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Thursday, May 5, 2016

the de facto complainant not only professing Christianity by conversion but also his entire family members and not only by conversion and continuing but also preaching Christianity as a Pastor of the Church right from 2004 and even date, for the alleged occurrence took place in 2012 i.e., for more than eight years after conversion and while continuing and professing Christianity, he ceased to continue as member of Scheduled Caste

HONBLE Dr. JUSTICE B. SIVA SANKARA RAO      

CRIMINAL PETITION No.2036 of 2013  

07-12-2015

Chinni Appa Rao S/o.Simhachalam, 65 years and two others.Petitioners  

State of A.P., Rep. by its Public Prosecutor,  High Court of A.P.,u  Hyderabad
and another   Respondents

Counsel for Petitioner:Sri T.V.S.Prabhakar Rao

Counsel for Respondent No.1:  Public Prosecutor (A.P.)
 Counsel for Respondent No.2 : Ms.T.V.Sri Devi

<GIST:

>HEAD NOTE:  

?CITATIONS:

HONBLE Dr. JUSTICE B. SIVA SANKARA RAO      

CRIMINAL PETITION No.2036 of 2013  

ORDER :
     The petitioners are A.1 to A.3 of P.R.C.No.5 of 2012 on the file
of the II Additional Judicial First Class Magistrate, Anakapalli,
Visakhapatnam District, which is out come of protest application of
the 2nd respondent-de facto complainant, by name K.Srinivasa Rao,
and the accused persons A.1-Chinni Apparao, his wife Smt.Chinna
Appala Narsamma-A.3 and their son Chinni Appa Rao-A.2, are
neighbours to the de facto complainant.  Originally, Crime No.28 of
2011 of Munagapaka Police Station, Visakahpatnam District, was
registered for the offences punishable under Section 3(1)(x) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (for short, the Act) and Sections 342, 509 and 506 read
with 34 IPC on the report of the de facto complainant dated
28.03.2011 against five accused persons including the three quash
petitioners supra as A.1 to A.3 and one Maddala Lakshmana as A.4
and Maddala Maheswara Rao as A.5 of T.Sirsapalli Village,
Munagapaka Mandal.  The caste of A.1 to A.3 is shown as Yatha and
the caste of A.4 and A.5 is shown as Gavara and they are not the
scheduled castes or scheduled tribes and the de facto complainant
shown his profession as Church Pastor and still as S.C. Mala in the
said report.  The police after investigation filed the final report dated
31.08.2011 referring the case as mistake of fact and a notice is also
issued to the de facto complainant.  After receipt of notice, the de
facto complainant raised the protest application.  In the course of
investigation by police as many as seven witnesses were examined
including the de facto complainant as LW.1 and his wife as LW.2 and
one K.Lakshmi @ Ruthamma as LW.3, K.Veera Lakshmi @ Jyothi as      
LW.4, Ch.Lakshmi @ Santhikumari as LW.5, S.Varalakshmi @    
Saramma as LW.6 and T.Sanyasamma @ Marthamma as LW.7.  The        
very report of the de facto complainant vis--vis the statement of him
recorded during investigation clearly speaks that he is working as
Pastor of the Christ Sangam Church from the year 2004.  The de facto
complainant stated that he constructed the Church having purchased
Ac.0.09 cents from one Geddam Bavanarsu and another Ac.0.09 cents  
from one Pentuboina Govindu and others and firstly he erected the
Church in a thatched shed and later in the year 2007-08 he constructed
a slabbed Church building and he further saying there is mettu way to
go to the Church from the road.  The neighbours are picking up
quarrel with him for using the way and that is the root cause for the
present crime. The de facto complainant claims that he was abused by
caste in attracting Section 3(1)(x) of the Act.  The wife of the de facto
complainant and among others also categorically deposed about
professing Christianity by the de facto complainant.  Leave about their
statements as to the so-called abuses touching the caste name as S.C.,
the de facto complainants own statement vis--vis of his wife
statement, it is clear that they are already converted into Christianity
and running a Church and de facto complainant is serving as Pastor
