ORDER
1. This petition under Section 482 of the Criminal P.C. by Delhi Administration, is directed against the revisional order of the Additional Sessions, Judge, setting aside a condition imposed by the trial court, while granting bail to the respondent, restraining the respondent from entering the disputed place of worship and the question that the petition, inter alia, raises is as to the power of the Court under Section 437(3) of the Criminal P.C. to impose a condition, which may interfere with his fundamental right of personal liberty and to freedom of religion guaranteed by the Constitution of India.
2. The petition was filed in the following circumstances :
On July 18, 1983, a case under Section 147/148/149/353/332/186/307 I.P.C. was registered at Police Station Hawz Qazi, Delhi, pursuant to First Information Report No. 354 following tension and rioting, including use of brick-bats and soda water bottles, by groups belonging to two different communities in Lal Quan, Delhi, over the use of a place of worship by members of one community on the ground that it clashed with the corresponding right of the members of the other community in their place of worship, the bone of contention being that the timing of the performance of “Aarti” by members of the Hindu community in a temple in the area, known as Pracheen Shiva Temple of Hauz Qazi, clashed with the timing of the “Azan” by the Muslim community in the nearby mosque. It appears that the temple comprises of a platform where there is a Peepal tree, with idols of certain deities and shivaling installed around it. It further appears that there is a covered well on the western side of the platform with a wooden “chhajja” around it. While the Hindu community claims the place to be a temple and that it has been used as such over the years, the claim of the Muslim community in the area is that the whole of the platform, including the part, over which the idols aid Shivaling are installed, form part of Waqf property. No part of the platform is, however, used as a mosque but there is a mosque at some distance from the platform and there has been some controversy, even in the past, arising out of clash of timings between the “Arati” performed in the temple and the timings of the “Azan” in the mosque. It further appears that a few days before the date of the occurrence, there was an informal settlement arrived at between the representatives of the two communities, who met under the auspices of the local police, in which the timings of the “Arati” was fixed so as to avoid a possible clash of timings for the “Aarti” and the “Azan”. It further appears that a Magisterial Inquiry has already been ordered which is apparently not yet concluded. While the Inquiry had been ordered earlier, the meeting in which the timing was fixed in the presence of the members of the two communities was held on the morning of the date of the incident following a controversy on the subject. The case was registered against 10 persons, 5 belonging to one community and the other belonging to the other. Respondent, Paras Ram Chawla, is among the 10 persons. All the accused persons were granted bail, some by the learned Metropolitan Magistrate while the others by the Court of the Additional Sessions Judge. Out of 10 accused persons, those who were admitted to bail by the learned Addl. Sessions Judge were granted unconditional bail Paras Ram, respondent, was granted bail by the learned Metropolitan Magistrate on August 19, 1983, in the following terms :
“The injuries sustained by the accused are simple in nature as such the accused is admitted to the bail in the sum of Rs. 5000/- with one surety in the like amount. Failing which he shall be remanded to J/C. Accused also shall not enter the disputed place till further orders.”
It is not clear if similar condition was imposed by the learned Metropolitan Magistrate in granting bail to such of the other co-accused who were admitted to bail by that Court. Be that as it may, it is not disputed that while some of the accused were granted unconditional bail, some others, particularly. Paras Ram Chawla, was granted bail subject to the condition incorporated in the order above. There was some controversy between the parties, if, apart from respondent Paras Ram Chawla, or certain other persons who are accused in the case with him, the other members of the community are being allowed free access to the disputed place of worship and, if so, if the access to it is in any manner regulated. At one stage, it was given out that apart from the restriction imposed in the bail order, there was no restriction on any member of the Hindu community to enter the place of worship and to perform the worship, as indeed, the accompanying rites and rituals. According to one version, the entry to the place is totally banned, physically, if not on paper, because the place has since been surrounded by a large contingent of the police. There is however, an indication from the file that the learned Magistrate allowed the respondent and certain others to offer prayer and perform rites and rituals even after the aforesaid order on certain days of religious importance to the Hindu community, and there was no fresh trouble on that account.
