Hill and Wilkins, JJ.
1. This is a rule calling upon the District Magistrate of Burdwan to shew cause why the order of the Sub-Divisional Officer of Katwa, dated the 21st July 1897 making absolute, under Section 137 of the Criminal Procedure Code, a conditional order issued by that officer on the 24th April 1897, under Section 133 of the Criminal Procedure Code, and calling upon the petitioner to remove a burning-ghat from its present position where it is a nuisance, or to shew cause why such conditional order should not be made absolute, should not be set aside.
2. The facts appear to be as follows:
Previous to the 10th June 1893, the burning-ghat or cremation-ground in question was situated on the borders of villages Mohanpur and Naihati; on the application of some of the inhabitants of Mohanpur proceedings were insti(sic) tuted against the proprietor (the present petitioner) under Section 133 of the Criminal Procedure Code, and on the 10th June 1893, at the instance of the District Magistrate, the petitioner removed the burning-ghat to its present position. In November 1896 some of the inhabitants of Naihati moved the Sub-Divisional Officer under Section 133 of the Criminal Procedure Code (sic) or the removal of the ghat from its new site, and, on the 4th March 1897, the Deputy Magistrate declined to interfere, not because the ghat as conducted (sic) as not a 'nuisance' within the meaning of the Section but because 'as (sic) must exist a burning-ghat for (sic) cremation of the dead, and as he could (sic) a more suitable spot, it (sic) to take proceedings under Section 133 of the Criminal Procedure Code.' The result was that the Deputy Magistrate ordered the application to be 'filed.'
3. The Naihati people then moved the District Magistrate in revision of this order, and asked that a proceeding under Section 133 of the Criminal Procedure Code might be drawn up against the petitioner to remove the said 'nuisance from the Naihati village.' Upon receipt of this petition, the District Magistrate ordered it to be forwarded to the Sub-Divisional Officer, who was directed to institute fresh proceedings under Section 133. The Sub-Divisional Officer accordingly drew up his proceedings of the 24th April, with the result that he made the order absolute which the petitioner now seeks to have set aside.
4. We have heard the Deputy Legal Remembrancer, who appears on behalf of the Crown, to show cause against the rule, and we have also heard Mr. Jackson for the petitioner in support of this rule. We now proceed to deal seriatim with the arguments used by Mr. Jackson in support of his contention that the rule should be made absolute.
5. The first ground of objection is that the proceedings are bad, inasmuch as the District Magistrate had no authority to order a further inquiry into the application of the inhabitants of Naihati, which had been practically rejected or refused by the Sub-Divisional Officer. We cannot accept the arguments self up in reply to this, viz., that the proceedings instituted in April 1897 were not it continuation of the application of November 1896, but were fresh proceedings altogether. There is nothing in the petition to the District Magistrate to show that the inhabitants of Naihati complained to him upon a new state of affairs, or upon any fresh nuisance which had occurred since the Sub-Divisional Officer had refused to interfere; and the conditional order which was ultimately made absolute was one issued upon the original complaint stated in the application of November 1896. But we may dispose of this objection by saying that, though strictly speaking the District Magistrate may have had no power under Section 437 of the Criminal Procedure Code to order a further inquiry into this matter, still we do not think it necessary to set aside the whole of the proceedings upon this ground, for, had the District Magistrate referred the petition to this Court as would appear to have been the proper course, we should certainly have directed the Sub-Divisional Officer to proceed and hold the formal inquiry which he has now held.
6. The second contention of the learned Counsel for the petitioner is that, as no burning-ghat can be a public nuisance, the Magistrate had no authority to take action under Section 133 of the Criminal Procedure Code in respect of this burning-ghat. Mr. Jackson supports this contention by referring to certain remarks contained in the judgment of a Divisional Bench of the Madras High Court in the case of Queen-Empress v. Saminadha Pillai (1896) I.L.R. 19 Mad. 464, 467, 468. The accused in that case had been, convicted under Section 290 of the Indian Penal Code for having cremated a corpse at a certain place, and the learned Judges remarked that 'it is clear that the act of the accused falls under the limited class of cases sometime designated as nuisance 'legalised.' In other words it seems to be one instars (sic) of those compromises belonging to social life I alluded to by Pollock, C.B. (sic) Bamford v. Turnley (1862) 31 L. J. Q. B. (Ex. Ch.) 286 upon which (sic) peace and comfort of that life mainly depend, and in which some appall(sic) natural right is invaded or some enjoyment abridged to provide for the (sic) general convenience or necessities of the whole community.' Now the extrusion(sic) 'legalised nuisance' used in this connection might at first sight (sic) render innocent in law the practice of cremation under any (sic) whatsoever. But that this is not the true meaning of the phrase, and that it was not so interpreted in the case above referred to, is clear from what immediately follows in the same judgment. The learned Judges go on to say (at p. 467 of the report): '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,' and further on, at p. 468, '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.' In fact the case cited does not go further than this; it is an authority upon the point that a cremation-ground properly kept and used cannot be considered a public nuisance, but it does not decide that a cremation-ground kept and used in such a manner as to be offensive or a source of injury, danger or annoyance to the people in general, who dwell in the vicinity, is not therefore a 'public nuisance' within the meaning of Section 268 of the Indian Penal Code, or a 'nuisance' within the meaning of the second paragraph of Section 133 of the Criminal Procedure Code.
