Ajay Tharayil v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **FRIDAY, THE 09TH DAY OF APRIL 2021 / 19TH CHAITHRA, 1943** ## **Crl.MC.No.5918 OF 2019(H)** **CRIME NO.1058/2019 OF Kalamassery Police Station, Ernakulam** ## **PETITIONER:** **AJAY THARAYIL AGED 60 YEARS S/O.KUMARAN, THARAYIL HOUSE, AYYAPPANKAVU, KOCHI-18.** **BY ADVS. SRI.T.K.AJITHKUMAR (VALATH) SMT.T.MANASY SRI.N.N.SUGUNAPALAN (SR.)** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2 ISAC.K.J.,AGED 62 YEARS S/O.JOSEPH, KAROTTU PURAKKAL HOUSE, NEAR KADUMPIDI, KALAMBOOR, ENANALLUR P.O., MOOVATTUPUZHA, PIN-686 673.** **R1 BY SRI. SURESH BABU THOMAS, ADGP R2 BY ADV. SHRI.SABU M. PHILIP** ## **OTHER PRESENT:** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.04.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Case No. Crl MC 5918/2019** -2- ## **O R D E R** The petitioner is the sole accused in Crime No.1058 of 2019 of Kalamasserry Police Station. The above crime was registered for the offence punishable under section 3(1)(r) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 (for short 'the Act'). 2. The petitioner filed Crl.M.C. No.4525 of 2019 for quashing the first information report and further proceedings against the petitioner alleging that the offence under Section 3(1)(r) of the Act would not be attracted against the petitioner. During the pendency of the above said Crl.M.C., Annexure A4 report was filed before the **Case No. Crl MC 5918/2019** court by the investigating officer, whereby the offence under Section 3(1)(r) of the Act was substituted by the offence under Section 3(1)(u) of the Act. In view of the above change in circumstance, the learned Single Judge disposed of the above said Crl.M.C. granting liberty to the petitioner to approach this court afresh in accordance with law. Accordingly, the above Crl.M.C. has been filed praying for quashing Annexure A1 first information report and further proceedings against the petitioner including Annexure A4 report in the above said Crime. 3. Heard the learned senior counsel Sri. N.N.Sugunapalan for the petitioner, the learned Additional Director General of Prosecution, Sri Suresh Babu Thomas and the learned counsel Sri. Sabu M Philip for the 2[nd] **Case No. Crl MC 5918/2019** respondent. Perused the case diary. 4. The prosecution case can be briefly stated thus:- The petitioner is the official spokesman of a political party. He belongs to Hindu Ezhava Community. On 8.1.2019, the petitioner had made a statement in a debate in the 'Reporter Channel', which is a Television channel, that a large number of persons belonging to Mala Araya community had accepted Christianity, denouncing Lord Ayyappa. The petitioner further stated that they are utilising Mala Araya Community tag to get IAS, IPS and other Government jobs even though they had denounced Lord Ayyappa. Those who are going to the church on all Sundays are the persons who had already left Ayyappa. The petitioner further stated that they are now claiming **Case No. Crl MC 5918/2019** right over Sabarimala Temple when its wealth increased considerably. 5. The offence now alleged against the petitioner is the offence punishable under Section 3(1)(u) of the Act. Section 3(1)(u) of the Act provides that whoever, not being a member of a scheduled cast or a scheduled tribe, by words either written or spoken or by signs or by visible representation or otherwise promotes or attempts to promote feelings of enmity, hatred or ill-will against members of the Scheduled Castes or the Scheduled Tribes shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to five years and with fine. The petitioner is admittedly not a member of the Scheduled Caste or the Scheduled Tribe. **Case No. Crl MC 5918/2019** Therefore, the question to be considered is as to whether the statement allegedly made by the petitioner would answer the description of the offence under Section 3(1)(u) of the Act or not. 6. The learned counsel for the petitioner has contended that even as per the prosecution case, the petitioner had made a statement only about the members of Mala Araya community, who ceased to be Scheduled Tribes due to the following of the Christian faith after conversion, abandoning the rites and customs of Mala Araya community to which they originally belonged, denouncing Hinduism and hence, the ingredients of the offence under Section 3(1)(u) of the Act are not attracted **Case No. Crl MC 5918/2019** -7- against the petitioner. 