Skip to content

Jaipal Gir and ors. Vs. H. Dharmapala - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1896)ILR23Cal60
AppellantJaipal Gir and ors.
RespondentH. Dharmapala
religion, offence relating to - penal code (act xlv of 1860), section 296--disturbing a religious assembly. - macpherson, j.1. the three petitioners, who are described as hindu sannyasis of the monastery of bodh-gaya, have been convicted under section 296 of the penal code of disturbing the worship of the complainant and other buddhists of ceylon in the temple of mahabodhi at bodh-gaya on the 25th february last, and the conviction has been upheld by the sessions judge. they were tried and acquitted on other charges under sections 295, 297 and 143.2. the magistrate says: 'the case is one of importance, as the disturbance in sought to be justified by the defendants on the ground that their superior, the mahant of bodh-gaya, claims the right, though a hindu, of regulating what worship shall be performed in this famous shrine, known as the great temple of mahabodhi, and regarded by the buddhists,.....

Macpherson, J.

1. The three petitioners, who are described as Hindu sannyasis of the monastery of Bodh-Gaya, have been convicted under Section 296 of the Penal Code of disturbing the worship of the complainant and other Buddhists of Ceylon in the temple of Mahabodhi at Bodh-Gaya on the 25th February last, and the conviction has been upheld by the Sessions Judge. They were tried and acquitted on other charges under Sections 295, 297 and 143.

2. The Magistrate says: 'The case is one of importance, as the disturbance in sought to be justified by the defendants on the ground that their superior, the Mahant of Bodh-Gaya, claims the right, though a Hindu, of regulating what worship shall be performed in this famous shrine, known as the Great Temple of Mahabodhi, and regarded by the Buddhists, that is, by about one-third of the human race, as the most sacred spot on earth.' That I think is rather misleading. No such broad question arises, and it is desirable to keep the case within its proper limits. It is for the complainant to prove that he and his co-religionists, when disturbed, were lawfully engaged in the performance of religious worship or religious ceremonies, a fact which the petitioners denied. The defence may have put their case higher than was necessary, but it is not right to say that it is the defence which gives the case its importance.

3. There is no doubt, however, that the case has attracted a good deal of attention from the prominence which has been given to it and from the nature of the dispute and the position of the parties. It has been fought with a persistency and at a cost which would have been more appropriate if it had been brought in a Court which could finally determine the rights of the parties, and not in a Criminal Court where the narrow issue is, whether a criminal offence has been committed.

4. The trial has occupied a long time, leading Counsel have been retained, and very lengthy judgments, traversing the whole history of the temple, have been recorded. It may well be doubted whether the object of the complainant was not to do something much more than to punish a crime. It has been contended throughout that no criminal offence was committed, and, in the Appellate Court, that on the facts found there was no criminal offence. As it seemed to us very questionable if the conviction was right, we gave a rule to show cause why it should not be set aside, and the case has now been fully argued by the learned Counsel who argued it before the Sessions Judge. It was suggested, when the rule was applied for, that the petitioners had not a perfectly fair trial, as the learned Magistrate had formed an opinion, before this dispute took place, of the rights of the parties, which necessarily, but perhaps unconsciously, influenced his decision. We did not give a rule on that ground, and I think it right to say that, both in the conduct of the trial and in his very long and careful judgment, the Magistrate seams to have been scrupulously fair.

5. The facts connected with the occurrence of the 25th February are thus stated by the District Magistrate and not disputed. He says:

Between 8 and 9 o'clock on the morning of that day the complainant, who is a Buddhist gentleman from Ceylon and Honorary General Secretary of the Mahabodhi Society, arrived at Bodh-Gaya with two Singhalese Buddhist priests, Sumangala and Devananda, and a layman, Silva, of the same race and religion, and proceeded to enshrine a highly artistic, and, it is said, historical image of Buddha, sent from Japan for the purpose, on the altar in the chamber of the upper floor of the Mahabodhi temple. While they were setting up the image two Mahomedan gentlemen, namely, the Special Sub-Registrar and Deputy Magistrate of Gaya, happened to come to see the place, and wore accompanied by a Mahomedan mukhtear of the Mahant of Bodh-Gaya named Hussain Baksh, and by one Jagannatb Singh, a Hindu door-keeper, whom the Mahant keeps at the temple. After they entered the chamber, Hussain Baksh said something to the latter, who thereupon left. The three Mahomedans also went away before all the paraphernalia of the image were set up. The image with censer, candlesticks and lotus flowers and also a Japanese dedicatory certificate, describing its history, was duly set up, and Dharmapala then sent word to the Government custodian of the temple, and, on his coming six or seven minutes after, put the image in his charge, saying it had been sent by the Japanese. This done, Sumangala Look one of the candles to light it, but at that moment about thirty or forty of the Mahant's sannyasis and other Hindus, and also the mukhtear, Hussain Baksh, came rushing into the place in a very rowdy fashion. Some got on to the altar, a couple of them placed themselves between Dharmapala and it, one snatched the candle out of Sumangala's hand to prevent its being lit, and most spoke in a vehement and imperative tone, commanding Dharmapala to take away the image, and using such throats as budinash, we will beat you, there arc five hundred of us. The Mahomedan in particular kept pushing him on the shoulder vehemently telling him to remove the image. The Government custodian, finding them much enraged, kept imploring them with folded hands not to act hastily. Dharmapala refused to remove the imago, and as he knows little of the language, a number of them went and fetched the Mahant's Hindu mukhtear, Vijayananda, who happened to be at the monastery in connection with a document of the Mahant's the Sub-Registrar had come to got registered. Dharmapala pointed out to Vijayananda what desecration it was for people to ho on the altar, and the latter got one or two to come down. Thereupon this mukhtear and all but a few, who remained quietly looking on, left the temple, and Dharmapala and the two priests, thinking all opposition had ended, sat down to their devotion in front of the image in the characteristic Buddhist attitude of religious contemplation, the highest form of Buddhist worship. They were absorbed in this form of devotion for about a quarter of an hour, when the Hindus again came to the temple, and heedless of their attitude, made a rush into the place and tumultuously carried off the image of Buddha and set it down in the open courtyard below. This tumult, and indeed the more removal of the imago itself, put an end to the devotional contemplation of the Buddhists. Dharmapala and one of the priests continued, however, to sit there, and in a few minutes a constable came up to call him down to the head constable, who had been sent for by the Government custodian, and to whom also the mukhtear, Hussain Baksh, had made a statement praying him to interfere. Dharmapala refused to go down, so the head constable had to come up whore he was, and began questioning him in Hindi; but Dharmapala, not understanding this, wrote down there and then, at his request, a summary statement of the occurrence.

6. I may add to them that the image and all its paraphernalia were conveyed in boxes to the chamber of the upper floor and opened there, that the doorkeeper, who was apparently the only person encountered, made no opposition to the entry, and that neither the Mahant nor any one else connected with the temple, nor any Government Official, had been informed of the complainant Dhanuapala's intention to place the image there.

7. It may be conceded that the Mahabodhi temple, which is very ancient and very sacred to Buddhists, was a Buddhist, temple; that, although it has been in the possession of Hindu Mahants, it has never been converted into a Hindu temple in the sense that the Hindu idols have been enshrined or orthodox Hindu worship carried on there, and that Buddhist pilgrims have had free access and full liberty to worship in it. It does not appear that any hindrance was ever offered to them or that any complaints were ever made by them, and, before the occurrence in question, there is no instance of any disturbance between the Buddhist worshippers and the Hindu Mahants or their subordinates, in regard to their respective rights. This fact is of some importance in the present case, where each party charges the other with being the aggressor. The petitioners, no doubt, now say that the Buddhists worshipped by permission, and not of right. That is a question which it is unnecessary to consider. I shall assume for the purpose of this case that the worship which they were in the habit of performing was of right. It will, however, be necessary to consider the nature of that worship, and the nature of the act which gave rise to the disturbance complained of, in order to see whether a criminal offence has been committed.

