1968 P Cr (PLP)

Learned counsel then referred to `Outlines of Muhammadan Law' by Asaf A. A. Fyzee. At page 312 of the book, a case Muhammad Wasi v. Bachchan Sahib (A I. R 1953 All. 68) is mentioned. In this Full Bench case entire case‑law on the subject was discussed and their Lord ships observed :‑ "it is now well settled that‑ (1)A mosque is dedicated for the purpose that any Muslim belonging to any sect can go and say prayers therein; (2) it cannot be reserved for Muslims of any particular denomination or sect; (3) no one can claim to have the form of congregational prayer usually said in a mosque altered to suit him. (4) even though the congregational prayers are said in the mosque in a particular form any Muslim belonging to any other sect can go into a mosque and say his prayers at the back of the congregation in the manner followed by him so long as he does not do anything mala fide to disturb the others; (5) the object of the dedication can neither be altered nor the beneficiaries limited or changed; and (6) a Muslim will have a cause of action if he is deprived of his right to say prayers in a mosque or is prevented from doing so.'.

9. From both the applications, submitted by the S.I. con cerned, it is abundantly clear that the dispute between the parties was not about the possession of the mosque, but the bone of contention was its Management and control. The Wakif in this case had appointed one of his sons as Matwalli of the mosque for its control and Management. On the other hand, a few persons formed an Anjuman and appointed the Imam in the mosque, who was removed by the Matwalli and he appointed a man of his own sect to lead the prayers in the mosque. This dispute about the leading of prayers in the mosque cannot be described as a dispute about its possession. On different occasions, a number of persons from both sides were proceeded under section 107/150, Cr. P. C. In the second application, however, it was submitted that in the mosque both the parties were leading their separate prayers at the same time. Learned Magistrate in the impugned order has observed that the report of the police was contradictory and he did not take any action about the quarters attached to the mosque, since they were in possession of different persons for the last several years.

10. I celled upon the learned counsel appearing on behalf of the respondents to produce any case‑law where an order under section 145, Cr. P. C., has been passed regarding a mosque, but he could not produce one. Actually he conceded that the mosque could not be sealed. Mr. S. M. Masood Advocate also appeared on behalf of the respondent. He however, submitted that I should remand this case to the Magistrate so that he should proceed under section 147, Cr. P. C. He cited Sinnaswami v. Palani (A I R 1925 Mad. 779). This was a case of temple in which it was held :‑ . "Where the dispute between the parties was as to the right to worship in the temple, the proper section under which action should be taken by the Magistrate to prevent a breach of peace is section 147 and not section 145." The order passed by the Magistrate under section 145, Cr. P. C., was set aside. The learned Judge, however, directed the Magistrate to take action under section 147, Cr. P. C., after giving due notice to the parties, if the likelihood of a breach of peace has ceased, no action need be taken, but if it still continues then the Magistrate will take action under section 147, Cr. P. C. He then referred to Muhammad Musaliar v. Kunji Chek Musaliar and others (I L R 11 Mad. 323). It was held by a Division Bench of the Madras High Court, "Where a dispute likely to cause a breach of the peace is shown to exist concerning the right to perform a religious cere mony in a mosque the Magistrate may exercise the powers con ferred by section 147 of the Code of Criminal Procedure." The facts of this case were briefly as under. In 1880, the Kazi of the Quilandi Mapillas died and for the following two years there were two candidates for the post. In 1882, Government appointed one of the candidates, Muhammad Musaliar, as Government Kazi, and the Jams, mosque was put into his possession. The other candidate, Kunji Chek Musaliar, put in several petitions asking that he might be appointed instead, but his petitions were rejected by the District Magistrate. On 3rd June 1887, a riot took place in the Moidin Pali mosque; the fight arose out of the attempt on part of Kunji Chek Musaliar to celebrate Jumma or Khutba in the Moidin Palli mosque. The parties were convicted on both sides. A number of points were raised in the case and it was observed in one of the contentions that it is contrary to Muhammadan custom to allow‑two Jummas to exist in the same place. The order passed by the Magistrate under section 147; Cr. P. C, directing Kunji Chek Musaliar to perform Jumma in the Moindin Palli mosque till the party objecting obtain a decree of the Civil Court to prevent them from celebrating Jumma. The Kazi appointed by the Government claimed the control of the mosque and challenged the, order. Their Lordships ob served .‑ "The claim of the petitioner, who is the Kazi appointed by Government, is that he alone is authorized to perform this religious service within a given area; but we find nothing in Act X11 of 1880 declaratory of such a right, and it should, if it exists, be established by a regular suit brought for that purpose ‑ in due course of law." In Kedar Batcha v. Kadar Batcha Rowthan (I L R 29 Mad. 237) it was held:- "No doubt there was no enquiry in this case as to who was in possession of the mosque. The order therefore in so far as it declares possession to be with the second party cannot be maintained and the Vakil who represents that party concedes this. As to the real point in question, it is clear that a dispute as to a right to use a mosque by persons claiming to be entitled to officiate as Kazis therein is a dispute coming within section 147 of the Code of Criminal Procedure and Muhammad Musaliar v. Kunji Chek Masaliar (I L 11 Mad. 323), so far as it goes confirms the above view. The order will, there fore, be modified by directing that Ibrahim and Kather Ibrahim shall not be introduced into the mosque to officiate therein, by tae five individuals mentioned in the Magistrate's order as forming party No. 1, until the decision of a competent Civil Court recognizing the alleged right is obtained by them." The neat‑ authority cited by the learned counsel is Haji Muhammad Ismail v. Barkat Ali (A I R 1922 Cal. 483) wherein Waimsley and Suhrawardy, JJ. held :‑ (a). Muhammadan Law‑‑Mutwalli has a right to appoint servant of mosque. The Mutwalli of the mosque, unless he is displaced from his position as such, has power to manage the trust property. As Mutwalii, he has the right to appoint a servant of the mosque and if the congregation is not satisfied with the appointment made by him the only course open .to them would be to go to the proper Court to have the Mutwalli removed or to make him adopt the proper and legal mode of managing the Wakf property. (b) Criminal P. C., S. 144‑‑Order disallowing prayers in mosques is not justified. . If the effect of the order under 5.144 is that no Muhammadan would be allowed to say his prayers in the mosque, such an order is not justified under S. 144, Cr. P. C. The proper course that the Magistrate ought to follow is to find out which party is wrong, and restrain that party from committing any act ‑hick may lead to a breach of peace."

