Bechan Jha and Others vs Emperor

Dhavle, J.—The 12 petitioners, along with three other men who were acquitted on appeal by the Additional Sessions Judge, were convicted by the Sub-Divisional Magistrate of Madhubani of an offence u/s 295, I.P.C., in that they destroyed a place of worship, to wit the mosque of the Kunjras of Belhwar, with the intention or with the knowledge that you would thereby insult the religion of the Kunjras in particular and of the Musalmans in general.

They were also convicted u/s 379, I.P.C., of theft of the materials of the mosque, and further of being members of an unlawful assembly with the common object of destroying the mosque, nine of them u/s 143 and the remaining six (who were armed with bhalas) u/s 144, I.P.C. The Magistrate sentenced them all to six months'' imprisonment u/s 295 and to one month''s imprisonment u/s 379, I.P.C., the two sentences to run consecutively, and passed no separate sentence under Sections 144 and 143.

On appeal the Additional Sessions Judge acquitted three of the 15 men (including one alleged to be armed with a bhala) and reduced the sentence on the remaining 12 to three months'' rigorous imprisonment u/s 295, and further made the sentence of one month''s imprisonment u/s 379 concurrent with it. According to the prosecution, the structure destroyed had been erected as a mosque ten years before the occurrence, and Abdul Waheed, P.W. 5, who had been married to the sister of Kari Kunjra, P.W. 2, came to the village about a year before the occurrence as a maulvi or tutor for the children of the Kunjras and started a madrasa in the mosque and also began to call the azan there.

The Magistrate was not prepared to believe that the structure was used as a mosque since the very day of its construction, but found that there was "some sort of structure existing since long" which apparently on the maulavi''s azan "came to be regarded by the Kunjras as a mosque" and was thus "to all intents and purposes" a mosque. The learned Additional Sessions Judge definitely rejected the prosecution claim that the structure was a mosque: according to the defence it was only a dilapidated cattle-shed. The learned Judge below considered it

quite clear, under the circumstances, that the hut in question was not a mosque, but was attempted to be converted into such, after the maulvi was appointed to teach the Kunjra boys.

It is quite obvious, under the circumstances, he said, further,

that the hut in question was not a mosque and that only recently the Kunjras took to saying prayers and calling azan there, that the Hindus rightly or wrongly became apprehensive that the hut might be converted into a mosque, and cow-sacrifice resorted to in the village. This appears to me to be the reason which led to the recent outburst of temper on the part of the Hindus, who took into their heads to do away with the structure.

He nevertheless upheld the conviction of the petitioners u/s 295

because no particular period is required by law to establish an object as one of religious reverence and the house in question was held sacred by the Kunjra community from the time they began to say prayers and call azan there.

It has been urged on behalf of the petitioners that Section 295 can have no application to the case if, as the learned Judge has found, the hut was not a mosque:

A mosque becomes consecrated for public worship either by delivery to a musjid, or on the declaration of the waqif that he has constituted it into a musjid, or on the performance of prayers therein.. with azan and ikamat Adam Sheikh v. Isha Sheikh 1 C.W.N. 76,

and every Mahomedan has the legal right to enter a mosque so consecrated, and perform his devotions there according to his own tenets so long as the form of worship is in accord with the recognized rules of Mahomedan Ecclesiastical law (per Mahmood J. in Queen�Empress v. Ramzan (85) 7 All. 461. But the subject-matter of a dedication under the Mahomedan law must be the lawful property of the waqif, or the waqf will not be valid (Ameer Ali''s Mahomedan Law, Vol. I, pp. 201-02).

In the present case the old hut stood on the belagan land of Buchi Mian, P.W. 6, one of the Kunjra cultivators of the village. It is admitted by Dukha Mian, P.W. 1, the Kunjra who lodged the first information in the case, that before the building of the mosque the Kunjras used to say their nemaz in their houses and that at that time there was a khalihan on this belagan plot. It is not pretended that the landlord''s permission was taken for erecting any public mosque on the plot, and Buchi Kunjra''s tenancy being agricultural, the use of the plot for the purpose of a public mosque would be so inconsistent with the purpose for which the land was let as to render the tenant liable to be ejected from the whole of his holding, as was held by Karamat Hussain J. in Allah Dia v. Sada Nand 8 Ind.Cas. 732, Basa Mal. v. Ghayas-ud-din (05) 27 All. 356, and Sawan v. Mehr Din AIR 1918 Lah. 117.

