Madras High Court
The State vs Ponnuvel Alias Manivelu on 21 January, 1983
JUDGMENT
1. This appeal is preferred against the judgment of the learned Principal Sessions Judge, Pondicherry, for enhancement of the sentence (though wrongly stated as an appeal against the judgment of acquittal in the memorandum of grounds of appeal preferred by the State).
2. The facts are few and may be stated, P.W. 1 Poongothai, is a member of the scheduled caste and is the President of the Association called Vasukai Women's Welfare Mandram. The accused, Ponnuvel alias Manivel, is a member of the Mudaliar community. On 18-1-1978. P.W. 1 along with P.W. 2, Arayee, and P.W. 3, Irusammal, was working on a field of one Muthuvenkatapathy Reddiar at Sembipalayam. While P.W. 1 and others were engaged in transplanting work, the accused and one Muthulingam were diverting water. The accused asked P.W. 1 as to what is the object of the Sangam of which she is the President. P.W. 1 replied to him that the object of the Sangam is to work for the welfare of the members of the Scheduled Castes. The accused then asked her as to why they are not honouring the Caste Hindus as before by calling them "Ande" (Master), but calling them by the name of the community to which they belong. Thereupon, the accused made reference to the caste of P.W. 1 and also the private parts of the women belonging to that community and asked her as to what her Sangam would do if he pulls her breast. Thereupon, she went to the house of the honorary President and narrated the incident. Then she took the complaint on the next morning to the police station at Korkadu. On her way, she was told that the head constable was not available and therefore she presented the complaint, Ex. P-1, after two days. The complaint was given to P.W. 6, Arumugam, a constable at the outpost at Korkadu on 22-1-1978. He made an entry in the General Diary and sent the complainant with another constable to Villianur police station. P.W. 7, Nagarathinam, S.I. of Police, C.I.D. Pondicherry, received the F.I.R. from Villianur police station and registered a case in Crime No. 19 of 1978 under S. 7(1)(d) of Projection of Civil Rights Act, 1955 against the accused. He examined witnesses. The accused is reported to have surrendered before Court.
3. The trial Magistrate found that the delay in preferring the complaint has been satisfactorily explained by P.W. 1 and that the words spoken to by the accused would certainly attract the provisions of S. 7(1)(d) of the Protection of Civil Rights Act and in the end convicted the accused of the offence under S. 7(1)(d) of the Act and sentenced him to undergo rigorous imprisonment for three months. In appeal, the learned Sessions Judge, Pondicherry, agreed with the learned trial Magistrate that an offence under S. 7(1)(d) has been made out and confirmed the conviction, but curiously modified the sentence into one of fine and sentenced the accused to a fine of Rs. 300/-, in default to undergo simple imprisonment for one month. The State has preferred this appeal for enhancement of sentence.
4. The learned counsel appearing for the respondent-accused pointed out that the State having preferred an appeal on the ground of inadequacy of sentence, the accused, while showing cause against such enhancement accused can plead for his acquittal and that therefore he may be permitted to argue on the merits of the appeal against the sentence on the ground of its inadequacy, and that the accused may plead for his acquittal also. The learned counsel therefore has a right to go into the evidence adduced in the case and plead for the acquittal of the accused.
5. The first ground of attack by the learned counsel for the accused is that the complaint itself is quite belated and the second ground is that the incident itself has not taken place in the manner alleged.
