Namdev Sahebrao Garad vs The State Of Maharashtra And ...
2021 Latest Caselaw 2190 Bom

                                                          Cri. W.P. No. 691/19
                                        1

                  IN THE HIGH COURT AT BOMBAY
              APPELLATE SIDE, BENCH AT AURANGABAD

                  CRIMINAL WRIT PETITION NO. 691 OF 2019

       Shri. Namdev Sahebrao Garad
       Age 52 years, Occu. Social Worker
       and Agri., R/o. At post Mohote,
       Tq. Pathardi, Dist. Ahmednagar.              ....Petitioner.

               Versus

1.     The State of Maharashtra
       Through its Principal Secretary,
       Home Department,
       Mantralaya, Mumbai-32.

2.     The Inspector General of Police
       Police Mukhyalaya,
       Mumbai.

3.     The Superintendent of Police,
       Ahmednagar, Dist. Ahmednagar.

4.     The Police Inspector,
       Pathardi Police Station,
       Pathardi, Tal. Pathardi,
       Dist. Ahmednagar.

5.     Shri. Jagadamba Devi Sarvajanik Trust,
       Mohote, Taluka Pathardi,
       Dist. Ahmednagar.
       (Through its Chief Executive Ofcere          ....Respondents.

Mr. A.S. Kale h/f. Mr. Talekar and Associates, Advocate for petitioner.
Mr. M.M. Nerlikar, APP for respondent Nos. 1 to 4.
Mr. Rajendra S. Deshmukh, Senior Counsel for respondent No. 5.

                                CORAM   : T.V. NALAWADE AND
                                          M.G. SEWLIKAR, JJ.

                                RESERVED ON     : 15/01/2021
                                PRONOUNCED ON : 03/02/2021

JUDGMENT : [PER T.V. NALAWADE, J.]

1e             Rule. Rule made returnable forthwith. By consent, heard





                                                             Cri. W.P. No. 691/19


both the sides for fnal disposal.



2e               Following reliefs are claimed in the present proceeding :-

            "Ae     To call entire record of accounts and audits of the

respondent trust from 2009-2019 including details of precious metals collected and procedure undertaken on it and permit copy of the same to the petitioner; Be To direct the respondents to register FIR against the persons involved in commission of crime in light of complaint made by the petitioner, by issuing a writ of mandamus, or any other appropriate writ, order or direction as the case may be;

Ce To supervise and monitor the investigation in respect of alleged complaints, by invoking its inherent and plenary powers;

De To direct the Central Bureau of Intelligence to conduct preliminary inquiry and call for original records from the trust, pending hearing and fnal disposal of this petition;

Ee To direct the respondents to excavate and dig out the alleged enchanted gold hidden under the statue of goddesses of the temple to re-energise the temple and deity, to verify the purity of the gold for the purpose of police investigation, pending hearing and fnal disposal of the petition;

Fe To grant any other relief to which the petitioners are entitled to."

3e The petitioner was trustee for some time of Jagdamba

Devi Sarvajanik Trust and temple of this Goddess is situated at

Cri. W.P. No. 691/19

Mohote, District Ahmednagar. It is his contention that he wants

aforesaid reliefs as he is citizen of India and he is resident of Mohote

where the present property is situated.

4e It is contention of the petitioner that during the year

2011 and afterwards some illegal acts were committed by the

trustees of aforesaid trust and they involve burying of around 2 k.g.

