P.R.RAMACHANDRA MENON N.ANIL KUMAR, · pilgrimage half the way at Erumeli. It was allegedly because...
Transcript of P.R.RAMACHANDRA MENON N.ANIL KUMAR, · pilgrimage half the way at Erumeli. It was allegedly because...
proceed and have 'darsan' as a group and may have to leave
Sannidhanam within 'six' hours and further that they will not
be permitted to chant 'saranamanthras' at Sannidhanam. We
are not sure whether the factual aspect is fully correct, as we
also noted that higher l.evel officers of the police had
police and on apprehendlnq that they may not be permitted to
of the excessive restrictions/prohibitions implemented by the
pilgrimage half the way at Erumeli. It was allegedly because
surrender to pressurizing circumstances and stop the
Sabarimala for having 'darsan', but unfortunately had to
carrying their 'Irurnudikettu' who were proceedinq to
about 33 'kanni-ayyappans' (coming for the first time)
Ramachandra Menon, J.
Today, this Court has come across the sad plight of a
group of about 110 pilgrims from Mumbai, consisting of little
children, ladies, aged persons (even octogenarians), and
ORDER
Dated this the 21st day of November, 2018 ---------------------------------------------------------
W.P.(C).Nos.37645, 37713, 37742, 37746, 37751 & 37760 of 2018
-------------------------------------------------------- P.R.RAMACHANDRA MENON & N.ANIL KUMAR, JJ.
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especiaHy at the premises of Sannidhanam, where normally
nobodyelse may be available than the pilg.rims who chant
'saranamanthra' and remain there for the 'darsan'. One
said order was warranted at this stage or sustainable,
Section 144 of the Cr.P.C., it has to be considered whether the
to the challenge raised against the order dated 15.11.2018
issued by the District Magistrate, Patnanamtfutta, In terms of
intend to say anything further in this context.
2. Coming to the other aspect, particularly with regard
collectively responsible for the sad state of affairs. We do not
petitioners' side or the side of the State/PoJice/Devaswom are
this Court, prima facie, all stakeholders, whether it be on the
individual or organ of the State or Devaswom, but according to
intervened and assured them that the restriction of entry,
limiting it to 'six hours' was only in respect of some identified
persons who might cause breach of peace and that necessary
assistance would be given to them in all respects. This Court
does not intend to fix the responsibility on any particular
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then the system as it exists, cannot but b bl m . V II lty
apprehension/fear in the minds of such pllgrlm , kn win ly ,
unknowingly, that there Is a chance for th m to
or restricted with regard to the entry or In o rln th
or misdeed on the part of ny
conveyances) from far off places in v riou
ll h when pilgrims come in groups {In
who cannot be segregated. Th ltu ti n I ..
m I group headed by 'Periyon' proce d to th r
18 times/years) who perform the ritu I n h · II r lfn 11 :h ,
. th~ n Sabarimala, foJlowing all ntu I
ha devotees by a 'Periyon' (wh
be placed on the head of the 'k nnl-avvo
h ' tH 1dtk ' tu' 1H materials to be offered t th
'mudra', it is placed in th 'trumudl
rh I r t the,
important aspect to be n
pilgri,mage to Sabarimala I
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satisfacnon of the re e ant in redients of the said provision, as
to the imminent nature of the requirements, is very important,
as alerted by the Apex Court on man an occasion, including in
Ramlila Maidan. Incident Vs. Home Secretary, Union of
India & others [(2012) 5 sec 1]. Further, in view of the
law Iaid down by the Hon ble Supreme Court in Gulam Abbas
Vs. State of U.P. [AIR 1981 SC 2198], as far as possible,
customary right of a community should not be disturbed.
Tackling of the situation in an appropriate manner is to be
thought about, when there is conflict of interest, particularly
when the attempt to protect the fundamental right of one
person may stand in conflict with the fundamental right of
others as explained by the Apex Court in the recent ruling in
Mazdoor Kisan Shakthl Sangathan Vs. The Union of India
& another [JT 2018 (7) SC 266].
e order passed nder Secti n 144 f the Cr.P.C. has to be
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....
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ir-) Q«M»«>nl' ~ccm e1rum.>o ~m QO QQAQCiP~:PQIJ~ eitacs»:>~o mddb 1cs»1m1c8QJITT)J.·
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l wlll b worthwhile to extract the 'order portion' of
th tm u n d ord r (written in Malayalam) as given below:-
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General submits, on the basis of the instructions received from
sought to be denied by the State/Police. The learned Advocate
reports-both the print media and the electronic media- are
mentioned in the writ petitions with reference to the press
5. The incidents stated as happened so far, as
Janguage-MaJayaJam, but for their working knowJedge).
