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Case Number

Criminal Rivision No. 566 of 1897

Attorney(S)

Mr. Jackson, Babus Digambar Chatterji, Dwarha Nath Mitter and Debendra Chandra Mullick for the Petitioner;
The Deputy Legal Remembrancer (Mr. G. Leith) and Babu Shamaiul Chunder Dutt for the Crown.

Judges

Hill
Wilkins, JJ.

Acts

sec. 79 of the Municipal Act of 1864,

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This opinion concerns a Rule calling upon the District Magistrate of Burdwan to show cause why an order of the Sub-Divisional Officer (SDO) of Katwa dated 21 July 1897 — which made absolute a conditional order originally issued on 24 April 1897 under section 133 of the Criminal Procedure Code (Cr. P.C.) — should not be set aside. The conditional order required the Petitioner to remove a burning ghat (cremation ground) from its present position on the ground that it was a nuisance, or to show cause why that conditional order should not be made absolute.

Facts found in the opinion: prior to 10 June 1893 the burning ghat lay on the border of villages Mohanpore and Naihati. Following proceedings under sec. 133 initiated by some inhabitants of Mohanpore, the Petitioner removed the ghat to its present position on 10 June 1893 at the District Magistrate's instance. In November 1896 inhabitants of Naihati applied under sec. 133 for removal from the new site. On 4 March 1897 the Deputy Magistrate declined to interfere because (though he considered it a nuisance) he could not find a more suitable spot and therefore ordered the application to be filed. The Naihati inhabitants then petitioned the District Magistrate in revision; the District Magistrate forwarded the petition to the Sub-Divisional Officer directing fresh proceedings. The SDO drew up proceedings dated 24 April 1897 and ultimately made the conditional order absolute, which gave rise to the present Rule.

Legal Issues Presented

Whether the District Magistrate had authority to order a further inquiry (or fresh proceedings) after the Sub-Divisional Officer had effectively refused the November 1896 application.
Whether a burning ghat or cremation ground can, as such, be dealt with under section 133, Cr. P.C. — i.e., whether a burning ghat can be a "nuisance" within the meaning of that section.
Whether a cremation ground that is private property can be considered to be on or at a "public place" for the purposes of section 133, Cr. P.C., and thus whether the Magistrate had jurisdiction under the second clause of that section.
Whether the Sub-Divisional Officer had power to direct the Petitioner to remove the burning ghat from its present position (as opposed to directing steps necessary to abate the nuisance).
Whether the proceedings should have been conducted under clause 2 or clause 3 of section 133, Cr. P.C., given the nature of the Petitioner's involvement (private property owner vs. carrying on trade/occupation).

Arguments of the Parties

Petitioner's Arguments (Mr. Jackson)

The District Magistrate had no authority to order a further inquiry into the November 1896 application after the Sub-Divisional Officer had practically rejected it; the April 1897 proceedings were thus improper or a continuation of an earlier application he could not revisit.
A burning ghat cannot be a public nuisance and therefore the Magistrate had no authority to act under section 133, Cr. P.C. Mr. Jackson relied on remarks in the judgment of a Divisional Bench of the Madras High Court in Queen-Empress v. Saminadha Pillai to support this contention.
Because the cremation ground is private property, it is not a "public place" within the meaning of section 133, Cr. P.C., and consequently the Magistrate had no jurisdiction to proceed under the second clause of that section.

Respondent / Crown (Deputy Legal Remembrancer)

The Deputy Legal Remembrancer appeared to show cause against the Rule. In the opinion the Deputy Legal Remembrancer urged, at least in part, that clause 3 of section 133, Cr. P.C. would apply to the case (i.e., that the matter could fall under the clause concerning any trade or occupation).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Queen-Empress v. Saminadha Pillai	Authority that a cremation ground properly kept and used (and cremations conducted in a reasonable, decent and inoffensive way) cannot be treated as a public nuisance; concept of "legalised nuisance" in the context of necessary social practices.	The Court accepted that the cited judgment supports the proposition that a properly conducted cremation ground is not a nuisance, but clarified that the case does not preclude treating a cremation ground as a public nuisance if it is kept or used in an offensive manner causing injury, danger or annoyance. The precedent was used to limit, not to bar, jurisdiction under sec. 133 where offensive practices exist.
Brindabun Chunder Roy v. The Chairman and Vice-Chairman of the Municipal Commissioners of Serampore	Construction of section 79 of the Municipal Act of 1864; held Municipal Commissioners could not close a cremation ground merely because burning was offensive without evidence that it endangered health.	The Court regarded this decision as not directly in point. It recognized the case turned on municipal statute construction and did not displace the court's view that an offensive or injurious use of a cremation ground can constitute a nuisance under sec. 133.
Bomford v. Turnby (referenced via Pollock, C.B.)	Referenced for the general idea of social compromises in which some private discomforts are tolerated for general convenience; used illustratively in the discussion of "legalised nuisance."	Used to illustrate the background concept that certain socially necessary practices may be tolerated; the Court treated it as illustrative only and not decisive of whether offensive cremation practices can be nuisances.

