TMI Blog2004 (1) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... arging the respondent under Section 3(i)(xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act'). On the basis of the said First Information Reports, the Chief Judicial Magistrate summoned the respondent taking cognizance against him under Section 3(1)(xi) of the Act as well as under Section 509 of the Indian Penal Code. Aggrieved, the respondent filed a petition under Section 482 of the Code of Criminal Procedure, for quashing the charges framed under Section 3(1)(xi) of the Act. The High Court was of the view that since the victim's parents have embraced Christianity, therefore, the victim ceased to be a member of the Scheduled Tribe. On this premise, the High Court quashed the charges framed against the respondent under Section 3(1)(xi) of the Act. It is against the said judgment, the State of Kerala has preferred this appeal by way of special leave petition. 2. When the matter came up before a Bench of two learned Judges, they were of the view that this matter should be heard by a larger Bench. It is by this way, the matter has come up before us. 3. The question which has been raised at the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws of the Munda the Oraon, by Dr. Jai Prakash Gupta) Tribe in the Dictionary of Anthropology is defined as 'a social group, usually with a definite area, dialect, cultural homogeneity , and unifying social organization. It may include several subgroups, such as sibs or villages. A tribe ordinarily has a leader and may have a common ancestor, as well as patron deity. The families or small communities making up the tribe are linked through economic, social, religious, family, or blood ties'. (See Tribal India A profile in Indian Ethnology by K.L. Bhowmik) 5. The question as to whether a person is a member of the Tribe or has been accepted as such, despite his conversion to another religion, is essentially a question of fact. A member of a Tribe despite his change in the religion may remain a member of the Tribe if he continues to follow the tribal traits and customs. 6. In Nityanand Sharma and Anr. v. State of Bihar and Ors., [1996] 2 SCR 1 , a three Judge Bench of this Court while considering the question as to whether Lohars, who are blacksmiths in the State of Bihar and Lohars, who are members of the Scheduled Tribes are same or not, held: Despite the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribe by marriage or not. This Court held that only by reason of marriage a woman does not become a member of the Tribe, but only in the event, she is accepted as such by the other members of the tribe and approved by the Panchayat, she may be considered to be a member thereof. 9. In the aforementioned judgment it has been noticed that the Mundas are endogamous and inter-marriage with non - Mundas is normally prohibited. In such an event, a member of the tribe may also be ex-communicated. 10. In Oraon Religion Customs by Sarat Chandra Roy, it is stated: Oraon religion, like similar other religious, is primarily concerned with ancestral and certain other disembodied souls, and Nature spirits and deities. The rites employed to establish harmonious relations with them are mainly supplications and prayers, offerings and sacrifices, and the ceremonial sharing of sacrificial food besides certain special observances and taboos. 11. Even if the members of the tribe belong to different religion, the rites conducted during marriage may be different but in other respects namely inheritance, succession, etc. they may be following the same traits. (See Tribal Life of North-Easte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is based primarily upon a sense of extended kinship ties. 16. Before a person can be brought within the purview of the Constitution (Scheduled Tribes) Order, 1950, he must belong to a Tribe. A person for the purpose of obtaining the benefits of the Presidential Order must fulfill the condition of being a member of a Tribe and continue to be a member of the Tribe. If by reason of conversion to a different religion a long time back, he/his ancestors have not been following the customs, rituals and other traits, which are required to be followed by the members of the Tribe and even had not been following the Customary Laws of Succession, Inheritance, Marriage etc., he may not be accepted to be a member of a Tribe. In this case, it has been contended that the family of the victim had been converted about 200 years' back and in fact the father of the victim married a woman belonging to a Roman Catholic, wherefrom he again became a Roman Catholic. The question, therefore, which may have to be gone into is as to whether the family continued to be a member of a Scheduled Tribe or not. Such a question can be gone into only during trial. 17. In C.M. Arumugam (supra), this Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras High Court in G. Michael's case that there were several cases in which a member of one of the lower castes who has been converted to Christianity has continued not only to consider himself as still being a member of the caste, but has also been considered so by other members of the caste who had not been converted. Rajamannar C.J., who it can safely be presumed, was familiar with the customs and practices prevalent in South India, accepted the position that instances can be found in which in spite of conversion the caste distinctions might continue , though he treated them as exceptions to the general rule. 11. The High Court of Andhra Pradesh also affirmed in Kothapalli Narasayya v. Jammana Jogi 30 ELR 199 (AP) that notwithstanding conversion, the converts whether an individual or family or group of converts, may like to be governed by the law by which they were governed before they became converts ... and the community to which they originally belonged may also continue to accept them within their fold notwithstanding conversion... 18. The aforementioned decision is, thus, also an authority for the proposition that upon conversion, a person may be governed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
