Section 43 of the Bihar Hindu Religious Trust Act, 1950 (Bihar Act I of 1951) does not bar the maintainability of a criminal prosecution against a trustee for failure to comply with the provisions of Section 59 or Section 60 of the Act, where the dispute relates to the nature of the trust itself.

Untwali, J. - These four criminal appeals filed by the complainant namely, Bihar State Religious Trust Board, on grant of special leave under Section 417 (3) of the Code of Criminal Procedure have been heard together, as common questions of law and facts are involved in them. They are all being disposed of by this Judgment.

2. The State Board of Religious Trust, Bihar, (hereinafter, for the sake of brevity, called the Board) launched prosecutions in these four cases against the trustees of some charitable and religious trusts under Section 67 of Bihar Hindu Religious Trust Act, 1950 (Bihar Act I of 1951), hereinafter called the Act, alleging that they have failed to comply, in certain cases, with the provisions of Sub section (1) of Section 59 and in others with those of Sub-section (1) of Section 60 of the Act. Inter alia, the main plea raised in defence by the accused in all the four cases was that the trusts in question were not religious trusts within the meaning of Clause (1) of Section 2 of the Act. They are private trusts and the properties of the trustees appertaining to them are the private properties of the trustees, viz, the mahant or the shebait or the manager, whatever the else may be. The learned Munsif Magistrate has taken the view in all these cases that until and unless there was a determination of the question as to the nature of the trust under Section 43 of the Act by the authority appointed in this behalf by the State Government, hereinafter, for the sake of brevity, called the authority, prosecution of the accused was misconceived and the criminal case against them was not maintainable. In support of the prosecution, the Board adduced evidence to prove their case, chiefly, of the kinds: (1) that in fact the trust in question in a particular case is a religious trust (for the sake of convenience hereinafter to be called the public trust) within the meaning of Clause (1) of Section 2 of the Act, and (2) that in past the trustee had submitted to the jurisdiction of the Board by filling returns under Section 59, by filing budgets under Section 60, or by payment of fees under Section 70 of the Act. That is to say, by their statements and conduct they had acquiesced in the fact that the trust was a public one, subject to the jurisdiction of the Act or had waived their right to object to its being so. The learned Munsif Magistrate has not recorded any clear finding in any of the cases in regard to the two questions of fact aforesaid, which must be stated at this stage are mixed question of fact and law.

3. Mr. A. N. Sahay, appearing for the appellant, submitted that the view of law taken by the court below with reference to the provisions of Section 43 of the Act is erroneous. It is contrary to the view taken by Ramaswami, C. J. in (1) Bihar State Board of Religious Trusts V. Laksman Kuer and another (Second Appeal No. 1287 of 1959 decided on the 26th of October, 1960). Learned counsel submitted that in terms or in substance Section 43 is not attracted for determination of a dispute as to the character of the trust itself; this has to be determined, in the first instance, by the Board and later on by any competent court where this question falls for determination. The non-determination of this dispute by the authority is no bar to the maintainability of the criminal case filed by the appellant. In reply, learned counsel, appearing for the respondents in all these appeals, submitted on the authority of the decision of Choudhary, J. in (2) Mossamat Champa Sahun V. The Bihar Religious Trust Board, Patna (Criminal Revision No. 170 of 1961 decided on the 24th of August, 1961) that the view expressed by the court below in this regard is correct.

4. In (3) Mahanth Ramswaroopdas Ji V. The Bihar State Board of Religious Trusts (1955 B.L.J.R. 88), a view was expressed by a bench of this Court that the language of Section 2 (1) of the Act was wide enough to cover within its ambit the (Sic) private and public Trusts, e