:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.949 OF 2003 Bharatinath Namdeo Gavand .. Applicant Versus Lakhsman Mali and Ors. .. Respondents Ms.Gauri Godse for applicant Mr.P.S.Dani for respondent Nos. 1 to 11 Mr.P.S.Hingorani, A.P.P. for State. CORAM : S.C.DHARMADHIKARI, J. DATE : 9th January 2006. ORAL JUDGEMENT:- . Rule. Respondents waive service. By consent heard forthwith. :2: :2: :2: 2. Petitioner is the original complainant. He is aggrieved and dis-satisfied by the order of the learned Adhoc Additional Sessions Judge, Raigad, Alibag dated 15th February 2003 in Criminal Revision Application No.138 of 2001. 3. The above Criminal Revision Application was preferred by the original accused (respondent Nos. 1 to 11 before me) challenging an order passed by the Chief Judicial Magistrate, Raigad, Alibaug in Summary Case No.1040 of 2001 dated 5th December 2001. 4. Chief Judicial Magistrate directed the process to be issued against accused for offences punishable under section 7 of Protection of Civil Rights Act, 1955 (hereinafter referred to as "Civil Rights Act). Process was issued upon the complaint of petitioner before me. :3: :3: :3: 5. Petitioner in the complaint alleged that he and his family members are residing at Mouje Phopheri post Narangi Taluka Alibaug, Dist.Raigad. The name of complainant’s father is Namdeo Bali Gavand. He expired on 28th July 1999. The deceased father during his life time was a tenant in respect of agricultural land situate at Mouje Chinchwadi, S.Nos. 13/2 (23/2). Accused Nos. 1 to 12 belong to Mouje Mandavkhod, Phopheri. The accused are Chief Panchas and representatives of villagers. These persons purported to sell the above mentioned agricultural lands. Therefore, the complainant filed Civil Suit No.13 of 2000 and has obtained an injunction against the villagers. 6. It is alleged that adjacent to the agricultural land referred to above is the land/property of the accused. However, they are laying claims to S.Nos.13(2) belonging to the complainant. Since, accused are claiming the :4: :4: :4: lands belonging to the complainant, they had boycotted the complainant as also his father and family members since 1985-86. The accused do not maintain any relations with the complainant regarding any matters pertaining to the village. It is further alleged that whenever the villagers celebrate Navratri, Satyanarayan Pooja, Village Jatra and other festivals or programmes, the accused do not permit the complainant and his family members to participate in the same. They are not collecting any donations from the complainant. They are not on talking terms with the complainant. Accused do not maintain any relations or enter into any transactions with them. These state of affairs have continued after the death of complainants’ father in 1999. It is lastly alleged that whenever anybody tries to maintain relations with the complainant, accused are penalising that person. On account of boycott, it is not possible for the complainant as also his sisters to solemnise :5: :5: :5: their marriage. The accused do not permit the complainant to participate in any Marriage function organised in the village. They are treated like untouchables. Complainant approached Supdt. of Police Alibaug on 7th April 2001 but no cognisance was taken of his complaint. 7. It is in these circumstances and making above allegations that the complaint was filed on 23rd July 2001, alleging commission of offences punishable under section 7 of Civil Rights Act. 8. Upon complaint being lodged, the learned Chief Judicial Magistrate recorded verification statement. The petitioner Bhartinath Gavand examined himself and reiterated the contents of the complaint. He pointed out that the boycott is still continuing. 9. The Chief Judicial Magistrate called for :6: :6: :6: a report under section 202 Cr.P.C. Learned Judge perused the report, complaint, statement of complainant and after hearing complainant’s Advocate directed that process be issued summoning the accused for offences punishable under section 7 of Civil Rights Act. 10. The respondents accused aggrieved by the above order of Chief Judicial Magistrate preferred Criminal Revision Application No.138 of 2001 on 28th December 2001, challenging issuance of process and summoning them. They contended that the complaint read as a whole does not disclose commission of any offences under Civil Rights Act. It is pointed out that the original complainant is not a person belonging to Scheduled Caste. He is, therefore, not "untouchable". It is only when a person is "untouchable" that the protection of Civil Rights Act could be claimed. Original complainant is from Agri community which falls under O.B.C. :7: :7: :7: Therefore, the Act is inapplicable. 