Kuttappan and Latha v. Bible Faith Mission and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **MONDAY, THE 4TH DAY OF JANUARY 2016/14TH POUSHA, 1937** ## **Crl.MC.No. 6202 of 2015 ()** **--------------------------MCI 264/2014 OF SUB DIVISIONAL MAGISTRATE COURT,THIRUVANANTHAPURAM DATED 13-07-2015** **--------------------** **PETITIONER(S) :** ## **--------------------------** ## **1. KUTTAPPAN** **S/O. LAZAR, AGED 67 YEARS, ALMCODE, SHIBU BHAVAN VEERAMAKAVU VILLAGE, THIRUVANANTHAPURAM DISTRICT.** ## **2. LATHA** **D/O. RAJAMMA, AGED 42 YEARS LATHA BHAVAN, POOVACHAL, PUNNAMMOODU VEERAMAKAVU VILLAGE, THIRUVANANTHAPURAM DISTRICT.** ## **BY ADV. SRI.BABY MATHEW** ## **RESPONDENT(S) :** ## **----------------------------** ## **1. BIBLE FAITH MISSION** **MOUNT SINAL, PARASUVAKKAL P.O., THIRUVANANTHAPURAM REPRESENTED BY REV. DR. MOSES SWAMIDAS - 695 508** ## **2. SUB INSPECTR OF POLICE** **KATTAKADA POLICE STATION, THIRUVANANTHAPURAM DISTRICT-695 572 .** ## **3. SUB DIVISIONAL MAGISTRATE, THIRUVANANTHAPURAM-695 001** ## **4. STATE OF KERALA** **REPRESETED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031** **R1 BY ADVS. SRI.V.G.ARUN** **SRI.ANOOP BHASKAR R2 TO R4 BY PUBLIC PROSECUTOR SMT. SAREENA P. GEORGE** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04-01-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** **...2/-** ## **Crl.MC.No. 6202 of 2015 () -------------------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES : -------------------------------------** - **ANNEXURE 1 TRUE COPY OF THE PRELIMINARY ORDER DT. 30/9/14 UNDER SECTION 145 (1) CR.PC.** - **ANNEXURE 2 TRUE COPY OF THE PLAINT DT. 15/11/14 IN OS 925/14. ANNEXURE 3 TRUE COPY OF APPLICATION IN IA NO. 4624/14 DT. 15/11/14. ANNEXURE 4 TRUE COPY OF ORDER DT. 19/11/14 IN IA NO. 4624/14. ANNEXURE 5 TRUE COPY OF COUNTER AFFIDAVIT DT. 9/1/15 IN IA 4624/14. ANNEXURE 6 TRUE COPY OF DOCUMENT DT. 12/11/14. ANNEXURE 7 TRUE COPY OF JUDGMENT DT. 16/1/12 IN SA NO. 421/01. ANNEXURE 8 TRUE COPY OF WRITTEN STATEMENT DT. 19/11/14 FIELD BY THE 1ST RESPONDENT BEFORE THE 3RD RESPONDENT.** - **ANNEXURE 9 TRUE COPY OF ORDER DT. 13/7/15 IN MCI-264/14.** **RESPONDENT(S)' ANNEXURES :** **-------------------------------------------------** - **ANNEXURE R1(a) COPY OF THE ORDER DATED 10/10/2013 IN IA NO. 5349 OF 2013 IN OS NO. 887 OF 2013 PASSED BY THE HONOURABLE PRINCIPAL MUNSIFF COURT, NEYYATTINKARA.** - **ANNEXURE R1(b) COPY OF THE ORDER DATED 25/7/2014 IN OS NO. 887 OF 2013. ANNEXURE R1(c) COPY OF THE PLAINT IN OS NO. 419 OF 2014 FILED BEFORE THE 2ND ADDITIONAL MUNSIFF COURT, NEYYATTINKARA.** - **ANNEXURE R1(d) COPY OF THE ORDER DATED 19/8/2014 PASSED BY THE 2ND ADDITIONAL MUNSIFF COURT, NEYYATTINKARA.** - **ANNEXURE R1(e) COPY OF THE ORDER DATED 2/2/2015 PASSED BY PRINCIPAL MUNSIFF COURT, NEDUMANGADU IN IA NO. 4624 OF 2014 IN OS NO. 925 OF 2014.** - **ANNEXURE R1(f) COPY OF THE WRITTEN STATEMENT DATED 15/10/2014 FILED BY THE IST RESPONDENT BEFORE THE 3RD RESPONDENT.** **//TRUE COPY//** **P.A. TO JUDGE Mn** ## **B.KEMAL PASHA, J.** ================ Crl.M.C. No. 6202 of 2015 ======================= Dated this the 4[th] day of January, 2016 ## **O R D E R** Heard the learned counsel for the petitioners, the learned counsel for the 1[st] respondent, and the learned Public Prosecutor. 2. The right to possess as well as the right to conduct worship in a church is in question. The 1[st] respondent had filed O.S.No.419/2014 before the Munsiff's Court, Neyyattinkara, seeking declaration of title, possession as well as consequential injunction with regard to the church in question. Of course, the present petitioners were not made parties to the said suit. I.A.No.2309/2014 was filed in the said suit seeking an order of temporary injunction. Ultimately, the same was Crl.M.C. No. 6202 of 2015 -: 2 :- ## allowed through Ext.R1(d) order dated 19.08.2014. 