294. Whoever sings, recites, or utters in or near any public place any obscene song, Obscene songs. ballad, or words to the annoyance of others, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both.

The words of this Section, which make it necessary that the place should be public, and that the act should be to the annoyance of others, seems to point to such open obscenity as would have been a nuisance at common law.

"It seems an established principle, that whatever openly outrages decency and is injurious to public morals, is a misdemeanor at common law." (2 Camp. 90. n.)

According to English law, such an act, even if committed in a place of public resort, was not indictable if only one person could have been annoyed by it. (Arch. 792.) But though the plural word 'others' is used in this Section it includes the singular number under s. 9, unless the contrary appears from the context. There certainly is no reason why a person who bawled out an indecent song in a railway carriage, to the annoyance of a single lady, should not be punished for it.

An omnibus is a public place for this purpose, and so, of course, would a railway train be (Arch. 792), or any other place where a great number of persons might be affected by the criminal act. (Reg. v. Thallman, 33 L. J. M. C. 59. L. & C. 326.) Or a public urinal. (Reg. v. Harris, 1 LR. CC. 282.)

"In considering whether a particular locality is a public place or not the Courts look at it in respect to the manner in which it was used at the time of the alleged offence. Thus, if a village storehouse to which people resort for the purchase of goods, or a shop in which medicines are sold, is locked up at night, it then ceases to be a public place, though it was such during the day. And the general principle seems to be, that the place must be one to which people are at the time privileged to resort without an invitation. On the other hand, any place may be made public by a temporary assemblage; and the exclusion of a few persons is not alone sufficient to prevent its being such." (1 Bishop, s. 315.)

Keeping lotteryoffice.

294A. Whoever keeps any office or place for the purpose of drawing any lottery not authorised by Government, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

And whoever publishes any proposal to pay any sum, or to deliver any goods, or to do or forbear

doing anything for the benefit of any person, on any event or contigency relative or applicable to the drawing of any ticket, lot, number or figure in any such lottery, shall be punished with fine which may extend to one thousand Rupees. (Act XXVII of 1870, s. 10.)

See Act XXVII of 1870. s. 13, ante p. 107.

"No charge of an offence punishable under Section 294A, shall be entertained by any Court unless the prosecution be instituted by order of, or under authority from, the Local Government." (Act XXVII of 1870, 8. 14.)

CHAPTER XV.

OF OFFENCES RELATING TO RELIGION.

Injuring or de

worship, with intent to insult the religion of any class.

295. Whoever destroys, damages, or defiles any place of worship, or any object held filing a place of sacred by any class of persons, with the intention of thereby insulting the religion of any class of persons, or with the knowledge that any class of persons is likely to consider such destruction, damage, or defilement as an insult to their religion shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

religious assem

bly.

a

296. Whoever voluntarily causes disturbance to Disturbing any assembly lawfully engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Trespassing on burial places, &c.

297. Whoever, with intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sepulture, or any place set apart for the performance of funeral rites, or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

298. Uttering words,

&c., with deliberate intent to wound the religious feelings of any person.

Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person, or makes any gesture in the sight of that person, or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

These Sections are of so dangerous a character, that it is most necessary to bear in mind the general exceptions contained in ss. 76-80. It is clear that a missionary or teacher, bona fide pursuing his calling, could not be indicted for any offence he might give to others, nor, of course, could a Magistrate, who felt it to be his duty to prevent or interrupt a religious procession. Nor a Municipal Commissioner or Engineer who dug up a burial ground, or threw down a temple, in the performance of some public work. Nor a person who did such an act upon ground which was lawfully his own, whatever might be the offence given thereby.

The original framers of the Code say in reference to s. 298 (p. 50.) "In framing this clause we had two objects in view: we wish to allow all fair latitude to religious discussion, and at the same time to prevent the professors of any religion from offering, under the pretext of such discussion, intentional insults to what is held sacred by others. We do not conceive that any person can be justified in wounding with deliberate intention the religious feelings of his neighbours by words, gesture or exhibitions.

