ORDER Amar Saran, J.
1. Heard the learned counsel for the applicant and the learned AGA.
2. The applicant is a Christian by birth. He claims to be taking part in the "Prarthna Sabha" that is conducted in the premises of the Mount Carmel School, Mission Compound, Mirzapur. This Criminal Revision has been filed for challenging an order passed by the City Magistrate, Mirzapur, dated 19-8-2004 under Section 144, Cr.P.C. By this order, the City Magistrate has, inter alia, restrained the assembly of five or more persons and the conduct of any meeting by them or raising of any objectionable poster or banner in between the Mission Compound to Mount Carmel School in the Ramai Patti Tiaraha of the Kotwali Shahar, Mirzapur. After hearing orders were reserved on the applicant's petition on 3-9-2004 by another bench. However, unfortunately on 10-9-2004 that bench released this case and directed it to be listed before another bench. Thereafter, it was placed before Hon'ble the Acting Chief Justice, who vide his order dated 14-9-2004 directed this case to be laid before me.
3. I would have been inclined to give a very short time to the learned AGA to file a counter affidavit in this case, but the difficulty is that the impugned order comes to an end on 18-9-2004 and this petition suffers the danger of becoming infructuous. In this view of the matter, the better course would be to remand this case to the learned City Magistrate, Mirzapur, for considering whether it would be appropriate to withdraw or to modify his earlier order under Section 144, Cr.P.C. in the light of the observations made by this Court hereinafter.
4. The City Magistrate mentions that the basis for his order dated 19-8-2004 is that there was a dispute between two bodies, i.e. the church situated in the Mission Compound and the Mount Carmel School. Initially this is suggested to be the cause of public disorder necessitating the framing of the order under Section 144, Cr.P.C. Thereafter it is stated that there were rumours that an attempt was being made by the church in question for indulging in conversions by means of their "Prarthna Sabha". Because of this, there was great resentment among the members of the Vishwa Hindu Parishad.
5. I would like the learned City Magistrate to examine whether there is no inconsistency between these two positions. Ordinarily it could be possible to countenance a threat to public order because two bodies who may belong to the same religion are fighting among themselves or alternatively in another situation public order may be endangered because one body is trying to engage in conversions, resulting in opposition by a group like the Vishwa Hindu Parishad or the Bajrang Dal. Both these situations are unlikely to arise in the same case.
6. It is important for maintaining the objectivity and fairness of the Magistracy that the public must not get the impression that a cause has been pre decided by the City Magistrate, or that he is under the influence of a particular group, and is determined to implement his decision at any cost, irrespective of the merits or justification for such a course of action.
7. Furthermore, there must be an objective basis and concrete material before the City Magistrate to reach his conclusion that public order was threatened in respect of both the issues which constitute the basis of this order. One, that there was a dispute between the two Christian bodies, i.e. the Church situated in the Mission Compound and the Mount Carmel School. In this connection in the affidavit filed by the petitioner in support of this Criminal Revision, the petitioner has stated that there was no civil or criminal dispute or litigation of any kind between the Mission Compound Church and Mount Carmel School. Two, there must be objective material that one of the bodies was engaging in unlawful conversions. This decision could not be based on the mere ipse dixit, subjective impression or surmises of a particular police officer or other official. Subject to reasonable restrictions which can be made by law for maintaining public order and for some other objectives such as maintaining the sovereignty and integrity of India, decency or morality, Articele 19(1)(b) of the Constitution gives all citizens a right to assemble peaceably and without arms.
8. In this connection, the learned counsel for the applicant has placed reliance on the case of Ram Gopal Tripathi v. Dr. Sarvajeet Herbert C.M.W.P. No. 19818 of 2003, decided on 8-5-2003 (Reported in 2003 (2) All CJ 1505) by the Division Bench of Hon. M. Katju and Hon. R.S. Tripathi, JJ. In this case the Bench has observed :
"Thus from a plain reading of Article 25 it is evident that the respondents are entitled to hold religious gatherings. Article 19(1)(b) entitles all citizens to assemble peaceably and without arms. Hence, respondents are certainly entitled to hold 'Yeshu Darbar' or any other kind of religious gathering provided it is done peacefully and without breaking the law. Hindus, Muslims, and other religious communities can also hold gatherings likewise. This is the fundamental right of all citizens in the country, and this Court or the authorities cannot prohibit such gatherings."
