Calcutta High Court (Appellete Side)
Sk. Ashraf Ali vs The State Of West Bengal & Another on 28 March, 2014
Author: Tarun Kumar Gupta
Bench: Tarun Kumar Gupta
IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION Present: The Hon'ble Mr. Justice Tarun Kumar Gupta CRR No.169 of 2013 Sk. Ashraf Ali Versus The State of West Bengal & Another For the petitioner : Mr. Soumen Kumar Dutta Mr. Abu Sohil For the O.P. No.2: Mr. Samim Ahammed For the State: Mr. Amartya Ghosh Judgement on: 28th March, 14 Tarun Kumar Gupta, J.:-
The petitioner Sk. Ashraf Ali has filed this application under Section 401 read with Section 482 of the Code of Criminal Procedure praying for setting aside the order dated 29th November, 2012 passed by learned Additional Chief Judicial Magistrate, Contai in Misc. Case No.188 of 2011.
The present petitioner filed one application under Section 68 of the Wakf Act, 1995 (hereinafter to be referred as Act of 1995) in the court of learned Additional Chief Judicial Magistrate, Contai which was registered as Misc. Case No.188 of 2011. The specific case of the petitioner was that he was the Secretary / Mutwalli of MadrasahTarbeateul Quran (hereinafter to be referred as said Madrasah) but due to his ill health he resigned from said post in 2003. Thereafter, opposite party No.2 Abu Taher Khan was selected as the Secretary / Mutawalli of said Madrasah but due to his misconduct he was removed from said post and the petitioner was again selected as the secretary / Mutawalli of said Madrasah by the Managing Committee. The Wakf properties of said Madrasah have since been registered with the appropriate authority under Section 36 of the Act of 1995 under E. C. No.15518 under the name and style "Haji Abdul Majid Wakf Estate". The Board constituted the committee of Mutawalli of 11 persons under Section 63 of said Act of 1995 vide order dated 10th of February, 2010. Said order was communicated by the Chief Executive Officer, Board of Wakfs, West Bengal to all the members of the Mutawalli Committee by a letter being No.1494 dated 22.09.2010. The O. P. in spite of knowing of his removal from the Mutawalliship did not hand over charges and did not deliver records, accounts etc. with the successor of Mutawallis. This prompted the petitioner to file an application under Section 68 (2) of the Act in the court of learned Additional Chief Judicial Magistrate, Contai for passing necessary orders.
The O. P. No.2 appeared in said case and filed a written objection. After contested hearing learned court below was pleased to dismiss said Misc. case on the ground that the application under Section 68(2) was not maintainable in said court and that the same should have been filed in the competent court of Executive Magistrate.
Being aggrieved with said order the petitioner has filed this revisional application.
Learned counsel for the petitioner submits that learned court below wrongly dismissed said Misc. case on the basis of a wrong presumption that the power conferred under Section 68(2) of the Act of 1995 was not upon a Judicial Magistrate but upon an Executive Magistrate. He submits by referring Section 3 of the Criminal Procedure Act that the term "magistrate first class" appearing in Section 68(2) of the Act of 1995 should be deemed to be metropolitan magistrate in case of metropolitan area and judicial magistrate first class in case of area other than the metropolitan area. He next submits that though the private O. P. took the plea in the court below that there was no order of removal of him from the Mutuwalliship of said Wakf Estate under Section 64 of the Act of 1995, but he was already removed by the Managing Committee of the Madrasah and hence there was no need of further order of removal by the Board under Section 64 of the Act of 1995. According to him, learned court below did not consider this aspect of the matter and dismissed the Misc. Case on wrong premises.
Mr. Samim Ahammed appearing for the private O.P., on the other hand, submits that the question of delivery of charge or delivery of possession of records, accounts etc. of a Wakf Estate comes into question only when any Mutawalli or Committee of Management has been removed by the Board under Section 64 of the Act. According to him, in the case in hand, there is no document to show that private O. P. was removed from the Mutawalliship by the Board under Section 64 of the Act. He submits that as there was no order of removal under Section 64 of the Act there was no question of handing over under Section 68(1), and / or for filing any application under Section 68(2) for alleged non- delivery of charge, records etc. His next leg of contention is that in Section 68(2) it was only stated that said application should be filed to any Magistrate of first class within the legal limits of whose jurisdiction any part of Wakf property was situated. According to him, in Section 61 of said Act where penalties were prescribed for violation of duties by Mutawallis it was specifically mentioned that no court inferior to that of a metropolitan or a Judicial Magistrate of the first class shall try any offence punishable under the Act. According to him, when the term "Metropolitan Magistrate" and "Judicial Magistrate of the first class"
were mentioned in Section 61 of the Act but in Section 68(2) it was only mentioned as Magistrate of the first class then it goes without saying that said "Magistrate of the first class" under Section 68 (2) was an Executive Magistrate and not a Judicial Magistrate. In this connection he refers a decision dated 19.10.2006 of the Madras High Court in connection with CRL. R. C. (MD) No.526 of 2006 and M. P. (MD) No.1 of 2006. His last but not least important submission is that by this time the Act of 1995 has been amended by the Wakf (Amendment) Act, 2013 to replace the words "Magistrate of the first class" by the words "District Magistrate, Additional District Magistrate, Sub-Divisional Magistrate or their equivalent". According to him, as the term "Magistrate of the first class"
under Section 68(2) was making some confusion, legislators brought those amendments through Amendment Act of 2013 to remove the confusion.
