Judgment :- 1. These two cases arise out of the order passed by the Executive Magistrate, Androth, in MC No. 1/1986. Crl. MC No. 42 of 1987 is filed by one of the members of the B party, whereas Crl. RP No. 10 of 1987 is filed by the A party members 1 to 6,8 and 9. 2. Cr1.M.C.1/1986 was initiated on the basis of a report submitted by the S. I. of Police, Androth under S.145 Cr. P.C. 3. It is convenient to state here briefly the facts that gave rise to the dispute between the parties. A party alleged that members of B party are followers of Shamsiya Thareegath and that many of their beliefs and rituals are opposed to the tenets of Islam and consequently they are out of the fold of Islam. The Jama-at Committee of Androth decided to excommunicate the members of the B party and passed a resolution excommunicating them and on the basis of the said resolution, the Khasi of Androth Island proclaimed their excommunication and declared that they had no right to enter the Islamic Public Institutions such as Mosques, Madrassas etc. The members of the B party who belonged to Samsiya Thareeqath resisted the attempt of A party members to prevent them from entering the mosque. This gave rise to a law and order situation and the police reported that there existed a dispute concerning the right in the mosque at Androth Island between the parties which was likely to cause breach of peace. The learned Magistrate issued notices to both parties requiring them to attend the Court on Ist December, 1986 and submit written statements of their claim as to the fact of actual position of the right in question. 4. Pursuant to the notices issued against A and B parties, they appeared and filed written statements. The learned Magistrate issued notices to both parties requiring them to attend the Court on Ist December, 1986 and submit written statements of their claim as to the fact of actual position of the right in question. 4. Pursuant to the notices issued against A and B parties, they appeared and filed written statements. The A party in their written statement contended that the B party had no legal right to enter the Mosque, Madrassas and other Islamic Public Institutions, since Jama-at Himayath Shariathul Islamiyya of Androth hereinafter referred to as the committee, for short, declared that the Lakshadweep Shariath Pravarthaka Sambarka Samithy founded by late C.M. Attakoya and now headed by P. Puthiyaveedu Pookoya Thangal is anti-Islamic and that on the basis of the resolution referred to above the Khasi of Androth declared that the members of the B party who are followers of Attakoya and call themselves as adherents to Shamsiya Thareegath were excommunicated and that they had no right to enter the Mosque or other public institutions. They also contended that the members of the Shamsiya Thareegath are sun-worshippers and their faith is opposed to the tenets of Islam and that being the position they have no right to enter 'the Mosque, Madrassa and other Islamic Public Institutions. The B party in their objection denied the allegation of A party that they are sun-worshippers and that their faith is opposed to tenets of Islam, and stated that they have firm faith in the sunnath-wal-Jamath and they follow the school of Shafi Imam. 5. The learned Magistrate found that the resolution passed excommunicating them and the declaration stated to have been made by Khasi of Androth are illegal and void since according to him no opportunity was given to B party members to show cause against the proposed action or to substantiate their contention. 5. The learned Magistrate found that the resolution passed excommunicating them and the declaration stated to have been made by Khasi of Androth are illegal and void since according to him no opportunity was given to B party members to show cause against the proposed action or to substantiate their contention. In this view of the matter the learned Magistrate passed a final order holding that a dispute likely to cause breach of peace existed between the A party members and the B party members, concerning, the declaration of the committee and Khasi and members of A party that P. Puthiya veedu Pookoya Thangal and other members of B party are not true believers in Islam and the claim of B party that they were believing in Islam and therefore he called upon the parties to give written statements of their respective claims as to fact of actual position of said issue and being satisfied by due enquiry, without reference to the merits of the claim of either of the said parties to the legal rights of the issue, that the claim of A party is not justifiable and therefore he ordered to maintain status quo prevailed before the declaration of the A party members that the Shamsiya Thareeqat is non-Islamic on 22-11-1986 until A party members' rights to declare such announcement are determined by a competent court and to strictly forbid any disturbance of the situation in the meantime. 6. The learned Magistrate also observed that the order will not bar any competent person from filing a scheme suit in a civil court or moving the Wakf Board to get the matter of dispute in question at Androth Island settled. 