Court's Reasoning and Analysis

The Court addressed the petitioner's objections seriatim and applied statutory and case law principles to the facts and evidence summarized by the Sub-Divisional Officer.

Concerning the District Magistrate's authority to order further inquiry: the Court rejected the contention that the April 1897 proceedings were entirely fresh and not a continuation of the November 1896 complaint because the petition to the District Magistrate contained no indication of a new state of affairs. Nevertheless the Court declined to set aside the whole proceedings on this ground alone. Although, strictly speaking, the District Magistrate may have had no power under sec. 437 Cr. P.C. to order a further inquiry, the Court noted that had the District Magistrate referred the petition to the High Court (the proper course, in the Court's view), the High Court would have directed the Sub-Divisional Officer to proceed and hold the formal enquiry now held. Thus no prejudice resulted warranting complete reversal.
On whether a burning ghat can be a nuisance: the Court examined the Madras Divisional Bench decision (Queen-Empress v. Saminadha Pillai) relied on by the petitioner and distilled the correct proposition: a cremation ground properly maintained and used in a reasonable, decent and inoffensive way is not a public nuisance. However, the Court held that the cited authority does not go so far as to prevent a finding that a cremation ground kept or used in an offensive manner — causing injury, danger or annoyance to neighbours — is a public nuisance within sec. 268 I.P.C. or a "nuisance" within the meaning of the second paragraph of sec. 133, Cr. P.C. The Court therefore concluded that a Magistrate has jurisdiction under sec. 133 where the ghat's use is offensive or injurious to the locality.
On whether private property can be the subject of sec. 133 jurisdiction: the Court distinguished the legal question of whether the land is public or private from whether the nuisance affects a public place. The Court held that private property may be used in a way that creates a public nuisance (giving examples such as firing blank charges or allowing offensive operations that impact people using a public way nearby). Thus, ownership of the land by the Petitioner did not preclude sec. 133 action where the use of the land produced a nuisance to the neighbourhood. The Court rejected the suggestion that clause 3 of sec. 133 alone applied, noting the Petitioner's activities did not constitute a "trade or occupation" but rather made land available for cremation; moreover, proceedings had been conducted under clause 2.
On the findings of fact: the Court accepted the Sub-Divisional Officer's factual finding, based on evidence summarized in his judgment, that the practice of cremating corpses as carried out on the Petitioner's land amounted to a nuisance under sec. 133, Cr. P.C. The Court emphasized that it is insufficient for the Petitioner to say he does not himself commit the nuisance (i.e., it is done by professional corpse-burners); if he permits the ground to be used in a manner offensive to public decency and a source of annoyance, he must take steps to ensure proper, decent and inoffensive use (enclose the ground, prevent offensive matter from spreading beyond boundaries, etc.).
On the form of the order: the Court found that the absolute order of the SDO directing the Petitioner to "remove the burning ghat from its present position" exceeded the SDO's power under the section. Under sec. 133 the Magistrate can direct that the Petitioner remove the nuisance (i.e., take steps to abate the nuisance), but not compulsorily order removal of the cremation ground's location. The correct form of notice under sec. 140, Cr. P.C. should require steps that would result in cremation at that place ceasing to be a nuisance (rather than mandating removal of the ghat). If a new, more convenient site has been selected and the Petitioner agrees to removal, that is acceptable; but the Magistrate has no power to force removal if the Petitioner chooses to retain the site provided he prevents nuisance.

Holding and Implications

Core Ruling: The Rule is made absolute only to the limited extent that the form of the Sub-Divisional Officer's order is corrected: the SDO had jurisdiction to direct the Petitioner to remove the nuisance, but had no power under sec. 133 to direct removal of the burning ghat from its position as such. The order directing removal of the ghat's physical location was therefore beyond the SDO's authority and must be altered so that the notice requires steps to abate the nuisance rather than mandatory removal of the ghat.

Direct consequences: the part of the SDO's absolute order that compelled removal of the burning ghat's location is set aside; the proper form of notice under sec. 140, Cr. P.C. should require the Petitioner to take remedial steps to ensure cremation practices are carried out in a proper, decent and inoffensive way so as not to constitute a nuisance. If the Petitioner voluntarily removes the ghat to a new site selected by the Magistrate, that is permissible; otherwise the Petitioner may retain the ghat provided he prevents nuisance to neighbours.

Broader implications: the Court limited its decision to the facts and form of order before it. The opinion clarifies that while a properly used cremation ground is not a nuisance, a cremation ground used in an offensive or injurious manner may constitute a public nuisance under sec. 268 I.P.C. or a "nuisance" within sec. 133, Cr. P.C. The Court did not assert any novel precedent beyond these clarifications; the decision operates primarily to correct the SDO's over-broad remedy and to uphold the factual finding of nuisance on the evidence.