of gold in the name of Yantras and showing additional expenditure of

Rs.25 lakh for doing ceremonies in respect of so called Yantras. It is

submitted that there is clear probability that by showing that Yantras

weighing 2 k.g. of gold were buried, the gold and aforesaid amount

was misappropriated and so, these acts of the trustees need to be

investigated by the police. He has mentioned the names of the

persons who were shown as engaged for creation and burial of the so

called Yantras in the petition and it is contended that the selection

process of the said person was also not proper and that also creates

probability that everything was pre-decided and accordingly,

aforesaid illegal activity is done by the trustees. It is submitted that

though judicial ofcer of the rank of District Judge acts as a Chairman

of the trust, the aforesaid activities were done and the trustees

prepared false documents even when judicial ofcer of aforesaid

rank is involved in the management. It is contended that in the past

also person who was working as Project Ofcer had committed illegal

activities and in the year 2010 inquiry was made against that Project

Cri. W.P. No. 691/19

Ofcer and the same Project Ofcer continued to work as Chief

Executive Ofcer (hereinafter referred to as 'C.E.O.' for shorte of the

trust and this circumstance creates a probability that from many

years such illegal activities of the trust are going on. It is contended

that even the auditor appointed to do the audit was not eligible and

he was not possessing requisite qualifcation for conducting audit

and it also shows that everything was pre-planned.

5e In the petition, other allegations are made in respect of

other irregularities like not showing the account in respect of live

stock given as donation, the development of forest land and

spending amount under other heads without calling tenders etc.

Though these allegations are there, during arguments the learned

counsel for petitioner submitted that he is pressing for relief of

registration of crime and that too, in respect of the so called burial of

2 k.g. of gold and showing expenditure of Rs.25 lakh for so called

religious ceremonies performed for preparation and burial of Yantras

prepared from gold.

6e Along with the petition, a copy of scheme of aforesaid

trust is produced and on that basis, it was submitted that the trust

was created not only for religious objects, but for social objects and

educational objects. It is submitted that the religious objects

involved only Pooja Archana of the deity and to celebrate Utsavas

Cri. W.P. No. 691/19

and functions and that object does not involved burial of gold in the

name of Yantras. It is contended that instead of utilizing the income

of the endowment for the purposes given in the scheme and making

an attempt of upliftment of poor and needy persons and for

providing amenities to the devotees, the aforesaid illegal activity was

done and that was not permissible under the scheme. It is submitted

that due to aforesaid illegal activities star question was raised in

State Legislative Assembly and inquiry was also directed, but a farce

was created of the inquiry and nobody like the trustees cooperated

in the inquiry and no action was taken even when complaints were

made by the petitioner and others in respect of the illegal activities.

Some record in respect of star question is produced and that

includes a communication made to the trust ofce by the

Government and then by Charity Commissioner to Deputy Charity

Commissioner, Ahmednagar. Surprisingly, the administrative staf

like Inspector and Incharge Superintendent submitted some report,

but it did not touch the contention that the aforesaid acts could not

have been done as the scheme did not permit such activity. It can be

said that whatever was informed by the trusties was accepted by the

administrative staf and the inquiry was not made personally by the

Deputy Charity Commissioner. No order in such inquiry is made by

the learned Deputy Charity Commissioner.

7e The record is produced to show that specifc complaint

Cri. W.P. No. 691/19

was made to police by Andhashradha Nirmulan Committee

(hereinafter referred to as 'ANIS' for shorte for requesting to take

action in respect of aforesaid illegal activity and copy of that

complaint is produced on record. It appears that no action was taken

by police on that complaint also.

8e For the trust, reply afdavit is fled through respondent

No. 5, C.E.O. against whom there is a grievance of aforesaid nature

and huge record is produced to justify the aforesaid acts done. The

main contention of the respondent is that P.I.L. No. 41/2014 is fled

on civil side by one Babasaheb Dahifale and in that P.I.L. fled on

28.3.2014 prayer was made to constitute Special Investigation Team

under the chairmanship of retired High Court Judge and the inquiry

be made into the activities of the trustees which include making

inquiry into the illegal activity of the trustees mentioned in the

petition and the management be dissolved for formation of new

scheme for proper management of function of endowment and to

take criminal actions also for cognizable ofences. By way of interim

relief, the relief of injunction was claimed to prevent the Pratishthan

of Yoginimurti (Suvarna Yantrae, fxing of Suvarna Kalash in the

temple premises. It is contended that in view of the nature of reliefs

claimed in the P.I.L. and as no direction was given in the P.I.L., this

Court is not expected to give directions as claimed in the present

proceeding.