8. A great part of the lengthy judgments of the Magistrate and of the Judge is devoted to a discussion of the Mahant's position in regard to the temple and the extent of his proprietary right and power of control. His possession is found, but the extent of his proprietary interest and power of control is questioned. It is quite unnecessary to discuss his proprietary interest. There is no doubt that he is in possession, that he is the sole superintendent of the temple, and that he takes all the offerings, both, of Hindus and Buddhists; and the present state of things appears to have been in existence for many years, if not for centuries. It is not proved, I do not think it is even alleged, that any Buddhist priests have ever exercised any control or authority in the temple within living memory. The Government has had no occasion to interfere in the internal management, even if it could do so, and that is not a question which need be considered in this case. If the control and superintendence of the temple is not vested in the Mahant, it does not appear to be vested in any one

9. The Judge seems to think that the Mahant placed some limitation on his own rights or powers by the agreement entered into in 1877 with the representative of the King of Burma. This agreement and the translation of it will be found at page 107 of the paper book, part I. The correctness of the translation of the third passage, referred to in the Judge's judgment, is a matter of dispute, but the Judge in his translation has omitted to give any effect to the word hamare in the passage uski puja hamate shudamad-i-qadeem se chali ati hai. It may or may not be that that agreement has some bearing on the question whether Buddhists worship by permission or of right, and which, as I have said, is now immaterial; but neither the agreement nor the subsequent appointment of a Government custodian, whose principal duty it apparently is to look after the building and relics generally, have, I consider, made any difference in the Mahant's position for the purposes of this case. That position 1 find to be this, that he held possession of the temple and had the control and superintendence over it, subject to that right of Buddhists to worship there in the customary manner, that is to say, in the manner in which they had been in the habit of worshipping. I see nothing in the judgments of the lower Courts which goes against this finding. The difficulty is to understand from those judgments where the freedom of worship ends and the right of control begins.

10. The question really is whether the freedom of worship enjoyed by the Buddhists covered what Dharmapala and his associates did. It is for the hitter to bring the case strictly within the four corners of Section 296, and prove that they were, when disturbed, lawfully engaged in the performance of religious worship or religious ceremonies.

11. The petitioners say that they were not so engaged, that what they did was something which had never been done before, and that it was done, not for the purpose of religious worship, but for another object, in the assertion of a right and with the knowledge that they would be resisted. This renders it necessary to consider in some detail the nature of the act done and resisted, and the nature of the worship which the Buddhists were in the habit of doing.

12. Dharmapala was subjected to a very long cross-examination on his denial that the Mahant was either the owner or the person in possession of the temple. Whatever excuses may be made for him, he certainly came very badly out of it, and furnished the other side with good grounds for questioning his general veracity. It is amply shown from his own writings, and from writings published with his knowledge and under his authority, that he always regarded the Mahant, whatever the latter's strict rights may be, as the owner. Dharmapala was not in the position of an ordinary devotee, worshipping at the shrine. He was undoubtedly a religious enthusiast and an agitator. I use the word in no offensive sense, for I may freely concede that he was thoroughly sincere in his religious views and in promoting the work which he had undertaken. He was the Secretary of the Mahabodhi Society, which was started in Ceylon in May 1891, and also the editor of a monthly journal started to promote the objects of the Society. One of the objects of the Society was, he admits, to recover the possession of the Mahabodhi temple from the Mahant, and the prospectus moots the idea 'of restoring the central shrine and transferring it from the hands of the usurping Saivite Mahants to the custody of the Buddhist monks.' Numerous extracts from the journal, which were put in, show that the object was to establish Buddhist control in the temple. In February 1893, he and Colonel Olcott, an Honorary Director of the Society, interviewed the Mahant with the view of acquiring the religious custody of the temple for the Buddhists of all nations, but the Mahant, as the correspondence shows, refused either to sell or give a lease on any terms. Dharmapala then, according to a letter addressed to the President of the Society and signed by himself and Colonel Olcott, began to enquire into the legality of the Mahant's tenure. In 1893, when in Japan promoting the objects of the Society, he conceived the idea of enshrining a new image of Buddha in the temple, as there was, he says, no image in the upper floor chamber, which he regarded as the sanctum sanctorum. The result was that the image in question was sent to him in March 1894 It is described as a beautiful work of art, and it was accompanied by a dedicatory certificate addressed to him by the High Priest of Tokio. It is there described as a very ancient and holy image, and it was presented 'to be enshrined in the second storey of the Bodh-Gaya Temple.'

13. Dharmapala announced in his journal that the image would be placed in the temple on the 19th May, a very holy day with Buddhists, in the presence of the Collector. There was no authority for the latter part of the announcement, and the Mahant had not been consulted. The latter, learning of the intended installation by Dharmapala, objected to it and closed the temple door to prevent it. This he afterwards opened in compliance with an order of the District Magistrate made under Section 144 of the Criminal Procedure Code. It was mentioned in the order that no image would be set up in the temple that night without the Mahant's consent, and the Magistrate at the same time sent a demi-official letter to Dharmapala, in consequence of which he desisted from placing the image.

