IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 WP(C).No. 32492 of 2010(J) -------------------------- PETITIONER: ------------------- A.S.SETHULAKSHMI, 6-D, 'GOPIKA', DOOR NO.37/3037, ACHUTHAN G.H.S.ROAD, CHALAPPURAM.P.O., KOZHIKODE-673 002. BY ADVS. SRI.JAYKAR.K.S. SRI.ARUN.B.VARGHESE SMT.M.A.SHEEBA RESPONDENTS: ---------------------- STATE BANK OF TRAVANCORE, STRESSED ASSETS RESOLUTION CENTRE (SARC), 2ND FLOOR, THAVOT PLACE, KANNUR ROAD, KOZHIKODE-673 001. BY ADVS. SRI.T.SETHUMADHAVAN, SC SRI.PUSHPARAJAN KODOTH SRI.K.JAYESH MOHANKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.32492 of 2009 & W.P(C) No.5640 of 2010 ***************************** 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/