1. This is an application in revision and the object of it is to set aside an order of discharge passed by the District Magistrate at Broach in a complaint instituted by the petitioner against Rao Bahadur Motilal Chunilal, President of the Broach Municipality and two others, charging them, first with an abetment of committing mischief under Sections 426 and 114 of the Indian Penal. Code and secondly, under Section 297 with trespass in a place of sepulture with intent to wound the feelings or insult the religion of the petitioner and other Mussalmans or with the knowledge that that was likely to be the effect of the trespass.
2. The learned Magistrate having examined all the witnesses offered on behalf of the petitioner came to the conclusion that there were no grounds for framing a charge against the persons accused and, therefore, discharged them under Section 253 of the Criminal Procedure Code. The question is 4 whether that order ought now to be disturbed, and, in my judgment a very heavy burden lies upon those who seek to disturb it. Even in cases of regular appeal the ordinary rule is that no Court of Appeal will lightly substitute its own view of evidence for the view of the Court, which had the advantage of seeing and hearing the witnesses. This being an application in revision is, in my opinion, on a lower plane than a regular appeal, and unless the petitioner can show us plain reasons against the order of which he complains. I do not think that he can have any chance of succeeding.
3. We have heard arguments at very considerable length, and I have abstained from endeavouring to curtail them only for this reason, that there does lie at the bottom of this very simple question a controversy which evidently excited unfortunate feelings of racial difference among the inhabitants of Broach. And that being so, I considered it my duty to hear all that could be said on one side or the other, without too nicely determining whether everything that was said was strictly admissible upon such an application as this.
4. There are two parts which must both be . considered, for while it is undesirable that the criminal process of the Courts should be abused with the object of merely furthering a civil claim, it would on the other hand be intolerable, if by reason of the position of any individual whatever, he were allowed to evade the law which awards punishment for wounding or insulting the religious feelings of other people. It seems to me that the question really before us is--into which of these classes does the present case properly fall? That is a question of fact ultimately, and the Magistrate's judgment upon that point is entitled to all that respect to which I made reference earlier. The Magistrate has found that this prosecution is simply a device used in the hope of extorting some admission of a civil claim by exposing the Hindu President of this Municipality to the indignity of a criminal charge. The Magistrate has shown many reasons in support of that finding. And though, as I have said, it is by no means necessary for me to say, that I concur in those reasons, yet I see no reason to scruple at saying that I do concur in them. The learned Magistrate has examined all the oral evidence minutely, and in regard to each witness he has shown reasons for his inability to accept the witness statements. Whether those reasons are good or bad, they are at least such reasons as, in my opinion, are outside the control of this Court in revision as I have said I myself concur in them.
5. It is true that at the beginning of his judgment the learned Magistrate has, in my opinion, committed a slight error in his construction of Section 297 of the Indian Penal Code, for he seems to have been under an impression that that section required proof on the part of the prosecution that the trespass had been committed on a place sot apart for the performance of funeral rites or as a depository for the re- mains of the dead. That I think is not the requirement of the section inasmuch as the section is equally satisfied if the prosecution are in a position to prove that the trespass occurred on any place of sepulture. It was at least incumbent on the prosecution to establish to the Magistrate's satisfaction that the place was in fact a place of sepulture, but the evidence which they offered in that behalf was found to be wholly inconclusive. Proceeding further, the Magistrate, as I read his judgment, says that even admitting for the sake of argument that there were a few isolated and secret cases of burial in the course of many years upon this piece of property that would not be enough to constitute it a place of sepulture within the meaning of the section. That argument -was forcibly pressed upon us in the able and terse address of Mr. Talyarkhan and in my opinion it is an argument which ought to be allowed. The Magistrate similarly disbelieved the evidence which was offered that a trespass had been committed by the accused with the knowledge or intent made criminal and the whole story of digging up the bones is branded by the Magistrate as a fabrication for the purposes of this prosecution.
6. In spite of the elaborate arguments which we have heard it has never been questioned that Mr. Motilal's only interest in this controversy was his interest as President of the Broach Municipality and it has not been suggested before us that he ever had any private animus or sinister motive in-entering upon this land upon which as President of the Municipality it was his duty to enter.
7. As to the documentary evidence Mr. Branson laid great stress upon Exhibit 44 the letter in which the Commissioner, Mr. Doderet recorded his own opinion upon this question. I am by no means clear that that letter was properly admitted upon the record but I am clear that its effect, whatever that may be, is entirely removed by Exhibit B, the extract from the City Survey dated 1872 and Exhibit A the Government Resolution of April 1900.
8. This exhausts all that, I think, is necessary to say concerning this application. And I have said more than I should have troubled to say except for those unfortunate feelings of religions hostility which I noticed earlier. In my opinion, and I have no point of view from which to regard this case except as a Judge endeavouring to administer the Criminal Law, the applicant has made out no case whatever for the exercise of revisional jurisdiction here. I think, therefore, that the application ought to be dismissed.
9. I concur generally. Waiting the value of the evidence brought by the prosecution and assuming for the sake of argument that the whole of that evidence is true, I should still feel considerable doubt whether the offence with which the accused persons were charged could be brought home to thorn upon it. And it is enough for me, while as I said, concurring generally with most that has fallen from my learned brother, to rest my decision upon that similar ground. I cannot help feeling sifter giving my most careful attention to Section 297 that the trespass therein contemplated is such a tresspass as is defined by the Indian Penal Code. And once again, taking it for granted that all that the witnesses have said is true, these facts alone would not appear to me, if we accept the definition of 'trespass' in the Penal Code, to make out that offence on the part of these accused persons who went upon their own land, to do their own business, We have to remember that while the section is comprehensively worded, the offence at which it strikes, is intimately bound up with the commission of a trespass or subject to that of deliberately offering an indignity to a corpse or causing disturbance to a body of persons assembled for religious purposes. Failing to prove trespass, it appears to me that there is really no definite allegation that the accused intentionally offered any indignity to a corpse, much less has that been proved. This, I think, is enough to explain why without going further I should be indisposed to exercise our revisional authority here. My learned brother has dealt very ably and fully with the whole case and I concur in the conclusions which he has reached.