14. In April 1894 Dharmapala invoked the assistance of the Bengal Government in aid of the Mahabodhi Society, and received, in reply, the letter Exhibit D. 22, which he produced. This is dated the 5th May. In it he is informed that the Lieutenant-Governor can take no measures for the furtherance of the general objects of the Mahabodhi Society, that there is perfect freedom of worship for all Buddhists at Bodh-Gaya, and that any well-grounded complaint that difficulties were imposed would meet with ready attention and redress at the hands of the Bengal Government.

15. In June 1894 he again addressed the Lieutenant-Governor, complaining as he says, of the refusal to allow the image to be placed in the temple. He denies that he asked for help or Government influence. In reply, he received the letter, Exhibit D. 23, from the Chief Secretary, dated 22nd June. In it he is told that the Government must decline to exercise any influence with the Mahant of the Bodh-Gaya shrine, and he is referred to the letter Exhibit

16. In June 1894 he also petitioned the Magistrate on the subject of the Japanese image, and was informed in September (Exhibits D. 28a and D. 28b) that the local authorities could not deal with the matter.

17. Nothing more happened till the morning of the 25th February 1895, when he went surreptitiously, as the Judge says, to set up the. image in the upper chamber, and the occurrence took place of which he now complains. He says he did not anticipate opposition, but it is impossible to believe this. He had no reason to believe that the opposition bad ceased, and he bad every reason to believe that, as his position and motives became better known, the opposition to his doing anything which might lead to give him a better foothold in the temple would be more intense.

18. I have said that Dharmapala was not in the position of an ordinary devotee, but he is, of course, entitled to have the legality of his act judged as if he was -one. He could do as much, but no more, and if his act was in itself lawful, his previous failure and his failure to get the assistance of the Bengal Government (sic)of the local executive officers would not make it any the less so. But his petition and his past conduct are of importance in judging of his motives and the motives which led to the opposition.

19. Now what Dharmapala wanted and attempted to do was to enshrine this image in the upper room of the temple against the will of the Mahant, in whose possession and under whose superintendence the temple was, and there is no doubt that it was the attempted enshrinement which led to the disturbance. The Judge, whose judgment I have felt some difficulty in following, takes exception to the word 'enshrine' which the Magistrate uses, as he says there is no evidence that the Buddhists intended permanently to enshrine the image that day. It seems to me that no other conclusion is possible. The image had been obtained for enshrinement in the upper chamber, and it was sent for that purpose, as the dedicatory certificate, which was placed alongside it, shews. Moreover, Dharmapala, when putting it up, sent for the custodian, Bebin Behary, and said, 'this present from the Japanese Government is now placed on the shrine, and now it is under your control.' This clearly shews that he intended it to remain there. If he merely intended to do an act of worship before it, and then remove it, why did he go surreptitiously to the upper chamber? Giving him credit also for the religious feeling which he claims to have, it is absurd to suppose that he was indifferent to the fate of this image, if the Mahant afterwards removed, it, although the course which he might have taken in such an event is a matter of conjecture. It does not appear that there is any special ceremony connected with the enshrinement of an image; but, however that may be, I have no doubt that Dharmapala's object was to make the altar of the upper room the permanent shrine of this image.

20. As regards motive the Judge says that the Mahant had no ground for anticipating any injury to his interest from the act of Dharmapala, and that there was no ground for inferring any connection between the known and published desire of the Buddhists and the Mahabodhi Society, in connection with the temple, and the setting up this image as an object of temporary or permanent worship. His final conclusion is that Dharmapala's immediate object was 'to gain a spiritual triumph for Buddhism, and to get rid of a responsibility, which, although he had sought it himself in the greatest hope and confidence, he now felt was an intolerable burden.' The spiritual triumph meant doing what he originally intended to do, and in the face of opposition; and as for the burden, a man cannot be allowed to relieve himself by doing a wrong, and then complaining that he has been resisted. As regards the connection above referred to, I think there was reasonable ground for inferring a connection. The Mahant certainly seems to have thought so in 1894, probably much more in 1895. Dharmapala has no cause for surprise if his intentions and motives were misconstrued. Now I think Dharmapala has failed to shew that he had any right to do what he did against the known will of the Mahant, or that he went to perform a religious worship or a religious ceremony of a kind which was customary with Buddhist worshippers at the temple.

