U.Kalanathan Charvakam v. The Superintendent of Police, Malappuram, Circle Inspector of Police, Chemmad at Tirurangadi, Sub Inspector of Police Chemmad at Tirurangadi, Harish R. Menon (Joint Receiver), T.K. Vipindas (Joint Receiver) and Additional Respondent No.6 Krishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 01ST DAY OF JUNE 2020 / 11TH JYAISHTA, 1942** ## **WP(C).No.13481 OF 2013(S)** ## **PETITIONER:** **U.KALANATHAN CHARVAKAM, VALLIKUNNU, MALAPPURAM - 673 314.** **BY ADVS.SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.THOMAS T.VARGHESE** ## **RESPONDENTS:** **1 THE SUPERINTENDENT OF POLICE, MALAPPURAM 676 505.** - **2 THE CIRCLE INSPECTOR OF POLICE, CHEMMAD AT TIRURANGADI 676 306.** - **3 THE SUB INSPECTOR OF POLICE CHEMMAD AT TIRURANGADI 676 306.** - **4 HARISH R.MENON ADVOCATE, HIGH COURT OF KERALA, ERNAKULAM 682 031. (JOINT RECEIVER OF MUNNIYUR KALIYATTAKAVU AMMANCHERI BHAGAVATHI DEVASWOM)** - **5 T.K.VIPINDAS ADVOCATE, HIGH COURT OF KERALA, ERNAKULAM 682 031. (JOINT RECEIVER OF MUNNIYUR KALIYATTAKAVU AMMANCHERI BHAGAVATHI DEVASWOM)** - **Addl.6 KRISHNAN,** **PARANGODAN KIZHAKEPURAKEL, MUNNIYUR.P.O., MALAPPURAM.** **Addl.R6 IS IMPLEADED VIDE ORDER DATED 6.6.2014 IN IA NO.6880/2014.** **R6 BY ADV. SMT.M.H.BINDU R6 BY ADV. SRI.M.P.SREEKRISHNAN SR GP SRI SURIN GEORGE IPE FOR R1-R3** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)No.13481 of 2013** **2** ## **JUDGMENT** Dated this the 1[st] day of June, 2020 ## **S.Manikumar, C.J.** This is a Public Interest Litigation filed by a social worker who claims to be the President of the Kerala Yukthivadi Sanghom, a rationalist organisation established in 1979 and registered under Section 21 of the Societies Registration Act, 1860. The case of the petitioner is that the main object of the said society is to inculcate scientific temper, humanism and spirit of inquiry and reform which is one of the fundamental duties enshrined under Article 51A of the Constitution of India. The case projected by the petitioner is that the sacrifice of animals and birds in or in the precincts of Hindu temples in the State of Kerala is prohibited by the Kerala Animals and Birds Sacrifices Prohibition Act, 1968. However, such sacrifices are held in connection with the annual Kaliyattom festival of Munniyur Kaliyattakavu Ammancheri Bhagavathi Temple. 2. This writ petition was filed at a time when sacrifices were scheduled to be held on 31.5.2013. It is the case of the petitioner that even though Ext.P2 representation was submitted before the District Superintendent of Police, Malappuram with copies to the Circle Inspector of Police, Chemmad and Sub Inspector of Police, Chemmad, no action was initiated so as to redress the grievance of the petitioner. **W.P.(C)No.13481 of 2013** **3** 3. Therefore seeking direction to respondents 1 to 3 to take appropriate and effective action on Ext.P2 representation and prevent animal and bird sacrifice in connection with Kaliyattom festival of the above specified temple, this writ petition has been filed. 4. Record of proceedings shows that a Hon'ble Division Bench of this court in the order dated 7.5.2013 in R.F.A.No.198 of 2006 has directed the Superintendent of Police, Malappuram to ensure that adequate police personnel are deployed at Munniyur Kaliyattakavu Ammancheri Bhagavathi Devaswom from 17.5.2013 onwards, during the Kaliyattom festival. 5. The Hon'ble Division Bench has further directed the Superintendent of Police to ensure that on the Kaliyattom day, the security arrangements are strengthened by deploying adequate number of additional police personnel, in order to prevent untoward incidents. The Hon'ble Division Bench has further directed the Superintendent of Police to ensure that appropriate action is taken against the persons who disrupt the festival. 6. Further, by order dated 30.5.2013, another Hon'ble Division Bench of this court, in R.F.A.No.198 of 2006 & 53 of 2007 and W.P. (C)No.13481 of 2013, has directed the police officials, covered by the direction issued by this court on 7.5.2013 in R.F.A.No.198 of 2006, to **W.P.