Research › Search › Judgment

Bombay High Court · body

2023 DIGILAW 1158 (BOM)

Joan Mascarenhas E Dsouza v. State Of Goa

2023-05-19

M.S.SONAK, VALMIKI SA MENEZES

body2023
JUDGMENT VALMIKI SA MENEZES,J. - Rule. Rule is made returnable forthwith. The petition is disposed of at the admission stage with the consent of the parties. 2. This petition, filed under Article 226 of the Constitution of India, seeks a writ of certiorari to quash and set aside order dtd. 28/12/2022 bearing No.8/8/2021-MAG/L&O/(Vol.II)/4084 passed by the District Magistrate (North); the order impugned in this petition is one passed by the District Magistrate under Sec. 144 of the Code of Criminal Procedure, 1973 and bans the Petitioner from carrying out religious activities in her institutional building situated in property bearing Survey No.221/8A and House No.302/4, situated at Tropawaddo, Sodiem, Siolim, Bardez Goa, to curb religious conversion by means of allurement or fraud affecting the freedom of religion and conscience of citizens. 3. The case of the Petitioner as stated in the petition is that the Petitioner along with Mr. Domnic D'Souza, her husband, is carrying out the religious activities in the aforementioned premises at Tropawaddo, Sodiem, Siolim, Bardez Goa for the last 23 years, and engaged in preaching to the public at large, scriptural teachings from the Holy Bible. The Petitioner claim that she is a follower of Jesus Christ and in 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. 4. It is the Petitioner's case that by virtue of the impugned order dtd. 28/12/2022 issued by the District Magistrate, North Goa (Respondent No.3), at the behest of a report received from the Respondent No.6 - Superintendent of Police, her fundamental rights to freedom of conscience and to freely profess, practice and propagate her religion have been infringed; that the impugned order has 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. It is further the Petitioner's case, that the impugned order is arbitrary, passed contrary to the provisions of Sec. 144 of the Code of Criminal Procedure (Cr.P.C.), and that it has been passed in total violation of the principles of natural justice, without giving the Petitioner any hearing. 5. It is further the Petitioner's case, that the impugned order is arbitrary, passed contrary to the provisions of Sec. 144 of the Code of Criminal Procedure (Cr.P.C.), and that it has been passed in total violation of the principles of natural justice, without giving the Petitioner any hearing. 5. It is further the Petitioner's case that the impugned order passed under Sec. 144 Cr.P.C. is totally without jurisdiction and not based upon any material to support the satisfaction recorded by the District Magistrate, before passing prohibitory directions against the Petitioner; it is also the Petitioner's case that the impugned order is blatantly illegal and passed upon erroneous facts, only to satisfy the whims of a group of people in the village of Sodiem, who are not in acceptance of the Petitioner's religious beliefs and who see the Petitioner as competition to another religious faction or group. The Petitioner alleges that the District Magistrate has proceeded without any material before him and has passed the impugned order only to favour a group of persons in the village who are opposed to the Petitioner's presence in the locality. 6. In reply to the allegations made in the petition, the Respondent No.4 - Superintendent of Police, North District, Mr Nidhin Valsan has filed an affidavit dtd. 31/1/2023 opposing the admission of the petition mainly upon the following facts:- (a) That the office of the Superintendent of Police had received a report dtd. 21/11/2022 from the Police Inspector, Mapusa Police Station which records 8 FIRs. registered against the Petitioner and Domnic D'Souza, from the year 2009 to the year 2022; that the report alleges that the Petitioner and Domnic organize pubic gatherings and carry out religious activities, including activities of forceful conversions, in the name of prayer and healing, at the premises situated in Survey No.221/8A of Village Siolim, owned by them and that such activities have caused incidents of serious law and order situation in the village. That the report of the Police Inspector further alleges that carrying out of religious activities of the Petitioner and Domnic, by preaching at their Five Pillar Church premises has caused a lot of tension in the area and local villagers and other sources allege that the Petitioner and Domnic are involved in religious conversions by means of allurement or fraud. Other than relying upon the report of the Police Inspector dtd. Other than relying upon the report of the Police Inspector dtd. 21/11/2022, the Superintendent of Police places no other material before this Court or before the District Magistrate, for the District Magistrate to consider and arrive at the satisfaction required in terms of Sec. 144 of the Cr.P.C. (b)Under the affidavit of the Superintendent, the report dtd. 21/11/2022 was placed on record wherein the Police Inspector makes reference to various FIRs. and criminal cases recorded against the Petitioner and Domnic from the year 2009 until 2022, without specifying any material details as to the outcome of these criminal cases. The report dtd. 21/11/2022 also alleges that the Petitioner and Domnic are involved in religious conversions by means of allurement or fraud, but is silent upon the dates on which such information was received by the Police Inspector, the source of such information and the details of the persons who have made such allegations. A reading of the report dtd. 21/11/2022 does not contain any specifications about the aforesaid religious conversions or any inducement by which any person was forced to convert. 