21. It is said, and no doubt, with truth, that to enshrine an image of Buddha, or to place such an image on an altar and sit before it in contemplation, are high forms of Buddhist worship, but the image must be placed where there is a right to place it. There was no image of Buddha in the upper chamber, and, whatever may have been the case in remote ages, none can speak to ever having seen such an image there, and there is no evidence that Buddhist worshippers generally used to go to that chamber for worship. At the time of this disturbance, and both before and after the restoration of the temple, there was a large image of Buddha in the shrine on the ground floor of the temple, and before this Buddhist devotees used to worship and make offerings. They seem to have been content with this, and before Dharmapala came, no one wanted to do anything more. He himself has worshipped many times before the great image since 1891, without any opposition, and he says he had no reason to be dissatisfied with it as everything about it was right. He also says that he has no knowledge of any Buddhist having attempted to enshrine an image in the upper chamber. There is evidence, upon which reliance is placed, that Burmese pilgrims in November and December 1891. placed some marble images of Buddha by the big image on the altar downstairs without asking the Mahant's permission. That may be so, and it is clear that the Mahant did not object, but what was then done was in no way analogous to what was done here. The Mahant, in whose possession the temple is, objected to Dharmapala's enshrining this image in the upper floor of the temple, and there is nothing on the evidence to justify the Court in holding that the right to place it there existed, or that the Mahant's objection could be disregarded. Dharmapala may possibly be able to establish the right which he asserts, but that is a question for another tribunal. It is enough to say that he has not proved it in this case so as to justify his act.

22. The evidence shows, and the Magistrate finds, that since July 1894, the Mahant and his disciples have been carrying on a sort of spurious Hindu worship of the great image of Buddha on the altar of the ground floor, and that the image has been dressed in a way which renders it repugnant to Buddhist worshippers. The Magistrate regards this as a stratagem on the Mahant's part to strengthen his position against, I suppose, some threatened danger. This was extremely wrong, but it does not, I think, affect the present case. In January 1895 Dharmapala and a party of pilgrims worshipped before the great image after removing the vestments and obliterating the tilah marks, and no objection was made to their doing this. The Mahant's conduct does not seem to have been made the subject of any remonstrance to him or of complaint to any one else, and it cannot be said to have led to Dharmapala's action on the 25th February. That the Mahant really believed that his possession was threatened by Dharmapala, whose views with reference to the temple must have been well known, I cannot doubt, and it is impossible to say that there was not some ground for the belief. The desire to enshrine the Japanese image in the upper floor of the temple, where no image had been before, may have been very laudable from a purely religious point of view, but it is at least open to doubt whether his motive was purely religious and not to further his known desire to bring the temple under Buddhist control. Anyhow, as he has not proved his right to put it there against the will of the Mahant, he has not shown-that, when putting it, he was lawfully engaged in the performance of religious worship or religious ceremonies. It is said, how-over, that there were two disturbances with an interval between them, and that, oven if there was no disturbance of a lawful religious worship or ceremony on the first occasion, when Dharmapala was told to remove the image and was prevented from lighting the candles, there certainly was on the second, when the image was removed, as the Buddhists were then sitting in contemplation before the image and actually and to the knowledge of the disturbers engaged in religious worship. It is argued that the worship having commenced, they were lawfully engaged in it, and that, even if the petitioners had the right to remove the image before worship commenced or after it ended, the removal, of it during worship was a disturbance and an offence under Section 296. Several cases have been put by way of analogy, and I may concede that, if the petitioners, in effecting an object which they were legally entitled to affect, disturbed an assembly lawfully engaged in the performance of religious worship by means which they knew must disturb it, they would be guilty of an offence under Section 296, even if they had no intention of disturbing it. But it is quite clear that the worship referred to in Section 296 must be a real worship, and not a cloak for doing something else, and that the assembly must be lawfully engaged in worship. It is quite true that if I see persons in a posture of worship, it is no excuse for disturbing them to say that 1 thought they were not worshipping, and that they were thinking of something which they ought not to have been thinking about, but obviously much must depend upon the circumstances under which they were worshipping. Here I think it is quite open to the petitioners to say that there was no real worship, but I do not wish to decide the case on that ground, or to hold that the Buddhists were not really contemplating, and that they merely fell into a posture of worship for appearances' sake. 1 prefer to hold, as I do, that they were not lawfully engaged in worship, that the disturbance must be regarded as continuous, and that if they were not lawfully engaged at first they were not lawfully engaged afterwards. They went to enshrine an image in a place where they had no right to enshrine it. The enshrinement may have involved the performance of religious worship or religious ceremony, but their inimediate object was to enshrine it and not simply to perform an act of worship. They wore told, before the enshrinement was complete, or before worship commenced, to remove the image, they were prevented from lighting the candles, and all the persons who went to interfere did not leave the room. Dharmapala Hays that sitting in contemplation before an image of Buddha is the highest form of Buddhist worship, but that there are other forms, the offering of flowers and the burning of candles being the preliminaries. He says they were not allowed to light the candles, and that 'the prevention of the lighting of the candles was a disturbance of a part and parcel of our religious worship.' If so, it was a disturbance from the first, and a disturbance which continued, and the mere circumstance of their falling into a posture of worship in front of the image which they had been ordered to remove, but before it actually was removed, an act which nothing but the use of personal violence could have prevented, does not put them in any better position than they were at first.