7. The learned Additional Director General of Prosecution and the learned counsel for the 2[nd] respondent have contended that since there is no provision in the Constitution (Scheduled Tribes) Order, 1950 analogues to the provision in the Constitution (Scheduled Castes) (Union Territories) Order, 1951 that no person who professes a religion different from the Hindu, the Sikh or the Buddhist would be deemed to be a member of the Scheduled Caste, a Tribe does not cease to be a Tribe merely on the reason of conversion and consequently, the offence under Section 3(1)(u) of the Act, is attracted in this case. 8. As regards the above contention, it is to be noted ## **Case No. Crl MC 5918/2019** that a similar contention was raised before the Hon'ble Supreme Court in State of Kerala v. Chandramohanan (2004 KHC 169 : AIR 2004 SC 1672). In answer to the said contention, the Hon'ble Supreme Court held in Paragrap 14 in Chandramohanan (supra) thus:- “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, no such provision is contained in the Constitution (Scheduled Tribes) order, 1950. This submission **Case No. Crl MC 5918/2019** -9- in our opinion cannot be accepted”. In view of the above ratio, the contention in this regard can not be accepted. 9. The learned Additional Director General of Prosecution and the learned counsel for the 2[nd] respondent have drawn my attention to the circular issued by the State of Kerala and contended that since the members of the Tribes will have to be treated in the same capacity despite conversion as per the said circular, the members of Mala Araya community have to be treated as Tribes even after their conversion in to Christianity irrespective of whether they follow Christian faith or not, abandoning the rites and customs of the community to which they originally belonged and consequently, the prayer in this Crl.M.C. **Case No. Crl MC 5918/2019** -10- cannot be granted. 10. It is true that the State of Kerala had issued a circular to the effect that the members of the Tribes will have to be treated in the same capacity despite conversion. However, the Apex Court considered the above aspect in Chandramohanan (supra) and held in paragraph 19 thus:“Learned counsel for the appellant has drawn our attention to the circulars issued by the State of Kerala with a view to show that the members of the Tribes are being treated in the same capacity despite conversion. We are afraid that such circulars being not within the meaning of Article 13 of the Constitution of India, would be of no assistance”. In view of the above proposition of law, the contention on the basis of the circular issued by the State of Kerala does **Case No. Crl MC 5918/2019** -11- not hold good. 11. The learned Additional Director General of Prosecution and the learned counsel for the 2[nd] respondent have finally contended that even on assuming that the members of the Tribes will be treated in the same capacity after the conversion only if they follow the customs and rites of the original community, the question as to whether a person, who had converted into Christianity, is still following the customs and rites of the original community or not is a matter of evidence and hence the prayer in this Crl.M.C. cannot be granted. 12. The question as to whether a member of the **Case No. Crl MC 5918/2019** -12Tribe will automatically cease to be a Tribe or not after conversion in to Christianity was elaborately considered by the Three Judge Bench of the Hon'ble Supreme Court in Chandramohanan (supra) and held in Paragraph 20 thus:- “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 a 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 from social disability and also following the customs and tradition of the community, which he earlier belonged to”. **Case No. Crl MC 5918/2019** -13- 13. The above legal proposition would make it clear that a member of a Scheduled Tribe, despite change in the religion, may remain as a member of the Tribe if he continues to follow the Tribal rites and customs. The question as to whether he ceases to be a member thereof or not must be determined by the appropriate court as the said question would depend upon the fact of each case. In such a situation, it has to be established that a person, who had embraced another religion is still suffering from social disability and also following the customs and tradition of the community, which he earlier belonged to. It is not disputed that some members of Mala Araya