148S.C. 8: SJ. (Plevention of Atrocities) Act, 1989 [See 3 Sy.

50

A village pathway is different from public pa thway and in the case of a Village pathway, the villagers
of a particular village should use the same as villagers but not as general public‘. .

Even a customary right of way comes within the meaning of the word 'encumbrance" and hence
such right also is destroyed when the land is

acquired by Governmentz.

49. S.3(1)(xv) of the Act-S. 3(1 )(xv) of the Act says that whoever not being a memberof a Scheduled
Caste or a Scheduled Tribe forces of causes a member of a Scheduled caste or a Scheduled Tribe to
leave his house, village or other planeof residence shall be punishable with imprisonment for a term
which shall not be 153 than six months but which may extend to five years and with fine.

50. Residence:Residence is not identical with ownership and it means where a person eats, drinks
and sleeps or where his family his servants eat, drinks and sleep’. Residence for the purpose of
determining the ”Cause of action" is the residence at the time of the commencement of the suit. In
Premnath vs. Mls Kaudoomal Rikhirlam‘ His Lordship' Tekhchand, I. held on this aspect.

'A.W.5 Prem Nath Appellant has no where stated that the money was payable to him from the
respondents at Lahore, or that the contract was entered intobetweenthe parties there under Sec.20
of the Code of Civil Procedure, suits, other than those mentioned in the preceding sections, are to be
instituted in a court within the local limits of whose jurisdiction the defendant, or each of the
defendants where there are more than one, at the time of the commencement of the suit, actually
and volunatrily resides, or carries on business etc.

Both under Cls. (a) and (b) of Scc.20 the residence of the defendants for pm'posesofdetermining
cause of action is tobe ”at the time of the commencement of suit“. In this mse the petition was
made on 9-12-1952, when admittedly the defendants were residing in Gurdaspur. From the
Statement of Rikhi Ram R.Wl the proprietor of the respondent concern Shri Bhagirath Das has tried
to argue, that the Head Office of the respondent concern was in Lahore and only a branch in
Curdaspur. A careful perusal of his statement does not really support theoontention of the learned
counsel for the appellant. No doubt he did state in his cross examination that the Head ofhce of the
respondent concern was at lahore and there was a branch of Curdaspur. He then stated that the
business in Lahore was transacted in the name of Basantha Mal Ram La], and

business was closed in Sambat 2000 (1943 AD). From the above statement, ’ amnot beconduded in
the language of Séc20 that the defendants, at the time of the mnencement of the suit, carried on
business at Lahore Mr. Bhagirath us then urges that the payment by the petitioner was by means of
hundis

. AIR 1938Cal2m Hansdhan Devvs.Radhika Prasad Pandit. 1935 AH. 895 Managing Committee
George High School vs. Abdul Karim Khan. 1 Cal. 570 Bhagar Singh vs. Dewan 38 Cal 384 Kumudnath
vs. Iatindranath.

Punjab361¢t32t

1568.C. It 8.1'. (Prevention of Atrocities) Act, 1989 (Sec. 3 . m

51. Section 3(2)“) of the Act: Section 3(2)(1)oi the Act says that whoevq, not being a member of e
Scheduled Cute or I Scheduled Tl'ibO

Gives or fabricate: false evidence intending there to cauaepr knowing it to be likely that he will
thereby cause, any'member o a Scheduled Cute or . Scheduled Tribe to be convicted of an offence
which in capital by the law forth. time being in force shail be punished with imprisonment for life
and with ting; end it an innocent member of 0 Scheduled Caste or a Scheduled 'i'tibe b. convicted in
consequence of such false or fabricated evidence, the person who given or fabricate: such false
evidence, shall be punished with death.

52. Section 3(2)(ii) of the Actr-Scction 3(2)(ii)of the Actaays that whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe, givee or fabricate: false evidence intending thereby to cause,
01' knowing it to be likely that he will thereby cause, any member of a Scheduled Caste or a
Scheduled Tribe to be convicted of an'offence which is not capital but punishable with imprisonment
for a term of seven years of upwards, shall be punishable with imprisonment for a term which shall
not be less than Six months but which may extend to seven years or upwards and with fine.

53. Gives or fabricates false evidencezSection 191 I.P.C. dealing with giving of false evidence reads:
Where a complaint is made by a court it is not necessary for a Magistrate to
examine the complainant‘ where there is glaring inconsistency between the ocular and medical
evidence it will be unsafe to maintain the conviction’.

191. Giving false evidence:-Whoever, being legally bound by an oath or by an express provision of
law to state the truth, or being bound by law to make a declaration upon any subject, makes any
statement which is false, and which he either knows or believes to be false or does not believe to be
true, is said to give false evidence.

Explanation 1:A Statement is within the meaning of this section, whether it is made verbally or
otherwise. Ianah'on 2:A false statement as to the belief of the person attesting

is within the meaning of this section, and a person may be guilty of giving false evidence by stating
that he believes a thing which he does not believe, as well

as he by stating that he knows a thing which he does not know. Illustrations . (a) A in support of a
just claim which B has against 2 for one thousand rupees, falsey swears on a trial that he heard 2
admit the justice of 8’s Claim. A has given false evidence. (b) A being bouitd by an oath to state the
tru th, states that he believes

a certain signature to be the handwriting of 2, when he does not believe it to be the handwriting of
2. Here A states that which he

knows to be false, and therefore gives false evidence.

I. 1959 CLLJ. 1124 Ranilt Singh vs. State of Pepsu. 2. AIR 1981 SC. 1578 Mohat Singh vs. State of
Punjab.

c. 3 5y. Offences of Atrocities 157

5:

(c) A knowing the general character of 2’s handwriting, states that he believes a certain signature to
be the handwriting of Z; A in good faith believing it to be so. Here A’s statement is merely as to his
belief, and is true as to his belief, and therefore, although the signature may not be the handwriting
of Z. A has not given false

evidence. (d) A being bound by an oath to state the truth, states that he knows that
2 was at a particxiiar place on a particular day, not knowing any

thing upon the subject. A gives false evidence whether 2 was at the place on the day named or not.

(e) A an interpreter or translator gives or certifiesas a true interpretation or transla tion of a

statement or document which he is bound by oath to interpret or translate truly, that which is not
and which he doesnot believe to be a true interpretation or translation. A has given false evidence.

Section 192 I.P.C. dealing with fabricating false evidence reads.

192. Fabricating false evidence»; Whoever causes any circumstance to exist or makes any false entry
in any book or record, or makes any document containing a false statement intending that such
circumstance, false entry or false statement may appear in evidence ‘in a judicial proceeding, or in a
proceeding taken by law before a public servant as such, or before an arbitrator and that such
circumstance, false entry or false statement, so appearing in evidence, may cause any person who in
such proceeding is to form an opinion

upon the evidence, to entertain an erroneous opinion touching any point material to the result of
such proceeding, is said fabricate to false evidence."

Illustrations

(a) A puts jewels into a box belonging to Z, with the intention that they may be found in that box,
and that this circumstance may cause 2 to be convicted of theft. A has fabricated false evidence.

0)) A makes a false entry in his shop book for the purpose of using it

as corroborative evidence in a court of justice. A has fabricated false evidence.

(C) A with the intention of causing Z to beconvicted of a Criminal conspiracy, writesaletter in

imitation of 2's handwriting purporting to be addressed to an accomplice in such criminal conspiracy.
and
puts the letter in a place which he knows that the officers of the police are likely to search. A has
fabricated false evidence.

3 of the Indian Evidence Act 1872 dealing with ”Evidence " reads: ce"“Evidence” means and includes

nun“.

2. Public ServanbSection211.P.C. defines ”Public Servant” as follows. ”Public Servant”:The word

”Public Seryant” denote a person falling under

any of the descriptions hereinafter following namely

I-‘irst(Omitted by the AD, 1950) Second-Every Commissioned Officer in the Military, Naval or Air
Forces

of India.. (Third-Every judge including any person empowered by law to discharge whether by
himself or as a member of a any body of persons, any adjudicatory functions:)1

Fourth-Every officer of a court of justice2 (including a liquidator, receiver or Commissioner) whose

duty it is, as such officer, to investigate or report on any matter of law or fact, or to make,
authenticate, or keep any document, or to

take charge or dispose of any property, or to execute any judicial process or to administer any oath,
or to interpret, or to preserve order in the court, and every

person specially authorised by a court of justice to perform any of such duties Fifth-Every juryman,
assessor, or member of a panchayat assisting a court of justice or public servant: SixthEvery
arbitrator or other person to whom any cause or matter has been referred for decision or report by
any court of justice, or by any other

competent public authority: Seventh-Every person who holds any office by virtue of which he is

empowered to place or keep any person in confinement; Eighth-Every officer of ( the Government)3
whose duty it is as such officer; to prevent offence, to give information of offence, to bring offenders
to justice
or to protect the public health, safety or convenience;

l, Subs. by Act 40 of 1964 Sec. 2 for the former clause.

2. Ins. byAd400f1964$ecz 3. Subs. fat the Crown by ALO 1950, dated the 26th January, 1950.

Sec! 5y. 2.] Offences of Atrocities {61 E

Nintb-Every officer whose duty it is as such officer to take, receive, keep or expend any property on
behalf of (the Government)‘ or to make any survey amt or contract on behalf of (the Government)‘
or to execute any revenue

or to investigate or to report on any matter affecting the pecuniary

proces, inmts of ( the Government)I or to make, an thenticate or keep any document relating to the
pecuniary interests of (the Govemment)‘ or to prevent the infraction of any law of the protection of
the pecuniary interests of (the Gommmt)‘;

Tenth-Every officer whose duty it is, as such officer, to take, receive, keep

or expend any property to make any survey on: assessment or to levy any rate or tax for any secular
common purpose of any village, town or district, or to make, athenticate or keep any document for
the ascertaining of the rights of the

pe0ple of any village, town or district; Eleventh-J-Zvery person who holds any office in virtue of
which he is empowered to prepare, publish, maintain or revise an electoral roll or to

conduct an election or part of an election;

Twelfth-Every person2 (a) in the service or pay of the Government or remunerated by fees or

commission for the performance of any public duty by the

Government; (b) in the service or pay of a local authori ty, a corporation established by or under a
Central, Provincial or State Act, or a Government
company as defined in Section 617 of the Companies Act, 1956 (1 of

1956). Illustration

A Municipal Commissioner is a Public Servant. Explanation 1:Persons falling under any of the above
deseription are

public servants, whether appointed by the Government or not. Explanation 2:Wherever the words
’I’ublic Servant’ occur, they shall be

understood of every person who in actual possession of the situation of a public servant, whatever
legal defect there may be in his right to hold that situation.

Explanation 3:--The word ”election” denotes an election for the purpose

of dating members of any legislative, municipal or other public authority, of whatever chatactet the
method of selection to which is by, or under, any law

pumibed as by election.