7. The District Magistrate, North Goa - Ms Mamu Hage has filed an affidavit dtd. 14/2/2023 also opposing the petition, wherein reference is made to various FIRs./complaints/cases against the Petitioner and Domnic from the year 2009 until 2022, repeating the allegations made by the Superintendent of Police in his affidavit. This affidavit is also silent as to the material which forms the basis of passing the impugned order under Sec. 144 Cr.P.C. 8. In rejoinder to these affidavits, Petitioner has filed a detailed affidavit dtd. 18/2/2023, dealing with each and every case referred to by the Respondent No.3 and Respondent No.6 in their returns. From the affidavit, it is alleged that Respondent No.3 has deliberately suppressed material facts that Crime No.281/09 on which a criminal case was filed before the Judicial Magistrate in Criminal Case No.78/S/2010/F, the Petitioner was acquitted. 18/2/2023, dealing with each and every case referred to by the Respondent No.3 and Respondent No.6 in their returns. From the affidavit, it is alleged that Respondent No.3 has deliberately suppressed material facts that Crime No.281/09 on which a criminal case was filed before the Judicial Magistrate in Criminal Case No.78/S/2010/F, the Petitioner was acquitted. That in a Special Civil Suit bearing No. 9 /2012/A before the Civil Judge, Senior Division, Mapusa, wherein the Petitioner's husband Domnic had filed a suit against one of the Complainants in the present case, a consent order came to be passed wherein the Complainant undertook to withdraw all complaints and statements against the said Domnic before the Police or any other Court of law and tender an unconditional apology to Domnic for having filed false and frivolous complaint dtd. 27/10/2009, before the Mapusa Police Station, which complaint formed part of the material referred to by the Superintendent of Police in his affidavit/report. The affidavit-in-rejoinder further refers to Crime No.89/2012 which was pending trial before the Magistrate, and to Crime No.150/2012, in which the C Summary report dtd. 3/9/2013 was filed by the Mapusa Police Station before the JMFC, Mapusa, claiming that the case be withdrawn against the Petitioner in the light of the opinion of the APP, Mapusa that the offence was registered for miss-appreciation of facts. The affidavit further alleges that the Respondent No.3 has suppressed material facts with regard to Crime No.182/2012 in which the Petitioner and Domnic were discharged by orders of the Additional Sessions Court; that Criminal Case filed upon Crime Nos.37/2013, 126/2022 and 127/2022, are pending adjudication/trial while in Crime No.26/2014, Respondent No.3 has suppressed the fact that a closure report has been filed by the Police. 9. 9. Learned Advocate Mr Ankur Kumar for the Petitioner has made the following submissions before us:- (a) That the impugned order is arbitrary and contrary to the provisions of Article 14 of the Constitution of India as it has not afforded the Petitioner any hearing before it was passed, (b) That the impugned order has been passed in contravention of the provisions of Sec. 144 of the Cr.P.C. 1973 as there was no material on record to enable the District Magistrate to come to a subjective satisfaction that the Petitioner was indulging in any activities which would jeopardize the maintenance of public order, that in any event the activities indulged in by the Petitioner and Domnic of preaching and propagating their religion within a private space were under the guarantee of their rights under Articles 25 and 26 of the Constitution of India and the impugned order constitutes a direct breach of their fundamental rights, both under Article 19, Articles 25 and 26 of the Constitution of India. (c) Placing reliance upon the judgment of the Supreme Court in Commissioner of Police and Ors. vs. Acharya Jagadishwarananda Avadhuta and Another reported in (2004) 12 SCC 770 , 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 amounts to an interference and infringement of the Petitioner's right to freely practice, profess and propagate any religion. 10. Learned Advocate Mr Pravin Faldessai for the Respondents has supported the impugned order and has raised the following contention submitting that the impugned order does not call for interference by this Court:- (a) That the impugned order has worked itself out since the same was in force for a period of two months from the making thereof, and even when the petition was filed on 5/1/2023; that by the time the petition was heard, the impugned order having worked itself out, it called for no interference by this Court in its writ jurisdiction under Article 226 of the Constitution of India. (b) 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. (b) 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. (c) That in any event, the impugned order was based upon material before the District Magistrate, who had come to subjective satisfaction that a case had been made out for passing of a preventive order under Sec. 144 against the Petitioner and Domnic, in order 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. 