community, who had converted into Christianity, are still following the customs and tradition of the community, to which they **Case No. Crl MC 5918/2019** -14- originally belonged to and such persons are accepted by their community as their members. It is also not disputed that some other members of Mala Araya community, who had converted into Christianity are following Christian faith, denouncing the rites and customs of the community to which they originally belonged to and such persons are not accepted by the original community as their members. Thus, there are two categories of persons after conversion. The first category of persons, after conversion into Christianity, follow the customs and tradition of the community to which they originally belonged to and such persons are accepted by their community as their members. The second category of persons, after conversion into Christianity, follow Christian faith denouncing the customs **Case No. Crl MC 5918/2019** -15- and tradition of the community to which they originally belonged to and such persons are not accepted by the original community as their members. Going by the ratio in Chandramohanan (supra), the first category of persons continue to remain as Scheduled Tribes despite conversion whereas the second category of persons cease to be Scheduled Tribes after conversion. 14. In the above backdrop, the contention of the petitioner can be considered. In connection with a statement made by the petitioner on 8.1.2019 in a debate in the 'Reporter Channel', which is a Television channel, the above crime was registered on the basis of the information furnished by the 2[nd] respondent. Therefore, the question arises for consideration is as to whether the statement made **Case No. Crl MC 5918/2019** by the petitioner contains the ingredients to constitute the offence under Section 3(1)(u) of the Act or not. 15. The statement allegedly made by the petitioner can be briefly extracted hereunder:- “A large number of persons belonging to Mala Araya community had accepted Christianity, denouncing Lord Ayyappa. They are utilising Mala Araya Community tag to get IAS, IPS and other Government jobs even though they had denounced Ayyappa. Those who are going to the church on all Sundays are the persons who had already left Ayyappa. They are now claiming right over Sabarimala Temple when its wealth increased considerably”. 16. Having gone through the above statement in **Case No. Crl MC 5918/2019** -17- its entirety, it appears that the petitioner had made statement only about those members of Mala Araya community, who had converted into Christianity and following Christian faith, abandoning the customs and tradition of the community to which they originally belonged to. There is also no allegation to the effect that the petitioner had made statement against the persons who follow the original customs and tradition after conversion. The First Information Statement or any other statement in the case diary does not contain the allegation to the effect that the persons against whom the petitioner had made statement are persons following the original customs and tradition after conversion and that they are accepted by the original community as their members. Even by going ## **Case No. Crl MC 5918/2019** -18- through the literal meaning of the statement allegedly made by the petitioner, it does not give any room for interpretation that the petitioner made statement about the persons who, even after conversion into Christianity, are following the customs and tradition of the community to which they originally belonged to. Since there are two categories of persons after conversion as already mentioned above, it is not possible to fasten criminal liability based on a very far fetch imagination that the petitioner had made statement about the persons, who even after conversion, follow the customs and tradition of the community to which they originally belonged to. 17. What is being fastened herein is criminal liability. Nobody can seek to fasten criminal liability based on a very **Case No. Crl MC 5918/2019** -19- far fetched imagination on the basis of a statement made by a person. It is settled law that no offence can be fastened on the basis of far fetched imagination. In order to fasten the criminal liability, the statement must answer the description of the offence. In this case, the petitioner had made a broad and general statement in a public debate. We cannot read in between the lines and construe an offence. The offence must be explicit going by the description of the offence. 