Chirom Nadhu Meitei vs Moirangthem Mangi Singh and Others

Manisana, J.—This petition arises from the order of the learned Sessions Judge, Manipur, dated 17.7.80 passed in Criminal Revision Case No. 41(2) of 1980 setting aside the order dated 17.3.80 of the Ld. Judicial Magistrate, Imphal West passed in Cril.(C) Case No. 7 of 1980 taking cognizance of an offence u/s 4(X) of the Untouchability (Offence) Act, 1955, in short, "Act", on complaint made by the Petitioner.

A few facts tending to this revision petition may briefly be stated. The Petitions made a complaint in Writing on 13.3.80 in the Court of the Judicial Magistrate. The Petitioner was examined on 13.3.80 u/s 200 of the Code of Criminal Procedure. One complaint witness (C.W. 1) was also examined on 17.3.80 The complaint and the statements of the Petitioner and the C.W. 1, disclose that thin was a "Marup" (Association) of all the families of Hiyangthang Village, The head of every family in the village represented the family. The "Marup" was called "Hiyangthan Khunjao Marup'''' and was existing for more than 10 years. The Petitioner and the Respondents were also members of the "Marup". The members of the "Marup" were to subscribe a sum of Rs. 2/- each on the occasion of the death of any member of a family. Respondents 5 to 7 and one Shri Angahal Singh used to collect the subscriptions Smt. Keinya Devi, wife of the Petitioner died on 25.1.80 and the ''''Latna Thouram" (Shraddh ceremony) was held on 4.2.1980, The Respondents 5 to 7 failed to collect the subscription and the Respondents 1 to 4 also failed to subscribe. It is stated the complaint that the Respondents 1 to 4 influenced the Respondents 5 to 7 not to collect the subscription from any member of the "Marup" on the pretext that the Petitioner became an untouchable person as he had professed "Meitei faith" and on the same ground the Respondents boycotted the Petitioner from 11 being a member of the ''Marup". The Respondents were the leaders of the "Marup" and on 9.3.1980 at about 6.50 p.m. a meeting was held in the Mandop of Hiyangthang Lairembi, In that meeting it was resolved that the Petitioner should be boycotted from the "Marup". The learned Magistrate took cognizance of an offence u/s 4(X) of the "Act" and issued process is under an order dated 17.3.1980.

Being aggrieved by the order of the learned Magistrate a revision petition was filed in the Court of Session, Manipur, being Criminal Revision Case No. 41(2) of 1980, Toe learned Sessions Judge, Manipur, after bearing the parties set aside the order of the learned Magistrate holding inter alia, that no offence has been made out and that the facts of the case as they are, show that the case is one of civil nature. Being aggrieved by the order of the learned Sessions Judge, the Petitioner has filed the petition in this Court u/s 397 read with Section 482, Code of Criminal Procedure questioning the judgment and order of the learned Sessions Judge.

The learned Counsel for the Petitioner submits that the Sessions Judge has no jurisdiction to set aside the order of the Magistrate on the following grounds:

(i) the learned Magistrate had given cogent reason for holding that there were sufficient grounds for proceeding against the Respondents and as such the learned Sessions Judge erred in interfering with the order of the Magistrate by examining the merit of the case;

(ii) the Respondents had absolutely no locus standi and was not entitled to be heard on the question whether process should be issued or not against them u/s 202 read with Section 204 of the Code of Criminal Procedure; and

(iii) the order passed by the Ld. Magistrate is an interlocutory order, therefore, Section 397(2), Code of Criminal Procedure bars jurisdiction of the Court of Session to entertain the petition.

The learned Counsel for the Respondents controvert the submission of the Petitioner, The counsel further submits that the allegations made in the complaint and/or the statements of the Petitioner and the witness taken at the face value make out absolutely no case against the Respondents. If the submission of the counsel for the Petitioner are considered and are accepted, the case is likely to be remanded. As such I propose to dispose of the case u/s 482 of the Code of Criminal Procedure on the ground that the Petitioner has failed to make out any offence without considering the submissions of the counsel of the Petitioner keeping la view the fact that the occurrence took place about 5 years ago in the month of January, 1980.

A short question arises if the case can be disposed of u/s 482 of the Code of Criminal Procedure as proposed. There was divergence of Judicial decisions on the question as to whether where a power is exercised u/s 397, Code of Criminal Procedure the High Court can exercise the very power u/s 482, Code of Criminal Procedure. The Section 397(2) bars the jurisdiction of the revisional court in respect of interlocutory order passed in appeal enquiry or other proceedings. The dispute has now been settled by the decision of the Supreme Court in Madhu Limaye Vs. The State of Maharashtra, In Madhu limaya, the Supreme Court, held that Section 482, Code of Criminal Procedure, had a different parameter and was a provision independent of Section 397(2), Code of Criminal Procedure and that Section 397(2), Code of Criminal Procedure applied to the exercise of revisional powers and Section 482, Code of Criminal Procedure regulated the inherent powers of the High Court to pass orders necessary to prevent abuse of the process of the Court, The Supreme Court, in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, after considering the decisions of the Supreme Court in Raj Kapoor and Others Vs. State and Others, , Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, and Dr. Sharda Prasad Sinha Vs. State of Bihar, held:

It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the pipers accompanying the same, no offence is constituted, In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers u/s 482 of the present Code.

In view of the discussion above, the High Court can exercise its powers under the Section 482 in the present case.