3. Be that as it may, it appears that 3 members of the Hindu community, who were involved in the case by the Police, including Paras Ram, and Ram Narain, apparently were not reconciled to the aforesaid condition and considered it to be in violation of their fundamental right to personal liberty and to freedom of religion and an unreasonable restriction on their right to enter the aforesaid place of worship and to offer worship there and to perform the attendant rites and rituals, as usual, and in particular, on days of religious importance to the community. These two accused and Kailash Chand, accordingly made attempts for the annulment and/or, modification of the order on a number of occasions. On August 26, 1983, Ram Narain, Kailash Chand and Paras Ram made a joint application to the Sessions Judge, invoking S. 439 of the Criminal P.C. seeking a modification and/or setting aside of the condition imposed by the learned Metropolitan Magistrate. By an order of August 27, 1983, the learned Sessions Judge made a cryptic order dismissing the application on the ground that the restriction imposed “on the petitioner for visiting the temple is most reasonable as this was the cause of troubles in the area.” The application was made on behalf of the 3 persons, as mentioned above, but the order seems to deal with a single petitioner. On September 5, 1983, another application was made, this time only by Paras Ram, again under Section 439 of the Code, for the same relief. This application was dismissed by the learned Sessions Judge on September 7, 1983 but this time by a more detailed order. Two contentions were apparently raised before the learned sessions Judge : (a) The offence according to the learned Metropolitan Magistrate was bailable and no condition could therefore, be imposed while granting bail for a bailable offence; (b) the ban on the entry to a place of worship was inconsistent with the petitioner’s fundamental right to freedom of religion and an unreasonable restriction on his right to enter a place of worship and offer prayer. The first contention was negatived on the ground that, whatever may be the content of the order of the learned Metropolitan Magistrate the offence alleged against the petitioners and others are non-bailable. On the second contention, it was held that in view of the dispute between the two communities, over the place of worship, the condition was eminently justified. It was further that it was not disputed “even by the learned counsel for the petitioner that till today, nobody has been allowed to enter the disputed place which is under the constant vigil of the Police.” It was further observed that “in case the condition imposed on the present petitioner who is one of the main persons claiming the right of his community to use it for their worship purposes is removed, there is every possibility of recurrence of the riots in the area and the loss of life and property in the locality”. In the course of the order, the learned Sessions Judge also pointed out that “the tension, in the area and in between the two sets of communities has not yet abated.” On October, 27 1983, Paras Ram, respondent made yet another application to the learned Sessions Judge, again under section 439 of the Code, and for the same relief, inter alia pointing out that the situation in the area “is very normal and even otherwise also the applicant being a peace loving citizen”. This application was turned down by the learned Sessions Judge on November 3, 1983. The learned Sessions Judge expressed the view that it would not be proper “even at this stage to allow the petitioner to enter the temple”. The learned Sessions Judge placed reliance on the statement of the Investigating Officer that “the situation has not changed and there is every possibility of the flaring of the communal riots in case the present petitioner is allowed to perform Pooja in the temple”. It was further pointed out that “the festival days are ahead and in case the petitioner is allowed to visit the temple, there is every possibility of the disturbance of the peace in the area.” A few days earlier, a similar application was made before the learned Metropolitan Magistrate which was also turned down on November 1, 1983, on the ground that communal tensions still prevailed in the area and there has been no material change in the situation which may justify revocation of the condition imposed by him. Ram Narain, and respondent Paras Ram Chawla were apparently still not satisfied : both of them, therefore, moved two separate applications, both under Section 397 of the Code before the Sessions Judge for identical relief and on more or less identical grounds. The application of Ram Narain was turned down by Shri P. S. Sharma Addl. Sessions Judge, by an order of November 17, 1983. The petition filed by the respondent Paras Ram was, however, heard by Shri S. M. Aggarwal. Addl. Sessions Judge, who by an order of the same date, accepted it and set aside the condition. Paras 3 and 4 of the order are in these terms :
“3. In the bail order which is thoroughly illegible (I have got it read from the official of the learned Magistrate’s court, the learned Magistrate had noted that it has been brought to his notice that only simple injuries were caused. The perusal of the FIR shows that some quarrel had taken place between the two communities of Hauz Qazi regarding the timing of the ‘Azan’ from the nearby Mosque and the ‘Aarti’ prayer of the Prachin Shiva Temple of Hauz Qazi. The conditions which can be imposed while granting bail are governed by the provisions of Sections 437, 438 and 439 Cr.P.C. The learned Magistrate was not at all justified in imposing a condition which has no reference to the fairness or propriety of the investigation or trial of the case in which the petitioner has been arrested. It has been a settled proposition that in imposing conditions while granting bail, the courts must be extremely chary and see that they maintain the balance between the personal liberty of the accd. and the investigational rights of the police. An essential requirement in the imposition of any condition is that it should result in minimum interference with the personal liberty of the accused. It is a fundamental right of every citizen of the country to hold his independent views on his religion and to worship according to his wisdom. The restraint order passed against the accd. while granting bail amounts to curtailment of the liberty of the citizen in exercise of his fundamental right of religion and was not at all related to the investigational propriety.
