1. This case originally came on for hearing in the Single Bench before my brother Brodhurst, and, in view of the peculiarities of the question with regard to the right of worshipping in mosques possessed by Muhammadans, my learned brother referred the case to a Division Bench, of which, at his suggestion, and with the approval of the learned Chief Justice, I was to be a member. The case was accordingly heard by a Bench consisting of my brother Oldfield and myself; and, in consideration of the fact that the main object of the application for revision obviously was to obtain an authoritative ruing upon the question, and also because the applicant's counsel informed us that the applicants, having paid the fines inflicted upon them were not undergoing the alternative sentence of imprisonment, we referred the case to the Full Bench, before which the case was re-argued by Mr. Amir-ud-din on behalf of the applicant's, and the learned Public Prosecutor on behalf of the Crown. Upon that occasion, after having fully heard the arguments on either side, I was unable to form any opinion such as could be made the has is of any order in the case, and being desirous of consulting the original authorities of Muhammadan Law, I wished to reserve my order to enable me to prepare a judgment in writing, as the question raised by the reference seemed to be far from simple, specially as, in my opinion, it turned upon a very minute point of the Muhammadan Ecclesiastical Law. The learned Chief Justice and my learned brethren, however, were able on that occasion to form an opinion in the case, and made an order remanding the case for re-trial on certain issues. My brother Straight, whilst consenting to the order of re-trial, was inclined to the opinion that the evidence on the record was sufficient to justify the conviction. I was, however, unfortunately not able to concur in, or dissent from, the order for the simple reason that I had formed no definite opinion in the absence of the authorities of Muhammadan Law, which had not been cited on either side.
2. Under these circumstances, it has devolved upon me now to deliver my judgment in the cafe, and I regret that, the conclusion at which I have arrived is different from that at which the learned Chief Justice and the rest of the Court have done In view of this circumstance, and also because facts similar to those that exist in this case have before now been made the subject of criminal prosecutions in cases which have ultimately come up to this Court in revision, I wish to explain my reasons fully.
3. The facts of the case itself are very simple. The mosque in question in this case is situate in muhalla Maddanpura, in the city of Benares, and it was built by one Ali Muhammad alias Allu, who is staled by the prosecution to have followed the doctrines of Imam Abu Hanifa, and was therefore a Hanifi. The prosecutor, Abdulla, is a brother-in-law of the founder of the mosque, his sister Waving been married to Allu, and the principal accused, Ramzan, is the son-in-law of Allu, and also otherwise related to him. The other two accused, Muhammad Husain and Abdul Rahman, are persons holding religious views similar to those held by Ramzan.
4. It appears that on the 22nd of August 1884, the three accused joined the Congregation in the mosque, and during the prayer said the word 'amin,' aloud. This appears to hive led to a discussion as to whether it was right to say the word aloud in prayers, and a healed argument took place, resulting in the accused being turned out of the mosque with the help of the Police, and the prosecutor prohibiting them from coming to the mosque again; unless they renounced the rite of spying 'amin' aloud in prayers.
5. On the 1st of September 1884, Abdulla and soma other persons presented an application to the Magistrate, describing the occurrence of the 22nd August, and asking for the interference of the Magisterial authorities, on the ground that breach of the peace was likely to take place by reason of the accused insisting upon saying the word 'amin' aloud in prayers. No definite action appears to have been taken by the Magisterial authorities on that application beyond sending it for inquiry to the City Inspector of Police, and matters seemed to have stood thus, when, on the 20th of September 1884, Abdulla by himself filed another petition, complaining of the accused, and charging them with 'the offence of insulting the religion of the Hanafia Musalmans' under Sections 297, 298 and 352 of the Indian final Code. The Magistrate, after having examined the prosecutor and the witnesses for the prosecution, framed charges against the accused under Section 296 of the Indian Penal Code, and alter having taken the evidence on behalf of the defence, convicted them under that section, and sentenced them to pay a fine of Rs. 25 each, and in default to undergo rigorous imprisonment for one month.
6. The accused have applied for ravision to this Court under Section 439 of the Criminal Procedure Code, on the ground that 'to pronounce the word 'amm' in a loud tone during the prayers is not an offence punishable under Section 296 of the Indian Penal Code.'