(C)No.13481 of 2013** **4** ensure that they do not, in any manner, aid or provide cover for any act which would be illegal in terms of the provisions of the Kerala Animals and Birds Sacrifices Prohibition Act, 1968 and any other law for the time being in force. 7. Pending disposal of the writ petition, One Mr.Krishnan has filed I.A.No.6880 of 2014 for impleading himself as additional respondent No.6 in the writ petition and by order passed on 6.6.2015, impleading petition has been allowed. 8. On this day, when the matter came up for hearing, inviting the attention of this court to the provisions of the Kerala Animals and Birds Sacrifices Prohibition Act, 1968 (Act 20 of 1986) in particular Section 2(a) - precincts, Mr.Philip T. Varghese, learned counsel for the petitioner submitted that the definition to the word “precincts” is exhaustive. It includes a place near a temple, whether belonging to the temple or not. For brevity, Section 2(a) of the Act is extracted: “(a) “precincts”, in relation to a temple, includes all lands and buildings near a temple, whether belonging to the temple or not, which are ordinarily used for purposes connected with the worship conducted inside the temple or outside, and in particular the mandapams, prakarams, back-yards, front-yards and foot-yards of the temple, by whatever name called, and also the ground on which the temple car ordinarily stands.” 9. Section 2(b) of the said Act defines 'sacrifice' and the same **W.P.(C)No.13481 of 2013** **5** reads thus: “(b) “sacrifice” means the killing or maiming of any animal or bird for the purpose, or with the intention, of propitiating any deity.” 10. As stated supra, interim orders have been passed by Hon'ble Division Bench of this court to take appropriate action in terms of the provisions of the Kerala Animals and Birds Sacrifices Prohibition Act, 1968 and any other law for the time being in force. The Police Officer in charge of the area has been directed to take note of the provisions and directed to do the needful. 11. Though Mr.M.P. Sreekrishnan, learned counsel for the 6[th] respondent submitted that sacrifice made is customary and that people belonging to some community have the right to receive shares in the killed cocks and further contended that killing of cocks is not within the premises of the temple or with the intention of propitiating the deity, we are not inclined to delve into the factual aspects contended by the respondent No.6. Statute defines what precincts and sacrifice, mean. 12. Section 3 of the Act deals with sacrifice of animals and birds in temples or its precincts prohibited and the same reads thus: “3. Sacrifice of animals and birds in temples or its precincts prohibited.- No persons shall sacrifice any animal or bird in any temple or its precincts.” **W.P.(C)No.13481 of 2013** **6** ## 13. Section 5 of the said Act deals with temple or its precincts not ## to be allowed to be used for sacrifice and the same reads thus: “5. Temple or its precincts not to be allowed to be used for sacrifice.- No person shall knowingly allow any sacrifice to be performed at any place which- (a) is situated within any temple or its precincts, and (b) is in his possession or under his control.” ## 14. Section 6 deals with penalties and the same reads thus: “6. Penalties.- (1) Whoever contravenes the provisions of S. 3 shall be punishable with fine which may extend to three hundred rupees. (2) Whoever contravenes the provisions of S. 4 shall be punishable with fine which may extend to three hundred rupees. Provided that if the offender is an officer, servant, authority trustee or priest of the temple or the holder of any office in receipt of emoluments or perquisites for the performance of any service in the temple, he shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to three hundred rupees, or with both. (3) Whoever contravenes the provisions of S. 5 shall be punishable with simple imprisonment for a term which may extend to three months, or with fine which may extend to three hundred rupees, or with both.” ## 15. Section 7 deals with inquiry and trial and the same reads thus: “7. Inquiry and trial.