7. In Crl. M. C. No. 42 of 1987 the B party members alleged that in spite of the order passed by the Executive Magistrate, the 1st respondent, the S. I. of Police Androth, Union Territory of Lakshadweep, gave an order produced along with Crl. M.C. marked as Annexure I stating that until the disputes are settled by a civil court they should not indulge in any act which is likely to create any breach of peace. In the Crl. M.C. marked as Annexure I stating that until the disputes are settled by a civil court they should not indulge in any act which is likely to create any breach of peace. In the Crl. M. C. they alleged that the first respondent who is the Sub Inspector of Police was ignoring the legal proceedings of the Executive Magistrate which has clearly declared that the A party has no right to keep the B party out of the mosque, and if at all any action it called for at the hands of the respondent, they should take legal action against A party, but instead they are allowing A party to enter the mosque and preventing by force the petitioner and others who according to the petitioners constituted the majority of the population. The prayer in the Crl. M.C. is that the court be pleased to pass necessary orders to give effect to the order passed by the Executive Magistrate on 15-12-1986 marked as Annexure A II in the Crl. MC. 8. In Crl. RP No. 10 of 1987 A party members attacked the order of the Executive Magistrate directing to maintain the status quo as prevailed before the excommunication of the members of B party by Khasi of Androth until the right of the parties is finally decided by the court. It was contended in the revision petition that the learned Magistrate acted without jurisdiction and that his order is violative of Art.26(b) of the Constitution of India. 9. At the outset, I may state that the learned Executive Magistrate has followed a wrong procedure. In the instant case there is no dispute concerning any land or boundaries thereof in order to attract the provisions of S.145 of the Cr.PC. The Mosque is a Wakf and once a property is dedicated at wakf, it vests in God and the Mutawalli or the Manager has only a right of superintendence over the property. That being the legal position, S.145 Cr.PC, is inapplicable to a dispute involved in this case. The dispute in the instant case is regarding the use of a mosque and in such cases it is S.147 Cr. PC that is applicable. Therefore, the learned Executive Magistrate ought to have proceeded in accordance with the provisions contained in S.147 Cr.PC 10. That being the legal position, S.145 Cr.PC, is inapplicable to a dispute involved in this case. The dispute in the instant case is regarding the use of a mosque and in such cases it is S.147 Cr. PC that is applicable. Therefore, the learned Executive Magistrate ought to have proceeded in accordance with the provisions contained in S.147 Cr.PC 10. This court in the decisions in Kachit it Chacko v. Markose Kathanar (1952 KLT 361) and in Kunhammad Makkaru v. Abdul Rahiman (1961 KLT 329) has made this position clear. In this view of the matter, it has to be held that the order passed by the Executive Magistrate dated 15-12-1986 marked as Annexure I in Crl. M. C. 1/1986 is bad in law and is liable to be set aside. 11. I would have quashed the order of the learned Magistrate and left the matter there, but for general importance of the issues involved in the case, I think that it is only appropriate to deal with the question involved in the case for the guidance of the authorities who have to tackle the law and order situation. 12. It is the case of the B party that they are staunch followers of Shafee sect of Sunni school and they are adherents of Anal Sunnath wal Jamath. Question has often arisen in courts of law as to who is a Muslim. The question has been answered by Mulla in his book 'Principles of Mohamedan Law', as follows: "Any person who professes the Mohamedan religion, that is. acknowledges (1) that there is but one God, and (2) that Mohomed is His Prophet, is a Mohamedan". 13. According to the learned author if a person accepts the unity of God and the prophetic character of Mohammad he is a Muslim. 14. Faiz Badruddin Tyabji in his Muslim law (4th Edition Page 3) which is a great authority has answered the question as follows: "A Muslim is a person who professes the faith of Islam (ie. a belief in the unity of God, and the mission of Mohammed as a prophet or messenger of God)". At page 6 of the same book the learned author has observed as follows: "Where a person is a born Muslim, he would be recognised as such, the burden of proof being on those who allege that such a person does not follow Islam". 15. At page 6 of the same book the learned author has observed as follows: "Where a person is a born Muslim, he would be recognised as such, the burden of proof being on those who allege that such a person does not follow Islam". 