1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1462 OF 2009 Allwyn Rajendram Mutaiah & Ors. ..Petitioners versus The State of Maharashtra & Anr. ..Respondents Mr. Shirish Gupte– Sr. Advocate with Mr. Udayan S. Jain for Petitioners. Mr. Harshad Ponda, Sr-Advocate with Mr. Ranjeet Pawar for Respondent No. 2. Mrs. R. V. Newton – APP for State. CORAM : S. A. BOBDE, J. DATED : 5TH AUGUST, 2009. P.C. : 1. This petition is filed under Section 482 of the Cr.P.C. for quashing the C.R. No. 104 of 2009 registered with Azad Maidan Police Station, Mumbai under Sections 406 and 409 r/w 34 of Indian Penal Code against the petitioners and also for quashing the investigation. Save the Petitioner No. 2 who is an Auditor of a Trust known as The Bombay Diocesan Trust Association Pvt. Ltd. (BDTA), all the petitioners are Trustees of the BDTA. The Respondent No.1 filed a Complaint with the Police Station in respect of misappropriation of funds by the Petitioners. The police registered an offence and commenced investigation of the case. The investigation is still in progress. 2 2. The main contention on behalf of the petitioners is that the first information report is in respect of an offences under The Bombay Public Trusts Act, 1950 (for short “the Act”). Section 83 of the Act provides that a prosecution for an offence punishable under the Act shall not be instituted without the previous sanction of the Charity Commissioner. No previous sanction having been obtained the registration of the offence under Sections 406 and 409 of Indian Penal Code is illegal. 3 Mr. Ponda, the learned counsel for the respondent No.2 submitted that the FIR is lodged in respect of offences under Sections 406 and 409 of the IPC and not in respect of an offence under the Act. 4. At this juncture, it may be noted that the FIR has been lodged in respect of two acts. Firstly, in respect of the sale of the property of the public trust without the sanction of the Charity Commissioner and secondly in respect of the alleged failure of the trustees to make the statutory contribution to the Public Trusts Administration Fund, and secondly in respect of the alleged failure of the trustees to make the statutory contribution to the Public Trusts Administration Fund under Section 58 of the Act. 5. In regard to the first offence, Mr. Gupte the learned counsel for the 3 petitioners contended that alienation of any property of a public trust without the previous sanction of the Charity Commissioner constitutes a violation of Section 36 of the Act and is punishable as an offence under Section 67 of the Act after the previous sanction of the Charity Commissioner. This contention cannot be accepted in the present case since the allegation in the FIR is that the trustees who are alleged to have sold the property at Clare Road have misappropriated the sale price received by them which constitutes an offence under Sections 406 and 409 of the IPC. The allegation is not of an offence created by or under the Act but that of an offence of misappropriation under Sections 406 and 409 of the IPC. The prosecution in respect of such an offence does not require the previous sanction of the Charity Commissioner. 6. The other allegation is in respect of failure on the part of the trustees to make the statutory contribution under Section 58 of the Act. It is true that failure to make the statutory contribution under Section 58 is made punishable under Section 66 of the Act requires previous sanction of the Charity Commissioner for prosecution. However, the allegation in the present case is appears to be that the trustees have misappropriated the amount which was meant to be contributed to the Public Trusts Administration Fund under Section 58 of the Act. It is true that if the allegations are only that the trustees failed to make a contribution to the 4 Public Trusts Administration Fund, the prosecution would have required the previous sanction of the Charity Commissioner. However, there is more to the present allegations. According to the respondent No.2 the trustees have misappropriated the amount which was meant for contribution to the Public Trusts Administration Fund. Such an allegation makes out an offence under Sections 406 and 409 of the IPC. Even in regard to this therefore the previous sanction of the Charity Commissioner is not necessary. 7. Mr. Ponda, the learned counsel for the respondent No.2 referred to the results of the investigation in order to point out the material that has been collected against the petitioners trustees. It is however not necessary to refer to it for the purposes of this decision. In view of the above, there is no merit in the petition, which is hereby dismissed. 8. At this stage, Mr. Gupte the learned counsel for the petitioners states that the petitioners will appear before the Police within two weeks from today. In the circumstances, it is directed that no coercive steps for arrest and production of the petitioners before the police shall be taken for a period of two weeks from today. (S. A. BOBDE, J.)