4. The order of bail is modified to the extent of this unwarranted condition. The revision petition stands accepted.”
4. Aggrieved by the order of the learned Addl. Sessions Judge setting aside the condition, the Delhi Administration seeks its reversal and the restoration of the order of the learned Metropolitan Magistrate. When the petition was admitted on November 22, 1983 I granted an ex parte stay of the operation of the order of the learned Addl. Sessions Judge thereby restoring the condition as I was told that any relaxation of the condition was likely to result in a communal flare up in the area, which has always been considered a sensitive one with potential of recurrence of communal tension and rioting over the years at the slightest provocation. Such a condition was also sought to be justified in the overall violence psychosis in the country. On January 20, 1984, I made the order absolute but subject to the condition that the petition must be disposed of at an early date.
5. I have since heard counsel for the parties at considerable length. However, during consideration of the matter I allowed the respondent and certain other persons belonging to the community, to enter the place of worship in dispute for the purpose of offering prayer and other rituals for specified periods subject to the condition that they would not while in the premises “enter into any controversy or discussion with regard to the matters in dispute or hold any demonstration in relation thereto”. The first of these orders was made for the benefit of the respondent Paras Ram on February 28, 1984, while the second of these orders was made for his benefit and that of 3 other co-accused on April 4, 1984 both the orders being in identical terms. On March 26, 1984, I was, however, informed that the respondent was not allowed by the local police to avail of the order and the respondent sought and was granted liberty to make an application for initiating contempt proceedings. It was stated that an application for the purpose had already been filed.
6. On behalf of the Administration, the impugned order of the learned Sessions Judge was assailed on two grounds : In the first instance, it was urged that the order was wholly without jurisdiction in that by successive orders, made by the learned Sessions Judge and the learned Addl. Sessions Judge earlier as also of the order made by the latter on the day on which the impugned order was made, the power of the Sessions court to modify the condition, both under Sections 439 and 397 of the Code, stood exhausted thereby disentitling the learned Addl. Sessions Judge to interfere in the Magisterial order imposing a condition. In the second place it was urged that the absolute condition imposed by the learned Metropolitan Magistrate banning entry of the respondent to the place of worship was not in any manner restrictive of the fundamental right of the respondent to freedom of religion including the right to worship and that the right of personal liberty of the respondent and the right to freedom of religion were subject to the overriding public interest, as indeed, the investigational powers of the police. It was further urged that the absolute ban on the entry of the respondent and some of the other accused to the place of worship was eminently justified as the place of worship was the subject-matter of dispute and the use of the said place by the members of one community, including the manner of its use, had caused in the past communal tension and rioting and was likely to cause their recurrence in the future thereby disturbing public peace, which it was the duty of the State to maintain and the ban on entry had been imposed in aid of the imperative necessity to maintain law and order in the area. On behalf of the respondent, these contentions were sought to be repelled. The successive applications to the courts under Section 439 were sought to be justified with reference to the changing situation of law and order which had allegedly brought about a qualitative change in the context in which the earlier orders were made. It was further urged that the two revision petitions were filed by two different persons and that neither the successive applications under Section 439 nor the invocation of S. 397 by a different person had the effect of exhausting the power of the learned Addl. Sessions Judge to entertain the petition, which led to the making of the impugned order, at the instance of the respondent. It was further urged that the powers of the Court of Session under Section 439 to modify the condition and under section 397 to call for the records of the trial court and to examine the correctness, propriety or legality of any order made by it were distinct and qualitatively different and, were, therefore, not mutually exclusive. The exercise of power by the Sessions Court under Section 439, it was urged, did not and could not divest the Sessions Court of its jurisdiction under Section 397 of the Code. On the merits, the impugned order was sought to be justified on the grounds on which it purports to be based and it was maintained that the ban on entry into a place of worship was in direct conflict not only with the fundamental right to freedom of religion but also the right of personal liberty. It was therefore, urged that the State had no power to impose any restriction on the two rights and the judicial wing of the State was in no better position than its executive or legislative arms. The respondent, however, did not dispute that the use of the place of worship in dispute and, particularly, the clash of timing of “Arati” in the place of worship and of “Azan” in the nearby mosque had, in the past, led to unfortunate communal tension and even rioting and even while maintaining an absolute right to enter into the place and to worship there, as also to perform various rites and rituals by members of the community, respondent, as indeed, the other members of the community, to which the respondent belongs, were not averse to such conditions being imposed on the persons accused in the case as may be reasonable with a view to avoid recurrence of communal tension or rioting, but consistent with the right of the respondent, as indeed, the other members of the community to enter the aforesaid place of worship, offer worship in the prescribed manner and to perform the necessary rites and rituals, as has been done since long many years. I have not had the benefit of hearing any member of the other community since they were not imp leaded as party in the present proceedings but it appears to me that in view of the settlement arrived at between the representatives of the two communities, under the auspices of the police in the past, peace-loving members of both the communities are not averse to a satisfactory working arrangement which may enable members of both the communities to offer their respective prayers in peace without interfering with the corresponding rights of the other community and without disturbing peace of the area.
