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6. I may add to them that the image and all its paraphernalia were conveyed in boxes to the chamber of the upper floor and opened there, that the doorkeeper, who was apparently the only person encountered, made no opposition to the entry, and that neither the Mahant nor any one else connected with the temple, nor any Government Official, had been informed of the complainant Dhanuapala's intention to place the image there.

7. It may be conceded that the Mahabodhi temple, which is very ancient and very sacred to Buddhists, was a Buddhist, temple; that, although it has been in the possession of Hindu Mahants, it has never been converted into a Hindu temple in the sense that the Hindu idols have been enshrined or orthodox Hindu worship carried on there, and that Buddhist pilgrims have had free access and full liberty to worship in it. It does not appear that any hindrance was ever offered to them or that any complaints were ever made by them, and, before the occurrence in question, there is no instance of any disturbance between the Buddhist worshippers and the Hindu Mahants or their subordinates, in regard to their respective rights. This fact is of some importance in the present case, where each party charges the other with being the aggressor. The petitioners, no doubt, now say that the Buddhists worshipped by permission, and not of right. That is a question which it is unnecessary to consider. I shall assume for the purpose of this case that the worship which they were in the habit of performing was of right. It will, however, be necessary to consider the nature of that worship, and the nature of the act which gave rise to the disturbance complained of, in order to see whether a criminal offence has been committed.

12. Dharmapala was subjected to a very long cross-examination on his denial that the Mahant was either the owner or the person in possession of the temple. Whatever excuses may be made for him, he certainly came very badly out of it, and furnished the other side with good grounds for questioning his general veracity. It is amply shown from his own writings, and from writings published with his knowledge and under his authority, that he always regarded the Mahant, whatever the latter's strict rights may be, as the owner. Dharmapala was not in the position of an ordinary devotee, worshipping at the shrine. He was undoubtedly a religious enthusiast and an agitator. I use the word in no offensive sense, for I may freely concede that he was thoroughly sincere in his religious views and in promoting the work which he had undertaken. He was the Secretary of the Mahabodhi Society, which was started in Ceylon in May 1891, and also the editor of a monthly journal started to promote the objects of the Society. One of the objects of the Society was, he admits, to recover the possession of the Mahabodhi temple from the Mahant, and the prospectus moots the idea "of restoring the central shrine and transferring it from the hands of the usurping Saivite Mahants to the custody of the Buddhist monks." Numerous extracts from the journal, which were put in, show that the object was to establish Buddhist control in the temple. In February 1893, he and Colonel Olcott, an Honorary Director of the Society, interviewed the Mahant with the view of acquiring the religious custody of the temple for the Buddhists of all nations, but the Mahant, as the correspondence shows, refused either to sell or give a lease on any terms. Dharmapala then, according to a letter addressed to the President of the Society and signed by himself and Colonel Olcott, began to enquire into the legality of the Mahant's tenure. In 1893, when in Japan promoting the objects of the Society, he conceived the idea of enshrining a new image of Buddha in the temple, as there was, he says, no image in the upper floor chamber, which he regarded as the sanctum sanctorum. The result was that the image in question was sent to him in March 1894 It is described as a beautiful work of art, and it was accompanied by a dedicatory certificate addressed to him by the High Priest of Tokio. It is there described as a very ancient and holy image, and it was presented "to be enshrined in the second storey of the Bodh-Gaya Temple."