- No offence punishable under this Act shall **W.P.(C)No.13481 of 2013** **7** be inquired into or tried by a court inferior to that of a Magistrate of the first or second class.” 16. Mr.Harish R.Menon, the then Joint Receiver of Munniyur Kaliyattakavu Ammancheri Bhagavathi Temple submitted that as per the judgment of this court in R.F.A.No.198 of 2006, the Revenue Divisional Officer is the present Receiver. The said submission is placed on record. 17. In this regard, the judgment rendered by the Apex court in **Smt. ASS Kaur (Deceased) By L.Rs v. Kartar Singh (Dead) By L.Rs. & Ors** [(2007) 5 SCC 561] is relevant to the context and paragraph 25 reads thus: “25. As statutory law did not exclude the applicability of the customary law, customary law would prevail over the statutory law. It was so found by the courts below.” 18. In **Ujagar Singh v. Jeo** [AIR 1959 SC 1041], it was held that the ordinary rule is that all customs general or otherwise have to be proved, but under Section 57 of the Evidence Act, 1872, nothing needs to be proved, of which the court can take judicial notice. It was also held that when a custom has been repeatedly recognised by the courts, it is blended into the law of land and proof of the same would become unnecessary under Section 57 of the Evidence Act, 1872. **W.P.(C)No.13481 of 2013** **8** 19. The principles of law laid down by the Apex Court as above and in the other judgments would make it clear that normally, all custom must be proved. However, where High Court recognises that custom is prevailing in the State and is legal and valid and decision to such effect remaining unchallenged and binding, the custom gets blended into law and proof thereof become unnecessary under Section 57 of the Evidence Act. But fact remains that, here is a case where, custom said to be enjoyed by a particular community, in the festival in question, is an act prohibited under the provisions of the Act 1968 by specifying that the sacrifice in killing of cocks for propitiating a deity is prohibited in the temple or within the precincts of a temple as defined under the Act. Therefore, even if assuming for argument sake, there exists a custom as claimed by additional 6[th] respondent, there cannot have any deleterious effect to the provisions of the Act 1968. 20. On a reading of the provisions of the Act, it is quite clear and evident that the Statute is constituted by the State Government with the noble object of eradicating such evils and socially inequitable propositions from the society. So much so existence and continuance of the so called custom is lacking elegance and refinement in the society. Matters being so, the Act 1968 must have overriding effect on the so called custom prevailing in the community. **W.P.(C)No.13481 of 2013** **9** 21. Reading of the provisions of the statute makes it clear that the killing or maiming of any animal or bird for the purpose, or with the intention, of propitiating any deity, is prohibited in or in the precincts of Hindu temples in the State of Kerala. Though respondent No.6 has contended that it is customary in nature, we are of the view that statute prevails over customs. It is for the authorities to examine as to whether killing of cocks in Munniyur Kaliyattakavu Ammancheri Bhagavathi Temple, falls within the definition of 'sacrifice' as averred and take appropriate action. We also make it clear that intention of the legislature, regarding sacrificing animals and birds in the temple or in precincts of the temple in the State of Kerala should be strictly followed and implemented in letter and spirit. Writ petition is disposed of with the above directions. Sd/- **S.Manikumar, Chief Justice** Sd/- **Shaji P.Chaly Judge** ## **vpv** **W.P.(C)No.13481 of 2013** **10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE ORDER OF THE HIGH COURT OF KERALA IN R.F.A.NO.198/2006 DATED 7.5.2013. EXT.P2: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DATED 24.5.2013.** ## **RESPONDENTS' EXHIBITS: NIL** ## **/TRUE COPY/** **P.A. TO JUDGE**