S.C.D

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In The Matter Of The Petition Of Indra Nath Banerjee v. Queen-Empress

The Judgment of the Court was as follows:—

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 sec. 137, Criminal Procedure Code, a conditional order issued by that Officer on the 24th April 1897 under sec. 133, Cr. P.C, 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.

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 border of villages Mohanpore and Naibati. On the application of some of the inhabitants of Mohanpore proceedings were instituted against the proprietor (the present Petitioner) under sec. 133, 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 sec. 133, Criminal Procedure Code, for 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, was not a “nuisance” within the meaning of the section, but because “as there must exist a burning ghat for the cremation of the dead, and as he could not find a more suitable spot, it would be futile to take proceedings under sec. 133, Criminal Procedure Code.” The result was that the Deputy Magistrate ordered the application to be “filed.”

The Naihati people then moved the District Magistrate in revision of this order, and asked that a proceeding under sec. 133, Cr. P.C, 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 sec. 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.

We have heard the Deputy Legal Remembrancer, who appears on behalf of the Crown, to shew cause against the Rule, and we have also heard Mr. Jackson for the Petitioner in support of the Rule. We now proceed to deal seriatim with the arguments used by Mr. Jackton in support of his contention that the Rule should be made absolute.

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 argument set up in reply to this, viz., that the proceedings instituted in April 1897 were not in continuation of the application of November 1896, but were fresh proceedings altogether. There is nothing in the petition to the District Magistrate to shew 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-Divisonal 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 sec. 437, Cr. P.C, 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 enquiry which he has now held.

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 sec. 133, Cr. P.C, 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 .

The accused in that case had been convicted under sec. 290, I.P.C, 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 sometimes designated as nuisance legalised. In other words, it seems to be one instance of those compromises belonging to social life [alluded to by Pollock, C.B, in Bomford v. Turnby (2)] upon which the place and comfort of that life mainly depend and in which some apparent natural right is invaded, or some enjoyment abriged to provide for the more general convenience or necessities of the whole community.” Now the expression “legalised nuisance” used in this connection might at first sight seem to render innocent in law the practice of cremation under any circumstances 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 page 467):—“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 page 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 inconvenience 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 sec. 268, I.P.C, or a “nuisance” within the meaning of the second para, of sec. 133, Cr. P.C

In support of this branch of his argument, Mr. Jackson also relied upon the case of Brindabun Chunder Roy v. The Chairman and Vice-Chairman of the Municipal Commissioners of Serampere , but that case does not seem to us to be very much in point. Its decision turned upon the construction of sec. 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 not 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 so to be dangerous to the health of persons living in the neighbourhood (see pp. 312 and 314).

We therefore hold that although a burning ghat or cremation ground may not in itself be a nuisance within the meaning of cl. 2, sec. 133, Cr. P.C, still a Magistrate will have jurisdiction under that clause, if it is shewn 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 case has clearly found upon the evidence given before him.

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 of sec. 133, Cr. P.C, and that consequently the Magistrate had no jurisdiction to proceed under the second clause of that section. No doubt this burning ghat is the property of the Petitioner, and is not itself a public place. But the question before us is not so much whether the land itself is public or private, as whether the “nuisance” complained of is on or at a public place. The distinction is clear. It is not the place where the nuisance originates which we have to look to, it is the nuisance itself. And we have no hesitation in faying that in our opinion, a private proprietor may be guilty 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 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.

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 cl. 3 of sec. 133, Cr. P.C, 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 anyone 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 with reference to cl. 2 and not to cl. 3 of sec. 133.

For these reasons we think that we should not be justified in setting aside the order of the Sub-Divisional Officer who was found, as a fact upon evidence which he summarizes in his judgment that the practice of cremating corpses as carried on upon the Petitioner's land amounts to a nuisance within the meaning of sec. 133, Cr. P.C It is not sufficient for the Petitioner 10 say that it is not he who commits the nuisance which is one which (if it exists at all) is created by the muddafarashes 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, decent 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.

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 110 power to do; what he had jurisdiction to direct was “that the Petitioner should remove the nuisance,” in other words, take such steps as would result in the cremation of corpses at this place censing to be a nuisance to the public. And we think that this is the form in which the notice to be given to the Petitioner under sec. 140, Cr. P.C, should be drawn up. If, as would appear from the Sub Divisional Officer's order of the 7th August last, a new and more convenient site has been selected for a burning ghat and if the Petitioner has no objection to remove it to that site, so much the better. But if he desires to retain the ghat where it is, the Magistrate has no authority to force him to remove it and to prevent its being used for cremation purposes so long as he takes care that it is not a nuisance to the neighbourhood.

To this extent, therefore, and only to this extent, will the rule be made absolute.

S.C.D

In The Matter Of The Petition Of Indra Nath Banerjee v. Queen-Empress

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioner's Arguments (Mr. Jackson)

Respondent / Crown (Deputy Legal Remembrancer)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

In The Matter Of The Petition Of Indra Nath Banerjee v. Queen-Empress

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