7. After hearing learned counsel for the parties at considerable length, and after giving my earnest thought to the questions in controversy, as indeed, the rather sensitive communal overtones of the issue it appears to me that the extreme positions taken up by the Administration and the respondent are equally unsustainable and that, as always, the real wisdom and truth would seem to lie somewhere in the middle path.
8. The contention on behalf of Administration with regard to the jurisdiction of the Sessions Court to set aside or to modify the condition is based on a misconception as to the nature of the jurisdiction of the Sessions Court under Ss. 397 and 439 of the Code the nature of the order imposing a condition and as to the circumstances which may justify its reversal or modification. Section 437 of the Code empowers a court, other than the High Court or Court of Session, to grant bail in case of non-bailable offences and sub-section (3) of it empowers the Court granting bail to impose any condition which such court considers to be necessary (a) in order to ensure conditions of the bond executed under this Chapter; or (b) in order to ensure that such person shall not commit offence similar to the offence of which he is accused or of the commission of which he is suspected; or otherwise in the interests of justice. This power of the Court is not only subject to the special power of the High Court or Court of Session regarding bail embodied in S. 439 of the Code but also the revisional power of the High Court and of Sessions Court to call for the records of a Court subordinate to it for the purpose of satisfying itself as to the correctness, legality, or propriety of any order under Section 397 of the Code. The only limitations on the exercise of power of revision are those that are found in sub-section (2) and sub-section (3) of that section i.e. either where the order sought to be revived is interlocutory or where the revisional power has been exercised by one of the courts at the instance of person when the other of these courts is not entitled to exercise that power at the instance of the same person. The powers under Section 397 and under Section 439 are not mutually exclusive. These Sections contain supplemental powers but they do not supplant each other. Moreover, none of these provisions confer a right on a person but merely empower the courts concerned to exercise these powers on the conditions for their exercise being satisfied. There is nothing in the scheme of these provisions to introduce the theory of exhaustion of power, except to the extent a statutory bar is created in S. 397 itself in respect of the, two matters referred to above. Whether the court would exercise power under one provision because an identical relief has been denied by it or any other court of concurrent jurisdiction on the same set of facts or in the same case raises a question as to the proper exercise of discretion but not of any lack of jurisdiction. Moreover, the condition imposed by the learned Metropolitan Magistrate had relation to a situation that was then prevalent. The disturbance of peace following an unfortunate incident in any local area is not of a static nature but is dynamic and naturally keeps on changing. When peace is disturbed, tempers are frayed. This is a passing phase and in course of time normalcy is restored, either because of external intervention of law and other agencies, or internal compulsions and restoration of sanity among warring groups. A state of disturbance may also be the product of an occasion, such as festival or a day of religious observance and once the day passes off, peacefully or otherwise, there is a change in the situation. Passage of time has its own curative effect as time is a great healer. The successive applications made for the modification and/or reversal of the condition in the present case basically had their genesis in this aspect of the nature of the condition imposed by the trial court. Quite a few applications were, however, turned down, and perhaps rightly, in the situation at that time on the ground that the police authorities felt that the situation even then was pregnant with possibilities of a disturbance, even though quite surprisingly even when police had throughout kept vigil and a virtual seige of the disputed place of worship. In a real sense, therefore, each application was based on its own peculiar justification said to have its genesis in the improvement in the situation, a premises which unfortunately was not supported by the police authorities, and that the police authorities’ fear found favor with the learned Sessions Judge, as well as the Addl. Sessions Judge, who dealt with the other applications. It is, however, no doubt true that it was rather anomalous that two conflicting orders were made on the same date by two Addl. Sessions Judges. While this may raise a question of propriety on the part of the counsel who sponsored the two applications in which the two orders were made, as also a total lack of co-ordination in the prosecuting branch of the police. In that, neither the counsel for the accused nor the prosecutor, who appeared before the two courts, pointed to either of them that the other was simultaneously dealing with a similar application. Here also no question of jurisdiction arose because one application which was dismissed by shri