2001 ALL MR (Cri) 431
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

R.M.S. KHANDEPARKAR, J.

Shivaji Narayan Girigosavi Vs. The State Of Maharashtra

Criminal Revision Application No.110 of 1992

24th November, 2000

Petitioner Counsel: Shri. A.B.GATNE
Respondent Counsel: Shri. K.S.PATIL

(A) Protection of Civil Rights Act (1955), S.7(1)(d) and 12 - Offence under - Petitioner belonging to Gosavi caste (OBC) calling complainant who belonged to Mang caste (Scheduled caste) as "Mangtya" - No proof that the two castes belonged to the same social group - No inference can be drawn as to which of the two castes can be considered as a higher caste - Held in absence of rebuttal of presumption under S.12 a clear case was made out of offence under S.7(1)(d).

1982 Cri.L.J. 872 Rel.on. (Paras 9,10)

(B) Protection of Civil Rights Act (1955), S.7(1)(d) - Prosecution under - Mere expression of ignorance of caste of complainant by petitioner in his statement under S.313 Cr.P.C. or omission by complainant to state his caste in FIR can be of no help to accused petitioner on conclusion of full trial and after availing opportunity to challenge the caste of complainant. (Para 11)

Cases Cited:
Phulsing vs. State of Madhya Pradesh, 1991 Cri.L.J. 2954 [Para 3]
Sugdeo Ramchandra Tayade vs. State of Maharashtra, 1994 Cri.L.J. 2150 [Para 3]
State of Karnataka vs. N.K.Shanthappa, 1997 Cri.L.J. 2802 [Para 3]
Shantabai vs. State of Maharashtra, 1982 Cri.L.J. 872 [Para 3]


JUDGMENT

JUDGMENT :- The present revision application arises from the judgment and order dated 12-5-1992 passed by the Sessions Judge, Ahmednagar in Criminal Appeal No.2 of 1988. By the impugned judgment, the Lower Appellate Court has dismissed the appeal filed by the petitioner against his conviction under Section 7(1)(d) of the Protection of Civil Rights Act 1955. Learned Judicial Magistrate, First Class, Shrigonda, by his order dated 6-1-1988 had convicted the petitioner under the provisions of the said Act and was sentenced to suffer simple imprisonment for a period of one month and to pay a fine of Rs.100/-, in default, to suffer simple imprisonment for 7 days.

2. The accusation against the petitioner was that the petitioner, after availing leave for a certain period, approached the Head Master of primary school at Lokhandewadi, Taluka Shrigonda, on 17-9-1985 with a letter from the Block Development Officer directing the Head Master to allow the petitioner to resume his duties and accordingly he was allowed to resume the duties. Thereafter on 19-9-1985 at about 2.00 p.m. in the presence of Assistant Teachers, by names, Sahebrao Shinde, Harischandra Mate, Pannalal Bhagwandas, the petitioner started abusing the Head Master which resulted in exchange of verbal abuses and also followed by threats to the Head Master and insulting him by calling him "Mangtya, Mangya" by the petitioner. Thereupon a complaint was lodged by the Head Master alleging commission of offence punishable under Sections 353,323,504 of the Indian Penal Code and under Section 7(1)(d) of the said Act by the petitioner. The said complaint came to be registered at the Police Station, Shrigonda as Crime No.164/85. After hearing the prosecution and considering the testimony of the witnesses before trial court in Regular Trial Case No.103 of 1985, the Judicial Magistrate convicted and sentenced the petitioner as stated above and the appeal filed against the same did not yield any result in favour of the petitioner.

