Telangana High Court

Baddi Jayasijmha Reddy vs The State Of Telangana on 28 August, 2024

        THE HONOURABLE SMT. JUSTICE K. SUJANA

            CRIMINAL PETITION No.8834 OF 2024

ORDER:

This Criminal Petition is filed under Section 528 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (for short 'BNSS') by

the petitioner/accused Nos.1 to 5 to quash the proceedings

against them in Crime No.213 of 2024 on the file of Mustabad

Police Station, Rajanna Sircilla District, registered for the

offences punishable under Section 7 of Protection of Civil Rights

Act (for short 'the Act').

2. Heard Sri V.V.Ramana Rao, learned counsel for the

petitioners and Sri Arun Kumar Doddla, learned Additional

Public Prosecutor for respondent No.1 - State.

3. The brief facts of the case are that when a panchayath

was held to solve land disputes between accused No.2 and

respondent No.2, the panchayath and caste elders decided that

respondent No.2 should pay an amount of Rs.4,00,000/- to

accused No.2. However, respondent No.2 refused to pay the

same and as such, petitioners, who are panchayath and caste

elders, boycotted respondent No.2. Hence, respondent No.2 filed

a complaint in Crime No.213 of 2024 before the Mustabad Police.

4. Learned counsel for the petitioners contended that the

Act is not applicable to the petitioners herein as they are not

belonging to the untouchability community. In this regard, he

placed the order of the Bombay High Court in Bharatinath

Namdeo Gavand v. Lakshman Mali and Others 1 and prayed

this Court to allow the Criminal Petition by quashing the

proceedings against the petitioners.

5. On the other hand, learned Additional Public Prosecutor

submitted that the police, after completion of investigation in the

subject crime, filed charge sheet. Hence, he prayed this Court to

dismiss the Criminal Petition.

6. For better appreciation of the facts of the case, it is apt

to refer to Section 7 of the Act, which reads as follows:

"Section 7 of the Protection Of Civil Rights Act, 1955

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 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 the public generally to practice

Criminal Writ Petition No.949 of 2003

untouchability in any form whatsoever; [or] [Inserted by Act 106 of 1976, Section 9 (w.e.f. 19.11.1976).]

(d) [insults or attempts to insult, on the ground of untouchability, a member of a Scheduled Caste,] [Inserted by Act 106 of 1976, Section 9 (w.e.f. 19.11.1976).] [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.] [Substituted by Act 106 of 1976, Section 9, for "shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five hundred rupees, or with both" (w.e.f. 19.11.1976).] [Explanation I] [Explanation renumbered as Explanation I thereof and Explanation II inserted by Act 106 of 1976, Section 9 (w.e.f. 19.11.1976).] .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 relations as he would ordinarily maintain with such other person.

[Explanation II [Explanation renumbered as Explanation I thereof and Explanation II inserted by Act 106 of 1976, Section 9 (w.e.f. 19.11.1976).].For the purposes of clause

(c), a person shall be deemed to incite or encourage the practice of untouchability

(i) if he, directly or indirectly, preaches untouchability or its practice in any form; or

(ii) 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.] [(1-A) Whoever commits any offence 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 the 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.] [Inserted by Act 106 of 1976, Section9 (w.e.f. 19.11.1976).] (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

(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, 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.] [Substituted by Act 106 of 1976, Section 9, for "shall be punishable with imprisonment which may extend to six months, or with fine which may extend to five hundred rupees, or with both" (w.e.f. 19.11.1976).] [7-A. Unlawful compulsory labour when to be deemed to be a practice of untouchability [Inserted by Act 106 of 1976, Section 10 (w.e.f. 19.11.1976).] (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 or the remove the umbilical cord or 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.]"

7. The Bombay High Court in case of Bharatinath

Namdeo Gavand (Supra), at paragraph Nos.19, 37 and 39 held

as under:

"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.

37. In this behalf, the decision of the Supreme Court in the case of State of Karnataka v. Appa Ingale, reported in 1994 S.C.C. (Criminal) 1762 is clear. The Indian Scheduled Castes are treated as untouchables and termed as "Dalits". In paras 11 and 12 of this judgment after referring to the scope of Article 17 and its object the Honble Supreme Court has observed that the caste system among the Hindus has been structured on graded heirarchy as enumerated therein. The Supreme Court after tracing the entire historical events leading to the Constitutional provisions and protection of Dalits observed as under:

