Charles A. Turner, Kt., C.J.
1. In the township of Kalladakuriohi there is a street inhabited by weavers ( Kaikolars ): to the south of this is a street inhabited by Muham-madans known as Chattram Street; and still further to the south is the main high road to Ambasamudram.
2. A street runs north and south from the Weavers' Street to the main high road bisecting the Chattram Street.
3. For some months before the date of the order under review, a dispute existed between the Muhammadans and Hindus as to the right of the latter to carry corpses along the street crossing Chattram Street.
4. From the cases which have come before this Court, it would seem that resistance was first offered to the conveyance through the cross street of the corpse of a Hindu who had died in the southernmost street. The Muham-madans on that occasion forcibly resisted the passage of the procession. Shortly afterwards, a Hindu died in the Weavers' Street, and, in order to vindicate the right of way they claimed, the Hindus attempted to carry the corpse through the cross street, when they were again resisted, and some of the Muhammadans who refused to obey the orders of the Police and disperse were prosecuted and convicted for their disobedience.
5. Certain of the Muhammadans then presented a petition to the Head Assistant Magistrate in which they complained that certain persons, chiefly Kaikolars living in the northern street, unnecessarily brought corpses across the street occupied by them with the object of causing them annoyance. They also represented that the practice was detrimental to the public health. They prayed that an order might be issued to the public generally that such acts might not be repeated.
6. The Head Assistant Magistrate entertained the case under Section 532, Act X of 1872. He found that all the streets were public streets and open to all persons for ordinary purposes: but he held that the conveyance of a corpse is not an ordinary purpose; that a corpse should be carried by the nearest route to the burning ground; and, inasmuch as the nearest route from the Weavers' Street to the burning ground did not lie through the cross street, he passed an order that the Kaikolars should not carry their corpses southwards through the Muhammadan street and then turn northwards passing the end of the same street again, but should carry them northwards by the nearest available route to the burning ground.
7. The District Magistrate considered the Head Assistant Magistrate had misapprehended the scope of Section 532, and that the terms of that section did not authorize the order passed by him; and was on the point of making a reference to this Court when the proceedings were called by the Court on perusal of the calendar.
8. It must be admitted that the terms of Section 532 do not warrant the order. That section directed the Magistrate, when a dispute arose as to a right of way, if he found the subject of dispute to be open to the use of the public, to order that possession thereof should not be taken by any one to the exclusion of the public until the person claiming such possession should obtain the decision of a Civil Court.
9. When, then, the Head Assistant Magistrate found that the subject of dispute was a public way, he had no power to prohibit the lawful use of it to any class of persons. Except when danger to public health is occasioned, the conveyance of a corpse along a highway is not an unlawful use of the highway.
10. If such danger arises, as for instance when a person has died of a contagious disorder, a Magistrate may, under another provision of the Code, properly direct that the corpse be conveyed to cremation or sepulture by such a route as will expose the public to the least danger; and, when the conveyance of corpses by a particular route is unnecessary and is repugnant to the feelings of the inhabitants, a Magistrate may properly exercise his influence to induce the persons concerned to abandon that route.
11. The order of the Head Assistant Magistrate is set aside.