P. S. Sharma, Addl. Sessions Judge, was made by Ram Narain on November 9, 1983 the other which succeeded, was made by respondent. Paras Ram Chawla, on November 16, 1983. While it is no doubt unfortunate that for one reason or the other, two courts of concurrent jurisdiction heard and decided, on the same date, matters arising out of common proceedings and raising identical question, the pendency or decision of the matter by one did not divest the other of the courts to hear and decide the matter before it in accordance with law. It would perhaps be necessary for an appropriate authority to enquire into the circumstances in which two applications, to which the Administration was a common party, were heard and decided in two different courts, on the same date without this fact being mentioned to either of the two courts. It is not clear on the record if counsel for the accused in both the applications were common, but if he or they were, it was certainly improper for the counsel to have withheld from the courts the vital information that another application, even though by a different accused, involving the same question, and calling in question a common order, had been filed or was due to be heard or was being heard by the other court. If they had not withheld this information, the anomalous position of two conflicting orders in a common matter could have been avoided. There is, however, no substance in the contention that there was any lack of jurisdiction in the learned Addl. Sessions Judge in making, the impugned order, whatever may be said of justification or otherwise of his setting aside, rather than suitably modifying, the condition, even in the face of the potential in the situation of such an order tending to create a disturbance of peace in the area. That, however, is a different aspect of the matter, which I would presently deal with.
9. That leaves for consideration the question as to the legality or propriety of the two competing orders, the order of the learned Metropolitan Magistrate imposing a blanket ban on the entry of the respondent to a place of worship and the extreme order of the learned Addl. Sessions Judge setting aside the order rather than modifying its rigour so as to strike a reasonable balance between the personal right and fundamental right to freedom of religion and the overriding requirement of public interest that law and order is maintained at all costs and at all times, particularly, in the context of what had happened and of which the recurrence was reasonably suspected.
10. India is a pluralistic society culturally, ideologically, linguistically and religiously. It was in this context that in their innate wisdom the founding fathers embodied in the Constitution the concept of a secular State where there would be no distinction of colour, caste, creed, language, region, etc. The Constitution, inter alia, guarantees the fundamental right to freedom of religion, as also the chershed right of personal liberty, to all citizens irrespective of their religion or other affinities. Implicit in the concept of a secular State and the fundamental rights of personal liberty and of right to freedom of religion is the obligation to tolerate the exercise of similar rights of others, irrespective of the political or religious persuasions to which such others may belong. In sum, the right of personal liberty and the right to freedom of religion of a citizen is subject, not only to the similar rights of the other citizens, particularly, those belonging to a different religion and other persuasions, and notably those in minority, but also to the overriding public interest, such as security of State, maintenance of law and order, and the right of peaceful citizens to be allowed to live in conditions of peace with security of life and property. Some of these obligations have been suitably highlighted in the interest of national integration and the development of a common brotherhood and a composite culture by incorporation in Fundamental Duties embodied in Art. 51-A of the Constitution. Different communities in India, as also sects among the same religion have, by and large, lived in peace in pursuit of their individual happiness and national growth during the long history of this country. There have, however, been upheavals here and there, based either on religious differences, intolerance, or socio-economic factors. Paradoxical as it may sound, but is nevertheless a hard fact of life, that some of these eruptions, which at times took an ugly shape in different parts of the country, occur in the name of religion even though all religions preach love of humanity, toleration, compassion and other virtues. But what is worse is that these eruptions give an opportunity to unsocial elements or other elements, who are often described as “extremists”. “criminals”, “enemies of the country”, and even “agents of foreign powers” to take advantage of the situation and aggravate it causing needless loss of valuable lives and property, not excluding public property. What is more tragic is that lives that are lost in the process are of innocent persons on either side or the victims are those who are charged with the duty to restore normalcy and peace. What makes it worse is that the incident in one place may provide a springboard for action of a retaliatory nature elsewhere thereby leading to an unending vicious circle.