Cri. W.P. No. 691/19

9e It is the contention of the respondent that petitioner has

been fling many complaints from 30.7.2015 and all these complaints

were considered by the management and they came to be rejected.

It is contended that one inquiry was made under section 41-B of

Maharashtra Public Trust Act, but nothing revealed in the inquiry. It is

contended that the petitioner was trustee for some time and as he is

not in the management, he is giving false complaints to pressurize

the present management.

10e It is specifcally contended in the reply afdavit that in

the meeting dated 12.9.2010 decision was taken for renovation of

temple and use of 91 Suvarna Yantras which were to be founded

below statutes of various Gods and Goddess. It is contended that by

passing resolution gold weighing 1890 grams was made available by

the trustees and it was given to one Pandit Pradip Jadhav, resident of

Solapur for preparation of Yantras and the amount of Rs.24,55,000/-

was approved as material and labour charges for preparation of

Yantras and for performing the religious rituals.

11e It is contended that after receipt of complaints in respect

of this activity one committee was constituted by the management

and 15 Yantras out of 91 Yantras were inspected through gold valuer

Shri. Soni before burial. These Yantras were buried between 2011

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and 2016. It is contended that in the year 2018 during change of

fooring of platform of temple of Goddess Jagdamba, one such Yantra

was recovered and it is kept in safe custody. It is contended that

most of the Yantras were buried after the religious function and

atleast 14 Yantras were buried in the presence of some villagers in

the year 2016. It is contended that before handing over the gold, it

was tested to ascertain that it was a pure gold and that was done

through Indian Government Mint (I.G.M.e.

12e It is the contention in the reply that the trustees had

given authority to C.E.O. and District Judge to sign cheques and

accordingly, the disbursement of the amount was made. The

deponent was working as C.E.O. even in the past and he has denied

that he was found guilty in previous inquiry. It is his contention that

he was again appointed as C.E.O. after following due procedure.

13e This Court has gone through the record of inquiry made

by clerical staf of the ofce of Deputy Charity Commissioner. Here

only it needs to be mentioned that the learned Deputy Charity

Commissioner has not passed any order which is expected after

making an inquiry and so, it can be said that the learned Deputy

Charity Commissioner has not made inquiry into the matter.

Similarly, even after receipt of the complaint in respect of cognizable

ofence from ANIS, police have not taken action like registration of

Cri. W.P. No. 691/19

the crime and nothing was informed to ANIS about the decision of

the police in the matter. ANIS is allowed to intervene in the present

matter and the learned counsel appointed by ANIS insisted that the

crime needs to be registered. On the basis of the record, which was

created by clerical staf of the ofce of Deputy Charity Commissioner

and the record of so called inquiry prepared by police in to the

matter, it can be said that the authorities have avoided to take

decision in the matter. The sum and substance of the contentions is

already mentioned and this Court is hereinafter mentioning it's

fndings on some points which are for prima facie purpose, for the

purpose of registration of the crime and they are as follows :-

(ie The scheme of trust does not permit the disposal of

the property in the manner in which it is disposed of. The

scheme does not permit the burial of the gold in the name

of Yantras and making of the ceremonies for burial of

Yantras. The scheme also does not permit creation of the

new temple for 64 Yoginis. The scheme shows that if the

amount to be spent is more than Rs.20,000/-, in ordinary

course, tender needs to be invited and then the work can

be given. Thus, the expenditure shown to be made is not

permissible under the scheme. It is a fact that the trust lost

the property of more than Rs. One crore in the alleged

activity of creation of Yantras and burial of Yantras. This

activity was going on from 2011 to 2016, the period during

Cri. W.P. No. 691/19

which even the petitioner was a trustee when the frst

resolution was passed.

(iie Under the Maharashtra Public Trust Act, procedure is

given for disposal of the property of the trust which

involves taking permission of Joint Charity Commissioner.

