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1990 DIGILAW 59 (GUJ)

KHETSHI MEGHJI CHARLA v. GALA NANJI KHETSI

1990-04-20

J.U.MEHTA

body1990
MEHTA, J. ( 1 ) IN both these applications, there is a common question of law and, therefore, common order is passed. ( 2 ) THE petitioners in both the matters have approached this Court against the issuance of the process by the learned Judicial Magistrate, First Class, Bhachau and for quashing and setting aside the order passed by the learned Addl. Sessions judge, Kutch at Bhuj dismissing the Revision Application filed by the accused. The process was issued by the learned Judicial Magistrate, First Class, Bhachau on the complaints filed in his Court under the provisions of the Bombay prevention of Excommunication Act, 1949 (hereinafter referred to as "the said act" ). ( 3 ) IN Criminal Case No. 280 of 1985, process was issued against the petitioner and eleven others on the institution of the private complaint filed by the first respondent. The allegations made in the complaint were that the accused in the case had passed a resolution on 10-5-1984 excommunicating the complainant and thus committed an offence punishable under Sec. 4 of the said Act. The averment was made in the complaint that the District magistrate, Bhuj had accorded sanction for the prosecution of the accused. Against the issuance of the process, the petitioner filed Criminal Revision application No. 41 of 1985 before the learned Addl. Sessions Judge, Kutch at Bhuj, challenging the order of the learned Judicial Magistrate, First Class, bhachu. Similarly, in Criminal Case No. 235 of 1985, process was issued against the petitioner and 15 others on the institution of the private complaint filed by the respondent in Misc. Criminal Application No. 2862 of 1987. The allegation, made in the complaint were that the accused in the said case had passed a resolution on 10-5-1984 excommunicating the complainant and thus committed an offence punishable under Sec. 4 of the said Act. The averment was made in the complaint that the District Magistrate, Bhuj had accorded sanction for the prosecution of the accused. Against the issuance of the process, the petitioner filed Criminal Revision Application No. 42 of 1985 before the learned Addl. Sessions Judge, Kutch at Bhuj, challenging the order of the learned Judicial Magistrate, First Class, Bhachau. The learned addl. The averment was made in the complaint that the District Magistrate, Bhuj had accorded sanction for the prosecution of the accused. Against the issuance of the process, the petitioner filed Criminal Revision Application No. 42 of 1985 before the learned Addl. Sessions Judge, Kutch at Bhuj, challenging the order of the learned Judicial Magistrate, First Class, Bhachau. The learned addl. Sessions Judge, Kutch at Bhuj, after hearing both the sides dismissed the Criminal Revision Application, inter alia, on the ground that even though the Act is declared invalid by the Supreme Court, at this stage the process issued by the learned Magistrate cannot be quashed and the petitioners can take such contention at the time of trial and the learned Magistrate will decide it on merits and this question was kept open by the learned Addl. Sessions Judge, Kutch at Bhuj. The petitioners, therefore have approached this Court under Sec. 482 of Cri. Pro. Code to quash and set aside the process issued by the Court of the learned Judicial Magistrate F. C. Bhachau and for quashing and setting aside the orders passed in the Revision Application. ( 4 ) THE learned Advocate appearing for the petitioners submits that the Court of the learned Judicial Magistrate, F. C. Bhachau could not have taken cognizance of the offence under the provisions of the said Act and could not have issued the process as the Supreme Court, in the case of Sardar Syedna Taher Saifuddin saheb v. State of Bombay, reported in AIR 1962 SC 853 , has held that the bombay Prevention of Excommunication Act, 1949 violates Art. 26 (b) of the constitution and is void and the said legislation is not saved by Art. 25 (2) of the Constitution and, therefore, he submitted that the process issued by the Court below be quashed and set aside and also the orders passed in the aforesaid Criminal revision Applications by the learned Addl. Sessions Judge be quashed and set aside. The learned Advocate appearing on behalf of the respondents as also the learned Addl. Public Prosecutor for the State conceded to the above position. ( 5 ) IN my opinion, the contention raised on behalf of the petitioners should be accepted. Sessions Judge be quashed and set aside. The learned Advocate appearing on behalf of the respondents as also the learned Addl. Public Prosecutor for the State conceded to the above position. ( 5 ) IN my opinion, the contention raised on behalf of the petitioners should be accepted. The Bombay Prevention of Excommunication Act, 1949 was challenged by way of petition under Art. 32 of the Constitution by the petitioner in that case, on the ground that the said Act violates his right and power as dai-ul-Mutlaq and the religious leader of the Dawoodi Bohra community to excommunicate such members of the community as he may think fit anand proper to do; the said right of excommunication and the exercise of that right by the petitioner in the manner aforesaid are matters of religion within the meaning of Art. 26 (b) of the Constitution. It was contended that the said Act violates or infringes both the Arts. 25 and 26 of the Constitution, and to that extent, after the coming into force of the Constitution has become void under Art. 18 of the Constitution. The Supreme Court, after examining the Scheme of the act and the provisions of Arts. 25 and 26 of the Constitution, by majority, held as under :"as the Act invalidates excommunication on any ground whatsoever, including religious grounds it must be held to be in clear violation of the right of the Dawoodi bohara community under Art. 16 (b) of the Constitution". It further held that : "it is unnecessary to consider the other attack on the basis of Art. 25 of the constitution". In para 16 of the judgment, the Supreme Court has held as follows : "our conclusion is that the Act is void being in violation of Art. 26 of the constitution. The contrary view taken by the Bombay High Court in Taher saifuddin v. Tyebbhai Moosaji, AIR 1953 Bom. 183 is not correct". In para 47 it is ordered as under :"we would, therefore, allow the petition, declare the Act to be void and direct the issue of a writ in the nature of mandamus on the respondents, the State of Bombay, not to enforce the provisions of the Act. The petitioner will set his costs". Thus, according to the majority view, the petition was allowed. The petitioner will set his costs". Thus, according to the majority view, the petition was allowed. ( 6 ) THEREFORE, in view of the judgment of the Supreme Court (supra), the process issued by the Court of the learned Judicial Magistrate, F. C. Bhachau should be quashed and set aside. ( 7 ) IN the result, both the miscellaneous Criminal Applications are allowed and the process issued by the Court of the learned Judicial Magistrate, F. C. Bhachau in Criminal Cases Nos. 280 of 1985 and 235 of 1985 under the provisions of Sec. 4 of the Bombay Prevention of Excommunication Act, 1949 is quashed and set aside. The orders passed by the learned Addl. Sessions Judge, Kutch at Bhuj dismissing the Revision Applications by a common judgment are also quashed and set aside. Rule is made absolute accordingly in both the matters. .