11. We have considered the submissions made by the learned Advocates for the parties, considered the record of the Criminal Writ Petition and the material placed on record in support of the impugned order. 12. The main questions raised in this petition are as under:- (a) Whether there was any material before the District Magistrate which could form the basis for exercising jurisdiction under Sec. 144 Cr.P.C. for passing the impugned order? (b) On the assumption that there was enough of material against the Petitioner and Domnic to exercise jurisdiction under Sec. 144 Cr.P.C., whether the District Magistrate was within his jurisdiction bounds in passing the order to curb religious conversions or direct the Petitioner to abstain from engaging in religious conversions as was done in the impugned order? (c) Whether the impugned order is in violation of the principles of natural justice and passed in violation of the Petitioner's fundamental rights under Article 19(1), Articles 25 and 26 of the Constitution of India? 13. While considering Question (a) above, from the material on record, we make the following observations:- (a) The report dtd. 21/11/2022 of the Police Inspector, Mapusa Police Station to the Superintendent of Police, North only makes reference to various FIRs. and complaints lodged from the year 2009, the last one being dtd. 26/5/2022 in Criminal Case No.126/2022. The affidavit-in-rejoinder of the Petitioner places on record in great detail, with supporting material, in the form of judgements/orders/decrees of various Courts, the outcome of these cases. This factual position has not been denied by the Respondents. and complaints lodged from the year 2009, the last one being dtd. 26/5/2022 in Criminal Case No.126/2022. The affidavit-in-rejoinder of the Petitioner places on record in great detail, with supporting material, in the form of judgements/orders/decrees of various Courts, the outcome of these cases. This factual position has not been denied by the Respondents. According to the Petitioner, Crime No.281/09 has ended in acquittal of the Petitioner and Domnic by an order passed by the Judicial Magistrate in CC/78/S/2010/F; in a civil suit filed by the Petitioner's husband Domnic against the Complainant consent decree was passed by the Civil Court in which the Complainant not only withdrew all allegations against the said Domnic, but also tendered an unconditional apology for having made false allegations therein. It appears from the record that these facts were fully known to the Respondents, despite which, these allegations were included as part of the report of the Police Inspector, to form the basis for the impugned order. (b)Crime No.89/12 along with Crime No.90/12 were subject matter of criminal trial before the JMFC at Mapusa, in which the trial is underway. From the record, it appears that these matters pertain to allegations against the Petitioner of playing loud music and disturbing the peace in the locality. In Crime No.150/2012, the Mapusa Police Station has filed a C Summary report No.96/13 on 3/9/2013 claiming that the case has been filed based upon miss-appreciation of facts and requesting for passing orders on C Final Summary. In Crime No.182/2012 filed against the Petitioner, the Petitioner had been discharged by order dtd. 5/6/2015 passed by the Sessions Court, Mapusa while in Crime No.26/2014, the Police had filed a closure report. From the record, it appears that in the three other cases referred to in the report of the Police Inspector before the District Magistrate, trials are pending. (c) We take note that the material referred to by the Superintendent of Police in report dtd. From the record, it appears that in the three other cases referred to in the report of the Police Inspector before the District Magistrate, trials are pending. (c) We take note that the material referred to by the Superintendent of Police in report dtd. 21/11/2022 are cases from the period as far back as the year 2009 which have either ended in acquittal or in the Police themselves filing a C Summary report, or are pending trial; all these cases are a stale causes against the Petitioner and have no live nexus with the case at hand or requirement for an urgent order in terms of Sec. 144 of Cr.P.C., which demonstrate any imminent danger or disruption of public tranquility or requirement for the passing of prohibitory orders to maintain public order. These cases have no proximity in time to the passing of the order. The impugned order does not refer to any of this material to come to the subjective satisfaction of the District Magistrate, that prohibitory orders were necessary to maintain public order in terms of Sec. 144 Cr.P.C. It is, therefore, clear that the District Magistrate lacked the jurisdictional facts and material to even proceed in terms of the provisions of Sec. 144. 