18. As already mentioned above, going by the ratio in Chandramohanan (supra), those members of Mala Araya community, who follow Christian faith, denouncing the customs and tradition of the original community after conversion, are not accepted by the original community as ## **Case No. Crl MC 5918/2019** their members and hence such persons cease to be Scheduled Tribes after conversion. If that be so, the petitioner had made statement only about the persons who ceased to be Scheduled Tribes after their conversion into Christianity. In the said circumstances, I have absolutely no hesitation to hold that the First Information Statement and the materials collected by the prosecution did not answer the description of the offence under Section 3(1)(u) of the Act. 19. Now the question to be considered is as to whether any further material or amount of evidence can improve the prosecution case. The petitioner admittedly did not make any allegation against a particular individual. The petitioner had allegedly made statement against a **Case No. Crl MC 5918/2019** -21- group of persons, who had converted into Christianity, denouncing Ayyappa. As already mentioned, two categories of persons exist after conversion. Since two categories of persons exist after conversion, of which one category continues to be Scheduled Tribes and the other category ceases to be Scheduled Tribes, no further material or amount of evidence will facilitate the interpretation that the petitioner had made statement only about the persons who, after conversion, continue to be Scheduled Tribes, as the said interpretation is possible only by a far fetched imagination, deviating even from the literal meaning of the statement. 20. It is settled law that the power of quashing a criminal proceeding should be exercised very sparingly and **Case No. Crl MC 5918/2019** -22- with circumspection and that too in the rarest of rare cases and that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whims and caprice. 21. The Apex Court in State of Haryana and Others v. C.H.Bajanlal and Others (AIR 1992 SC 604) held that where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, the court will be justified in quashing the proceedings invoking **Case No. Crl MC 5918/2019** -23- the inherent power under Section 482 Cr.P.C. 22. Having gone through the First Information Statement and the materials available in the case diary, I am of the considered view that even if the statement allegedly made by the petitioner is taken on its face value and accepted in its entirety, it does not answer the description of the offence under Section 3(1)(u) of the Act. Therefore, it has to be held that the First Information Statement and the materials collected by the prosecution do not constitute the ingredients of the offence under Section 3(1)(u) of the Act. In the said circumstances, no purpose will be served even if the investigation is permitted to be continued. In the result, this Crl.M.C. stands allowed, quashing Annexure-A1 First Information Report and further criminal **Case No. Crl MC 5918/2019** -24- proceedings against the petitioner including Annexure-A4 report in crime No.1058/2019 of Kalamassery Police Station, in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice. sd/- ## **B. SUDHEENDRA KUMAR, JUDGE** . RK/Nkr/STK/dl **Case No. Crl MC 5918/2019** -25- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1** **THE TRUE COPY OF THE FIR NO.1058/2019 DATED 27.05.2019.** **ANNEXURE 2 THE TRUE COPY OF THE STATEMENT OF 2ND RESPONDENT IN CRIME NO.1058/2019 DATED 27.05.2019.** **ANNEXURE 3 THE TRUE COPY OF THE STATEMENT DATED 03.07.2019 IN CRL.M.C.NO.4525/2019 SUBMITTED BY THE INVESTIGATION OFFICER.** - **ANNEXURE 4 THE CERTIFIED COPY OF THE REPORT DATED 02.07.2019 SUBMITTED BY THE INVESTIGATION OFFICER IN CRIME NO.1058/2019.** - **ANNEXURE 5 THE TRUE COPY OF THE JUDGMENT DATED 18.07.2019 IN CRL.MC NO.4525/2019.** ## **RESPONDENT'S EXHIBITS:** - **ANNEXURE R2/A PRESIDENTIAL NOTIFICATION 1950 (ST LIST OF KERALA)** - **ANNEXURE R2-B TRUE COPY OF A COMMUNITY CERTIFICATE NO.41664506 DATED 20.7.2019 ISSUED BY THE TAHSILDAR, MUVATTUPUZHA** - **ANNEXURE R2-C TRUE COPY OF NO.G.O.(Md.)57/84/HWD DATED 4.8.1984** - **ANNEXURE R2-D TRUE COPY OF CLARIFICATION NO.32980/C3/75/DD DATED 2.9.1975 B GOVT. OF KERALA** **ANNEXURE R2-E TRUE COPY OF COMPLAINT TO DG OF POLICE DT.7.2.2019**