7. The question so raised seems to me to involve mixed considerations of the meaning of the Indian Penal Code and the Muhammadan Ecclesiastical Law; for, according to my view, the application of the former depends upon the interpretation of the latter in connection with this case. But before discussing this question, I wish to express my views with reference to the observation which was nude in the course of the argument that this Court, is not bound to consider the Muhammadan Ecclesiastical Law in such cases without having the rules of that law proved by specific evidence like any other fact in a Legation. I am unable to accept this view, because, if it is conceded that the decision of this case depends (as I shall presently endeavour to show it does rieoend) upon the interpretation of the Muhammadan Ecclesiastical Law, it is to my mind the duty of this Court, and of till Courts subordinate to it, to take judicial notice of such law. I hold that Clause (1) of Section 57 of the Evidence Act (I of 1872) fully covers the Muhammadan Ecclesiastical Law in such cases, because, whenever a question of civil right or the lawfulness of an act arises in a judicial proceeding, even a Criminal Court is bound, ex necessitate, to resort to the Civil branch of the law; and, in a case like the present, the question being the right of a Muhammadan to pray in a mosque according to his tenets, the question of legality or illegality would fall under the purview of the express guarantee given by the Legislature in Section 24 of the Bengal Civil Courts Act (VI of 1871), that the Muhammadan Law shall be administered with reference to all questions regarding 'any religious usage or institution.' That the application of some of the sections of the Indian Penal Code depends almost entirely upon the correct interpretation of the rules of civil law, cannot, in my opinion, be doubted; and if it is so, the present case is only another illustration of this principle. Indeed, I am prepared to go the length of saying that, but for this principle, the rules of the Penal Code would in many cases operate as a great injustice, and acts fully justified by the civil law would constitute offences under that Code. I hold therefore that in a case like the present, the provisions of Section 56 of the Evidence Act fully relieve the parties from the necessity of proving the Muhammadan Ecclesiastical Law upon the subject, that that law is not to be placed upon the same footing with reference to this matter as any foreign law of which judicial notice cannot be taken by the Courts in British India; and it follows that I can refer to the Muhammadan Ecclesiastical Law for the purposes of this case, notwithstanding the absence of any specific evidence on the record regarding its rules.
8. Now, before going further, I wish to observe that the main allegations on behalf of the prosecution, contained in the petition of the 1st September 1884, and in that of the 20th September 1884, relate to the conduct of the accused in Raying the word 'amin' aloud during prayers in the mosque; that in the evidence for the prosecution itself the loud utterance of that word is the gravamen of the accusation; that the Magistrate framed charges under Section 296, Indian Penal Code, with reference to that matter alone, disregarding the other sections of the Indian Penal Code cited on behalf of the prosecution; and that his judgment entirely proceeds upon the view that the loud utterance of the word 'amin' during prayers constitutes a criminal offence under the circumstances of this case. It is true that in the evidence for the prosecution there were vaguer allegations as to other facts which might possibly have furnished basis for charging the accused under some other sections of the Indian Penal Code; but, as a matter of fact, the Magistrate did not charge or try the accused under any other section, and at all events we in the Full Bench are not concerned with the whole case.
9. Holding these views, I feel myself called upon, sitting as a Judge in the Full Bench to which the reference has been made solely as to Section 296 of the Indian Panel Code, to consider the case for the purpose of answering the reference only in that aspect, leaving it to the referring Bench to decide questions which may possibly arise in the case beyond the scope of the question referred.
10. But before discussing the various elements of the offence described in the section, I think it necessary to consider whether the saying of amin aloud in prayers is not an act which falls within the purview of Section 79 of the Indian Penal Code, which lays down the elementary proposition of the criminal law that 'nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it.'
11. The word amin is of Semitic origin, being used both in Arabic and Hebrew, and has been adopted in prayers by Muhammadans as much as by Christians. The word does not occur in the Kuran, but in conformity with the 'Sunna,' or the practice of the Prophet, it is regarded by Muhammadans as an essential part of the prayers, as a word representing earnestness in devotion. The word is pronounced at the end of the first chapter of the Kuran, which consists of the folic wing prayers: 'Praise be to God, the Lord of all creatures; the most merciful, the King of the day of judgment. Thee do we worship, and of Thee do we beg assistance. Direct us in the right way, in the way of those to whom Thou hast been gracious; not of those against whom Thou art incensed, nor of those who go astray.'
