1. This Revision Application is directed against the judgment and order passed by the learned Sessions Judge, Sangli, dated January 11, 1980 confirming the order of conviction and sentence passed by the learned Judicial Magistrate, First Class, Miraj, dated July, 27, 1979 convicting the accused-petitioner herein under S. 7(1) of the Protection of Civil Rights Act, 1955 (hereinafter referred to as the 'Act').
2. For relevant and material facts which give rise to this revision application as as under -
The complainant - Sitaram Yeshwant Chandanshive (P.W. 1), who is a member of the Scheduled Caste, and hails from Kumbhari in Jat taluka of Sangli district, was employed as 'Nakedar' in the Agricultural Department of Government of Maharashtra, and he at the material time was posted at the village Daphlapur in Jat taluka of Sangli district. The petitioner-accused was also employed in the Agricultural Department as an Agricultural Assistant. He was also posted at Jat, a Taluka place in Sangli district. It is the prosecution case that Chandanshive was on long leave with effect from November 5, 1978 to December 14, 1978. On December 15, 1978, after enjoying the said leave and in order to give joining report, the complainant went to Daphlapur. At Daphlapur first he went to the house of Maruti Shankar Kamble, who was also employed in the Agricultural Department at Daphlapur as 'Nakedar'. The said Kamble, however, was not at his house but was at the house of the accused. It appears that the accused is also the resident of the said village Daphlapur and he happened to be in the village at that time. On reaching the house of the accused, the complainant-Chandanshive found that the said Kamble was sitting with the accused. According to the complainant, immediately after seeing the complaintant, the accused is alleged to have exclaimed :
'Come on Maharsaheb. Have you finished the leave Are you joining Rs. 900 have been spent and so now you remember about your service. God has given bread to your Mahar caste and you do not deserve it. Your caste is such.'
That time, the complainant, the said Kamble (P.W. 12) who also belonged to the Scheduled Caste felt insulted and they walked out of the house of the accused.
3. On December 19, 1978, the complainant sent his complaint-application by a registered post to the Police Sub-Inspector, Jat Police Station. The said complaint is at exhibit 16 on record and the same is treated as the First Information Report. The Police station Jat received the said complaint on December 21, 1978, registered an offence under S. 7(1)(d) of the Act and immediately started investigation. They recorded the statements of the witnesses and also the supplementary statement of the complainant on December 21, 1978, registered an offence under S. 7(1)(d) of the Act and immediately started investigation. They recorded the statements of the witnesses and also the supplementary statement of the complainant on December 21, 1978. After completion of the investigation, a charge-sheet was filed against the accused. The accused pleaded not guilty to the charge. It is contended by the accused that a false case has been made out against him. It is contended that he had not uttered the words as stated by the complainant in his complaint. That on the report of the accused, the complainant was transferred from Mirwad to Mhaishal a place in Miraj taluka and therefore a false case has been fabricated by the complainant against him. According to the accused, the complainant did not like the transfer and therefore after deliberation he filed a false complaint. The defence of the accused is of total denial.
4. The learned Magistrate recorded the evidence of the complaint (P.W. 1) Maruti Shankar Kamble (P.W. 2) as eye-witnesses and one more witness has been produced by the prosecution as P.W. 3 who was at the material time Sarpanch of the village Kumbhari viz. Babasaheb Santu Khot. The accused has not led oral evidence in his defence, however, he filed his written statement and certain documents were produced by the accused along with his written statement. After due consideration of the evidence on record, the learned Magistrate held by the judgment and order, dated July 27, 1979 that the accused committed an offence under S. 7(1)(d) of the said Act and sentenced him to suffer rigorous imprisonment for one month and to pay a fine of Rs. 100/- in default to undergo rigorous imprisonment for one month.
5. The accused feeling aggrieved by the aforesaid judgment and order passed by the learned Magistrate, preferred an appeal to the Court of Session at Sangli, being Criminal Appeal No. 64 of 1979. The learned Sessions Judge was pleased to confirm the order of conviction and sentence passed by the learned Magistrate, by the judgment and order, dated January 11, 1980. Against the said judgment and order passed by the learned Sessions Judge, the present revision application has been filed by the petitioner-accused challenging the legality, propriety and correctness of the said order.