11. A perusal of the above cases would show that the order of the Magistrate in this case under section 145, Cr. P. C., is illegal and without jurisdiction. It is not desirable, however, to remand this case because the parties themselves had compromised the same dispute when they were being proceeded under sec tion 107/150, Cr. P. C., in the same Court. I am inclined to follow the Calcutta view where an order under section 144, Cr. P. C., disallowing prayers in the mosque was set aside by the Division Bench consisting of Walmsley and Suhrawardy, JJ and it was held that such an order prohibiting Muslims to say prayers in the mosque was not justified under section 144, Cr. P. C. Certainly, an order under section 145, Cr. P. C. is without jurisdiction and undesirable. I have already directed in my short order if there i any dispute regarding the leading of the prayers or Management and control of the mosque that will be decided by the competenit court if proceedings are initiated in this behalf.

12. In support of his next contention that the order of the Magistrate issuing notice without expressing his satisfaction about the existence of the dispute is fatal to these proceedings, Mr. M. B. Zaman, learned counsel for the petitioner relied upon the following authorities :‑ To Dirgopal Singh v. Rambrich Singh (A I R 1951 Pat. 412), Agarwala C. J observed as under :‑ "The omission to comply with the express direction of the statute that the Magistrate shall make an order stating the grounds on which he is satisfied that a dispute likely to occasion a breach of the peace exists cannot be treated as a mere irre gularity, curable under section

537. Where, therefore, neither the notice issued to the parties nor the order passed by the Magis trate after hearing the parties indicated that he was satisfied as to the existence of any dispute likely to cause breach of the peace, the Magistrate could not be held to have jurisdiction to proceed with the complaint." In Muhammad Ishaque v. Nur Mahal Begum (P L D 1961 S C 426), their Lord ships of the Supreme Court held :‑ "There can be no doubt that Magistrates exercising juris diction under section 145, Cr. P. C., 1898 are expected to com ply strictly with the provisions of the section, but to say that a failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is to wide a proposition. There is a distinction between the elements, which are essential for the foundation of jurisdiction, and the mode in which jurisdiction has to be exercised. The elements neces sary for the foundation of jurisdiction under section 145 of the Criminal Procedure Code, 1898 are that the Magistrate must be satisfied‑ . (a) that a dispute likely to cause breach. of the peace exists, (b) that the dispute refers to land or water or the boundaries thereof, and (c) that such land or water is situated within the limits of his territorial jurisdiction. If these elements exist, they are sufficient to vest the Magis trate with the jurisdiction to make the preliminary order in the mode prescribed therein. If the Magistrate after having acquired jurisdiction does not strictly comply with the other requirements of the section as to the form of the order and does not state the ground of his being so satisfied, the order is no doubt defec tive, but this does not mean that the order is also without juris diction. The jurisdiction to make the order depends upon the existence of the elements necessary for founding the juris diction. This was a case where the Magistrate had not given reasons for his satisfaction. But in the instant case, he merely issued notice, to the parties. This does not show that he was satisfied that there was apprehension of the breach of peace. In Muhammad Siddiq v, Sahibyar Khan (P L D 1963 B J 26), it was held by Tamil Husain Rizvi, J. :‑ "'Issue notice to the other party'. Such a preliminary order does not lie under section 145 (1) of the Cr. P. C." In State v. Abdul Sattar (P L D 1965 Kar. 305), my learned brother, A. S. Faruqi, J. held :‑ "Section 145 (1), Criminal Procedure Code, 1898, makes an imperative provision requiring the Magistrate to state the grounds of his being satisfied that a dispute likely to cause breach of peace exists. The reason for this is obvious. The Criminal Courts are not expected to decide disputes of civil nature relating to possession of immovable property. That is the function of the Civil Court. They acquire jurisdiction only when there is apprehension of breach of peace. That being so, it must appear from the order of the Magistrate that he had applied his mind to the question as regards the breach, of peace because it is the existence of such a dispute which gives him jurisdiction to entertain the matter."

