T. S. FERNANDO, J.—SewanthincUhan v. Nagcdingam
1960Present : T. S. Fernando, J.M.SEVVANTHINATHAN, Petitioner, and V. NAGALINGAMand 3 others, Respondents
S. C. 338 of 1959—Application in Revision in M. C. MallaJcam, 4107
Revision—Application against an order of acquittal—Requirement of proof of positivemiscarriage of justice.
Prevention of Social Disabilities Act, No. 21 of 1957—Sections ? and 3—Applicabilityonly to obstruction of rights existing at the time when the Act became law—Defilement of a place of worship—Question of mixed fact and law—PenalCode, ss. 290, 292.
In an application in revision against an order of acquittal, the petitioner mustmake out a case showing something in the nature of a positive miscarriage ofjustice.
Sections 2 and 3 of the Prevention of Social Disabilities Act, No. 21 of 1957,do not have the effect of conferring on the followers of any religion a right ofentering, being present in or worshipping at any place of worship which they didnot have before the Act came into force.
The question whether there has beena defilement of a place of worship withinthe meaning of section 290 of the Penal Code is one of mixed fact and law.
APPLICATION to revise an order of acquittal made by theMagistrate’s Court, Mallakam.
C. Ranganathan, with S. Sharvarumda, R. R. Nalliah, V. K. Palasun-theram, K. Palakidnan&ndMissS. Wickremasinghe, for the complainant-petitioner.
N.Satyendra, for the accused-respondents.
Car. adv. vult.
September 28, 1960. T. S. Fernando, J.—
The complainant-petitioner instituted a private prosecution in theMagistrate’s Court against the accused-respondents alleging that theyhad committed offences punishable under sections 290 and 292 of thePenal Code. The charges as framed in the Magistrate’s Court alleged(1) that the accused defiled the Saivite temple at Chankanai East with theknowledge that all the Vellala and other high caste Saivites are likely toconsider such defilement as an insult to the Saiva religion and (2) that theaccused committed trespass in the said Saivite temple by entering theflagstaff mandapam therein with the knowledge that the feelings of theVellala and other high caste Saivites are likely to be wounded, offencespunishable under the said sections 290 and 292 respectively.
T. S. FERNANDO, J.—SewarUhinathan v. Nagalingam
After a lengthy trial in the course of which a scholar said to be an expertin the exposition of the Agamas or the gospel was called fcr the prosecu-tion, the learned Magistrate acquitted all the accused. An appeal fromthis acquittal vas not competent except with sanction obtained from theAttorney-General. Such sanction • was sought unsuccessfully by thepetitioner who thereupon presented this application in revision to thisCourt claiming a retrial■ before another Magistrate. It is now settledthat before this Court can grant a prayer like that of the petitioner on this •application in revision, the petitioner must make out a case showingsomething in the nature of a positive miscarriage of justice in the■Magistrate’s Court.—The King v. Noordeen.1
The learned Magistrate has recorded certain findings in his judgmentwhich are reproduced below :—(1) that the accused entered the templein entering the inner courtyard by climbing over the parapet wall on thesouthern side, and that they entered the flagstaff portion and then wentout of the inner courtyard through the kopuram entrance when they werechased by the complainant; (2) that the temple has been built inconformity with the Saivite Agamas and is a place of worship for Saivitesand is held sacred by them ; (3) that the evidence led by the prosecution ishot sufficient to say beyond doubt that there was defilement of the templeby the act of the accused in entering it; (4) that the accused were deniedtheir right to worship at the temple ; and (5) that it cannot be said thatjthe act of the accused was intended to insult the Saivite religion or woundthe feelings of Saivites.
There is force in the argument of learned counsel for the petitioner thatthe Magistrate has misdirected himself in regard to one of the elements inthe charges requiring proof on the part of the prosecution in that thecharges only alleged knowledge on the part of the accused that Vellalasand other high caste Saivites are likely to consider the defilement as aninsult to their religion or that the feelings of such people are likely to bewounded whereas the finding of the Magistrate relates not to the proof ofknowledge which was alleged but to the proof of intention which was notalleged in the charges. Also, there is point in the argument that indenying any right in the accused to worship by entering the inner court-yard there was no denial of a right to worship at the temple because theonly right which the accused had was alleged to be the right to worship inthe outer courtyard. I am inclined to agree also with the argument ofMr. Ranganathan that sections 2 and 3 of the Prevention of SocialDisabilities Act, No. 21 of 1957 do not have the effect of conferring on thefollowers of any religion a right of entering, being present in or worshippingat any place of worship which they did not have before the Act cameinto force ; in other words, the Act penalised only the prevention orobstruction of the exercise of a right which was an existing right at thetime the Act became law.
* (1910) 13 N. L. B. at page 118.
Hutsain v. Ratnayake
My agreement with the arguments of petitioner’s counsel on the twopoints referred to above and the findings of fact reached by the Magistrateand described above as findings (1) and (2) do not avail the petitionerin his present application unless I can say with confidence that byentering the inner courtyard of this temple the accused defiled the temple.This is a question of mixed fact and law, and the learned Magistrate hasanswered this question against the petitioner. It is no doubt true, aspetitioner’s counsel contended, that the important question arising uponthis application is what do people believe in as their religion. Whethera place is holy or not and whether a place that is holy has been defiled arealso matters of belief. Having listened to the exhaustive arguments ofcounsel for both parties before me and having examined with care theevidence adduced by the petitioner and the expert before the learnedMagistrate, I find myself unable to say with any confidence that thelatter’s finding that the prosecution failed tp establish a defilement of thetemple is unsupportable. In this state of affairs it follows that I cannotsay that the Magistrate’s order has resulted in a miscarriage of justiceand this application must be dismissed.
. Application dismissed. (
M. SEVVANTHINATHAN, Pestitioner, and V. NAGALINGAM and 3 others, Respondent