal Procedure Code read with Article 227 of the Constitution of India, for setting aside order dated 24.11.2010 passed by learned Special Judge, Kullu framing charge against the petitioners under Sections 465, 468, 471 read with Section 120-B IPC and u/s 13(2) of Prevention of Corruption Act, 1988.

The allegations against the petitioners are that petitioner Raj Kumar hatched conspiracy and as a consequence of such conspiracy Kehar Singh petitioner while posted as Patwari, Patwar Circle, Jagatsukh, made a false report dated 17.1.1992 that Raj Kumar petitioner belonged to scheduled caste whereas Raj Kumar was member of O.B.C. category. On the basis of such report caste certificate dated 20.1.1992 was issued by Sub Divisional Magistrate, Kullu and, therefore, the petitioners have committed offence punishable u/s 465 read with Section 120-B IPC.

On 3.12.2005, Raj Kumar had filed nomination papers and annexed fake caste certificate dated 20.1.1992 for contesting election of Pardhan of Gram Panchayat, Jagatsukh against reserved seat for scheduled caste with the intention to cheat, thus committed an offence punishable u/s 471 read with Section 120-B IPC. Petitioner Raj Kumar in conspiracy with petitioner Kehar Singh fraudulently used as genuine the caste certificate dated 20.1.1992 issued by Sub Divisional Magistrate, Kullu on the basis of false report submitted by petitioner Kehar Singh and thus committed an offence punishable u/s 471 read with Section 120-B IPC.

It has also been alleged that Kehar Singh Patwari on 17.1.1992 had made a false report that Raj Kumar belonged to scheduled caste category and on the basis of such report caste certificate dated 20.1.1992 was issued by Sub Divisional Magistrate, Kullu in favour of Raj Kumar, who used the same for filing nomination papers for contesting the election of Pardhan of Gram Panchayat, Jagatsukh which seat was reserved for scheduled caste. Thus, petitioner Kehar Singh has committed an offence punishable u/s 13(2) of Prevention of Corruption Act, 1988.

It has been submitted that charges framed against the petitioners are baseless and not sustainable. The petitioner Kehar Singh has not denied that he made a report that petitioner Raj Kumar belonged to scheduled caste. It has been submitted that report was made on the basis of the fact that petitioner Raj Kumar belonged to Nath (Jogi) community which is recognized as per local custom as scheduled caste. The petitioner Raj Kumar belonged to Punjab area which merged in Himachal Pradesh on reorganization of Punjab. He actually belonged to scheduled caste category. The ancestors of Raj Kumar were issued the scheduled caste certificates.

In the settlement carried out in the area in 2003, Raj Kumar has been shown as Nath (Jogi) which is recorded as scheduled caste category, which entry is still continuing. The children of Raj Kumar and Raj Kumar himself again have recently been issued scheduled caste certificates. No disciplinary action has been taken against petitioner Kehar Singh, rather the Deputy Commissioner has withdrawn the inquiries after becoming aware of all these facts. On these facts, it has been submitted that petitioners have committed no offence for which they have been charged. The learned counsel for the petitioners has prayed for quashing of the order dated 24.11.2010.

The reply has been filed in Cr.MMO No. 166 of 2011. It has been stated that Nath community had never been a scheduled caste community. The Governor of Himachal Pradesh vide notification dated 11.7.2007 has included Nath community in the State list of other backward classes in Himachal Pardesh with immediate effect. The petitioner before 11.7.2007 belonged to general category. It has been stated that petitioner Raj Kumar is an influential person. He connived with co-accused Kehar Singh the then Patwari and manipulated a false caste certificate and contested the election of Pardhan of Gram Panchayat, Jagatsukh in the year 2005 for which he was not eligible, the seat was reserved for scheduled caste. The petitioner Kehar Singh definitely connived with petitioner Raj Kumar and issued a false certificate to petitioner Raj Kumar in the year 1992. It has been submitted that petitioners have been rightly charged. The prayer has been made for dismissing the petition.

I have heard Ms. Jyotsna Rewal Dua, learned counsel for the petitioners and Ms. Ruma Kaushik, learned Addl. Advocate General for the State. It has been submitted by learned counsel for the petitioners that except for recording of the statement of Investigating Officer, the remaining prosecution evidence has been recorded. The petitioners have submitted that earlier ancestors of the petitioner Raj Kumar in the revenue record were shown scheduled caste and the area was in Punjab and after reorganization of the State of Punjab the area has come in State of Himachal Pradesh, therefore, the petitioners continued to be scheduled caste.

It has been submitted that in the recent settlement, the petitioner Raj Kumar has been shown scheduled caste and scheduled caste certificates have been issued in favour of the petitioner Raj Kumar and his children and no action has been taken on that basis. On the contrary, respondent has taken the stand that Nath (Jogi) has been declared as O.B.C. by the Governor of Himachal Pradesh vide notification dated 11.7.2007 and before that they were in general category.

It is a matter of evidence whether petitioner Raj Kumar belonged to scheduled caste or O.B.C. or general category at the relevant time. In absence of evidence, this question cannot be determined. The learned counsel for the petitioners has already stated that almost entire evidence has been recorded in the case except the statement of investigating officer. In these circumstances, no order is required in the petition save and except that both the petitions are dismissed with liberty to petitioners to press their all legal and factual contentions available to them in accordance with law in the Court below. Both the petitions are disposed of accordingly. The interim order dated 16.9.2011 in Cr.M.P No. 660 of 2011 passed in Cr.MMO No. 166 of 2011 is vacated. The pending applications are also disposed of.