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Kochitti Chacko Vs. Markose Kathanar and - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1953CriLJ9
AppellantKochitti Chacko
RespondentMarkose Kathanar and ;joseph Kathanar
Cases ReferredAhammadu Kunju v. Ammu Mohammed
Excerpt:
.....he at first issued a prohibitory order against the 1st counter-petitioner under section 142 of the travancore code of criminal procedure and subsequently directed the 1st class magistrate to take proceedings under section 145 of that code......for staying the same till the disposal of two civil suits between the parties and relating to the churches in dispute, viz. o.s. no. 82 of 1122 of the kottayam district court and o.s. no. 108/51 of the kottayam munsiff's court. the reason given for dropping the proceedings was that the dispute between the parties relating to the right to officiate in the churches has been finally settled by the decision of the travancore high court in o.s. no. 111/1113 of the kottayam district court, which is reported in 1946 trav lr 683. in the meanwhile one philipose kathanar who belongs to the catholicos' party filed a petition for getting himself impleaded as a party to the proceedings. certain other persons also filed similar petitions. the learned first class magistrate passed an order on.....
Judgment:
ORDER

Vithayathil, J.

1. The petitioner in Miscellaneous Case No. 1 of 1951 of the Special First Class Magistrate's Court, Kottayam, is the Revision Petitioner. The Miscellaneous case is one taken under Section 147 of the Code of Criminal Procedure. The dispute relates to the right to officiate in three churches in Kottayam namely Cheriapally, Puthenpalli, and Kurisupalli, These three churches are said to be under the same management. They belong to the Malankara Jacobite Syrian Community. There are now two factions in that community, one called the Patriarch's Party and the other, the Catholicos' Party. The Petitioner belongs to the Catholicos' Party, while the 1st counter petitioner belongs to the Patriarch's Party. The second counter petitioner is the Malankara Metropolitan belonging to the Patriarch's Party and the 3rd counter petitioner is the Diocesan Metropolitan of Kottayam, belonging to that party.

2. The petitioners' case is that these three churches belong to the Catholicos' Party and that the first counter petitioner was officiating in these churches as a priest belonging to that party and that he subsequently seceded from that party, and went over to the Patriarchs' side. When the first counter petitioner attempted to perform services in the Cheriapalli as a priest of the Patriarch's party, certain members belonging to the Catholicos' Party petitioned the District Magistrate, Kottayam on 13.3.51 for action being taken against him under Section 142, Travancore Code of Criminal Procedure (Section 144 of the Indian Code). The District Magistrate thereupon, passed an order prohibiting the first counter petitioner from entering the church and performing services there. In the meanwhile certain members of the Patriarch's Party complained to the District Magistrate that the members of the Catholicos' Party were attempting to install a priest belonging to that party in the place of the first counter ^petitioner. The District Magistrate referred the matter to the police and on their report passed an order on 23.3.1951, under Section 31 of the Police Act, closing the three churches until further orders, as he was satisfied that the dispute between the two parties regarding the right to perform services in the three churches, was likely to cause a breach of the peace. He also directed the local First Class Magistrate to initiate proceedings under Section 145 of the Travancore Code of Criminal Procedure corresponding to Section 147 of the Indian Code. Accordingly proceedings were started under that section by the First Class Magistrate and a preliminary order was passed on 3.4.1951. 'Proceedings started under Section 144 were accordingly dropped. Four Revision Petitions were filed in the High Court from the orders of the District Magistrate, and of the First Class Magistrate, and the High Court by its order dated 28.4.1951 dismissed those petitions and confirmed the orders of the District Magistrate and the First Class Magistrate.

