State vs Kanu Dharma Patil on 28 January, 1955

Bombay High Court
State vs Kanu Dharma Patil on 28 January, 1955
Equivalent citations: AIR 1955 Bom 390, (1955) 57 BOMLR 524, 1955 CriLJ 1333, ILR 1955 Bom 728
Author: Gajendragadkar
Bench: Gajendragadkar, Vyas


Gajendragadkar, J.

1. This is an appeal by the State against the order of acquittal passed by the learned Judicial Magistrate, First Class, Murud, in favour of the respondent Kanu Dharma Patil.

2. The case against the respondent was that he had committed an offence punishable under Section 4, Bombay Harijan Temple Entry Act, 1947, in that he had prevented Chintu Rama Ambedkar, a Harijan boy, from entering the temple of Shri Bhairi at Waral on 2-5-1953. The accused denied the charge. The learned Magistrate took the view that the charge brought against the accused had not been proved beyond a reasonable doubt.

That is why he acquitted the accused of the offence charged. It is this order of acquittal which is challenged before us by Mr. Chandrachud on behalf of the State. It is hardly necessary to begin the judgment with the statement of the law which governs our powers as a Court of appeal in dealing with orders of acquittals. It is now well settled that ordinarily this Court would not be justified in interfering with an order of acquittal unless there are substantial and compelling reasons so to do.

Mr. Desai for the accused has strongly relied on this principle and has urged that, whether or not we agree with the view taken by the learned Magistrate on appreciating, we should not interfere with his conclusion unless the test laid down by the Supreme Court in that behalf is really satisfied. Mr. Desai is undoubtedly entitled to raise this point and we would interfere with the order of acquittal in the present case only if and after we are satisfied that there are substantial and compelling reasons so to do.

3. The facts leading to the present case are very few and most of them are in the last analysis a matter of common ground. The dispute centres within very narrow limits and it is the decision of the dispute which lies within these narrow limits that will determine the fate of this appeal. Chintu is a young lad of 16 years belonging to the Harijan community.

He studies in the Sardar High School at Khetwadi in Bombay. His father is employed as a sweeper by the Bombay Municipal Corporation. On 10-4-1953, Chintu and his family had gone to Waral for change of climate as Chintu’s mother was ill. His mother improved and so naturally Chintu thought of. offering cocoanut to the goddess of the village.

It was with this object that Chintu got up early on 2-5-1953, and, along with his friend Mahadeo Goregaonkar, went to the temple of Shri Bhairi to offer one cocoanut. As the two boys reached the temple, Mahadeo had not the courage to step inside the temple. Chintu however who has been receiving education in Bombay is slightly conscious of his rights guaranteed to him by the Constitution of his country.

He, therefore, entered the temple with a cocoanut. At this time, the accused was worshipping the idol. Chintu stood near the gateway with the cocoanut in his hands. After some time, the accused turned round and saw Chintu. He enquired who Chintu was, and when he was told that he belonged to the Chambhar community, the accused at once shouted “Get out”.

Chintu was naturally frightened and so he ran, out of the temple with the cocoanut in his hands. As he stepped out from the temple, the accused followed him, stood on the steps of the temple, and cried and shouted: “Come on, run on, why are you sitting in the bouses? The Chambhar boy has polluted the temple.” Thereupon Jayawant Bala Patil came on the scene first. Then the father of the accused, Dharma Patil, also came there.

Jayawant enquired from Chintu what had happened and Chintu told him that he had gone into the temple with a cocoanut in his hand as he was in the habit of doing at Bombay and that he was asked to get out by the accused and so he ran out. Jayawant then took the cocoanut from the hand of Chintu and asked him to come in the evening.

These shortly stated are the material facts on which the accused is charged under Section 4 of the Act.

4. It is however necessary to add some more facts in order to refer to the incidents which were in a sense the result of the morning’s event. In the evening, a meeting of the Agrees of the village was called near the temple at 7-30 p.m. Chintu, his father and other Harijans of the village were asked to attend. The people in the meeting were loudly protesting against the conduct of Chintu inasmuch as he entered the temple and polluted it by his presence.

Then the meeting solemnly decided that Chintu’s father should pay Rs. 50 in order that the temple should be purified with the help of a Brahmin priest. A Brahmin priest from Borli was accordingly called and the next morning the temple was in fact purified as desired by the villagers. It would appear that on 5-5-1953, Chintu with the help of some friends made an application to the District Magistrate complaining against this incident.