After taking permission, further procedure like calling

tenders for such work is also there. In the present matter,

there is nothing on the record to show that for particular

reason, it was not possible to call tender. It is surprising

that only one man "Shri. Jadhav" was proposed by architect

Shri. Shinde and he was accepted by all the trustees for

this work. The work was given without verifcation of

competency of Shri. Jadhav in this feld.

(iiie The person "Jadhav" selected for the work could not

give the names of the shops from where the precious

material allegedly used for Pooja was purchased. He has

given value of the material and cost of some items was

more than Rs.2,000/- per gram. There is no base for such

cost and these things cannot be proved practically. Further,

there is discrepancy in the information given about the

actual use of the material and the amount shown to be

spent for purchase of that material. These things need to

Cri. W.P. No. 691/19

be kept in mind as everything was shown to be entrusted to

"Shri. Jadhav."

(ive There is no record to show as to how pure gold

weighing 2 k.g. was utilized. It is the contention of the trust

that when gold ornaments are received in donation, they

are sent to Government mint for purifcation and the

purifed gold is stored in the ofce of trust. Ordinarily for

preparation of any ornament like Pendant which can be

called as Yantra, pure gold cannot be used and some metal

needs to be mixed in pure gold to make it frm. There is no

record of following such procedure. Further, when the gold

is supplied for preparation of such items, ordinarily sheets

of this metal are required to be prepared and those sheets

then can be used for preparation of Yantras. Jadhav could

not have done this at his residential place. Thus, the record

needs to be collected to ascertain as to whether such

sheets were prepared at particular place where machinery

is fxed. Further for preparing 64 Yantras of Yoginis separate

64 moulds were required to be created. These are peculiar

Yantras and moulds are not readily available and they need

to be prepared. There is no record to show that such

moulds were really created through any agency and moulds

were taken over by the trust. Though some photographs

Cri. W.P. No. 691/19

are produced to show that some persons witnessed burial

of few Yantras, that can be a farce as more than 90 Yantras

were to be buried and before burial, the purity of Yantras

for gold ought to have been checked for aforesaid purpose

and then the burial could have taken place. The record

shows that two Yantras are shown to be recovered, but

possibility that such circumstance is created to show that

the aforesaid exercise was really done, cannot be ruled out

at this stage. The absence of record of aforesaid nature has

created probability that all this exercise shown in the

resolution and the correspondence made by trust is false.

The creation of complex to fx 64 Yogini's Yantras, statues

appear to be part of aforesaid modus operandi. Creation of

64 such Goddesses gave room for creating 64 Suvarna

Yantras. For creation of that structure also apparently no

procedure was followed. The religious point in this context

is being discussed afterwards.

(ve It is a fact that the trust lost the property worth more

than Rs. One Crore during aforesaid period and the disposal

of the property was apparently illegal. This act of the

trustees cannot be called as only irregularity. The

circumstances are sufcient to make out the case of breach

of trust for the present purpose. These activities apparently

Cri. W.P. No. 691/19

fall under the ofences punishable under sections 420, 406

etc. of I.P.C. It is also cheating to the poor people who had

donated the ornaments to the endowment for purposes

mentioned in the scheme of the trust.

14e The object behind the Maharashtra Public Trust Act shows

that it was to prevent and stop the prevailing abuses, malpractices

and defects in the administration of such trust and endowment. The

object was also to take measures necessary for removing such

abuses, malpractices and defects. The object was also to take steps

for efective supervision, regulation and control of the administration

and management of the endowment. The object was also to see that

there is more benefcial use and application of the property and

funds of such trusts and endowments and the object was to create

suitable machinery for carrying out aforesaid objects. The Act came

to be amended from time to time to make better provisions for

administration of public, religious trusts. The powers of supervision,

inspection and action of the ofce of Charity Commissioner are given

in Chapter VI and this Court has already observed that the ofce of

Deputy Charity Commissioner failed to take action in the matter. The

penalty provided for contravention of the provisions of the Trust Act

are there in Chapter X, but in view of the peculiar circumstances of

the case, it can be said that more serious ofences are apparently

committed and the provisions of I.P.C. and other special Enactments

Cri. W.P. No. 691/19

mentioned can be safely used. In this Act, restrictions are given on

the powers of the trustees, particularly, the powers to dispose of the

property of the public trust. In case like present one, the acts done in

breach of the provisions cannot be ignored by saying that it is

irregularity and Joint Charity Commissioner could have granted

permission ex-post-facto.