23. Thus the disabilities to which Dalits are subjected, have been outlawed and denial thereof offends the right to equality enshrined in Article 14 of the Constitution etc. These provisions also furnish evidence of sociology that Dalits have been denied access to all the public means open to the general public and of public amenities. The practice of untouchability is the root cause for social segregation, denial of opportunities for educational, economic and cultural pursuits; Dalits are subjected to severe discrimination, disabilities, liabilities, prohibitions, restrictions or conditions etc. The scheme in Part III, namely, Fundamental Rights is to remove disabilities to which the Dalits are subjected to and to provide positive rights in their favour and Part IV directive principles fasten duties on the State to rendersocio-economic and political justice and to protect them from all forms of exploitation and injustice by operation of Article 38 and Article 46 of the Constitution. In other words the Constitution charges the State to improve the quality of their life, social, economic and cultural pursuits as part of meaningful right to life guaranteed under Article 21 of the Constitution.24. The above provisions seek to

serve threefold purpose (i) outlawed the disabilities to which Dalits are subjected to; (ii) they are made an offence under the Act; and (iii) provided rights enforceable as civil rights.

Untouchability is the root cause and consequently any religious, social, customary or moral grounds to enforce untouchability no longer subsists nor is valid after January 26, 1950. Enforcement of any disability is a crime against human rights and the Constitution entails the wrongdoer with punishment. All customs, usages, practices, directly or indirectly recognising or encouraging the practice of untouchability in any form is void, being opposed to public policy. Even a contract, covenant or any private transaction tending to recognise, encourage or effectuate untouchability in any form is, therefore, void ab initio.25. The right to reservation for appointment to an office or a post under the State, has been guaranteed under Articles 16 and 14 and right to admission into an educational institution is guaranteed under Articles 15 and 29(2).

The right to residence and settlement in any part of the Country has been guaranteed under Article 19(1)(e) and right to an avocation or a profession has been guaranteed by Article 19(1)(g).

Article 335 gives them the right to an appointment to an office or post under the State. These positive rights created in favour of the Dalits, when violated or denied, they are not only enforceable in a court of law but also the infractors are liable to punishment under the Act. Take for instance the practice of bonded labour is not only an offence but its abolition is also a right enforceable under Abolition of Bonded Labour Regulation Act. Similarly, the institution of Jogins and Devadasis by virtue of its prohibition under Article 23 is no longer a valid custom. Anyperson tending to encourage it is liable to not only damages but also criminal prosecution. Similarly, denial of admission into educational institutions on the grounds of caste is an offence and also is enforceable through appropriate proceedings. To impede the exercise of the right to residing in any part of the country and settlement, on the grounds of untouchability is not only an offence but the conduct amounts to an offence under the Act. Under the welfare schemes when the houses constructed for the Dalits, Tribes and backward

classes, if they are so allotted as to perpetuate untouchability, the officer not only commits misconduct in the discharge of public duty but also by his conduct becomes liable for prosecution. Any contract or sale of the allotted lands or buildings to others is void being opposed to public policy and the purchaser acquires no right, title or interest therein. The Dalits or the State are entitled to restitution of such houses or lands allotted to them.

28. The above mandate and goal of the Constitution would be a reality if only the law is enforced strictly. The march of law should match to protect the life and there should be factual improvement in the quality of life of the Dalits; equality of opportunity and of status, justice - social, economic and political to relieve them of their travails, tortures and tribulations endured for centuries due to historical reasons. The handicaps, disabilities and sufferings, restrictions or conditions to which they are subjected need eradication and redressal under rule of law by bridging the gaps by pragmatic interpretations. The Act not only prescribes penal offences but also accords civil and social rights as part of constitutional scheme. It requires to be enforced, interpreted and the evidence evaluated on the touchstone of the constitutional creed and ethos and any negation would abrogate and abnegate the Constitutional policy.

39. It is, therefore, not possible to accept the contentions of Ms. Godse that the protection of the Civil Rights Act extends to "Other Backward Classes". Assuming that the complainant is a OBC, the Civil Rights Act cannot, prima facie, be invoked by him straightaway. It is notnecessary to enter into any larger controversy save and except noticing the distinction in the constitution between Backward Class of citizens and Scheduled Castes and Tribes (See Article 15(4) and 16(4)). The word/expression "Backward Classes" refers to Classes other than the members of Scheduled Castes and Tribes. That members of the Scheduled Castes and Tribes are referred to as the "Dalits" by the Supreme Court is amply clear. In the above circumstances, the other decisions relied upon by Ms. Godse would not be of any assistance in construing the relevant provisions."

(verbatim reproduced)

8. A conjoint reading of the above would make it abundantly

clear that the Indian Scheduled Castes are treated as

untouchables and termed as "Dalits"

9. Pertinently, in the case on hand, respondent No.2

belongs to Upper Caste Community i.e., Reddy Community and

the petitioners, who are caste elders, boycotted respondent No.2

only on the ground of settlement of share of land between

accused No.2 and respondent No.2, not on the ground of the

untouchability. Hence, considering the facts and circumstance of

the case, this Court is of the considered opinion that the alleged

offence under Section 7 of the Act is not applicable to the