An W of an Insurance company is not a public servant’. The officers within SecZQO) of Maharashtra
Cooperative Societies Act are deemed

lat themen by ALO 1950, dated the 26th January, 195a

WM”dI964.Sec.2fathefoi-merdause. Grim. ImmohnivaStateSeelm Cr.LJ.N0.CS(Mad) Statevssnvaaan

162 S.C. & S.T. (Prevention of Atrocities) Act, 1989 (See. 4 Sy. 2

to be public servants in view of the amended 5.161 of the Act'. Secretary of a cooperative society is
not a public servant within cl. (10) or Cl. 102) of 8.21 l.P.C.2 An employee of Indian Airlines
Corporation is a public servant’. A prosecuting ticket examiner is a public servant‘. The Chief
Executive Officer, A.P.S.R.T.C. is a public servant". In Brij Behari vs. Emperor‘. His Lordship Dhavle, I
observed.

In the present case there was an express appointment of the petitioner made in writing by the
chairman in June or July at a time when the municipality was only divided into five wards. After the
division of the municipality into sixteen wards became necessary to prepare the electoral rolls of
persons entitled to be registred as voters in each of these new wards, but the chairman made no
new appointment for this work. The petitioner, however, acted as if he had been appointed to do
this work and electoral rolls, two of which were entirely wri tten by him were accepted by the
chairman when delivered to him on 11th January by a locum tenens during the absence of
the‘petitioner on short leave, Rule 13(1) of the Election Rules does not seem to be intended to deal
with the manner of appointment at all and only lays down which authority is to appoint a person to
prepare the rolls. The learned Sessions Judge took the rule to require an express appointment, but I
find it difficult to read this into the rule, and the learned judge himself saw much force in the
prosecution contention that the very moment the appellant undertook the preparation of the
electoral rolls, either under a verbal order of the chairman or purporting to act under the powers
given to him by the earlier order of appointment, he became a public servant within the meaning of
CI.“ of 8.21 read with Expl. 2.

The learned advocate for the petitioner has contended that there is no evidence that the petitioner
was appointed by any verbal order of the chairman. That may be but there is no thing to prevent
such an order being fairly inferred from the facts that the petitioner had been expressly appointed in
June or July and appointed because he was the head clerk, that he continued to be head clerk after
the new division of the municipality and prepared the rolls, and that the chairman who had never
revoked the appointment of June or July accepted them. The absence of a formal appointment is
immaterial, the petitioner was indubitably ”in actual possession of the si tuation of a public servant”
within the clause and the explanation. In my oinion therefore he was rightly held to be public
servant in the circumstances. Section 107 further requires that he should be shown, as such public
servant, to have been charged with the preparation of any document, etc. It has been urged that the
prosecution fails in this respect for

l. 1988 (2) Cr. LR. I(B Prahlad Shamburao vs. State of Maharwhtra.

2. I971 APHN 222 Lakshminarasimhayya vs. State of A.P.

3. AIR 1966 AP. 36 Jagadesh, Inre.

4. 1956 (2) An.W.R. 342 Matameswara Rao vs. State.

5. A R 1963 AJ’. 491 [me The Chief Executive Officer A.P.S.RT.C. Hyderabad. 6. A R 1941 Pat. 539 at
542.

“48y.” amam m

want olan cypress ordet appalling WWJM toyepwe am»

But the word ”charged” in the motion it not to he very W/n‘iy W,Sec27CaL 144' a casein
whidiitwuhdd dataW/Aud police wascharged with the preparationoia report widen themmd$21$
Penal Code, (a section which doseiy rewtrbies 5,1673“! win he 39a.» retard to) when it appeared
diathesubmittedsuchareponhpummodyda practice requiring such a report, The word ”Charged"
does not thwdae provideanyadditionalddenceto Wpetitioner, histruemsihaveaheadytad, thatit
wasnopartoihisordinarydutyastmd derktoprepaxeanydeootraimd;
withoutmorehecouldnotevenbeapublicmantwitfdnaadeSZLm work of preparing electoral rolls could
only {211 to him on appointment by ti: chairman under K130). For the new dedions his appointment
was W in continuation of the former exprese appointment, and it was taken by the petitionernolest
tmnbythechaimxan tobeanappoinmlttoprepafenew rolls, which not oniy madea pubiicservantoihim
butalso charged him assuch with thepreparation oi (herons. The petitiomr’tdoubiecontention thathe
was not a public servant and was not as such public servant charged with the preparation of the
electoral tons must therefore be overruled.

It has been further contended on beha1! of the petitioner that he cannot be said to have ”framed”
the electoral r0115 within the meaning of 5.167. The contention Bbased on the {act that from 8th
January 1938, toafter11thlamtary 1938, when the rolls were delivered to thechairman,thepetitioner
was awayon leave and that though the rolls (5x520 and 20/1) had been written by the petitioner, it
was his locum tenens, one Shiva Prasad Varma, who was not examimd in New: that signed the rolls
and delivered them to thechairman.

I The learned advocate has pointed out that 5,167 speaks of the framing o(the document by the
public servant charged with its preparation. He has also referred to R130) of the Election Rules which
requires the persons appointed to prepare the elcootral toil to sign and deliver it to the Chairman.
0n the very taeeoi the sub-fule, however read with subm1e(1),itisdmr that thepreparation of the
electoral roll is distinct from signing it and delivering it. As to 5.167 it is difficult toseeany
sensibleditfercnce between the preparation and thefranu‘ng an electoral roll. According to the
dictionaries to prepare is to make ready or mice by a regular process, and to frame, to construct by
combination of parts or adaptation to design and no case has been suggested before me in which a
person who prepares a document in the ordinary meaning of the former word could yet be said not
to have framed it (Provided the preparation is con1p1ete and final),or vice versa. The learned
advocate points out that theelectoral rolls prepared undersubrule(1)o! Rule 13canonlybe
furthemperated on aftermey are signed and delivered to the chairman. But even so, the signature
and the delivery are Operations subsequent to the preparation under sub-rule (1) they

I. avaIIKthEmPrCI-nboodhuandm /
'164 S.C. & 831‘. (Prevention of Atrocities) Act, 1989 (Sec. 4 Sy. 2

would serve to indicate that the preparation was complete, but cannot be said to be essential to the
framing required by Section 167, for it is not always impossible to show in other ways that the
process of preparing was complete. In 13 PR 1882' it was contended that an offence under 5.218,
Penal Code, (a section which deals with the offence of a public servant framing an incorrect record,
expressed in the same terms as the offence under 5.167 of framing an incorrect document, though
with a different intent could not be deemed to have been committed as the documents had never
been submitted to the prOper authorities The contention was overruled and it was held that it was
not necessary to constitute a complete offence under the section that the incorrect document
should be submitted to another person, or be otherwise used by the wn'ter.

The requirements of the section are satisfied if it is shown that the document has been prepared by
a public servant charged with its preparation in a manner which he knows to be incorrect and with
the knowledge that he is thereby likely to ause loss to the public: and further if after such
preparation he submits the document, with intent thereby to procure credit, for or payment or more
than to his own knowledge is due to him all the elements of an attempt to cheat in its simple or
aggravated form (8.417 or 5.418 Penal Code) would be present.

I am therefore, unable to accept the contention that because the electoral rolls were signed and
delivered by Sheo Prasad Varma, therefore the petitioner cannot be said to have prepared or framed
them. It was argued below that the petitioner’s responsibility for the rolls ceased when he went on
leave on 8th January. The learned Sessions Judge declined to accept this contention because “the
making of the rolls was en tirely in the petitioners charge” his locum tenens merely signing and
delivering them. It has been argued for the peti tioner that this overlooks the consideration that the
petitioner might if he had not been away, have changed his mind in respect of the incorrect entries
and corrected them before the time came to deliver them to the chairman, or in other words, that
the petitioner had not completed his preparation of the rolls.”

The chairman of the Managing Committee of a Municipality is a public servant. In Maharudrappa

Damppa Kasarappanavar vs. State of Mysore’ His lordship Raghubar Dayal, I. observed on this
aspect.

"Section 2 of the prevention of Corruption Act (1947) reads:

”For the purposes of this Act public servant means a public servant as defined in 5.2.1 of the Indian
Penal Code”. Section 21 of the Indian Penal Code defines the persons coming within the expresion
public servant and its Tenth Clause reads: ”Everyofficer whose duty it is as such

I. (81) 13 PR1881 Cr. Megraj vs. Empress. 2. AIR1961 SC 785.

I

Sec. 4 5y. 3] Offences of Atrocities 175

is a legal duty not to sell or have for sale adulterated milk, whether knowingly or otherwise, and
without any question of negligence. In so far as the duty is imspcctive of knowledge and negligence
it is exclusively a legal not a moral duty. On the other hand, there is no legal duty in England to
refrain from offensive curiosity about one’s neighbours, even if the satisfaction of it does them
harm. Here there is clearly a metal though nota legal duty. Finally, there is both a moral and a legal
duty not to steal.

When the law recognises an act as a duty, it commonly enforces the performance of it, or punishes
the disregard of i t. But this sanction of legal force is in exceptional cases absent. A duty is legal
because it is legally recognised, not necessarily because it is legally enforced or sanctioned. There
are legal duties of imperfect obligation, as they are called, which will be considered by us at a later
stage of our inquiry”.

In lammula Narasimhulu vs. Kotim’ Sitaram‘ while dealing with the meaning of “wilful" it was
observed:

“The meaning of the word is two fold:

1. asseting or disposed to assert one’s will against prepersuasion: instruction or command governed
by will without regard to reason; determined to take one’s own way; obstinately, self willed or
perverse.

2. done on purpose of wittingly; purpose; deliberate; intentional; not accidental or causal; chiefly
now as always in a bad sense, of an action either evil in itself or blamo-worthy in a particular case;
often (with a colour of sense implying perverse or obstinate”.

The word ”wilful” is often used in Rent Control legislations in case of default as "wilful default.”

“The term’wilful’ canbe understood in contradiction to the words’accidental or inadvertant” wilful

connotes something which is done without lawful excuse and which is intentional3 wilful is a word of
familiar use in every branch of law and although in some branches of law, it may have a special
meaning, i' generally, as used in courts of law; implies nothing blameable, but merely tha
the person of whose action or default the expression is used is a free agent ant that what has been
done arises from the spontaneous action of his will. I amounts to nothing more than this, that he
knows that he is doing, and intend: to do what he is doing and is a free agent‘. The expression
”wilfully" can bc undentood in the contest of mental element of a man who refused to make thc

1. (1965) 31 (mm 331.

1 969 (1) ALT 1o Nkcaim RC] 66 11.1,. Subba Rao vs. Venkamm AIR 1965 an as Kadlvamth vs. State.