15e The provisions of the Trust Act show that the trustees

need to take practical approach and they are bound by the

provisions of the Trust Act. The trustees may have personal beliefs

but their personal beliefs cannot be used in the management of the

trust. The person who is in management cannot be allowed to spend

or dispose of the property in the manner done in the present matter

for achieving something which cannot be scientifcally proved.

Further, the devotees come to the temple of such Goddess as they

believe in that Goddess. They may not believe in other Goddess or

other things like Yoginis. The devotees may be even against the

Pooja of other Goddess and particularly, Pooja of Yoginies. Most of

the Hindu families have separate God or Goddess and particular

family believes that only that God or Goddess protects the family.

They call it as "Kul Daivat". Thus, if there was some personal belief

of the trustees, they ought to have done it at the residential place

and they ought to have spent amount from their own pocket for such

belief. Attempt was made to show the literature in respect of

Cri. W.P. No. 691/19

Yoginies and some literature was used by architect Shinde to

convince the trustees for having such structure and for burial of

Suvarna Yantras. That literature has no base of sacred books of

Hindus. It was submitted that in Puranas, there is some mention of

Yoginies. There are few temples of Yoginies in India at two to three

places. The temples are situated away from the locality showing that

in that State also Yoginies never lived in populated area if they were

in existence. There is no such temple in Maharashtra. There are

various stories about Yoginies and their Sadhanas. Most of the stories

tell that they believed in Tantra Vidya and they were doing Sadhana

for achieving Sidhi in respect of Tantra. This Court is avoiding to

quote the stories which are about Yoginies and which tell that

Sadhana for Tantra Vidya includes evil and aghori practices. It is

sufcient to mention here that in Maharashtra, there is nothing to

say that Yoginies existed in Maharashtra. On the contrary, Goddess

Mohota Devi also called as Jagdamba was at this place, according to

the belief of Hindus. Thus, apparently, there was no need to have the

structure of Yoginies at this place, but that is shown to be done and

these circumstances cannot be ignored by any authority. The various

kinds of stories about Yoginies also show that promoting the work of

Yoginies may amount to spreading the superstitions. In view of these

circumstances, it cannot be said that the activity of the trustees was

in accordance with common religious belief. Mohota Devi is treated

as Avatar of Adishakti. Adishakti is believed to have all the powers

Cri. W.P. No. 691/19

and Adishakti can do anything. This belief also shows that there was

no need to create other structures and the creation of other

structures of Yoginies was not permitted under the trust scheme. It is

surprising that even when District Judge was Member of the trust he

accepted all the proposals made by Shri. Shinde.

16e In the present trust, two judicial ofcers work as ex-

ofcio members of the trust committee. One judicial ofcer is of the

rank of District Judge and other judicial ofcer is of the rank of Civil

Judge, Junior Division. Civil Judge, Junior Division ordinarily does not

object the decision of District Judge for many reasons. They are

made members with expectation that the administration of the trust

is done properly and no illegal activity is allowed. They are expected

to see that the feelings of the devotees do not get hurt and at the

same time, they are expected to see that the trust does not promote

superstition as spreading superstition is itself ofence in

Maharashtra. The learned Senior Counsel representing trust

submitted that this trust has stopped the practice of animal sacrifce

and the people can give donation of the amount which is the value of

the animal. This is good thing and as there is legislation to prevent

the cruelty to animal, such steps are required to be taken. However,

steps like reformation of devotees by telling them that they should

not have blind belief are also required from the trust. Thus, atleast

the judicial ofcers are expected to do aforesaid two things and they

Cri. W.P. No. 691/19

are expected to guide the other members of the trust committee. For

this endowment, there are donations in the form of money and

ornaments. Many poor devotees came to this temple. Such trust can

take care of the convenience of the devotees by creating shelter for

them during their stay and they can feed them. They can also work

for upliftment of poor people of that locality and they can work for

development of the area where the temple is situated. When these

are expectations from management, these days complaints are

received against many managements that they are not properly

managing the trust and they are spending the money and they are

disposing the property of the trust illegally. In most of the trusts, the

manner of collection of donation and oferings is not proper and that

gives the opportunity to persons in control to misappropriate the

property of trust.

