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Evolution of Section 497 IPC, 1860 - Trespass to Burial Sites

Trespass to Burial Sites is the one of the least discussed and litigated sections of the Indian Penal Code among such light tone of jurisprudence, it is important to understand the meaning of the section and viability of its application for trying it as an offence. The present article tries to discuss the mens rea to satisfy an offence under thee trespass to burial sites and its difference with other existing section of trespass in Indian Penal Code with the help of the cases in Indian and common law jurisprudence.

Introduction
It will always be considered a praiseworthy undertaking to urge the most obstinate and incredulous to abide by the principles that impel men to live in society. There are, therefore, three distinct classes of vice and virtue; the religious, the natural and the political. These three classes should never be in contradiction with one another- Cesare Beccaria[1]

Unfortunately, in the present context, the three vices have not been kept separate and these three vices and virtues are now in contradiction with each other in the legal scenarios. The political employ religion and the naturals are being pressed by them in the social order of the present day. The Indian Penal Code, 1860 [hereinafter IPC] is also a law that has kept the account of such offences which involve the religious and the political angle to an offence.

One such offence under the IPC is the offence of Trespass on Burial Places[2], place of worship, place of sepulchre or any funeral sites where the people pay their last respects to the dead. The religious aspect of this section is stated in the verbatim of the section which links up not only to the interpretation of offending any living person but also the religion of the person.

The aspects of the meaning and the application in the Indian legal context and the other allied crime that isn't recognised with trespass to the burial sites and it's wider aspect covers the crimes in furtherance of the mere trespass like necrophilia etc.

The jurisprudence of the provision of the trespass to burial sites

From the pyramids and many burial sites of the dead of ancient Egypt to the churchyards of England to the modern memorial park, civilized peoples have treated places for the burial of the dead as a deserving special protection.

This unique treatment results from the traditional absence of commercialism of the property involving such places. The History has it that the holy dead concept came from the death of the Archbishop of Canterbury, Thomas Becket in the year 1170. From then on, it became an extraordinary religious devotion which is still practised and is famous for the nourishment of the soul.[3] In the US jurisprudence, it is considered as a unique property and not an ordinary asset that can be acquired from the states.[4]

The interpretation of the family feuds and the nuclear aspects of the family were coming into the picture around the 19th century and the same was the reason of the exclusion of the people of the certain sect to not be involved in the last rites of a person.[5]

India secularism is the reason for the state to have no religion and a neutral law that saves one religion to interfere in other's religious rights. Although by the virtue of the Article 25, the religious denominations and its individual have a right to profess their religion in the regard to the Clause 2 of the Article 25 the state cannot exercise the law in the respect of the many other central law that is binding on all the remaining people.[6] Thus, a person cannot do any act that is contrary to the chapter of the offences of the religious nature as they tend to end up insulting the religion of other people in the wake of the instigating the other class of people or deliberately annoy the people belonging to the other class. The main purpose of the chapter is that the person is entitled to keep his/her faith under the constitutional right but it should be in observance to the rights of the other religious person.[7]

At the time of the framing of the offences under this particular part, the framers stated their intention as the principle on which the governments should act but without departing from the risk of dissolution of the society. The concept is that every man should be suffered to profess his religion and no man should suffer at the insult of another's religion.[8]

Meaning of the Trespass to Burial Places

Section 297 of the IPC is a cognizable offence, non- compoundable and bailable offence. Trespass here means any violent or injurious act, committed in a place of worship with such intention or knowledge as is defined in Section 297. When some persons had a sexual connection inside a mosque, they were offenders under Section 297. The essence of Section 297 is an intention, or knowledge of likelihood, to wound feelings or insult religion and when with that intention or knowledge trespass on a place of sepulture, indignity to a corpse, or disturbance to persons assembled for funeral ceremonies. [9]

The Opening of the bare reading of the provision states the outright accused of the crime being:

Whoever thereby meaning any person irrespective of the gender and age except the provision of the minor being exempted to commit in the criminal law which does not exist in the torts.

The next line states the Mens Rea of the act which divided between the possibility and the affirmation. First is the intention of wounding any person or its religion, or the act itself likely to wound the person or the religion of that particular person which means that there is not instant cause and effect relation of the relation with the intention of the act with the effect of the activities carried out by the offender.