12. In order to understand the exact difficulty which has arisen in this case with reference to the word amin, it is necessary to bear in mind that Muhammadanism, like other religions, is divided into various sects or schools of doctrine, differing from each other either in matters of principle or in matters of detail as to the minor points of ritual. 'The Musalmans who assume to themselves the distinction of orthodox, are such us maintain the most obvious interpretation of the Kuran and the obligatory force of the traditions in opposition to the innovations of the sectaries, whence they are termed Sunnis or traditionists...and it is their opinion alone which is admitted to have any weight in the determinations of jurisprudence.' These four schools or sects, of which this concise account has been given by Mr. Hamilton in the Preliminary Discourse of his translation of the Hedaya, were founded by the four orthodox Imams, namely, Abu Hanifa, Malik, Shafai, and Hanbal, all of whom flourished within the first two centuries of the Muhammadan era, or the eighth century of the Christian era. To use the language of Mr. Hamilton again: 'The word orthodox as here used is confined purely to a justness of thinking in spiritual matters, concerning which the opinions of those four sects perfectly coincide, the differences among them relating solely to their expositions of the temporal law.'
13. I have mentioned all this in order to render intelligible what I am going to say presently regarding the Muharamadan Ecclesiastical Law with reference to pronouncing the word amin in prayers. All parties concerned in this case admittedly belong to the Sunni persuasion, and the mosque in question belongs also to the Sunni section of the Muhammadan population. It is an indisputable matter of the Muhammadan Ecclesiastical Law that the word amin should be pronounced in prayers after the Sura-i-Fateha or the first chapter of the Kuran, and that the only difference of opinion among the four Imams is, whether it should he pronounced aloud or in a low voice. The Hedaya, which is the most celebrated text-book of the Hannfi school of law, lays down the rule in the following terms: 'When the Imam (leader in prayers) has said 'nor of those who go astray,' he should say amin, and so should those who are following him in the prayers; because the Prophet has said that 'when the Imam says amin, you must say amin too,'...and it must he said in a low voice, because such is the tradition stated by Ibu-i-Masud, and also because the word is the prayer, and should therefore be pronounced in a low voice.' That this doctrine is the result of weighing the authority of conflicting traditions is apparent from the commentary on the above passage of the Hedaya by Ihu-i-Humam, a celebrated author of the Hanafi school. These traditions are collected in the celebrated collections of traditions (Siha) of Bukhari and Muslim, both equally acknowledged as accurate traditionists by all the schools of the Sunni Muhammadans. From the same traditions the followers of Imam Shatai have evolved the doctrine that amin should be pronounced aloud, and the views of that school are best stated by Nawawi, a commentator on Sahi Muslim. The followers of the other two Imams, namely, Malik and Hanbal, also maintain that the word amin should be pronounced aloud. But it is not necessary to cite authorities for this proposition, bee use their followers do not exist in British India. From what I have already said, it is clear that the doctrines of all the four Imams are regarded by Sunni Muhammadans as orthodox, and that the differences of opinion which exist between them are pure matters of detail. Indeed, in the greatest mosque in the world, namely, the Kaaba itself, the followers of all the four Imams are at full liberty to pray according co their own tenets. The Shafais, as is apparent, from the texts which I have already quoted, pronounce the word amin aloud in prayers, and to this no objection is or can he made on the ground that the practice is heterodox from a Sunni point of view. Indeed, the prosecutor in this very case, in his petition of the 20th September 1884, after stating that the orthodox Muhammadans are the followers of the four Imams, goes on to say that 'if the defendants had been the followers of anyone of the four Imams, the complainant, who is a Hanafi, and other Muhammadans, would not have shrunk from associating with them,' and the ground of the complaint is stated in the petition to he that the defendants 'are not the followers of any of the four Imams,' that 'they intend to set up a new form of worship for themselves;' that 'they are therefore no longer Muhammadans;' and by saying the word amin aloud they 'have been guilty of the offence of insulting the religion of the Hanafia Musalmans.' Now, unless these allegations are substantiated, I am of opinion that there can be no case against the accused under Section 296 of the Indian Penal Code. The prosecutor states himself and the founder of the mosque to be a Hunan, that is, the follower of Imam Abu Hanifa's doctrines. One of the highest authorities of that school is the Dwur-i-Mukhtar, in which the strongest text is to be found against saying amin aloud; but the text itself falls far short of substantiating this rule of Ecclesiastical Law, upon establishing which the case for the prosecution in my opinion depends. The text is as follows: 'It is in accord with the practice of the Prophet to say amin in allow voice, but the departure from such practice does not necessitate invalidity (of the prayer), nor a mistake, hut it is only a detriment.' Evan this passage only relates to the efficacy or validity of the prayer of the person who says amin aloud or in a low tune. There is absolutely no