6. Adverting to the second ground first, I must point out that there is no dispute that PW 1 is a member belonging to the scheduled caste and that the accused belongs to Mudaliar community. There is clear evidence that PW 1 is the President of a Sangam for promoting the welfare of the members of the Scheduled Castes. There is also the clear evidence of PWs 2, 3 and 4 corroborating the evidence of PW 1 about the insulting words spoken to by the accused 'on the ground of untouchability.' The words spoken to by the accused have been extracted in vernacular by the trial Magistrate and they are so indecent that I do not propose once again to extract them. It is sufficient to say that the accused has made reference to the private parts of 'paraya' women and says as to what their Sangam would do if he pulls the breast of PW 1. There is clear reference to the caste of PW 1. He makes reference to the private parts of 'paraya' women and personifies the very private parts as women of 'paraya' community. The defence is one of total denial. But there is clear evidence of PWs 1, 2, 3 and 4 who speak to these vulgar words. Of course, it is true that PWs 2 to 4 belong to the same castes as that of PW 1. But the mere fact that they belong to the same caste is no ground for throwing out the prosecution case. In the circumstances of the case one can expect only the members of that community working on the land to be witnesses. PW 5, a member not belonging to the Scheduled Caste, has not supported the case of PW 1 and has been treated as hostile witness. Even eschewing his evidence, there is overwhelming evidence about the insulting words spoken by the accused touching the caste of PW 1. Therefore, there is clear evidence that PW 1 was insulted on grounds of untouchability by the accused. Both the Courts have concurrently found that the accused has insulted PW 1 on the ground of untouchability. They have believed the case of PWs 1 to 4 and have held that the accused has committed the offence punishable under Section 7(1)(d) of the Protection of Civil Rights Act, 1955. I do not see any reason to differ from them.
7. The learned counsel then invited my attention to the postscript in Ex. P. 1, the complaint. But that only gives the names of certain witnesses. It is no doubt true that it is written on the reverse of Ex. P. 1. But, as pointed out already, it contains only the names of the witnesses. PW 6 has clearly stated in his evidence that the postscript was already there when the complaint was given to him. PW 6 denied the suggestion that the postscript on the reverse of Ex. P. 1 was subsequently written. Therefore this writing on the reverse of Ex. P. 1 was already there when the complaint was presented and it does not in any way affect the truth of the prosecution case. The appellate Judge has clearly pointed out that though the witnesses were Harijan witnesses, most of them were elaborately cross-examined and that it was not shown that they were not present at the scene of occurrence or that they have invented the whole story. He has stated that "their depositions emerged as sincere and true." There is, therefore, clear evidence of the fact that PW 1 a member of the Scheduled Caste, has been insulted by the accused on the ground of untouchability.
8. The next contention of the learned counsel appearing for the respondent-accused is that there was inordinate delay in preferring the complaint and therefore much reliance, cannot be placed on it. It is no doubt true that the occurrence has taken place on 18-1-1978. The complaint was actually presented before PW 6 on 22-1-1978. It is in evidence of PW 1 that the complaint was actually presented before PW 6 on 22-1-1978. It is in evidence of PW 1 that she got the complaint drafted through the Honorary President on the date of occurrence itself and on her way to the police station at Korkadu on the next morning, she was told that the head constable was on leave and therefore she came back and Presented the comnlaint after two days. There is the evidence of PW 6 himself that the head constable was on leave on the previous day, though he is not able to remember whether he was on leave earlier to 21-1-1978. PW 1 after all is an illiterate woman though she claims to be the President of the Sangam. There is evidence of the fact that she had the complaint drafted through the Honorary President. Her explanation is that as the head constable was absent, she could not present the complaint. There is clear evidence of the fact that the head constable was absent. Both the Courts have held that the delay has been satisfactorily explained. There is no reason to disbelieve the evidence of PW 1 that she could not lodge the complaint on the date of the occurrence itself as the head constable was absent. Further, mere delay in presenting the complaint is not sufficient to throw out the prosecution case. In my view also, the delay has been satisfactorily explained by the prosecution. The conviction is, therefore, correct and is confirmed.
