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Judgment
S. Ashok Kumar, J.—This petition has been filed to issue necessary directions to the respondents-police to proceed against the accused
and investigate Crime No:234 of 2003 and file a final report.
The brief facts of the case are as follows:-
The petitioner Arumugam @ Asirvatham filed a complaint before the first respondent-police on 5.9.2003, based on which a case in Cr.No.234 of
2003 for alleged offences under Sections 3(1) of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act was registered. Since there is
no progress in the case, the petitioner filed this Crl.O.P., to direct the the respondents herein to complete the investigation and file a final report.
This Petition was filed during January, 2004. This court was informed by the Government Advocate on 24.3.2004 that the case was investigated
and found to be mistake of fact and R.C.Notice No.4/2003 was served on the complainant. The learned counsel for the petitioner submitted that
no R.C.Notice was served on the petitioner. Therefore the respondents-police was directed to produce the R.C.Notice in Court on 31.3.2004.
On 31.3.2004, the R.C.Notice was not produced by the first respondent-police. Therefore, this court directed the Registry to call for the records
in Crime NO.234 of 2003. Thereafter the R.C.Notice was served on the mid night of 1.4.2004, wherein, the petitioner was required to be present
on 2.4.2004 before the Judicial Magistrate at Tenkasi. Since there was not even breathing time, the petitioner could not on 2.4.2004, the learned
Judicial magistrate passed an order saying ""complainant called absent and the case was closed as mistake of fact"". 3rd and 4th of April, 2004 were
holidays. On 5.4.2004, the petitioner appeared before the Judicial Magistrate and filed a Petition which was returned stating that the case has
already been closed as mistake of fact based on the report of the Deputy Superintendent of Police, Alangulam.
A Perusal of the final report now produced by the learned Government Advocate would show that on facts and law, the case is referred as
mistake of fact. On the question of law, the Investigating Officer has come to the conclusion that the petitioner has converted his religion from
Hinduism to Christianity and therefore he is not a member of the Scheduled Caste. On this aspect, the learned counsel for the petitioner rightly
relied upon a judgemnt of the Hon''ble Supreme Court reported in I (2004) CCR 193 (SC) (State of Kerala Vs. Chandramohanan), wherein the
Supreme Court held as follows:-
5.The question as to whether a person is a member of the Tribe or has been accepted as such, despite his conversion to another religion, is
essentially a question of fact. A member of a Tribe despite his change in the religion may remain member of the Tribe if he continues to follow the
tribal traits and customs.
In Nityanand Sharma and another Vs. State of Bihar and others, , a Three Juge Bench of this Corut while considering the question as to whether
Lohars, who are members of the Scheduled Tribes are same ro not, held:
Despite the cultural advancement, the genetic traits pass on from generation to generation and no one could escape or forget or get them over.
The tribal customs are peculiar or each tribe or tribal communities and are still being maintained and preserved. Their cultural advancement to some
extent may have modernised and progressed by they would not be oblivious or ignorant of their customary and cultural past to establish their
affinity to the membership of a particular tribe. The tribe or tribal communities, parts of or groups thereof have their peculiar traits"".
As regards Scheduled Casts, this court in the case of Punit Rai V. Dinesh Chadhary, V (2003) SLT 257, held as follows:
In Caste and the Law in India by Justice S.B.Wad at p.30 under the heading ""Sociological Implications"", it is stated:
Traditionally, a person belongs to a caste in which he is born. The caste of the parents determines his caste but in case of reconversion a person
has the liberty to renounce his casteless status and voluntarily accept his original caste. His caste status at birth is not immutable. Change of religion
does not necessarily mean loss of caste. If the original caste does not positively disapprove, the acceptance of the caste can be presumed. Such
acceptance can also be presumed if he is elected by a majority to a reserved seat. Although it appears that some dent is made in the classical
concept of caste, it may be noticed that he principle that caste is created by birth is not dethroned. There is also a judicial recognition of caste
autonomy including the right to outcaste a person
If he is considered to be a member of the Scheduled Caste, he has to be accepted by the community. (See C.M. Arumugam Vs. S. Rajgopal
and Others, and The Principal, Guntur Medical College, Guntur and Others Vs. Y. Mohan Rao, )
A christian by birth when converted to Hinduism and married a member of the Scheduled caste was held to be belonging to her husband''s
caste on the evidence that she had not only been accepted but also welcomed by the important members including the President and Vice
President of the community. See Kailash Sonkar Vs. Smt. Maya Devi, "".
