KHETSHI MEGHJI CHARLA Vs. GALA NANJI KHETSI

JUDGEMENT

(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. 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.