9. The question now is whether the Sessions Judge was wrong in sentencing the respondent-accused only with fine for the offence punishable under section 7(1)(d) of the Protection of Civil Rights Acts when that section makes it imperative that an offence for violation of S. 7(1) is punishable with imprisonment for term not less than one month and not more than six months and with fine which shall not be less than Rs. 100/- and not more than Rs. 500/-. The appellate court is well aware of this provision for it has extracted the sentence to be imposed under section 7, in its judgment. But the learned appellate Judge says that the trial Court has imposed a sentence of imprisonment for three months and that "it is harsh and excessive." The reason furnished by the learned appellate Judge can be extracted in his own words. He says :
"It appears clearly that he (accused) was not aware of the provisions of the Protection of Civil Rights Act, 1955. In this connection it may be worth examining how and when this Act came into force in this part of the country. When the untouchability Offences Act, 1955 was put on the statute book, Pondicherry was not part de jure of the Indian Union and the Act did not apply here. It was extended to this part of the country with effect from 1-10-1963 along with 160 enactments. Such a wholesale extension is not susceptible of bringing to the notice of the public such an important piece of legislation. Subsequently the Act was renamed as the Protection of Civil Rights Act and some more provisions were added by the Amendment. Act was published in English in the Gazette in April, 1977. It can hardly be said that the Act has been adequately known to the public especially when the purpose of the Act is to radically modify the attitude and behaviour of the illiterate people in the villages and to extirpate their atavistic habits," (Brackets supplied) He further says :
"Prosecution should be resorted to only when people though properly informed and alerted, persist in flouting the law. I trust that the Public Prosecutor would take up the matter before the concerned authorities for giving adequate publicity to the Act in vernacular languages so as to enable the Court to meet out deterrent punishment whenever offences are found proved.
In the result, the appeal is allowed in part, the conviction is confirmed, the sentence is modified into one of fine of Rs. 300/- failing which one month S.I." It is pointed out by learned counsel appearing for the accused that the reasons furnished by the Court are very sound and, therefore, the sentence of fine can be maintained and as the Court has construed the Act liberally, there is no need to enhance the sentence to one of imprisonment. Per contra, it is pointed out by the learned Public Prosecutor that it is the duty of the Court to give effect to the provisions of the Act. I may at once point out that when the meaning of the words in the Act is plain, it is not the duty of the Court to busy itself with the supposed intention. The learned Sessions Judge has erroneously travelled outside the four corners of the Act when there is no ambiguity at all in the language that an offence under section 7 of the Act is punishable with imprisonment of not less than one month and a fine of not less than Rupees 100/-. In my opinion, the intention of the legislature is to inflict a minimum punishment of one month in the case of an offence under section 7(1) of the Protection of Civil Rights Act. It is very difficult, if not impossible, to assume that such could not have been the intention of the legislature, for, if the intention is only to impose a sentence of fine, the Act would not have prescribed a minimum sentence of imprisonment. One of the grounds furnished by the learned Sessions Judge is that "any stringent punishment under the circumstance is prone to kindle hatred of other communities towards Harijans and defeat the very purpose of the Act." Hardship and inconvenience are no grounds for not following the Act. When the language of Section 7 is plain and unambiguous that there should be a minimum sentence of imprisonment and minimum sentence of fine, it is not open to the Sessions Judge to read into it limitations which are not there based on a priori reasoning as to the probable intention of the legislature. It may not be out of place here to quote Rowland, J. in Emperor v. Benoari (AIR 1943 FC 36 : (1943) 2 Mad LJ 207); The learned Judge says :
"It is not for us to concern ourselves with policy where the law is clear cut to give effect to its provisions however injurious we may conceive the consequences to be."
Further, when the language is plain, but admits of only one meaning, the task of Interpretation can hardly be said to arise. Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however, harsh or absurd or contrary to common sense the result may be. See Maxwell on the Interpretation of Statutes. 12th Edn. p. 29.
10. It is therefore clear that the Sessions Judge was wrong in sentencing the respondent-accused only to fine. The appeal by the State is, therefore, accepted and is allowed, the sentence of fine imposed on the respondent is set aside and instead, the respondent is sentenced to rigorous imprisonment for a period of one month and to a fine of Rs. 100/- (Rupee one hundred only), in default to undergo rigorous imprisonment for one week.
11. When I was about to pronounce the judgment, Mr. Masilamani got up and requested me to consider whether the provisions of the Probation of Offenders Act may be invoked. In my view, this is not a fit case where the benevolent provision of the Probation of Offenders Act can be invoked. Further where a minimum sentence is prescribed under the Special Act, it will not be proper to invoke the provisions of the Probation of Offenders Act.
12. Order accordingly.