1 966 (2) All. ER. «9 Ricevs. Connolly. 31 G. D 174 Inc. Young & Huston.

tor subsequent conviction.

2. Enhanced punishment for subsequent convictionzSection 5 of the Act says that whoever having
already been convicted of an offence under Chapter 11 is convicted for the second offence or any
offence subsequent to second offence. shall be punishable with imprisonment for a term which shall
not be less than one year but which may extend to the punishment provided for that offence.

Section 75 1.1".C. Dealing with enhanced punishment for certain offences reads:

Enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous
eonviction-Whoever, having been convicted

(a) by a Court in India, of an offence punishable under Chapter XII or Chapter XVII of this Code with
imprisonment of either description for a term of three years or upwards shall be guilty of any
offence punishable under either of those chapters with like imprisonment for the life term, shall be
subject for every such subsequent offence to imprisonment for life or to imprisonment of ei ther
description for a term which may extend to ten years.

The previous conviction in respect of of fence punishable with imprisonment of three years will be
sufficient to attract Seé.75 I.P.C.1 In re Kamya2 the Division Bench of Andhra Pradesh High Court
observed on this aspect:

“It may at this stage be mentioned that the prosecution led evidence of the previous conviction of
the accused for an offence of theft of ear-rings from a child for which he was awarded two months
imprisonment. Copy of the judgment of the Sessions Court, Nandcd, dated 3-12-1952 proving this
fact is Exl’w8. Apart from the production of this documentary evidence P.W.5 one of the witnesses
who identified the rumal found at the scene of the offence as that belonging to the accused was
made to say even in his examination in-chief that the accused committed dacoity on a previous
occasion also when he cut off the ear~rings of a child from Mudhol and he was convicted in that case
5 or 6 years ago.

The Sessions Judge in the examination of the accused under Section 342, strange to say, put to the
accused his previous conviction. It is an elementary principle of criminal jurisprud once that the
previous convictions of an accused

l. 1963 (2) ALT 449 Sugali Nage Naik, In re AIR 1955 (Andhra) 190 Public Prosecutor vs. Rama
Krishnaiah. 2. A R 1960 AP. 490 at 491.

See. 6 Sy. ll Otteneee of Atrocities "9

are not relevant and cannot be proved unless the good character of the accused is relevant
underSeetion 54 of the Evidence Act or union the prosecution under Section 75 LEG. prays for an
enhancement 0! the sentence.

When it is required that the accused should be dealt with severally beam of a previous conviction.
there must be a specific charge under Section 75 LP.C. Section 310 O'RC. is meticulous enough to
enjoin on the courts. whethet it b a tn‘al by a jury or by a judge, that the accused is charged with en
ofience and further charged that he is by reason of a previous conviction liable tomhanmd
punishment or to punishment of a different kind for such subsequent offence. such further charge
shall not be read out in court and the accused shall not be esked to plead thereto. nor shall the same
be referred to by the prosecution. or any evidence adduced thereon unless and until he has been
convicted of the subsequent offence orinthe caseof a trial bye jury, the )ury,havedelivered their
verdict on the charge of the subsequent offences, or in the case of a trial by the judge himself, the
court may, in its discretion proceed or refrain from proceeding with the trial of the accused on the
charge of the previous conviction.

in thiscase, the prosecution, quite rightlydid not ask for enhanced sentence, because Section 75
I.P.C. should be inapplicable. The sentence awarded to the accused under the previous conviction
was only two months, while the minimum that is required for enhancement of punishment is 3 years
under Section 75 I.?.C. so that the previouseonvietion of the éccused could not be proved against
him or any evidence allowed to beaddueed thereof. even where he was charged under Section 75
unless the court came to the conclusion that the offence with which he is charged has been proved.
in this case Section 75 I.?.C. and Section 310 Cr.P.C. have no application and the bar of Section 54 of
the Evidence Act comes into play. The Evidence of a previous conviction led at the trial by the
prosecution is calculated and isiikcly to prejudice the accused. itisequailyclear that anything which
prejudices the case of the accused, does vitiate the trial."

6.Application of certain provisions of the Indian Penal Code:Subject to the other provisions of this
Act, the provisions of Section 34, Chapter [[1, Chapter IV, Chapter V, Chapter V-A, Section 149 and
Chapter XXIII of the Indian Penal Code (45 of 1860), shall. so far as may be, apply for the purposes of
this Act as they apply for the Purposes of the Indian Penal Code.

SYNOPSIS

Sec. 5] Offences of Atrocities 177

It is clear that in the Rent Control Acts, the word wilful is not used in the . narrow and primary sense
when it occurs in the phrase ”wilful default”. The word default implies not doing something that is
reasonable or necessary something required to be done. When it is coupled with the word ”wilful”
the phrase is manifestly intended to signify something more than a mere omission or default. The
expression ”wilful default” has been the subject matter of several decision in other branches of law.
The Merchant Shipping Act in England has used the expression wilful default of the person in charge.
In cases arising under that Act, the view taken was that it refers to acts arising by the fault of such
person, whether intentional or negligent. In the law relating to trustees, wilful default by a trustee is
understood as the wilfully not doing something which he ought not to do” In Re Vickery, (1931) 1 Ch.
572 the use of the words "wilful default” of a trustee were held to imply such either a consciousness
of negligence or breach of duty or recklessness in the performance of a duty. In another line of
cases, where the question arose in respect of ”wilful default of the vendor in conditions of sale,
courts had been called upon to construe the expression. In Re Young and Harston, (1885) 31
Ch.D.168 at P.174 Bowen, L] understood it to mean as not doing what is reasonable under the
circumstances with the knowledge that the omission will cause delay. In someother cases dealing
with like situations, the expression was assigned several distinct shades

of meaning. It was understood as follows:

”To make up one’s mind not to verify a statement is ”wilful” but simply not to think about verifying it
is not ”wilful”. A mistake by the vendor as to his right

if it be bona fide was held to be not wilful default.

From the examples cited above, it is clear that the emphasis is not on knowinglydoingorabstaining
fromdoinga thingbutratherontheunreasonable conduct or on a mental atti tudc which is not
bonafide. It follows that the primary meaning of the word ”wilful” as an act being spontaneous or
arising out of free w' has been supplanted in several branches of law. The use of the expression
”wilful default” in the Rent Control Act affords the clear intention of the

ture that it is not the mere omission to do a thing that is intended. The test
Hy 0p' nion to pay the rent had reasonable ground for the belief that the

o to pay rent did not constitute default. It is useful to draw a line

w it two types or broad divisions. On the one hand may be cited cases

W e omission to pay is shown to be negligent and is lacking in any b eexecuseorbonafide belief. On

the other sideof the line maybeplaced

w ere a reasonable ground for a bona fide belief that no default has

or existed”.

‘ C ‘ I I -_-‘_--‘.__A_.L‘_-__£ -c-A‘Amnl‘cvn

Sec. 3 83!. G0) Offences of Ahocltieo 1n

otherwiseagreed. shall bepunishabie with imprisonment ton term which shall not be less than six
months but which may extend to five year: and with fine.

38. Section 3 (l) (xiii) of the AchSection 3(1)(xiii) of the Act says that whoever, not being a member of
0 Scheduled Caste or 0 Scheduled Tribe

corrupts or fouls the water of any spring. reservoir or any other source ordinarily used by members
of the Scheduled Caste o: the Schduled Tribe so

as to tender it less tit tor the purpose for which it is ordinarily used shall be

‘shable with impn‘sonment for a term which shall not be less than six months but which may extend
to five years and with fine.

39. Section 8(1) (xiv?) of the Acb-Scction 3 (1) (xiv) of the Act says that whoever. not beinga member
of a Sched uled Caste or a Scheduled Tribe denies a member of a Scheduled Caste or a Scheduled
Tribe any customary passage to a place of public resort or obstructs such member so as to prevent
him from using or having access to a place of public resort to which other members of public or any
section thereof have a right to use or access to 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.

40. Essentials of a custom:-A custom is a particular rule which exists either actually or presumptively
from times immemorial and has obtained the force of law in a particular locality‘. Before a court of
law can give effect to a custom. the court must be satisfied that it is definite, ancient, uniform and
not illegal in itself or unreasonable’. Such a custom from long usage should have

obtained the force of law’. It must be certain‘ peaceble‘ reasonable‘ ancient7 and not opposed to
morality or public policy“. In Subramanian Cheth'ar vs. Kunmmppa

Chdtiar ’ the Division Bench of the Madras High Court observed on this aspect.

‘A custom is a rule which in a particular family or in a particular district. has from long usage
obtained the force of law. It must be ancient, certain and teasonable and being in derogation of the
general rules of law

must be consti'ued styictly."

‘ It is further essential that it should be established to be so by clear unambiguous evidence for it is

only by means of such evidence that the courts can be assumed of its existence and of the fact that
it possesses the conditions of antiquity and certainty on which alone its legal title to recognition
depends. It must not be opposed to morality or public policy and must not be expressly

forbidden by the legislature.

Halsburyu Law. of England Std Ed. Vol. II. Article 29‘.

AIR 1935 Bombay 37] SK Wideyar vs. Cangapathi.

AIR 1955 Mad. m Subnmanlan vs. Kumarnppa.

AIR 1954 Andhn 54 Venkadu vs. Subbaramniah; 31 A 259 Haripetshad vs. Sheo.

2A. 49 Lula vs. Hin.

0910) 33 A 257 Shadi VI. Muhammad; (1877) 1M. 235 PC. Verma vs. Ravi Venue.

(1859) 7 MIA 263 lagmohan v0. Manickchand; (1872) 17 W.R. 553 Ramalakshmi vs.

Stvmnja. 0894) 17 Mad. 479 Sankarlingam vs. Subban; (1876) [M 168 China: vs. Tegarai.

AIR 1955 Mad. N4 at 150.

99 xevewvr

174 S.C. & S.T. (Prevention of Atrocities) Act, 1989 (Sec. 4 5y. 3

Padam Sen the appointment of the CommiSsioner by the Additional Munsif was found to be null and
void; yet it was argued with the aid of Explanation 2 to Section 21 of the Code that he was a public
servant. This argument was repelled by Raghubar Dayal, J. delivering the judgment on behalf of the
Court at P.890 (of SCR)-(at P. 220 of AIR) thus:

“Wedo not agree with this contention and are of opinion that the Explanation applies only when
there be a post in existence. The Explanation does not apply when there is no pre-existing post or
when the person appointing has no authority to appoint."

In the Case of (AIR 1973 SC 330-1972 Cri.L.I. 1247) the question arose in relation to an offence said
to have been committed by the respondent under Section 161 of the Code and Section 5(2) read
with Section 5(1)(d) of the Prevention of Corruption Act, 1947. Dwivedi was a senior' lecturer at a
Government College; in that capacity, undoubtedly, he was a public servant.