22. The evidence shows, and the Magistrate finds, that since July 1894, the Mahant and his disciples have been carrying on a sort of spurious Hindu worship of the great image of Buddha on the altar of the ground floor, and that the image has been dressed in a way which renders it repugnant to Buddhist worshippers. The Magistrate regards this as a stratagem on the Mahant's part to strengthen his position against, I suppose, some threatened danger. This was extremely wrong, but it does not, I think, affect the present case. In January 1895 Dharmapala and a party of pilgrims worshipped before the great image after removing the vestments and obliterating the tilah marks, and no objection was made to their doing this. The Mahant's conduct does not seem to have been made the subject of any remonstrance to him or of complaint to any one else, and it cannot be said to have led to Dharmapala's action on the 25th February. That the Mahant really believed that his possession was threatened by Dharmapala, whose views with reference to the temple must have been well known, I cannot doubt, and it is impossible to say that there was not some ground for the belief. The desire to enshrine the Japanese image in the upper floor of the temple, where no image had been before, may have been very laudable from a purely religious point of view, but it is at least open to doubt whether his motive was purely religious and not to further his known desire to bring the temple under Buddhist control. Anyhow, as he has not proved his right to put it there against the will of the Mahant, he has not shown-that, when putting it, he was lawfully engaged in the performance of religious worship or religious ceremonies. It is said, how-over, that there were two disturbances with an interval between them, and that, oven if there was no disturbance of a lawful religious worship or ceremony on the first occasion, when Dharmapala was told to remove the image and was prevented from lighting the candles, there certainly was on the second, when the image was removed, as the Buddhists were then sitting in contemplation before the image and actually and to the knowledge of the disturbers engaged in religious worship. It is argued that the worship having commenced, they were lawfully engaged in it, and that, even if the petitioners had the right to remove the image before worship commenced or after it ended, the removal, of it during worship was a disturbance and an offence under Section 296. Several cases have been put by way of analogy, and I may concede that, if the petitioners, in effecting an object which they were legally entitled to affect, disturbed an assembly lawfully engaged in the performance of religious worship by means which they knew must disturb it, they would be guilty of an offence under Section 296, even if they had no intention of disturbing it. But it is quite clear that the worship referred to in Section 296 must be a real worship, and not a cloak for doing something else, and that the assembly must be lawfully engaged in worship. It is quite true that if I see persons in a posture of worship, it is no excuse for disturbing them to say that 1 thought they were not worshipping, and that they were thinking of something which they ought not to have been thinking about, but obviously much must depend upon the circumstances under which they were worshipping. Here I think it is quite open to the petitioners to say that there was no real worship, but I do not wish to decide the case on that ground, or to hold that the Buddhists were not really contemplating, and that they merely fell into a posture of worship for appearances' sake. 1 prefer to hold, as I do, that they were not lawfully engaged in worship, that the disturbance must be regarded as continuous, and that if they were not lawfully engaged at first they were not lawfully engaged afterwards. They went to enshrine an image in a place where they had no right to enshrine it. The enshrinement may have involved the performance of religious worship or religious ceremony, but their inimediate object was to enshrine it and not simply to perform an act of worship. They wore told, before the enshrinement was complete, or before worship commenced, to remove the image, they were prevented from lighting the candles, and all the persons who went to interfere did not leave the room. Dharmapala Hays that sitting in contemplation before an image of Buddha is the highest form of Buddhist worship, but that there are other forms, the offering of flowers and the burning of candles being the preliminaries. He says they were not allowed to light the candles, and that "the prevention of the lighting of the candles was a disturbance of a part and parcel of our religious worship." If so, it was a disturbance from the first, and a disturbance which continued, and the mere circumstance of their falling into a posture of worship in front of the image which they had been ordered to remove, but before it actually was removed, an act which nothing but the use of personal violence could have prevented, does not put them in any better position than they were at first.

(1) The great temple at Bodba-Gaya, said to occupy the site of Buddha's hermitage, was originally a Buddhist temple; but it has for a long time (how long it is neither easy nor necessary in this case exactly to determine, but certainly for more than a century) been in the possession and under the control of the Hindu Mahant of that place.

(2) Buddhist pilgrims have, however, from time to time, continued to visit the temple and perform their worship there; but there is no reliable evidence to show that the upper chamber had in recent times been ever resorted to by Buddhisms. The temple has, however, not been shown to have been converted into a place of Hindu worship, though there is a spot in the temple compound, which is resorted to by Hindus as a sacred place for offering pindas or oblations to ancestors.