For DM To Take Suo Moto Action, Likelihood Of Disturbance To Peace Essential: Bombay HC Stays Order Restricting Entry To Jalgaon Mosque

In the pertinent matter, the District Magistrate passed an order dated July 11, 2023, upon the Pandavwada Sangharsh Samiti’s (PSS) request that the alleged structure resembled like a Hindu Temple rather than a mosque. Thus challenging the order Altaf Khan Nayyum Khan, President of the JUMMA MASJID TRUST COMMITTEE filed the present petition before the High Court.

“Prima facie perusal of the order impugned shows that there is no finding recorded about the Authority being satisfied that there is likelihood of breach of peace on account of alleged dispute. Even if the contention of learned P.P. is accepted that in the operative part of the order there is mention about law and order situation, apparently there is no apprehension spelt-out of any likelihood of causing breach of peace. Section 144 of Cr.P.C no doubt provides the powers to the District Magistrate even to take suo moto action, however, existence of likelihood of causing of disturbance of public peace or tranquility is sine qua non to assume such power. In prima facie opinion of this Court for want of such findings, being recorded makes impugned order vulnerable and not sustainable in law”, a bench of Justice R.M. Joshi observed in the matter.

Senior Advocate V. D. Hon appeared for the petitioner and PP S. S. Kazi appeared for the respondents.

Earlier, a Division Bench of the High Court through its order dated July 13, 2023, was of the opinion that as the impugned order has been passed by a quasi-judicial authority i.e. District Magistrate under Section 145 of the Code of Criminal Procedure, therefore the matter should lie before a Single Judge Bench.

In this case, the respondents also challenged the maintainability of the petition by contending that there is a remedy made available by Section 144(4) and (5) of Cr.P.C. against the impugned order.

It was submitted by the petitioner that the impugned order was passed by invoking provisions of Sections 144 and 145 of CrPC without recording any findings about the likely breach of peace, which is essential to take assume suo moto power.

However, the respondent-State submitted that the proceedings are instituted under the provisions of the Bombay Government Premises (Eviction) Act, 1955 on the basis of a complaint made by Respondent No. 9.

It was further submitted that for the purpose of invoking Sections 144 of Cr. P.C there is no need for any report to be made to the District Magistrate and such powers can be exercised even suo moto. The State further argued that in the operative part of the order apprehension of breach of public peace was clearly spelt-out.

The counsel for the Samiti submitted that it was a case of encroachment on Government property. and the High Court cannot entertain such a petition at the stage as it was an ad-interim order and proceedings are still pending before the District Magistrate.

The Court, therefore, on maintainability noted, “Perusal of the relevant provisions do not show that any appeal is provided against interim order passed by District Magistrate under Section 144(1) of CrPC. The remedy of filing an application before the same authority or before the State Government for alteration of the order cannot be equated with an Appeal. Hence, prima facie this Court finds that for want of efficacious remedy Petition is tenable and hence, there is no substance in the objection raised regarding maintainability of the Petition”.

The Court will next hear the matter on August 1, 2023.

Cause Title: Jumma Masjid Trust Committee Through Its President Altaf Khan Nayyum Khan v. The State Of Maharashtra And Others