17e For misappropriation of the property of the trust, the

trustees used a circumstance that people generally do not interfere

in religious afairs of the trust. If anybody objects to the activity, he

is condemned by saying that he is hurting religious feelings. Due to

increase of such incidents, time has come to teach lesson to such

trustees. Such action will prevent activities like the present activity

and will also help to check the superstition. The learned Senior

Counsel representing the trust placed reliance on observations made

by the Apex Court in the case reported as AIR 1954 SUPREME

Cri. W.P. No. 691/19

COURT 282 [The Commr., Hindu Regilious Endowments,

Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur

Mutt]. In this case, rights of Mahant of such religious endowment

were considered and discussed. The matters of religion were also

considered which involved tenets of religious sects of Hindu which

prescribes that ofering of food should be given to idol at particular

hours of a day and performing particular ceremonies before idol at

certain periods of the year. The Apex Court has considered Articles

25 and 26 of Constitution of India and restrictions with respect to

matters of religion. It is laid down that in view of Article 26 (de, the

law can leave the right of administration to the religious

denomination itself subject to such restrictions and regulations as it

might choose to impose. It is laid down that a law which takes away

the right of administration from the hands of a religious

denomination altogether and vests it in any other authority would

amount to a violation of the right guaranteed under this Article.

There cannot be dispute over the proposition made by the Apex

Court and law laid down by the Apex Court. The matter involved in

the case which was before the Hon'ble Apex Court was of diferent

nature and facts of the present matter are altogether diferent. For

the purpose of Articles 25 and 26 of Constitution of India, this Court

has already quoted relevant Enactments like Maharashtra Public

Trust Act and the scheme prepared for the present endowment under

this Act. Those are restrictions given for administration of the trust.

Cri. W.P. No. 691/19

Further, there is one more enactment like the Maharashtra

Prevention and Eradication of Human Sacrifce and Other Inhuman,

Evil and Aghori Practices and Black Magic Act, 2013 [hereinafter

referred to as 'Black Magic Act' for short] and those provisions

cannot be fouted by anybody. Reliance was also placed by the

learned Senior Counsel on observations made by the Apex Court in

other case reported as AIR 1954 SUPREME COURT 388 [Ratilal

Panachand Gandhi and Ors. Vs. State of Bombay]. In that case

also, the powers of authority created by the State Act are considered

and that way the case is of no help to the trustees who can be made

accused in the present matter. In the case reported as AIR 1959

SUPREME COURT 860 [Sardar Sarup Singh and ors. Vs. State

of Punjab and ors.], the distinction between clause (de and clause

(ee of Article 26 is discussed and the observations with regard to

fundamental rights of management of religious trust are made. The

observations are similar to the observations made in the frst case

cited by the learned Senior Counsel. In respect of the rights of

religious denomination, another case was cited which is reported as

AIR 1962 SUPREME COURT 853 [Sardar Syedna Taher

Saifuddin Saheb Vs. State of Bombay and Ors.]. It is laid down

that legislation which violates Article 26 (be is void. There cannot be

dispute over this proposition and that proposition is already

discussed in the frst case which was cited by the learned Senior

Counsel representing trustees.

Cri. W.P. No. 691/19

18] The submission made that there is alternate remedy is

not acceptable in the present matter for some reasons already given.

All the authorities are virtually avoiding to take action and the

matters are pending before the authorities for years together.