9. In this connection the following lines of the Apex Court, in paragraph 17 of Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748, while interpreting Article 25 of the Constitution, are very telling.
"Article 25 is an Article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country's Constitution. This has to be borne in mind in interpreting Article 25."
10. In the same vein, the Apex Court in Mohd. Faruk v. State of M.P., AIR 1970 SC 93, has observed as follows in paragraph 11 :
"But a prohibition imposed on the exercise of a fundamental right to carry on an occupation, trade or business will not be regarded as reasonable, if it is imposed not in the interest of the general public, but merely to respect the susceptibilities and sentiments of a section of the people whose way of life, belief or thought is not the same as that of the claimant."
11. It would indeed militate against our democratic norms and principles of religious tolerance and secularism if a body of persons belonging to a particular religion could restrain another body of persons belonging to another religion from performing their religious activities, provided that the religious activity in question does hot harm the public order, health or morality, as has been specifically guaranteed under Article 25 of the Constitution. No doubt, if a body of persons engages in illegal conversions by force, fraud or allurements and create law and order problems, it will be open to the authorities to take appropriate action. This has been made clear in the aforesaid decision of Ram Gopal Tripathi (supra), where this Court has also observed as follows :
"We, however, hasten to add that if these gatherings are intended to mislead people by making false and untenable claims designed to lure poor, incredulous and ignorant masses into joining a particular fold, faith or religious group by false exaggerated claims as to possession of divine and supernatural powers, the same will certainly attract the attention of the authorities and the Courts' alike which can prohibit or strike down such activities. The Court cannot countenance any abuse or misuse of such gatherings which may result in chaos and disorder. For the present we have not found in the petition any such specific allegation so as to warrant interference by this Court."
12. In this connection the Constitutional Bench of the Apex Court in Rev. Stainislaus v. State of M.P., (1977] 1 SCC 677 : has observed as follows :
"We have no doubt that it is in this sense that the word 'propagate' has been used in Article 25(1), for what the Article grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees "freedom of conscience" to every citizen, and not merely to the followers of one particular religion, and that, in turn postulates that there is no fundamental right to convert another person to one's own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the country alike."
13. However, there must be specific allegations and objective basis before the City Magistrate for reaching the conclusion that there has been an attempt at forcible or fraudulent conversions, and it should never be passed only in response to the exaggerated susceptibilities of organizations sponsoring a particular philosophy that they do are resentful of the practice or profession of their religion by members of another religion, and the public order must actually have been threatened because of the wrong doings of the believers of a particular faith, and not because of the unjustified response of another group. Such an order should never be passed on the mere opinion evidence of officials or individuals who may be entertaining certain prejudices.
14. The City Magistrate could also consider whether it would be appropriate to pass the extreme order under Section 144, Cr. P.C. of preventing the concerned persons from assembling in numbers of five or more, or whether the lesser expedient of binding over quarrelling factions to maintain the peace would not suffice.
15. It should be remembered that this order was passed ex parte, without any opportunity or notice to the parties. The order itself observes that the police report was dated 5-8-2004, yet the order under Section 144, Cr. P.C. was passed after 14 days on 19-8-2004. The order does not indicate any fresh emergency or incident after 5-8-2004 justifying passage of the order on 19-8-2004 without giving any notice or opportunity to the affected parties, which was to remain in force for a month.
16. It is also hoped that the authorities would not interfere the petitioner or other members of his religion from peacefully conducting their traditional Sunday or other prayers at the Church in the Mission Compound, because the order under Section 144, Cr. P.C. has itself carved out an exception in paragraph 2, that the restrictions under the order will not apply to the public gathered at traditional religious places, cultural programmes and religious festivals.
17. This application is, therefore, disposed of directing the City Magistrate, Mirzapur, to consider the appropriateness of continuing the impugned order dated 19-8-2004 in its present or modified form in the light of the observations made hereinabove.
18. Certified copy of this order may be given to the learned counsel for the applicant on payment of usual charges within 24 hours.