6. Shri S. M. Paranjape, the learned counsel appearing on behalf of the petitioner, submitted that both the courts below have not properly appreciated the evidence on record and recorded incorrect findings. It is further argued by Shri Paranjape that the learned Sessions Judge while recording a finding on the point of delay in filing the complaint, has considered inadmissible evidence, namely, the additional statement recorded by the police of the complainant under Section 162 of the Code of Criminal Procedure. It is pointed out that there is admittedly delay of four days in filing the complaint. The said delay has not been properly explained by the complainant and in the absence of proper and reasonable explanation, the order of conviction and sentence recorded by the learned Sessions Judge totally ignored the circumstances on record that the complainant being annoyed or feeling aggrieved by the order of transfer had filed a false case against the accused person. It is further urged by Shri Paranjape that the utterance of the words as stated above by the accused to the complainant even if accepted to be true, it would not fall within the mischief of the provisions of S. 7(1)(d) of the said Act. Shri Paranjape intended to argue that the provisions of S. 7(1)(d) and Section 12 of the said Act are ultra vires of the provisions of Arts. 14 and also 19 of the Constitution of India. He is not allowed to argue on the point of vires of the provisions of the said sections as no contention was raised in the revision application. No separate application has been given mentioning the ground for challenge of the vires of the provisions of the said sections. In the absence of a notice of these contentions by the petitioner to the Attorney General of India, no purpose could have been served to allow Shri Paranjape to argue on the point of vires of the provisions of the said sections of the Act.
7. Shri R. T. Walawalkar, the learned Public Prosecutor tried to support the conviction recorded by the learned Sessions Judge, Sangli.
8. In order to appreciate the arguments of the parties, it is necessary to state legislative history, letter and spirit of the Act. In view of S. 3 of the Untouchability (Offences) Amendment and Miscellaneous Provisions Act, 1976 (No. 22 of 1955) is amended. The name of the said Act of 1955 is substituted as 'the Protection of Civil Rights Act.'
9. Art. 17 of the Constitution provides : 'Untouchability' is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of 'Untouchability' shall be an offence punishable in accordance with law.'
10. Art. 35 of the Constitution of India reads as under :-
'35. Legislation to give effect to the provisions of this Part, - Notwithstanding anything in this Constitution, -
(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws -
(i) with respect to any of the matters .....; and
(ii) for prescribing punishment for those acts which are declared to be offences under this part; and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing for the acts referred to in sub-cl. (ii);
The sub-Clause (ii) of Clause (a) of Art. 35 of the Constitution, empowers the Parliament to prescribe punishment for those acts which are declared to be offences under Part No. III of the Constitution. In pursuance of the said provisions of Art. 35(a)(ii) of the Constitution, the Parliament has passed Act. No. 22 of 1955 - The Untouchability (Offences) Act, 1955, and subsequently by amending Act No. 106 of 1976, the Protection of Civil Rights Act, 1955 has been substituted, Art. 17 of the Constitution itself does not define 'Untouchability' presuming that it is known to one and all. The 'Untouchability' is a product of the Hindu caste system. 'Untouchability' in any form is made an offence punishable by law and the punishment for the offence is left to legislation by Parliament under Art. 35(a)(ii) so as to ensure uniformity.
11. The preamble of the Protection of Civil Rights Act, 1955 states :
'AN Act to prescribe punishment for the preaching and practice of 'Untouchability', for the enforcement of any disability arising therefrom and for matters connected therewith.'
From this preamble of the Act, it is clear that the Act is intended to prescribe punishment for preaching and practice of untouchability. S. 3 of the said Act prescribes punishment for enforcing religious disabilities S. 4 of the said Act provides punishment for enforcing social disabilities S. 5 contemplates punishment for refusing to admit persons to hospitals, etc. And S. 5 contemplates punishment for refusing to admit persons to hospitals, etc. And S. 6 provides punishment for refusing to sell goods or render services on the ground of untouchability. It may be stated here that the provisions of Sections 3, 4, 5 and 6 provide punishment for enforcing religious, social, cultural and professional disabilities on the ground of 'Untouchability'. However, S. 7 provides punishment for other offences arising out of 'Untouchability'. On careful consideration of the various clauses of the said S. 7 of the Act, it is clear that the punishment has been provided for practising 'Untouchability'.'