authority in the Hanafia or any other of the three orthodox schools of Muhammadan Ecclesiastical Law which goes to maintain the proposition that if any person in the congregation says the word amin aloud at the end of the 'Sura-i-Fateha,' the utterance of the word causes the smallest injury, in the religious sense, to the prayers of any other person in the congregation, who, according to his tenets, does not say that word aloud. It is a matter of notoriety that in all the Muhammadan countries like Turkey, Egypt, and Arabia itself, Hanafis and Shafias go to the same mosque, and form members of the sane congregation, and, whilst the Hanafis say the word amin in a low voice, the Shafias pronounce it aloud. To say that the utterance of the word amin aloud, after the Imam has recited the Sura-i-Fateha 'causes a disturbance in the prayers of a congregation, some or many of whom say the word in a low tone, is to contradict the express provisions of the Muhammadan Ecclesiastical Law as explained by all the four orthodox Imams. I now pass to the next step in the case, namely, whether the accused in this case had the legal right to enter into and worship in the mosque with the congregation according to their own tenets. There is absolutely no evidence in the case to substantiate the accusation brought by the prosecutor against them that they are 'no longer Muhammadans.' They call themselves 'Muhammadi,' which is the Arabic for 'Muhammadan,' and although the prosecutor brands them as Wahabis, there is nothing to prove that they belong to any heterodox sect. Indeed, th|e only tangible ground upon which the prosecutor objects to their worshipping in the mosque and calls them Wahabis is their saying the amin aloud--a practice which, as I said before, is commended by three out of the four orthodox Imams of the Sunni persuasion, and which, according to the doctrine of Imam Abu Hanifa himself, does not vitiate the prayers. Now, it is a fundamental principle of the Muhammadan Law of wakf, too well known to require the citation of authorities, that when a mosque is built and consecrated by public worship, it ceases to be the property of the builder and vests in God (to use the language of the Hedaya) ' in such a manner as subjects it to the rules of Divine property, whence the appropriator's right in it is extinguished, and it becomes a property of God by the advantage of it resulting to his creatures.' A mosque once so consecrated cannot in any case revert to the founder, and every Muharamadan has the legal right to enter it, and perform devotions according to his own tenets so long as the form of worship-is in accord with the recognized rules of Muhatnnudan Ecclesiastical Law. The defendants therefore were fully justified by law in entering the mosque in question and in joining the congregation, and they were strictly within their legal rights, according to the orthodox rule of the Muhammadan Ecclesiastical Law, in saying the word amin aloud.
14. I now proceed to consider whether, under the circumstances of this case, the prosecution have succeeded in substantiating an offence under Section 296 of the Indian Penal Code.
15. The following seem to me to be the constituents of the corpus delicti:
(1) That the assembly was lawfully 'engaged in the performance of religious worship.'
(2) That the accused caused a 'disturbance' to such assembly.
(3) That they caused such disturbance 'voluntarily.'
16. In regard to the first point, there can be no doubt, and indeed there is no question, that the mosque being public, the congregation was lawfully assembled there for the purposes of religious worship.
17. The second question is not so simple, because the word 'disturbance' is not defined in the Indian Penal Code. But I think I may adopt the language of Shaw, C.J., in an American case cited by Mr. Bishop in his treatise on Criminal Law: 'What shall constitute an interruption and disturbance of a public meeting or assembly cannot easily be brought within a definition applicable to all cases; it must depend somewhat on the nature and character of each particular kind of meeting, and the purposes for which it is held, and much also on the usage and practice governing such meetings. As the law has not defined what shall be deemed an interruption and disturbance, it must be decided as a question of fact in each particular case; and, although it may not be easy to define it before hand, there is commonly no great difficulty in ascertaining what is a wilful disturbance in a given case.'--(Bishop on Criminal Law, 6th ed., vol. 2, p. 308). In illustrating this, the learned author, after giving some examples of what would cause a disturbance, goes on to say: 'Again, among one class of religionists a solemn amen would be permissible, where among another class it would not be' (p. 310). In the present case I have already said enough to show that whilst the Hanafis, who evidently form the majority of the congregation of this mosque, prefer to say amin in a low voice, there is nothing in their tenets which would vitiate their prayers if any poison among the congregation prefers the other equally orthodox tenet of pronouncing the word aloud. There is no allegation on behalf of the prosecution that the accused either uttered the word irreverently or at an improper juncture of the prayers, or otherwise than in the conscientious performance of their devotions. Nor is there any allegation to the effect that the accused pronounced the word amin in a loud tone with any intention of disturbing the assembly. The rest of the evidence for the prosecution only goes to show that the accused, being earnest believers in the doctrine of saying amin aloud, entered into a somewhat heated discussion with the other worshippers and employed the word