VENU SRINIVASAN Vs. KRISHNAMACHARI

JUDGEMENT

(1.) LET us give hereunder the details of the proceedings listed before us: The 9th respondent, 6th respondent, 10th respondent, 7th respondent and 8th respondent in W. P. No. 13382/2005 are the appellants in the various writ appeals. In the writ petition, a learned Judge of this court passed a final order on 15. 06. 2005, having regard to the materials brought to his notice, directing the State Government (first respondent therein) to register the offence relating to destroying a Sivan Sannathi in Azhagiya nambirayar Temple, Thirukurungudi, Nanguneri Taluk, Tirunelveli District against respondents 5 to 10; investigate the said offence against the said respondents and proceed in accordance with law, in order to prevent miscarriage of justice. In W. P. No. 23178/2004, the writ petitioner prayed for a mandamus directing respondents therein to re-install the idols of Siva, Murugan and vinayagar in it's original place from where they were removed in Arulmighu Azhagiya Nambirayar Perumal Temple at Thirukurungudi, Tirunelveli District by considering the representation dated 30. 07. 2004. In W. P. No. 23193/2004, another person is before this court for a mandamus directing the respondents therein to restore the Sivan Temple just in front of Veetrindha nambi Sannathi in Azhagiya Nambirayar Temple at Thirukurungudi, Nanguneri Taluk in Tirunelveli District. W. P. No. 704/2004 is by another individual seeking a mandamus to restore the Sivan Sannathi as prayed for in the earlier writ petition. In W. P. No. 1002/2004, the prayer is for a mandamus directing the Commissioner, H. R. & C. E to conduct an enquiry into the irregularities in the demolition and removal of Siva idol from arulmughu Azhakiya Nambirayar Perumal Thirukovil, Tirukurungudi, in the light of the show cause notice dated 06. 08. 2004 mentioned therein. In w. P. No. 2246/2004, another individual is before this court seeking a mandamus directing respondents 1 to 7 therein to take appropriate action to re-install the idol of Lord Siva in accordance with Agama Sasthra in the same place from where it was removed in Arulmighu Azhagiya Nambirayar Perumal Temple at Thirukurungudi Village, Tirunelveli district. In W. P. No. 18450/2005, the writ petitioner, who is also the petitioner in one of the writ petitions, is before this court seeking a writ of certiorari to quash G. O. Ms. No. 55 TDC & RE Department dated 08. 04. 2005. There is a suit pending as O. S. No. 288/2004 on the file of the District Munsif, Nanguneri. That suit is for a declaration that the act of demolishing the shrine of Lord Siva in Azhagiya Nambirayar Temple at Thirukurungudi and constructing it to install the deity in a different place is bad in law and for a consequential direction to re-install the deity in the original place in Arulmighu Nambirayar Temple itself. That suit is still pending. Pending suit, the plaintiffs filed i. A. No. 194/2004 under order 39 Rule 1 of the Code of Civil Procedure and the defendants filed an application, which was yet to be numbered, questioning the jurisdiction of the court. The learned trial Judge granted an order on 06. 08. 2004 in I. A. No. 194/2004, which is in challenge before this court by the first defendant therein in C. R. P. No. 26/2004. The first defendant therein is once again before this court in C. R. P. No. 27/2004 challenging the order dated 06. 08. 2004 in the un-numbered interlocutory application. On 09. 08. 2004 in c. M. P. No. 80/2004 in C. R. P. No. 27/2004, a learned Judge of this court suspended the order dated 06. 08. 2004 in I. A. No. 194/2004. Pending W. P. Nos. 23178/2004 and 23193/2004, interim orders were prayed for in W. P. M. P. No. 28044/2004 & 28065/2004. A learned Judge of this court by order dated 19. 08. 2004 passed an order in those W. P. M. Ps. , having regard to the order passed by this court on 09. 08. 2004 in C. M. P. No. 80/2004 in C. R. P. No. 27/2004, that the petitioners in those two writ miscellaneous petitions must work out their rights only in the pending civil revision petition. This court is informed that when w. A. No. 1204/2005 was listed before the Hon'ble First Bench, as requested by the learned senior counsel appearing for the appellant in the appeal, the Hon'ble first Bench directed the grouping of all the above proceedings for disposal by a Bench of this court and accordingly all the cases are before us.