12. S. 7(1) read as under :-
'7. (1) Whoever -
(a) prevents any person from exercising any right accruing to him by reason of the abolition of 'untouchability' under Art. 17 of the Constitution; or
(b) molests, injures, annoys, obstructs or causes or attempts to cause obstruction to any person in exercise of any such right or molests, injures, annoys or boycotts any person by reason of his having exercised any such right; or
(c) by words, either spoken or written, or by signs or by visible representations or otherwise, incites or encourages any person or class of persons or the public generally to practice 'untouchability' in any form whatsoever; or
(d) insults or attempts to insult, on the ground of 'untouchability', - shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with the fine which shall be not less than one hundred rupees and not more than five hundred rupees.'
Now it has got to be seen, as to whether every insult or attempt to insult of a member of the Scheduled Caste is an offence as contemplated by the provisions of Clause (d) of sub-section (1) of S. 7 of the Act. From the plain reading of the said clause, it appears that every insult or attempt to insult a member of Scheduled Caste, which is not on the ground of 'untouchability' is not an act punishable under the said provision. There must be specific intention of the person, to insult or attempt to insult. He must have means rea to that effect. It is an insult of a species. Such insult or attempt to insult must be referable to preaching and practice of untouchability. If an abuse is hurled against a member of the Scheduled Caste, he can be said to have been insulted. But can he be punished under cl. (d) of sub-section (1) of S. 7 of the Act, if the said abuse is not referable to the preaching and practice of untouchability The obvious answer is no. From the words used in the said Clause (d), it does not appear that the Legislature intended that every insult of a member of a Scheduled Caste is included within the mischief of the provisions of the said Clause (d) of sub-section (1) of abuses in every language on the ground of caste and such abuses on the ground of caste hurled against almost all members of all the communities. For instance. 'Hajam, Dhobi, Bhangi', and similar like others. These abuses are hurled without any intention to harm the feelings of the members of those castes, but definitely are intended to insult a person against whom such abuses are hurled. The question in the present case is as to whether, if a member of a Scheduled Caste is addressed as Mahar or Mahardya without intending to preach or practice untouchability, the person who hurled such a word can be convicted under Clause (d) of S. 7(1) of the Act. In my view, every insult or attempt to insult of a member of Schedule Caste, would not fall within the mischief of the said Clause (d) of S. 7(1) of the Act. Unless such insult or attempt to insult is on the ground of 'Untouchability.' Then the question arises as to what is the meaning of the ground of 'untouchability'. Art. 17 of the Constitution does not define 'untouchability'. The Protection of Civil Rights Act, 1955 also does not define 'untouchability'. S. 2(a) defines 'Civil rights' meaning thereby any right accruing to a person by reason of the abolition of 'untouchability' by Art. 17 of the Constitution. It appears that the word 'untouchability' has not been purposefully defined under Art. 17 of the Constitution because it is historically very well known to one and all what is 'untouchability'. 'Untouchability' is referable to the caste and sub-caste. In different parts of the country, different castes have been considered as 'untouchable'. It is in that historical context, 'untouchability' has not been defined either in the Act or in the Constitution. As stated above, Sections 3 to 6 of the said Act, are intended to punish all kinds of disabilities and S. 7 contemplates obstruction, prevention or likewise in the enforcement of such rights arising out of removal of 'untouchability'. As stated above, mere abuses in its very nature, may insult or may attempt to insult the person, but unless the said insult or attempt to insult is in some way or the other connected with the preaching of practice of untouchability, it cannot be said that accused has committed an offence under Clause (d) of sub-section (1) of S. 7 of the Act. It is not possible to lay down hard and fast tests of determining the insult or attempt to insult on the ground of untouchability. It may differ from case to case and having regard to the facts and circumstances of the case, the Courts will have to come to the conclusion that the insult or attempt to insult a member of the Schedule Caste was referable to preaching and practice of untouchability and such insult or attempt to insult was intended to be on the ground of 'untouchability'. Keeping in view, the above observations, it will have to be seen, having regard to the facts and circumstances of this case, as to whether the accused-petitioner has used such words resulting into an insult or an attempt to insult of a species and had such mens rea, so that be could be punished under S. 7(1)(d) of the Act.
13. The words, which are reproduced by me in para 2 above, are alleged to have been used by the accused. Those words indicate that accused intended to tell the complainant to be honest and hard working in pursuit of the duties of the office held by him. A person-returned from a long leave and a superior officer expressed his resentment on the attitude of a person towards his job, cannot be said to be referable to preaching and practice of untouchability or expression thereof cannot be said to be on the ground of untouchability. It is necessary to read those words in the context and the background and one cannot take those words out of context and say that they deal with the Mahar caste and therefore they are on the ground of 'untouchability'. In my view, the accused has not used such words against the complainant insult the complainant on the ground of 'untouchability'. Both the Courts below have committed an error in coming to the conclusion that the words used by the accused against the complainant were on the ground of 'untouchability.'
14. Mr. Walavalker, the learned Public Prosecutor for the State, with some force submitted that under S. 12 of the Act a presumption arises that the insult intended by the accused was on the ground of 'untouchability' and that the accused had not led any evidence to discharge the said burden cast upon him by the law. It, therefore, should be presumed that the accused had insulted or attempted to insult the complainant, who is a member of the Scheduled Caste on the ground on untouchability. It is true that the accused had not adduced any evidence to discharge the burden to rebut the presumption. But the question is as to whether there is any initial burden on the prosecution to prove prima facie that the accused had insulted or attempted to insult the complaint. Even the accused can discharge the rebuttable presumption while cross-examining the prosecution witnesses.
15. The Supreme Court in Harbhajan Singh v. State of Punjab, : 1966CriLJ82 has observed :
'There is consensus of judicial opinion in favour of the view that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. This, however, is the test prescribed while deciding whether the prosecution has discharged its onus of proving the guilt of the accused. It is not a test which can be applied to an accused person who seeks to prove substantially his claim that his case falls under an execution. Where he is called upon to prove that his case falls under an exception, law treats the onus as discharged if he succeeds in proving a preponderance of probability. As soon as the preponderance of probability is established the burden shifts to the prosecution which still has to discharge its original onus. Basically, the original onus never shifts and the prosecution has, at all stage of the case, to prove the guilt of the accused beyond a reasonable doubt.'
16. Keeping in view the above observation of the Supreme Court, it is clear that the initial burden was on the prosecution to prove that the accused that the insult if any, was not on the ground of untouchability and the said onus on the accused would not be so heavy to prove its case beyond a reasonable doubt. The law down in Section 12 of the Act treats onus as discharged if he succeeds in proving a preponderance of probability. In the present case the words alleged to be used by the accused even assuming to be true, are not of a species as stated above and therefore, no presumption of law arises in this case. I may further observe that even if presumption is drawn, the accused has sufficiently discharged the burden by way of cross-examination of prosecution witnesses.
17. On merits also the accused is entitled to an order of acquittal in this case. The incident is alleged to have taken place on December 15, 1978 in the presence of Kamble (P.W. 2). It appears that the complaint was sent to the Police Officer by registered post on December 19, 1978 and receving by the police station on December 21, 1978.. The complainant has not properly explained the delay in filing the complaint. It appears that the complaint had not tried to give reasonable explanation for lodging delayed complaint in his deposition. No explanation whatsoever has been given in the complaint itself as to why the complaint is lodged so late. In the evidence, the complainant has stated that he was threatened by the accused that he will be dismissed from the service. This version given by the complaint has been rejected by the Appellate Court, The Appellate Court however seem to have relied upon the reasons stated in the supplementary statement of the complainant recorded by the police and held that the delay has been properly explained. Obviously, the learned Sessions Judge committed an error in relying upon the said inadmissible evidence. There is no explanation whatsoever or record as to why the complaint was lodged after four or five days. In my view had the complainant really been insulted by the accused saying the above-mentioned words, in that mood of insult, he immediately, on the same day, would have filed the complaint or he would have reported the matter to the superior authority of the accused to take action against the accused. Neither the complainant approached the police, though the police outpost is there in the same village, nor he went to the police station at Jat personally to file complaint. But, it appears from the record that, he, after due deliberation went to Jat on December 19, 1978, got the application typed and sent it by registered post.
18. In Thulia Kali v. State of Tamil Nadu, : 1972CriLJ1296 , it is laid down :-
'Delay in lodging the first information report quite often results in embellishment which is creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaniety, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained.
If an occurrence is not reported for more than 20 hours after the occurrence even though the police station is only two miles from the place of occurrence it is unsafe to base conviction upon the evidence.
In the present case, the complainant has not properly explained the delay in lodging the complaint. As a matter of fact, there is no explanation at all for lodging the complaint after five days, when the police out-post is there in the same village Daphalapur. It is doubtful as to whether the complainant had remembered the actual words alleged to have been uttered by the accused and stated the same words in his complaint. It appears that having regard to the incident and facts and circumstances of this case, the words alleged to have been expressed by the accused appear to be out of the context. It is a clear case of concoction and falsehood as stated by the complainant in his complaint. Babasaheb Santu Khot (P.W. 3), who was a Sarpanch of the village Kumbhari, has stated that the complainant met him after the incident at Kumbhari after about 3-4 days. Complainant told him that accused called him as 'Maharsaheb'. Thereafter, this witness told him to go to the police and take legal action. From this piece of evidence, it is clear that even after 3-4 days, the complainant could say to this witness that the accused called him as 'Maharsaheb'. This witness Khot (P.W. 3) however, has not supported the evidence of the complaint that the accused has uttered so many words to the complainant as stated in the complaint. From the evidence of this witness Khot, further it appears that a concocted case has been made out by the complainant against the accused.
19. There is one more circumstance in this case, which requires to be taken into account. It is admitted by the complainant in his cross-examination that the accused has given remarks on his muster that the complainant always remains at Kumbhari and does not come in time on duty. It appears that there was also an order of transfer of the complainant and the complainant seems to have been annoyed by the order of transfer. He has stated in para 4 of the deposition.
'It is not true to say that I was relieved by accused from duty on 16-12-78 as transferred to Mhaishal. I worked on Naka from 13-12 to 18-12 and from 19-12 again proceeded on leave as I wanted transfer.'
There is much force in this contention of Shri Paranjape that the cumulative effect of order of transfer and the remarks in the muster roll against the complainant, led the complainant to lodge a false case against the accused.
20. As a matter of law and practice. Revisional Court should not disturb the findings of fact recorded by the lower Court unless there is an error of law or otherwise the finding is perverse or that the appreciation is so defective, perverse and devoid of proper reasons, or the Appellate Court had misdirected itself on material points of law and facts, the Revisional Courts shall be justified in reappreciating the evidence and disturb such findings of fact. In the present case, the Appellate Court totally ignored the attending circumstances of this case. The conduct of the complainant is completely ignored. Inadmissible evidence has been taken in to consideration for recording the finding. The evidence of Khot (P.W. 3) is also misconstrued. The falsehood stated by kamble (P.W. 2) in his deposition that the accused gave him a letter about the transfer of the complainant to Mhaishal, on December 21, 1978 is not taken into account, so also the fact that this witness Kamble (P.W. 2) is an interested witness is also ignored by the Appellate Court. In my opinion, the finding recorded by the lower Court, is perverse and therefore deserve to be set aside. having considered relevant and material evidence on record and having taken into consideration the facts and circumstances of this case and interpretation of provisions of Clause (d) of S. 7(1) of Civil Rights Act, 1955, the accused is entitled to an order of acquittal.
21. In the result, the Rule is made absolute. The order of conviction and sentence passed by the learned Sessions Judge, Sangli, dated January 11, 1980 in Criminal Appeal No. 64 of 1979 confirming the order of conviction and sentence First Class, Miraj, dated July 27, 1979 is set aside and the accused is acquitted of the charges levelled against him.
22. The bail bond of the accused stands cancelled.
23. Fine, if paid, may be refunded to the accused-petitioner.
24. Revision allowed.