15. Though it may sound incredible, in Azima Bibi v. Munshi Shamalanand (ILR 40 Calcutta 378), the Privy Council held that a Muslim family though adopted certain rituals of Hindu religion, were governed by Muslim law. In Bhagwass Singh v. Drigbijari (ILR 6 Lucknow 487), it was held though a person observed certain Hindu ceremonies, he was governed by the Muslim Law, as his ancestors were Muslims for four generations. The same view was taken in Bhagavan Koer v. J. C. Bose (ILR 31 Calcutta 11 PC) and Jusvant Khan v. Italish (ILR 14 Lahore 518). 16. In Narantakath Avullah v. Prakkal Mammu (1922 ILR. 45 Madras 986) the Madras High Court held that the essential doctrine of the Mohamedan religion is that God is only one and that Muhammad is prophet, hence Ahamadiyas who also held that belief are only a sect of Muhammedans, notwithstanding the fact that they differ from other Muhammadans in some other matters of religious beliefs and in this view of the matter the court held that Ahamadies are not apostates from Islam. This view was followed by the Kerala High Court in Shihabuddin Imbichikoya Thangal v. Ahamed Koya (AIR 1971 Kerala 206). In the judgment Krishna Iyer J. (as he then was) quoted with approval the following passage from Mulla's Principles of Mohamedan law. "A person born a Mohamedan remains a Mohamedan until be renounces the Mohamedan religion. The mere adoption by some forms of Hindu worship does not amount to such renunciation". 17. In Ata-Ullah And Another v. Azim-Ullah And Another (ILR 12 Allahabad 494) a similar question such as one that arose for consideration in this case came before a Full Bench of the Allahabad High Court consisting of five judges. Difference of opinion arose between the Muhammadi or Wahabi sect who are known as Ahle-Hadis and the followers of Hanafi persuasion. In Ata-Ullah And Another v. Azim-Ullah And Another (ILR 12 Allahabad 494) a similar question such as one that arose for consideration in this case came before a Full Bench of the Allahabad High Court consisting of five judges. Difference of opinion arose between the Muhammadi or Wahabi sect who are known as Ahle-Hadis and the followers of Hanafi persuasion. The lower appellate court found that the, Muhammadis do not look upon Ijma, or the consensus of opinion of Qiyas, analogical deductions by certain expounders of the law, as of obligatory authority, while, on the other hand the Hanafis consider the authority of Ijma and Qiyas as beyond question of dispute. Again, the Muhammadis (Wahabi sect) reject the principle of taqlid, i.e., refuse to addict themselves to the doctrines of any of the four Imams Mujtahids while the Hanafis follow Abu Hanifa and his disciples. It was contended that the mosque was built by the Hanafi sect of Muhammadans and used by them ever since as their place of worship that the plaintiffs were not members of that sect, and were not orthodox Muhammadans at all and had consequently no right to use the mosque as a place of worship. Edge C. J. speaking for the Full Bench observed as follows: "Now as to the first question no authority has been brought to our notice to show that a mosque which has been dedicated to god can be appropriated exclusively to or by any particular sect or denomination of the Sunni Muhammadans, and without very strong authority for such a proposition. I for one, could not find as a matter of law that there would be any such exclusive appropriation. As I understand, a Mosque to be a Mosque at all must be a building dedicated to God and not a building dedicated to God with reservation that It should be used only by particular persons holding particular view of rituals. As I understand it, a Mosque is a place where all Muhammadans are entitled to go and perform their devotion as of right according to their conscience". 18. Explaining certain observations made in Queen v. Ramzan (ILR 7. As I understand it, a Mosque is a place where all Muhammadans are entitled to go and perform their devotion as of right according to their conscience". 18. Explaining certain observations made in Queen v. Ramzan (ILR 7. Allahabad 461) Mahmood J. added the following: "But I said enough in Queen-Empress v. Ramzan (1) to show that so long as a mosque' is a mosque, that so long as the plaintiffs are persons who call themselves Muhammadans and entitled to warship, there is absolutely no authority to say that any sect or any creed or any portion of the community can restrain others who claim to have the right which, to use the language of Muhammadan law, God and his Prophet gave them, from putting such right into exercise. It is clear then that Pandit Sundar Lal, in his able argument and in the manner in which he has considered the case, has frankly given up the proposition that the plaintiffs are not Muhammadans, and that he no longer maintains the argument that the mosque to which the litigation relates is not a mosque in the full sense of the Muhammadan Ecclesiastical Law. which law this Bench is bound by the express terms of the statute to administer in such cases. And if it is true that the plaintiffs are Muhammadans, then there is no authority for saying that, because of the circumstance that those persons happen to annoy or disturb the peace of mind of the assembly, they are not to be entitled to worship in the mosque". 