Kerala High Court
Puthukkodi Aboobacker vs Kerala State Wakf Board on 5 September, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.MC. NO.4766 OF 2017
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2024:KER:67902
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 5TH DAY OF SEPTEMBER 2024 / 14TH BHADRA, 1946
CRL.MC NO. 4766 OF 2017
AGAINST THE ORDER/JUDGMENT DATED IN CC NO.1992 OF
2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS-1, TIRUR
NAME AND ADDRESS OF THE PETITIONERS/ACCUSED 2 TO 4:
1 PUTHUKKODI ABOOBACKER
AGED 54 YEARS, S/O.MUHAMMED, PUTHUKUDI
HOUSE,VADAKKUMPURAM PO, VALANCHERRY,
MALAPPURAM - 676 552
2 PALAKKAL SHEREEF
AGED 42 YEARS, S/O.MUHAMMED KUTTY,
PALAKKAL HOUSE,P.O.EDAYOOR NORTH,
VALANCHERRY, MALAPPURAM - 676 552
3 VALIYAPARAMBIL SASDAKATHULLA
AGED 62 YEARS, S/O.KUNJU MARAKKARA,
VALIYAPARAMBIL HOUSE, P.O.EDAYOOR NORTH,
VALANCHERRY, MALAPPURAM 676 552
BY ADVS.
SRI.BABU KARUKAPADATH
SMT.AMRIN FATHIMA
SRI.K.M.FAISAL KALAMASSERY
SRI.MITHUN BABY JOHN
SRI.J.RAMKUMAR
SMT.M.A.VAHEEDA BABU
SRI.P.U.VINOD KUMAR
CRL.MC. NO.4766 OF 2017
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NAME AND ADDRESS OF THE RESPONDENTS:
1 KERALA STATE WAKF BOARD
REPRESENTED BY ITS AUTHORIZED OFFICER
SHRI RAHMATHULLA NALAKATH, DIVISIONAL
OFFICER, KERALA STATE WAKF BOARD OFFICE,
KSEB BHAVAN, MANJERI KOZHIKODE ROAD,
MALAPPURAM - 676 552
2 STATE OF KERALA
REPRESENTED BY SUB INSPECTOR OF POLICE,
VALANCHERRY POLICE STATION, MALAPPURAM
DISTRICT, THROUGH THE PUBLIC
PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM - 682 031
BY ADV.:
SRI. JAMSHEED HAFIZ, SC - R1
SRI.SANAL.P.RAJ, PP - R2
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY
HEARD ON 05.09.2024, THE COURT ON THE SAME DAY
PASSED THE FOLLOWING:
CRL.MC. NO.4766 OF 2017
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P.V.KUNHIKRISHNAN, J.
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Crl.M.C. No.4766 of 2017
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Dated this the 05th day of September, 2024
ORDER
The petitioners are accused Nos. 2 to 4 in CC No.1992/2015 on the file of Judicial First Class Magistrate Court-1, Tirur. It is a prosecution initiated by the 1st respondent under Section 52A of the Waqf Act.
2. The main allegation against the petitioners is that, they were persons in administration of Waqf till April 2014 and the Administrator of the Board had passed an order dated 05.04.2014 appointing an interim Muttawalli for the administration of the above Moonnakal Waqf. It is submitted that, as per Section 32 of the CRL.MC. NO.4766 OF 2017 4 2024:KER:67902 Waqf Act, 1995, all the Auquaf in the state are under the supervision and control of the complainant Board. It is further submitted that, the 1st accused in the case had taken possession of the Waqf property from the accused numbers 2 to 4, who are the petitioners herein. It is submitted that, accused Nos.2 to 4 are responsible for the alienation of Waqf property from the year 2004 without obtaining prior sanction of the Board as required under Section 56 of the Waqf Act. Therefore, it is alleged that the accused are liable to be prosecuted under Section 52A of the Waqf Act. According to the petitioners, the prosecution is unsustainable. Hence, this Criminal Miscellaneous Case is filed.
3. Heard the learned counsel appearing for the petitioners and the learned Standing Counsel appearing for the 1st respondent. I also heard the CRL.MC. NO.4766 OF 2017 5 2024:KER:67902 learned Public Prosecutor.
4. The short point raised by the counsel appearing for the petitioners is that, Section 52A of the Waqf Act was inserted only in the year 2013 by Act 2013. It is submitted that the alleged transfer of the property by the petitioners to the 1 st accused is in the year 2004. Therefore, as on the date of the alleged act, even if it is accepted, there cannot be any prosecution under Section 52A of the Waqf Act because, as on that date Section 52A of the Waqf Act was not in the statute book. I think, there is force in the above argument.
5. The admitted case is that, the alienation was in the year 2004. As on that date, Section 52A of Waqf Act was not in the statute book. Therefore, the prosecution can be initiated only if an act is punishable as on the date of occurrence. In this case, even if the entire allegations are accepted as on the date of the alleged offence, the same is not CRL.MC. NO.4766 OF 2017 6 2024:KER:67902 an offence as on that date. Hence, criminal prosecution is not possible.
6. The counsel for the petitioners also takes me through paragraph No.2 of Annexure-A4 order and submitted that the petitioners were not in charge of the Waqf. That question need not be considered. Since, as on the date of the alleged act, Section 52A of the Waqf Act is not in the statute book, the prosecution against the petitioners are liable to be quashed.
Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioners in CC No.1992/2015 on the files of Judicial First Class Magistrate Court-1, Tirur are quashed.
Sd/-
P.V.KUNHIKRISHNAN JUDGE nvj CRL.MC. NO.4766 OF 2017 7 2024:KER:67902 APPENDIX OF CRL.MC 4766/2017 PETITIONER ANNEXURES ANNEXURE A1 A TRUE COPY OF THE LEDGER EXTRACT OF MOONAKKAL JUMA MASJID PERTAINING TO THE DAILY DEPOSIT OF THE RENT FROM 05.02.2008 TO 09.07.2014 MADE BY SHRI. MUHAMMED KUTTY PERINGODAN ANNEXURE A2 A TRUE COPY OF THE ORDER DATED 30.07.2009 IN IA.NO. 96/2007 IN OP.NO. 127/2007 OF THE KERALA STATE WAKF BOARD ANNEXURE A3 A TRUE COPY OF THE ORDER DATED 17.08.2010 OF THE CHIEF EXECUTIVE OFFICER OF THE WAKF BOARD ANNEXURE A4 A TRUE COPY OF THE ORDER DATED 05.04.2014 IN EP.NO. 6041 OF CR OF THE KERALA STATE WAKF BOARD ANNEXURE A5 TRUE COPIES OF THE RETURN/STATEMENT OF ACCOUNTS APPROVED BY THE WAKF BOARD OF THE YEARS 2008-2009 TO 2012-13 ANNEXURE A TRUE COPY OF THE ASSESSMENT ORDER A5(a) ISSUED BY THE WAKF BOARD OF THE YEARS 2008-2009 TO 2012-2013 ANNEXURE A6 A TRUE COPY OF THE COMPLAINT IN CC.NO. 1992/2015 ON THE FILE OF THE HON'BLE JFCM COURT I, TIRUR RESPONDENTS EXHIBITS :NIL //TRUE COPY// PA TO JUDGE