As a result of the enquiry made thereafter, the accused was charged with the commission of an offence under Section 4 of the Act.

5. Now, it is true that the decision of the point which arises in this appeal substantially rests on the appreciation of oral evidence, and naturally
we would be very reluctant to interfere with the findings made by the learned Magistrate on appreciating the evidence which was adduced before him. But, in the present case, the conclusions of the learned Magistrate ‘on the few simple questions of fact which arose before him are so entirely opposed to the weight of evidence that they can be justifiably described as perverse in the technical sense of that term.

The learned Magistrate has not properly appreciated the fact that on the statement made by the accused, the controversy between the accused and Chintu and his witnesses has considerably been narrowed down, Chintu gave evidence in support of his case. He was corroborated by the evidence of Mahadeo who had accompanied him, but who stood outside the temple.

Both these witnesses refer to the two meetings that were held preparatory to the purification of the temple. What happened at those meetings is also deposed to by Chintu’s father Kama Vithu Ambetkar. Rama has sworn that on Sunday he was asked by the leaders of his village to go to a Brahmin priest of Borli and bring him to clean the temple. They asked him to bear the expenses in that behalf. He had to give ‘daxina’ to the Brahmin and to incur expenditure of Rs. 18 for materials and Rs. 10 as gifts for the two temples in the village.

6. Now, the defence of the accused was that he did not obstruct or prevent Chintu from entering the temple, His statement shows that, according to him, he merely suggested to Chintu that he should wait till he had finished his own worship, and that if he waited the accused himself would crack the cocoanut which Chintu had brought with him.

The accused then alleged that Chintu had not really come for worshipping at the temple, but he had come with a desire to start trouble and that is how he proceeded to make a false complaint and involve him in the present proceedings. The accused referred to the fact that there had been disagreement between the Agree community and the Harijans in the village in regard to a ‘bund’ which was being constructed and it was out of spite that Chintu had filed a false complaint.

Thus, it would be seen that the accused admits that Chintu had come to the temple in the early hours of the morning and had brought a cocoanut with him. The learned Magistrate might have asked himself if the accused had really offered to crack the cocoanut for Chintu, was it likely that Chintu out of an evil and malicious design would just rush out of the temple without offering the cocoanut to the deity for whom it was meant?

Insofar as the learned Magistrate was inclined to accept the theory propounded before him by the defence that the complaint of Chintu was referable to the dispute between the Agree community and the Harijan community of this village, his view is so entirely opposed to the probabilities in the case that we feel no hesitation in rejecting it. It is interesting to note that the Police Patil of the village sent a report in which he informed the head constable that
“On the 2nd May 1953 Chintu Rama Ambet-kar belonging to the Harijan community entered the temple of Shri Bhairi with a cocoanut in his hand. Because of this, the villagers got the idol and the temple restored to holiness through a Brahmin from Panchatan Borli, The expenses for ‘Shudhikaran’ and the Brahmin Dakshana were recovered from Ambetkar.”

This report was sent by the Police Patil in the ordinary course of his duties and the report corroborates the account given by Chintu, Mahadeo and Chintu’s father as to the after-effect of the incident that took place in the morning of 2-5-1953. There is, therefore, no doubt at all that as a result of the incident in the morning, the villagers assembled, solemnly decided to purify the temple and called upon ‘Chintu’s father to contribute the expenses of the said purification ceremony.

The learned Magistrate was persuaded to attach importance to the fact that at the meetings thus held the accused played no active part. But the father, of the accused played an important part and he arranged for the purification of the temple. It seems to us impossible to believe that if the accused had really adopted a rational and sensible attitude towards Chintu, the two meetings would have been held and the farce of purification would have been gone through, That again is one important aspect of the matter to which the learned Magistrate docs not appear to have devoted any attention.

7. There is another fact which the learned Magistrate has completely ignored in dealing with the part played by the accused. It seems to be established on the record that the accused is the worshipper of this temple. That is the oath of Chintu’s father and that has not been denied by the accused who has filed a written statement. In-deed the statement of the accused would show that he had offered to crack the cocoanut and that would be more consistent with the hypothesis that he is a worshipper of the temple itself.