professing Christianity.  It is not a disputed factum to be agitated,
much less for a fact finding but the very say in categorical words of he
is not only professing Christianity by conversion but also serving in
preaching Christianity though basically a Hindu S.C. by caste.   It is
on that ground the caste certificate issued in favour of the de facto
complainant as S.C.Mala by the Tahasildar, Anakapalli, is also
cancelled vide proceedings dated 20.09.2014 in Rc.No.292/2014/A
and that proceedings are not in dispute.  The petitioners there from
sought for quashing of the private P.R.C. pending for committal supra
besides saying the complaint engineered with false allegations to
implicate them by abusing the so-called concession as if available
under his impression, though otherwise not even available to invoke
Section 3(1)(x) of the Act as if member belongs to SC/ST.  The other
contention is there are no worth ingredients from the case propounded
by the complainant to attract Sections 506 or 509 or 342 IPC against
any of the five accused.
2.      Counter filed by the 2nd respondent-de facto complainant
speaks, from the material papers while not in dispute, mere conversion
to Christianity and/or professing Christianity no way ceases his
original birth caste and thereby the proceedings are not liable to be
quashed, for the offences taken cognizance by the learned Magistrate
and hence to dismiss the quash petition.
3.      Heard both sides at length and perused the material on record,
provisions and propositions placed reliance by both sides.
4.      Learned counsel for the petitioners placed reliance on the
following propositions.
5(i).   The Three-Judge Bench of the Apex Court in Chatturbhuj
Vithaladas Jasani v. Moreshwar Parashram and others  (three
judge Bench), addressed on the question, under Section 7(d) of the
Representation of Peoples Act, 1951 and Article 341 of the
Constitution of India, fallen for consideration as to Chatturbhuj
originally an ST by caste was disqualified for being chosen as, and for
being, a member of Christian community by conversion.
5(ii).  The other important decision placed reliance is in State of
Kerala and another v. Chandra Mohanan , another Three-Judge
Bench expression of the Apex Court.  In this case, there was a dispute
by caste regarding the status of the de facto complainant from alleged
conversion to Christianity by the very parents of the de facto
complainant, in saying whether he can continue as a member of the
scheduled caste.  In fact, basically they were tribals and the tribal after
conversion to be continued to follow their customs and traditions to
consider as still STs or not, which was the matter for consideration, in
saying particularly at para 20 with reference to paras17 to 19 that the
question as to whether he ceases to be a member thereof or not must
be determined by the appropriate court as such a question would
depend upon the facts of each case, thereby remitted to the SC/ST
Court to proceed with the trial and decide that question in accordance
with law.
5(iii). In  Ganesam v. State of Tamil Nadu and another , a single-
Judge expression of the Madras High Court says a fact finding is
required on the disputed question of fact as sought in protest petition
after the police investigation referred as mistake of fact on the caste.
6.      Here, this is not the case as it is not the mere Tribes by caste to
continue and in the very complaint of the de facto complainant not
only in his report, but also in his statement before police under
Section 161 or 162 Cr.P.C., he categorically stated he has been
professing Christanity and serving as a Pastor right from 2004 and
established a Church of his own having been constructed not only in
thatched shed and later by converted into a pucca building in 2007-08
and continuing the same even as on the date of alleged occurrence by
professing and preaching Christianity.
7.      It is important to note that in the Three-Judge Bench expression
in Chandra Mohanan (2nd supra), the earlier three-Judge Bench
judgment of the Apex Court in C.M.Arumugam v. S.Rajgopal and
others  referred, which was laid down with reference to the
