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State Vs. Kanbi Uma Mahadeva and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1961)2GLR531
AppellantState
RespondentKanbi Uma Mahadeva and ors.
Cases ReferredLaxman Zujya Bhatkar Patil v. The State of Bombay
Excerpt:
.....by reason of the fact that by birth they belong to the same group and since a community includes a caste or sub-caste it would be a group of such members forcing a sub-caste which would be included in the expression community as used in section 2(a). as is clear from the definition the word community has been expressed by the legislature in very wide terms and includes both a caste as well as a sub-caste. 463 where it was held that the rules laid down in english cases as to expulsion from clubs or voluntary associations which people are free to join or not and where any one who joins may well be taken to be bound not only by its general rules but also by any special orders made by its members with regard to him in accordance with those rules are not applicable with regard to caste unions..........for opium. on the 18th of april 1959, the 1st accused called a meeting of his sub-caste, viz. vaged panch, at his house and at that meeting the complainant hira jama and his relations were excommunicated by a resolution which was reduced to writing. that resolution was not produced by the accused at the trial. witness akbarmiya jamiyatmiya was called at the meeting and it was he who had written out the resolution which was dictated to him at that meeting and which resolution excommunicated hira jama and his relatives. on coming to know of this resolution hira jama obtained the sanction of the district magistrate and on the 3rd of november 1959 filed the present complaint under section 4 of the bombay prevention of ex-communication act, xlii of 1949. in the written statements filed.....
Judgment:

J.M. Shelat, J.

1. The accused and the complainant are members of the Kjanbi community. The K,anbl community is divided into three sub-castes: (1) Nenava, (2) Dhaka, and (3) Dhanera. The accused and the complainant belonged to Nenava sub-caste which is also known as Waged Panch. The complainant Hira Jama and his relations also belonged to this Panch. It was said mat the 1st accused felt aggrieved against the complainant as he suspected that the complainant had given certain information to the police as a result of which the police raided his house for opium. On the 18th of April 1959, the 1st accused called a meeting of his sub-caste, viz. Vaged Panch, at his house and at that meeting the complainant Hira Jama and his relations were excommunicated by a resolution which was reduced to writing. That resolution was not produced by the accused at the trial. Witness Akbarmiya Jamiyatmiya was called at the meeting and it was he who had written out the resolution which was dictated to him at that meeting and which resolution excommunicated Hira Jama and his relatives. On coming to know of this resolution Hira Jama obtained the sanction of the District Magistrate and on the 3rd of November 1959 filed the present complaint under Section 4 of the Bombay Prevention of Ex-communication Act, XLII of 1949. In the written statements filed by the accused, Exs. 27 to 43, they raised two contentions:

(1) that Hira Jama and his relations did not belong to Vaged Panch, and

(2) that no resolution ex-communicating Hira Jama and his relations was passed and, therefore, the Act did not apply.

2. The trial Magistrate rejected both the contentions of the accused and held that Hira Jama and his relations did belong to the Vaged Panch and that the resolution excommunicating them was passed at the meeting by the accused. He also held that the Act applied to the said resolution; that the resolution amounted to excommunication of Hira Jama and his relations and that consequently the accused were guilty under Section 4 of the Act. During the course of the hearing of the Revision Application before the learned Sessions Judge it was not disputed that (1) on the 18th of April 1959 a meeting of the Vaged panch; was held at the house of the 1st accused; (2) that that meeting was held at the instance of the 1st accused; (3) that all the accused were present at that meeting together with the other members of the Vaged panch; and (4) the resolution expelling Hira Jama and his relations was passed at that meeting.

Mr. Barot who appears for the accused raised two contentions:

(1) that the Vaged panch is not a community within the meaning of that expression as used in Section 2(a) of the Act and

(2) that though the resolution amounts to excommunication of the complainant and his relations as members of Vaged panch that resolution does not constitute excommunication as defined in Section 2(b) of the Act.