Sannidhanam are not adequately proficient in the local
English, if the higher fevef officers now deployed on duty at
by the police at Sabarimala (getting it correctly translated to
whether this order was correctly understood or implemented
excJuded from the orohjbjtory order. But the question is
Sabarimala and the movement of their vehicles will stand
specifically says that all pilgrims who are coming for 'darsan' to
obstruction from any corner. Clause 3 of the said order
easy/smooth 'darsan' at Sabarimala, without any hindrance or
paramount importance to enabJe the piJgrims to have
that the said order is stated as passed considering the
4. On going through the said order, it is quite evident
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"30. In Haji Mohammad Ismail v. Munshi Barket Ali, (1923) 24 Cr/ LJ 154: (AIR 1922 cal 483) there was a dispute concerning the conduct of a prayer in a mosque, and there being an apprehension of breach of peace the Magistrate under Sec.144 drew up a proceeding and eventually recorded an order that "no man of either party will be allowed to read prayers in the mosque.' The Court held that the order was misconceived: that if the effect of the order was that no Muhammadan would be allowed to say his prayers
Section 144 of Cr.P.C., held in 'paragraph 30' as follows:-
case (cited supra), the Apex Court, referring to the scope of
Abbas case (cited supra) (paras.30 & 32). In Gulam Abbas
contrary to the dictum laid down by the Apex Court in Gulam
pilgrims are not permitted to chant 'saranamanthra'; which is
implemented in the manner as now put forth and that the
submits that the order under chaJJenge was not being
appearing on behalf of some of the petitioners, as instructed,
Sri.K.Ramakumar, learned Senior Counsel Sabarimala.
the pilgrims or as to the chanting of 'saranamanthra' at
challenge does not envisage any restriction of movement on
wrong and misconceived. It is stated that the order under
the idea and understanding of the petitioners is thoroughly
the Director General of Police and the State Police Chief, that
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(copy of which is placed for perusal of this Court). This Court
finds it appropriate to have the same extracted in toto, fest
nothing is left out. It reads as follows:-
the State Police Chief, addressed to the Advocate General
No.U4/168455/2018/PHQ dtd. 21.11.2018 of the D.G.P. and
and put on record is discernible from the letter
6. The scope of the impugned order, as understood
in the other cases.
supported by the learned counsel appearing for the petitioners
the binding precedents, submits the learned Senior Counsel;
requirements, in violation of the fundamental rights and also
authority, being out of context and without satisfying the basic
The order under challenge is liable to be interdicted for want of
In the mosque it was not Justified under Section 144 and that the proper course was for the Magistrate to ascertain which party was in the wrong and was Interfering unnecessarily with the legal exercise of the legal rights of the other party, and to bind down that party restraining them from committing any ad which may lead to a breach of peace. (Emphasis supplied). H
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1. The Order In terms of 144 Cr.P.C. prohibits only marches, unlawful assemblies and group prayers In the form of protests ( /n.J((JJ?ar81W (OJn.JlfhlJ)?Q,VgJJ {n.J~fl((JJJ}m (1J)l!Jli1(J)o). 144 Cr.P.C. Is not applicable to the devotees coming to the Sabarlmala Temple for darshan, even if they come In groups. The same does not in any way prohibit or prevent In any manner the darshan of the devotees, either indlvldually or in groups, or the movement of their vehicles (Clause 3 of the 144 Order). 2. The Order does not prohibit chanting of Sarana Mantras by devotees, either lndlvldual/y or In groups ( m~[Ra...10). The same only intends to prohibit protests by way of chanting Saranamantras by persons who assemble with purposeful Intention to create a law and order situation In the Shrine ( mOOJtRa...1 /n.J((JJ?arlllW6111J~). 3. The police have neither taken nor w/11 take any action against mere chanting of Sarena mantra ( m:Ji1J§la..Jo) by the devotees, either Ind Iv/dually or In groups. The police have taken recourse to action only in the cases of unlawful assemblies which tend to c~ate obstruction or annoyance or Injury to any genume devotees or the law Implementing agency
Sub: Written Instructions In 5 new Writ Petitions submitting before the Hon 'ble High Court reg.
I am submitting the fol/owing points for kind consideration.
The Advocate General Kera/a
To
DGP & State Police Chief Kera/a
From
'' U4/168455/2018/PHO Police Headquarters, Kera/a, Thiruvananthapuram-1 O Phone: 0471-2721547 Email: [email protected] Dated:21/l 1/2018
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impugned order, as such, is not a prohibition order generally
his letter as mentioned above). According to the I.G., the
whjch It js sought to be put forth by the State Police Chief in
Sannidhanam (which is almost in similar tune with the way in
reference to the instructions received from the I.G. posted at
7. The learned Advocate General placed a 'NOTE' with
Sd/- Sukumara Pillai J JPS
Asst. Inspector General (PG) For DGP & State Police Chier
Submitted
and also chant Sarana mantra in the form of protests ( m:JtlJ!!;a..1 [4..l((J)1adJJW61JYJfll) as was evidenced during Thu/a Masa Pooja and Chithira Atta Visesham days.