14. Sec. 144 of the Criminal Procedure Code reads as under:- "144. Power to issue order in urgent cases of nuisance of apprehended danger. (1) In cases where, in the opinion of a District Magistrate, a Subdivisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this sec. and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by sec. 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray. (2) An order under this sec. (2) An order under this sec. may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. (3) An order under this sec. may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. (4) No order under this sec. shall remain in force for more than two months from the making thereof: Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this sec. shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification. (5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this sec. , by himself or any Magistrate subordinate to him or by his predecessor- in- office. (6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-sec. (4). (7) Where an application under sub- sec. (5) or sub- sec. (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing." 15. The provision forms part of Chapter 10 of the Code which deals with maintenance of public order and tranquility. The provision forms part of Chapter 10 of the Code which deals with maintenance of public order and tranquility. Sub-Sec. 1 of Sec. 144 requires the District Magistrate, whilst passing a written order, to state the material facts of the case, and the basis on which the Magistrate considers that directions are required to be issued against a person or group of people to prevent danger to human life, health, safety or a disturbance of public tranquility or right. As mandated by Sub-Sec. 1 of Sec. 144, there appears to be no live material placed before the District Magistrate when passing the impugned order, much less material on the basis of which any conclusion could be drawn that recent acts of the Petitioner could have resulted in disturbance of public tranquility or caused a riot. 16. Sub-Sec. 2 of Sec. 144 empowers the Magistrate to pass such an order ex-parte, only in case of emergency or in a case where the circumstances do not admit of serving in due time a notice upon the person against whom such order is directed. The impugned order does not make any reference to any incident or any material before the District Magistrate which was of emergent nature or which spelt out circumstances on the basis of which the District Magistrate could exercise jurisdiction under Sub-Sec. 2 of Sec. 144 to directly issue the order ex-parte. In the present case, the impugned order was passed, admittedly, without giving the Petitioner any hearing, or affording her an opportunity of placing on record the material which has now been placed before us. The material placed before us in this petition, which includes details of cases from the year 2009 till 2022 against the Petitioner and her husband Domnic, which have either ended in acquittal/discharge or filing of C Summary reports, if were considered by the District Magistrate, would have obviously resulted in the District Magistrate refraining from passing the impugned order. There was clearly no material before the District Magistrate to proceed in terms of the provisions of Sec. 144 to record any subjective satisfaction. The impugned order is, therefore, passed contrary to the provisions of Sec. 144. 17. On the second Question, clearly, there being no material on record of the District Magistrate to enable him to proceed under Sec. 144 of the Code, he would have no jurisdiction to exercise powers under that provision. The impugned order is, therefore, passed contrary to the provisions of Sec. 144. 17. On the second Question, clearly, there being no material on record of the District Magistrate to enable him to proceed under Sec. 144 of the Code, he would have no jurisdiction to exercise powers under that provision. A reading of the provisions of Sec. 144 of the Code would require certain facts to be placed before the District Magistrate which may be referred to as jurisdictional facts, to enable him to proceed to arrive at his subjective satisfaction that such facts would lead to disturbance of public tranquility. There being no material of this nature on record, the impugned order was clearly one which was passed without jurisdiction and is, therefore, contrary to Sec. 144 of the Code. We take note of the fact that there has been a tendency of late for the authorities to abuse and misuse the powers vested in them under the provisions of Sec. 144 of the Code, by passing preventive orders either concocted material or on the basis of reports which actually do not spell out any factual basis for exercising jurisdiction under Sec. 144 of the Code. Whilst dealing with the scope of the provision of Sec. 144 of the Code and the exceptional nature of the provision of Sec. 144 of the Code, the Supreme Court in Ramlila Maidan Incident, In Re, reported in (2012) 5 SCC 1 , has observed as under:- "210. The order passed under Sec. 144 CrPC does not give any material facts or such compelling circumstances that would justify the passing of such an order at 11.30 p.m. on 4/6/2011. There should have existed some exceptional circumstances which reflected a clear and