Α

warm expression dropped in the heat of controversy, or an argument urged by a person not for the purpose of insulting and annoying the professors of a different creed, but in good faith for the purpose of vindicating his own, will not fall under the definition contained in this clause."

Notwithstanding this explanation the complaints against this Section were numerous, not only from the Missionaries, but from the company's Judges, one of whom, Mr. Giberne, Judge of the Bombay Sudder Court, says, "this clause might, I think, be excluded, for it almost amounts to a prohibition of preaching the Gospel." In commenting upon these criticisms the Commissioners quote the above passage, and go on to say

"We understand these instances to be mentioned as indicative of the strictness with which the definition is to be construed, so as not to make a person criminally liable for words, &c., wounding the religious feelings of another, unless a deliberate intention so to wound his feelings be unequivocally manifested, as it would be by mere railing and abuse, and by offensive attacks upon his religion, under the pretext of discussion, without any argument which an impartial arbiter could possibly believe to have been addressed to him in good faith merely for the purpose of convincing him of the truth. It is here to be observed, that it is not the impression of the offended party that is to be admitted to decide whether the words uttered deserve to be considered as insulting, and whether they were uttered with the deliberate intention of insulting; these are points to be determined upon cool and calm consideration of the circumstances by the judge. The intention to wound must be deliberate, that is, not conceived on the sudden in the course of discussion, but premeditated. It must appear, not only that the party, being engaged in a discussion with another on the subject of the religion professed by that other, in the course of the argument consciously used words likely to wound his religious feelings, but that he entered into the discussion with deliberate purpose of so offending him. In other places in the Code, a party is held guilty if he causes a certain effect, the causing of which is an offence, intending to cause that effect, or knowing that his act was likely to cause it. Here, there is a marked difference; although the party uttering offensive words might be conscious at the moment of uttering them that they were likely to wound the feelings of his audience, yet if it were apparent he uttered them on the spur of the occasion, in good faith, simply to further his argument-that he did not take advantage of the occasion to utter them in pursuance of deliberate purpose to offend-he would not, we think, be liable to conviction under s. 298. If, however, a party were to force himself upon the attention of another, addressing to him, an involuntary hearer, an insulting invective against his religion, he would, we conceive, fall under the definition, for the reasonable inference from his conduct would be, that he had a deliberate intention of wounding the religious feelings of his hearer." (Second Report, 1847, s. 252.)

I have thought it important to give the above extracts at considerable length, as showing what was really meant by those to whom we are indebted for this clause. At the same time I cannot but feel most apprehensive of the effect of a Section which requires so much explanation, and is susceptible of so many refined distinctions.

299.

CHAPTER XVI.

OF OFFENCES AFFECTING THE

HUMAN BODY.

OF OFFENCES AFFECTING LIFE.

Culpable homi

cide.

Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Illustrations.

(a) A lays sticks and turf over a pit with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z, believing the ground to be firm, treads on it, falls in, and is killed. A has committed the offence of culpable homicide.

(b) A knows Z to be behind a bush. B does not know it. A, intending to cause, or knowing it to be likely to cause Z's death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide.

(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death.

To constitute the offence of culpable homicide, not only must the act of the offender have caused death, but it must have been done with the intention that death should be caused, or the knowledge that death was likely to be caused by the act.

Intention must not be confounded with wish. Suppose a man discharges a pistol at another. He may either wish to kill him, as, for instance if the person aimed at is his enemy; or he may intend to kill him, but wish that his death could be avoided, as a criminal firing at a policeman to avoid arrest; or he may intend to wound him, knowing that the wound may be fatal, but neither wishing nor intending that it should be so; or he may simply fire at him, as a man often did in a duel, neither wishing nor intending either to kill or wound, but merely aiming in the direction of his opponent, and taking his chance of any consequences that may follow. If in any one of these instances death ensued the act would be culpable homicide, unless legally justifiable.