23. To say that there was at first no disturbance of their religious worship or ceremony which amounted to an offence, but that there was such a disturbance afterwards, is to put the case on very narrow grounds, and the answer is, I think, clear. For these reasons I hold that no offence has been committed under Section 296, which was never intended to apply to a case like this, and that the conviction must be set aside and the fine refunded.

24. It is greatly to be regretted that this criminal case should have been brought and pressed in the way it has been. Dharmapala's motive in bringing it is, I think, very questionable, and a perusal of his evidence, which is open to severe criticism, shows that he is responsible for the great length to which the trial has been prolonged.

Banerjee, J.

25. I am of the same opinion.

26. The accused in this case were convicted by the District Magistrate of Gaya of the offence of voluntarily causing disturbance to the complainant and his associates, who were found to have been lawfully engaged in the performance of religious ceremonies and religious worship in the Mahabodhi temple at Bodh-Gaya, and were sentenced under Section 296 of the Indian Penal Code to one month's simple imprisonment and a fine of Rs. 100 each.

27. On appeal by them the learned Sessions Judge has affirmed the convictions and the sentences of fine, but set aside the sentences of imprisonment.

28. They now ask us, in the exercise of our revisional powers, to set aside the convictions and sentences, on the ground that upon the facts as found by the Courts below and upon the facts disclosed by the evidence, no offence under Section 296 of the Indian Penal Code has been committed by them.

29. We have heard learned Counsel on both sides at some length and considered the evidence and the elaborate judgments of the Courts below, and the conclusion we have arrived at is that the contention of the petitioners is correct.

30. To constitute an offence under Section 296 of the Indian Penal Code-

(1) There must be a voluntary disturbance caused;

(2) The disturbance must be caused to an assembly engaged in religious worship or religious ceremonies; and

(3) The assembly must be lawfully engaged in such worship or ceremonies.

31. These being the ingredients necessary to constitute the offence, let us see how far the evidence establishes their existence.

32. The evidence which has been fully discussed in the judgment of my learned colleague, and which I need not therefore refer to at any length, taken along with certain books of public history, such as Martin's edition of Buchanan Hamilton's 'Eastern India' and Rajendra Lala Mitra's 'Buddha-Gaya,' which may be referred to under Section 57 of the Evidence Act, proves the following facts:

(1) The great temple at Bodba-Gaya, said to occupy the site of Buddha's hermitage, was originally a Buddhist temple; but it has for a long time (how long it is neither easy nor necessary in this case exactly to determine, but certainly for more than a century) been in the possession and under the control of the Hindu Mahant of that place.

(2) Buddhist pilgrims have, however, from time to time, continued to visit the temple and perform their worship there; but there is no reliable evidence to show that the upper chamber had in recent times been ever resorted to by Buddhisms. The temple has, however, not been shown to have been converted into a place of Hindu worship, though there is a spot in the temple compound, which is resorted to by Hindus as a sacred place for offering pindas or oblations to ancestors.

