Kerala High Court
P.V.Nidhish vs Annexure R1(A) : A True Copy Of The Order ... on 8 May, 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 3RD DAY OF MARCH 2016/13TH PHALGUNA, 1937
Crl.MC.No. 5072 of 2015
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ST 369/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KOZHIKODE.
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PETITIONERS/ACCUSED 1 TO 3:
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1. P.V.NIDHISH, S/O P.V.CHANDRAN,
PARTNER, M/S. NORMAN PRINTING BUREAU,
DOOR NO.VII/214 AND VII/215, COURT ROAD,
KOZHIKODE.
2. MRS. P.V.HEMALATHA, D/O P.M .KUTTY, AGED 66 YEARS,
PARTNER, M/S. NORMAN PRINTING BUREAU,
DOOR NO.VII/214 AND VII/215, COURT ROAD, KOZHIKODE.
3. M.SASI, AGED 56 YEARS, S/O CHEKKUTY,
DOOR NO.VII/214 AND VII/215, COURT ROAD,
KOZHIKODE.
BY ADV. SRI.T.G.RAJENDRAN
RESPONDNET/COMPLAINANT/STATE:
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1. KERALA STATE WAKF BOARD,
REP. BY ITS AUTHORIZED OFFICER N.RAHIM,
S/O N.MOIDEEN KOYA, LEGAL ASSISTANT,
KERALA STATE WAKF BOARD, DIVISIONAL OFFICE,
EROTH CENTRE, KOZHIKODE - 673571.
2. STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
R1 BY ADV. SRI.K.SHIBILI NAHA, SC
R2 BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD
ON 03-03-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
mbr/
Crl.MC.No. 5072 of 2015
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APPENDIX
PETITIONER(S)' ANNEXURES:
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ANNEXURE I: COPY OF THE COMPLAINT FILED BY THE RESPONDENT
BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE
COURT, KOZHIKODE DATED 8.5.2014.
ANNEXURE II: TRUE COPY OF THE DOCUMENT NO.517 OF 1951.
ANNEXURE III: COPY OF THE RENT RECEIPT FOR THE MONTH JULY 2015.
ANNEXURE IV: TRUE COPY OF THE NOTICE ISSUED BY THE CHIEF
EXE.OFFICE OF THE WAQF BOARD, VIP ROAD, KALOOR,
KOCHI DATED 26.4.14.
ANNEXURE V: TRUE COPY OF THE ORDER ISSUED BY THE CHIEF EXECUTIVE
OFFICER, WAQF BOARD, KOCHI DATED 16.5.2005.
ANNEXURE VI: COPY OF THE DECREE IN OS 147/2001 OF WAQF TRIBUNAL
AND ADDITIONAL DISTRICT JUDGE, KOZHIKODE.
ANNEXURE VII: COPY OF THE ORDER IN CRP 106/08 OF THIS HON'BLE COURT.
RESPONDENT(S)' ANNEXURES:
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ANNEXURE R1(A) : A TRUE COPY OF THE ORDER IN O.A.9/2012 DATED 16.7.2013.
ANNEXURE R1(B) : A TRUE COPY OF THE ORDER IN CRP (WAKF) 375/2012
DATED 5.8.2013.
//TRUE COPY//
P.S.TO JUDGE
mbr/
B. KEMAL PASHA, J.
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Crl.M.C. No.5072 of 2015
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Dated this the 3rd day of March, 2016
O R D E R
~ ~ ~ ~ ~ ~ Petitioners are the accused in ST No.369/2015 of the Judicial First Class Magistrate's Court-I, Kozhikode, for the offence under Section 52A of the Wakf Act, 1995. According to the petitioners, they were continuing as tenants in the property even prior to 1973.
2. The fact that the property in question is a wakf property, is not in dispute. Section 52A of the Wakf Act has been incorporated through an amendment in the year 2013. As per Section 52A(1) of the Wakf Act, whoever alienates or purchases or takes possession of, in any manner whatsoever, either permanently or temporarily, any movable or immovable property being a wakf property, without prior sanction of the Board, shall be punishable with rigorous imprisonment for a term which may extend to two years. Crl.M.C.5072/2015 : 2 : Here, in case there is prior sanction of the Board, no offence under Section 52A(1) would lie.
3. It has come out that the Wakf Board had terminated the tenancy of the petitioners. In such case, the petitioners will come within the definition of 'encroacher' within the meaning of Section 3(ee) of the Wakf Act, 1995, which says that-
" 'encroacher' means any person or institution, public or private, occupying wakf property, in whole or part, without the authority of law and includes a person whose tenancy, lease or licence has expired or has been terminated by mutawalli or the Board."
4. When the tenancy has been terminated by the Board in this particular case, the petitioners have become 'encroacher' within the meaning of Section 3(ee) of the Act. In such case, the offence under Section 52A(1) can be attracted, if its ingredients are proved. As per Section 52A(3) Crl.M.C.5072/2015 : 3 : of the Act, no court shall take cognizance of any offence under this section except on a complaint made by the Board or any officer duly authorised by the State Government in this behalf. Therefore, this is not a matter wherein an investigation by the police is called for. Cognizance can be taken only on a complaint by the Board or any officer duly authorised by the State Government in that behalf. Here, a complaint has been filed by the Kerala State Wakf Board represented by its authorised officer. Presently, there is absolutely nothing to have a premature termination of the prosecution proceedings against the petitioners.
With liberty to the petitioners to take all these contentions before the court below at appropriate stage, this Crl.M.C. is dismissed.
Sd/-
(B.KEMAL PASHA, JUDGE) aks/03/03 // True Copy // PA to Judge