Conversion of scheduled tribe member to Christianity, issue to be decided by trial court.

ORDER: This petition has been filed to issue necessary directions to the respondents-police to proceed against the accused and investigate Crime No.234 of 2003 and file a final report.

2. The brief facts of the case are as follows: The petitioner Arumugam alias Asirvatham filed a complaint before the first respondent-police on 5.9.2003, based on which a case in Cr.No.234 of 2003 for alleged offences under Sec.3(1) of Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act was registered. Since there is no progress in the case, the petitioner filed this Crl.O.P., to direct the the respondents herein to complete the investigation and file a final report. This Petition was filed during January, 2004. This Court was informed by the Government Advocate on 24.3.2004 that the case was investigated and found to be mistake of fact and R.C.Notice No.4 of 2003 was served on the complainant. The learned counsel for the petitioner submitted that no R.C.Notice was served on the petitioner. Therefore the respondents-police was directed to produce the R.C.Notice in Court on 31.3.2004. On 31.3.2004, the R.C.Notice was not produced by the first respondent-police. Therefore, this Court directed the Registry to call for the records in Crime No.234 of 2003. Thereafter the R.C.Notice was served on the mid-night of 1.4.2004, wherein, the petitioner was required to be present on 2.4.2004 before the Judicial Magistrate at Tenkasi. Since there was not even breathing time, the petitioner could not appear on 2.4.2004, the learned Judicial Magistrate passed an order saying “complainant called absent and the case was closed as mistake of fact”. 3rd and 4th of April, 2004 were holidays. On 5.4.2004, the petitioner appeared before the Judicial Magistrate and filed a petition which was returned stating that the case has already been closed as mistake of fact based on the report of the Deputy Superintendent of Police, Alangulam.

3. A perusal of the final report now produced by the learned Government Advocate would show that on facts and law, the case is referred as mistake of fact. On the question of law, the Investigating Officer has come to the conclusion that the petitioner has converted his religion from Hinduism to Christianity and therefore he is not a member of the Scheduled Caste. On this aspect, the learned counsel for the petitioner rightly relied upon a judgment of the Hon’ble Supreme Court reported in State of Kerala v. Chandramohanan,(2004)1 C.C.R. 193 (S.C), wherein the Supreme Court held as follows:

“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 member of the Tribe if he continues to follow the tribal traits and customs.

6. In Nityanand Sharma and another v. State of Bihar and others, (1996)3 S.C.C. 576, a three Judge Bench of this Court while considering the question as to whether Lohars, who are members of the Scheduled Tribes are same or not, held:

“Despite the cultural advancement, the genetic traits pass on from generation to generation and no one could escape or forget or get them over. The tribal customs are peculiar for each tribe or tribal communities and are still being maintained and preserved. Their cultural advancement to some extent may have modernised and progressed but they would not be oblivious or ignorant of their customary and cultural past to establish their affinity to the membership of a particular tribe. The tribe or tribal communities, parts of or groups thereof have their peculiar traits”.

7. As regards Scheduled Castes, this Court in the case of Punit Rai v. Dinesh Chadhary, 2003 S.L.T. 257, held as follows:

“30. In Caste and the Law in India by Justice S.B.Wad at p.30 under the heading “Sociological Implications”, it is stated:

“Traditionally, a person belongs to a caste in which he is born. The caste of the parents determines

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