Coming to the present case, the learned Counsel for the Petitioner submits that the acts of the Respondents constitute an offence u/s 4(X) of the "Act". The Section 4(X) provides that whoever on the ground of "untouchability" enforces against any person any disability with regard to the observance of any social or religious custom, usage or ceremony or taking part in any religious process, shall be an offence.

The word "untouchability" has not been defined in the Constitution or the "Act", Article 17 of the Constitution provides:

"Untouchability is abolished and its practice in any form is forbidden" The enforcement of any disability arising out of ''untouchability'' shall be an offence punishable in accordance with law.

The debates of the Constituent Assembly relating to Article 17 of the Constitution show that the absence of the definition of the word "untouchability" was diseased, In the debates, Mr. Niziruddin Ahmed submitted:

The word ''untouchability'' has no legal meaning, although politically we are all well aware of it, but it may lead to a considerable amount of misunderstanding as in a legal expression, The ''untouchable'' can be applied to so many variety of things that we cannot leave it at that. It may be that a man suffering from an epidemic or contagious disease is an untouchable; then certain kinds of food are untouchable to Hindus and Muslims, According to certain ideas women of other families are untouchables. Then according to Pandit Thakurdas Bhargava, a wife below is would be untouchable to her loving husband on the ground that it would be ''marital'' misbehaviour (Constituent Assembly Debates, Vol, VII, Page 665).

A person could be untouchable by birth or could become untouchable on account of his own conduct, for example, a person born in a higher caste might be excommunicated from the society or caste in which he was born on account of his marriage to a girl of a lower caste. The term ''untouchability'' in the context of the "Act" is not to be interpreted in its literal meaning. It must be interpreted considering the social custom or usage, or religious custom or usage which was or is prevailing in this country.

In view of the discussion above and considering the scheme of the ''Act'', the word ''untouchability'' means untouchability regarded as such by any community under social custom or usage, or religious custom or usage of that community.

The next question for consideration is whether the Petitioner has made out any case against the Respondents, In the complaint, it is stated that the Respondents 1 to 4 influenced the Respondents 5 to 7 not to collect subscription from any member of the "Marup" on the pretext that the Petitioner became an untouchable person as ho had professed ''Meitei faith'' and on the same ground the Respondents boycotted the Petitioner from being the member of the ''Marup''. The Petitioner in his statement u/s 200, Code of Criminal Procedure before the Magistrate stated that in the meeting held in the Mandop of Hiyangthang Lairembi, it was decided that the subscription would not be given to the ''Meitei community''. The Petitioner farther stated that Respondents obstructed the payment of the subscription on the ground that he was a ''Meitei''. C.W. 1, in his statement before the Court, stated that in the meeting held in the Mandop the Respondents decided not to give the subscription to ''Meitei caste'' as the laid caste was/is untouchable. The Petition and the C.W. 1 had not stated in their statements before the Court about the alleged boycott at all. As regards ''untouchability'' the Petitioner had not anywhere stated in the statement.

As discussed above the meaning of the word ''untouchability'' is not to be used in its literal sense. There is no material on records to show any social custom or usage, or religious custom or usage, for regarding ''Meitei caste'' or ''Meitei religion'' as untouchable by any community. In the circumstances of the present case, the word ''untouchability'' has been loosely used by the Petitioner. Be that as it may, facts disclosed above show that the Petitioner had been expelled from the ''Marup'' by the Respondents on the ground that the Petitioner had changed his faith, by professing ''Meitei faith'', The Petitioner had ceased to be a member of the Association as he bad changed his faith or religion which was different from the faith or religion professed by the otter members of the Association. On such conversion or change of faith the right of the Petitioner to get subscription on the death of his wife was lost. The facts do not show that in consequence of the expulsion and the failure to subscribe, the Respondents excluded on disabled the Petitioner from joining social or religious ceromony even if the Respondent boycotted or expelled the Petitioner from the ''Marup'' and failed to subscribe on the ground of ''Untouchability''. The facts also do not show that on the ground of ''untouchability'' the Respondents imposed on the Petitioner any disability or prohibition from his doing something connected with or concerning about the observance of performance of any social or religious custom, usage or ceremony or taking part in any religious process. In conclusion, I do not find any material to show that the Respondents or any of them on the ground of ''untouchability'' forced against the Petitioner any disability with regard to observance of any social or religious custom, usage or ceremony or taking part in any religious process. Therefore, the allegations in the complaint and/or statements of the Petitioner and the C.W. 1 recorded taken at their face value make out absolutely no case against the Respondents.

The learned Counsel for the Petitioner further submits that the case also comes within the scope of Section 295A of I.P.C. The ingredients of the Section 295A are-

to insult or attempt to insult the religion or the religious belief of any class of citizens of India and not of an individual;

the act of insult is to be made by words either spoken or written or by signs or by visible representations or otherwise; and

the act must be deliberate and malicious intention of outraging the religious feelings of any class of citizens of India,

A close reading and analysis of the complaint, the statements of the Petitioner and the C.W. 1 before the Magistrate and facts alluded to above clearly show that the essential ingredients, of an offence u/s 295A, I.P.C. are not disclosed therein in other words, the allegations in the complaint and/or the statements of the Petitioner and the C.W. 1 as they are, no offence u/s 295A, I.P.C. against the Respondents is made out.

For the foregoing reasons, the order of the Magistrate dated 17.3.83 is set aside and complaint of the Petitioner is dismissed; and the revision petition is accordingly, dismissed.