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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\l .P.(C .Nos.37645 37713 37742 I I

3 4 , 37751 & 37760 of 2018

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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

W,P.(C).Nos,3764-S 31 1 37746, 37751 & 37760 of ~

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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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....

4. ~ Q~mollm 15111/2018 m,<&a>m::>tc1 0JtU>d 22111/2018 «Je!&&>ft>:>lC1 nJQft> {n.J:>QUQJJo QGll:>cs»1m1c&Qlcmc:>ri.

ir-) Q«M»«>nl' ~ccm e1rum.>o ~m QO QQAQCiP~:PQIJ~ eitacs»:>~o mddb 1cs»1m1c8QJITT)J.·

3.. c.e'11Jm1mQI a<&c.em«rm>1m n(i}«JrtlJcm ci<&QD:>Sdb<&c&Q crum:>w:>mn.Jmm:>o» e<&c.emo, m,rum1Qs nJ::>n.OffiA'Si}lQS OUJCl>2l2l::>o» m.>'1!l.l::>ft>o n(i}cm1ru m1c«>:>wm:>NJ)o»1d m1<mJo '3~ru::>c8Q1CSD1m1c8Q1cm1.

2, ~Qln.JJebd 0JGd crucm1w:,mo nJQct> l~m:>o»~~. m:><&~. mg m1CSDmnflm1QD a«MIJ6'SQJJdb~ ftij)cm1ruCSDlo m1cm::>w1~m1cBQJ<mJ.

1. c.emim1mQI e<&c.em(Uffl)1m ~fflTtJ),cm Gi ~A~QS m>o<bc&afQT>o ~o~\f)c8Qlcmcm1mlo lA~m>~:>w:>mo m1Qlm1~mm,1 &ffi68GiUQS rllrum,o m.um1(l)Jo Cl'Uo<bcftaf '1Do meJ dl,JrmD1CQJcBQJo ~)QJ~Cd m.>o<b~IBQJ<mC1CQlcBQJo n.JcnJ:> Cn.J:>QJlCT\.) ~~cf> n.JC'>1W1(1},)1d §DQIOJJebd 0JCd crucm1w:>mo ru <'>Cl»lQS.l n4>iP ln.JCB<.e68l3i1QJJo, 0JY' ,rurt c :>~Ai~o. ~n.JCO:>CWJAi1QJJo ldb 1,zl1md msn.JS'l(Aeo rudbJ~ 144 {n.JA::>«>o ~ 6effiJ:lo»iiroo»1 m.>onQlo C.A.l(OJ<m(U)Jo, ln.JdbSmo, ~QlC(U):>fl>o n(i)cm1ru ms«MS>J<mCJo m1cm:>w1~ iJG1m:>d Q~«>nJ:>AJ<mJ.

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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,,· .v

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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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W.P.(C).Nos.37645, 37713, 37742, 37746, 37751 & 37760 of 2018


"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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W.P.(C).Nos.37645, 37713, 37742, 37746, 37751 & 37760 of 2018


(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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W.P.(C).Nos.37645, 37713, 37742, 37746, 37751 & 37760 of 2018


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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w.P.(C).Nos.37645, 37713, 37742, 37746, 37751 & 37760 Of 2018


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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W.P.(C).Nos.37645, 37713, 37742, 37746, 37751 & 37760 of 2018


"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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W,P.( ).No . 7645, 37713, 37742, 7 4 , 7 l & 37760 of 2018 I

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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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37746, 37751 & 37760 of 2018

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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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w.P.(C).Nos.37645, 37713, 37742, 37746, 37751 & 37760 of 2018


-

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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W P.(C).Nos.37645, 37713, 37742, 37746, 37751 & 37760 of 2018

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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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W p (C).Nos.37645, 37713, 37742, i7461 37751 & 37760 of 2018

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p.r.ramachandra menon n.anil kumar, · pilgrimage half the way at erumeli. it was allegedly because...

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