Sir John Edge, C.J:— This suit was instituted in order to determine whether the plaintiffs were or were not entitled to perform their devotions in the mosque at Jalalipura in Benares according to their view of the ritual. Their case was that, when the first chapter of the Kuran was repeated, they were entitled at the conclusion of the chapter to say the word ‘Amin’ aloud and that they were also entitled to raise up their hands at certain periods of the service. The defend-[501] ants contended that the plaintiffs were not Muhammadans, strictly speaking, and that they so essentially differed from the followers of the School of Imam Abu Hanifi that they, the defendants, were entitled to exclude the plaintiffs from the mosque in question. The learned Subordinate Judge of Benares tried the suit. He came to the conclusion that the plaintiffs were Muhammadans, and as Muhammadans they were entitled to use the mosque in question for devotional purposes. On appeal the learned District Judge of Benares, although finding that the plaintiffs were Sunni Muhammadans, dismissed their suit mainly upon two grounds, one being that the mosque in question had been, as found by him, used exclusively by the school of Muhammadans who followed Imam Hanifi. The other ground being that the plaintiffs, although Sunnis, were, by reason of some peculiarity in their tenets, not strictly in his opinion the followers of any one of the four Imams. It appears to me that the case raises two questions, the first being whether a mosque which is dedicated to God can be limited in its dedication to any particular school or sect of the Sunni persuasion of the Muhammadans. The second question being whether it is shown here that the plaintiffs are not in fact Muhammadans of the Sunni persuasion, although they may have some peculiar views as to the ritual. That they are believers in one God and believe that Muhammad is his prophet, there is no question.
Now as to the first question, no authority has been brought to our notice to show that a mosque which has been dedicated to God can be appropriated exclusively to or by any particular sect or denomination of the Sunni Muhammadans, and without very strong authority for such a proposition, I for one could not find as a matter of law that there could be any such exclusive appropriation. As I understand, a mosque to be a mosque at all must be a building dedicated to God and not a building dedicated to God with a reservation that it should be used only by particular persons holding particular views of the ritual. As I understand it, a mosque is a place where all Muhammadans are entitled to go and perform their devotions as of right, according to their conscience.
[502] Now on the second point I have said that it has been found as a fact that the plaintiffs are Sunni Muhammadans, and in fact in some interlocutory proceedings before the case was heard, the point was not seriously contested. There is, as far as I can ascertain, no evidence that these persons are not strictly Muhammadans, although they may differ from the majority of the Sunni Muhammadans on particular points. No authority has been brought before us to show that these persons by reason of any views which they may entertain as to ritual, could be treated by any orthodox Muhammadans as persons other than followers of the prophet. For these reasons I think the appeal must succeed and the judgment and decree of the first Court must be restored.
I have only further to say that, although I have expressed my view of the law, I think it batter that persons who differ in matters of ritual should have separate mosques, but this is not the question we have got to decide. It must be distinctly understood that I entertain no doubt that a Muhammadan would bring himself within the grasp of the criminal law who not in the bona fide performance of his devotions, but mala fide for purposes of disturbing others engaged in their devotions, makes any demonstration, oral or otherwise, in a mosque, and disturbance is the result. I am of opinion that the appeal must be allowed with costs and the decree of the first Court restored.
Straight, J.:— I am of the same opinion as the learned Chief Justice with regard to the particular case that is now before us. I think it is unfortunate that the learned Judge of Benares disturbed the extremely sensible judgment which had been passed by the Subordinate Judge, Mr. Kashi Nath Biswas, and with which I entirely concur. It represents exactly the view that I take of the litigation. But I think it my duty, having been one of the Judges who took part in the Full Bench case of Queen-Empress v. Ramzan, to which my brother Mahmood has referred, to make one or two observations in reference to that ruling, in order that there may be no misunderstanding, so far as I am concerned, as to what my view [503] in that case was and what I held to be the law in such matters. The learned Chief Justice has expressed with no uncertain sound what his view is upon the question, and the view that he has enunciated is precisely the view that the Full Bench took in that case. In Queen-Empress v. Ramzan, the matter came before this Court as a case of criminal revision, and it was our duty, unless there were no facts found to justify the conclusions, to accept the findings of fact recorded by the lower Court. Whether the view that I took with regard to those findings was right or wrong, I need not discuss, but I held then, and I hold now, that, if a Muhammadan goes to a mosque, not with the object of honestly performing his own religious duties, but with the deliberate purpose and intention of disturbing the quiet devotions of others who are engaged in prayers in that mosque, and he acts in such a way that the necessary consequence is that the congregation is disturbed, he has brought himself within the meaning of s. 296 of the Indian Penal Code. As I have said, whether I was right or wrong in the view I took of the findings in the Queen-Empress v. Ramzan I am not going to enquire. But I may say this much, that what I understood was found in that case was that Ramzan having gone into the mosque with the deliberate purpose and intention, not of performing his devotions as a Muhammadan, but for the purpose of creating disturbance and preventing other people from performing their prayers, bawled out the word “Amin” in a noisy and disorderly fashion, and a disturbance was the result of his conduct. I believe that subsequently when the case came back from the Magistrate, this was the conclusion at which the majority arrived. I agree that this appeal should be allowed with costs, and that, the learned Judge's decree being reversed, that of the Subordinate Judge should be restored.
