1. The accused in this case, two of the residents of the village of Thirukodikaval, were convicted by the Magistrate under Sections 188 and 290 of the Indian Penal Code. On appeal the Sessions Judge reversed the conviction under the former section, but confirmed that under the latter. The act for which they were convicted was the cremation of the corpse of one Vyapuri Pillai, father of the first accused, on a spot close to the ghaut on the Cauvery used by the inhabitants of the adjoining village of Thiruvaduthorai for bathing and other lawful purposes. Both the Courts find that the cremation caused substantial annoyance and discomfort to the persons who were at the ghaut and to the passers-by on the occasion. The spot where the body was burnt appears to have been used for such purpose by the Thirukodikaval people from time immemorial and to have been originally situated to the north of the river. But the place where the ghaut referred to now exists came to be used as a place of public resort only from the time when the river changed its course many years ago.
2. The questions are, whether the conviction under Section 290 is right and whether the acquittal of the accused in respect of the offence under Section 188 should be set aside. In determining these questions, it is necessary first to deal with the case independently of the notice of the District Magistrate, dated the 11th August 1894, to be more fully referred to hereafter, and then to examine the bearing of that notice on the alleged guilt of the accused.
3. Now, taking the case apart from the said notice, it is clear that the act of the accused falls under the limited class of cases sometimes designated as nuisances 'legalised.' In other words it, seems to be an instance of those compromises belonging to social life alluded to by Pollock, C.B. in Bamford v. Turnley 31 L.J.Q.B. 29 upon which the peace and comfort of that life mainly depend and in which some apparent natural right is invaded or some enjoyment abridged to provide for the more general convenience or necessities of the whole community. In support of the above view, it is hardly necessary to observe that, not only the religious sentiments of all sections of the community, but also the requirements of general health and comfort, absolutely demand that corpses shall be disposed of as early as practicable, so as not to prove hurtful to the living. It is this imperative necessity that, as a general rule, casts upon persons having charge of corpses not only as a matter of social, but also of legal obligation, the duty of arranging for the disposal of those corpses in a reasonably speedy, decent and inoffensive way--c.f. the observations of Denman, Chief Justice in Queen v. Stewart 12 A & E. 778 and of Lord Campbell, C.J. in Beg. v. Vann 2 Den. 330. And to facilitate the discharge of such an important duty, it has been, as is well known, the general and immemorial custom to set apart some spots for use by the public as places of sepulture or cremation. The absolute necessity for some such common provision will become apparent on a moment's reflection. It is sufficient to refer to but one--not an unimportant--consideration bearing on the matter, viz.: that the number of persons who are in a position to find for interment or cremation of the bodies of their deceased relations, friends or dependants, places of their own, which, while being convenient to those persons themselves, will not be a nuisance to others, is extremely small when compared with the millions of landless men and women who, if required to do so, Would find it impossible to obtain such spots for similar use by them. Hence the existence of common burial and cremation grounds in almost every inhabited village in this Presidency, except portions of the West Coast, where the conditions are somewhat different, owing to human dwellings not being crowded together as they mostly are elsewhere. In cases of this description, it is clear, adopting the language of Sir James Fitz James Stephen (Digest of Criminal Law, 5th edition, 140), 'the fact that the act complained of facilitates the lawful exercise of their rights by part of the public shows that it is not a nuisance to any of the public.' And when persons, like the accused entitled to use a particular spot dedicated for the communal purpose of cremation, use it for that purpose in a manner neither unusual nor calculated to aggravate the inconveniences necessarily incident to such an act as it is generally performed in this country, it must be admitted that he does what is perfectly lawful. To hold that an act so properly done, not only in the exercise of a right of which the people of this country are generally so very tenacious, but also in the discharge of a serious duty, amounts, as the prosecution contends, to an offence, would be highly unreasonable and unjust. It follows therefore, that the conviction of the accused cannot be sustained simply on the ground that their acts caused material annoyance and discomfort to the Thiruvaduthorai people, who were near the place on the occasion referred to.
4 The next question for determination is whether the act of the accused was punishable in consequence of the notice issued by the District Magistrate on the 11th August 1894, addressed to the people of Thirukodikaval in general and prohibiting them from cremating any corpses in the place in dispute. If the above notice were valid, there can be no doubt that the conviction of the accused, not only under Section 290, but also under Section 188, would be warranted. But the order appears to be fundamentally invalid. The notice itself does not state under what provision of law it was issued. Our attention was not drawn to any special or local law empowering the District Magistrate to pass such an order. We were, however, referred by the Public Prosecutor to Section 143 of the Criminal Procedure Code as the one tinder which the Magistrate acted. But under that section no Magistrate can prohibit what was lawful before the date of his order, and thereby make such an otherwise legal act, committed after the date of the order, punishable as a nuisance under the Indian Penal Code. For he is by that section empowered to enjoin a person from repeating or continuing only a public nuisance as denned in the Indian Penal Code or any special or local law. Since, however, it has been found, for reasons already stated, that to cremate on the ground in question was not a nuisance before the issue of the order of the 11th August 1894, the section relied on cannot be held to support that order. Nor have we been able to find any other provision of law under which it could have been rightly promulgated. No doubt before the District Magistrate made the order, another place, unobjectionable to the Thiruvaduthorai people, had been provided for the Thirukodikaval people to be used by them as their village cremation ground. Now some observations made by Innes and Muttusami Ayar, JJ., in Criminal Revision Case No. 86 of 1881 Weir's Criminal Rulings, 3rd Ed., 764 were cited to show that, in circumstances like those which existed here,it was within the powers of the Magistrate to prohibit the Thirukodikaval people from using the old spot as a place for cremation in future. The observations of the learned Judges, no doubt, support the contention. They are, however, but obiter dicta, for which no authority is cited and in which, with all deference to the learned Judges, it is difficult to agree. On the other hand, Becharam Ghorooee v. Boistubnath Bhooyan 14 W.R. Crim 177 seems to be a direct decision in support of the contrary view. There a Magistrate, purporting to act under Section 308 of the Criminal Procedure Code of 1862, had prohibited cremation in a spot originally devoted for such a purpose on the ground that a more suitable place for it had been subsequently provided in another locality. Loch, J., who delivered the judgment of the Court, observed: 'but here the public were charged with committing a nuisance by a private individual in the exercise of an admitted right, and we are not shown under what law the Magistrate proceeded when he prohibited the public from making use of this right.' This appears to be the sound view to adopt, since it is not easy to see how the mere fact that another place has been set apart can empower a Magistrate, acting under the general law, to deprive a party entitled to use the existing cremation ground of his vested right to continue to use such ground for the purpose for which it was originally appropriated. It is obvious that difficulties, like those which have arisen in the present instance, can be met only by the extension of provisions similar to those contained in Section 240 of the District Municipalities Act, to the rural parts of the country. In the absence of such a law applicable to tracts like that in which the villages in question are situated, the prohibitory order relied on on behalf of the Crown must be held to have been made without jurisdiction and void. In this view it is, of course, unnecessary to consider the other objections taken to the validity of the District Magistrate's order.
5 The result is, the convictions of the accused must be, and are hereby, set aside. The fines, if levied, must be refunded. The appeals against acquittal in respect of the offence alleged to have been committed under Section 188 of the Indian Penal Code are dismissed.
6. Ordered accordingly.