3. It seems that the 1[st] respondent has got a case that after the passing of Ext.R1(d) order, there was an attempt from the part of the petitioners to snatch away the possession of the church by force. Consequently, the matter was complained of before the Police and the Police have reported the matter before the learned Sub Divisional Magistrate, Thiruvananthapuram. By invoking the power under Section 145(1) Cr.P.C, the learned Sub Divisional Magistrate, Thiruvananthapuram passed Annexure-1 order. Just after Annexure-1 order, the petitioners have rushed to the Munsiff's Court, Nedumangad through O.S.No.925/2014 seeking a decree of perpetual injunction against obstruction to their peaceful worship in the church, and their peaceful possession of the church and also against trespass etc. I.A.No.4624/2014 was filed in the said suit seeking an order of temporary injunction restraining the 1[st] respondent herein and others from causing any Crl.M.C. No. 6202 of 2015 -: 3 :- obstruction to the peaceful possession of the petitioners over the church and from conducting prayers in the plaint schedule church. At first, an order as prayed for was granted through Annexure-4 ex parte ad-interim order dated 19.11.2014. Subsequently, the 1[st] respondent entered appearance in the said suit and contested the I.A. Consequently, Ext.R1(e) order dated 02.02.2015 was passed by the Munsiff's Court, Nedumangad, whereby it was held that the documents produced by the 1[st] respondent herein reveal that the 1[st] respondent has some control over the plaint schedule property. At the same time, it is evident that the Munsiff's Court, Nedumangad has not finalised anything with regard to the right to have actual control, possession etc. over the property. The Munsiff's Court, Nedumangad has made clear in Ext.R1(e) that Annexure-4 order will not in any way affect the proceedings pending before the Sub Divisional Magistrate's Court, Thiruvananthapuram in the matter. Crl.M.C. No. 6202 of 2015 -: 4 :- 4. The learned counsel for the petitioners has found fault with the Munsiff's Court, Nedumangad in making those observations in Ext.R1(e) order. According to the petitioners, when the said civil dispute is pending before a competent civil court, the Sub Divisional Magistrate has no power of interference under Section 146(1) Cr.P.C in the matter. 5. Per contra, the learned counsel for the 1[st] respondent has pointed out that even the Munsiff's Court, Nedumangad was not aware of the identity of the person, who was in actual possession or control over the church at the time of passing Ext.R1(e) order and that is the reason why the said court has made clear that Annexure-4 order passed by the said court will not in any way affect the proceedings before the learned Sub Divisional Magistrate in the matter. 6. The learned counsel for the petitioners has invited the attention of this Court to the decision in **Ashok Kumar v. State of Uttarakhand and Others** Crl.M.C. No. 6202 of 2015 -: 5 :- [2013 (3) SCC 366] and argued that when the reports indicate that one of the parties is in possession, rightly or wrongly, the sub Divisional Magistrate cannot pass an order of attachment under Section 146(1) Cr.P.C. 7. On going through Section 146(1) Cr.P.C., it is evident that if the Magistrate, at the time of making an order under Section 145(1) Cr.P.C., considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in Section 145, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. 