The Bombay High Court dismissed a Public Interest Litigation (PIL) filed seeking direction to the state Government to appoint SIT (Special Investigating Team) for cheating, criminal breach of trust conducted by the Private Respondent while performing the functions of the Respondent no.2(Charitable Trust) in the interest of principle of natural justice.
It has been stated by the counsel for the Petitioner that Respondent Nos.3 to 13, who are the trustees of a Charitable Trust, which has been arrayed as Respondent No.2 in this Petition, have committed various criminal acts such as cheating and criminal breach of trust and as such a Special Investigating Team (SIT) be directed to be constituted for investigating such criminal acts.
However, the Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Arif S Doctor noted that is that no First Information Report (FIR) in relation to the alleged criminal acts has been lodged and, accordingly the question of constitution of the SIT for investigating any such alleged criminal act does not arise.
The machinery of criminal law is put to motion either by way of filing FIR or by filing a private complaint under the relevant provisions of the Code of Criminal Procedure, 1908. However, in the present matter, in absence of any FIR or criminal complaint, the question of investigation of any crime does not arise. The prayer made for issuance of direction to the State Government to constitute a SIT is, therefore, highly misconceived.
The other prayer made in the Public Interest Litigation that a direction be issued to transfer the Application of 2022 pending before the Joint Charity Commissioner, Kolhapur to any other Joint Charity Commissioner, to ensure a fair trial of the complaint and to protect the interest of the devotees of the Charitable Trust.
On a query, the counsel for the Petitioner has submitted that the proceedings under Section 41D of the Maharashtra Public Trust Act, 1950 have been instituted by certain trustees against Respondent Nos.3 to 13, however, the Petitioner is not a party to the said proceedings. Thus, seeking a prayer by the Petitioner for transfer of any proceedings, when Petitioner is not a party to such proceedings, in our opinion, will not be tenable.
As regards the third prayer that the pending the hearing and final disposal of the petition, the Respondents, and/or its servants and agents may be restrained from acting as the trustee of the said trust , the Court observed that in case trustees of the Charitable Trust are found to be acting unlawfully, various statutory measures are available to prevent such trustees from acting unlawfully under the provisions of the Maharashtra Public Trust Act, 1950. The proceedings under Section 41D of the said Act have already been instituted.
The counsel for the Petitioner however states that the Petitioner will have no locus to institute such proceedings under Section 41D of the said Act for the reason that such proceedings can be instituted only on the application of trustees or any person interested in the Trust and since it is difficult for the Petitioner to establish that he is person interested in the Trust, if he makes any application under Section 41D of the said Act, the same may not be entertained.
The High Court found that the aforesaid submission of the counsel for the Petitioner is highly misconceived for the reason that the proceedings under Section 41D of the said Act can be initiated by four modes, (a) on an application of a trustee, (b) on an application by any person interested in the trust, (c) suo motu by the Charity Commissioner himself and (d) on receipt of a report under Section 41B of the said Act. Section 41B of the said Act provides for institution of inquiry, which can be instituted by the Charity Commissioner on receipt of a complaint having interest in respect of Public Trust. The Petition states that this Petition has been filed by the devotee of the Charitable Trust/Respondent No.2 and accordingly if he has any grievance regarding functioning of the Trust, he can always take recourse to under Section 41B of the said Act.