prominent threat to public order and public tranquillity for the authorities to pass orders of withdrawal of permission at 9.30 p.m. on 4/6/2011. What weighed so heavily with the authorities so as to compel them to exercise such drastic powers in the late hours of the night and disperse the sleeping persons with the use of force, remains a matter of guess. Whatever circumstances have been detailed in the affidavit are, what had already been considered by the authorities concerned right from 25/5/2011 to 3/6/2011 and directions in that behalf had been issued. Whatever circumstances have been detailed in the affidavit are, what had already been considered by the authorities concerned right from 25/5/2011 to 3/6/2011 and directions in that behalf had been issued. Exercise of such power, declining the permission has to be in rare and exceptional circumstances, as in the normal course, the State would aid the exercise of fundamental rights rather than frustrating them. 212. There is some substance in this submission of Mr Ram Jethmalani. It is clear from Annexure 'J. annexed to the affidavit of the Police Commissioner that the letter of the Joint Deputy Director dtd. 3/6/2011 referring to threat on Baba Ramdev and asking the police to review and strengthen the security arrangements, was actually received on 6/6/2011 in the office of the Commissioner of Police and on 7/6/2011 in the office of the Joint Commissioner of Police. Thus, it could be reasonably inferred that this input was not within the knowledge of the officer concerned. I do not rule out the possibility of the Intelligence sources having communicated this input to the police authorities otherwise than in writing as well. But that would not make much of a difference for the reason that as already held, the order under Sec. 144 CrPC does not contain material facts and it is also evident from the bare reading of the order that it did not direct Baba Ramdev or Respondent 4 to take certain actions or not take certain actions which is not only the purpose but is also the object of passing an order under Sec. 144 CrPC. 225. There is some merit in the submissions of the learned amicus curiae. Existence of sufficient ground is the sine qua non for invoking the power vested in the executive under Sec. 144 CrPC. It is a very onerous duty that is cast upon the empowered officer by the legislature. The perception of threat should be real and not imaginary or a mere likely possibility. The test laid down in this sec. is not that of "merely likelihood or tendency". The legislature, in its wisdom, has empowered an officer of the executive to discharge this duty with great caution, as the power extends to placing a restriction and in certain situations, even a prohibition, on the exercise of the fundamental right to freedom of speech and expression. is not that of "merely likelihood or tendency". The legislature, in its wisdom, has empowered an officer of the executive to discharge this duty with great caution, as the power extends to placing a restriction and in certain situations, even a prohibition, on the exercise of the fundamental right to freedom of speech and expression. Thus, in case of a mere apprehension, without any material facts to indicate that the apprehension is imminent and genuine, it may not be proper for the authorities to place such a restriction upon the rights of the citizen." 18. The observations of the Hon'ble Supreme Court in Ramlila Maidan (supra) quite clearly set out that the existence of sufficient grounds to proceed is sine qua non for invocation of the powers vested under Sec. 144 of the Code, and mere likelihood or tendency that an incident might occur, does not empower an officer of the Executive to proceed under those provisions. It was further held that a mere apprehension without any material facts to indicate that the apprehension is imminent would not permit a District Magistrate to invoke jurisdiction under Sec. 144 of the Code as the powers vested under that provision casts upon the Magistrate a onerous duty to balance the jurisdiction vested under the provision, with the rights guaranteed to the citizen of freedom of speech, gathering and propagating his thoughts and religion. 19. Whilst discussing the powers vested in a District Magistrate under Chapter 10 of the Code, the Supreme Court in Ramlila Maidan (supra) has further held as under:- "44. The distinction between "public order" and "law and order" is a fine one, but nevertheless clear. A restriction imposed with "law and order" in mind would be least intruding into the guaranteed freedom while "public order" may qualify for a greater degree of restriction since public order is a matter of even greater social concern. Out of all expressions used in this regard, as discussed in the earlier part of this judgment, "security of the State" is the paramount and the State can impose restrictions upon the freedom, which may comparatively be more stringent than those imposed in relation to maintenance of "public order" and "law and order". However stringent may these restrictions be, they must stand the test of "reasonability". However stringent may these restrictions be, they must stand the test of "reasonability". The State would have to satisfy the court that the imposition of such restrictions is not only in the interest of the security of the State but is also within the framework of Articles 19(2) and 19(3) of the Constitution. 