The accused does not say, as Mr. Desai would have us believe, that he had gone to the temple as a private worshipper and that he had nothing to with the worship of the temple as such. Therefore, it can be taken as established that the accused is a worshipper of this temple. He may not be the ‘panch’ who manages the temple, but he is certainly put in charge of worshipping the idol from day to day and it was in that capacity that he was present in the temple when Chintu arrived with a cocoanut in his hand.

Therefore, the fact that the accused is not shown to have taken an active part in meeting which resolved to levy a tax on the father or Chintu for the purpose of purifying the temple is of no consequence in deciding whether he is guilty of the offence charged or not. He is charged with an offence under Section 4 not because he took an active part in calling a meeting, but because he prevented Chintu from entering the temple or obstructed or attempted to obstruct his entry in the temple.

8. The learned Magistrate also appears to have attached exaggerated importance to what he has described as improvements in the story disclosed by the complainant Chintu in his report to the Collector, Exh. 29. Having regard to the fact that Chintu belongs to a backward community, it is obvious that the allegations made in Exh. 29 can-not be safely attributed all to Chintu alone. Some friends must have collected together and they attempted to present a consistent narrative as to what happened on that day.

It would, therefore, be unreasonable to discard Chintu’s account solely, or even principally, on the ground that in his complaint to the Collector he has made some improvements. When the learned Magistrate was considering the effect of these improvements, he overlooked the fact that in substance Chintu’s case was admitted by the accused. The only point of dispute between the parties was that, whereas Chintu swore that the accused frightened him out of the temple, the accused stated that he merely asked him to wait.

The accused suggested that Chintu’s visit to the temple was a mere device intended to start trouble between the Agrees and the Harijans of the village and we have not the slightest hesitation in discarding this version as utterly fantastic. We believe the account given by Chintu as to the reason why he went to the temple that morning and we have no doubt that it was out of a feeling of gratitude to the deity that Chintu wanted to make bis modest present in the temple of Shri Bhairi because his mother had recovered from her illness.

I have already indicated that the subsequent events in the village beginning with the meetings and ending with the purification of the temple clearly show that the accused must have reported the incident to all the villagers and the father of the accused, who is one or the ‘panchas’, must therefore have taken a hand in the subsequent developments. It seems to us that the learned Magistrate . was obviously and patently in error when he was disposed to remark that Chintu did not visit the temple with the bona fide intention to take the ‘darshan’ of the deity.

It is always difficult to enter the minds of witnesses, but if the learned Magistrate attempted to enter the mind of Chintu, probably he has not been able to discover what really lay in his mind that morning. It has also been observed by the learned Magistrate that the only evidence available in support of the complainant’s story comes from Harijan witnesses and these the learned Magistrate has regarded as interested witnesses.

It is perfectly .true that in appreciating evidence. Courts always have to consider the question whether witnesses who depose to certain facts are interested or not; and if it is shown that the wit-nesses are interested, Courts naturally consider the evidence with caution. But the learned Magistrate should have realised that in the case of a preach of the Bombay Harijan Temple Entry Act, it would be idle to expect disinterested witnesses to support the complainant’s case.

The grievances from which the Harijan community has suffered arc as old as centuries and the prejudices based mostly on ignorance against the rights of the Harijans are equally ancient. In such a case, if a Harijan boy like Chintu, who is being educated, becomes conscious of his rights and seeks to assert them, normally speaking it would be very difficult to expect that non-Harijans would come and support his case. But, apart from this general consideration, at the time when this incident took place, the only persons who were present were the accused, Chintu and his friend Mahadeo who was outside.

Therefore, it would be unreasonable to discard the evidence given by Chintu and Mahadeo solely on the ground that they are interested in supporting the case against the accused. The probabilities of the case, the subsequent conduct of the villagers, the report made by the Police Patil–all indicate that the story deposed to by Chintu must be essentially and substantially true.

The learned Magistrate has lost sight of these patent and glaring features of this case. Therefore, we must hold that the account given by Chintu as to what happened in the morning of 2-5-1953, in the temple in question is true.

9. The question which then falls to be considered is whether even on tin’s account an offence under Section 4(1) can be said to have been brought home to the accused and it is this aspect of the matter which Mr. Desai for the accused has strenuously urged before us. Mr. Desai contends that even if we accept the account given by Chintu, it would not be open to us to convict his client of the offence under Section 4 because his conduct does not amount to preventing a Harijan from exercising any right conferred by this Act or obstructing or attempting to obstruct a Harijan in the exercise of any such rights.