11. In other words, argument was that Civil Rights Act was amended in 1976. Earlier, the Act was known as "Untouchability (Offences) Act, 1955". In such circumstances, only when a person belongs to the category of "untouchables" that he is entitled to invoke provisions of Civil Rights Act. Petitioner complainant being not such a person, the complaint itself was not maintainable. Consequently, it does not disclose any offence and the accused should not have been summoned. 12. This Revision Application was placed before the Additional Sessions Judge and the learned Judge has observed thus:- "6. After carefully going through the section 7 of the Act it is amply clear that mischief aimed at by this section is :8: :8: :8: about observing untouchability. There is nothing on record to show that either the accused or the complainant comes from backward community which are considered to be untouchables and that the accused observed untouchability in this respect. The case of social boycott does come within the clutches of section 7 of the Act. Under section 7 of the Act the aggrieved party must be such a person to whom the rights have accrued by reason of abolition of untouchability under Article 17 of the Indian Constitution. It is not the case of the complainant that his case falls within those qualifications which are enunciated in Section 7(a) of the Act. The case of Social boycott is not covered under Section 7 of the Act. I am fortified in this behalf by a ruling Devrajiah Vs. Padmanna A.I.R. 1961 Madras 35(39)." :9: :9: :9: Observing as above, the learned Additional Sessions Judge proceeded to allow the Revision application and quashed and set aside the order of Chief Judicial Magistrate, Raigad issuing process and summoning respondents Nos. 1 to 11 before me. Aggrieved by this judgement and order of the Revisional Court the petitioner - complainant invokes jurisdiction of this Court under Article 227 of Constitution of India read with Section 482 of Cr.P.C. 13. Ms.Godse, learned Advocate appearing for petitioner submits that the very premise upon which the Revisional Court proceeded is erroneous and legally untenable. The Act is entitled "Protection of Civil Rights Act, 1955. Although, the term "Civil Rights" as defined in the Act means any right accruing to a person by reason of abolition of untouchability by Articles 17 of the Constitution, yet, the Act itself does not :10: :10: :10: restrict its operation to persons who are "untouchables". She submits that the Act is very wide in its application. It cannot be restricted in its applicability to only members of Scheduled Castes and Scheduled Tribes. She submits that the Act contains provisions where punishment is prescribed for enforcing religious and social disabilities. She invites my attention to the explanation below section 4 of the Civil Rights Act. She also submits that punishment is prescribed for refusing to admit a person to hotels and for refusing to sell goods or render services. She submits that in this case, the offence alleged is punishable under section 7(1)(c). She submits that the explanation below Section 7 would categorically show that the Parliament/Legislature does not intend that Act should apply only to untouchables. 14. She submits that the Act is to give effect to the Constitutional mandate of :11: :11: :11: discrimination on the ground of sex, religion and place of birth. She submits that upon abolition of untouchability no discrimination or disability can be made or enforced. She submits that if the statement of objects and reasons is perused, it is clear that when the original Act was enacted, the term "Untouchability" was not defined. Thus, the protection is for civil rights of each and every person and there is no distinction made on the ground of his religion or caste. The Act is secular in its application. The Act cannot be said to be restricted in its application to only such persons, who have been historically and socially treated as untouchables. She submits that if the interpretation as placed by the learned Additional Sessions Judge is upheld, then, the very purpose of enacting a law to protect civil rights of an individual is frustrated and defeated. She submits that the narrow interpretation placed by the Additional Sessions Judge, therefore, should not be :12: :12: :12: accepted. She submits that the caste system and the disability on account of the same is covered under the Act along with further social evils. She submits that the term "Practice Untouchability in any form whatsoever" would make the Legislative intent clear. She submits that the Act of social boycotting any person is also covered by the Act and she invites my attention to explanation I appearing in section 7. She submits that the Section 7(1)(c) will have to be read with this explanation and harmoniously with other provisions. So read, it is crystal clear that the interpretation placed by the Additional Sessions Judge is wholly erroneous. 