Rosamma Thomas v. C. I. of Police — 1999 DIGILAW 75 (KER)

Judgment :- K.A. Mohamed Shafi, J. This petition is filed by the accused in crime No. 39/95 registered by Panangad police alleging offence punishable under S.3(1)(x) of the Scheduled Castes & the Scheduled Tribes (Prevented of Atrocities) Act, 1989 to quash the F.I.R. under S.482 of the Code of Criminal Procedure. 2. The crime is registered against the petitioners on the basis of the complaint filed by the third respondent before the Circle Inspector of Police, Tripunithura and forwarded by him to the Sub Inspector of Police, Panangad for appropriate action. The allegation made against the petitioners is that the petitioners who do not belong to the scheduled caste or scheduled tribe with intent to insult and humiliate the third respondent who is a member of scheduled tribe have abused him by calling him scheduled tribe name in public view and thereby they have committed the offence under S.3(1)(x) of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act. 3. The petitioners have filed this petition to quash the F.I.R. alleging that the third respondent does not belong to scheduled tribe and that no ingredients of the offence punishable under S.3(1)(x) of the Act is alleged in the F.I. statement and that mere calling the caste name or the tribal name will not constitute an offence punishable under S.3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 4. The case of the third respondent is that he belongs to Mala Araya community which is a scheduled tribe. The petitioners vehemently contented that the third respondent is a Christian which faith does not recognise any caste system. Therefore, the third respondent does not come within the ambit of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. The third respondent contended that though the status of the members belonging to the scheduled castes is determined on the basis of their caste, the status of the members of scheduled tribe is not determined on the basis of the caste or religion they profess, but by virtue of the tribe and the region they inhabit. Therefore, according to him, the profession of faith or change of religion do not have any impact on the status of the members of scheduled tribes as in the case of the member of scheduled castes. 5. The fact that third respondent is a follower of Christianity is not in dispute. Therefore, according to him, the profession of faith or change of religion do not have any impact on the status of the members of scheduled tribes as in the case of the member of scheduled castes. 5. The fact that third respondent is a follower of Christianity is not in dispute. Therefore, the petitioners contended that though the third respondent had enjoyed the status of scheduled tribe while he was professing Hindu religion, by conversion into Christianity he lost that status and became a member of Christianity which does not recognise any caste system. In support of the contention that a person converted from Mala Araya tribe into Christianity cannot be treated as a member of schedule caste or scheduled tribe, the petitioners relied upon the decision of a single judge of this Court in Chandramohanan v. S.I. of Police, (1996 (1) KLT 76 "Under Arts.341 and 342oftlieConstitution,listofScheduledCastesandScheduledTribes are published in relation to the State of Kerala. Going by the list, i t is seen that "Mala Arayans" are treated as Scheduled Tribes. B u t Mala Arayans, who are converted into Christianity, are not treated as members of the Scheduled Caste or Scheduled Tribe." 6. In that case the victim was a born Christian since their parents who originally belonged to Mala Araya community which was considered to be a scheduled tribe in the State of Kerala embraced Christianity and she was born to them after they became Christians. So the learned Single Judge of this Court found that she can be treated only as a Christian by birth and as Christianity does not recognise any caste system or scheduled castes and scheduled tribes, they cannot be treated as members of the scheduled castes and scheduled tribes. 7. Apart from stating that Mala Arayans who converted into Christianity are not treated as members of the scheduled castes or scheduled tribes and in the list of scheduled castes and scheduled tribes published in regard to the State of Kerala under Arts.341 and 342 of the Constitution of India, though Mala Arayans are treated as scheduled tribes, Mala Arayans converted into Christianity are not treated as members of the scheduled caste or scheduled tribe. This is no further discussion with regard to that finding arrived at by this Court or the material on which that finding is founded. 8. This is no further discussion with regard to that finding arrived at by this Court or the material on which that finding is founded. 