, He is alleged to have accepted the gratification of Rs.500/other than legal remuneration for
showing favour to a candidate in his capacity as Examiner for Physics practical in the examination
held by the Gujarat University. He was appointed an examiner by the University and not by the
Government; in such circumstances it was held that Dwivedi as an examiner of the University was
not a public servant as it had no connection with his being a Government servant.
The Ministers are primarily responsible to the Legislature. Any deviation from moral and ethical
standards is a matter for the Legislature and ultimately for the peOple to deal with. Nor can it be
said that merely because a Minister is held to be a public servant within the meaning of $.21 I.P.C.
he becomes a public servant for all purposes and therefore he must devote all his time to his official
duties'.

The employees of Canara Bank, it being a Government Company are public servants’. High Court
Judge is a public servant’. See the undermentioned cases too‘.

3. Wilfully neglects his duties:Where a public servant, not being a member of a Scheduled Caste or
Scheduled Tribe wilfully neglects his duties required to be performed by him under Act 33 of 1989,
he shall be punishable with imprisonment fora term which shall not be less than six-months but
which may extend to one year. 5.4 of the Act can be invoked only in a case where a public servant
not belonging to Scheduled Caste or Scheduled Tribe wilfully neglects his duties to be performed
under the Act. ”Duty” in its normal sense

can be understh as an act which one is bound to perform and which is

opposed to wrongful act. Salmonds on this aspect states.

Duties like wrongs are of two kinds, being either moral or legal. These two classes are partly
coincident and pa rtly distinct. For example, in England them

1. AIR 1990 AP. 20 Harlnadha Babu Vi. N.T. Rama Rao.

2. 1991 (1) Crimes 127 Klmi vs. State 31990 (2) An.W.R. 287 =l990 (2) LS. 133.

3. 1990 (3) ALT 530 = 1990 (2) An.W.R. 566 Advocate General vs. Rachapudi Subba Rao. 4. 1957 CL]. I
Morterlo vs. State of Ajmer. AIR 1959 S.C. 847.

5. See Salmond on Jurispmdence 12th Ed. page 216.

Sec. 4 Sy. 2] Offences of Atrocities 173

int to one and only one conclusion and that is that the Chief Minister is in the pay of the
Government and is, therefore, a public servant within the meaning of $2102) of the Penal Code.”
In Dattalmya Narayan Patil vs. State of Maharashtra ‘ it was observed by His Lordship Untwalia, J.

Under the orders of the Government, therefore, its officers including the Minister of the District
were to carry out certain public du ties in'connection with the reviewing of the working of Zilla
Parishads and Panchayat Samithis which ofeourse, were constituted under the statutes. The
Minister, a public servant, was to be the chairman of the committee. The DivisiOnal Commissioner
was to be the convener of the rneeting. The Deputy Commissioner (Development) of the Division
concerned was to act as the secretary. They were all public servants. Is it possible to take the view
that the Divisional Commissioner or the Deputy Commissioner while performing the functions
aforesaid under orders of the Government conveyed in the circular dated 5-8-1964 were performing
any private functions and not public duty? Obviously it was a part of the public

duty assigned to them by the Government. The duty assigned to a public servant by his master, be it
under a statu te or by an executive order, will assume the character of public duty: Provided the du
ty assigned is not illegal or against public policy. Will it make any difference in the case of a Minister?
In our judgment not the Minister is a public servant not disputed. In accordance with the
instructions issued by the Government he was to preside over the meetings of the advisory
committee. He was doing so as a Minister and in Execution and discharge of his duty as such public
servant. It is no doubt true that non-official office bearers and members of the Committee could not
be public servants. Non-officials appointed to a committee constituted under a statute may under
éertain circumstances, become public servants within the meaning of Section 21 of the Code: but
surely non-official members of the committee' 1n question could not be so. Yet it is wrong to say
that the officials and persons who were public servants discharging their duties as office bearers and
members of the Advisory

committee were not performing any duty as such public servants. Any person who was nota public
servant appointed as achairman of the committee may not bea public servant because the office of
the chairman of the Advisory committee is not such that would make him a public servant. But the
matter is different when a public servant, under the executive instructions of the Government, is
appointed the Chairman of the Committee.

Learned Counsel for the appellant in support of his submissions placed' reliance upon two decisions
of this court viz Padam Sen vs. State of Uttar Pradesh,

(1961) 1 SCR 884 (AIR 1961 SC 218-1961=1 Cri.L.I. 322) and the State oqujarat vs. Manshankar
Prabhashankar Dwivedi, 1973 (1) SCR 313(AIR 1973 SC 330-1972

Cri.LJ. 1247). Neither of them is opposite and helps the appellant in the case of

1. AIR 1975 SC 1685 at 1688.

172 5.63. I lit. U'reventton o! Amman) Act, 1m lbee. 4 , 2

"1t Iellowe from the above concluston that under! Article 154(1) 0! m. Comtttutton theCovernor
may act dlrectlyor through htawbordtmteomam, in the present cue he has acted through the
Devetepment Mint“ 11. quutton emu whether he could IO act. Obviously the executive w arrive on
the business at the Governnwnt and put of this buttneuts them"

given to the State Government under Section 42 o! the Consultation Act undo;

Article 166mm theConstitution the Governor can allocate this busineutoony

M‘n‘lwr ha “ha. ouuuuunuuonuumuuuuuu Moreover "13" an be no doubt “I“.

Minister tn subordinate to theGovernor. 1heCovernor is theexecutivehadot

the Suteend this position he does not sherewi th the Chic! Ministeroranyothq l Minister. He allocates
his executtve duties to various Ministers under Attic]. { 166(3) of the Constttution.

He appoints a M lntuter albeit on the advice of the Chief Minister and the Minister holds office
durtng his pleasure. Therefore it to open to 3 Governor under the Constitution to dismiss an
individual Minister at his pleasure. In this circumstances there can be no doubt that a Minister ts to
be considered as an officer subordinate to the Governor”. We find ourselvcsin complete agreement
with the view taken and the reasons given by the Punjab High Court in the

aforesaid case.

To the same effect is a decision 0! the} 8: K High Court tn the case of Bakshi Ghulam Mohammad vs.
G.M.Sadfq, AIR 1968] 6: K 98. Where Anant Singh,j observed as follows (at p.102):

"A Mtnister of: State is paid from its public exchequer, and heispaid for dotng public duty end in my
opinion, a Minister is a public officer within the meaning of Sec.80 as defined in Sec.2(17)(h) of the
Civil RC”,

The opinion expressed by the learned judge is clearly in consonance with the view that we have
taken in this case. Three facts therefore havebeen proved beyond doubt:
I. That a Mtntster is appointed or glismissed by the Governor and is therefore, subordinate to him
whatever be the nature and status of his constitutional functions.

2. That a Chief Minister or a Minister gets salary for the public work done or the public duty
performed by him.

3. That the said salary is paid to the Chief M inister or the Minister from the Government funds.

It is thus incontrovertible, that the holder of a public office such as the Chief Minister is a public
servant in respect of whom the Constitution provides that he will get his salary fr'om the
Government Treasury so long he holds, his office on account of the public service that he discharges.
The salary given to theChief Minister iscoterminous with his office and is not paid like other
constitutional functionaries such as the President and the Speaker. These facts. therefore;

Sn. 4 By. 2| ttttams M Atuusmu III

not an otticev mbmdtnata to the (Awemm within the math; M SAM i t m4 at tar as the derision tn
f'mplmr m, Hemmdm WW4 (mm, II .II (MW!) 2 l at 4”

(All 1939 Cal. 520) (am dertdm that e Minion! to am such on 0mm M Lordship am unable to agree
with tt. Whtte a Mtntstev may have amt“ tn the LegtsumreJheprmm-tonsom M «to
thummtntmnbpeymmt and am of Mtntsten, and 5.596!) and (4) at the Act at WM, and the mum lulu
made

by vtnue at 8.59 place beyond doubt that the Home Mint“ to on email subordtnate to the
Governor.”

We and ourselves in complete agreement with the view taken by the Privy Council. in tact the case
at the Privy Council retened to above was mttmd and relied upon by thtscourt tn the case 0! Rao 5th
Bahadur Sing}: a, 3mm] Wndhye Pradesh, 1953 SCR 1188;(A1R 1953 SC 394) where thtseourt
observed as tottows (at P401 0! AIR):

”Ciause 9 of Section 21 tndtan Penal Code shows that every omen tn the service or pay at the crown
for the performance 0! any public duty ta 0 public servant”. The decision of the Privy Council in King
Emperor m. Slbnath Banerjt, 1945 FCR 195: (AIR 1945 PC 156) is decisive to show that a Minister
under the Government of India Act is an officer subordinate to the Governor”. On the same
reasoning there can be ho doubt that the Minister of thdhya Pradesh would be an officer of the
State of Vind hya Pradesh’. Therefore, prior to the passing of Ordinance No.XLVlII of 1949 and on the
view that the indian Penal Code with necessary adaptations mutatis mutandis was intorce at least in
the Rewa portion of Vindhya Pradcsh (if not in entirety of thdhya Pradesh) the first appellant was a
public servant as defined in Section 2], indian Penal Code, as adapted. The amendment of the said
section brought about, therefore no

substantial change in the position of the first appellant.

In thecase ofNamdeo Kashinath vs. H.G.Vartak,AIR 1970 Born. 385 Deshpande, 1. observed as
follows (at p. 388).