Section 4 provides ‘inter alia’ that, whoever (i) prevents a Harijan from exercising any right conferred by this Act, or (ii) molests or obstructs or-causes or attempts to cause obstruction to a Harijan in the exercise of any such rights shall, on conviction, be punished as laid down in that section. According to Mr. Dcsai, in order that this conduct of an accused person should be held to amount to contravention of the provision of Section 4, use of mere words, however strong, would not be enough.

Mr. Desai contends that even if his client shouted loudly against Chintu calling upon him to leave the temple, that cannot be said to amount to preventing Chintu from exercising his rights under this Act. Similarly, Mr. Desai argues that the said conduct which consists of nothing more and nothing, worse than strong words uttered loudly cannot be said to constitute an obstruction or an attempt at obstruction within the meaning of Section 4(l)(ii).

We are not prepared to accept this argument. The word ‘prevent’ does not in our opinion necessarily denote the use of physical force or a threat of physical force. In fact, in the present case, Chintu was effectively prevented from worshipping at the temple because in fear and in terror he left the temple as soon as the accused shouted at him.

What constitutes the contravention of the provisions of Section 4 would naturally be a question of fact in each case. But it would be going too far, we think, if we were to accept Mr. Desai’s argument that unless the person charged under Section 4 is shown to have used physical force or threatened to use physical force, he cannot be held to be guilty under Section 4(1).

In construing the provisions of the Bombay Harijan Temple Entry Act and in administering them, we must take judicial notice of the position that unfortunately prevails in many places in the Hindu community today. A Harijan who seeks to exercise his rights is normally diffident and would not be expected to be aggressive in the assertion of those rights.

Hindus who out of ignorance seek to obstruct the exercise of these rights would normally be conscious that it would be unnecessary to use force or to threaten the use of force in order to prevent the exercise of such rights by a Harijan because they know too well the diffidence and weaknesses from which the Harijans suffer.

If it is held that, in order to bring an offender to book under Section 4, it must always and in every case be shown that the accused has used physical force or threatened the use of physical force, Section 4 may be rendered nugatory altogether. The object of this Act is obviously beneficient. The Act is intended to confer upon Harijans the lights of social equality which has been guaranteed to all the citizens of this country under the Constitution of India, and indeed it may be fairly claimed that the Act effectively sought to recognise the rights of Harijans even before the Constitution was adopted by the Constituent Assembly.

This protection might turn out to be illusory if the words “prevents” and obstructs or cause or attempts to cause obstruction” which are used in Section 4 are given the narrow construction for which Mr. Desai contends. As a matter of legal construction, it is not possible to hold that the word ‘prevent’ means only an obstruction by physical force. Stroud’s Judicial Dictionary makes this position clear. To prevent, says the author, does not mean only an obstruction by physical force, e.g., in the phrase that one party to a bargain “prevented or discharged the other from fulfilling his part thereof”, it is not intended to suggest that the prevention is a result of physical obstruction.

In some cases, prevention may take the form of physical obstruction. The gates of the temple may be closed or the entry of a Harijan in the temple may be barred by putting a physical obstruction in his way. But it is equally possible that in some cases, where Harijans who are not fully conscious of their rights and not aware of the strength of their cause seek to enter the temple in
a timid and diffident way, they might be prevented from making an entry merely by the use of words strong and loud.

In our opinion, if the use of strong and loud words actually results in the Harijan getting out of the temple without obtaining the ‘darshan’ of the deity, that itself must be regarded as constituting an offence within the meaning of Section 4. Therefore, we are satisfied that on the record as it stands it is impossible to uphold the view taken by the learned Magistrate that the charge framed against the respondent is not proved beyond a reasonable doubt.

It is a matter of utmost importance that the provisions of this Act must be strictly enforced. Undoubtedly Section 4 is a part of a penal statute and it must be construed in favour of the accused. But, even while construing the statute in favour of the accused, we cannot give to the material words used in Section 4 the very narrow and the very unreasonable construction for which Mr. Desai contends.

10. We must, therefore, allow this appeal, set aside the order of acquittal passed in favour of the respondent and convict him of the offence under Section 4 Bombay Harijan Temple Entry Act. Since this is the first offence of this accused, we think the ends of justice would he met if we direct that he should pay a fine of Rs. 50 or in default to suffer simple imprisonment for two weeks. We order accordingly.

11. Appeal allowed.

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