(3) Early in 1893 an endeavour was made on behalf of the Mahabodhi Society of Ceylon (established in 1891), of which the complainant Dbarmapala is the General Secretary, to obtain a conveyance or lease of the temple from the Mahant; and on the negotiations for the purchase or lease failing, the complainant, it seems, applied to the Government of Bengal in April 1894, requesting it to help the Mahabodhi Society in obtaining the transfer of the Bodha-Gaya temple from the Mahant, but was told in reply that the Government was not in a position to help him.

(4) In the meantime, in November 1893, the complainant obtained from Japan an image of Buddha, highly artistic in execution and said to be of historic importance, with a document purporting to be signed by the High Priest of Tokio, for the purpose of enshrinement in the second storey of the Bodha-Gaya temple, and 'as a good sign' (as the document puts it) 'for the success of the restoration of the Bodha-Gaya temple;' and he advertised in the Mahabodhi Society's journal that on the 19th of May 1894, in the presence of the Collector of Gaya, he would place that image in the temple; but he had to desist from placing the image there upon the objection of the Mahant and upon receipt of a prohibitory order from the Magistrate.

(5) No further attempt was made to place the Japanese image in the temple until the 25th of February 1895 (the day of the occurrence, which has given rise to this case), when between 8 and 9 in the morning the complainant with two other Singhalese priests and one Singhalese layman went with the image to the upper floor of the temple, and after they had set up the image on the altar and were about to light one of the candles, as a preliminary to their worship, a number of retainers of the Mahant came, snatched the candle away, and commanded the complainant to remove the image. After some expostulation all but a few left the temple; and Dharmapala and the two priests sat down to their devotion in front of the image in the characteristic Buddhist attitude of religious contemplation, when in about a quarter of an hour a number of men, including the accused, came and tumultuously carried off the image and set it down in the open courtyard below.

33. As regards the first of these facts, the complainant professes not to be aware of the Mahant's right to, or possession of, the temple; but he is contradicted by his own writings in the journal of the Mahabodhi Society, and by his own conduct in seeking to obtain a conveyance or a lease of the temple from the Mahant. The shuffling nature of his evidence has been unfavourably commented upon in the judgments of both the Courts below, and the learned Sessions Judge, in order to reconcile his view of the general truthfulness of Dharmapala's evidence with the unreliable character of this part of it, has to rely upon the erroneous and somewhat mischievous theory of the oriental standard of truth being different from the normal standard, a theory, the application of which must often lead, as it has in this instance led, to incorrect estimation of evidence. I deem it right here to observe that the question what the exact nature and extent of the Mahant's control over the temple is, the evidence adduced in the case does not enable us to determine.

34. With reference to the second fact, it was urged on behalf of the petitioners that the Buddhists cannot claim it as a matter of right to worship in the temple, and that they have hitherto done so only by the permission of the Mahant; but I do not think it necessary to determine the point in this case.

35. Touching the remaining three facts, there was practically not much dispute.

36. These being the facts of the case, Mr. Ghose, for the petitioners, contended that they disprove the existence of the three ingredients necessary to constitute the offence of which the petitioners have been convicted.

37. He contended first of all that it was evident from facts 1, 3 and 4, and from the finding of the District Magistrate, which was fully borne out by the evidence and had been erroneously set aside by the Judge, that the accused, in removing the image which had been placed in the temple by the complainant in the assertion of a right he did not possess and in denial of the Mahant's rights, acted under a bond fide belief that they were only defending the rights of the Mahant without any intention of disturbing any one; and that they cannot therefore be said to have voluntarily caused any disturbance. Having regard to the definition of the word 'voluntarily' as given in Section 39 of the Indian Penal Code, I do not think this contention is correct. Intention to cause a certain result is not an element necessary to constitute a voluntary causing of that result, but knowledge of, or belief in, the likelihood of the result following, though not intended, may supply the place of intention. If, therefore, the accused knew, or had reason to believe that their act in removing the image was likely to cause disturbance to any religious worship, then, though they might not have intended to cause such disturbance, yet the causing of the disturbance would be voluntary within the meaning of the Penal Code. There would no doubt still remain the question whether the accused knew or had reason to believe that the complainant and his companions were engaged in religious worship at the time, and that their act in removing the image was likely to cause disturbance of such worship. But, having regard to the position of the accused as members of a religious fraternity and to the means they enjoyed of observing Buddhist worship in the temple, which lies close to their monastery, I am not prepared to dissent from the conclusion arrived at by the Courts below that this question should be answered in the affirmative.