”Whatever be the practical and actual position, the fact remains that it is the Governor who can
accept the resignation of the Chief Minister or Minister and it is the Governor again who can dismiss
or remove the Minister from office. Under See.3(60) of the General Clauses Act 1897, the word
”State Government” has been defined. Clause (0) of 8.3(60) is applicable to the present case and
therefore the State Government is to mean the Governor for

the purpose of the present case. The result therefore is that accused No.1 is a public servant who
canbe said to be removable only by the State Government meaning thereby the Governor, and [do
not find any difficulty in coming to the conclusion that the second requirement of 5.197, Cr.P.C. also
is fully satisfied as far as accused No.1

is concerned."

in the case of Tara Singh vs. Director Consolidation of Holdings, Punjab Iutlundur, AIR 1958 Punjab
302 the Punjab High Court took the same view and observed as follows (at p.304);

Sn. 4 By. 2| ttttams M Atuusmu III

not an otticev mbmdtnata to the (Awemm within the math; M SAM i t m4 at tar as the derision tn
f'mplmr m, Hemmdm WW4 (mm, II .II (MW!) 2 l at 4”

(All 1939 Cal. 520) (am dertdm that e Minion! to am such on 0mm M Lordship am unable to agree
with tt. Whtte a Mtntstev may have amt“ tn the LegtsumreJheprmm-tonsom M «to
thummtntmnbpeymmt and am of Mtntsten, and 5.596!) and (4) at the Act at WM, and the mum lulu
made

by vtnue at 8.59 place beyond doubt that the Home Mint“ to on email subordtnate to the
Governor.”
We and ourselves in complete agreement with the view taken by the Privy Council. in tact the case
at the Privy Council retened to above was mttmd and relied upon by thtscourt tn the case 0! Rao 5th
Bahadur Sing}: a, 3mm] Wndhye Pradesh, 1953 SCR 1188;(A1R 1953 SC 394) where thtseourt
observed as tottows (at P401 0! AIR):

”Ciause 9 of Section 21 tndtan Penal Code shows that every omen tn the service or pay at the crown
for the performance 0! any public duty ta 0 public servant”. The decision of the Privy Council in King
Emperor m. Slbnath Banerjt, 1945 FCR 195: (AIR 1945 PC 156) is decisive to show that a Minister
under the Government of India Act is an officer subordinate to the Governor”. On the same
reasoning there can be ho doubt that the Minister of thdhya Pradesh would be an officer of the
State of Vind hya Pradesh’. Therefore, prior to the passing of Ordinance No.XLVlII of 1949 and on the
view that the indian Penal Code with necessary adaptations mutatis mutandis was intorce at least in
the Rewa portion of Vindhya Pradcsh (if not in entirety of thdhya Pradesh) the first appellant was a
public servant as defined in Section 2], indian Penal Code, as adapted. The amendment of the said
section brought about, therefore no

substantial change in the position of the first appellant.

In thecase ofNamdeo Kashinath vs. H.G.Vartak,AIR 1970 Born. 385 Deshpande, 1. observed as
follows (at p. 388).

”Whatever be the practical and actual position, the fact remains that it is the Governor who can
accept the resignation of the Chief Minister or Minister and it is the Governor again who can dismiss
or remove the Minister from office. Under See.3(60) of the General Clauses Act 1897, the word
”State Government” has been defined. Clause (0) of 8.3(60) is applicable to the present case and
therefore the State Government is to mean the Governor for the purpose of the present case. The
result therefore is that accused No.1 is a public servant who canbe said to be removable only by the
State Government meaning thereby the Governor, and [do not find any difficulty in coming to the
conclusion that the second requirement of 5.197, Cr.P.C. also is fully satisfied as far as accused No.1

is concerned."

in the case of Tara Singh vs. Director Consolidation of Holdings, Punjab Iutlundur, AIR 1958 Punjab
302 the Punjab High Court took the same view and observed as follows (at p.304);

170 S.C. 8: S.T. (Prevention of Atrocities) Act, 1989 [Sec. 4 Sy. 2

”199(2) Notwithstanding anything contained in this Code, when any offence falling under Chapter
XXI of the Indian Penal Code is alleged to have beencommitted a gainst a person who, at the timeof
such commission is the President of India, the Vice President of India, the Governor of a State, the
administrator of a Union Territory or a Minister of the Union or of a State or of a Union territory, or
any other public servant employed in connection with the affairs of the Union or of a State in respect
of his conduct in the discharge of his public functions a Court of Session may take cognizance of such
of fence, without the case being committed to it, upon a complaint in writing made by the public
prosecutor.”

The use of the words ”other public servants” following a Minister of the Union or of a State clearly
shows that a Minister would also be a public servant as other public servants contemplated by
Section 199(2) of the Code the Code being a statute complementary and allied to the Penal Code can
be looked into

for the purpose of determining the real meaning and import of the words ”public servant” as used in
the aforesaid section.”

The Solicitor General placed reliance on the decision of this Court in the case of Dattatraya Narayan
vs. State of Maharashtra, 1975 Supp. SCR 145: (AIR 1975 SC 1685). Where this Court had held in a
slightly different context that a Minister was a public servant, Mr. Venugopal, has however,
distinguished this decision on the ground that this Court proceeded on the assumption that it was
not

disputed before the Court that the Minister was a public servant and the case having been decided
on the concession of the parties cannot be relied upon by the Solicitor General. In that case to which
two of us (Untwalia and Fazal, Ali

1].) were parties to the judgment the following observations were made (at p.1688). '

”The duty assigned to a public servant by his master be it under a statute or by an executive order,
will assume the character of public duty, provided the duty assigned is not illegal or against public
policy, will it make any difference in the case of a Minister? In our judgment, not the Minister is a
public servant-not disp'utcd.”

These observations no doubt fortify our Opinion that the Chief Minister is a public servant which is
based on the reasons that we have already given and which are different from those given in the
case cited before us.

In the case of Emperor vs. Sibnath Banerji, AIR 1945 PC 156 the Privy Council clearly held that it was
not in a position to accept the suggestion of the counsel that the Minister was not subordinate to
the Governor. This was the precise argument which had been put forward by Mr.Venu Gopal when
contended that
the Chief Minister is not subordinate to the Governor. The Privy Council observed as follows in this
connection:

”So far as it is relevant in the present case, their Lordships are unable to accept a suggestion by
counsel for the respondents that the Home Minister is

Sec. 4 Sy. 2] Offences of Atrocities 169

and emoluments of the Chief Minister and the Ministers the specification of their emoluments in the
Second Schedule to the Constitution have been deleted.

Article 167 lays down the duties of the Chief Minister and runs thus

”167 DutiesofChief Ministeras résPects the furnishing of information to Governor etc. It shall be the
duty of the Chief Minister of each state

(a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to
the administration of the affairs of the State and proposals for legislation.

(b) to furnish such information relating to the administration of the affairs of the State and proposals
for legislation as the Governor may call for;

(c) If the Governor so recluires, to submit for the consideration of the , . Council of Ministers any
matter on which a decision has been taken by a Minister but which has not been considered by the
Council.”

It is, therefore, clear that by virtue of the provisions contained in Article 167, the Chief Minister
undoutedly performs a public duty of the nature as enjoined by clauses (a) to (c) of Article 167. It is
also clearly provided in the Constitution that the Chief Minister or the Ministers enti tied to salaries
or allowances obviously in lieu of public du ties that they perform. The salaries given to the Chief
Minister or the Ministers are given from the Government funds, and therefore, there will be no
difficulty in holding that the Ministers are in the pay of the Government inasmuch as they receive
their salaries, remunerations-or wages from the Government. Mr.Venu gopal, however, submitted
that no analogy can be drawn between the constitu tional provisions and the provisions contained in
the Government of India Act because the Constitutional position of a Chief Minister under the
Constitution was not the same as under the Government of India Act where the Governor enjoyed
vast and plenary powers and was not bound by the advice of the Council of Ministers as the
Governor is under our Constitution. It is not necessary to probe into this aspect of the matter,
because the Constitution clearly lays down that the Governor appoints the Chief Minister and being
the appointing authority he is also the dismissing authority. We are not at all concerned in the
instant case as to the circumstances under which the Governor can appoint or dismiss the Chief
Minister once it is conceded that the Governor appoints the Chief Minister who is paid a salary
according to a statute made by the legislature from the Government funds, the Chief Minister
becomes a person in the pay of the Government so as to fall

squarely within clause (12) of Section 21 of the Penal Code.

There is another circumstance to show that a Chief Minister or a Minister is undoubtedly a public
servant which was relied upon by the High Court in repelling the argument of Mr.Venugopal. Section
199 of the Code runs thus:

168 S.C. 8: S.T. (Prevention of Atrocities) Act, 1989 [Sec. 4 Sy. 2

A careful analysis of the meanings assigned to the word ”pay" in the various dictionaries and the
texts referred to above would clearly reveal that the expression "in the pay of” connotes a person is
getting salary, compensation, wages or any amount of money. This by itself however does not lead
to the inference that a relationship of master and servant must necessarily exist in all cases where a
person is paid salary. This aspect of the matter would become crystal clear if we examine the nature
and the constitutional position and status of a Minister or a Chief Minister.

Article 164 of the Constitution runs thus

”Other provisions as to Ministers (l) The Chief Minister shall be appointed by the Governor and the
other M inisters shall be appointed by the Governor on the advice of the Chief Minister and the
Ministers shall hold office during the pleasure of the Governor:

Provided that in the Sta te of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge
of Tribal Welfare who may in addition be in charge of the welfare of the Scheduled Castes and
Backward classes or any other work.”

This Article clearly shows thata Chief M inister is appointed by the Governor and having been
appointed by the Governor it is manifest that he is subordinate to the Governor. Even in Section
52(1) of the Government of India Act 1935 which preceded our Constitution the provision was
worded thus-
V

”52(1) The Governor of a Governor’s prOvince may, by notification appoint ministers, not being
members of his executive council or other officials to administer transferred subjects, and any
ministers so appointed shall hold office during his pleasure:

There may be paid to any minister so appointed in any province the same salary as is payable to a
member'of the executive council in that province unless a smaller salary is provided by vote of the
legislative council of the province.”

In this section also it was the Governor who alone had the power to choose the Ministers. Infact, in
Article 164 the word ”appointment” is much higher than the concept of a person bein g chosen.
Article 164(5) provides for the salary

and allowances of Ministers and runs thus

”164(5) the salaries and allowance of Ministers shall be such as the Legislature of the state may from
time to time by law determine and, until the Legislature of the State so determines, shall be as
specified in the Second Schedule."

Under this provision the Ministers on being appointed by the Governor are entitled to such salaries
and allowances as the Legislature of the State may determine from time to time and until this is
done, the emoluments will be such as are specified in the Second Schedule. As however all the
Legislatures of the States as also Parliament have already passed Acts providing for the salaries

Dee. Iy II OHeneeI o! Atrocities 167

a! dome mm.) tI contented namely "tn the Iervtce o! the Government” undoubtedly Itgnmeu
nlattonshtpot mater and servant where the employer ompIuyI the employee on the beats of I ulary
or remunerItton. But we are of the optntnn that Io [Ir II the mend ltmb ”tn the pay of the
Government" to warned thIt IppeIrI to heal I much widerImplttude sou to Include within ttI Imbtt
oven public Iervent who may not be I regular employee receiving Inlay tram ht. mum. In other
words, we think that I Minister or I Chief Mtntntor will be dearly covered by the expression ”person
in the pay of the Government". M r. Vent: 60le however, relted on the meaning of the words 'tn the
pay 0!” II IppeIrtng In the venom dlcttonIrteI. 'ln Shorter Oxford lnglloh DtyttonIry the expmston ”In
the pay of” tI defined thus:
To give money, etc In return for Iomcthtng or In discharge of an obligation, at I thtng or Ictton. To
yteld In Idequate return. To give money or other equtwlent value for.”