In N.E. Horo v. Smt. Jahan Ara Jaipal Singh, AIR 1973 2 SC 1840, a question arose as to whether a Ceylonese lady marrying a member of
the scheduled Tribe would become a member of that Tribe by marriage or not. This court held that only by reason of marriage a woman does not
become a member of the Tribe, but only in the event, she is accepted as such by the other members of the tribe and approved by the Panchayat,
she may be considered to be a member thereof.
In the aforementioned judgement it has been noticed that the Mundas are endogamous and intermarrige with non Mundas is normally prohibited.
In such an event, a member of the tribe may also be ex communicated.
In Oraon Religion & Customs by Sarat Chandra Roy, it is stated:
Oraon religion, like similar other religions, is primarily concerned with ancestral and certain other disembodied souls, and nature spirits and deities.
The rites employed to establish harmonious relations with them are mainly supplications and prayers, offerings and sacrifices, and the ceremonial
sharing of sacrificial food besides certain special observances and taboos.
Even if the members of the tribe belong to different religion, the rites conducted during marriage may be different but in other respects namely
inheritance, succession, etc., they may be following the same traits. Se Tribal Life of North Eastern India by S.T.Das.
In this case the matter may be considered from another angle. According to the respondents, the victim''s family were converted to Christianity
two centuries back. The mother of the victim belongs to Roman Catholic. Under the customs of Roman Catholic, Catholic women can marry only
a Catholic wherefor it is also necessary for the groom to convert himself as a Roman Catholic and such conversion has taken place and the father
of the victim is now a member of the Roman Catholic. It has been alleged that the family of the victim has ceased to be members of the notified
Tribe.
The Customary Laws of a Tribe not only govern his culture, but also succession, inheritance, marriage, worship of Gods, etc., The
characteristics of different tribes despite he fact that they have been living in the same area for a long time are different. They indisputably follow
different Gods. They have different cultures. Their customs are also different.
the learned counsel appearing on behalf of the appellant would submit that by reason of conversion, a tribe does not cease to be tribe.
According to learned counsel whereas in relation to the scheduled castes notified under the Constitution (Scheduled Castes) [(Union Territories)]
Order, 1951, to show that no person who professes a religion different from the Hindu, the Sikh or the Buddhist would be deemed to be a
member of a Scheduled Caste, nor such provision is contained in the Constitution (Scheduled Tribes) order, 1950. This submission in our opinion
cannot be accepted.
Learned counsel in this behalf has drawn our attention to the case of Kartik Oraon Vs. David Munzni and Another, and C.M. Arumugam Vs.
S. Rajgopal and Others, . In Kartik Oraon (supr) referring to Encyclopedia Britannica, Volume 22, 1961 edition,at page 465, by WHR Rivers as
a ""a social group of a simple kind, the members of which speak a common dialect, have a single Government, and act together for such common
purposes as ""warfare"". Other typical characteristics include a common name a contiguous territory, a relatively uniform culture or way of life and a
tradition of common descent. It has been notified that the term is seldom applied to societies that have achieved a strictly territorial organization in
large States but is usually confined to groups whose unity is based primarily upon a sense of extended kinship ties.
Before a person can be brought within the purview of the Constitution (Scheduled Tribes) Order, 1950, he must belong to a Tribe. A person
for the purpose of obtaining the benefits of the Presidential Order must fulfills the condition of being a member of a Tribe and continue to be a
member of the Tribe. If by reason of conversion to a different religion a long time back, he/his ancestors have not been following the customs,
rituals and other traits, which are required to be followed by a members of the Tribe and even had not been following the Customary Laws of
Succession, Inheritance, Marriage etc., he may not be accepted to be a member of a Tribe. In this case it has been contended that the family of the
victim had been converted about 200 years back and in fact the father of the victim married a woman belonging to a Roman Catholic, wherefrom
he again became a Roman Catholic. The question, therefore, which may have to be gone into is as to whether the family continued to be a member
of a Scheduled Tribe or not. Such a question can be gone into only during trial.
IN C.M.Arumugam (supra), this court held as follows:
A cate is more a social combination than a religious group. But since, as pointed ouut by Rajamannar, C.J., in G.Michael, V.
