Judicial Analysis Court Copy Headnote Facts Arguments Court observation

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.G.Avachat, J.
Nilesh – Appellant
Versus
Mahesh – Respondent
Crimial Writ Petition No. 505 of 2022
Decided On : 27-04-2022

Advocates Appeared:
V.D.Hon, Advocate, A.D.Shinde, Advocate, A.B.Kale, Advocate, N.E.Deshmukh, Advocate, R.H.Mewara, Advocate, S.P.Sonpawale, Advocate, N.D.Sonawane, Advocate, P.R.Katneshwarkar, Advocate

The mandatory requirement of a preliminary order under Sec. 145(1) of the Cr.P.C. and the limited scope of jurisdiction under Article 227 of the Constitution of India.

Headnote:
Sec. 145 of the Cr.P.C. - Dispute over educational institution management - Sec. 145(1)
Fact of the Case:

The petition challenges a judgment setting aside an order holding the petitioner in control of an educational institution. The Executive Magistrate's order was set aside by the Additional Sessions Judge, leading to the petition.
Finding of the Court:

The court found that the Executive Magistrate's proceedings were not in accordance with the law as a preliminary order under Sec. 145(1) of the Cr.P.C. had not been passed. The court also noted the political pressure exerted on the Executive Magistrate.
Issues: The issues revolved around the legality of the Executive Magistrate's order under Sec. 145(1) and the influence of political pressure on the proceedings.
Ratio Decidendi: The court emphasized the mandatory requirement of a preliminary order under Sec. 145(1) and the limited scope of jurisdiction under Article 227 of the Constitution of India.
Final Decision: The petition was dismissed, and status quo ante was ordered to be restored, allowing the parties to pursue their claims before the appropriate authorities.

JUDGMENT

R.G.AVACHAT,J.

1. Rule. Rule made returnable forthwith and taken up for final hearing with the consent of learned counsel appearing for the respective parties.

2. The challenge in this writ petition under Article 227 of the Constitution of India is to a judgment and order passed by Additional Sessions Judge, Jalgaon on 31/3/2002 in Criminal Revision Application No.2/2019. Vide impugned judgment and order, the Criminal Revision Application (for short C.R.A.) was allowed, setting aside the judgment and order dtd. 7/12/2018 passed by Taluka Executive Magistrate, Jalgaon under Sec. 145 of the Code of Criminal Procedure (Cr.P.C. for short), holding the petitioner herein and respondents No.23 to 39 to be in control and management of "The Jalgaon Jilha Vidya Prasarak Maratha Samaj Ltd. " (for short the educational institution).

3. Facts giving rise to the present petition are as follows :-

The educational institution has its headquarters at Jalgaon. It runs number of schools and colleges at and around the district of Jalgaon. The educational institution has been registered both, under the Maharashtra Co-operative Societies Act and the Maharashtra Public Trusts Act (M.P.T. Act for short). The petitioner and respondents No.23 to 39 claim to be honourary Secretary and trustees respectively of the educational institution registered under the M.P.T. Act. The Jilha Peth Police Station, Jalgaon, on 27/2/2018, submitted submitted the Executive Magistrate a proposal under Sec. 145 of the Cr.P.C. The Executive Magistrate, in turn, issued notice of the said proceedings, and on hearing the parties concerned, passed the order dtd. 7/12/2018, holding the petitioner to be in possession of the office of the educational institution. The order passed by the Executive Magistrate reads thus :-

The said order was taken exception to in (Criminal Revision Application). The learned Additional Sessions Judge, vide its judgment and order dtd. 26/3/2021, remanded the matter back to the Executive Magistrate. The order passed by the learned Additional Sessions Judge was challenged in Criminal Writ Petition, being W.P. No.504/2021.

4. This Court, vide order dtd. 17/11/2021, set aside the order passed by the learned Additional Sessions Judge in C.R.A. No.7/2019. The learned Additional Sessions Judge was directed to decide the C.R.A. afresh after hearing all the parties concerned including the petitioners therein who were initially not parties to the C.R.A. before the Additional Sessions Judge.

5. The learned Additional Sessions Judge, by the impugned judgment and order, set aside the Executive Magistrate 's order dtd. 7/12/2018. The learned Additional Sessions Judge held the proceedings conducted by the Executive Magistrate to have been not in accordance with law since a preliminary order necessarily required to be passed under Sec. 145(1) of the Cr.P.C. had not been passed.

6. Heard. Shri V.D. Hon, learned Senior Counsel representing the petitioner herein would submit that, it was not mandatory to pass a preliminary order under Sec. 145(1) of the Cr.P.C. According to him, the parties to the proceedings contested the matter on merits and, therefore, non-passing of preliminary order lost its efficacy. According to him, reliance was placed on a Full Bench judgment of the Madras High Court in case of A. Dhaveethu Vs. District Collector, Sivagangai District Sivagangai and ors. [2017 Cri.L.J. 329]. The learned Additional Sessions Judge ought to have relied on the said judgment for deciding the C.R.A., particularly when the Special Leave Petition preferred against the order passed by the Full Bench of the Madras High Court was not entertained by the Apex Court.

As regards factual matrix, learned Senior Counsel would submit that, the petitioner and respondents No.23 to 39 have been in management of the educational institution since before 1998. Their names have been recorded in Schedule I maintained with the office of the Assistant Charity Commissioner (A.C.C. fo