15. Alternatively, she submits that once the Constitutional mandate under Articles 15 and 16 has been applied to OBC, then the complaint was maintained. The word "Class" appearing after the words "Socially Backward" in these Articles would show that the Constitutional Guarantee of :13: :13: :13: equality extends to all backward classes. The same is not restricted to members of Scheduled Castes and Tribes. She submits that by placing a restricted meaning on the term and interfering with the order issuing process, the learned Additional Sessions Judge has committed grave error apparent on the face of record and his finding, is, therefore, capable of being interfered with by this Court. She submits that the learned Additional Sessions Judge has exceeded his jurisdiction while interfering with the order issuing process in revisional jurisdiction. She submits that it is not as if the accused will not have any remedy merely because process is issued. They would have full opportunity to place such materials on record as are permissible in law and substantiate their pleas on merits. For all these reasons, the judgement and order of the learned Additional Sessions Judge be quashed and set aside. In support of her contentions Ms.Godse relies upon :14: :14: :14: the following decisions:- i) A.I.R. 1961 Madras 35 (V 48 C 11) (Rangachari Vs. The General Manager, Southern Railway, Madras & Anr.) ii) A.I.R. 1961 Madras 42 (V 48 C 12) (Chelladorai & Ors. Varagunarama Pandiya Chhinnathambiar (died) and Ors.) iii) (2002) 8 S.C.C. 106 (N.Adithayan Vs. Travancore Devaswom Board & Ors) (iv) (2002) 8 S.C.C. 125 (Bachittar Singh and Anr. Vs. State of Punjab) (v) 1980 CRI.L.J. 518 (Kanhu Ram and Ors. Vs. Durga Ram) (vi) 1980 CRI.L.J. 521 (Food Inspector of Cannanore Municipality Vs. :15: :15: :15: C.Mohan) (vii) 1994 S.C.C. (Cri) 1762 (State of Karnataka Vs. Appa Balu Ingale & Ors). 16. Mr.Dani, learned Counsel appearing for respondent Nos. 1 to 11 original accused, on the other hand, submits that the order passed by the learned Additional Sessions Judge does not require any interference in the jurisdiction conferred on this Court by Article 227 of the Constitution of India so also section 482 of Cr.P.C. He submits that the view taken by the learned Additional Sessions Judge is based upon the materials that were placed before him and it is also consistent with the provisions of the Act. He submits that such a view is not liable to be interfered with by this Court even if it is of the opinion that a different interpretation of provision in question is possible. Thus, the :16: :16: :16: view taken by the Additional Sessions Judge, if possible in law is not liable for interference under discretionary, equitable and extra ordinary jurisdiction under Article 227 of the Constitution of India. He submits that another view being possible means the benefit must go to the accused. In other words, if this Court entertained any doubt and is of the view that another interpretation of the provision in question is possible, then, the settled principle is that the benefit must be given to the accused and not to the prosecution. Hence, the petition deserves to be dismissed. 17. Mr.Dani, further submits that the provision in the instant case is a penal provision. He submits that while interpreting a penal provision, there is no place for any implied meaning. In other words, nothing can be read by implication in a Penal Statute or provision. If the act of a person is an offence, :17: :17: :17: then alone he can be tried and punished. If the offence is spelt out clearly, then alone, a person can be charged with commission of the same. If the offence itself is not spelt out, then, by an interpretative process, this Court cannot read into a penal provision anything for creating an offence. He submits that if Ms.Godse’s interpretation is to be accepted, then, this Court will be reading into the provisions something which the Parliament itself has omitted to provide and read. 18. Lastly, Mr.Dani highlights the historical aspect of the practice of untouchability. He submits that Hindu religion has castism. The caste system was socially prevalent. This caste system brought with itself several practices which had ill-effects on the society. In other words, it brought about exploitation and harassment of those who were backward and down trodden. The evils of caste system were :18: :18: :18: destroying the social fabric. It was considered as a crime against humanity. Hence, "untouchability" which was one of the evils of caste system was abolished by the framers of Constitution. The term "untouchability" contemplates