19. I am not oblivious of the fact that in Pakistan Ahamadis were declared as non-Muslim minority by Bhuto's government and that law is in operation even now. But throughout history, our country has displayed a great amount of toleration in the matter of religious beliefs and quite in tune with the spirit our courts have been taking a broader outlook in these matters. 20. But the law in Pakistan regarding the right of worship of followers of other sects in a mosque built by one sect is the same. The Law in Pakistan has been stated in Mulla's Principles of Mohammedan Law as follows: "A mosque being dedicated to Almighty God is for the use of all the Mussulmans to offer prayers therein without any distinction of sect. The Law in Pakistan has been stated in Mulla's Principles of Mohammedan Law as follows: "A mosque being dedicated to Almighty God is for the use of all the Mussulmans to offer prayers therein without any distinction of sect. A mosque is not capable of human ownership or possession as it belongs to God and is dedicated to His Worship. There is no such thing as a Shia mosque or a Sunni mosque or a mosque of any other sectarian denomination even where a mosque is appropriated to a particular sect, the rights of the Muslims of the other sects to offer prayers therein cannot be shut out, although as a matter of public expediency and to avoid conflicts arising from sectarian bias, these rights may not be exercised. Rangal Shah and others v. Mulla Tudal P.L.D. 1960 (W.P.) Karachi 312." 21. It is common knowledge that there are different sects among the followers of Islam. The rituals followed by one sect may differ from the rituals adopted by other sects in certain respects. An act done by one sect in the belief that it is quite in accordance with tenets of Islam, may be considered by another sect as anti-Islamic or "Shirk" (attributing partnership to God). It is also a matter of common experience that mosques are closed often, because of these differences and the resultant apprehension of the breach of peace. To say the least this kind of tendency is quite against the traditions of Holy Prophet. When Christian signatories of Najaran visited the Prophet for discussion of theological matters at the Prophet's mosque at Madina and time approached for their prayers, and they wanted to offer prayers, Holy Prophet said that they could perform their prayers according to their rituals as the mosque was intended for worship of God. Such being the position, I can hardly find any justification for preventing the members of the B party from entering the Mosque on the ground that in the view of the members of A Party, Khasi or Jama-at some of their believers and rituals are anti-Islamic. Such being the position, I can hardly find any justification for preventing the members of the B party from entering the Mosque on the ground that in the view of the members of A Party, Khasi or Jama-at some of their believers and rituals are anti-Islamic. I am not here called upon to decide the question whether some of the rituals of members of Shamsiya-Thareegath are against Quran or traditions of Holy Prophet, but confine myself to the question whether they can be prevented from entering into the mosque so long as they declare that they are true believers in Islam and that they believe in the Unity of God and the Prophetic mission of Mohamed, which according to the authorities mentioned above are the criteria to decide whether a person is Muslim or not. The broad principle laid down in the decisions referred to above is that every Muslim has a right to worship in a mosque and cannot be prevented from entering the Mosque or offering prayers. 22. It is equally settled that members of a sect are not entitled to separate call for prayer or to hold a congregation behind an Imam of their own in a mosque built by another sect (See Amir Hussain Shah and others v. Hafiz Gulam Rasool and others (AIR 1936 Peshawar 65), Hakim Khalil Ahmad and others v. Malik Israfll and others (37 Indian Cases 302) and Sifat Alikhan and others v. All Mian and others (AIR 1933 All. 284)). 23. From the foregoing discussion it is clear that it is not permissible to deny the right of worship to any Muslim is a mosque whatever be the sect to which he belongs. It is also equally settled that a person belonging to a particular sect cannot claim the right to hold separate congregation or separate call for prayer in a mosque built by another sect. His right is confined to follow Imam of that Mosque. Therefore, it cannot be said that the view taken by the learned Magistrate that the followers of B party are entitled to get restored the status quo which existed prior to their alleged ex-communication by resolution of the Jama-at and declaration of the Khasi is incorrect or illegal. 