The third element of the Provision is the consequence which is the reason for not merely possessing the intention of killing but that act of trespass should be likely cause to insult the person or his religion or even cause inconvenience to the corpse thereby.[10] Section 297 of the Indian Penal Code, 1860 do not punish the acts which are mere of earthly vanity or pride of a particular.[11]

Apart from the act, the place where the offence is committed is prescribed within the provision which plays the background of the provision by giving the context of the provision i.e. that the act should be in consonance to the:

  1. Place of worship
  2. Any place of sepulchre
  3. Any place set up for the performance of the funeral rites

Any place that acts as a depositor of the remains of the deads
Offers any indignity to any human corpse
Place where people are assembled for the performance of the funeral ceremonies and thereby causing the disturbance.

meaning of Sepulture is associated with the church association and is called the Church of Holy Sepulchre and traditionally known to have the site of Jesus's crucifixion and burial thereof. A few isolated and secret cases of burial, over years, on a piece of land do not constitute the place one of sepulchre for the context of the present section.[12]

The laying of the dead bodies generally in the Christian custom is conducted in the burial sites and places where there is the mere depository. The Christian faith has it that the church of sepulchre is based in the old city of Jerusalem around 336 CE and only the people with the Christian faith can enter it for the service of Jesus.[13] The criminalisation of the act to enter the sepulchre and offend any religious feelings or the person's dignity under the offence.

The Interpretation and Explanation of the Section

Commits any Trespass

The jurisprudence of the trespass is stated in the Leetang v. Cooper[14] that a man who does not inflict injury intentionally, but only unintentionally, the plaintiff has no cause of action today in trespass. His only cause of action is in negligence, and then only on proof of want of reasonable care. If the plaintiff cannot prove want of reasonable care, he may have no cause of action at all. Thereof implying that the act of the trespass is actus reus based not mens rea. But, the question that lingers is how does it find the place in the criminal law.

The answer is the intention of the party carrying out the activity. Under the IPC the trespass is categorised and inclusive of the only knowledge-based act, not the cat based on reckless or negligence of the person. This also states that the parties culpability under the criminal law only arise when the prosecution proves the intention that too with a consequence of insulting someone or some's religion. The act many causes not disgrace or may not humiliate, but in any other circumstances that very act may cause a seeming disgrace or humiliation, hence, the circumstance is surrounding of the act is important.[15]

He had the duty not to hurt the sentiment of the person in the site of the burial site and the same has to be proven by the victim in the offence.[16]

The word trespass is mentioned under the IPC in Section 441, but it is used in respect to any activity carried on to kill or hurt a person by entering into his/her premises without any authority and having the intention and knowledge of causing the hurt with the act. [17]The trespass in this section does not have any special reference as the very invasion of the private property at a given instance do not constitute trespass in the present case.[18]

The entry into the property should be to cause any disruption of the religious beliefs of the person or any of persons' dignity. The only exemption to this is the leave and licence of the possessor as then the land will be converted to the will and whims of the possessor. However, the land if used predominately for the burial purposes then the same cannot be converted to any land for any other purpose like agriculture etc.[19]

Trespass and Criminal Trespass

The essential difference between the trespass of the criminal nature and the trespass to burial sites. It is noted that the Trespass of criminal nature as defined under Section 441 of the IPC constitutes the continuation of the offence of trespass to annoyance and other things, including the insult to any person whereas the trespass to burial places occurs when there is a state that person is insulted but also includes the ambit of causing the hurt to the religious sentiment. That in summation means that some trespass to burial site includes the acts of the criminal trespasses but that is not essential to prove the offence as reiterated by the Allahabad High Court in Ram Prasad v. State[20]

The onus of the landowners of the burial places
In the case of Abdul Ksim v Abdul Kadar it was observed that the rights of the owner and the duty of the owner in the case of the trespass being committed by him over the grave were that: ..he does not entitle them to disturb any graves that may be found existing in that land or to damage any structure that may have been raised over such graves, if by such act or acts the feelings of any person interested in the graves are likely to be wounded.

Thus, the Khas possession being occupied by the landowners were not only about the possession of the whole property but also about the possession of the property exclusive of the property dedicated to the deads.

Co-sharer's Liability under this Section

Acts of the co-owner in the burial property the distribution of the land takes place with the co-owners in the remaining land share and excludes the land share of the burial sites. For instance, in the case of the Re Kheja Mahommed [21], the co-owners had to divide the property that was holding a burial site with a division of the remaining property and if the other co-sharer dugs up a pit and exposes the bones and the bodies of the burial site then he is an aid to have committed the trespass to burial places although he owns the property.[22

Similarly the ploughing of the garden or ground by the defendant in the case such that it is likely to hurt the feelings of a sect or religion like even illogical act of ploughing being done by a Jew in an orthodox Christian graveyard is a crime under the section.

The intention of Hurting the feeling

Hurting of the religious feeling of a particular group of religion is usually seen in the cases of the sexual confrontation at religious sites like a cemetery, religious worship places or unvisited religious places[23] in Mahommedan law and Hindu law.