kafir (unbeliever) to those who did not accept their doctrine upon the point. Purely as a question of the weight of evidence, I hold that such a discussion could not have taken place during the prayers, because the Muhammadan ritual absolutely prohibits the utterance of any words other than those of the prayers during the namaz or divine service. The prosecution itself makes no such allegation, and if the discussion took place before or after the service, though in the mosque itself, I hold that even if the discussion be regarded as a disturbance, it would not fall under the purview of Section 296, Indian Penal Code. If his view of the law is in accord with that adopted by Abbott, C.J., in Williami v. Glenister cited in Russell on Crimes vol. I p. 417. In that case the persons accused of having molested a religious assembly in a church had, notwithstanding the prohibition of the minister, stood up in his pew and read a notice 'after the Nicene Creed had been read, and whilst the minister was walking from the communion table to the vestry room, and whilst no part of the service was actually going on.' It was had that such act, laving been done during an interval when no part of the service was in the course of being performed, and the party apparently supposing that he had a right to give tie notice, he was not criminally liable. The case, however, being based upon a statute is only analogically applicable to the present case, and I cite it simply to put my interpretation upon the phrase 'engaged in the performance of religious worship' as used in Section 296 of the Indian Penal Code. As to the; merits of the present cape itself upon this particular point, I have to observe that a Muhammadan mosque is in many respects different, so far as I know, from an ordinary Christian church; because it is not only a place for divine worship, but also intended for religious and moral teaching and discussion, and it is Jot unusual that in places where the Muhammadan community is still flourishing, a library and a school form part of the mosque. I cannot therefore bold that to carry on religious discussion in a mosque, even though the majority of the people present at the lime do not approve of such discussion, constitutes a criminal offence. There may indeed be circumstances which may render such discussion liable to cause breach of the peace; but in that case the law has proved other remedies, and, concerned as I am in the Full Bench only with Section 296 of the Indian Penal Code, I will simply say that the remedy does not fall under that section. The third point relates to the meaning of the word 'voluntarily' as used in Section 296 of the Indian Penal Code, and upon this point Section 39 of the Code provides an explanation in express language. I am of opinion that the evidence in this case does not prove that the accused uttered the word amin aloud with the intention of disturbing the rest of the congregation, though after the occurrence of the 22nd August 1884, they might have known that the prosecutor and his friends would object to their saying the word aloud. But the question is not of any great consequence under my view of the case; because the accused being fully entitled by law to enter the mosque, to join the congregation, and to say the word amin aloud, they were justified My law to exercise their right of worship within the meaning of Section 79 of the Indian Penal Code.
18. At the hearing of the case before the Pull Bench, the learned Public Prosecutor laid considerable stress upon the argument that to justify a conviction under Section 296, Indian Penal Code, it is of no consequence whether the act which causes the disturbance is in itself lawful or unlawful, that the mere fact of the disturbance being caused to the religious assembly is sufficient to constitute the offence, specially as the accused in this case had reason to believe that saying the word amin might be objectionable to the prosecutor and his party, and might cause breach of the peace. I am unable to accept this view of the law, for to use the words of Field, J., in Beatty v. Gillbanks L.R. 9 Q.B.D. 308 'it amounts to this, that a man may he convicted fordoing a lawful art if he knows that his doing it may cause another to do an unlawful act. There, is no authority for such a proposition.' Not only do I hold that Section 79 of the Code furnishes a full answer to the argument; but that such a principle would place the minority at the mercy of the majority, and would, in a case like this, deprive them of the right of worship which the law distinctly confers upon them. Indeed if such a view were adopted, it would open the do for wrongful prosecution of innocent persons, who in the exercise of their lawful rights of worship rest to mosques for devotion. Such indeed may be the case here, because there is enough in the evidence for the defence to raise a suspicion that the saying of amin aloud has been made a pretext for the prosecution with the object of preventing the accused from resorting to the mosque or worship, and thus to debar them from asking the prosecutor to render accounts of the disbursement of the income of the property belonging to the masque, of which he states himself to be the mutawalli or superintendent. The witnesses for the defence, who are themselves Hanafis, has solemnly deposed that they do nit object to amin being pronounced aloud in prayers, and their statements deserve weight, being in perfect accord with the doctrines of Imam Abu Hanifa himself.
19. Having taken this view of the case, I regret I am unable to incur in the order of re-trial pissed by the learned Chief Justice and my learned brethren, and I would return the case to the referring Bench with a negative answer to the question referred.