3. Written statements were filed by both parties and one witness was examined in the case. On 14.2.1952 the first counter petitioner filed a petition for dropping the proceedings or for staying the same till the disposal of two civil suits between the parties and relating to the churches in dispute, viz. O.S. No. 82 of 1122 of the Kottayam District Court and O.S. No. 108/51 of the Kottayam Munsiff's Court. The reason given for dropping the proceedings was that the dispute between the parties relating to the right to officiate in the churches has been finally settled by the decision of the Travancore High Court in O.S. No. 111/1113 of the Kottayam District Court, which is reported in 1946 Trav LR 683. In the meanwhile one Philipose Kathanar who belongs to the Catholicos' Party filed a petition for getting himself impleaded as a party to the proceedings. Certain other persons also filed similar petitions. The learned First Class Magistrate passed an order on 15.3.1952 relating to all these petitions. The petition of Philipose Kathanar was rejected. Some of the other persons were impleaded, while others were not allowed to be impleaded. With regard to the petition of the 1st counter petitioner, the learned Magistrate disallowed the prayer for stay of proceedings till the disposal of the two civil suits. But he dropped the proceedings under Section 147 and cancelled the preliminary order. The revision is from that order.

4. One of the reasons given by the learned Magistrate for dropping the proceedings, is that he has no jurisdiction under Section 147, Code of Criminal Procedure to initiate proceedings in respect of a dispute relating to the right to perform services in a church. According to the learned Magistrate the section applies only to a case of dispute regarding the right of user of land or water, and that the right to perform services in a church is not a right of user of land. He has relied on certain rulings of the Indian High Courts, particularly of the Calcutta High Court, as the basis of this view. The rulings relied on are - Palaniyandi Pandaram v. Palaniappa Thevan 17 Cri L J. 235 (Mad), - Guiram Ghoshal v. Lal Behary Das 37 Cal. 578; - Ram Saran v. Raghu Nandan 38 Cal. 387; - Surendra Nath v. Soshi Bhusan 52 Cal 959 and - 15 Bom 329 (sic.). It is argued for the revision petitioner that this view of the learned Magistrate is clearly wrong and that the decisions of the Calcutta High Court referred to by him have been overruled in a recent Full Bench decision of that court in - Dhirendra Nath Das v. Hrishikesh : AIR1951Cal93 . In that case the decisions of the various High Courts in India on the point were considered and the learned Judges came to the conclusion that a dispute as to the right of worship in a temple necessarily involves a dispute as to the right of user of land, within the meaning of that term in Section 147, Code of Criminal Procedure. Harries C.J. observed thus in that case:

The view expressed in the earlier cases of this Court cannot be maintained, and in my judgment they should be overruled. In these cases the Benches concerned failed to appreciate that a right to worship in a particular place must involve the right to use that particular place for a particular purpose, or in a particular manner. The right to worship, as I have said, cannot be regarded as something entirely apart from the place of worship, if what has to be considered is the right to worship a deity in a particular building or place. The view of the other High Courts, must, I think, be accepted and that being so it must be held that a dispute as to the right to worship a deity in a particular temple is a dispute falling within the ambit of Section 147 Criminal Procedure Code.

37 Cal 578, 38 Cal 337 and 52 Cal 959 relied on by the learned Magistrate were expressly overruled by their Lordships. Palaniyandi v. Palaniyappa 17 Cri LJ 235 (Mad) another case relied on by the learned Magistrate is a decision of the Madras High Court by a single Judge. That is the only decision of the Madras High Court, in which it was held that a dispute relating to the right to perform pooja in a temple would not come under Section 147 Criminal Procedure Code. This case also is referred to in : AIR1951Cal93 . There are various other rulings of the Madras High Court in which a contrary view was taken. Those decisions are referred to in : AIR1951Cal93 . They are - Muhammad Musaliar v. Kunjichek Musaliar 11 Mad 323, - Kader Batcha v. Kader Batcha Rowthen 29 Mad 237; - Chidambara v. Sengoda 27 Mad LJ 587; - Sinnaswami Chetti v. Palani Goundan AIR 1925 Mad 779; - Vellappa Goundan v. Ramaswamy Goundan AIR 1938 Mad 537. The some view was taken by the Allahabad High Court in - Dayaram v. Emperor AIR 1930 All 452, by the Bombay High Court in - In Re. Pandurang Govind 4 Bom 527, and by the Nagpur High Court in - Abdul Majid v. Mohammad Sahib Azizuddin AIR 1941 Nag 171. The Travancore High Court has taken the same view in - Thomas v. Skaria Kathanar 31 Trav LJ 1223, and the Cochin High Court in - Ahammadu Kunju v. Ammu Mohammed 5 Cochin 507. Practically all the High Courts in India are now of the view that a dispute relating to the right of performance of service in a place of public worship comes within the purview of Section 147 of the Code of Criminal Procedure. I am, therefore, clearly of opinion, that the learned First Class Magistrate has gone wrong in his view that the dispute in this case does not come under Section 147, Crl.P.C. and that he has no jurisdiction to hold an enquiry under that section. The learned Magistrate has therefore, gone wrong in dropping the proceedings on that. ground.