38. The learned Counsel for the petitioners next contended that the religious worship and religious ceremonies which Section 296 of the Indian Penal Code contemplates, must be real religious worship and real religious ceremonies, and not such as are colourable only, and that the worship and ceremonies which the complainant and his party were engaged in, were merely a pretext to cover their act of asserting their right against the claims of the Mahant. Whilst admitting fully the correctness of the first branch of this contention, that the religious worship and ceremonies contemplated by the section must be such as are real, and conceding also that the previous acts and conduct of the complainant, as proved by his own writings in the journal of the Maha-bodhi Society, tend to show that his action on the 25th of February 1895 was more in the assertion of a right to worship than for the purpose of worshipping, I should still hesitate to hold that the worship was not real, when those engaged in it swear that it was so.

39. The last contention of Mr. Ghose was that, granting that the complainant and his companions were engaged in religious worship, and granting that they were voluntarily disturbed by the accused, it is not shewn that, they were lawfully engaged in such worship, and that the disturbance does not therefore constitute an offence under Section 296 of the Indian Penal Code. I am clearly of opinion that his contention is sound. To sustain a charge under Section 296, it lies upon the prosecution to show that the persons who wore disturbed in their religious worship or ceremonies were lawfully engaged in the performance of the same, that is, that they had the right to do what they were doing. But the prosecution has utterly failed to discharge the burden of proof that lay upon it. What the complainant and his associates were engaged in doing, was not simply to worship in the upper chamber of the temple, but to enshrine a new image of Buddha on the altar of that chamber, and that, after the refusal of the Mahant, in whose possession and under whose control the temple was, to allow such enshrinement, as shown by the events of May 1894, and without any further intimation to him. It is evident, too, from the previous acts and conduct of the complainant himself, reluctantly admitted by him in his cross-examination, that his object on this occasion was not simply to worship in the temple, but to assert his right to worship there in a particular way, that is, to enshrine the image there in disregard of the authority of the Mahant or, to put it in the mild language of the learned Sessions Judge, 'to gain a spiritual triumph for Buddhism, and-to get rid of a responsibility which, although he had sought it himself in the greatest hope and confidence, he now felt was an intolerable burden.' In other words, he wanted indirectly and in a covert way to do that which he had failed to do directly and openly, namely, to bring the temple under the control of Buddhist priests.

40. Now, though the Buddhists may have the right to worship in the temple, there is no evidence to shew that they have any right to resort to the temple to secure such an object as the one referred to above, or to enshrine a new image in the temple against the wish, and in the face of the express prohibition, of the Mahant. The learned Sessions Judge, in his judgment, takes exception to the word 'enshrinement,' but that is the word used in the charge to which the accused were called upon to answer, and that is the word used by the complainant himself with reference to the placing of the Japanese image in the temple. His intention evidently was to place the image in the temple as a permanent object of worship, and he has adduced no evidence to show that he had the right to do so. That being so, it cannot be said that in doing what he did, he was lawfully engaged in religious worship or religious ceremonies. The learned Advocate-General, no doubt, felt the difficulty of the position, and the way in which he sought to get over the difficulty was by arguing that, even if the Mahant had the right to prevent the setting up of the new image, his subordinates, the accused, were at best entitled to stop the placing of the image on the altar before the commencement of the worship, or to remove it after the conclusion of the same, but they were not justified in disturbing the worship during its continuance. To this argument there are two answers : In the first place, however desirable it may be, that religious worship from its sacred character should, while it is going on, be secured against molestation, even though the worshipper be a wrong-doer and a trespasser, that is not provided for by our criminal law, and the Legislature has thought it fit to make molestation of religious worship an offence only when people are lawfully engaged in their worship. And in the second place, upon the admitted facts of the case, the opposition effectually began before the worship had commenced and the lighting of the candles, which is regarded as a necessary preliminary, had taken place, and the subsequent removal of the image was only a continuation of the first opposition.

41. I, therefore, think that it is not established that the complainant and his associates were lawfully engaged in religious worship, when they were disturbed, and that the accused, therefore, in causing the disturbance have committed no offence under Section 296 of the Indian Penal Code; and I agree with my learned colleague in holding that this rule should be made absolute, the convictions and sentences set aside, and the fines, if realised, refunded.

Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //