Bombay High Court

Ganesh Atmaram Mokashe vs State Of Maharashtra on 13 November, 2025

Author: N.J.Jamadar

Bench: N.J.Jamadar

2025:BHC-AS:49085
911 wp 5782 of 2025.doc

Santosh

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

SANTOSH WRIT PETITION NO.5782 OF 2025
SUBHASH
KULKARNI
Digitally signed by
Kailas Kashinath Rathod ... Petitioner
SANTOSH SUBHASH
KULKARNI versus
Date: 2025.11.15
16:12:47 +0530 The State of Maharashtra ... Respondent
WITH
WRIT PETITION NO.5829 OF 2025

Ganesh Atmaram Mokashe ... Petitioner
versus
The State of Maharashtra ... Respondent
WITH
WRIT PETITION NO.5816 OF 2025

Seema Ganesh Mokashe ... Petitioner
versus
The State of Maharashtra ... Respondent
WITH
WRIT PETITION NO.5796 OF 2025

Anushka Ankush Kondra ... Petitioner
versus
The State of Maharashtra ... Respondent

Mr. RajeshMore, for Petitioners.
Mr. P.P.Malshe, APP for State in all matters.
PSI Asalam Mujawar, Kalewadi Police Station with HC Randhir
Bhosale, present.

CORAM : N.J.JAMADAR, J.
DATE : 13th NOVEMBER, 2025

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JUDGMENT :

1. Rule. Rule made returnable forthwith, and, with the consent

of the learned Counsel for the parties, heard finally.

2. As the genesis of all these petitions is the same, the Petitions

were heard together and are being decided by this common

judgment.

3. The Petitioners assail the legality and validity of the notice

under Section 130 of the Bharatiya Nagarik Suraksha Sanhita,

2023 and the subsequent summons issued to the Petitioners.

4. Ganesh Mokashe - Petitioner in WP No.5829 of 2025, was a

member of the Five Garden Co-op. Hsg. Soc. Ltd., Pune. Ganesh

Mokashe was the owner of Row House No.F-1207/08. Ganesh

Mokashe has executed a Gift Deed in respect of the said Row

House in favour of his wife Seema Mokashe - Petitioner in WP

No.5816 of 2025.

5. The Society alleges, maintenance to the tune of

Rs.6,50,000/- is outstanding qua the said row-house. On the said

count, and over the management of the affairs of the Society,

disputes arose between Ganesh and Seema, on the one part, and

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the office bearers of the Committee and other members of the

Society, on the other part.

6. On 1 December 2024, Ganesh Mokashe allegedly parked the

cars across the road in the society, and, thereby caused

obstruction to the movement of vehicles and persons. Seema

Mokashe and Anushka Kondra, the Petitioner in WP No.5796 of

2025, allegedly addressed letters to the members of the Society,

with a view to defame the first informant, who is the Chairman of

the said Society. Kailash Rathod, the driver of Seema and Ganesh

Mokashe, and the Petitioner in WP No.5782 of 2025, had abused

and intimidated the women residents of the Society and had

threatened Dheeraj Garg out of his life.

7. Thus, on 6 January 2025, the Chairman of the Society

lodged a report with the aforesaid allegations, leading to

registration of CR No.7 of 2025 with Kalewadi Police Station,

Pimpri Chinchwad, for the offences punishable under Sections

126(2), 356(2), 79, 352 and 351(1) of BNS.

8. Prior to the registration of the said FIR, Seema Mokashe had

lodged a report leading to the registration of CR No.6 of 2025 with

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Kalewadi Police Station for the offences punishable under Sections

126(2), 49 and 356(2) of BNS against the office bearers/officials of

the society. NC complaints were lodged on 1 December 2024 and 7

December 2024 by Seema Mokashe. Proceedings were also

initiated before the authorities under the Maharashtra Co-op.

Societies Act, 1960.

9. In the wake of the aforesaid dispute, the Executive Magistrate

issued notices under Section 130 of the BNSS calling upon the

Petitioners to show cause as to why the Petitioners shall not be

directed to furnish bond and surety in the sum of Rs.20,000/-

each, for keeping peace, under Section 126 of the BNSS. Asserting

that the petitioners did not appear on the specified dates, the

Executive Magistrate issued a summons under Section 132 of the

BNSS.

10. The petitioners assailed the notice and summons in Revision

before the learned Sessions Judge. By the impugned orders the

Revision Application came to be dismissed.

11. Hence, the petitioners have invoked the writ jurisdiction

assailing the impugned action as mala fide and illegal exercise of

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power conferred under the provisions of Section 126 of the BNSS.

12. Mr. Rajesh More, the learned Counsel for the petitioners,

submitted that, by no stretch of imagination, the dispute between

Ganesh and Seema Mokashe, the members of the Society, and the

office bearers and officials of the Society, can be said to be such as

to warrant action under Section 126 read with Section 130 of the

BNSS. On the basis of solitary FIR No.7 of 2025 registered against

the petitioners by the Chairman of the Society, by way of a

counterblast, to the FIR registered by Seema at a prior point of

time, the Special Executive Magistrate has issued the notice under

Section 130 of the BNSS. The dispute between the parties is

essentially a private dispute with no possibility of breach of peace

and public tranquility. Therefore, the impugned notice under

Section 130 of the BNSS and the consequent Chapter-IX

proceedings deserve to be quashed and set aside.

13. To lend support to these submissions, Mr. More placed

reliance on the judgments in the cases of Rajesh s/o Shamsundar

Kejriwal vs. State of Maharashtra and another 1, Smt. Christalin

Costa and others vs. State of Goa and others2, Sureshchandra

1 2018 All MR (Cri) 1481.

2 1993(2) Mh.L.J. 1409.

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Mahabir Prasad Mantri and others vs. State of Maharashtra and

another3 and Sandeep Shivaji Mhatre and ors. vs. State of

Maharashtra and anr.4.

14. Per contra, Mr. Malshe, the learned APP, made an endeavour

to support the impugned order. It was submitted that the

Executive Magistrate has given an opportunity to the petitioners to

show cause under Section 130 of the BNSS. The petitioners can

very well appear before the Executive Magistrate and show the

cause. No prejudice is likely to be caused to the petitioners if they

participate in the proceedings before the Executive Magistrate and

if they satisfy the Executive Magistrate that the proceedings are

unwarranted, the Executive Magistrate may eventually drop the

proceedings. Therefore, at this stage, no interference is warranted

with the proceedings before the Executive Magistrate and,

therefore, the learned Additional Sessions Judge was justified in

rejecting the revision application.

15. At the outset, it is necessary to note that, the genesis of the

proceedings is in the dispute between Ganesh and Seema, on the

one part, and the office bearers and the officials of the Housing

3 2000(2) Mh.L.J. 633.

4 2014(3) Mh.L.J. (Cri) 45.

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Society, on the other part, arising out of the alleged liability to pay

the maintenance and over the management of the affairs of the

Society. It appears that, the things came to such a pass that

Seema had lodged reports against the office bearers and officials of

the Society and the Chairman, in turn, has lodged the FIR on the

strength of which the instant proceedings have been initiated. In

addition, it seems, proceedings are sub-judice before the Registrar

and Co-operative Court, as well. Evidently, the dispute between

the parties has predominently a civil flavour, nay it falls within the

province of the authority of the Authorities under the Maharashtra

Co-operative Societies Act, 1960.

16. The question that, thus, wrenches to the fore is, whether the

initiation of the proceedings under Chapter IX of BNSS is justified.

It is trite that the scope and nature of Section 126 of the BNSS

(107 of the Code) is preventive and not punitive. Its object is to

ensure that there be no breach of peace and that the public

tranquility be not disturbed by any wrongful or illegal act. Section

126 authorizes the Magistrate to initiate the proceedings against a

person, if upon information he is satisfied that such a person is

either likely to commit breach of peace or disturb public tranquility

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or likely to be commit any wrongful act that might probably

produce the same result. The proceedings under Chapter IX are

essentially preventive in nature and those provisions cannot be

used as a measure to punish or otherwise bring the adversary to

terms, where the element of likelihood of breach of peace and

disturbance to public tranquility is absent.

17. The Courts have frowned upon initiation of the proceedings

under Chapter-VIII of the Code (Chapter-IX of the BNSS) where the

dispute is essentially private, with no apprehension of breach of

peace and public tranquility. In the case of Madhu Limaye and

another vs. Sub-Divisional Magistrate, Monghyr and ors.5, the

Supreme Court expounded the scope and purpose of the

provisions contained in Section 107, in particular, and Chapter-VIII

of the Code, in general. The observations in paragraphs 34 and 47

are instructive and thus extracted below:

34. The section is aimed at persons who cause a reasonable apprehension of conduct likely to lead to a breach of the peace or disturbance of the public tranquility. This is an instance of preventive justice which the courts are intended to administer.

This provision like the preceding one is in aid of orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquility. For this purpose Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order. Therefore the justification for such provisions is

5 AIR 1971 SC 2486.

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claimed by the State to be in the function of the State which embraces not only the punishment of offenders but, as far as possible, the prevention of offences.

