DUNI CHAND Vs. SRINIWAS
LAWS(J&K)-1993-3-11
HIGH COURT OF JAMMU AND KASHMIR
Decided on March 05,1993

DUNI CHAND Appellant
VERSUS
SRINIWAS Respondents

JUDGEMENT

SETHI, J. - (1.)DESPITE attainment of political independence and expiry of about half a century, the poor and down -trodden masses of this country, are still under the grip and clutches of social evils of which untouchability is the greatest dragon. It cannot be denied that the untouchability is a malignantic in nature which is slowly but steadily spreading its evils in the social fabric of the Indian society. The nation as a whole acknowledged the havoc which is likely resultant of the practice of untouchability and while enacting the Constitution for themselves provided sufficient safeguards to prevent and eliminate the evil of untouchability. Article 17 of the Constitution of India unequivocally declared that, 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". Article 35 of the Constitution provides that Parliament shall have and the Legislature of the State shall not have power to make laws with respect to any of the matters which under Cl. (3) of Article 16, Cl. (3) of Article 32, Articles, 33 and 34 may be provided by law made by Parliament. Central Act No. XXII of 1955 earlier known as "Untouchability Offences Act", (hereinafter referred to as "the Act"), was enacted as far back as on 8.5.1955 which was later on amended and substituted as "Protection of Civil Rights Act", vide amending Act No. 106 of 1976, to prescribe punishment for preaching or practising of untouchability, for the enforcement of disabilities arising therefrom and for the matters connected therewith. In the statement of objects and reasons it was specifically mentioned:
"Under Article 17 of the Constitution, 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. As no Central law exists on the subject, a law has to be enacted by the Parliament as required by sub -clause (ii) of clause (a) of Article 35 of the Constitution and the Bill has been prepared in pursuance of this requirement..."

(2.)DESPITE such sincere efforts and effective legislation, the offences pertaining to untouchability, though on decrease, yet, have not been completely eliminated. The upper caste and violaters of law have been finding ways and means to perpetuate the agony and mental tenure of untouchability under various pretexts, covers and cloaks. The present case is one of such exceptions where the accused -respondents have succeeded in getting an order of acquittal despite practising untouchability under the cloak and protection of the technicalities of law, which, in fact, did not exist. The trial magistrate below while acquitting the respondents adopted an approach which was neither permissible nor can be justified under the scheme of the Act and the constitutional guarantees. A complaint under Sec. 7 of the Untouchability Offences Act of 1955, was filed against the respondents in the court of Munsiff Judicial Magistrate 1st class, Hiranagar, wherein the complainant alleged that he, on the marriage of his son, had invited all the residents of the village including the Harijans for taking meals at his residence. When Nanku and Sukhia, both Harijans, were taking meals alongwith other persons of the area, the respondents came at his residence and upon seeing the aforesaid two Harijans, got infuriated and declared that they will not take their meals because Nanku and others, who were Harijans, were taking meals in that house. The respondents turned out Nanku and Sukhia from the house of the complainant and on account of their action, the other persons who had assembled for the feast also ran away. In order to prove his case the complainant produced Kali Dass and Nanak Chand as witnesses besides getting his own statement recorded. The trial court erroneously held that the complaint under the Act could be filed only by a person belonging to the community of untouchables and by no other person. It also found, on facts, that the accused -respondents were proved to have not commuted any offence under the Act.
(3.)WE have heard learned counsel for the parties and perused the record. In order to appreciate the facts and law involved in the case it is necessary to have a resume of the evidence produced in the case. Duni Chand complainant in his statement recorded in the trial court deposed that in connection with the marriage of his son he had invited the people of the area including Harijans over a feast. The respondents on seeing Harijans taking meals abused them and refused to take meals at a place where the said Harijans were sitting. The Harijans were forced to leave the place where they were taking meals alongwith others on the invitation of the complainant. Kali Dass PW while supporting the version narrated by the complainant stated that the respondents had forced the aforesaid two Harijans to run away from the place where they were taking meals. PW Nanak Chand, also made a similar statement.
From the prosecution evidence produced in the case it is established that Duni Chand had hosted feast in connection with the marriage of his son where he had invited the accused persons alongwith some Harijans. The accused persons reached the place of feast and on seeing Harijans were infuriated. They objected to the presence of Harijans and forced them to abandon the feast. The Harijans were made to run from the place where they were taking meals alongwith about 60/70 persons, The accused persons have nowhere stated that they do not believe in the untouchability Mr. Gupta, learned counsel appearing for the respondents submitted that his clients could not be held to be guilty of any offence even if the facts as alleged by the complainant are admitted because, according to him, his clients refused to have their meals in the company of Harijans allegedly in exercise of their fundamental right of freedom of speech and expression guaranteed under Art. 19 of the Constitution. We are not impressed by the argument of learned counsel for the respondents inasmuch as it established principle of law that Article 19 of the Constitution has granted certain freedoms subject to the power of the State to impose restriction on these rights, the Untouchability Offences Act being one of such restrictions. It has not been argued before us, and presumably it cannot be, that the provisions of the Untouchability Offences Act or the Protection of Civil Rights Act, were unconstitutional allegedly being in violation of the provisions of Art. 19 of the Constitution. The aforesaid Act, in fact, has been enacted under Art. 17 by which the untouchability has been abolished and its practice in any from is forbidden. Even though the word "untouchability" has not been defined under the Act, it means that the untouchability in the Act refers to the social dis -abilities, historically imposed on certain classes of people on account of (heir birth in certain castes. No citizen, therefore, can proclaim his right under Article 19 for the purpose of defeating the provisions of the Act or to violate Article 17 of the Constitution.