11. There was some controversy in this court if, as apparently appears from one of the orders made by the learned Sessions Judge, since the date on which the trouble arose, the premises in dispute had been virtually under a police seige and large contingent of the police had not only been keeping constant vigil over the place but had been preventing entry of any member of the Hindu community from entering the place of worship for the purpose of offering prayer or performing other rites and rituals connected with it, without the authority of law, under cover of the condition imposed by the learned Metropolitan Magistrate on the entry of only a handful of individuals involved in the case, including the respondent. Allegations were also made against the local police of partiality towards members of a certain community for ulterior political reasons at the behest of high-ups. There was also considerable controversy as to the legality and propriety of the action of the local police in preventing or regulating entry into a place of worship by members of a community who are entitled to offer worship at such a place. While I am not concerned in the present case with some of the larger questions raised before me and I do not propose to decide these questions, prima facie, in dealing with situations of communal tension or rioting, police have a rather difficult, as indeed, a delicate duty to perform, albeit a thankless one, and in such situations, which may have wide ramifications elsewhere, local police is rarely allowed a free hand and is invariably subjected to political pressure for legitimate or ulterior motives. It is also a common feature of such situations that the feuding groups and factions make allegations and counter-allegations of partiality as well as excesses by the police. It is however, not possible to countenance the contention that there is any lack of power in the police to either keep a vigil over a place of worship or to deploy suitable police force around or in the vicinity of such a place if the law and order situation justifies such a course so long as the action is not beyond the reasonable requirement of the situation and is in strict consonance with the requirements of law. Police power of the State does not end in the vicinity of or even at the gates of a place of worship. The State forces are entitled to take all such steps in relation to a place of worship as they could in relation to any private place, if such intervention is necessary in the interest of maintenance of law and order or in the discharge of its investigational duties so long as the action is in conformity with the law. Any State intervention in a place of worship, however, has constitutional, religious, as well as political, overtones and any such action which is likely to interfere with the right to worship or the right to maintain a place of worship without State intervention must follow, if at all, maximum circumspection, caution and only as a last resort where the claim of public interest so demands, there is clear power, as indeed, a duty of the State to take all legitimate measures as may be necessary in a given situation. A place of religious worship is no exception. The only limitation, as always in relation to State action, is that it must conform to the requirements of law and be otherwise “just, fair and reasonable” in the totality of circumstances. It is, however, difficult to justify a ban on the entry of members of a community generally into a place of worship of that community or any regulation of it except by or in accordance with the order of a court and if in the present case, the entry of members of a community has been banned into the place of worship in dispute by virtue merely of a condition imposed on some individuals by the court, such a ban was clearly beyond the authority of the police. The police vigilance in the area, however, stands on a different footing.
