R.L. Narasimham, C.J.
1. This is a revision petition against the judgment of a first Class Magistrate of Angul, convicting the petitioner under Section 500 I. P.C. and sentencing him to pay a fine of Rs.50/-; in default, to undergo rigorous imprisonment for one month.
2. The petitioner is said to be the headman ot the Theli community in a small area in Angul Subdivision. The complainant Banamali Sahu is also a Theli residing in village Telibuin in that Subdivision. He charged the petitioner, along with several other persons, with having committed the offence of defamation by making certain imputations against him and by out-casting him from Theli society. The incident was said to have taken place on 8-11-1958 at Telibhuin. According to him his wife was taken away by his father-in-law to his house and was not sent back and thereupon he applied to the petitioner, Hadibandhu Behera (who is the headman of their community) to call for a Punchayati and decide the matter,
Accordingly a Punchayati was convened on 7-11-58 (which was a Friday) but his wife and Father-in-law did not attend the meeting and then it was postponed to the next day 8-11-58 (which was a Saturday). At the latter meeting the petitioner was said to have demanded Rs. 5/- from the complainant but when he refused to pay the same he ordered his ex-communication from the caste. The complainant further alleged that at the direction of the petitioner some pamphlets ex-communicating him from the community were written by Kirtan Singh one of the accused persons in the lower court and then distributed in the locality.
3. The plea taken by the petitioner and the otlier co-accused was that the complainant was not out-casted but he, of his own accord, sought the intervention of the petitioner and the leading members of the community for the purpose o deciding his marital dispute with his wife. At that 'meeting, the petitioner asked) the complainant to pay a flue of Rs. 5/- for his transgression of the caste-rule on a previous occasion and said that unless that sum was paid the Punchayati would not decide his dispute with his wife. Thereupon the complainant left the meeting in an angry mood and the Punchayat also refused to decide his dispute. It was alleged that this incident was exaggerated and the story o excommunication was put forward fay the latter.
4. Mr. Misra who appeared for the petitioner raised two important points in support of this revision petition.
Firstly he urged that the evidence on record, did not establish beyond reasonable doubt that the complainant w.as in fact ex-communicated on the 8th November 1958 as alleged by him and that the trial court overlooked certain important pieces of evidence and also certain damaging admissions made* by the complainant. Secondly he contended that even if the facts be held to be true, the action of the petitioner was done in good faith -- in the interests of his community and was covered by the Ninth and Tenth Exceptions to Section 499 I. P; C.
5. The first contention of Mr. Misra seems to-be justified. The main facts connected with the incident of 8-11-58 are admitted by both parties. The complainant sought the help of the caste Punchayat to decide his dispute with his wife and the Punchayat asked him to pay a fine of Rs. 5/- but he refused to pay the same and left the place in an angry mood. There is nothing objectionable if a Punchayat whose help is sought for by the complainant, refuses to decide the dispute unless he himself would be amenable to the caste discipline by paying a fine for his past transgression of the caste rules. His ex-communication for failure to pay the fine may, in some circumstances, amount to an offence under the Penal Code, but the question for Consideration is whether the fact of ex-communication has been proved beyond reasonable doubt. (After discussing the evidence (Paras 5 and 6) His Lordship concluded;)
7. I am therefore not inclined to believe the interested testimony of the prosecution witnesses so far as the fact of ex-communication is concerned. The petitioner is thus entitled to an acquittal on facts.
8. In view of this finding it is perhaps unnecessary to discuss the question of law as to whether excommunication under the aforesaid circumstances would be protected by any of the Exceptions to Section 499 I. P. C. But I may notice an interesting point that was discussed during the hearing of this revision petition, viz. how far after the coming into force of the Constitution it will be constitutional for any group of persons, whether they be headman of certain castes or other persons, to outcaste a person for transgression of the caste-rules. Article 17 of the Constitution prohibits 'untouchability' in any form.
The expression 'untouchables' has not been defined and is usually used with reference to those persons who are born in those castes and communities that are classed as Harijans or outcastes. The expression may also be so interpreted as to include persons who are made untouchables even though they might have been born in a higher caste. In the Hindu Dharma Shastras there was always a sharp distinction between 'Jathi Chandalas' (born untouchables) and 'Karam Chandalas' (those who become Chandalas on account of their own conduct).
If a person born in a higher caste is effectively ex-communicated he becomes, for all practical purposes, an untouchable and has no place in the society in which he is born. It is also not clear whether Article 17 is intended to prohibit the outcasting or ex-communication of person -- which is still in vogue in some parts of Orissa. The debates of the Constituent Assembly when draft Article 11 (corresponding to the present Article 17) was under discussion show that the difficulties arising out of the absence of a proper definition of the word 'untouchable' were noticed, though eventually no definition was adopted.
In the Untouchability (Offences) Act of 1955 (Central Act 22 of 1955) the expressions 'untouchable' or 'untouchability' have not been defined. But Section 4(x) of the Act makes it penal if any person on the ground of untouchability is subjected to any disability with regard to the observance of any social or religious custom, usage or ceremony, or taking part in any religious procession. The outcasting of a person From society in consequence of which all other members of his caste exclude him from joining in any social or religious ceremony or usage may as well come within the scope of this penal clause unless one can restrict the meaning of the word 'untouchable' to persons who are born as untouchables.
The question is indeed interesting but in view of my finding on facts it seems unnecessary to decide this matter finally Here. It may however be pointed out that in Bombay an Act was passed in 1949 known as the Bombay Prevention of Ex-communication Act (Bombay Act 42 of 1949) by which ex-communication of persons was prohibited. As the outcasting of persons from society still persists in some parts of Orissa and the question has also come up before this Court in a revision petition (see the case of Paduram Sahu v. Biswambar Sahu, (1958) 24 Cut LT 417 : (AIR 1958 Orissa 259)) the State Legislature may consider whether an Act similar to the one passed by the Bombay Legislature may not be passed here also, having regard to the spirit underlying Article 17 of the Constitution.
9. The revision petition is thus allowed -- theconviction and sentence are set aside and the fine,if paid, should be refunded.