Kerala High Court
The Chief Executive Officer vs Mohammed Hashim Sait on 20 June, 2002
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 29TH DAY OF NOVEMBER 2017/8TH AGRAHAYANA, 1939
Crl.Rev.Pet.No. 932 of 2002 ( )
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CMP 3943/2002 of J.M.F.C.-II, KOCHI DATED 20.6.2002
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REVISION PETITIONER(S)/COMPLAINANT :-
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THE CHIEF EXECUTIVE OFFICER,
KERALA WAKF BOARD, PARAMARA ROAD,
ERNAKULAM, KOCHI - 682 018.
BY ADVS.SRI.A.A.ABUL HASSAN, SC, WAKF BOARD
SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD
SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD
SRI.T.P.SAJID, SC, KERALA STATE WAKF BOARD
SRI.SHIBILI NAHA, SC
RESPONDENT(S)/ACCUSED :-
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MOHAMMED HASHIM SAIT, S/O. ISMAYIL SAIT,
39/286, PULLEPPADY, ERNAKULAM, KOCHI - 31.
BY ADV. SRI.H.SUNIL
SRI.V.K.PEERMOHAMED KHAN
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 29-11-2017, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
P.UBAID, J.
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Crl.R.P. No.932 of 2002
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Dated this the 29th day of November 2017
O R D E R
The revision petitioner herein is the Chief Executive Officer of the Kerala State Wakf Board. The respondent herein was the Muthawalli of the Haji Usman Haji Allarakhiya and Ayoob Haji Abdulrahman Trust, which is a Wakf coming under the purview of the Wakf Act. At one point of time, the Wakf Board assumed the management of the Trust on the ground of mismanagement of the Wakf by the Muthawalli, and thus, practically and legally, the Muthawalli stood ousted from his position as Muthawalli. The management of the Wakf was thus taken over by the Wakf Board as per an order passed under the law, and it was notified in the official gazette. Thereafter, the respondent was directed by the Wakf Board to hand over the documents and registers of the Wakf, and also the cash in his hands. When the respondent failed to comply with the directions, the Wakf Board made a complaint before the Judicial First Class Magistrate - II, Kochi alleging the offence under Section 68(2) of the Wakf Act, 1995. The correct penal provision must be Section 68(3) of the Wakf Crl.R.P. No.932 of 2002 -: 2 :- Act. Such offence is punishable with imprisonment for a term, which may extend to six months, or with fine, or with both. On the complaint made by the Wakf Board, the learned Magistrate proceeded for enquiry under the law. Notice was given to the accused also for appearance in court.
2. During the enquiry, four documents were marked on the side of the complainant, and six documents were marked on the side of the respondent (accused). On an examination of the materials collected during the enquiry, the learned Magistrate found that there is no scope to prosecute the accused, and accordingly, the learned Magistrate dismissed the complaint by order dated 20.6.2002. The said order is under challenge in this revision.
3. The very short point for decision in this revision is whether there is violation or non-compliance of the orders passed by the appropriate authority constituted under Section 68(2) of the Wakf Act, for a prosecution under Section 68(3) of the Act. Section 68(1) of the Wakf Act provides that when a Muthawalli or committee of management of a Wakf has been removed by the Wakf Board, the Muthawalli or committee so removed shall handover charge of the accounts and properties, Crl.R.P. No.932 of 2002 -: 3 :- and also deliver the properties to the successor Muthawalli or committee. Sub-section (2) of the Section provides that when the removed Muthawalli or committee failed to handover the documents and registers as directed by the Wakf Board under Sub-section (1), the successor Muthawalli or committee may make an application to the concerned Executive Magistrate within whose jurisdiction the Wakf is situated, for a direction to handover the documents and properties. On getting such a complaint or application, the concerned Executive Magistrate will give notice to the removed Muthawalli or committee, conduct an enquiry, and pass an order directing the removed Muthawalli or committee to deliver the documents and properties. What is punishable under Sub-section (3) is violation or non-compliance of the said order passed by the Executive Magistrate. It is quite clear that what is punishable under Section 68(3) of the Wakf Act is not the order or direction passed by the Wakf Board.
4. In this case, the allegation of the Wakf Board is that the accused/respondent disobeyed the directions of the Wakf Board to handover the registers and properties to the Wakf Board. Of course, once administration of the Wakf is taken over, Crl.R.P. No.932 of 2002 -: 4 :- or assumed by the Wakf Board, the Wakf Board will become the Muthawalli for all legal and practical purposes. If so, the procedure prescribed under Section 68 of the Wakf Act must apply to the Wakf Board also. There is nothing to show that any application was made before the Executive Magistrate by the Wakf Board for appropriate direction to the removed Muthawalli. There is nothing to show that any order was passed by the Executive Magistrate against the removed Muthawalli under Section 68(2) of the Wakf Act. When there is no such order, there cannot be a prosecution, and the removed Muthawalli cannot be punished under Section 68(3) of the Wakf Act, because what is made punishable is not the non-compliance or violation of the orders of the Wakf Board. The Wakf Board will not get the powers of the Executive Magistrate, under Section 68(2) of the Wakf Act. All procedural aspects applicable to the successor committee or Muthawalli must be applicable to the Wakf Board also, once the Wakf Board has assumed the administration of the Wakf as Muthawalli. If violation or non- compliance of the orders passed by the Wakf Board is not punishable under the Wakf Act, no doubt, the Wakf Board can initiate appropriate prosecution under the Indian Penal Code, Crl.R.P. No.932 of 2002 -: 5 :- which is the law generally applicable to all. If any act of any person, including a removed Muthawalli, is punishable under the general law, there is nothing wrong in initiating prosecution under general law, if that situation is not specifically covered, or made punishable under the special law. This Court re-iterates that what is punishable under Section 68(3) of the Wakf Act is non-compliance or violation of the orders of the Executive Magistrate, and not non-compliance or violation of the orders of the Wakf Board. When there is no such order, a prosecution is not possible on the complaint made by the Wakf Board under Section 68(3) of the Wakf Act. I find that there is no scope to proceed on the complaint made by the Wakf Board in this case, and I find that the complaint was rightly dismissed by the court below.
In the result, this revision petition is dismissed.
Sd/-
P.UBAID JUDGE //TRUE COPY// P.A. TO JUDGE Jvt/ds 6.12.2017