treating a group of or class of persons as out-caste that is, untouchables and not worth keeping contact with or communicating at all. It is to protect the rights of such persons who were treated as untouchables, historically and socially, that the Act has been enacted by the Parliament. Even if the title of the Act is changed, does not mean that the basic object has undergone any change. A person has to be untouchable and treated as such and only then, he is entitled to the protection of the Act. Once, it is understood that the Act has been enacted to curb and put an end to all disabilities and practices arising out of untouchability, then, the person seeking protection of the same has to be from such a :19: :19: :19: category. 19. The petitioner is not a untouchable. In other words, he does not belong to the Scheduled Caste or Scheduled Tribe. He does not belong to a group or caste which is at the receiving end. He has in his complaint maintained complete silence about his community or caste. In such circumstances, the Act itself was inapplicable and the complaint was not maintainable. Therefore, no question of the same disclosing any offence arises, in the facts of this case. Hence, no process could have been issued and the learned Additional Sessions Judge was right in the conclusion that he has reached. 20. For all these reasons Mr.Dani submits that the petition be dismissed. He relies upon the following decisions to support his submissions:- :20: :20: :20: i) 1991 Cri.L.J. 2954 (Phulsingh Vs. State of Madhya Pradesh) ii) A.I.R. 1958 Mysore 84 (V 45 C 22) (Devarajiah Vs. B.Padmanna) iii) 1979 Bom.C.R. 309 (Kumari Mangala Parashram & Ors. Vs. The State of Maharashtra) iv) 1994(2) Bom.C.R. 54 (Sugdeo Ramchandra Tayade Vs. State of Maharashtra) 21. For properly appreciating rival contentions, it would be appropriate firstly to refer to some of the allegations in the complaint and thereafter the relevant statutory provisions. 22. Admittedly, the complainant fails to disclose his community or caste. In that sense, :21: :21: :21: the complaint may not be at the instance of a scheduled caste or scheduled tribe but certainly it projects grievance of a person socially outcaste by the accused. It is well settled that a complaint must be read as a whole for the purpose of ascertaining whether it discloses commission of any criminal offence. The petitioner complainant alleges that on account of a civil suit being filed, to protect the rights in an agricultural land, the accused have boycotted the petitioner and his family. They are not entering into any transaction nor having any contact or communication with the petitioner and his family members. If anybody tries to establish contact or maintain relations, the act of such a person attracts penalty. On account of such acts, the petitioner and his family are unable to participate in social functions or events. They are unable to perform marriages. 23. The complaint projects grievance of :22: :22: :22: treating petitioner and his family members as outcasts and boycotting them completely. The question is whether such an act is punishable under the Protection of Civil Rights Act. 24. The arguments before me have proceeded on the basis that the acts of accused may amount to an offence otherwise punishable and in that sense, the complaint does disclose an offence, But, the complainant is not the one who can allege commission of the same. In other words, only such persons who are treated and recognised as untouchables can invoke the protection of Civil Rights Act. This is the relevant issue before me. 25. Whether a person not belonging to a scheduled caste or scheduled tribe is an untouchable and whether he can lodge a complaint alleging commission of offence under the Civil Rights Act, is a question that needs to be :23: :23: :23: answered. 26. The protection of Civil Rights Act prior to its amendment in 1976 was known as Untouchability (Offences) Act, 1955. It is an act to prescribe punishment for preaching and practice of untouchability, for enforcement of disability arising therefrom and for matters connected therewith. 27. The Act defines the term "Civil Rights" in Section 2(a) to mean any right accruing to a person by reason of abolition of untouchability by Article 17 of the Constitution. The term "Scheduled Caste" has been defined in Section 2(d)(b). Section 3 prescribes punishment for enforcing religious disabilities. Whoever, on the ground of untouchability prevents any person from entering any place of public worship, which is open to other persons professing the same religion or any section thereof as such :24: :24: :24: person or from worshipping or offering prayers or perform any religious service to any place of public worship or doing other acts set out in Section 3(b) is said to commit an act which is punishable with imprisonment and also with fine. 28. Section 4, prescribes punishment for enforcing social disabilities. That also opens with same words "whoever on the ground of untouchability". The explanation below Section 4, in my view, only explains that the section applies to any disability including any discrimination on the ground of untouchability. That is only to explain that this section applies when the discrimination and disabilities are alleged by the concerned person. 