Stmtlarly payer II defined thus:

“One who pays I Ium of moch

In WebItcrIThtrd New Internattonal Dtcttonary the expression. ”In the pay of“ tndtated to man:

‘Compenntmmnumntexttdynetmbune indemnity,recompense,repay; pIy II I amen] tetm used

Melting pIrttcuIIrly connotation but sometimes bluntly Itreutng the purchase 0! Icrvtce pay I
machinist high wages.”

“WIgm IIlIry mumtton”

In Webster! New Rold DtcttonIry the expression “tn the pay of Is" thus defined

StneIIeI the IdeI of payment tor I service rendered, but it often also carries

on Impllation of mud (I bumper crop remunerated the farmer for his IIbout'II'

In ”Word: Ind Phases”, permanent Edition VoISI-AJ’. I76 the meaning olthewonl ‘pIY' bgiven thur

‘I’Iy’ II remunerItIon, wages or salaty remunerate: to recompense to give any M

In VenhtInmeyI'I Law Lexicon Vol.1] P. 1122 the expression ”to pay money“ has the following
annotation:

'prymoneybtopIyItinrespectofarightwhiehsomepersonhasto mutt!

In Corpus Juries Secundum Vol.70 at page 200 the word pay If used as I nounbdeftned
Isremuneration, wagescompcnsation, salaryand thetollowing obIeanttonI In Ilse made.
'I'he noun pIy has been held equivalent to. or synonymous with mmtton'JdIryInd wagesand hIs
bcenoompared withordistinguished hunt Inowm Ind consideration!

166 $.C. l: 5.1. (Prevention of Atrocities) Act, 1989 (See. 6 Sy. 2

Canmitteeata dateearly paymentof the paydue A meeting already fixed may

have to be adjourned for want of quorum, the passing of pay bins, in the

am is moreor lease formal matter and therefone the rules empower

theChainnan ot’ the Managi ng Committee to order payment of the pay bills in anticipation of
sanction by the committee. {The chairman can exercise this power for the benefit of the employees
voluntarily or when requested by those pasom to exercise it. The mere fact that this power of the
chairman was to be exercised onlywith nespect to fixed recurring charges and in anticipation of the
mittee pasing the bills fox those charges therefone does not affect the qusb'on in any way. Clause
(10) of 5.21 of the Indian Penal Code, merely requires that the person should have the dutyto
expend property for certain purposes. It is not restricted to such cases only where there is no
limitation on theexemise of that power of expending property. The chairman has the duty to order
payment and to spend the money of the Municipality, in certain circumstances we therefore hold
that the appellant was a ”Public Servant" when the alleged offence was committed. "

TheChief Minister ora Minister will be a public servant. In Karunanidhi vs. Union dlndia ‘. His,
Lordship Fazal Ali 1., observed on this aspect:

'l'his brings us to the second limb of the argument of the learned counsel for the appellant which
relates to the import and connotation of the term public servant” appealing in Section 21(12) of the
Indian Penal Code, clause (12) of Section 21 whichis the relevant provision so far as the present case
is concerned runs thus.

“‘21. The words ”Public Servant” denote a person falling under any of the descriptiom herein after
following namely:

XXXXXXXXX

Twelfth Every Person (a) In the service or pay of the Government or remunerated by fees or
commission for the performances of any public duty by the Government.“
XXXXXXXXX

It was vehementaly contended by Mr.Venugopal that having regard to the oomtitutional and public
duties of a Chief Minister or a Minister he cannot be deemed to be a public servant in any sense of
the term. He further contended tint the entiredause(12)(a) should be read asa whole and cannotbe
served into two limbs inasmuch as the words “in the service" or “pay of the Government”

“are used as synonymous. It was further contended that the words in the servicemtaay of the
Government clearly connote the relationship of master and servant, a relationship which is
completely beyond the concept of the position of a Minister or a Chief Minister. We, hodeer, a yea
that so far as the first part

1. AIR I979$C898at9iL

Sec. 4 H . 2] ()Honeu o! Atrocities 165

omcor to ta Ito, rocet v0, keep or ex pond an y property, to make any auwey or nummont or to levy
any rate or tax tor any mularcommon purpose of any village, town or dtutrtct, or to make,
authenttate or keep any document for tho ascertaining o! the rights 0! the people of any village,
town or district.”

Rule 68 framed under the Bombay District Municipal Ac},1901 (Bombay Act 111 of 1901) and
admittedly applicable to the appellant reads:

”The chairman of an Executive Committee shalt stgnpaymentorden on behalf of the committee after
the committee have passed thebiiband may also order payment of bills for fixed recurring charges
such as pay bills in anticipation of the committee passing them.”

The High Court held that the appcilant, as chairman of the Managing committee couId expend the
money of the Municipality as he could order payment of bills for fixed recurring charges and that
thereforehe came within

the purview of the expression ”Public Servant” defined in the Tenth Clause of 8.21 of the Indian
Penal Code.

The only criticism which the learned counsel for the appellant has urged against this view is that the
High Court did not keep thedistinctionbetweenthe words ”duty” and ”power” in mind and that Rule
68 empowers the chairman to order payment and does not impose a duty on him to order payment.
We are of opinion that the power to make payment of fixed recurring charges such as pay bills
imposes a duty on the chairman to do so when necessary as thepower is vested in the chai man for
the benefit of the persons enti tied to receive these recurring charges. Reference may uscfullybe
made here to what was said inthis

connection in lulies vs. Bishop of Oxford (1880) 5 AC 214. Earl Cairns, the Lord Chancellor, said at
222, in connection with the interpretation to be put on the expression ”it shall be lawful in a certain
statute.”

”The words ”it, shall be lawful” are not equivocal. They are plain and unambiguous. They are words
merely making that legal and possible wise be ‘no right or authority to do. They confer a faculty or
power, and they do not of themselves do more than confera faculty or power. But there
maybesomething in the nature of the thing empowered to be done, something in the object for
which it is to be done, something in the conditions under which it is to be done. something in the
title of the person or persons, for whose benefit the power is to be exercised, which may couple the
power with a duty, and make it the duty of the person in whom the power is reposcd, to exercise,
that power when called upon to do so."

The aforesaid power is conferred on the chairman for the benefit of the persons who have served
the Municipality and have got the right to receive their pay or money for articles provided. There
may arise circumstances when any delay in payment may affect those persons adversely. The pay is
due on the first day of the month and it may not be convenient to fix a meeting of the

? 153 S.C. 8: S.T. (Prevention of Atrocities) Act, 1989 [Sec. 3 8y, 56

(1) all statements which the Court permits or requires to be made before it

by witnesses, in relation to matters of fact under inquiry:

(2) all documents produced for the inspection of the Court, such documentS

are called documentary evidence.

54. Section 3(2)(iii) of the Act:Section 3(2)(iii) of the Act says that Whoever, not being a member of a
Scheduld Caste or Scheduled Tribe, commits mischief by fire or any explosive substance intending to
cause or knowing it to be likely that he will thereby cause damage to any property belonging to a
member of a Scheduled Caste or a Scheduled Tribe, shall be punishable with imprisonment for a
term which shall not be less than six months but which may extend to seven years and with fine.

55. Section 3(2)(iv) of the Act:Section 3(2)(iv) of the Act says that whoever,not being a member of a
Scheduled Caste or a Scheduled Tribe, commits mischief by fire or any explosive substance intending
to cause or knowing it to be likely that he will thereby cause destruction of any building which is
ordinarily used as a place of worship or as a place for human dwellin or as a place for custody of the
property by a member of a Scheduled Caste or Scheduled Tribe, shall be punishable with
imprisonment for life with fine.

56. Mischief:Section 425 I.P.C. dealing with the aspect of ”Mischief" reads: Mischief: Whoever with
intent to cause, or knowing that he is likely to cause wrongful loss or damage to the public or to any
person, causes the destruction of any property, or any such change in any property or in the
situation thereof as destroys or disminishes its value or utility, or affects it

injuriously commits ”Mischief.”

Explanation 1.~It is not essential to the offence of mischief that the offender should intend to cause
loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to
cause, or knows that he is

likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs
to that person or not.

Explanation ZaMischief may be committed by an act affecting property belonging to the person who
commits the act, or to that person and others jointly.

Illustrations

(a) A voluntarily burns a valuable security belonging to Z intending to cause wrongful loss to Z. A has
committed mischief.

(b) A introduces water into an ice house belonging to Z and thus causes the ice to melt, intending
wrongful loss to Z. A has committed mischief.

(c) A vo untarily throws into a river a ring be onging to 2, with the ‘ntention of thereby causing
wmngfu loss to Z. A has committed
-vac-aoqif /

Seco 3 S3" 48] Offences of Atrocities M7 147

47. Profit prendre and custom:-Thecourts in England had held that a profit a prendre which generally
destroys the subject matter of the right itself, canI‘Ot be claimed based on custom‘ in Arjun Kaibaria
and othersos. Manoranjan Bhaumick and othersz the Division Bench of the Calcutta High Court on
this

aspect hEId‘ ”The relevant question on this part of the case was whether the right

set up by defendants can have for its basis a valid existing custom. Even on the assumption that the
dcfendantshad established acustomitcmmot be treated as a valid custom on the ground of its
unreasonableness. As has been pointed out in the decision of this court in the case ofLutchmeput
Singh vs. Sadaulla N ushyo 3 according to the custom set up there would be no limitation to the
number of persons entitled to enjoy it. The number of persons may increase to any number and
unlimited number of persons can appropriate the profits of a private property, leaving nothing to
the owner. Every custom sanctioned and upheld by the court must be reasonable; a custom is
unreasonable when it throws an unjustburden on some individuals for the benth of others, a custom
may also be held to be unreasonable on the ground that it would destroy the subject matter of the
right. On the last ground it has been held by courts in England that a proht prendre cannot be
acquired by custom. It has also been held that the chief reason why a profit prener cannot be
supported by custom in favour of an indefinite and fluctuating body of person is that, were such a
right recognised, the result would be that the subject matter of the right would soon become
exhausted.”

48. Customary right of way:A right of way or other customary rights can be distinguished from
private rights which have their origin in grant or prescription. The source will be generally dedication
in case of public rights. The rights having origin in custom belonging to certain classes of persons like
inhabitants of a village etc. are customary rights‘. A road is not a public one where the privilege to
use it, is enjoyed only by a particular section of the public 01' by inhabitants of two or three villages5
where a dedication can be presumed by the user of a customary way by the general public, then
such a way can be treated as high way‘, where the pathway that is claimed is a rambling pathway
running through lands of various persons and a substantial portion runs t1”il’ough Government
poramboke land and during cultivation season the Villagers are not allowed to pass through, then
such enjoyment is not as of right’.

