The Bombay High Court allowed a writ petition under Article 226 of the Constitution seeking a Writ of certiorari to quash and set aside an order dated 28.12.2022 passed by the District Magistrate under Section 144 of the Code of Criminal Procedure, 1973, banning the Petitioner from carrying out religious activities in her institutional building.
The Court observed that prohibiting the Petitioner and Dominic from carrying out any religious activities on their property is a direct violation of their fundamental rights enshrined in Article 19(1), Articles 25 and 26 of the Constitution of India.
Brief Facts:
The Petitioner, along with her husband, is carrying out religious activities on the premises at Tropawaddo, Goa for the last 23 years, and engaged in preaching to the public at large, scriptural teachings from the Holy Bible. The Petitioner claimed that she is a follower of Jesus Christ and in the 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.
It is the Petitioner's case that by the impugned order dated 28.12.2022 issued by the District Magistrate, her fundamental rights to freedom of conscience and to freely profess, practice, and propagate her religion have been infringed; that the impugned order 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. The Petitioner alleged that the District Magistrate proceeded without any material before him and passed the impugned order only to favor a group of persons in the village who are opposed to the Petitioner's presence in the locality.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner argued that the impugned order is arbitrary and contrary to the provisions of Article 14 of the Constitution of India as it did not afford the Petitioner any hearing before it was passed. Further, he argued that the impugned order was in direct contravention of the Petitioner's fundamental rights under Article 25(1) guaranteed under the Constitution of India since it amounted to interference and infringement of the Petitioner's right to freely practice, profess and propagate any religion.
Contentions of the Respondent:
The Learned Counsel for the Respondent argued that the Petitioner had an alternate remedy in terms of filing a Criminal Revision Application, and that having not exercised the alternate remedy, this Court should not interfere with the impugned order. Further, he contended that the impugned order was passed to maintain public order in the area, as otherwise, a law and order situation might have been created if the Petitioner and Domnic were not restrained by the passing of the impugned order.
Observations of the Court
The Court observed that the impugned order is violative of the principles of natural justice as it was passed without affording the Petitioner any opportunity of rebutting the allegations or dealing with the contents of the report based on which the same came to be passed.
Further, the Court said that there are other penal laws that could deal with such complaints against the Petitioner, and such complaints, by themselves, could not be a cause for the District Magistrate to exercise jurisdiction under Section 144 of the Code. By means of exercising the jurisdiction under Section 144 of the Code and prohibiting the Petitioner and Domnic from carrying out any religious activities on their property is a direct violation of their fundamental rights enshrined in Article 19(1), Articles 25 and 26 of the Constitution of India.
The Court remarked that even if the Petitioner had an alternate remedy at law, there would be no fetters placed upon the Court from exercising its jurisdiction under Article 226 of the Constitution of India to protect and uphold the Petitioner's fundamental rights.
The decision of the Court:
The Bombay High Court, allowing the petition, held that the impugned order dated 28.12.2022 is quashed and set aside.
Case Title: Mrs. Joan Mascarenhas E D'Souza vs State of Goa & Ors.
Coram: Hon’ble Justice M.S. Sonak and Justice Valmiki SA Menezes
Case no.: CRIMINAL WRIT PETITION NO.63 OF 2023
Advocate for the Petitioner: Mr. Ankur Kumar
Advocate for the Respondents: Mr. Pravin Faldessai
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