29. There is no explanation to Section 5 but the opening words are the same as reproduced above. Similar is the case with Section 6. Section 5 deals with admission to hospitals etc. :25: :25: :25: whereas section 6 covers refusal to sell goods or render services. Then, comes section 7 which reads thus:- "7. Punishment for other offences arising out of "untouchability":- (1) Whoever - (a) Prevents any person from exercising any right accruing to him by reason of the abolition of "untouchability" under Article 17 of the Constitution; or (b) molests, injures, annoys, obstructs or causes or attempts to cause, obstruction to any person in the exercise of any such right or molests, injures, annoys, or boycotts any person by reason of his having exercised :26: :26: :26: any such right; or (c) by words, either spoken or written, or by signs or by visible representations or otherwise, incites or encourages any person or class of persons or the public generally to practice "untouchability" in any form whatsoever; or (d) Insults or attempts to insult, on the ground of "untouchability", a member of a Scheduled Castes; Shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred :27: :27: :27: rupees. Explanation I: A person shall be deemed to boycott another person who:- (a) refuses to let to such other person or refuses to permit such other person, to use or occupy any house or land or refuses to deal with, work for hire for, or do business with, such other person or to render to him or receive from him any customary service, or refuses to do any of the said things on the terms on which such things would be commonly done in the ordinary course of business; or (b) abstains from such social, professional or business :28: :28: :28: relations as he would ordinarily maintain with such other person. Explanation II: For the purposes of clause (c), a person shall be deemed to incite or encourage the practice of "untouchability" - (a) if he, directly or indirectly preaches "untouchability" or its practice in any form; or (b) if he justifies, whether on historical, philosophical or religious grounds or on the ground of any tradition of the caste system or on any other ground, the practice of "untouchability" in any form. 1A: Whoever commits any offence :29: :29: :29: against the person or property of any individual as a reprisal or revenge for his having exercised any right accruing to him by reason of he abolition of "untouchability" under article 17 of the Constitution, shall, where the offence is punishable with imprisonment for a term exceeding two years, be punishable with imprisonment for a term which shall not be less than two years and also with fine. (2) Whoever --- (i) denies to any person belonging to his community or any section thereof any right or privilege to which such person would be entitled as a member of such community or section, or :30: :30: :30: (ii) takes any part in the ex-communication of such person on the ground that such person has refused to practice "untouchability" or that such person has done any act in furtherance of the objects of this Act, shall be punishable with imprisonment for a term of not less than one month and not more than six months, and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees. 7A. Unlawful compulsory labour when to be deemed to be a practice of untouchability:- (1) Whoever compels any person, on the ground of "untouchability" to do any scavenging or sweeping or to remove any carcass or to flay any animal :31: :31: :31: or to remove the umbilical cord to do any other job of a similar nature, shall be deemed to have enforced a disability arising out of "untouchability"; (2) Whoever is deemed under sub-section (1) to have enforced a disability arising out of "untouchability" shall be punishable with imprisonment for a term which shall not be less than three months and not more than six months and also with fine which shall not be less than one hundred rupees and not more than five hundred rupees. Explanation:- For the purposes of this section "compulsion" includes a threat of social or economic boycott. 30. A bare reading of these sections makes it clear that offences arising out of untouchability :32: :32: :32: are brought within