19e On the other hand, the learned counsel representing the

petitioner placed reliance on following cases :-

(i) Judgment delivered by this Court at Principle Seat in Public Interest Litigation No. 6 of 2015 [Surinder Mohan Arora Vs. Maharashtra State Co-operative Bank Ltd. and Ors.] decided on 22.8.2019,

(ii) MANU/SC/1129/2012 [Anju Chaudhary Vs. State of U.P. and Ors.],

(iii) MANU/SC/0162/2011 [Ashok Kukar Todi Vs. Kishwar Jahan and Ors.],

(iv) MANU/SC/0933/2016 [Manoj Kumar Sharma and Ors. Vs. State of Chhattisgarh and Ors.],

(v) AIR 1965 SC 1651 [Anowar Hussain Vs. Ajoy Kumar Mukherjee and ors.]

(vi) (1991) 3 Supreme Court Cases 655 [V. Veeraswami Vs. Union of India and Ors.].

The cases are mainly on the points like power of the Court to give

direction to register F.I.R., the scope of inquiry which police can make

before registration of the crime. This Court has touched those points

also while discussing the factual aspects of the matter.

Cri. W.P. No. 691/19

20e The learned counsel for petitioner placed reliance on the

decision given recently by this Court in Criminal Writ Petition

No.469/2015 [Rajendra s/o. Ganpatrao Ambhore Vs. The

Union of India and Ors.] dated 5.1.2021. This Court has

considered the efect of the aforesaid Black Magic Act. Object of the

Act is quoted at para No. 17 of the decision and it is as under :-

            "17                 The object of the Black Magic Act is as
            under:

"An Act to bring social awakening and awareness in the society and to create a healthy and safe social environment with a view to protect the common people in the society against the evil and sinister practices thriving on ignorance, and to combat and eradicate human sacrifce and other inhuman, evil, sinister and aghori practices propagated in the name of so called supernatural or magical powers or evil spirits commonly known as black magic by conmen with sinister motive of exploiting the common people in the society and thereby destroying the very social fbre of the society; and for matters connected therewith or incidental thereto."

The relevant defnitions from the Black Magic Act are as under:

"2. (1e In this Act, unless the context requires otherwise,-

(ae ....

(be "human sacrifce and other inhuman, evil and aghori practices and black magic" means the commission of any act, mentioned or described in the Schedule appended to this Act, by any person by himself or caused to be committed through or by instigating any other person;

Cri. W.P. No. 691/19

(ce ....

(de "propagate" means issuance or publication of advertisement, literature, article or book relating to or about human sacrifce and other inhuman, evil and aghori practices and black magic and includes any form of direct or indirect help, abatement, participation or cooperation with regard to human sacrifce and other inhuman, evil and aghori practices and black magic;"

Section 2(2e of the Black Magic Act runs as under:

"2. (1 e .....

(2 e Words and expressions used but not defned herein, shall have respective meanings as assigned to them in the Drugs and Magic Remedies (Objectionable Advertisemente Act, 1954 and the Code."

Entry No.2 in the Schedule given to Black Magic Act runs as under:

"(2e Display of so-called miracles by a person and thereby earning money; and to deceive, defraud and terrorize people by propagation and circulation of so- called miracles."

Entry at item 11(ae is also relevant and it is as under:

"(11e (ae To create an impression that special supernatural powers are present in himself, incarnation of another person or holy spirit or that the devotee was his wife, husband or paramour in the past birth, thereby indulging into sexual activity with such person;"

The aforesaid entries show that when there is a claim that supernatural powers are present in the claimant

Cri. W.P. No. 691/19

like he has achieved Siddhi, that claim is also covered by these items."

This Court has held that the propagation, publication of

advertisement in respect of Hanuman Chalisa Yantra is not allowed

as it amounts the spreading of superstition which is prevented under

this Act. The various sections of the Act are discussed by this Court

and then reliance is placed on Article 51-A of the Constitution of

India.