45. It is keeping this distinction in mind, the legislature, under Sec. 144 CrPC, has empowered the District Magistrate, SubDivisional Magistrate or any other Executive Magistrate, specially empowered in this behalf, to direct any person to abstain from doing a certain act or to take action as directed, where sufficient ground for proceeding under this sec. exists and immediate prevention and/or speedy remedy is desirable. By virtue of Sec. 144-A CrPC, which itself was introduced by Act 25 of 2005 [Ed. : The Code of Criminal Procedure (Amendment) Act, 2005.], the District Magistrate has been empowered to pass an order prohibiting, in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of any mass drill or mass training with arms in any public place, where it is necessary for him to do so for the preservation of public peace, public safety or maintenance of public order. Sec. 144 CrPC, therefore, empowers an executive authority, backed by these provisions, to impose reasonable restrictions vis-a-vis the fundamental rights. The provisions of Sec. 144 CrPC provide for a complete mechanism to be followed by the Magistrate concerned and also specify the limitation of time till when such an order may remain in force. It also prescribes the circumstances that are required to be taken into consideration by the said authority while passing an order under Sec. 144 CrPC." 20. In the present case, there was no material before the District Magistrate placed by the Superintendent of Police to enable him to come to a conclusion that there was any situation of public order envisaged by the acts allegedly committed by the Petitioner, for passing prohibition orders under Sec. 144 of the Code. The reports placed before us, do not spell out any sufficient grounds to proceed under this sec. , much less, arm the District Magistrate with the jurisdictional facts to proceed to pass any prohibitory/preventive orders against the Petitioner. 21. The reports placed before us, do not spell out any sufficient grounds to proceed under this sec. , much less, arm the District Magistrate with the jurisdictional facts to proceed to pass any prohibitory/preventive orders against the Petitioner. 21. Question No.3 deals with the submission that the impugned order was passed in violation of the principles of natural justice, by denying the Petitioner any right of hearing before the order was passed. Admittedly, the Petitioner was not heard before the impugned order was passed. The impugned order also does not refer to any material on the basis of which, the District Magistrate could conclude that there was an emergency or that this was a case where circumstances were made out in which delay in service of notice upon the Petitioner would defeat the very purpose of passing the preventive order. There is no reference made in the order setting out reasons for the exercise of the powers vested in a District Magistrate under Sub-Sec. 2 of Sec. 144. There is also no date set out in the order to grant the Petitioner any hearing. Clearly, therefore, 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 on the basis of which the same came to be passed. 22. We now come to the forth Question as to whether, irrespective of the jurisdiction of the Magistrate to act under Sec. 144 of the Code, passing of the impugned order in the nature of banning of the Petitioner and her husband Domnic D'Souza from carrying out religious activities in their private space in House No.302/4 would militate against Petitioner's fundamental rights guaranteed under Article 19(1), Articles 25 and 26 of the Constitution of India. Article 25 of the Constitution of India deals with the right to freedom of religion and reads thus:- "25. Freedom of conscience and free profession, practice and propagation of religion (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. Freedom of conscience and free profession, practice and propagation of religion (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sec. s of Hindus. Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly." Article 26 of the Constitution of India confers on Religious Sec. or denomination the rights to establish religious institution and to acquire and administer property for that purpose. Article 26 reads as follows: "26. Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any sec. thereof shall have the right (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law 23. The article guarantees to all persons, the equal entitlement of freedom of conscience and the right to profess, practice and propagate religion. The right conferred upon a citizen to profess and propagate religion correspondingly casts a duty on the State and the Executive to ensure that every person should be allowed to freely practice, preach or profess his belief. The State has a duty to extend all possible protection to its citizens, through free speech and the freedom of expression, enshrined in Article 19(1) of the Constitution of India to indulge in public discourse and to propagate religious practice. All persons have a fundamental right to form institution, purchase property for their use and to profess and propagate religion. 