24. The learned counsel for the petitioner in Crl. Therefore, it cannot be said that the view taken by the learned Magistrate that the followers of B party are entitled to get restored the status quo which existed prior to their alleged ex-communication by resolution of the Jama-at and declaration of the Khasi is incorrect or illegal. 24. The learned counsel for the petitioner in Crl. RP No. 10 of 1987 argued that the Khasi has a right to ex-communicate and in support of this contention he relied on the decision of the Supreme Court in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (AIR 1962 SC 853). That is a decision rendered by the Supreme Court with regard to the right of the petitioner in that case in his capacity as Daiul-Mut¬laq to ex-communicate the members of the Dawoodi Bohra Community. Dawoodi Bohra Community consists of Muslims of Shia sect holding the belief that there is one God, that Muhammad is His Prophet, that Ali was the Wasi (executor) of the Holy Prophet and that Ali succeeded the Prophet by Nas-e-Jali, Ali was succeeded by a line of Imams, each of whom in turn was appointed by Nis-e-Jali by his predecessor, that, owing to persecution, Imam Tyeb (the 21st Imam) went into seclusion and that an Imam from his line will appear. It is also their belief that an Imam always exists although at times he may be invincible to his believers while in seclusion. Owing to the impending seclusion of 21st Imam, his predecessor the 20th Imam directed his Hujjath (a dignatory ranking next to an Imam) one Hurrathul Mulaka to appoint a Dai, a Mazoon (a digoatory next to Dai) and a Mukasir (a dignatory next to a Mazoon) to carry on Dawa (mission) of the Imam so long as the Imam should remain in seclusion and to take and receive faithful to an oath of allegiance. The Dais are known as Dairul-Mutlaq. The petitioner as Head Priest is the vicegerent of Imam on earth in seclusion. These are in short the cardinal features of the religious faith of Dawoodi Borah Community. The Bombay legislature passed an enactment known as Bombay Prevention of Ex-communication Act which was attacked by the petitioner in that case as being violative of Art.26(b) of the Constitution of India in so far as it destroys the right of Dair-ul-Mutlaq of ex-communicating a member. The Bombay legislature passed an enactment known as Bombay Prevention of Ex-communication Act which was attacked by the petitioner in that case as being violative of Art.26(b) of the Constitution of India in so far as it destroys the right of Dair-ul-Mutlaq of ex-communicating a member. His Lordship the Chief Justice Sinha took the view that since the Act is intended to do away with the mischief of treating a human being as untouchable, and of depriving of his human dignity and of his right to follow the dictates of his own conscience the act is aimed at fulfilment of the individual liberty of conscience guaranteed by Art.25 of the Constitution and therefore did not offend Art.26 of the Constitution of India. However, the majority of the judges took the view that the position of the Dairul-Mutalaq is an essential part of creed of the Dawoodi Bohra sect and the power of ex-communication is vested in him for the purpose of enforcing discipline and keep the denomination together as an entity and thus viewed the provisions of the impugned Act were violative of Art.26(b) of the Constitution of India. By no Stretch of imagination the position of a Khasi or a Jamath Committee can be equated with the position of Dair-ul-Mutalaq of Dawood, Bohra community, who is considered by the Community to be the vicegerent of Imam on earth. As far as Sunni Muslims are concerned the institution of Khlafath is no more is existence, no power of ex-communication in a Khasi or Jama-et is considered to be an integral port of faith. Therefore, the observations contained in the majority judgment in Seydna's case are hardly applicable in determining the issue involved in this case. In any view, to hold otherwise would lead to arbitrary exercise and abuse of powers and far reaching consequences may follow and incidents such as we witnessed in recent times, in the case of punishment meted out to a lady by the Mahal Jama-at Committee of Bheema Palli may be repeated. I do not want to dwell upon this aspect of the matter at length as it is not necessary to finally decide that question in this case. It is open to the party to approach a civil court for establishing any such right. 25. I do not want to dwell upon this aspect of the matter at length as it is not necessary to finally decide that question in this case. It is open to the party to approach a civil court for establishing any such right. 25. In the result, while I set aside the order of the Executive Magistrate for the reason that he wrongly proceeded under S.145 Cr.PC, instead of the procedure laid down in S.147 Cr. PC which is applicable to the case, I direct the respondents to bear in mind the principle laid down above, in meeting the situation now arisen, as a result of the dispute between the A party and B party in regard to the right of B party to enter the mosque. The Crl. MC and the Crl. RP are disposed of as above.