IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32492 of 2010(J)
1. A.S.SETHULAKSHMI,
... Petitioner
Vs
1. STATE BANK OF TRAVANCORE,
... Respondent
For Petitioner :SRI.JAYKAR.K.S.
For Respondent :SRI.T.SETHUMADHAVAN
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :09/11/2010
O R D E R
R.BASANT & K.SURENDRA MOHAN, JJ.
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W.P(C) No.32492 of 2009 &
W.P(C) No.5640 of 2010
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Dated this the 13th day of January, 2011
JUDGMENT
BASANT, J.
The common petitioner in these Writ Petitions has come
before this Court to challenge Exts.P3 and P6 orders produced in
W.P(C) No.5640 of 2010 and for issue of directions under Article
226 of the Constitution to respondents 2 and 3 to afford police
protection to the petitioner.
2. The common petitioner claims to be joint trustee of
the Emmanuel Church in Mulanthuruthi Village. There is a
dispute as to whether the said establishment is a Church or a
prayer centre. We need not go into that controversy. It is not
disputed that the said entity has been functioning for a period
exceeding a decade. According to the petitioner, it is a Church
and followers worship in that Church. Prayers take place on
Fridays, Saturdays and Sundays. Counselling takes place on
other days. According to the petitioner, the petitioner is
conducting the Church in accordance with law observing all the
legal requirements and without in any way offending the
provisions of any law.
W.P(C) No.32492 of 2009 &
W.P(C) No.5640 of 2010 2
3. The petitioner was served with Ext.P3 order dated
24.12.2009. That order was later confirmed by Ext.P6 order.
Under Ext.P3 provisionally, and under Ext.P6 finally, all
activities relating to the conduct of worship, meeting etc. in the
Emmanuel Worship Centre, Mulanthuruthi stands prohibited
until further orders. That order is issued by the District
Collector, Ernakulam.
4. W.P(C) No.5640 of 2010 is filed by the petitioner to
challenge Exts.P3 and P6 orders. According to the petitioner, the
District Collector has no jurisdictional competence to issue an
order like Ext.P3. It is prayed that the said orders Exts.P3 and
P6 may be set aside. W.P(c) No.5640 of 2010 was pending
before a learned Single Judge of this Court and it was called to
this Court in view of its connection with W.P(c) No.32492 of
2009.
5. In W.P(c) No.32492 of 2009, the petitioner contends
that he is entitled to carry on the activities of the Emmanuel
Church. The 1st respondent District Collector or respondents 2
and 3, police officials have no right to prohibit or interfere with
the activities of the Church/Prayer Centre. Respondents 4 to 7 –
W.P(C) No.32492 of 2009 &
W.P(C) No.5640 of 2010 3
local persons and activists, are objecting to and obstructing the
activities of the Church. It is, in these circumstances, that
directions are sought under Article 226 to respondents 2 and 3
to permit the petitioner to carry on the activities of the Church
without any illegal obstruction.
6. The 8th respondent, a local inhabitant, has got herself
impleaded as additional 8th respondent. She supports the case of
the petitioner.
7. The 1st respondent District Collector submits that in
view of Exts.P3 and P6 orders marked in W.P(c) No.5640 of
2010, the petitioner is not entitled for police protection.
Respondents 2 and 3 also assert that in the light of Exts.P3 and
P6 prohibitory orders, and considering the nature of activities
that is carried on in the Church, the petitioner is not entitled for
police protection. Respondents 4 to 7 – local public men and
activists, raise serious objections to the conduct of the activities
by the petitioner. According to respondents 4 to 7, objectionable
barbarous activities in the name of worship is being carried on
by the petitioner in the prayer centre. The activities amount to
public nuisance. The petitioner may not be permitted to carry on
W.P(C) No.32492 of 2009 &
W.P(C) No.5640 of 2010 4
such activities. The petitioner is exploiting the innocence of the
gullible members of the public. The activities shock the
conscience of the people of the locality. Treatment by whacking
and infliction of physical pain is resorted to. Cries and wails of
persons undergoing the alleged treatment vitiates the local
atmosphere. The peaceful living in the neighbourhood has
become impossible. Loud speakers and mikes are used, which
affect the life of the local inhabitants and interferes with the
academic pursuits of students in the locality. In short,
respondents 4 to 7 contend that the activities of the petitioner in
the prayer centre are such that they amount to gross public
nuisance. The same deserves to be interfered with. Police
protection may not be given to such activities.
8. Though such a contention is not specifically raised in
W.P(C) No.5640 of 2010, the 1st respondent in W.P(c) No.32492
of 2009 has sought to justify Exts.P3 and P6 orders under the
powers available to the District Magistrate and Sub Divisional
Magistrate under Section 143 of the Code of Criminal Procedure.
9. We have heard all the counsel. The first question that
we have to decide is whether the impugned order can be held to
W.P(C) No.32492 of 2009 &
W.P(C) No.5640 of 2010 5
be one passed under Section 143 Cr.P.C. If we are satisfied that
the order is passed under Section 143 Cr.P.C, we can and we
should certainly direct the petitioner to seek remedies available
to him under the Code of Criminal Procedure to challenge an
order passed under Section 143 Cr.P.C.