Sec. 7 of the Act deals with the offences arising out of untouchability and provides: 7. "Punishment for other offences arising out of "untoucbability" (I) 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 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 sings 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 Caste."

Sec. 12 of the Act provides that where any act constituting an offence under the Act is committed in relation to a member of the scheduled caste, the Court shall presume, unless contrary is proved, that such act was committed on the ground of untouchability. It has not been denied before us that Nanku and Sukhia being Harijans were the members of the Scheduled Caste and untouchables within the meaning of Sec. 2 (6) of the old Act read with cl. (24) of Article 356 of the Constitution. The complaint had proved beyond doubt that the respondents by their words, acts and omission, had not only incited but also encouraged all persons assembled at the feast to practice untouchability vis -a -vis Harijans and willfully insulted them on the ground of untouchability. The complainant, therefore, had discharged the onus of proof as required under Sec. 7 of the Act. The accused had not only impliedly practised the untouchability but had by their actions, exhibited its practice to the knowledge and in presence of about 60/70 persons. On discharge of the initial onus of proof, the accused -respondents were presumed to be guilty of the offence unless they prove to the contrary as is the mandate of Sec. 12 of the Act. The respondents did not lead any evidence in defence but were content with only denying the allegations in their statements recorded under Sec. 342 Cr. P.C. They had, however, alleged that the case was concocted and they have been roped in on account of some alleged enmity between them and the complainant too opted not to lead any evidence to show even prima facie, the existence of such an enmity. They had referred to the pendency of some criminal case which was alleged to be the basis for initiation of criminal proceedings against them under the Act but did not care even to produce any document in proof of their submission. The accused having failed to rebut the presumption which had arisen against them, were liable to be convicted and sentenced under the act but the trial magistrate appears to have adopted an unreasonable approach while acquitting them by holding. "The accused only sought that they will not take meals as persons belonging to other community are also taking meals there. Under Article 17 right is given to untouchable but that article does not say that the persons of other community are bound to dine with untouchables. It is only banned that the other community persons should net compel any other person or incite any other person to discriminate the untouchables on the question of untouchability. It is the personal/choice of a person that he may take meals at some place and may avoid at other place ......... in my opinion this is no offence if some body calls some other person for taking meals and then he does not take it. It cannot be said that he committed some offence. First person may sue for damages for the loss he suffered, but it is not a criminal act".



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