8. The learned Single Judge had relied upon another decision reported in Chinnamma v. Secretary to Government (1990 (1) KLT 62) in support of the above finding to the effect that the Christianity does not recognise scheduled caste or scheduled tribes. But in that case the petitioner claimed to be a pulaya Christian converted as a Hindu Pulaya under the auspices of Arya Samaj and claimed that she is entitled to the privileges of a member of the scheduled caste. Considering the contention of the petitioner that after conversion into Hinduism, she is entitled to the benefits of scheduled caste since she belongs to pulaya community. The learned Single Judge has observed as follows: "Petitioner alleges that she was a pulaya Christian. Nowhere in the petition has she stated that she was born a Hindu pulaya who converted into Christianity. So she is a Christian by birth. Christianity does not recognise caste discrimination.. There are no scheduled castes among Christians. Hence the petitioner's claim that she was a pulaya Christian is a misnomer. She a born Christian adopted Hinduism by undergoing a sudhikarma under the auspices of Arya Samaj. A Christian by conversion into Hinduism will not become a member of the scheduled caste community. So the conversion into Hinduism not confer on the petitioner the status of a member of the scheduled caste. Hence the claim put forward by the petitioner as a member of the Scheduled Caste community is unsustainable". It is pertinent to note that in the above decision, the Single Judge of this Court has only considered the status of a person converted from Christianity to Hinduism as a member of scheduled caste. There was no question of consideration of the stauts of the scheduled tribe involved in that case. Therefore, the above decision rendered by this Court to the effect that a Christian by conversion to Hinduism will not be conferred with the status of a member of scheduled caste has absolutely no application while considering the question whether a member of scheduled tribe by converting into Christianity will lose his status as a member of scheduled tribe. Therefore, the above decision rendered by this Court to the effect that a Christian by conversion to Hinduism will not be conferred with the status of a member of scheduled caste has absolutely no application while considering the question whether a member of scheduled tribe by converting into Christianity will lose his status as a member of scheduled tribe. Therefore, the above decision has absolutely no bearing upon this case or in the case which arose before this Court in the decision reported in 1996(1) KLT 776 with regard to the status of a member of Mala Arayan community which is a scheduled tribe on conversion to Christianity. Hence, the question as to whether the third respondent is entitled to the status of a member of a scheduled tribe has to be considered by this Court on the basis of the materials available on record, irrespective of the decision of this Court in 1996 (1) KLT 766, since that decision is not rested on any factual or legal foundation. 9. Arts.341 and 342 of the Constitution deal with Scheduled Castes and Scheduled Tribes which read as follows: "341. Scheduled Castes - (1) The President may with respect to any State after consultation with the Governor thereof, by public notification specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be scheduled castes in relation to that State. (2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under Cl. (1) any caste, race or tribe or part of or group within any caste, race or tribe but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification." "342. Scheduled Tribes: (1) The President may with respect to any State after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Cl. (2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under Cl. (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification." Clauses 24 and 25 of Art.366 of the Constitution read as follows: "24. Scheduled Castes means such castes, races or tribes or parts of or groups within such castes, races, or tribes as are deemed under Art.341 to be Scheduled Castes for the purposes of this Constitution." "25. Scheduled Tribes means such tribes or tribal communities as are deemed under Art.342 to be Scheduled Tribes for the purposes of this Constitution." 9. The fact that the stauts of scheduled caste is conferred upon the persons on the basis of the religion they profess is of no dispute. It is also clear from the description of scheduled tribes published under Art.342 of the Constitution that the scheduled tribes are constituted not on the basis of the religion but on the basis of the communities and the region or part of the country they inhabit. It is pertinent to note that people professing Hinduism, Islam and Christianity are described as Scheduled Tribes, taking into consideration of the fact that they are residing in particular part of India. As per the Constitution (Scheduled Tribes) (Union Territories) Order 1951 (C.O.33) the inhabitants of Lacadive, Minicoy and Amindivi islands who and both of whose parents were born in those islands in the Union Territory of Lakshadweep who are Muslims by religion are declared as scheduled tribes in the list of Scheduled Tribes published under Act. 342. Likewise in the north eastern States people professing Christianity in certain regions are included in the list of Scheduled Tribes in the list published under Art.342 of the Constitution with respect to those States. These facts clearly establish that the status of scheduled tribes is conferred upon the people not on the basis of the religion they profess but on the basis of the community to which they belong and the region they are inhabiting. 11. These facts clearly establish that the status of scheduled tribes is conferred upon the people not on the basis of the religion they profess but on the basis of the community to which they belong and the region they are inhabiting. 