3. The judgments and orders of conviction of the petitioner under Section 7(1)(d) of the said Act are sought to be assailed on three grounds. Firstly, mere utterance of the words like Mangtya, Mangya, without any evidence regarding practice of untouchability does not constitute offence under the said section of the said Act. Secondly, no offence can be said to have been committed under the said Act unless it is established that the complainant belongs to Scheduled Caste and thirdly there is no whisper of the exact words said to have been uttered by the petitioner in the F.I.R. lodged by the complainant and the entire case being based on improvements made by the complainant in the course of evidence, the conviction of the petitioner is illegal and discloses failure of justice to the petitioner. According to the advocate for the petitioner, there is absolutely no evidence regarding any untouchability being practised by the petitioner while the alleged words are stated to have been uttered nor there is any evidence establishing that the complainant belongs to Scheduled Caste. In the absence of evidence on both these grounds, it cannot be said that there is any offence committed by the petitioner which can be said to be punishable under Section 7(1)(d) of the said Act. Reliance is sought to be placed in the decisions in the matter of Phulsing v. State of Madhya Pradesh reported in 1991 Cri.L.J. 2954 and Sugdeo Ramchandra Tayade v. State of Maharashtra reported in 1994 Cri.L.J. 2150. It is also sought to be contended that in order to constitute an offence under Section 7(1)(d) the insult should by a member of higher caste to the lower caste and there cannot be an offence in case of any reference to the caste in the manner which is alleged by the people belonging to the same social group. It is further contended by the learned advocate that the evidence on record clearly discloses that the petitioner belongs to the other Backward Class and, therefore, both hail from the same social group and, therefore, there was no case of any offence being committed under the provisions of the said Act by mere utterance of the alleged expressions. Reliance is placed in support of the contention in the matter of State of Karnataka v. N.K.Shanthappa reported in 1997 Cri.L.J. 2802. On the other hand, the learned A.P.P. has submitted that Section 12 of the said Act provides for presumptions by the Court in certain cases and accordingly where any act constituting an offence under the Act is committed in relation to a member of a Scheduled Caste, the Court has to presume, unless the contrary is proved, that such an act was committed on the ground of untouchability. Considering the said provision of Section 12 and the clear finding of the Courts below that the complainant belonged to Scheduled Caste, there was clear case of an offence under the said section of the said Act by the petitioner when the petitioner uttered the above referred expressions. Reliance in that regard is also sought to be placed in the decision in the matter of Shantabai v. State of Maharashtra reported in 1982 Cri.L.J. 872. It was further submitted that the point that the complainant belongs to SC was never disputed by the accused and the finding discloses that the complainant belongs to Mang caste which is declared as a Scheduled Caste. In any case, according to the learned A.P.P. this point was never raised before the Courts below. As regards the non reproduction of the exact words in the FIR it is contended that the same cannot vitiate the prosecution and the trial against the petitioner.

4. Upon hearing the learned advocates for the parties and on perusal of the records it is seen that both the Courts below have arrived at concurrent findings regarding utterance of words like Mangtya and Mangya by the petitioner with reference to the complainant on the relevant day and time and that the complainant belongs to Mang caste whereas the petitioner is from Gosavi caste. The above findings are findings of fact based on materials on record. The fact that the Mang caste is declared as a Scheduled Caste is also not in dispute. The learned advocate for the petitioner did try to contend that the notification in that regard was not placed on record in the course of evidence. Once the fact that the Mang caste is a Scheduled Caste was never in dispute, mere failure to produce any such notification on record cannot vitiate the trial. Besides, the fact of the declaration of Mang caste as a Scheduled Caste was not challenged and therefore the Courts were entitled to take judicial note of the same. In any case, as rightly submitted by the APP, no controversy was sought to be raised in this regard before the Courts below and it is too late for the petitioner to make any grievance about the same.