13. In the light of the above authorities, I hold that the first order passed by the Magistrate was not in conformity with section 145 (1), Cr. P. C. Actually, it shows that the learned Magistrate was not satisfied about the danger of an imminent breach of peace and, therefore, he did not take any action in the matter. The subsequent proceedings in the case obviously become illegal if the preliminary order was not passed according to law.

14. There is equally great force in the submission of the learned counsel that an Anjuman could not be impleaded as a party to these proceedings. The dispute, if at all, exists between individuals on either side and not amongst men on one side and a corporate body on the other side. The same principle is appli cable to proceedings under section 147, Cr. P. C. A dispute regarding the control and Management of a mosque of course can be between the Mutwalli and the Anjuman, but in criminal Courts only individuals can be proceeded against.

15. Mr. M. B. Zaman, then referred to the second appli cation dated the 19th May 1967, in order to show that it was a case of joint possession of both the parties. Admit tedly, in his report, the S. I. has mentioned that both the sects lead their congregation in the mosque at the same time. It is also true that both the parties on 23‑6‑1967 submitted compromise in the proceedings under section 107/150, Cr. P. C., pending before the same Magistrate and admitted that there was no dispute about the mosque, as both the parties were only Nimazis. The learned Magistrate passed the order that as there was no apprehension of breach of peace, no further action was necessary. Once the Nimazis compromised their dispute and the apprehension of breach of peace disappeared, it was incumbent upon the Magistrate to de‑seal the mosque. In Manzoor Elahi v. Bishamber Dass (P L.D 1964 S C 137), their Lordships held: ‑ "The provisions of section 145 read as a whole indicate that there should be a continuing danger of a breach of peace till the time the final order is made. The use of the word `exists' in the present tense in subsection (5) connotes that the dispute must continue to exist even at the time when the objection is raised. The main purpose of this section being the maintenance of public peace and the prevention of breaches thereof it would follow that where there is no danger at any point of time of any further breach of public peace taking place, then manifestly the invocation of the summary procedure provided by this section is no longer called for and should be put an end to." After the compromise by the Nimazis of both the sects, there did not exist any apprehension of breach of peace and the Magistrate was duty bound to open the mosque there and then, but by no provision of law the mosque could be kept locked. To lock the house of God is not only illegal, unjustified and with out jurisdiction, it also attracts the wrath of Almighty on person who is responsible in passing the order and those who sponsored and contributed to such an act,

16. I have already discussed above that the house of God cannot be possessed by any individual. It vests in God and a such cannot be sealed under section 145, Cr. P. C. Even a pro hibitory order under section 144, Cr. P. C., was held to be illegal and undesirable by a Division Bench of the Calcutta ‑High Court, referred to above. That order is also based on the principle that no Muslim can be prohibited from saying his prayers in a mosque. The entire case‑law in the Indo‑Pak sub‑continent regarding the use of mosque is also on the same line that any Muslim can go and say his prayers in a mosque, of course without disturbing the congregation even if the congregation is led by another sect. Surely, two congregations cannot be held in a mosque and nobody can claim to introduce a congregation of his own choice in the mosque. It is the fight of the Mutwalli to make arrangements for the congregation and the control in the mosque. However, if there is any dispute regarding the user of the mosque and then exist an apprehension of breach of peace, in such a case Magistrate under section 147, Cr. P. C., can only prohibit inter ference with such a user. On the other hand if the dispute i regarding the control and Management of a mosque and there i an apprehension of breach of peace, a criminal court under section 145, Cr. P. C., cannot decide such a dispute. Even such a dispute cannot be decided by a criminal court under section

147. Cr. P. C which deals with the user only. In case of any apprehension o breach of peace regarding its user alone, prohibitory order can passed by a Magistrate against one party in order to restrain from interfering with the exercise of such a right of the other party. Same view has been expressed in the Madras authorities, cited by the learned counsel for the respondent. The case is which the proceedings under section 145, Cr. P, C., were set aside and the Magistrate was directed to proceed under section 147, Cr. P. C. also related to the right of worship in the temple and did not relate to the Management and control of the performance of the Puja ceremonies therein. No useful purpose, therefore, can be served by remanding this case to the Magistrate for enquiry under section 147, Cr. P. C. 17. 1 have already held the order passed by the learned Magistrate under section 145, Cr. P. C. is without jurisdiction and ordered the de‑sealing of the mosque. Proceedings pending before the learned Magistrate are also quashed, There are the reasons for that order. .