24. In Commissioner of Police and Ors. All persons have a fundamental right to form institution, purchase property for their use and to profess and propagate religion. 24. In Commissioner of Police and Ors. vs. Acharya (supra), whilst dealing with the question as to what would be the true meaning of professing, practicing and propagating religion, the Supreme Court has held thus:- "85. Religion is a social system in the name of God laying down the code of conduct for the people in society. Religion is a way of life in India and it is an unending discovery into the unknown world. People living in society have to follow some sort of religion. It is a social institution and society accepts religion in a form which it can easily practise. George Bernard Shaw stated, "There is nothing that people do not believe if only it be presented to them as science and nothing they will not disbelieve if it is presented to them as religion." Essentially, religion is based on "faith". Some critics say that religion interferes with science and faith. They say that religion leads to the growth of blind faith, magic, sorcery, human sacrifices, etc. No doubt, the history of religion shows some indications in this direction but both science and religion believe in faith. Faith in religion influences the temperament and attitude of the thinker. Ancient civilisation viz. the Indus Valley civilisation shows faith of people in Siva and Sakthi. The period of Indus Valley civilisation was fundamental religion and was as old as at least the Egyptian and Mesopotamian cultures. People worship Siva and the trishul (trident), the emblem of Siva which was engraved on several seals. People also worshipped stones, trees, animals and fire. Besides, worship of stones, trees, animals, etc. by the primitive religious tribes shows that animism viz. worship of trees, stones, animals was practised on the strong belief that they were abodes of spirits, good or evil. Modern Hinduism to some extent includes Indus Valley civilisation culture and religious faith. Lord Siva is worshipped in the form of linga. Many symbols have been used in Hindu literature. Different kinds of symbols and images have different sanctity. Baring of chest, arms and other parts of body represent the weapons of symbols of Siva. Modern Hinduism has adopted and assimilated various religious beliefs of primitive tribes and people. The process of worship has undergone various changes from time to time. 86. Many symbols have been used in Hindu literature. Different kinds of symbols and images have different sanctity. Baring of chest, arms and other parts of body represent the weapons of symbols of Siva. Modern Hinduism has adopted and assimilated various religious beliefs of primitive tribes and people. The process of worship has undergone various changes from time to time. 86. The expression "religion" has not been defined in the Constitution and it is incapable of specific and precise definition. Article 25 of the Constitution guarantees to every person, freedom of conscience and right freely to profess, practise and propagate religion. No doubt, this right is subject to public order related to health and morality and other provisions relating to fundamental right. Religion includes worship, faith and extends to even rituals. Belief in religion is belief in practising a particular faith, to preach and to profess it. Mode of worship is an integral part of religion. Forms and observances of religion may extend to matters of food and dress. An act done in furtherance of religion is protected. A person believing in a particular religion has to express his belief in such acts which he thinks proper and to propagate his religion. It is settled law that protection under Articles 25 and 26 of the Constitution extends guarantee for rituals and observances, ceremonies and modes of worship which form part and parcel of religion. Practice becomes part of religion only if such practice is found to be an essential and integral part. It is only those practices which are integral part of religion that are protected. What would constitute an essential part of religion or religious practice is to be determined with reference to the doctrine of a particular religion which includes practices which are regarded by the community as part and parcel of that religion. Test has to be applied by courts whether a particular religious practice is regarded by the community practising that particular practice as an integral part of the religion or not. It is also necessary to decide whether the particular practice is religious in character or not and whether the same can be regarded as an integral or essential part of religion, which has to be decided based on evidence. 87. It is not uncommon to find that those (sic) delve deep into scriptures to ascertain the character and status of a particular practice. 