5. In the background of the above referred brief facts it would be necessary to peruse the decisions relied upon before arriving at any conclusion in the matter. In Phulsing v. State of M.P. (supra), the learned single Judge of the Madhya Pradesh High Court has held that keeping aside the provisions contained in Section 12 of the said Act it is clear that insult simpliciter of a member of Scheduled Caste is not within the mischief of cl.(d) of sub-section (1) of Section 7 and it is further necessary that the insult must have been committed "on the ground of untouchability". While answering the question as to what should be the test to determine whether the insult was or was not "on the ground of untouchability", the learned Single Judge has observed that the test is to ask the question, whether insult would have taken place irrespective of the fact whether the victim was or was not a member of the Scheduled Caste and if the answer is yes, then the insult should be considered as insult simpliciter outside the ambit of clause (d), and, on the other hand, if insult had taken place only because the victim was a member of Scheduled Caste and it would not have taken place if he had been of higher caste, then insult was on the ground of untouchability. Another test suggested by the learned Single Judge is to ask the question whether insult was part of personal quarrel which took place between a person of higher caste and a member of scheduled caste; or was the insult offered in cool and studied manner in the absence of any quarrel. In the first situation, the insult would most likely be insult simpliciter while in the second situation it would be insult on the ground of untouchability. It is pertinent to note that the learned Single Judge of the Madhya Pradesh High Court, however, while formulating this test of questions and answers to determine as to whether the insult was or was not on the ground of untouchability, had not considered the effect of the provisions of Section 12 of the said Act. The expression "Keeping aside that provision for a moment" in para 6 while considering the test to determine as to whether the insult was or was not "on the ground of untouchability ?" and the discussion that followed in the judgment clearly disclose that the Court has dealt with the problem keeping aside the provisions of Section 12 of the said Act.

6. In Sugdeo Ramchandra Tayade v. State of Maharashtra's case (supra) the learned Single Judge of this Court relying upon the decision of the Madhya Pradesh High Court in Phulsing's case has held that if a member of Scheduled Caste is using a public bathing ghat and if higher caste Hindu insults him and evicts him from that ghat saying that the ghat is reserved for higher caste people, that is a case of insult on the ground of untouchability and that if the clothes of the higher caste Hindu are trampled upon by the untouchable or by the Scheduled Caste member and that if the higher caste Hindu calls that person as Chamar, that would be a case of insult simpliciter or a member of the Scheduled Caste but not an insult on the ground of untouchability. The learned single Judge in that case was dealing with the matter wherein it was evident that whatever that had transpired in the nature of abuses was on account of the employees belonging to Mahar caste not participating in general strike and that the petitioner-accused therein was annoyed and showered abuses not in relation to any untouchability practised by the petitioner-accused and in that context it was held that it was clear that the petitioner therein could be said to have committed offence under Section 7(1)(d) of the said Act. The said case is clearly distinguishable on facts.

7. The Division Bench of this Court in the matter of Shantabai v. State of Maharashtra (1982 Cri.L.J. 872) was dealing with a case wherein the complainant while he was carrying out agricultural operations with the help of labourers, Shantabai and Govind Hareshwar Patil, i.e. the accused Nos.1 and 2 therein, went to the land, the petitioner No.2 Govind therein rushed to the complainant Mukund pointing an umbrella towards him, and said to him "Maharya, do not speak more, I will cut you". The petitioner No.1- Shantabai, said to the complainant "This Mahardi of Dahisar had gone too high and each one of them should be killed." Thereafter, the complaint was lodged and the accused were tried for offence punishable under Section 7(1)(d) of the said Act. The accused were convicted for offence under Section 7(1)(d) and the appeal against the same was dismissed. That is how the matter came before the Division Bench of this Court, since the question raised in the said petition was of great importance, the matter was referred to the Division Bench. After considering the various provisions of the said Act, the legislative wisdom behind enacting the said Act and various other decisions relied upon in the matter, the Division Bench observed thus:

"However, abuses addressed to the members of the other communities stand on a different footing. If the abuse "Mahardya" is addressed to a Brahmin, the presumption under Section 12 is not available. It cannot be forgotten that if the abuse "Mahardya" is addressed to a member of Scheduled Caste, the intention is writ large. Further there is vast difference in the word "Mahar" and expression "Mahardya" or "Mahardi". The said abuse is indicative of cast supremacy. It is nothing but an assumption of superiority by a person over another, which to use the expression of Mahatma Gandhi, is a sin against God and man. Such an expression has much more malice in it, than its literal meaning would suggest. Untouchability is a heinous crime against humanity as a whole. In our view the learned Judge in Laxman's case (1981 Cri. L.J. 387) has unduly restricted the scope of presumption contemplated by S.12 of the Act. Assuming that the question of mens rea is relevant, once it is established by the prosecution that the act constituting the offence viz. the insult or attempt to insult was qua member of Scheduled Caste then in view of the provisions of S.12 of the Act, it is not necessary for the prosecution to further prove that such act was committed on the ground of untouchability. By S.12 of the Act, unless the contrary is proved, it is presumed that such act was committed on the ground of untouchability. As already observed, the said presumption is rebuttable one. If for proving an offence under S.7(1)(d) of the Act, the prosecution is also required to prove the fact that the act constituting the offence was committed on the ground of untouchability, then the presumption contemplated by S.12 will have no meaning and the entire S.12 will become redundant or surplusage. In our view S.12 has a purpose behind it, and was necessary to prove, by raising a presumption, one of the ingredients of the offence."