Constitution (Scheduled Castes) Order, 1950 under Article 341 of the
Constitution of India.  There though the main discussion went in
particularly from para 10 was in relation to the caste and it is observed
that a caste is more a social combination than a religious group and as
pointed out in G.Michael v. S.Venkateswaran , ethics provide the
standard for social life and it is founded ultimately on religious beliefs
and doctrines, religion is inevitably mixed up with social conduct and
that is why caste has become an integral feature of Hindu society.  It
is observed and approved by saying it is no doubt true, and there we
agree with the Madras High Court in G. Michaels case that the
general rule is that conversion operates as an expulsion from the caste,
or, in other words, the convert cases to have any caste, because caste
is predominantly a feature of Hindu society and ordinarily a person
who ceases to be a Hindu would not be regarded by the other
members of the caste as belonging to their fold.  This expression
covers the earlier expressions including of Chatturbhuj (supra).
8.      Here, it is important to note that, in between there is another
Three-Judge Bench expression of the Apex Court in Soosai v. Union
of India , there referred to the Articles 341 and 14 of the Constitution
of India and the Ordinance, 1950 that was since attacked as
unconstitutional with reference to Article 14 of the Constitution of
India on the disabilities and handicaps claimed do not continue after
conversion and otherwise the order is discriminatory, the Apex Court
considered the issue in depth the basis for the ordinance, including
from the constitutional assembly debates on the question debated as to
whether a Hindu belonging to a Scheduled Caste retains his caste on
conversion to Christianity.  It is the real question formulated there
from to decide as to can it be said that in confining the declaration to
members of the Hindu and the Sikh religions, paragraph 3 of the
Constitution (Scheduled Castes) Order, 1950 discriminates against
members of the Christian religion.
9.      In answering the same, mainly at paras 7 and 8, it is observed in
Soosai as follows:
     Now it cannot be disputed that the caste system is a
feature of the Hindu social structure..Dr.J.H.Hutton, a
Census Commissioner of India, framed a list of the depressed
classes systematically, and that list was made the basis of an
order promulgated by the British Government in India called the
Government of India (Scheduled Castes) Order, 1936.  The
Constitution (Scheduled Castes) Order, 1950 is substantially
modelled on the Order of 1936.  The Order of 1936 enumerated
several castes, races or tribes in an attached Schedule and they
were, by paragraph 2 of the Order, deemed to be Scheduled
Castes.  Paragraph 3 of the same Order declared that the Indian
Christians would not be deemed to be members of the Scheduled
Castes.  During the framing of the Constitution, the Constituent
Assembly recognized that the Scheduled Castes were a
backward section of the Hindu community who were
handicapped by the practice of untouchability, and that this
evil practice of untouchability was not recognised by any other
religion and the question of any Scheduled Caste belonging to a
religion other than Hinduism did not therefore arise.  B. Shiva
Rao: the Framing of Indias Constitution:  A Study p.771.
The Sikhs however, demanded that some of their backward
sections, the Mazhabis, Ramdasias, Kabirpanthis and Sikligars,
should be included in the list of Scheduled Castes.  The demand
was accepted on the basis that these sects were originally
Scheduled Caste Hindus who had only recently been converted
to the Sikh faith and had the same disabilities as the Hindu
Scheduled Castes.  Supra p.771.  The depressed classes within
the fold of Hindu Society and the four classes of the Sikh
community were therefore made the subject of the post Indian
Constitution (Scheduled Castes) Order, 1950.  Subsequently in
the year, 1956 the Constitution (Scheduled Castes) Order, 1950
was amended and it was broadened to include all Sikh
untouchables.