I. (1855) 4 58:8 702 Race vs. Ward (1878) 3 Ex. D 361 Rivers vs. Adams. 2. AIR 1934 Cal 461 at 464.

3. (1882) 9 ca. 698. 4. LR 15 Cal. 460, Chunilal vs. Ram Kishensahu AIR19ZB Cal. 200
Ali Mohammad vs. Smdkh Kant. 9 All. 434 Fatheyab vs. Mohammad. ‘1 0909) 1 Ch. 12 Famuoar vs.
Newbary Rural District (1865 ISO 20¢ Vestry vs. Brown).

AIR 1967 Mad. 164 Chidambm Them w. Vedayya Thevar.

5“. , 5,. 145] Otteneet o! Atrocities m ”lhe Indian Easements Act, 1882 deals wtth
cuttounryaaementa t! fete“ to customary rights as well but that to for the purpoleot making it
.bundantly clear that while the Act governs the tormenlt has noconeem with the latter Section 4 of
that Act defines an ’oasement’ on right which theowneror occupier of certain land
pouesm,auueh,lor thebeneftetal gnjoyment of that land to do and continue to do tomethtngor to
prevent and continue to prevent something being done, to or upon,or ln respect of certain other
land, not his own and Section 18 of the Act, deals with customary easements and provides that it
may be acquired in virtue of

a local custom. Sec.2(b) of that Act refers to a customary right in the following manner.”

”2. Nothing herein contained shall be deemed to affect any law not hereby expressly repealed, or to
derogate from.

(a) ”00.0.00“... 00.000.000.000 .0000000000' 00000000....

'00000000000000000'0'.0.00.u0010'OOOOOOOC"."COOON"O~"~I’

(b) any customary or other right (not being a licence) tn or over immovable property which the
Government, the public or any person may possess irrespective of other immovable property or

mommm ”O. -00. 0......” O O. ”OMOPO'O OM00). l, O '0 OOO‘UDNODO .0 "IO. '0”. .0000 O... .00 O.
'00 0000000000...

(C) ooonooooomoolmuo ooooo ob. ooooooo o 9000 ooooo

aeon...»coCuoou‘mtaoeoauulOIDMIOIO00000000000000.0000

It would thus appear that a customary right is so vastly differen

from a mstomary easement that the Easements Act does not at all deal with it and, on the other
hand expressly excludes it from its scope and purview. The real distinction between the two has
been ably set forth, in Freberick Peacocks well known treatise on the Law
relating to Easements in British India at page 205 of the Second Edition as follows:

“Customary easements as they are called in Sec.18 of the Indian Easements Act should be
distinguished from the customary rights referred to in Sec.2 cl.(b) of the same Act. The later are
rlghts arising by custom, but unappurtenant to a dominant tenement. No fixed period of

enjoyment is necessary to establish these rights but the custom must be reasonable and certain."

45. Customary Easements and prescriptive Easements:-The chief point of difference between
prescription and custom is that a claimby prescription is Personal that is to say, it is always made in
the name of certain person and his “M.Storsor those whoseestatehe hasorinabody corporateandits
predecessors: While custom being local, is not attached to any particular persons but to a P‘Hkular
locality and affects the property of the indeterminate number of Mfume tirnebeingconneeted
wither being members of a particular class

t locality“. ln lachhi and others vs. Ghanasara Singh’ on the aspect of

Hmy. Lame! England 3rd Ed Vol. ll Article 297 AIR 1972 All. 269 Prabhu Dayal V! Dhar. . l! at 90.

144 51:. ll: 81. (Prevention of Atrocities) Act, 1989 (Sec. 3 Sy. M

44. Customary Easements and customary rights:A customary right MMepmdmtofanydominant

heritageand is vested ina defined classor comnumity of a particular locality as distinguished from
individuals to: their solebenefit‘. Aaxstomaryeasementarisesinfavourofan indetexminateclass
ofpasonssichasresidmtsofalocahtyoramembersofacertaincommunity

and thoughnotnecsaarilyannexed to theownershipofiand it isenfomble asaright todoand continue to

do something uponiand orasa right toprevent and continue to prevent something being done upon
land and it should satisfy all the tests of a ioai custom’. A customary right belongs to no individual in
particulars and same maybeenjoyed by any oneoi the locality. Easementsare privaten‘ghts belonging
to particularpersons whiiecustomary n'ghtsarepublic tights annexed to a place’. x
lnlakshnu’dlnrMismvs. Rangalal ‘their Lordship of the Privy Council on the aspect of the nature of a
customary right observed:

”A customary right am exist only' m relation to the inhabitants of a district and it cannot be claimed
in respect of the public at large‘. The custom, ifatabiished makes the local law of the district and it
creates a right in mch o! the inhabitants is irrespective of his estate or interest in any Particular prow
The existence of a customary right am be inferred from long enjoyment

provided it has been exercised not by permission or force‘. In Kuar Sen vs. Wm’itwasobserved
onthisaspect.

‘Wherea load custom excluding or limiting the general rules of law is set up, a court should not
decide that it exists unless such court is satisfiedofitsmsonablenessand
itscertainityastoextentandappiiation and is furthel' satisfied by the evidence that the enjoyment of
the right was not by leave granted or by stealth or by force and/ that it had been

openly enjoyed for such a length of time as suggests that originally by agreement or otherwise, the
usage had become a customary law of the place in respect of the persons and things which it
concerned." '

Section 2(b) of the Act saves a customary right or other right not being a

iicenm in move: immovable property which the Government, the public or any person may possess
irrespective of other immoveable property unless it is expressly tepated or derogated from’ and
Sec.18 of the Act deals with the amuryasements and in Ramachandra Singh vs. Pratap Singh and
others ’ His lordship PNSinghai, I. observed on this aspect.

I. M31958Pm57| RajNudanStnghnRafnidshunLohar 2. NRIMsczslShthihatnSubodhCOpalBose.

3. AmlmQIMWMVIJ‘adhihPIasad.

t Am19509£56

s G795)2Hl.13935tdinkawiing

6. AIR 926M130QaimuDuttavs5amiCyannand¢

7
7A1”.

O §¢$O¢2thndhnEsanenbA¢

All 966 m 217st 219.

Sec. 3 83!. G0) Offences of Ahocltieo 1n

Sec. 3 8y. 36] Offences of Atrocities 139

Sec. 3 57'

35] omofm 137

S.C. 8: S.T. (Prevention of Atrocities) Act, 1989 lsec. 3 5y. 35

or Scheduled Tribe in any place within public view shall be punishable with imprisonment fora term
which shall not be less than six months but which may extend to five years and with fine.

Section 3(1)(xi) of the Act Section 3(1)(xi) of the Act says that whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe assaults or uses force to any woman belonging to a Scheduled
Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty shall be punishable with
imprisonment for a term which shall not be less than six months but which extend to five years and
with fine.

Assaults or uses force:Section 349 I.P.C. defines ”Force” as follows:

“A person is said to use force to another if he causes motion, change of motion or cessation of
motion to that other, or if the muses to any substance such motion, or change of motion, or
cessation of motion as brings that substance into contact with any part of that other‘s body or with
anything which that other is wearing or carrying or with anything so situated that such contact
affects that other's sense of feeling:

Provided that the person causing the motion, or change of motion, or cessation of motion, causes
that motion; change of motion, or cessation of motion in one of the three ways hereinafter
described.

first: By his own bodily power.

Secondly: By disposing any substance in such a manner that the motion or change or cessation of
motion takes place without any further action his part, or on the part of any other person.

Thirdly :- By inducing any animal to move, to change its motion or to case to move.
Section 350 I.P.C. defines ”Criminal Force ” as follows:

Criminal force: Whoever intentionally uses force to any person, without that person’sconsent, in
order to the commi tting of any offence, or intending by the use of such force to cause, or knowing it
to be likely that by the use of such force he will muse injury, fear or annoyance to the person to
whom the force is used, is said to use criminal force to that other.

Illustrations

(a) Z is sitting in a moored boat on a river, A unfastens the moorings, and thus intentionally cau ses
the boat to drift down the stream. Here a intentionally causes motion to Z, and he does this by
disposing substances in such a manner that the motion is produced without any other action on any
person’s part. A has therefore intentionally used force to Z and if he has done so without Z’s
consent, in order to the committing of any offence, or intending or knowing it to be likely that this
use of force will cause injury, fear or annoyance to Z, has used criminal force to Z.

//////////////////////////////////////////////////////////////////////

Section 3 (1) (vi) of the Act: Section 3(1)(vi) of the Act says that whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe, compels or entices a member of a Scheduled Caste or a
Scheduled Tribe to do ”begging” or other similar forms of forced or bonded labour other than any
compulsory service for public purposes imposed by Government 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.

Entices:-The word entices connotes some kind of persuasion or allurementJ. In re Tirumal Raju‘ I-Iis
Lordship Yahya Ali, I. while dealing with the word ’enticement’ in Section 498 I.P.C. observed:

”The petitioner was convicted by the Stationary Sub-magistrate, Puttur, under Section 498,
Penal Code and sentenced to rigorous imprisonment for four months. On appeal, the Joint
Magistrate, Chandragiri, while confirmi ng the conviction, converted the sentence of
imprisonment to a fineof Rs. 1000 and further directed that out of the fine, if collected, Rs.
500 should be paid to P.W.I. by way of compensaion under Section 545, Criminal Penal Code
. Both the Courts have found that inducement was offered to the wife of P.W.1 before she
was enticed by the petitioner from the house of her husband. It is in evidence that some
time prior to the occurrence the petitioner told P.W.1’s wife. ”It is not possible to come and
go like this, come along,l will take you and keep you as my concubine”. This amounts to
saying that he could not continue the liasion in the house of P.W.1 any longer and that if she
wanted to maintain the friendship, she should agree to desert her husband’s roof and go
over to the petitioner and live with him and in that case, he undertook to keep her as his
mistress. I cannot conceive of a stronger inducement than this to amount to enticement.

In Ramnarayan Babu Rao, Kapur vs. Emperors the Division Bench of Bombay High Court observed:

"The next point is that the taking and the enticing, If there was any, obviously took place in Mad ras
and the Magistrate in Bombay had no )urlldlctlon to try theseoffenccs. It is laid down in Section 177
of the Code that every offence shall ordinarily be inquired into and tried by a court within the local
llmltl of whose jurisdiction it was committed. It has been repeatedly held in cases under Section 361,
I.?.C. (where the same words are used) that the taking in these cases is not a continuing offence but
is complete as soon as the person concerned is out of the keeping or control of the guardian. The
same applies to enticing also. No doubt enticing initsclf maybea continuous process, but enticing
from a particular person cannot be so i.e., it cannot continue after that person’s control has ceased.
The word ordinarily in Section 177 means except where provided otherwise in the Code.” See 30
Born. LR 387‘. There are no speclal provisions as to the trial of offences under Section 498 CI. (4)
Section 181 only applies to kidnapping and abduction. As a matter of fact, speaking for myself,
ldoubt if there is any satisfactory and sufficient evidence that there was any enticing in this case.
Ranganayaki says in her evidence:

I informed the accused that I was discarded by my husband. At my suggestion the accused
sought the advice of a lawyer as I was anxious to ma rry him. The accused was also anxious to marry
me. I had fixed 4th January 1935, to leave with the accused. It was fixed at my suggestion. The
subsequent change to 23rd January 1935, was also at my suggestion. I was anxious to leave Madras
as I did not like Madras. It was my love and affection for the accused that made me go with the
accused and not the ornaments, money and diamond rings which he offered me.

