The Judgment of the Court was as follows:—
Suhrawardy, J.:— This rule was issued against an order passed under sec. 144, Cr. P.C, by the Sub-Divisional Magistrate of Asansol on the 2nd of May 1922. The grounds upon which the rule was issued are grounds Nos. 1, 3, 5 and 6 of the petition of motion, namely, that the order of the Magistrate was without jurisdiction and that sec. 144, Cr. P.C was not intended to authorize a Magistrate to stop prayers in a mosque in the manner done in this case. It appears that, the Petitioner is the mutwali of a mosque in Raneegunge Kasaipara, by virtue of a wakfnama executed by his grand-father. The Petitioner appointed Hafez Abdus Sobhan as the pesh iman or the leader of the prayers in the mosque sometime ago. The men of the locality followed his leadership for a number of years; but having, as alleged, subsequently discovered that he used to lend money on interest, they refused to read their prayer with him. The matter went so far as to necessitate the interference of the police. Ultimately, proceedings had to be drawn up against both parties under sec. 144, Cr. P.C No evidence was taken in the case but attempts were made from time to time to bring about a settlement of the dispute between the parties. The learned Sub-Divisional Officer appointed some persons who intervened and brought about a settlement; but it did not last very long for shortly after, the Petitioner again applied for proceedings under sec. 144, Cr. P.C, saying that the second party were about to commit a breach of the peace. On this, the Magistrate passed the following order: “The only course left for me to be taken is to pass orders under sec. 144, Cr. P.C, to the effect that no man of either party will be allowed to read the prayer in the above mosque.” Against this order, the Petitioner moved the District Magistrate of Burdwan who tried to bring about a settlement again by asking the Mahomedan Marriage Registrar of Raneegunge ‘to report on the subject of dispute and to arrange for the parties to come to terms.’ The Marriage Registrar reported that the Petitioner was the mutwali of the mosque and that he was unable to bring about a settlement of the dispute. The learned District Magistrate thereupon declined to interfere with the order of the Sub-Divisional Officer passed under sec. 144, Cr. P.C
It seems to me that the order is a misconceived one. The Petitioner is the mutwali of the mosque and, unless he is displaced from his position as such, no one has any right to interfere with the management of the trust property. As the Superintendent or the mutwdli, apparently, he has the right to appoint a servant of the mosque and, if the congregation is not satisfied with the appointment made by him, the only course open to them would be to go to the proper Court to have the mutwali removed or to make him adopt the proper and legal mode of managing the wakf property. But I doubt not that they have no right to interfere with his management and to threaten to commit a breach of the peace if a certain person appointed as the pesh iman is not removed from office. Apart from the question whether the public will follow the lead of Sobhan, the conduct of the Opposite Party seems to me to be lar from justifiable as it has resulted in the mosque being practically deserted. If the effect of the order of the learned Magistrate is that no Mahomedan would be allowed to say his prayer in the mosque, I do not think that such an order is justified under sec. 144, Cr. P.C I do not like to comment on the effect of this order upon the religious sentiments of the people of the locality but I only wish to suggest that such an order is not, proper and justified by the law, I may add that the learned Counsel who appears for the Opposite Party admits, in my opinion rightly admits, that the order complained against is indefensible. But he arks us to direct the Petitioner to remove the objectionable iman from office which we are unable to do.
It seems to me that the proper course that the Magistrate ought to follow is to find out which party is wrong and, if he finds on the evidence that the second party is in the wrong and is interfering unnecessarily with the exercise of the legal powers of the first party, he ought to bind down the second party restraining them from committing any act which may lead to a breach of the peace. With these observations, I make the rule absolute and set aside the order of the Sub-Divisional Magistrate of Asansol, dated the 2nd May 1922 passed under sec. 144 of the Code of Criminal Procedure.
Walmsley, J.:— I agree.
J.N.R
Rule made absolute.