(2.) MR. K. Parasaran learned senior counsel appearing for the writ appellant in W. A. No. 1204/2005 would submit that the writ petition itself came to be disposed of containing the directions as referred to above at the admission stage itself, after hearing the learned counsel for the writ petitioner and the learned Government Advocate appearing for respondents 1 to 4 therein. Such a direction given in the order passed at the time of admission itself is causing irreparable injury not only to his client but also to others who are similarly placed like the writ appellant. According to the learned senior counsel, since his client and others who have suffered the order were made as parties to the writ petition, had they been heard by the learned single judge, then the learned Judge would not have passed the order in challenge. Learned senior counsel would contend that even assuming that the direction contained in the order in challenge can be sustained, even then he would be in a position to convince this court that on facts placed before court, no offence at all is made out. Learned senior counsel would then contend that, even assuming for a moment without conceding, that on the day when the idol of Lord siva was shifted, an offence was committed, even then when the Government passed G. O. Ms. No. 55, it must be held that the act of shifting the idol stands ratified and therefore the impact of the Government Order to the given situation would lead this court to hold that no offence at all is committed even at the inception. Learned senior counsel would then submit that shifting of Lord Siva's shrine as well as Lord Siva from the old place to a new place is in accordance with Agama Sasthras and if it is so, then it must be necessarily held that such an act would not attract any offence at all either under Central act 42/1991 or under the provisions of the Indian Penal Code. Learned senior counsel would then argue that since G. O. Ms. No. 55 is in challenge and the comprehensive suit in O. S. No. 288/2004 questioning the legality or otherwise of the shifting of the idol of Lord Siva from the Temple is pending before competent courts of law, investigation has to necessarily await the verdict in those proceedings and according to the learned senior counsel, it is not possible at this stage to say whether the verdict in both those proceedings or in any of those proceedings would have or would not have an impact on the investigation into the crime, which is alleged to have been committed.

(3.) AS noted earlier, all these writ appeals are directed against the final order dated 15. 06. 2005 in W. P. No. 13382/2005 directing the state to have the complaint registered and investigated. The complaint is referable to the complaint-dated 05. 04. 2005. We perused that complaint. Shifting the idol, according to the materials on record, was on 01. 06. 2004. The offence complained of centres around shifting of the idol of Lord Siva from it's original shrine located within the temple precincts of Azhagiya Nambirayar temple to a new place. According to the complaint, without prior approval (See rule 31 of the Management and Preservation of Properties of Religious Institutions rules), the idol had been shifted, such shifting also violates section 3 of central Act 42/1991 and is also an offence under the Indian Penal Code (obviously referring to sections 295 and 295-A of the IPC ). In this context, we just recollect the arguments advanced by Mr. K. Parasaran learned senior counsel, who contended that on the facts made available, no offence at all is made out. According to him, the written permission contemplated either under Rule 31 or under Rule 52 of the Management and Preservation of Properties of Religious institutions Rules do not necessarily mean prior written permission. A reading of those Rules do not exclude written permission being given subsequent to the act. If that is so, then the Government Order issued in this case and challenged in one of the writ petitions referred to earlier would validate the act of removal. Therefore prima facie, neither Rule 31 nor Rule 52 of the above referred to Rules would stand violated. It is his further submission that even assuming that the Government Order challenged in one of the writ petitions is quashed since the said Government Order had already validated the act complained of, the subsequent quashing of the Government Order would not revive the act complained of to be treated as an offence. It is also his further submission that to attract section 295 of the Indian Penal Code, the act must be done with an intention to insult the religion, etc. . . . . . or with the knowledge that the act complained of is likely to be considered as an insult to the religion. According to the learned senior counsel, to attract section 295-A of the Indian Penal Code, the act complained of should be shown to have been done with a deliberate and malicious intention of outraging the religious feelings of any class, etc. . . . . . Therefore learned senior counsel would submit that if in the pending suit a decision is given against the plaintiffs therein, then it is open to his client to contend that the ingredients of section 295 & 295-A of the Indian Penal Code are not attracted. Even otherwise, the learned senior counsel would contend that the ingredients of sections 295 and 295-A are not attracted at all. AS far as violation of the Statutory bar contained under section 3 of Central Act 42/1991, learned senior counsel would refer to section 7 of the said Act, which declares that the said Act has an overriding effect on other enactments. In other words, according to the learned senior counsel, Central Act 42/1991 has an overriding effect only over other enactments. Whether Central Act 42/1991 would have an overriding effect on the age-old religious customs, faith, principle or Agama Sasthras, is a question still open to be argued. Since we have come to the prima facie conclusion that the suit must be allowed to be disposed of first, we informed Mr. K. Parasaran, learned senior counsel that we will reserve all the points raised by him in contending that no offence at all is made out to be raised later in point of time, if a need for the same arises after the disposal of the suit and the learned senior counsel fairly agreed for such a course. At the risk of repetition, we state that the decision in the pending suit is likely to give an answer to various legal issues involved in the other proceedings. If the trial court dismisses the suit on merits, the question that would follow is, would the offences complained of still survive or not? Again the question whether the offence would still survive or not would have to await the decision of this court in W. P. No. 18450/2005 where G. O. Ms. No. 55 dated 08. 04. 2005 is in challenge.