Brodhurst, J.:— I concur with the learned Chief Justice and my brother Straight.
Tyrrell, J.:— I also concur.
Mahmood, J.:— I should myself have been perfectly willing to say not more than two words in delivering my judgment in the case, [504] namely, that I also concur in the judgment of the learned Chief Justice and the order which is to be made in the case. But, as my brother Straight has said that some of the questions which we have been called upon to consider yesterday and to-day are questions that do not require adjudication by a tribunal of law, I think it is necessary for me to state my reasons why the order passed by the learned Chief Justice and concurred in by my learned brethren is the only one which can be passed in the case.
In the present case the exact state of the pleadings and the defence to the action have been put very, clearly by the learned Chief Justice in his statement of the case, and I wholly concur with him. In the case of Queen-Empress v. Ramzan, there is of course, as the report shows, enough indication that my judgment was not present before the Court, and that these very points not only of the Muhammadan ecclesiastical law but also the points of the criminal law were not before the Full Bench. Speaking of the case, I do not wish to refer to it further than by saying that, even as a question of criminal law, I stated the view held by Field, J. as to cases where the lawful act of any person may cause a breach of the peace. “It amounts to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition”(2).
I am far from being able to concede what Pandit Sunday Lal endeavoured to represent, that the present plaintiffs are not Muhammadans at all. I should have expected that, considering the expression of my views in Queen-Empress v. Ramzan, and considering also the importance of the question, the learned gentlemen at the Bar would produce stronger authorities to shake the authority of the dissentient judgment in that case. But no such attempt was made. For the purposes of the case it is not necessary for me to consider the exact definition of the word Muhammadan. But I said enough in Queen-Empress v. Ramzan to show that so long as a mosque, is a mosque that so long as the plaintiffs are persons who call [505] themselves Muhammadans and entitled to worship, there is absolutely no authority to say that any sect or any creed or any portion of the community can restrain others who claim to have the right which, to use the language of Muhammadan law, God and his Prophet gave them from putting such right into exercise.
It is clear then that Pandit Sundar Lal, in his able argument and in the manner in which he has considered the case, has frankly given up the proposition that the plaintiffs are not Muhammadans, and that he no longer maintains the argument that the mosque to which the litigation relates is not a mosque in the full sense of the Muhammadan Ecclesiastical Law, which law this Bench is bound by the express terms of the statute to administer in such cases. And if it is true that the plaintiffs are Muhammadans, then there is no authority for saying that, because of the circumstance that those persons happen to annoy or disturb the peace of mind of the assembly, they are not to be entitled to worship in the mosque.
As to the question of pronouncing the word “Amin,” I hold that the word “Amin” must be said at the end of the prayer ending with Sura-i-Fateha. I hold also that it should be pronounced. I hold also that there is a difference as to the exact note in which it should be pronounced, and I hold that there is no authority to say at what note of the vocal octave the voice should emanate. There is no authority to say that the word “Amin” should be pronounced in one note or in another. Pandit Sundar Lal did not undertake to show that it was so. I can imagine the case of a man going to a mosque for the purpose of worshipping God, and in the honest exercise of his conscience pronouncing the word “Amin” in a voice which appears to one ear as loud and to another ear as low. There are some who think that the speaking of the word “Amin” aloud is required by devotional feeling and is necessary for their prayers. I hold therefore that there is no authority in the Muhammadan Ecclesiastical Law to limit the tone of voice in which the word “Amin” is to be pronounced; that so long as the plaintiff appellants are Muhammadans, as we have found they are, so long [506] they are entitled to enter a mosque and perform the worship and say the word “Amin” without anything to restrain their tone or note of the octave. But if the pronouncing of the word “Amin” results in the disturbance of peace, that of course will have to be dealt with under the criminal law. But the matter remains that where the word “Amin “is pronounced aloud in the honest exercise of conscience that it should be so pronounced, there can be neither any offence under the criminal law nor any wrong in the civil law.
Appeal allowed.