87. It is not uncommon to find that those (sic) delve deep into scriptures to ascertain the character and status of a particular practice. It has been authoritatively laid down that cow sacrifice is not an obligatory overt-act for a Muslim to exhibit his religious belief. No fundamental right can be claimed to insist on slaughter of a healthy cow on Bakr Id day. Performance of "sharadha" and offering of "pinda" to ancestors are held to be an integral part of Hindu religion and religious practice. Carrying "trishul" or "trident" and "skull" by a few in a procession to be taken out by a particular community following a particular religion is by itself an integral part of religion. When persons following a particular religion carry trishul, conch or skull in a procession, they merely practise that which is part of their religion which they want to propagate by carrying symbols of their religion such as trishul, conch, etc. If the conscience of a particular community has treated a particular practice as an integral or essential part of religion, the same is protected by Articles 25 and 26 of the Constitution. 88. Therefore, Ananda Margis have the right to take out a procession in public places after obtaining necessary permission from the authorities concerned and they are also entitled to carry trishul or trident, conch or skull so long as such procession is peaceful and does not offend the religious sentiments of other people who equally enjoy the fundamental right to exercise their religious freedom. An Ananda Margi is entitled to transmit or spread religion by taking out procession in public places and also carry trishul, conch or skull. However, any religious right is subject to public order. The State has got ample powers to regulate the secular activities associated with religious practices. Religious activities are protected under Article 25 of the Constitution. No doubt, such religious freedom is subject to health and subject to laws made for social welfare. Every person has got the right to follow, practise and propagate his religion." 25. On a reading of the material on record, we find no complaint or any reference to any act of the Petitioner which would amount to using force, coercion or deception to convert any members of the public to a particular religion. Every person has got the right to follow, practise and propagate his religion." 25. On a reading of the material on record, we find no complaint or any reference to any act of the Petitioner which would amount to using force, coercion or deception to convert any members of the public to a particular religion. The impugned order, other than making reference to the material considered by us in the earlier paragraphs, does not cite a single incident or particulars of forced conversion being indulged in by the Petitioner. In any event, if such was the allegation on a complaint before the Police authorities, there are other penal laws that could deal with such complaints against the Petitioner, and that by itself could not be a cause for the District Magistrate to exercise jurisdiction under Sec. 144 of the Code. The conclusion that the Petitioner and her husband are carrying out religious activities which have raised communal tension in the village or that they are involved in religious conversion by means of allurement or fraud, appears to be totally baseless, not founded upon any material on record and can, therefore, not form the basis for any subjective opinion that the acts of the Petitioner would cause a disturbance of public tranquility or be a matter of public order. The Petitioner and her husband Domnic are within their rights to propagate their own religion and to profess it in any manner that they please though within the bounds of law, more so, when it is within their own private property. We are of the opinion, that by claiming to exercise jurisdiction under Sec. 144 of the Code and prohibiting the Petitioner and Domnic from carrying out any religious activities in their property under Survey No.221/8A and House No.302/4 at Tropawaddo, Sodiem, Siolim, is a direct violation of their fundamental rights enshrined in Article 19(1), Articles 25 and 26 of the Constitution of India, as it seeks to deny them both of their freedom of speech and expression and to their freedom of conscience and the right to freely profess, practice, propagate their religion or form religious institutions. 26. 26. Since the impugned order is in direct breach of the Petitioner's fundamental rights, we are of the considered opinion that even if the Petitioner had an alternate remedy at law, there would be no fetters placed upon this Court from exercising its jurisdiction under Article 226 of the Constitution of India to protect and uphold the Petitioner's fundamental rights, which have been clearly breached by the passing of the impugned order. Merely because the impugned order would have a validity of two months from the date it was passed, considering that it is in direct infringement of the Petitioner's fundamental rights, the same is required to be specifically quashed and set aside, and cannot be considered to have been worked out, merely by the efflux of the period for which it would be valid. 27. For the reasons cited above, we hereby quash and set aside the impugned order dtd. 28/12/2022 passed by the District Magistrate, North Goa against the Petitioner. Rule is made absolute in terms of prayer clauses (2) and (3) of the petition. In the circumstances of the case, there shall be no order as to costs. 28. In view of Rule issued in the main petition all Criminal Misc. Applications stand disposed of.