It is clear that the Division Bench of this Court has held that once it is proved that utterance of the words like "Mahardya" is by a member of one community to other, then it would have to be presumed that the act has been admitted on the ground of untouchability unless the same is rebutted by the accused person.

8. In State of Karnataka V.N.K.Shanthappa (supra) the learned single Judge of the Karnataka High Court has held that when the accused and the complainant belong to same social group, falling in the list of Scheduled Castes, there cannot be either preaching and practising untouchability. The accused had abused and insulted 2 persons, namely, PWs 1 and 2 in the said case by referring to their castes. There was no dispute that the accused as well as both the witnesses, who were abused and insulted by the accused, were belonging to one and the same social group which is listed in the list of Scheduled Castes.

9. Reverting to the facts of the case in hand, as already observed above, the concurrent findings of both he Courts below are that the petitioner had abused the complainant with his caste while saying "Mangtya, Mangya" and the petitioner belongs to Gosavi caste which is other Backward Class whereas the complainant belongs to Mang Caste which is Scheduled Caste. Undisputedly there is nothing on record, neither in the finding by the Courts below nor materials in the course of evidence which can disclose that the petitioner and the complainant belong to the same social group. Once it is not disputed that the complainant belongs to a caste different from that of the petitioner, besides that the caste of the complainant being listed in the list of Scheduled Caste whereas that of the petitioner in the Other Backward Class, unless there is some material on record disclosing that the petitioner accused and the complainant belong to the same social group, it cannot be simply inferred that they belong to the same social group. It was sought to be contended that considering the fact that the caste of the petitioner is included in the OBC, it cannot be considered as a higher caste. The expression higher caste is a relative term and will depend on facts and circumstances of each case. This is also apparent from the decision of the Division Bench in the matter of Shantabai v. State of Maharashtra (supra), wherein it is clearly observed that it is quite obvious that the word "Mahardya" is insulting one and if used by a person belonging to higher caste or class, then it has a nexus with untouchability. However, no general rule can be laid down in this behalf and as already observed, to some extent, it must depend on the facts and circumstances of each case. While comparing the people from two groups or classes one from the caste which is listed as Scheduled Caste and the other from the one listed as Other Backward Class, unless proper evidence is produced on record disclosing the status of each class in the society, no conclusion can be drawn as to which of the two classes can be considered as the higher caste.

10. In the facts and circumstances of the case, therefore, once it is proved that the petitioner had insulted the complainant by calling him "Mangtya" and that the complainant is from Mang caste, which is a Scheduled Caste, bearing in mind the provisions of Section 12 of the said Act, in the absence of rebuttal of the presumption arising thereunder, there is a clear case made out of an offence punishable under Section 7(1)(d) of the said Act.

11. As regards the contention that there is no evidence to establish the caste of the complainant and that there was no mention about his caste in the F.I.R. and, therefore, the Courts below were not justified in convicting the petitioner, it is seen that fact that the complainant belongs to Mang is very clearly stated by him in his deposition before the court and that was not disputed. Mere expressing ignorance about the caste of the complainant in the statement under Section 313 of the Cr.P.C. by the accused can be of no avail to him. So also merely because the fact that the complainant had not disclosed his caste in the F.I.R. can also be of no help on conclusion of full trial and after availing full opportunity to challenge the caste of the complainant.

12. For the reasons stated above, there is no case made out for interference in the judgments passed by the Courts below. Hence the petition fails and is hereby dismissed. Rule is discharged. Bail bonds stand cancelled. The petitioner to surrender within 15 days.

Petition dismissed.