No doubt Ranganayaki may be infatuated with the accused and her evidence to some extent
is suspected for that reason. It is quite possible also, as the learned Government pleader suggests,
that the accused may have deceived her in many ways. But considering the whole histofy of the
affair, as it appears in evidence, I cannot see any reason to doubt that the two were in love with one
another and the elopement was a joint ad venture in which the motive force was mutual affection
and not any enticement by the accused. So far as te second count of the charge is concerned, failure
to prove that the complainant had the care of Ranganayaki on behalf of her husband would not be
material. But the question here is whether there really was anything that amounts to detention. The
meaning of the word ’detains’ in Section 498 has been recently discussed in 58 Bom. 882; it was
pointed out there that the word has its ordinary meaning of keeping back. There may be various
ways of keeping back. It need not necessarily be by a physical force, but the use of the word does
require that there should be something in the nature of Control or influence which can Properly be
described as a keeping back of the woman, and it cannot properly be said that a man detains a
woman if she has no desire to leave and on the contrary wishes to stay with him. It seems to me in
thiscase that it cannot be said in any sense that Ranganayaki was kept back by the accused either
from the complainant. She has no more use for her husband than he has for her and she was
evidently most unhappy at home. When she was examined by the Magistrate in the preliminary
proceedings on 4th March 1935 she said:

It is not true that I am unlawfully and illegally detained. It is not true that my life is in danger. My
liberty is not in any way fettered. I am a free agent and 1am able to do what I like. I am about 18
years and five months old. I have sufficient means of my own here and I am able to look after myself.
I do not want to go out of Bombay. 1 shall appear in Cou rt whenever required. I do not want to goto
my father or to my brother.

I think that neither force nor persuasion was at all necessary to keep herwith the accused. She was a
free agent as she says had stayed with him because she wished to do so. It would be impossible to
say that the accused detained her unless the word is to be taken to mean no more than maintain or
harbour, which I think, cannot be the case. Lastly, coming to the charge of adultery, it appears that
there was no legal cOmplain} of this offence. What was alleged in the complaint was that
Ranganayaki was putting up with the accused; that he proposed to elope with her and marry her;
that her life was likely to be mined and that it was dangerous to allow her to remain with the
accused and absolutely necessary to rescue her before it was too late. N o where was it stated that
adultery had been committed. N or was any statement made to that affect in any of the preliminary
proceedings. The case was registered as one under Section 498 and there is nothing to show that it
was treated by any body as anything else until the recording of certain evidence in the course of the
actual trial. The learned Magistrate’s view is that if a petition contains an allegation of facts which if
proved by evidence, would constitute a particular offence, then it may be regarded as a complaint of
that offence. That may be so. But the necessary averments must be present. It is not enou gh to say
as the complainant did say in his complaint, that the girl was putting up with the accused and in
dangerofbeing mined and so on. Thus even on the footing that the Complainant was competent to
make the complaint at all there is in fact no complaint of the offence of adultery and it was illegal to
convict the accused of it. The learned Government pleader referred us to a case in 20 Cal. 4841 as a
thority for the proposition that the court has power to frame a charge of an offence under Section
497 or Section 498 even without a complaint by the sband. The Calcutta High Court however took a
different view in a later case, 29 Cal4152 and this High court in 14 Bom. LR 1413 and 31 Born. 218‘
has also taken the view that a complaintby the husband is an essential requirement which cannot
be dispensed with. If a criminal charge of adultery is to be preferred a formal complaint of that
offence must be instituted in the manner provided by law, and if it is not, the requirements of
Section 199 of the Code will not have been satisfied."

Section 3(1)(vii) of the Act:Section 3(1)(vii) of the Act says that whoever, not being a member of a
Scheduled Caste or a Schedule Tribe forms or intimidates a member of a Scheduled Caste or a
Scheduled Tribe not to vote or to vote to a particular candidate or to vote in a manner other than
provided by law 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.

Intimidates:Section 503 of Indian Penal Code dealing with criminal intimidation reads:

Criminal Intimidation:Whoever threatens another with any injury to his person, reputation or
property, or to the person of reputation of any one in whom that person is interested, with intent to
cause alarm to that person, or to cause that person to do any act which he is not legally bound to do
or to omit to do any act which that person is legally entitled to do as the means of avoiding the
execution of such threat, commits criminal intimidatiOn.

Explanation” A threat to injure the reputation of any deceased person in whom the person
threatened is interested is within this section.

The Law Commission in its Report on I.P.C. states on this aspect:

”22.1. Criminal intimidation is defined comprehensively in Section 503. Butrather curiously the
punishment for the offence in its simple form and in two different aggravated forms is prescribed in
Sections 506 and 507, after dealing with intent to provoke breach of peace in Section 504 and
publication of statement conducive to public mischief in Section 504 and publication of statement
conducive to public mischief in Section 505. The last mentioned section (particularly after the recent
amendment of 1969) contains a mixture of ideas, some of which could more appropriately have
been put in the earlier chapters. Section 508 constitutes an offence substantially similar to the
offence of criminal intimidation. Section 509 is connected with Section 504 insult being the common
feature, while Section 510 falls under the category of annoyance, the third limb mentioned in the
chapter heading. The chapter is thus heterogeneous, ill arranged, but nonetheles‘s useful mix true of
penal provisions.

These four Sections (i.e. 503, 506, 507 and 508) relating to criminal intimidation do not require any
change but should preferably be brought together.
 Another type of intimidation which in our opinion should be punishable under this code is
threatening to commit suicide with the object of coercing a public authority to pursue a course of
action which it is not prepared To do. We have in a previous chapter recommended that an attempt
to comm“ suicide should cease to be an offence. Suicide threats of the type mentioned above, of
which we have experienced quite a few in recent years, are in a different category. Their main object
can only be described as cocercion or intimidation of public authorities, and the persons indulging in
such threats hope to achieve their object by the d istu rbance bf public order and tranquillity Which
they expect to create during the days when they are ostentatiously preparing to carry out their
threat. In our opinion, there is no justification to;the State permitting such agitatiohal activity to be
carried on with impunity. This viewis shared bya large numberof persons who replied to our
questionnaire in which we had included a specific question on this point”.

In Roma}: Chandra Arora vs. The State1 His Lordship S.K. Das, I. observed while dealing with Criminal
intimidation as follows:

”We proceed now to consider these grounds in the order in which we have stated. The
learned counsel for the appellant has drawn our attention to the charge framed against the
appellant by the Learned Magistrate. That charge said in effect that in the years 1953 to
1954 the appellant committed criminal intimidation by threatening ’x’ and his daughter with
injury to their reputation by publication of the nude photographs, with intent to cause alarm
to them. It is pointed out that there was no reference to blackmail or extortion in the
charge. The argument before us is that the charge mentioned that the intent was to cause
alarm only to ’x’ and his daughter but the finding was that there was an attempt to extort
money from ’x’ on the threat of publishing the objeCtionable photographs. It is contended
that on this finding the conviction of the appellant under Section 506 Indian Penal Code, was
bad; he might have been found guilty under Section 384 read with Sec. 511, Indian Penal
Code, if charges were properly made under those sections. We are unable to accept this
contention as correct. We agree with the High Court that the charge framed against the
appellant was not as clear as it might have been. It stated however, that the offence of
criminal intimidation was committed by threatening ’x' and his daughter with injury to their
reputation by having the indecent photographs published, the intent mentioned was to
cause alarm to ’x’ and his daughter. The real intention, as disclosed by the evidence
accepted by the trial Magistrate and the High Court, was to force ’X’ to pay”hush money”.
Section 506 is the penal section which states the punishment for theoffence of criminal
intimidation, the offence itself is defined in Section 503. Leaving out what is not necessary
for our purpose, the section last mentioned is in two parts, the first part refers to the act of
threatening another with injury to his person, reputation or property or to the person or
reputation of anyone in whom that person is interested; the second part refers to the intent
with which the threatening is done and it is of two categories, one is intent to cause alarm to
the person threatend, and the second is to cause that person to do any act which is not
legally bound to do or to omit to do any act which the person is legally entitled to do, as the
means of avoiding the execution of such threat. On the findings arrived at against the
appellant the first part of the section is clearly fulfilled and ‘as to the intent it comes more
properly under the second category, that is to cause 'x’ to do any act ( in other words, to pay
hush money) which he was not legally bound to do, as a means of avoiding the execution of
the threat. It is perhaps correct to say that the threat of publication of the photographs must
have also caused alarm to ’x’ but the real intention of the appellant appears to have been
not so much to cause alarm only as to make X pay ’hush money’ to him. It is not unoften that
a particular act in some of its aspects comes within the definition of a particular offence in
 the Indian Penal Code, while in other aspects, or taken as a whole it comes within another
definition. There are obvious differences between the offence of extortion as defined in
Section383 and the offence of criminal intimidation as defined in Section 503. It is
unnecessary to debate on those differences in the present case. All that we need say is that
on the finding of the Learned Magistrate, which finding was affirmed by the High Court, the
appellant was clearly guilty of the offence of criminal intimidation. We therefore, hold that
the conviction of the appellant under Section 506 is correct. We further agree with the High
Court that no prejudice was caused to the appellant by reason of the detect, if any in the
charge as to the intent of the appellant. He was fully aware of the case made by the
prosecution and had full opportunity of rebutting the evidence given against him."

Section 3(1)(viii) of the Act:-Section 3(1)(viii) of the Act says that whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe institutes false,malicious or vexatious suit or criminal or other
legal proceedings againstamember ofaScheduled Caste oraScheduled Tribe shallbepunishabie with
imprisonment fora term which shall not beless than six months but which may extend to five years
and with fine.

Section 3(1)(ix) of the ActzSection 3(1)(ix) of the Act says that whoever not being a member of a
Scheduled Caste or a Scheduled Tn‘be gives any false or frivolous information to any public servant
to use his lawful power to the injury or annoyance of a member of a Scheduled Caste or a Scheduled
Tribe shall be punishable with impri sonment for a term which shall not be less than six months but
which may extend to five years and with fine.

Section 3(1)(x) of the Act:--Section 3(1)(x) of the Act says that whoever, not being a member of a
Scheduled Caste or Scheduled Tribe intentionally 'ns ts or intimidates with intent to humiliate a
member of a Scheduled Caste