S.Venkateshwaran, ethics provides the standad for social life and it is founded ultimately on religious beliefs and doctrines, religion is inevitably
mixed up with social conduct and that is why caste has become an integral feature of Hindu society. But from that it does not necessarily follow as
an invariable rule that whenever a person renounces Hinduism and embraces another religious faith, he automatically ceases to be a member of the
caste in which he was born and to which he belonged prior to his conversion. It is doubt true, and there we agree with the Madras High Court in
G.Michael''s case that the general rule is that conversion operates as an expulsion from the caste, or, in other words, the convert ceases to have
any caste, because caste is predominantly a feature of Hindu society and ordinarily a person who ceases to be a Hindu would not be regarded by
the other members of the caste as belonging to their fold. But ultimately it must depend on the structure of the caste and its rules and regulations
whether a person would case to belong to the caste on his abjuring Hinduism. If thestructure of the cast is such that its members must necessarily
beong to Hindu religion, a member, who ceases to be a Hindu, would go out of the caste, because no non-Hindu, would go out of the caste,
because no non-Hindu can be in the caste according to its rules and regulations. Where, on the other hand, having regard to its structure, as ti has
evolved over the years, a caste may consist not only of persons professing Hindu religion but also persons professing some other religion as well,
conversion from Hinduism to that other religion may not involve loss of caste, because even persons professing such other religion can be members
of the caste. This might happen where caste is based on economic or occupational characteristics and not on religious identity or the cohesion of
the caste as a social group is so strong a that conversion into another religion does not operate to snap the bond between the covert and the social
group. This is indeed not an infrequent phenomenon in South India where, in some of the casts, even after conversion to Christianity, a person is
regarded as continuing to belong to the caste. When an argument was advanced before the Madras High Court G.Michael''s case that there were
several cases in which a member of one of the lower casts who has been converted to Christianity has continued not only to consider himself as still
being a member of the caste, but has also been considered so by other members of the caste who had not been converted. Rajamannar, C.J., who
it can safely be presumed, was familiar with the customs and practices prevalent in South India accepted the position ""that instances can be found
in which in spite of conversion, the caste distinctions might continue"", though he treated them as exceptions to the general rule.
The High Court of Andhra Pradesh, also affirmed in Kothapalli Narasayya Vs. Dammaana Jogi 30 ELR 199 (AP) that notwithstanding
conversion,the converts whether an individual or family or group of converts, may like to be governed by the law by which they were governed
before they became converts...and the community to which they originally belonged may also continue to accept them within their fold
notwithstanding conversion...
The aforementioned decision is, thus, also an authority for the proposition that upon conversion, a person may be governed by a different law
than he law governing the community to which he originally belonged but that would not meant hat notwithstanding such conversion, he may not
continue to be a member of the tribe.
Learned Counsel for the appellant has drawn our attention to the circulars issued by the State of Kerala with a viw to show that the embers of
the Tribes are being treated in the same capacity despite conversion. We are afraid that such circulars being not law within the meaning of Article
13 of the Constitution of India, would be of no assistance (see Punit Rai V. Dinesh haudhary) and Union of India (UOI) Vs. Naveen Jindal and
Another, .
We, therefore, are of the opinion that although as a broad proposition of law it cannot be accepted that merely by change of religion person
ceases to be member of scheduled tribe, but the question as to whether he ceases to be a member thereof or not must be determined by the
appropriate court as such a question would depend upon the fact of each case. In such a situation, it has to be established that a person who has
embraced another religion is still suffering fro social disability and also following the customs and tradition of the community which he earlier
belonged to. Under such circumstances, we set aside the order under appeal and remit the same to the Sessions Court, Palakkad, to proceed in
accordance with law."".
In view of the observations made in the above judgemnt by the Hon''ble Supreme Court, whether the complainant was suffering from any
liability on a communal hatred even after his conversion is a question of fact to be decided on trial. Therefore, the petitioner is given an opportunity
to file a petition before the concerned Judicial Magistrate within four weeks from the date of receipt of a copy of this order to agitate his rights on
merits and on such filing of a petition, the learned Judicial Magistrate shall pass appropriate orders on the said petition in accordance with law.
With the above observation, this Criminal Original Petition is disposed of.