4. As many as 1,62,000 number of pilgrims have visited Sabarimala this Mandala Season. Many number of them came in groups ( 4576 Light Motor Vehicles, 331 O Medium Vehicles/ Tempo Travellers and 989 Heavy Vehicles/ Buses). The notice in the form of Exhibit P3 restricting the time to be spent in Sabarimala Temple has been issued to only a miniscule number of persons who have come to the Shrine this season (34). 5. The notices in the form of Exhibit P3 are issued only to those persons who have criminal antecedents; who have indulged themselves in fomenting trouble in the Shrine, Nilackal etc during Thu/am Puja and Chithira Atta Festival; and against whom there are intelligence inputs to the effect that they are coming forward to create law and order issues or organise protests in the Shrine (intelligence assessment are also done by the police in the case of such persons).
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"xxx xxx It is submitted that till date these notices have been given only to 3 groups of people. (34 persons in detail).
(i) Sasikala Teacher - who had a history of blocking ladies at Sabarimala during the Thu/a Masa Pooja and Chithira Atta Vishesham.
(ii) Notice was given to 25 RSS activists at
else. The 'NOTE' (unsigned) says:-
the 'unlawful' assemblies/proposed activities if any and nothing
the 'NOTE', adding that the obstruction is only with regard to
Sabarimala, posing themselves as pilgrims, is also explained in
the Kerala Police Act to some persons who came to
8. The sanctity of the notice issued under Section 39 of
of the order.
to pilgrim assembly or meetings as made dear in 'Clause No.3'
restriction on pilgrim movements or any restriction/obstruction
groups will be banned and that there is absolutely no
that, there is no clause in the order that any person or any
mentioned and the roads leading to the temple. It is added
order, where banning was only in respect of illegal protests,
demonstrations and unlawfuJ assembJies In the pJaces
Issued under Section 144 of Cr.P.C. but is only a restrictive
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acts leading to breach of peace, which has to be checked.
There cannot be any dispute that (based on the intelligence
reports and such other materials collected by the police), it is
vested interest, posing themselves as pilgrims and may pursue
objection is only in respect of some identified persons with
individuals or in chanting 'saranamanthra' and that the
respect of the pilgrims going to Sabarimala in groups or as
is no objection at aJJ, either from the State or the Police, in
before this Court by the learned Advocate General is that there
9. Sum and substance of the instructions now placed
Nilakkal, who had come from Kol/am together In a vehicle, based on lnte/1/gence information received from SBCID, that they had come to create problems at Sannidhanam.
(iii) Notice was given to a group of 8 RSS activists from Paravoor, Kol/am at Sannldhanam on specific inte/1/gence Inputs that they had come to protest at Sannldhanam.
It has not been given to any devotee or any other general public. It has been given only to individuals, on whom specific Information was available that they are protestors and likely to create problems at Sannldhanam.
It Is also submitted that till date 1,62,000 pilgrims have visited the Shrine, based on the DFMD count at Pamba."
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chanting 'saranamanthras', which shall not be prevented by
stand in the way of any genuine pilgrim, in proceeding to
Sabarimala either as individual or as groups and also in
District Magistrate (challenged in the writ petitions) will not
make it clear that the order dated 15.11.2018 passed by the
the submissions made by the learned Advocate General, we
contents of the letter of the D.G.P., which is put on record, and
the genuine pilgrims. This being the position, in view of the
paramount importance of smooth 'darsan' to be provided to
order issued by the District Magistrate also projects the
does not exceed the limit in any manner, particularly when the
However, care and caution has to be taken to ensure that, it
extent of search and analysis, which cannot be prevented.
intent, it is also open for the police to conduct reasonable
smooth and peaceful pilgrimage of genuine devotees. With this
make use of the situation and intrude to SabarimaJa spoiJing
there is no advancement from any insurgents in any manner to
the duty of the police to look into all aspects and to see that
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15.11.2018, is directed to produce the relevant files containing
the reports of the police officers which have been referred to,
while passing the said order.
affidavit. The District Magistrate, who passed the order dated
are directed to complete the pleadings by filing a counter
Board and other authorities of the Devaswom. The respondents
Standing Counsel takes notice for the Travancore Devaswom
authorities under the State, while Mr.S.Rajmohan, the learned
the Government Pleader on behalf of the State/Police/other
10. The writ petitions stand admitted. Notice is taken by
relevant provisions of law.
take appropriate action against them in accordance with the
peace, it is open for the police to identify such persons and
peaceful atmosphere prevailing there and cause any breach of
mentioned already, if anybody wants to rupture or ruin the
the Police or anybody else in any manner. However, as
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N.ANIL KUMAR, JUDGE
Sd/-
P.R.RAMACHANDRA MENON, JUDGE
Sd/-
skj
Ust the matter for further consideration on 06.12.2018.
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