8. As rightly pointed out by the learned counsel for the 1[st] respondent, at the time of exercising the powers under Section 145(1) Cr.P.C, there was actually nothing before the learned Sub Divisional Magistrate to decide Crl.M.C. No. 6202 of 2015 -: 6 :- as to who was the actual person in possession or who was the actual person entitled to possess the property in dispute. Two civil suits are pending in the matter. Of course, it is true that in the first suit filed by the 1[st] respondent, the petitioners were not made parties. At the same time, it is a fact that there is an order of temporary injunction in the said suit in favour of the 1[st] respondent herein. Similarly, an order of temporary injunction is in force as contained in Annexure-4 in favour of the petitioners herein in the suit pending before the Munsiff's Court, Nedumangad. Still, the matter has not been finalised. The matter has not been finally adjudicated to decide as to who is in actual possession of the property or as to who is the person entitled to possess the property. In such case, till the matter is decided by the competent civil court, the order of attachment passed by the learned Sub Divisional Magistrate, Thiruvananthapuram under Section 146(1) Cr.P.C has to be sustained. It is not only Crl.M.C. No. 6202 of 2015 -: 7 :- a case of emergency; but it is a case wherein there is absolutely nothing to show at present as to who is the person in possession or as to who is the person entitled to possess the property. In such case, unless and until the said question is decided by the competent civil court, Annexure-9 order passed by the learned Sub Divisional Magistrate, Thiruvananthapuram has to continue. In **Ashok Kumar's case** (supra), it was held in paragraphs 10 and 11 are as follows: “10. The ingredients necessary for passing an order under Section 145(1) of the Code would not automatically attract for the attachment of the property. Under Section 146, a Magistrate has to satisfy himself as to whether emergency exists before he passes an order of attachment. A case of emergency, as contemplated under Section 146 of the Code, has to be distinguished from a mere case of apprehension of a breach of the peace. The Magistrate, before passing an order under Section 146, must explain the circumstances why he thinks it to be a case of emergency. In other words, to infer a situation of emergency, there must be material on record before the Magistrate when the submission of the Crl.M.C. No. 6202 of 2015 -: 8 :- parties is filed, documents produced or evidence adduced. 11. We find from this case that there is nothing to show that an emergency exists so as to invoke Section 146(1) and to attach the property in question. A case of emergency, as per Section 146 of the Code has to be distinguished from a mere case of apprehension of breach of peace. When the reports indicate that one of the parties is in possession, rightly or wrongly, the Magistrate cannot pass an order of attachment on the ground of emergency. The order acknowledges the fact that Ashok Kumar has started construction in the property in question, therefore, possession of property is with the appellant Ashok Kumar, whether it is legal or not, is not for the SDM to decide.” 9. It is true that when O.S.No.925/2014 was filed, the key of the church was with the learned Sub Divisional Magistrate, Thiruvananthapuram. Therefore, it is evident that even at the time of passing Annexure-4 order, the petitioners cannot forward a valid claim that they were occupying the church in question or they were in actual possession of the church in question. Crl.M.C. No. 6202 of 2015 -: 9 :- They cannot be heard to say that as on the date of filing of the said suit and the date of passing of Annexure-4 order, they were conducting worship in the church since key of the church was with the learned Sub Divisional Magistrate. Matters being so, presently, there is absolutely nothing to interfere with Annexure-9 order, which is under challenge. Even though the petitioners are presently challenging the legality of Ext.R1(e) order, it seems that the said order has not been challenged before the appropriate appellate forum. Matters being so, the Crl.M.C. is devoid of merits and is only to be dismissed, and I do so. In the result, this Crl.M.C. stands dismissed. Sd/- **B.KEMAL PASHA, JUDGE** stu/05.01.2016