5. The second reason given by the learned Magistrate for dropping the proceedings is that according to him the decision of the Travancore High Court in - 1946 Trav LR 683 has finally settled the controversy between the parties so far as the matter in dispute in these proceedings is concerned. In the words of the learned Magistrate,

there can no longer be any dispute about the established (by judgment in the - 1946 Trav LR case) right of the Patriarch's party to officiate and conduct service in the three churches, the rights having bean judicially recognised in - 1946 Trav LR 633.

(6) Section 147(1) of the Code of Crl. Procedure provides that the provisions of Section 145 shall, as far as may be applicable to an inquiry under Section 147. Sub-section (5) of Section 145 reads thus:

Nothing in this section shall preclude any party so required to attend or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final.

It is therefore clear that if it is shown that no dispute likely to cause a breach of the peace exists or has existed regarding the alleged right of the 1st counter-petitioner to perform services in the churches in question, the Magistrate is bound to cancel the preliminary order passed in this case, it is argued for the counter-petitioners that the real point in dispute between the parties in these proceedings is whether a priest belonging to the Patriarch's Party has got the right to officiate in these churches, that this point has been finally decided by the High Court of Travancore in - 1946 Trav LR 683, and that, therefore, no dispute exists between the parties regarding that question.

It is further contended that in the compromise decree in O.S. No. 130/1100 of the Kottayam District Court, which was a representative suit relating to the churches in question it is provided that only priests approved by the Malankara Metropolitan have got the right to officiate in these churches and that in - 1946 Trav LR 683 the 2nd counter-petitioner in these proceedings has been declared to be the lawful Malankara Metropolitan. It is, therefore, argued that only priests approved by the 2nd counter-petitioner can perform services in these churches. The 1st counter-petitioner being a priest approved by the 2nd counter-petitioner it is contended that there can be no dispute between the parties relating to his right to officiate in the churches in question. The compromise decree in O.S. No. 130/1100 is reported in - 29 Tray LJ 457. The term in the compromise relating to the question is this: 'As to the priests that are to officiate in these churches the decisions or commands of the Metropolitan in the matter will be accepted by the parties'.

7. On the other hand, it is argued for the petitioner that the decision in - 1946 Trav LR 683 has not settled the dispute between the parties regarding the right to perform services in the churches in question, that these churches were not the subject-matter of the suit in that case, that they do not form part of the trust properties which were the subject-matter of that suit, that they were all along in the possession of the Catholicos' Party, that even after the decision in - 1946 Trav LR case suits have been instituted by the Patriarch's Party for the possession and management of these churches and their properties, which suits are still pending, and that the decision in - 1946 Trav LR 683 is not binding on the petitioner and those members of the Catholicos' Party who are not parties to that suit. It is also contended that according to the decision in that case the Catholicos' Party have gone out of the Jacobite church and have constituted a church of their own and that, if it is so, the churches in question must be deemed to belong to that independent church. It is therefore, argued that it cannot be said that there is no dispute at present between the parties, relating to the right to perform services in these churches.