10. The learned counsel for the petitioner submits that it
is impossible to reckon the order as one passed under Section
143 Cr.P.C. Exts.P3 and P6 do not say so. In the counter
statement filed in W.P(c) No.5640 of 2010, where the said orders
were specifically challenged, the District Collector – the 1st
respondent, does not choose to justify the order as one passed
under Section 143 Cr.P.C. In W.P(c) No.32492 of 2009, counter
statement has been filed on behalf of the District Collector by the
Additional District Magistrate in charge of the District Collector.
It is contended therein that the impugned orders can be justified
under Section 143 Cr.P.C. The fact remains that a plea that
Exts.P3 and P6 orders are passed under Section 143 Cr.P.C is
not taken specifically.
11. We have looked into the impugned orders to ascertain
intrinsically whether they can be traced to the power under
W.P(C) No.32492 of 2009 &
W.P(C) No.5640 of 2010 6
Section 143 Cr.P.C. We extract Section 143 Cr.P.C below:
"143. Magistrate may prohibit
repetition or continuance of public
nuisance:– A District Magistrate or Sub-
divisional Magistrate, or any other Executive
Magistrate empowered by the State
Government or the District Magistrate in this
behalf, may order any person not to repeat or
continue a public nuisance, as defined in the
Indian Penal Code (45 of 1860), or any special
or local law.”
The crucial power under Section 143 Cr.P.C is to order any
person not to repeat or continue a public nuisance as defined in
the Indian Penal Code or any special or local law. Significantly
the expression public nuisance does not find any place in Exts.P3
or P6. Neither in Ext.P3 nor in Ext.P6 is there a specific
statement that the conduct of the petitioner amounts to public
nuisance. In these circumstances, we find merit in the
submission of the learned counsel for the petitioner that the
attempt to justify the order under Section 143 Cr.P.C is not
proper. The impugned order cannot be traced to the power
under Section 143 Cr.P.C. We accept the contention that the
impugned order cannot be reckoned as one passed under
Section 143 Cr.P.C. The impugned order in W.P(c) No.5640 of
2010 hence warrants interference.
W.P(C) No.32492 of 2009 &
W.P(C) No.5640 of 2010 7
12. The next question is whether police protection needs
to be afforded to the petitioner as claimed in W.P(c) No.32492 of
2009. The learned Government Pleader on behalf of respondents
1 to 3 submits that if the Court does not reckon Exts.P3 and P6
orders as ones passed under Section 143 Cr.P.C, respondents 1
to 3 would immediately went to initiate further action under
Section 143 Cr.P.C. As such action is contemplated and shall
immediately follow, no direction for police protection may now
be given, submits the learned Government Pleader. The learned
Government Pleader points out that no permission for using a
loud speaker/mike system has been obtained by the petitioner.
No permission has been obtained for conduct of any treatment
centre as such by the petitioner. If the petitioner only uses the
premises for prayer without causing any difficulties or nuisance
to the members of the locality, the authorities may not raise any
objection against that. But under the guise of holding prayers,
treatments cannot be done. Mike system cannot be used.
Physical violence cannot be inflicted on the allegedly ill persons.
Such infliction of pain on the allegedly ill persons can cause
public nuisance or disturbance to the members of the locality. At
W.P(C) No.32492 of 2009 &
W.P(C) No.5640 of 2010 8
any rate, a blanket protection to the petitioner may not be
granted. The petitioner may be relegated to seek appropriate
reliefs. The learned Government Pleader however undertakes
that if only the prayers go on without causing any objection to
the local members of the public, there shall be no interference
and the necessary protection shall be afforded.
13. The learned counsel for respondents 4 to 7 submits
that it will be improper and unjustified to permit the petitioner to
continue the activities which the petitioner was indulging in
prior to Exts.P3 and P6 orders. Respondents 4 to 6 have serious
objections and they shall be raising objections in accordance
with law against conduct of such activities.
14. We have considered all the relevant circumstances.
We accept the undertaking of the learned Government Pleader
that if the petitioner makes use of the premises only for carrying
on prayers without causing any obstruction to the members of
the local public, adequate protection shall be afforded to the
petitioner. But the petitioner under the guise of the order of
protection, cannot be permitted to use mike without permission,
to carry on treatment with permission, to indulge in activities of
W.P(C) No.32492 of 2009 &
W.P(C) No.5640 of 2010 9
infliction of pain on the victims in the name of treatment, causing
disturbance to the local members of the public by their
objectionable activities or to indulge in any act of public
nuisance contrary to the provisions of law. In the light of the
said undertaking, we are satisfied that no specific directions for
issue of police protection need be granted.
15. In the result:
A) i) W.P(c) No.5640 of 2010 is allowed;
ii) The impugned orders Exts.P3 and P6 are
set aside;
iii) We make it absolutely clear that this
judgment shall not in any way fetter the rights of the
authorities to take appropriate action in accordance
with law under Section 143 Cr.P.C;
B) i) W.P(c) No.32492 of 2010 is dismissed;
ii) We accept and record the undertaking of
the learned Government Pleader that if the petitioner
would carry on only prayers and not indulge in any
W.P(C) No.32492 of 2009 &
W.P(C) No.5640 of 2010 10
objectionable activities, necessary protection shall
be given to the petitioner.
(R.BASANT, JUDGE)
(K.SURENDRA MOHAN, JUDGE)
rtr/