Emperor Vs. Umakant Balvant

.....scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of the constitution of india. said observations/directions are issued in exercise of powers under article 142 of the constitution and also have no application to the cases relating to appointments and are restricted to the cases relating to admissions. the protection, if any, to be granted in the fact and circumstances of case would depend upon exercise of discretion by supreme court under article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. batty, j.1. the accused in this case has been convicted of abetting the personation of one balkrishna as a person holding the office of kulkarni. but the fact of personation alone, as found by the magistrate, would be insufficient to justify conviction under section 170, indian penal code. that section further rcquires that the offender should be shown to have attempted to do or to have done in such assumed character some act under colour of such office. the phrase 'an act under colour of such office,' we think, points to acts which could not have been done without assuming official authority or responsibility and would not connote acts of a ministerial or mechanical character, which might be done without requiring the justification of office in the person doing them. it appears from the evidence that it is customary for certain functions performable by the kulkarni to be performed by his relatives and that there is no objection to that course, when they involve no exercise of powers vested only in the official. the question is whether the acts or work which the accused requested balkrishuato perform and which the accused must have known could be performed on that request, were acts which required the exercise of official authority or the assumption of official responsibility and this point has not been made clear.2. we cannot support the conviction without further evidence. we, therefore, send the case back, that evidence may be taken on that point and also that evidence may be recorded, if adduced, as to the authority and instructions given by the accused to balkrishna.3. it will also be open to the accused to lead such evidence as he may be advised to lead.