12. The learned Metropolitan Magistrate imposed a total ban on the entry of the respondent by a cryptic order which does not give reason for the ban. The learned Metropolitan Magistrate has referred to the “injuries” which were “simple in nature” but that has reference to the justification for the bail order and have nothing to do with the condition. Prima facie, however, the condition was imposed with a view to preclude the possibility of recurrence of the unfortunate incident which led to an ugly situation of tension and rioting. There is, however, no force in the contention that no condition could be imposed because the alleged offence was or was held by the learned Magistrate to be bailable. The nature of injuries sustained by a person is not relevant in allegation of unlawful assembly or rioting, etc. The offences alleged in the First information report are clearly non-bailable offences. There was, therefore, no lack of power in the court to impose a condition. But that would not necessarily justify the condition imposing a total ban on the entry of the respondent to the place of worship. The condition to be imposed must have reference either to the requirement of an uninterrupted investigation or trial of the offences alleged or be intended to prevent a recurrence of the incident, said to be subject-matter of investigation. There was no dispute on the date of the occurrence with regard to entry into the place of worship. There was an undisputed right to enter the place of worship and to offer worship. According to the FIR, the dispute between the two communities turned on the conflicting timing of the “Azan” from the nearby mosque and the “Aarti” performed in the place of worship in dispute. The condition with regard to the entry to the place was, therefore, beyond the scope of the dispute and irrelevant to the matter under investigation. The learned Additional Sessions Judge was, therefore, right in his conclusion that such a condition was not reasonable as it interfered with the fundamental right of the respondent to enter the place of worship and to offer worship but the learned Addl. Sessions Judge was not justified in setting aside the condition rather than modify it so as to strike a reasonable balance between the right of worship and the overriding claim of public interest and maintenance of peace and order, as also the prevention of likely recurrence of any precipitate situation. If what led to the ugly situation on the date of the occurrence was a conflict of timing between the “Azan” and the “Aarti”, the learned Addl. Sessions Judge should have suitably substituted the condition so that the right of the respondent to offer worship at the temple would not be interfered with even while ensuring that the exercise of that right would not lead to a recurrence of the tension. This could have been done by suitable moderating the timing of the “Aarti” so that it does not come in conflict with the timing of the “Azan” from the nearby mosque until such time as the Magisterial inquiry already in progress had concluded and the proceedings pending against the respondent and the co-accused have come to an end. By such a condition, reasonable balance would have been struck between the two imperative requirements. While the learned Metropolitan Magistrate overlooked the fundamental right of the respondent to enter a place of worship and offer worship there, the learned Addl. Sessions Judge, while enforcing that right, ignored the overriding consideration of public interest and interest of maintenance of law and order.
13. After I had drawn the Judgment but before it was listed for pronouncement, it occurred to me that having regard to the nature of the controversy, the judgment would perhaps be only illusory satisfaction that the heavy arrears of this court have been reduced by one unit but the controversy that led to the case and the present proceedings would perhaps survive the judgment. I therefore, sounded learned counsel for the parties if it would be worthwhile to have separate and joint meetings with the representatives of the parties, as indeed, some members of the muslim community with a view to explore the possibility of an amicable settlement of the dispute which has over the year disturbed the peace and tranquillity of the area. The learned counsel for the parties were co-operative and their response was very encouraging. A meeting was therefore, convened and besides the counsel for the parties, certain police officers connected with the matter and a few representatives of the Muslim community were invited to it. I have met and discussed the matter with the parties separately as also in a joint meeting. The Additional District Magistrate, who had been conducting an inquiry, also attended one of the meetings. In the course of the discussion, the representatives of the two communities, as indeed, the police and the local administration gave expression to their assessment of the situation, the genesis of the dispute, the nature of the property involved and possible suggestions for an amicable settlement of the matter and pending that proposals for a working arrangement which may ensure that the peace and tranquillity of the area would not be disturbed. It appears that the solution of the larger questions as to the title to the property and the possible use to which it may be put consistently with public interest and the rights of the two communities would perhaps take some more time requiring continuing dialogue between members of the two communities under the auspices of the local administration. The meeting however, reinforced my belief that by and large the peace-loving citizens belonging to both the communities are anxious to avoid any unnecessary confrontation or a situation of tension or violence and are willing to consider reasonable proposals for an amicable settlement of the matter as also for a satisfactory working arrangement until the matter is finally settled. It is, therefore, unnecessary to hold up the present judgment. For all these reasons, I would set aside the impugned order of the learned Addl. Sessions Judge. But would not restore the condition imposed by the learned Metropolitan Magistrate in its present form. The respondent, as indeed, the other members of the community would be entitled to enter the aforesaid place of worship and offer worship and perform the accompanying rites and rituals, but the respondent would not while in the premises, enter into any controversy or discussion with regard to the matters in dispute or hold any demonstration in relation thereto. Respondent would also abide by the timing with regard to the offer of worship and of the rites and rituals as may be agreed upon by a committee of representatives of both the communities to be constituted by the District Administration. Until the decision of such a committee or in the event of failure of such a committee to arrive at a decision with regard to such a timing, “Aarti” would be performed in the aforesaid place of worship after 8.45 p.m. Should the change in the situation so demand, it would be open to the local police to regulate the entry of the respondent into the temple and make such modification in the timing of ‘Aarti’ as may be considered reasonable subject to prior directions of this court. Respondent would also be at liberty to obtain further directions of this court should any of the condition become unnecessary in view of the change in the situation. The condition imposed by the learned Metropolitan Magistrate is accordingly modified.
14. Order accordingly.