10.     It is there from answered by the Apex Court in Soosai (supra)
that the Ordinance, 1950, later amended in 1956 no way discriminates
against members of Christian religion, from the Hindus conversion
into Christianity not entitled to the claim as SC and held it is not
sufficient to show that, the same caste continues even after such
conversion.
11.     The expression of the Apex Court (Three-Judge Bench) in
Soosias case, is thus crystal clear on this aspect.  In fact, the
Ordinance, 1956 is only elaborate the Sikh community and
undisputedly and admittedly, not for Christian community, in a
conclusion and in other respects it is as good as Ordinance, 1950 for
nothing repealed, more particularly, from the Sub Rule 3, which says
Notwithstanding anything contained in paragraph 2, no person who
professes a religion different from the Hindu, (the Sikh or the
Buddhist) religion shall be deemed to be a member of a Scheduled
Caste., included for or the Sikh by Act 15 of 1990 and also
substituted by Act 63 of 1956 in the First Schedule.  It was
categorically observed that the disabilities and handicaps do not
continue after conversion.  Thus once by conversion of a Scheduled
Caste Hindu into another religion, except Sikh and Buddist, ceases to
be a member of Scheduled caste, including to invoke the provisions of
the SC/ST (POA) Act, 1989.
12.     From the above propositions, needless to repeat the admitted
facts, the de facto complainant not only professing Christianity by
conversion but also his entire family members and not only by
conversion and continuing but also preaching Christianity as a Pastor
of the Church right from 2004 and even date, for the alleged
occurrence took place in 2012 i.e., for more than eight years after
conversion and while continuing and professing Christianity, he
ceased to continue as member of Scheduled Caste.  It cannot be said,
much less, not his case, of not recognized by Christianity community
as had it been how he can continue as a Pastor of the Church in
professing and propagating Christianity admittedly from the year,
2004 and even date.  Suffice to say, had the well considered Three-
Judge bench expression including on the object behind the Order,
1950 in Soosais case, brought to the notice of the subsequent Three-
Judge Bench expression in Chandra Mohanans case (2 supra), the
result could have been otherwise.  Further, the later Three-Judge
Bench expression in Chadra Mohanan simply observed that there is
disputed fact to be agitated during trial and to decide by trial Court.
13.     Having regard to the above, the de facto complainant is not
entitled to the concession of claiming as still a member of the
Scheduled Caste for the benefit of Act 33 of 1989 as Section 3 sub-
section (1) on wording is whoever not being a member of Scheduled
Caste or Scheduled Tribe, particularly sub sections 9 and 10 uses the
word a member of Scheduled Castes or a Scheduled Tribe, to mean
he must continue as on the date of alleged occurrence as a member of
the Scheduled Caste or Scheduled Tribe.  Once he is ceased to be a
member of Scheduled Caste or Scheduled Tribe by conversion into
Christianity from the words discussed particularly from the Order,
1950 amended by Act 63 of 1956 and later by Act 15 of 1990 and
covered by the Three-Judge Benchs well considered expression in
Soosais case that was not even referred to the conclusion in another
Three-Judge Bench expression in Chandra Mohanans case, the de  
facto complainant for no longer continues as a member of Scheduled
Caste from the facts supra and when not entitled to the benefit of
Section 3 of the Act, the prosecution invoking Section 3(1)(x) of the
Act is unsustainable and the cognizance taken as PR.C. is
unsustainable and liable to be quashed.
14.     Even coming to the other penal provisions by Section 149, 323,
342, 352, 506 and 509 IPC are concerned (protest petition against five
accused), prima facie there is no wrongful confinement defined under
Section 341 IPC punishable under Section 342 IPC as from the very
say in the report to the police what was alleged, is they were
obstructed by disputing the entitlement to proceed from their alleged
property to enter into the Church from the road, there is nothing to say
wrongful restraint or wrong confinement there in.  Even undisputedly
this is a matter of civil dispute seized by Civil Court.  Coming to
Section 323 or 504 or 352 IPC, this Court finds that these allegations
are included to make a claim mainly to rope under the substantial
allegation of abuse on caste name as an after thought to the civil
litigation and thereby the cognizance taken for other offences also
liable to be quashed.  It is needless to say, the paramount
consideration under Section 482 Cr.P.C. irrespective of any
allegations made to decide is, in rendering substantial justice and not
mere enforcement of law.  Having regard to the above, this Court is
constrained to quash the P.R.C. proceedings to sub-serve the ends of
justice.
15.     Having regard to the above, the Criminal Petition is allowed
and all the proceedings relating to P.R.C.No.5 of 2012 on the file of
the II Additional Judicial First Class Magistrate, Anakapalli,
Visakhapatnam District, are quashed.  The bail bonds of the accused
persons including the petitioners/A.1 to A.3, if any, shall stand
cancelled
16.     Miscellaneous petitions pending, if any, shall stand closed.
____________________________    
Dr. B. SIVA SANKARA RAO, J  
7th December 2015.

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