The acts done for the investigation of the police to the dead body is not being committed under the trespass to burial sites etc. The factor of consideration of the indignity to the human corpse vary with the circumstance, but the act like stopping a person to do an act of deliberately putting obstacles does not put the indignity to the corpse or the burial sites. Moreover, the stopping of the cremation by the daughter is no indignity to a person under the trespass to burial places.[24]

Mere Delay without an Intention to Offer Indignity would not amount to trespass to burial sites as held in the case of Re Hajee Mahoomad Ghouse Sahab[25] that accused who was forming a committee to collect the subscription to defray the cost of the boundary wall of the cemetery but having complainant to compel payment of burial fees before admitting the without any payment. It was seen to have offered no intention to humiliate or cause any hurt to the corpse.

The only case that is standing precedent in India is the case of the trespass to the burial sites is the Basir ul Haq and Ors. v. State of West Bengal[26] wherein on the suspicion placed over the son to kill the father, the police intervened into the last rites ceremony to be conducted by the son himself. Later on, the charges were proved to false and the son filed a suit claiming the defamation and trespass to burial sites.

The Apex court while hearing the appeal from the high court that the petitioner is at fault and the case that was made at the instance of the report given to the police officer cannot be said to be a trespass to burial sites under the commission of one's duty.

Conclusion
The cases that have defined and shaped the ideology of the Trespass to the burial sites are more inclined towards the rights against the dead and people associated with it. Although the trespass is a word that is a part of the tort jurisprudence the sacred-ness attached with the burial places make the special provision for it to mention in the case of the offences about religion.

Being a diverse country like ours it is difficult for the people to understand the emotions and the sentiment attached with the ritual and customs of a particular religion but the cases that have been mentioned do not take a stance of the exclusive religious elements and the section is exploited time and again.

The importance of the section is to address the crimes that take place in the furtherance of the trespass like Necrophile[27] or any other offence like a mutation of the dead bodies which are not being punished in India as far as now and the provision for them is to be maintained and the section of the trespass should be modified from mere trespass to the burial or funeral sites to the aftermath of the buried bodies underneath the ground.

This would help the criminal legal system to be more secular towards the approach of the victim as the crimes that might be committed by a certain sect can vary in intensity and frequency with the unequal division of the religion in various areas of India.

End-Notes:

  1. Cesare Beccaria, (born March 15, 1738, Milan—died November 28, 1794, Milan), Italian criminologist and economist whose Dei delitti e delle pene is a work on the criminal reform( Eng. trans. J.A. Farrer, Crimes and Punishment, 1880)
  2. The Indian Penal Code, 1960, No. 45, Act of the parliament, 1860, Sec. 297 (India)
  3. Vincent, The holy blood, 45 (2001)
  4. Persinger v. Persinger, 39 Ohio Op. 315, 86 N.E.2d 335 (C.P. 1949) (United Kingdom)
  5. Abell v. Proprietors of Green Mount Cemetery, 189 Md. 363, 56 A.2d 24 (1947) (United Kingdom)
  6. Devies v Beason, (1890) 133 US 333 (United States)
  7. Re Sibakoti Swami, 1 Weir 253, p 255(India)
  8. Queen-Empress v Bhagya, Ratanlal Unrep Cr Cas 148 (India)
  9. Mustaffa Rahim v Motilal Chunilal, 10 Cr LJ 160, p 165(India)
  10. Umar Din v Emperor, AIR 1915 Lah 409: 16 Cr LJ 683 (India)
  11. Sanoo Manji v Emperor, AIR 1941 Sind 33, p 34: 42 Cr LJ 454 (India)
  12. Mustaffa Rahim v Motilal Chunilal, 10 Cr LJ 160 (India)
  13. Church Sepulchre of the holy church in the United States, Britannica, 14 May 2010 https://www.britannica.com/place/Holy-Sepulchre, https://churchoftheholysepulchre.net
  14. Letang v Cooper EWCA Civ 5 (1964) (United Kingdom)
  15. Sudarshan Kumar v Gangacharan Dubey, (2000) Cr LJ 1618 (MP)
  16. The Indian Penal Code, Act No. 45 of 1860, Acts of the parliament, Sec. 28 (India)
  17. Jhulan Sain v R, 40 ILR Cal 548 (India)
  18. R v Subhan, 18 ILR All 395 (India)
  19. R v Subhan, 18 ILR All 395 (India)
  20. Ram Prasad v State, AIR 1952 All 878: LNIND 1952 ALL 136 (India)
  21. Crl.Appl.no. 282 OF 2006 (India)
  22. R v. Ram Prasad 33 ILR All 773 (India)
  23. Re Ratna Mudali 10 ILR Mad 126, 1 Weir 256 (India)
  24. Anant v Emperor AIR 1922 All 184(India)
  25. 1 Weir 285 (United Kingdom)
  26. 1953 AIR 293 (India)
  27. Necrophile held in a triple murder in UP, Ind. Today, Dec 3, 2019

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