8. If the decision in - 1946 Trav LR 683, has finally set at rest the dispute between the parties relating to the right to perform services in these churches the Magistrate is bound to cancel the preliminary order and to stay all further proceedings thereon us provided in Section 145(5), Code of Criminal Procedure. But in this case proceedings under Section 147 were started long after the decision in - 1946 Trav LR 683. Even after the decision in that case, the Catholicos' Party was contending that priests belonging to their party alone have the right to officiate in these churches. The dispute that gave rise to these proceedings was one that existed even after - 1946 Trav LR 683, was decided by the Travancore High Court. The District Magistrate was satisfied that this dispute was likely to cause a breach of the peace and he at first issued a prohibitory order against the 1st counter-petitioner under Section 142 of the Travancore Code of Criminal Procedure and subsequently directed the 1st Class Magistrate to take proceedings under Section 145 of that Code. The breach of peace was so imminent that on the report of the police the Magistrate even took action under Section 31 of the Police Act. The High Court confirmed the order of the District Magistrate. It cannot, therefore, be said that when the proceedings were started, there was no dispute between the parties relating to the user of the churches in question, although there was the decision of the Travancore High Court in - 1946 Trav LR 683, declaring that the 2nd counter-petitioner is the lawful Metropolitan of the Malankara Jacobite Syrian Church.

9. It is, however, argued for the counter-petitioners that when proceedings were started in this case, there was a petition pending in the High Court to review the decision in - 1946 Trav LR 683, that notice has been ordered on that petition and that it was only in December 1951 that, that petition was dismissed by this court. It is, therefore, contended that it is only after the dismissal of the review petition that the dispute between the parties relating to the right to officiate in those churches can be said to have been finally settled. It is pointed out that in the report of the police to the District Magistrate it was stated that the Catholicos' Party was contending that the decision in - 1946 Trav LR 683, had not become final by reason of the pendency of the Review Petition. Now, that the Review Petition has been dismissed, it is argued that there can be no further dispute between the parties regarding the right of the 1st counter-petitioner to officiate in these churches and that, therefore, the Magistrate has no jurisdiction to continue the proceedings under Section 147, since under Sub-section (4) of that section an order of the Magistrate1 under the section is subject to the decision of the civil court.

10. But the learned First Class Magistrate has not given this as a reason for dropping the proceedings. He has not even referred to the Revision Petition and to the effect of the dismissal of that petition by this Court so far as the controversy in these proceedings is concerned. Neither has the first counter-petitioner mentioned this as a ground in his petition for dropping the proceedings, although in the affidavit filed in this Court by the advocate who appeared for him in the court below, it is stated that this point was argued before the learned Magistrate. The question whether a dispute likely to cause a breach of the peace exists or has existed between the parties relating to the user of the churches in question is one of fact. If by reason of the dismissal of the review petition the dispute between the parties has ceased to exist or must be taken to have ceased to exist, the learned Magistrate ought to record a finding to that effect, and then only he will be justified in cancelling the preliminary order. The learned Magistrate has not recorded a definite finding on that question. He only says that by reason of the decision in - 1946 Trav LR 683, there can no longer be any dispute relating to the right of the Patriarch's party to conduct services in the churches in question. As stated above, there has been real dispute between the parties relating to this matter even after the - '1946 Trav LR 683, case was decided. If according to the learned Magistrate that dispute has been set at rest by reason of the dismissal of the review petition, he must find it as a matter of fact and then cancel the preliminary order. Of course, the mere fact that one party contends that there is still a dispute will be no reason for holding that there is a dispute, if, as a matter of fact, the dispute must be taken to have been settled by the decision of a competent civil court.

11. If, on the other hand, the learned Magistrate finds that in spite of the dismissal of the review petition, there is still a dispute between the parties relating to the user of the churches in question which is likely to cause a breach of the peace, the proper thing to do will be to pass an order under Section 147 of the Code of Criminal Procedure. The learned Magistrate has not declared the right of the 1st counter-petitioner to officiate in the churches and has not prohibited the interference with the exercise of such right. The order, as it is, is likely to give rise to complications if, as a matter of fact, there is still dispute between the parties relating to the matter in controversy which is likely to cause a breach of the peace. From the affidavit filed in this Court it is seen that there is dispute between the parties as to the person who is entitled to get the keys of the churches from the police.

12. For the above reasons I set aside the order of the learned First Class Magistrate and direct him to take the case back to his file and dispose it of according to law and in the light of the observations made above.


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