IMPORTANT POINT
The Magistrate may, at the final stage after evidence is let in, mayor may not come to a different finding. Before it the High Court declined to interfere under the inherent jurisdiction.

JUDGMENT

K.T. Thomas, J.-Juma Masjid Mosque and Hidayathul Madrassa situated in Perakkamanna village in Eranadu Taluk, unfortunately, became the subject matters in a dispute between two factions of the Muslim community of the said village. One faction is called the 'Sunnis' and the other is called the 'Mujahids'. When the dispute reached an explosive situation the police feared imminent and severe breach of the peace. Hence the local police intervened and initiated prosecution proceedings against the members of the rival factions. Later they filed a report for taking preventive steps against some persons, and on the basis of the said report, the Sub Divisional Magistrate, Perintalmanna commenced proceedings under section 145(1) of the Code of Criminal Procedure (for short 'the Code'). He arrayed some of the members of the rival factions into two groups, one group in the 'A' Party, and the other in the 'B' Party and directed them as per his preliminary order to attend his court on a date specified therein to file written statements and documents in support of their rival claims with regard to the possession of the said buildings. The Sub Divisional Magistrate passed a further order under section 146(1) of the Code attaching the buildings involved in these proceedings and appointed the local village officer as the Receiver. Those two orders are under challenge here by the first named person in the 'A' Party.

2. The dispute arose between the two wings on the use of Malayalam language during the delivery of 'Kuthuba' (sermon) in the 'Juma' worship offered on all Fridays. The 'A' Party adopted the stand that worship and the discourse should be in Arabic only. On the other hand the 'B' Party contended that though the delivery of Kuthuba can be fn Arabic, its Malayalam rendering also should be separately delivered. This was not acceptable to the A Party. The aforesaid dispute grew wider in course of time and members of the each faction began treating the other as rivals or even enemies and consequently, criminal cases had to be registered by the police against some of those members.

3. Sri. Sugunapalan, learned counsel for the petitioner contended that since the dispute in this case is only regarding the right of user of the Mosque and the Madrassa, proceedings could have been initiated only under section 147 of the Code. If it is so, according to the learned counsel, the attachment under section 146 of the Code would be without jurisdiction. In support of his contention learned counsel refused me to the decision reported in Ahammedkutty v. Kunjavaran1. A single Judge of this Court had occasion to consider a dispute which is almost similar to the one involved in this case between two rival parties in respect of a Mosque. It was held that in such circumstances the proper section that should apply is section 147 and not section 145. Consequently, this Court set aside the order of attachment passed under section 146 of the Code.

4. In answer to the above contention Shri Sreedharan Nair, learned counsel for the contesting respondents, argued that if the dispute is only regarding the right of user of the masque and madrassa, he too would concede that action can be taken only under section 147 of the Code. In this case according to the learned counsel, the dispute has gone from the stage of mere right of user into one of possession by lapse of time and that the learned Sub-Divisional Magistrate was satisfied that the conditions necessary for initiation of action under section 145 of the Code have been in existence.

5. Proceedings under section 145 of the Code can be invoked when a dispute "exists concerning any land" which is likely to cause breach of the peace. "Land" includes buildings as well. Proceedings under section 147 can be initiated when a dispute exists "regarding any alleged right of user of any land" which is likely to cause breach of the peace. Though the distinction between the two fields is subtle, it is real. Sometimes the