This aspect of the matter seems to have escaped notices in the lower Courts. The use of the hut as a public mosque with the azan or public call to prayers was entirely unwarranted; and if, as the learned Judge below has found, the hut was not a mosque but the Kunjras were only attempting to convert it into one, it was clearly not "a place of worship" under the law. It is also not pretended that the landlord knew anything about the alleged use of the shed for private prayers; in the pre-maulavi days and while the point of the prosecution story is that the azan made it a public mosque, it is clear that none of the Kunjras was in a position validly to make the implied dedication.

The question therefore arises whether the hut can be regarded as "any object held sacred by any class of persons" within the meaning of Section 295. The learned Judge took it to be "an object of religious reverence", "held sacred by the Kunjra community from the time they began to say their prayers and call the azan there." It is, however, just as obvious that nothing of religious reverence, no sacred character, could attach to the hut apart from its attempted conversion into a mosque as that this attempt itself was contrary to law: to allow any sacred character to the hut would be to enable Buchi Kunjra under the guise of religion to vest the shed as a public mosque in the religious body for whose observance it was to be used, as it was put in Basa Mal. v. Ghayas-ud-din (05) 27 All. 356, to the detriment of the landlords, who had only settled the land with him for agricultural purposes. As the azan or public call to prayers is found to have begun only about a year before the occurrence, the landlords had not lost by prescription their right to eject Buchi for the attempted perversion or misuse of the land, rendering it unfit for the purposes of the tenancy. This would not entitle the petitioners, some of whom are amongst the landlords of the village, to take the law into their hands, but I am now considering whether their destruction of the hut constitutes an offence u/s 295. In my opinion, it does not. The conviction under this section must therefore be set aside as bad in law.

It has also been urged that the conviction of the petitioners u/s 379 is bad in law because there is no finding by either of the Courts below as to any of the individual petitioners taking away the materials of the mosque. The charges u/s 379 did not refer to the common object of the unlawful assembly, which was moreover stated to be merely the destruction of the mosque and not also the theft of its materials. The charges u/s 295 show that the intention underlying the destruction was insulting the religion of the Kunjras, etc., but not theft.

It is therefore clear that the charges of theft were intended by the Magistrate to refer to the acts of individual accused apart from their doings as members of the unlawful assembly. There is, however, no finding that any of the accused individually took away any of the materials of the hut. The learned Government Pleader, has therefore not been able to support the conviction u/s 379. This conviction must accordingly be also set aside.

The petitioners were, as already stated, further convicted, five of them u/s 144 and the rest u/s 143, Penal Code. The common object of the unlawful assembly was stated in the charges to be "destroying the mosque of the Kunjras" standing on the belagan land of Buchi Kunjra. That the hut standing on this land, though it was destroyed was not a mosque properly so called, does not mean the failure of these charges. According to the defence the structure was a cattle-shed; and Buchi Kunjra''s right to have it on the belagan land has not been questioned. Its attempted conversion into a mosque did not, as I have already said, entitle the accused to take the law into their own hands and go in a body to destroy it. But the common object of destroying the mosque made no reference to Section 295, and the destruction of the hut, even if it was not a mosque, clearly amounted in the circumstances to mischief as defined in Section 425, Penal Code.

It follows that the unlawful assembly must be taken to have had the common object of committing mischief in respect of the hut. The conviction of the petitioners u/s 144 or Section 143, as the case may be, must therefore remain. The lower Courts did not pass any sentence upon the petitioners under these sections because of the sentences passed under Sections 295 and 379. As the convictions under these latter sections have been found to be Untenable, it becomes necessary to pass sentences u/s 144 or Section 143. A Court of revision has the power of the Court of appeal to "alter the finding maintaining the sentences, or with or without altering the finding, reduce the sentence," and therefore to pass sentences under Sections 143 and 144, in this case, while setting aside the convictions under Sections 295 and 379, provided the sentences do not exceed those passed by the lower appellate Court. No violence was offered to any of the Kunjras, and the structure described by the prosecution as a mosque does not seem to have had even one pucca wall. The Kunjras had also no right whatsoever to attempt to convert the shed into a public mosque.

Taking all the circumstances into account, I consider that it will be sufficient in the ends of justice if in upholding the convictions u/s 144 or Section 143, I sentence the petitioners to rigorous imprisonment for the period already suffered by them together with fines of Rs. 50 each u/s 144 and Rs. 25 each u/s 143, as the case may be, with one month''s rigorous imprisonment in default. Ordered accordingly.