.....

47. The gist of the Chapter is the prevention of crimes and disturbances of public tranquility and breaches of the peace. There is no need to prove overt acts although if overt acts have taken place they will have to be considered. The action being preventive is not based on overt act but on the potential danger to be averted. These provisions are thus essentially conceived in the interest of public order in the sense defined by us. They are also in the interest of the general public. If prevention of crimes, and breaches of peace and disturbance of public tranquility are directed to the maintenance of the even tempo of community life there can be no doubt that they are in the interest of public order. As we have shown above 'public order' is an elastic expression which takes within it various meanings according to the context of the law and the existence of special circumstances."

(emphasis supplied)

18. In the case of Sandeep Mhatre (supra), wherein the Chapter

VIII proceedings were initiated on the basis of registration of FIR

against the petitioners therein in connection with a private

dispute, a Division Bench of this Court observed, inter alia, as

under:

"12. It is also pertinent to note that in the present case, the proceedings are initiated under Section 107 of the Cr.P.C. on 05.03.2014 solely on the basis of C.R. No.250 of 2013, which was registered by Byculla Police Station on 19.11.2013 and which is pending trial before the Metropolitan Magistrate, Mazgaon. The said dispute was essentially between two individuals and does not involve any community or public at large. There is nothing in the Roznama entry or the notice to indicate that the petitioner was a habitual offender or that he was involved in criminal activity or that his conduct during the interregnum period was subversive of the peace and public tranquility. The Magistrate has

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not conducted minimal required preliminary inquiry to arrive at a satisfaction that the alleged incident or the conduct of the petitioner was likely to cause breach of the peace or disturbance of the public tranquility but has formed his opinion mechanically, solely on the basis of the solitary FIR and the report forwarded by the Police. It is a settled principle that powers under Section 107 of the Cr.P.C. have to be exercised only in cases of serious nature likely to occasion breach of the peace or disturbance of the public tranquility and not as a vehicle for private vendetta. Since foundation of an order is an apprehension or likelihood of a breach of the peace or public tranquility, such order could not be justified merely on the basis of solitary incident of violence between two individuals."

(emphasis supplied)

19. The aforesaid pronouncement was followed by another

Division Bench in the case of Rajesh Kejriwal (supra). In that case

also, the Division Bench quashed the proceedings as the dispute

between the petitioner and one Ashok Kumar, was essentially a

dispute between two individuals and did not involve any

community or public at large. There was nothing in the impugned

notice indicating that the petitioner was habitual offender or that

he was involved in criminal activity or that his conduct in the

intervening period was subversive of peace and tranquility.

20. In the case of Sureshchandra Mantri (supra), a learned

Single Judge of this Court observed that, the proceedings under

Chapter VIII of the Code were not to be used as a vehicle for

private vendetta. In that case also, like the case at hand, there

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were complaints and cross-complaints and the relations between

the parties were strained and the parties were harbouring feeling

of vendetta against each other and, thus, professed to take help of

police to avenge each other.

21. In the light of the aforesaid position in law, reverting to the

facts of the case, it becomes abundantly clear that, a dispute

between one member and the office bearers and other members of

the Society has spiralled out into multiple proceedings, including

the report and cross-reports to the police. The proceedings have

been initiated before the authorities under the Maharashtra Co-

operative Societies Act, 1960 as well. In the backdrop of these

strained relations and the parties having turned astray, the

initiation of the proceedings under Section 126 of the BNSS on the

basis of a sole FIR registered against the petitioners, in the

absence of any material to show that the petitioners were either

habitually involved in offences, or otherwise posed threat to

maintenance of peace and public tranquility, appeared to be wholly

unwarranted. The element of apprehension of breach of peace and

disturbance to public tranquility is clearly missing. Therefore, the

impugned notice under Section 130 of the BNSS and all

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consequent actions deserve to be quashed and set aside.

22. These factors were not adequately considered by the learned

Additional Sessions Judge. The justifiability of the action was not

decided keeping in view the object and purpose of the proceedings

under Chapter-IX of the BNSS.

23. Resultantly, the impugned orders passed by the learned

Additional Sessions Judge deserve to be quashed and set aside.

Consequently, the notice under Section 130 of the BNSS and all

consequential actions also deserve to be quashed and set aside.

24. Hence, the following order:

:ORDER:

(i)      The petitions stand allowed.

(ii)     The impugned orders passed by the learned Additional

         Sessions Judge stand quashed and set aside.

(iii)    The impugned notices Under Section 130 of the BNSS and