11. The Government of India has recognised the fact that scheduled tribes are not scheduled on the basis of the religion they profess and when a person belonging to a tribe, notified as scheduled tribe changes his religion will not deprive the privileges and facilities extended to him as a member of the scheduled tribe and G.O. MS. 6247 Revenue dated 19.7.1962 is issued to that effect. Accordingly, the Government of Kerala by notification has ordered that the members of scheduled tribes even after conversion to some religion will continue to enjoy the benefits admissible to scheduled tribes. These facts clearly go to show that the status of scheduled tribe is not conferred on the basis of the religion they profess and change of religion by members of scheduled tribe unlike in the case of the members of a scheduled caste will not deprive their status as the members of a scheduled tribe. It also follows that the descendants of a scheduled tribe converted to some other religion also will be entitled to the status of scheduled tribe. Therefore, the fact that the third respondent is a Christian and a descendant of a member of a scheduled tribe, Mala Araya who had converted to Christianity will not deprive his status as a member of scheduled tribe, Mala Araya in this case. Hence, the contention of the petitioners that the third respondent, being a convert to Christianity which does not recognise the caste system, is not a member of scheduled tribe and as such the provisions of Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act are not applicable to him, is not sustainable. 12. The petitioners have contended that the allegation made by the third respondent in the F.I. statement copy of which is marked as Annexure C to this petition that no ingredients of the offence punishable under S.3(1)(x) of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act disclosed is not sustainable. 12. The petitioners have contended that the allegation made by the third respondent in the F.I. statement copy of which is marked as Annexure C to this petition that no ingredients of the offence punishable under S.3(1)(x) of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act disclosed is not sustainable. Under S.3(1)(x) of the Act if a person not being a member of scheduled caste or a scheduled tribe intentionally insults or intimidates with intend to humiliate a member of a scheduled cane or a scheduled tribe in any place within public view is liable for punishment provided under that clause. It is clear from Annexure C, F.I. Statement that the third respondent has alleged that the petitioners used to abuse him and call his tribe name Mala Arayan audible to others and on 11.3.1995 by about 6 p.m.. while he was returning from his work the first petitioner called which is heard by the neighbours mentioned in the F.I. statement. Therefore, the allegations made in Annexure C, F.I. statement are sufficient, prima facie to constitute an offence punishable under S.3(1)(x) of the Act. The question whether the petitioners are guilty of the offence is a matter to be decided by the trial court after adducing evidence and that fact cannot be considered by this Court in the above petition filed under S.482 of the Code of Criminal Procedure. 13. The further contention of the petitioner that in the F.I. statement the third respondent has not stated the place from where the petitioners called the tribe name and insulted him and, therefore, the allegation made in the F.I. statement do not attract the provisions of S.3(1)(x) of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act, since it is not stated by the third respondent that he was intentionally insulted at any place within public view is also not sustainable, since it is clearly alleged that on 11.3.1995 the petitioners abused and called him by his caste name in the presence of the neighbours. The further contention of the petitioners that mere calling of a person by his caste name is not an offence under the provisions of the Act, since in common parlance people are identified by caste name without meaning any disrespect to the individual or the caste or tribe he belongs. The further contention of the petitioners that mere calling of a person by his caste name is not an offence under the provisions of the Act, since in common parlance people are identified by caste name without meaning any disrespect to the individual or the caste or tribe he belongs. The question whether the peitioners called in the tribe name of the third respondent with intent to insult him within public view is a matter to be decided after taking evidence in the matter. Therefore, this contention of the petitioners is also not sustainable. 14. It follows from what is stated above that the contention of the petitioners that the police have registered the above case against the petitioners mechanically without applying their mind merely on the ground that the F.I. statement is given by an alleged member of scheduled tribe against the petitioners who in fact does not belong to scheduled tribe ignoring the fact that the allegations are made with the deliberate intention to harass the petitioners is also not sustainable. In this case it is clear that on the basis of the clear allegations made by the third respondent that the petitioners have committed the offence under S.3(1)(x) of the Scheduled Castes & the Scheduled Tribes (Prevention of Atrocities) Act, the police has registered the above crime againssst the petitioners. Hence all the contentions raised by the petitioners in the petition with regard to the F.I.R. registered by the police against the petitioners are not sustainable. Accordingly this Cr. M.C. is dismissed.