7. In support of this branch of his argument, Mr. Jackson also relied upon the case of Brindabun Chunder Roy v. Chairman of the Municipal Commissioners of Serampore (1873) 19 W. R. Civ. 309, but that case does not seem to us to be very much in point. Its decision turned upon the construction of Section 79 of the Municipal Act of 1864, and the conclusion arrived at was that Municipal Commissioners could not close a cremation-ground under that section, merely because they thought that the burning of dead bodies was offensive; it was necessary in order to give them jurisdiction that they should be satisfied upon the evidence of competent persons, that the ground was in such a state as to be dangerous to the health of persons living in the neighbourhood (see pp. 312 and 314 of the report).
8. We, therefore, hold that, although a burning-ghat or cremation-ground may not in itself be a nuisance within the meaning of Clause 2, Section 133 of the Criminal Procedure Code, still a Magistrate will have jurisdiction under that clause if it is shown that such a ghat or ground is in such an offensive state, or that cremation is carried on upon it in such an offensive manner, as to be a source of injury, danger, or annoyance to persons living in the vicinity. As a matter of fact this is what the Magistrate in the present case has clearly found upon the evidence given before him.
9. The third objection taken on behalf of the petitioner is that as this cremation-ground is private property, it is not a 'public place' within the meaning (sic) Section 133 of the Criminal Procedure Code, and that consequently the (sic) had no jurisdiction to proceed under the second clause of that section. (sic) doubt this burning-ghat is the property of the petitioner, and is not itself (sic) public place. But the question before us is not so much whether the land (sic) is public or private, as whether the 'nuisance' complained of is on or (sic) public place. The distinction is clear. It is not the place where the (sic) originates which we have to look to, it is the nuisance itself. And (sic) no hesitation in saying that in our opinion a private proprietor may (sic) of acts done on his private property, which may give rise to a public nuisance to those living in the neighbourhood. A private owner who fires off blank charges from a cannon in his compound may give rise to a public nuisance, so far as regards persons riding or driving on a public way just outside the compound. So also the owner of a cremation-ground may fairly be held to create a nuisance if he allows the cremation of bodies upon that ground to be so performed as to annoy or endanger the lives and properties of persons living in the vicinity.
10. This, we think, is the proper reply to the argument as set forth. It is not enough to say, as has been urged by the Deputy Legal Remembrancer, that Clause 3 of Section 133 of the Criminal Procedure Code would apply to this case. In the first place the petitioner in the present case cannot be said to be carrying on any 'trade or occupation,' he merely puts his land at the disposal of any one who wishes to cremate a dead body, and makes his profit by charging a high rent to a tenant who sells wood to the relatives. In the second place the proceedings throughout have been conducted wit preference to Clause 2(sic) and not to Clause 3, of Section 133.
11. For these reasons we think that we should not be justified in setting aside the order of the Sub-Divisional Officer, who has found as a fact upon evidence which he summarises in his judgment, that the practice of cremating corps (sic) as carried on upon the petitioner's land, amounts to a nuisance within (sic) meaning of Section 133 of the Criminal Procedure Code. It is not sufficed (sic) for the petitioner to say that it is not he who commits the nuisance which is one which (if it exists at all) is created by the murdafarashes or professional corpse-burners paid by the persons who use the cremation-ground. If he permits his ground to be used for such a purpose, it is incumbent upon him to take care that it is used in a proper, decant, and inoffensive manner, whereas the findings are that the process of cremation is so conducted as to be opposed to public decency, and to be a source of annoyance to the neighbours. It is for the petitioner to see that the ground is properly enclosed, and that no offensive matter is allowed to lie about it or to travel beyond its boundaries so as to annoy the public.
12. But we think that the form of the order absolute made by the Sub-Divisional Officer is open to objection. The Sub-Divisional Officer has directed the petitioner to 'remove the burning-ghat from its present position.' This, under the section, he had no power to do. What he bad jurisdiction to direct was that the petitioner should 'remove the nuisance'; in other word (sic) such steps as would result in the cremation of corpses at this place ceased (sic) be a nuisance to the public. And we think that this is the form in (sic) notice, to be given to the petitioner under Section 140 of the Criminal (sic) Code, should be drawn up. If, as would appear from the Sub-Divisional (sic) order of the 7th August last, a new and more convenient site (sic) selected for a burning-ghat, and if the petitioner has no objection to (sic) to that site, so much the better. But if he desires to retain the ghat (sic) is, the Magistrate has no authority to force him to remove it, and to (sic) its being used for cremation purposes, so long as he takes care that it is (sic) nuisance to the neighbourhood. To this extent, therefore, and only (sic) extent, will the rule be made absolute.