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Mangala Parashram Kelkar and anr. Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 496 of 1978
Judge
Reported inAIR1979Bom282; 1979MhLJ599
ActsProtection of Civil Rights Act, 1955 - Sections 2, 7, 7(1) and 12; Constitution of India - Articles 341 and 366
AppellantMangala Parashram Kelkar and anr.
RespondentState of Maharashtra
Appellant AdvocateV.V. Kamat, Adv.
Respondent AdvocateD.Gangakhedkar, Public Prosecutor
DispositionPetition allowed
Excerpt:
the case debated on whether the buddhist could be treated as a member of scheduled caste- the court ruled that the buddhist could not be treated as a member of scheduled caste - - the learned sessions judge came to the conclusion that to the facts of the present case the provisions of section 7(1)(c) of the said act would not apply and the contention of the accused in that behalf was well-founded. though more than a quarter of a century has by now passed by into oblivion since the embodiment of the above solemn declaration in the fundamental law of the country, the progress in that behalf is insignificant, the pace of advance very slow and the change for the better virtually nil......by virtue of his powers under article 341, who shall be deemed to be members of a scheduled caste or castes. a reference to the schedule attached to the aforesaid constitution (scheduled castes) order further shows that in no part of the country has the president under his aforesaid order notified buddhism as a caste or race covered by the aforesaid order. the resultant position thus is that a buddhist or one professing buddhism does not belong to a scheduled caste within the meaning of the said act. consequently, the provisions of the protection of civil rights act, 1955, would not apply to a buddhist or one professing buddhism.8. it is in this light and context that the present case falls to be considered and decided. returning then to the facts once again, one finds, in the.....
Judgment:
ORDER

1. The short but cardinal question around which the fate of the instant prosecution under Section 7 of the Protection of Civil Rights Act, 1955 (hereafter briefly, the Act) ultimately revolves is whether a Buddhist is a member of a Scheduled Caste for the purposes of the said Act

2. The prosecution case, abbreviated to essentials, is as follows:--

On 4th March 1977 at about 7 p.m., there was at village Bhalavali in Ratnagiri District, a palanquin procession. After its completion, several villagers, including the complainant herein and others, gathered in front of the house of one Parasharam Kelkar, the father of accused Nos. 1 and 2, to witness the play before the said palanquin. Soon thereafter, Mangala and Nandakumar (accused Nos. 1 and 2) came out of the house and insulted the complainant and others of his community telling them that they had become Buddhists, had stopped playing bands, had instead started dancing before and watching the palanquin and they should, therefore, leave. On 10th March 1977, the complainant with others made an application to the local police stating that the aforesaid incident had resulted in injustice to the Buddhist community. On 3rd April 1977, the complainant by another application reiterated that the above incident had caused injustice to him and other members of the Buddhist community.

3. The accused were thereupon prosecuted under Section 7 of the Act. Rejecting the defence of denial and holding the prosecution charge proved, the trial Magistrate convicted the accused under the said Section 7 and sentenced them to R.I. for three months each and a fine of Rs. 100 each, in default further R.I. for two weeks each.

4. This order of their conviction and sentence was challenged by the accused in Criminal Appeal No. 104 of 1977 to the Sessions Court, Ratnagiri. The learned Sessions Judge came to the conclusion that to the facts of the present case the provisions of Section 7(1)(c) of the said Act would not apply and the contention of the accused in that behalf was well-founded. Their equally important second contention viz., that the complainant and others, to whom the accused were alleged to have spoken the insulting words on the ground of untouchability, were not members of a Scheduled Caste but persons professing Buddhism and, therefore, no offence was committed even under Section 7(1)(d) of the said Act was, however, not finally accepted but setting aside the Magistrate's order of conviction and sentence, the case was remanded for fresh hearing with opportunity to the accused to lead evidence and establish that the complainant was not a member of a Scheduled Caste. Hence this revision application in support whereof I have heard Mr. Vilas v. Kamat, the learned Advocate for the petitioners-accused. The State is represented by Mr. M.D. Gangakhedkar, the learned Public Prosecutor.

5. I find it extremely difficult to uphold and sustain the impugned order based on a misconception of the legal position. The legal as also the constitutional position involved is indeed clear. Moreover, Section 12 of the Act has no relevance hereto -- consequently, question of raising presumption enacted therein does not survive.

6. In this context, it would be useful to turn attention at the outset to Section 12 of the Act:

Section 12 : 'Where any act constituting an offence under this Act is committed in relation to a member of a Scheduled Caste, the Court shall presume, unless the contrary is proved, that such act was committed on the ground of 'untouchablity.'

Obvious position thus is that the aforesaid presumption applies vis-a-vis only a member of a Scheduled Caste. The term 'Scheduled Castes' is defined in clause (db) of Section 2 of the said Act as having:

'the meaning assigned to it in clause (24) of Article 366 of the Constitution.' Turning next to the said clause (24) of Article 366 of the Constitution, (which, incidentally, is also a definition article) one finds the same defining Scheduled Castes as meaning:

'Such castes, races, or tribes or parts of or groups within such castes, races, or tribes as are deemed under Art. 341 to be Scheduled Castes for the purposes of this Constitution.' Turning next to Article 341 of the Constitution, one finds that it em- powers the President to specify, with respect to any State or Union Territory,:

'the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be.'

By virtue of the power aforesaid, the President issued. The Constitution (Scheduled Castes) Order, 1950. The said Order was amended from time to time, the latest in that behalf till now being by Act No. 108 of 1976. Paragraph 3 of this Order, relevant to this case, is as under:--

'Notwithstanding anything contained in paragraph 2, no person who pro-fesses a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste.'

7. The position thus emerging from the relevant provisions of the said Act and the Constitution as also the relevant provisions of the Constitution (Scheduled Castes) Order, is to the effect that it is only those persons, who profess the Hindu or the Sikh religion and who belong to the castes, races, or tribes therefrom or groups within castes, races or tribes therefrom and so notified by the President by virtue of his powers under Article 341, who shall be deemed to be members of a Scheduled Caste or Castes. A reference to the schedule attached to the aforesaid Constitution (Scheduled Castes) Order further shows that in no part of the country has the President under his aforesaid Order notified Buddhism as a caste or race covered by the aforesaid Order. The resultant position thus is that a Buddhist or one professing Buddhism does not belong to a Scheduled Caste within the meaning of the said Act. Consequently, the provisions of the Protection of Civil Rights Act, 1955, would not apply to a Buddhist or one professing Buddhism.

8. It is in this light and context that the present case falls to be considered and decided. Returning then to the facts once again, one finds, in the very first application Exhibit 14 of 10th March 1977, by the complainant and others to the police, not one but several averments one after the other to the effect that the complainant and the other, signatories thereto are fellow Buddhists and followers of Buddhist religion. Again, the very next application, Exhibit 8 of 3rd April 1977, reveals one assertion after another once again to the effect that the complainant is a Buddhist and a follower of Buddhist religion. Even at the trial, it was nobody's case that the complainant was not a Buddhist or that his declarations and assertions in that behalf, emphasized in the first application Exhibit 14 and reiterated in the second application Exhibit 8, were not true. Indeed, the trial itself has proceeded on the basis that the complainant was a Buddhist. The trial Magistrate has also summarised the prosecution case itself to the effect inter alia that the complainant is of Buddha religion.

9. Uncontroverted and undisputed prosecution case itself thus all throughout being that the complainant is a Buddhist, it is extremely difficult to see how any presumption in relation to a member of a Scheduled Caste under Section 12 of the Act can at all arise in this case which relates to a Buddhist and consequently not a member of any Scheduled Caste. In the circumstances, there was hardly any question of a remand and a rehearing or a retrial.

10. The learned Sessions Judge even otherwise erred in law in throwing the burden on the accused to show that the complainant was not a member of a Scheduled Caste. Such approach was in direct conflict with Section 12 of the Act. All the Section 12 enacts is that the presumption therein will arise where the impugned act is committed in relation to a member of a Scheduled Caste. It was for the prosecution, therefore, to first show that the complainant was a member of a Scheduled Caste and that the act in question was committed in relation to him as member of a Scheduled Caste. Only thereafter the presumption in question could arise and be raised.

11. In all, these circumstances, the order of remand passed by the learned Sessions Judge is an infructuous order. There cannot be a rehearing or a retrial in respect of an allegation which does not even prima facie constitute an offence under the Act. On the undisputed facts, it is clear that the complainant is a Buddhist and a follower of Buddhism and consequently not a member of a Scheduled Caste. In this event, and construing it in the context of a changing milieu, the provisions of the Act cannot be invoked and consequently, the instant prosecution is not maintainable.

12. The end result is, indeed, unfortunate. Much as one may censure the conduct of the accused herein in relation to the complainant and others in question, the Court is nevertheless constrained to render, on the impugned charge, an order of acquittal in their favour. It is not for the Courts to enter an inquiry into the reasons for excluding Buddhists from the benevolent provisions of the Act nor can Courts question the wisdom and propriety of the executive-cum-legislative policy in that behalf. The executive and the legislature are the twin masters in that respect. As interpreters of the law and the Constitution, Courts can only hope for the times when the ideal of fraternity assuring the dignity of the individual enshrined in the preamble to the Constitution ceases to remain an illusion and a mirage and becomes, instead, a translated reality in actual life. Though more than a quarter of a century has by now passed by into oblivion since the embodiment of the above solemn declaration in the fundamental law of the country, the progress in that behalf is insignificant, the pace of advance very slow and the change for the better virtually nil. The barriers of castes and creeds continue to haunt the entire gamut of the social fabric of the nation and its people. The fascinating facets of the onward march to social equality continues to remain as fascinating as ever.

13. In the result, albeit reluctantly, this petition is allowed. The impugned order of remand passed by the learned Sessions Judge is set aside and the accused stand acquitted of the offence charged with. Fine, if any, paid by the accused be refunded to them. Their bail bonds stand cancelled.

14. Rule absolute.

15.Petition allowed


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