3. As regards the first contention viz; that the Vaged Panch does not mean community as defined in the Act that very same contention was raised before the learned Sessions Judge and was negatived and in my view rightly. As has been pointed out the Kanbi community is divided into three sub-castes and Vaged panch is one of three sub castes. Mr. Barots contention is that a sub-caste would not constitute a community within the meaning of Section 2(a). Under Section 2(a) community means a group the members of which are connected together by reason of the fact that by birth conversion or the performance of any religious rite they belong to the same religion or religious creed and includes a caste or sub-caste. A person born of parents who are members of the Vaged Panch would by birth acquire the status of a member of the Vaged Panch a sub-caste of Kanbi community. Such persons will be connected together by reason of the fact that by birth they belong to the same group and since a community includes a caste or sub-caste it would be a group of such members forcing a sub-caste which would be included in the expression community as used in Section 2(a). As is clear from the definition the word community has been expressed by the Legislature in very wide terms and includes both a caste as well as a sub-caste. Mr. Barots contention that because the Vaged panch is only a sub-caste or a sub-community of the Kanbi community it is not a community within the meaning of Section 2(a) is not correct.

4. The second contention raised by Mr. Barot is a some that important one and requires attention. Mr. Barot argued that the mere fact that a resolution was passed at the meeting of the Vaged panch expelling the complainant and his relations from the Vaged panch would not by itself constitute excommunication as defined by the Act. Such a resolution would mean a variety of things and therefore unless the prosecution led evidence-to show that the resolution deprived the complainant and his relations of rights and privileges which were legally enforceable by a suit of a civil nature by them or on their behalf as such members there would be no excommunication within the meaning of the Act and therefore Section 4 would not apply. Section 2(b) defines:

excommunication as meaning the expulsion of a person from any community of which he is a member depriving him of rights and privileges which are legally enforceable by a suit of civil nature by him or on his behalf as such member.

Section 3 of the Act provides that:

Notwithstanding anything contained in any law custom or usage for the time being in force to the contrary no excommunication of a member of any community shall be valid and shall be of any effect.

Section 4 then provides that:

any person who does any act which amounts to or is in furtherance of the excommunication of any member of a community shall on conviction be punished with fine which may extend to one thousand rupees.

5. It is clear that excommunication to be punishable under Section 4 must be excommunication as defined by Section 2(b). Therefore in order that a person can be convicted under Section 4 he must be a party to a resolution or an act of excommunication meaning thereby expulsion of a person from any community of which he is a member and which has the effect of depriving him of rights and privileges which are legally enforceable by a suit of a civil nature. The question therefore is whether the resolution in question which expelled Hira Jama and his relations from the Vaged panch amounted to excommunication within the meaning of Section 2(b) and therefore falls under Section 4 of the Act. The question which I have to decide is:

Whether the resolution which expelled the complainant and his relations from the Vaged panch was such as to deprive them of their rights and privileges which are legally enforceable by a suit of a civil nature by them and which suit would be one under Section 9 of the Code of Civil Procedure.

6. As I have pointed out a person born in a particular community in India acquires by birth membership in that community in which he is born and as such member he would be entitled to certain social franchises as also rights and privileges which he can enforce in law. The social franchises which he acquires by birth are those conferred upon the members of the community by the caste in accordance with the rules and regulations of and the customs prevailing in that caste. The rights and privileges which he can enforce at law are acquired by him and are vested in him by birth and it is those rights and privileges of the latter class which are sought to be protected by the Act and the deprivation of which has been made penal by Section 4 of the Act. A caste may pass a resolution depriving the member of Manpan invitation or an invitation to dinner or to Munj or other ceremonies for an alleged breach of a caste rule. In such a case the excluded member has no remedy in law; for what he has lost is a social privilege and not a legal right and the caste is the only tribunal to which a caste man deprived of that privilege can resort to See Raghunath Damodar v. Janardan Gopal I.L.R. 15 Bom. 599. A Civil Court in such a case has no power by its decree to compel the members of a case to invite a caste man to dinner or to any social ceremony. On the same principle a member of a caste is not entitled to any remedy in law if the other members refuse to go to his house on the occasion of a death in his family and assist him in the removal of the dead body though they may in doing so break a rule of the caste. It is not for a Court of law to enforce such a caste rule or resolution; it is for the caste itself that makes the rule or passes the resolution to do so. But it would be quite a different thing to expel a member from his caste for such an act would have the effect to pricing him of a legal right which forms part of his status. In such a case a suit will lie under Section 9 of the Code of Civil Procedure for declaration that the plaintiff was entitled to be readmitted into the caste and also for damages for expulsion from the caste. A question of this nature arose in Jagannath Churn v. Akali Dassia I.L.R. 21 Cal. 463 where it was held that the rules laid down in English cases as to expulsion from clubs or voluntary associations which people are free to join or not and where any one who joins may well be taken to be bound not only by its general rules but also by any special orders made by its members with regard to him in accordance with those rules are not applicable with regard to caste unions or religious fraternities in India to which people belong not of their choice but of necessity being born in their respective castes or sects and the consequences of exclusion from which are far more serious and affect a persons status in a far greater degree than those of expulsion from a club. It is thus clear that according to the Calcutta High Court exclusion of a person from his community or caste does not merely affect a social franchise conferred upon him by the community under its rules and regulations but also affects his legal status to protect which Section 9 of the Code of Civil Procedure confers upon him a right to sue.

