MAHABIRJI MANDIR COMMITTEE Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Sri Mahabirji Mandir Committee, Aminabad Park, Lucknow, through its General Secretary Ashok Kumar Pathak, Petitioner through this petition under Section 482, Cr. P.C. initiated against him vide Annexure 3 on the ground that the Magistrate had no jurisdiction to initiate the proceedings under Section 145, Cr. P.C. specially when the fact of possession of the petitioner was not disputed and further that the Civil Court being seized of the matter to resort to these proceedings was not justified and is abuse of the process of law.

(2.) The brief facts of the case as disclosed in the application moved by opposite party No. 2 Devendra Lal Shah before the Magistrate contained in Annexure 3 are that the temple known as Mahabirji Temple is an old temple and it was being managed by a committee of respectable persons. It is also alleged that the petitioner Ashok Kumar Pathak had constituted a certain committee and the question of validity of the said committee has been challenged before the Registrar of Societies which is still pending before the Registrar. It is alleged that Pathak family has been using the temple as their property and no proper accounts are being maintained. It is further alleged that the offerings on the deities are being taken by Ashok Pathak for his personal use. From the perusal of this application it appears that the petitioner Committee is in possession of the Mandir but they are misusing the accounts. On this application a police report was called by the City Magistrate, Lucknow. The police submitted its report on 4-7-1991 and according to the police report also Pathak family are using the Mandir premises and they have got their committee registered. The Police further pointed out in its report that on 2-7-1991 one Bachanu Sonker was killed in the Mandir premises over a dispute relating to the recovery of rents of its shops. According to the Police the petitioner committee is illegal and there is dispute between the petitioner committee as well as the committee headed by one Mitra Sen. On receipt of this police report the City Magistrate, Lucknow, passed an order under Section 145(1), Cr. P.C. holding that there existed a dispute about possession of the temple and the offerings and income from the shops. In the said order notices were directed to be issued and the next date was fixed as 22-7-1991. The order passed by the City Magistrate is contained in Annexure 1. It appears that the police again on 7-7-1991 submitted a report that one Raj Kumar Sonkar was killed on 2-7-1991 in front of the Mahabirji temple. The Police further pointed out that this murder was committed because there was a dispute about the ownership of the temple. The police, therefore, made a request that the temple be attached under Section 146, Cr. P.C. to prevent breach of the peace. The Magistrate on receipt of this report passed an order under Section 146, Cr. P.C. attaching the temple and appointing Tahsildar Sadar as Receiver of the temple. The order dated 7-7-1991 is Annexure 2 to this petition. The petitioner on coming to know of this order challenged the order dated 4-7-1991 and 7-7-1991 contained in Annexures 1 and 2 and further prayed for quashing of these proceedings on the ground that the Magistrate committed an error in passing the order under Section 145(1), Cr. P.C. and thereafter the order under Section 146, Cr. P.C. attaching the temple and appointing Tahsildar as receiver of the temple.

(3.) The main ground of attack is that from the perusal of the application moved for initiating the proceedings under Section 145, Cr. P.C. by opposite party No. 2 itself shows possession of the petitioner committee which was a registered society, therefore, there is no dispute about possession of the temple, The learned counsel further pointed out that admittedly Civil Suit No. 12 of 1991 is pending before the Civil Judge, Lucknow for declaration and injunction, therefore the Magistrate was not justified for initiating the proceedings under Section 145, Cr. P.C. It is also not disputed that Mahabirji Temple was being managed by a society and it appears that the petitioner's society was in possession and Managing the affairs of the temple. The said society is also registered under the Societies Registration Act and the dispute raised by opposite party No. 2 about registration of the petitioner committee was also finally disposed of by the Registrar of Societies holding that the petitioner committee is the valid society. He further pointed out that opposite party No. 2 also moved an application for interim injunction as well as for appointment of Receiver before the Civil Judge; Lucknow, but the same were rejected. The petitioner has also filed two letters of the Assistant Registrar of Societies showing that the allegations made against the petitioner's society by opposite party No. 2 were not accepted by the Registrar of Firms, Societies and Chits, Uttar Pradesh, Lucknow. The said letters are contained in Annexures 7 and 8. The petitioner also filed copy of the plaint in Regular Suit No. 12 of 1991 as Annexure 9. In the plaint it is not disputed that the temple was being managed by the petitioner and in para 6 it is stated that Ashok Kumar Pathak, the present General Secretary, usurped moveable and immoveable property of the previous management committee by forming a new management committee with the name and design of Mahabir Ji Mandir Committee, Aminabad Park, Lucknow and in collusive manner they got the same registered on 20-8-1986. It is also not disputed that Krishna Kant was the Head Pujari of the said temple. It is further alleged in para 9 that the petitioner committee is misusing its position and has misappropriated funds of the said temple. On the basis of these allegations as well as admissions it is alleged by the petitioner's counsel that initiation of proceedings under Section 145, Cr. P.C. is not justified.