AHMED Vs. STATE

JUDGEMENT

(1.) THIS is an application under Section 439 of the Code of Criminal Procedure directed against the judgment of the Sessions Judge, Pali, dated 6th July, 1966, who maintained the conviction and sentence of the applicants under Sections 295 and 380 of the Indian Penal Code.

(2.) THE circumstances leading up to the present application for revision briefly stated are these: On 7th April, 1964 some ladies of Jetaran went for worship to the temple of Mataji outside Mertji Darwaja near Jagannathji-ki-Bavri, Jetaran. To their suprise they did not find the idols in the temple and even the Chabutra on which the idols stood and the steps leading to the Chabutra were found damaged. On 8th April, 1964 some Hindu residents of Jetaran made a report to the Sub-Divisional Magistrate, Jetaran that in the said temple there were idols of seetlamataji, Achparaji, Bodarji and others and these idols were removed dishonestly from the Chabutra by some Musalmans which has occasioned an injury to the Hindu sentiments. The Musalmans in the proximity of the said temple have recently collected stones to raise a boundary wall the report adds and it appears that they wanted to demolish the temple and assert their possession of the land on which the temple stood. The signatories of the report further said that any further interference with the said temple may occasion a great row and there was the possibility of a bloodshed. They prayed for action. The Sub-Divisonal Magistrate sent this report to the Circle Inspector of Jetaran who investigated the matter and recovered the idols of Sheetlamataji, Achparaji, Bodarji and Pagatiaji as a result of information supplied to him by accused persons Ahmed and Mohammed. The idols were got identified and eventually the two applicants before me and 3 others were prosecuted in the Court of the Munsif-Magistrate, Jetaran under Sections 295 and 380 of the Indian Penal Code. The accused did not plead guilty. After recording the prosecution and the defence evidence, the learned Munsif-Magistrate acquitted Mohammed Ali, Gafoor Khan and Nathu Khan, and he convicted Ahmed and Mohammed to 1 year's rigorous imprisonment and to a fine of Rs. 200 each under Section 380 of the Indian Penal Code and further sentenced them to I year's rigorous imprisonment under Section 295 of the Indian Penal code, directing that the substantive sentences of imprisonment shall run concurrently. Ahmed and Mohammed preferred an appeal before the Sessions judge, ali, who in his elaborate and well reasoned judgment maintained their conviction and sentence. They have now presented this application for the revision of the judgment of the learned Sessions Judge.

(3.) MR. Chatterji for the applicants submitted that the applicants could not be convicted under Section 380 of the Indian Penal Code as idols were juridical persons and could not be the subject matter of theft as they were not movable property. He placed reliance on In re Vadivelu Arsuthiyar, AIR 1944 Mad 77. It is correct that one or the essential ingredients of theft is that it must be in respect of movable property. The question, therefore, which emerges for consideration is whether idols are movable property or not. In support of the argument that they are not movable property, Mr. Chatterji placed reliance on the Madras case which has held that idols are juridical persons. The learned Judge of the Madras High court was called upon to consider the question whether an idol was a person as envisaged by Section 11 of the Indian Penal Code or not. The circumstances were that the signatures of idol of Venkatchalapati were forged and it was urged that since the idol was not a person no forgery could be committed in regard to the signatures of the said idol. The learned Judge observed that the definition of the word 'person' as given in Section 11 of the Indian Penal code is not exhaustive and must be taken to include an artificial and juridical person as well. The idol is also a juridical person capable of owning property and, therefore, a 'person' as defined in Section 11 of the Indian Penal Code. The learned Judge was not called upon to decide whether an idol was property or not. This case, therefore, could not possibly be a direct authority on the question that has been urged before me. On behalf of the State it was urged by Mr. A. R. Mehta that jurisprudence recognises artificial personality and it is in this sense that the legal fiction imputes personality to an idol and this is not, therefore, contrary to the concept of an idol also being property. A reference to Salmond's Jurisprudence would show that the treasure-chest of a Roman Emperor was regarded as a personality and to use the language employed by Salmond, it was "an exercise of the legal imagination" (of, salmond's Jurisprudence, page 342, 10th Edition ). A number of artificial personalities have been recognised by law for the purposes of public policy or convenience. However, the question whether an idol was or was not property came to be considered in a case as early as--Subbaraya Gurukal v. Chellappa Mudali, (1882)ILR 4 Mad 315, wherein the learned fudges observed, "in the eye of the law the idols are property, and the right to deal with such property must, in the event of disputes arising, be determined by a Civil Court. " in another case---Khetter Chunder Ghose v. Hari Das Bundopadhya, (1890) ILR 17 Cal 557, Sir Guru Das Banerjee, J. , delivering the judgment of the Bench considered whether an idol could or could not be the subject of gift, it was observed, "an idol is not mentioned as an unfit subject of gift by Hindu lawyers in their enumeration of what are, and what are not, fit subjects of gift (see colebrooke's Digest, Book II, Chapter IV); but on the contrary the gift of an idol under certain circumstances is considered a laudable act (see the Varaha Purana, chapter 185; etc.)" Another case where this question came up for consideration is pradyumna Kumar Mullick v. Pramatha Nath Mullick, AIR 1923 Cal 708. Both the cases cited by me above were referred to by the learned Chief Justice while delivering the judgment of the Bench, and he observed. "now, the subject is abstruse and in its nature metaphysical. I have certainly no desire to be dogmatic or to find fault with the language of so great an exponent of hindu Law as Sir Guru Das Banerjee. There may be purposes for which an idol ahmed and Anr. vs. The State (26. 07. 1966 -RAJHC) Page 4 of 8 (26. 07. 1966 -RAJHC) Page 4 of 8 considered with reference to the material substance of which it is composed, may be regarded as movable property. In this way it may be the subject of theft, etc. .