7. It is no doubt true that before a person can be convicted under Section 4 of the Act it would be necessary for the prosecution to establish:

(1) his expulsion from the community and (2) that the effect of such expulsion was to deprive him of his rights and privileges which he could legally enforce.

It is true that the prosecution did not lead evidence to show what specific rights and privileges the complainant and his relations were deprived of by reason of the resolution in question having been passed. It is however not in dispute that the resolution amounted to expelling Hira Jama and his relations from the Vaged panch and it is nobody's case that that resolution was passed with any reservation. As I have pointed out as the accused are the leaders of the Vaged panch at whose instance the resolution in question was passed it would be they who would be expected to be in possession of that resolution which was in writing. If it was their case that the resolution did not amount to excommunication in the sense that it did not deprive the complainant and his relations of the rights and privileges legally enforceable by them they would indeed have produced that resolution. But apart from that consideration it appears to me to be clear that when a man is expelled or excluded from his membership of a caste or a community the effect of such a resolution would be to derive him of his legal status as a member of that community or caste in which he was born. In other words such a resolution would deprive him of the legal status which he acquired by reason of his birth in a particular community or a caste. In the present case Hire Jama and his relations were members of the Vaged Panch a sub caste of Kanbi community by reason of their having been born in that sub-caste. The resolution which expelled them from that sub-caste deprived Hira Jama and bis relations of their legal status viz. their status as members of the sub-caste called the Vaged Kanbi sub-caste. In that view it would be possible for the complainant and his relation to file a suit for a declaration that they were entitled to be readmitted into their caste and also to have their expulsion declared invalid and of no effect under Section 3 of the may Prevention of Excommunication Act 1949. I am support; is view by the decision in Laxman Zujya Bhatkar Patil v. The State of Bombay 62 Bom. L.R. 818 where Shah J. of the High Court of Maharashtra has on similar facts held that where a member of a community is excommunicated without any reservation by a resolution of the community or a resolution of those in authority such excommunication is rendered invalid and ineffective under Section 3 of the Act At page 828 of the report it is stated that what is prohibited by the Act is expulsion of a member from the community which unless otherwise expressed would carry with it the deprivation of all legal rights and privileges to which the member expelled was entitled to as such member. Accordingly where a member of a community is excommunicated without any reservation by a resolution of a community under Section 3 such excommunication is rendered invalid and ineffective for the obvious reason that such excommunication amounts to the member expelled being deprived of his status as a member of the community which is undoubtedly a matter of legal right and he is also deprived of all the legal rights and privileges to which he was entitled to as such member particularly in relation to the property of the community if any and his right to attend the meetings of the community. In my view neither of the contentions raised by Mr. Barot can be sustained and Section 4 would apply to the facts of this case.

8. For the reasons aforesaid the learned trial Magistrate was right in his view when he held that the resolution in question amounted to excommunication within the meaning of Section 2(b) and 4 of the Act and the accused consequently were rightly convicted under Section 4 of the Act The reference is in these circumstances rejected.


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