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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.S. Sonak, Valmiki Sa Menezes, JJ.
Joan Mascarenhas E D'souza – Appellant
Versus
State of Goa – Respondent
Criminal Writ Petition No. 63 of 2023
Decided On : 19-05-2023
FREEDOM OF RELIGION - VIOLATION OF FUNDAMENTAL RIGHTS - Sec. 144 of the Code of Criminal Procedure, 1973 - Summary of Acts and Sections: Sec. 144 of Cr.P.C. - The court quashed and set aside an order passed by the District Magistrate under Sec. 144 of the Code of Criminal Procedure, 1973, which banned the Petitioner from carrying out religious activities in her institutional building. The court found that the impugned order was passed without jurisdiction and in violation of the principles of natural justice, and it infringed upon the Petitioner's fundamental rights under Article 19(1), Articles 25 and 26 of the Constitution of India.
Fact of the Case:
The Petitioner, a follower of Jesus Christ, sought to quash an order passed by the District Magistrate under Sec. 144 of the Code of Criminal Procedure, 1973, which banned her from carrying out religious activities in her institutional building. The Petitioner claimed that the impugned order infringed upon her fundamental rights to freedom of conscience, speech, and expression, and was passed without jurisdiction and in violation of the principles of natural justice.
Finding of the Court:
The court found that the impugned order was passed without jurisdiction and in violation of the principles of natural justice. It concluded that the order was a direct violation of the Petitioner's fundamental rights under Article 19(1), Articles 25 and 26 of the Constitution of India.
Issues: The main questions raised in the petition were whether there was any material before the District Magistrate to exercise jurisdiction under Sec. 144 Cr.P.C., whether the District Magistrate was within his jurisdiction bounds in passing the order to curb religious conversions, and whether the impugned order violated the principles of natural justice and the Petitioner's fundamental rights.
Ratio Decidendi: The court held that the impugned order was passed without jurisdiction and in violation of the principles of natural justice. It further concluded that the order was a direct violation of the Petitioner's fundamental rights under Article 19(1), Articles 25 and 26 of the Constitution of India.
Final Decision: The court quashed and set aside the impugned order passed by the District Magistrate, North Goa against the Petitioner. The Rule issued in the main petition was made absolute, and all Criminal Misc. Applications were disposed of.
JUDGMENT
VALMIKI SA MENEZES,J. - Rule. Rule is made returnable forthwith. The petition is disposed of at the admission stage with the consent of the parties.
2. This petition, filed under Article 226 of the Constitution of India, seeks a writ of certiorari to quash and set aside order dtd. 28/12/2022 bearing No.8/8/2021-MAG/L&O/(Vol.II)/4084 passed by the District Magistrate (North); the order impugned in this petition is one passed by the District Magistrate under Sec. 144 of the Code of Criminal Procedure, 1973 and bans the Petitioner from carrying out religious activities in her institutional building situated in property bearing Survey No.221/8A and House No.302/4, situated at Tropawaddo, Sodiem, Siolim, Bardez Goa, to curb religious conversion by means of allurement or fraud affecting the freedom of religion and conscience of citizens.
3. The case of the Petitioner as stated in the petition is that the Petitioner along with Mr. Domnic D'Souza, her husband, is carrying out the religious activities in the aforementioned premises at Tropawaddo, Sodiem, Siolim, Bardez Goa for the last 23 years, and engaged in preaching to the public at large, scriptural teachings from the Holy Bible. The Petitioner claim that she is a follower of Jesus Christ and in exercise of her fundamental rights guaranteed under Articles 25 and 26 of the Constitution of India, she had formed a group or a society, through which she and Domnic preach and propagate their religion and belief to the general public.
4. It is the Petitioner's case that by virtue of the impugned order dtd. 28/12/2022 issued by the District Magistrate, North Goa (Respondent No.3), at the behest of a report received from the Respondent No.6 - Superintendent of Police, her fundamental rights to freedom of conscience and to freely profess, practice and propagate her religion have been infringed; that the impugned order has further infringed upon her fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India by curtailing her right to express herself within the institutional building. It is further the Petitioner's case, that the impugned order is arbitrary, passed contrary to the provisions of Sec. 144 of the Code of Criminal Procedure (Cr.P.C.), and that it has been passed in total violation of the principles of natural justice, without giving the Petitioner any hearing.
5. It is further the Petitioner's case that the impugned order passed under Sec. 144 Cr.P.C. is totally without jurisdiction and not based upon any material to support the satisfaction recorded by the District Magistrate, before passing prohibitory directions against the Petitioner; it is also the Petitioner's case that the impugned order is blatantly illegal and passed upon erroneous facts, only to satisfy the whims of a group of people in the village of Sodiem, who are not in acceptance of the Petitioner's religious beliefs and who see the Petitioner as competition to another religious faction or group. The Petitioner alleges that the District Magistrate has proceeded without any material before him and has passed the impugned order only to favour a group of persons in the village who are opposed to the Petitioner's presence in the locality.
6. In reply to the allegations made in the petition, the Respondent No.4 - Superintendent of Police, North District, Mr Nidhin Valsan has filed an affidavit dtd. 31/1/2023 opposing the admission of the petition mainly upon the following facts:-
(a) That the office of the Superintendent of Police had received a report dtd. 21/11/2022 from the Police Inspector, Mapusa Police Station which records 8 FIRs. registered against the Petitioner and Domnic D'Souza, from the year 2009 to the year 2022; that the report alleges that the Petitioner and Domnic organize pubic gatherings and carry out religious activities, including activities of forceful conversions, in the name of prayer and healing, at the premises situated in Survey No.221/8A of Vi
The impugned order was passed without jurisdiction and in violation of the principles of natural justice, and it infringed upon the Petitioner's fundamental rights under Article 19(1), Articles 25 an....
The court held that the provisions of Section 144 CrPC are attracted only in an emergency and that the initial judge of the emergency is the District Magistrate.
The right to practice religion is guaranteed under Article 25 of the Constitution of India, but it is subject to reasonable restrictions for public safety and to avoid potential religious clashes.
The duty of the authorities to protect the fundamental rights of citizens and the need for effective implementation of laws to prevent infringement of rights.
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