21e The aforesaid activity of the trustees certainly falls under

the prohibited acts mentioned in aforesaid Black Magic Act. Further,

as already observed the activities are not permitted by the

Maharashtra Public Trust Act and the scheme framed for the present

trust under the Act, this Court has avoided to give the details of the

stories about Yoginies. If the trustees wanted to spread the stories

about Yoginies and about Tantra which is similar to black magic, then

this act was certainly objectionable and prohibited. This Court has no

hesitation to hold that in the present matter, the act which is

prohibited under aforesaid Special Enactment of the State is

committed by the trustees.

22e The record of so called inquiry made by clerical staf of

the trust ofce, inaction on the part of Deputy Charity Commissioner

in the case, show of inquiry made by police into the matter show that

Cri. W.P. No. 691/19

the authorities have no courage to take action even when such

serious thing has happened. That might have happened due to

general fear which may be in the minds of the persons like police

ofcers or judicial ofcers who are of the rank of Civil Judge, Senior

Division working in Charity Commissioner's Ofce and they are

avoiding to take steps against the trust committee which includes

ofcer of the rank of District Judge. The general fear may be of

diferent kind like possibility that they may invite trouble as the

matter involves religious feelings and it can be viewed as act against

God. In view of the Article 51-A of the Constitution of India, this Court

holds that the authorities are expected to work with secular mind in

such case and they need to adhere to the 'truth'. The authority

needs to have scientifc approach in such matters and they need to

adhere to the provisions of law. With that approach they need to

make inquiry and investigation and take action. The authority cannot

accept the religious propositions like made in the present matter for

trustees as such propositions cannot be scientifcally proved. If no

such approach is adopted, 'truth' will always sufer defeat and the

tendency like one shown by the trustees in the present matter will go

on increasing. The report of police shows that they want to wait for

inquiry which can be made under section 41-B of the Trust Act. The

trust ofce did some examination of the record through clerical staf,

but no decision is taken and it shows that they are avoiding to take

action.

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23e The discussion made above shows that many persons

had made an attempt to draw the attention of the authorities to the

illegalities. They avoided to discharge their duty probably for the

reasons quoted above. This Court holds that this Court cannot shirk

its responsibility. This Court holds that even the trustees like the

petitioner who was party earlier, can be made accused as one of the

conspirators. All the trustees who were party to the resolution and

who approved the expenditure subsequently also can be booked for

these illegalities. The complaint is already given by ANIS and that

can be treated as the base for starting the investigation, for

registration of the crime. Intervention application fled by ANIS is

already allowed by this Court and so the following order.

                                     ORDER

            (ie      The petition is allowed.

            (iie     Direction is hereby given to the concerned police

station having jurisdiction over the religious endowment to

register the crime on the basis of complaint dated 7.3.2017

of ANIS for commission of cognizable ofences.

            (iiie    Crime can be registered for the ofence of conspiracy,

            for     the     ofence   of    cheating,   for     the     ofence         of

misappropriation, for the ofence of breach of trust and

also for ofence punishable under the Black Magic Act and

also under the other provisions which police may deem ft.

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(ive In view of the peculiar circumstances of the case,

District Superintendent of Police, Ahmednagar is to see that

the investigation of the matter is made by police ofcer of

the rank of Additional Superintendent of Police or Deputy

Superintendent of Police.

(ve Workers of ANIS are entitled to give more information

to police and the original informant and police need to

collect entire relevant record.

(vie Investigation needs to be completed within six

months from the date of this order.

Rule is made absolute in aforesaid terms.

   [ M.G. SEWLIKAR, J.]                         [T.V. NALAWADE, J.]

               After      pronouncement    of    judgment,       learned        Senior

Counsel Shri. Deshmukh requested for stay to the operative order.

On many occasions, this Court expressed that the counsel appointed

by the trust need to protect the interest of the trust. Today also the

learned Senior Counsel is attempting to protect the interest of the

trustees and not the trust. Giving stay to the order will amount to

give protection to the accused and it will be against the religious

endowment. So, such relief is refused.

       [ M.G. SEWLIKAR, J.]                     [T.V. NALAWADE, J.]

ssc/