I have considered the submissions made by learned counsels of the parties and perused the referred case law. The existence of Wakf Estate and its enrolment by the competent authority under Section 36 of the Act of 1995 in 2010 is not disputed. The petitioner took the plea that though the private O. P. acted for some period as a Mutawalli of said estate but he was removed from said Mutawalliship by a unanimous resolution of the Managing Committee who reappointed the petitioner as the Mutawalli. But no such document was filed in support of said claim. It appears that in the written statement filed by the private O. P. in the court below it took a specific plea that as he was not removed from the Mutawalliship by the Board under Section 64 of the Act and said resolution of electing 11 members as Mutawallis after registration of the Wakf Estate was made without giving him an opportunity of being heard, he already filed a case challenging said resolution in the Wakf Tribunal which was registered as OA-16 of 2011. However, no document regarding filing of said case before Tribunal was filed either in the court below or before this Forum. Actually, the questions as to whether the private O. P. was removed from Mutawalliship and whether he was bound to hand over charge and other records etc. to the new Mutawallis can be taken for consideration only after ascertaining the maintainability of the application filed under Section 68(2) of the Act of 1995 in the court of learned Additional Chief Judicial Magistrate, Contai.
Section 68(2), 68(3) and Section 61(4) of the Act of 1995 are reproduced below for sake of convenience:
(2) "Where any removed mutawalli or committee fails to deliver charge or deliver possession of the records, accounts and properties (including cash) to the successor mutawalli or committee within the time specified in sub-section (1), or prevents or obstructs such mutawalli or committee, from obtaining possession thereof after the expiry of the period aforesaid, the successor mutawalli or any member of the9 successor committee may make an application, accompanied by a certified copy of the order appointing such successor mutawalli or committee, to any Magistrate of the first class within the local limits of whose jurisdiction any part of the wakf property is situated and, thereupon, such Magistrate may, after giving notice to the removed mutawalli or members of the removed committee, make an order directing the delivery of charge and possession of such records, accounts and properties (including cash) of the wakf to the successor mutawalli or the committee, as the case may be, within such time as may be specified in the order. (3) Where the removed mutawalli or any member of the removed committee, omits or fails to deliver charge and possession of the records, accounts and properties (including cash) within the time specified by the Magistrate under sub-
section (2), the removed mutawalli or every member of the removed committee, as the case may be, shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to eight thousand rupees, or with both."
61(4). " No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act."
In the referred judgment it was specifically mentioned in a lucid manner as to why the term "Magistrate of the first class" appearing under Section 68(2) of the Act will be deemed to be an Executive Magistrate.
Para 12 and 13 of said judgment are reproduced below:
12. "It has been very specifically stated that a Metropolitan Magistrate or a Judicial Magistrate of the first class concerned has the power to try the offences punishable under the Wakf Act, 1995. The legislature has intended to distinguish the Magistrate of the first class referred to under Section 68 of the Wakf Act, 1995 and a Metropolitan or a Judicial Magistrate of the first class contemplated under Section 61 of the Wakf Act, 1995. When the subject of punishment for the offences committed under the Act is dealt with under the provisions of Section 61 of the Wakf Act, 1995, it has been intended that a Metropolitan Magistrate or a Judicial Magistrate of the first class has the authority to deal with such offences. When the subject of passing an order on production of a certified copy of the order of appointment of successor Mutawalli or Committee is dealt with under Section 68 of the Wakf Act, 1995, it has been intended that any jurisdiction Magistrate of the first class has the authority to issue necessary directions. It is not as if the legislature was not alive to the basic difference between Judicial Magistrate and Magistrate of First Class.
The maintenance of the distinction is reflected in Section 61 (4) and Section 68(2) of the Act. If the legislature has intended to entrust the function contemplated under Section 68(2) of the Wakf Act, 1995 to the Judicial Magistrate of the first class, it would have definitely described so unambiguously conspicuous and the difference found incorporated in Section 61(4) and Section 68(2) of the Wakf Act, 1995 will not be there in the statute.
13. If the orders of the Executive Magistrate of the first class passed under Section 68(2) of the Wakf Act, 1995 is not obeyed in letter and spirit, then it becomes an offence punishable under Section 68(3) of the said Act. When such a disobedience on the part of the erstwhile Mutawalli or the committee becomes punishable under Section 61(3) and 61(4) of the said Act, the Board or the officer duly authorized by the Board has the authority to approach a Metropolitan Magistrate or a Judicial Magistrate of the first class concerned to try the offence and punish the violator of the order."
When legislatures use the term Metropolitan Magistrate and Judicial Magistrate of the first class in some places of the statute and also used the words "Magistrate of the first class" in some other places of the same statute, it has to be accepted that the legislatures in their wisdom used said different terms to differentiate "Magistrate of the first class" from "Metropolitan Magistrate" and "Judicial Magistrate of the first class". The Court should respect the wishes of the legislatures at the time of interpreting different provisions of a statute so long the same were in consonance with other provisions of the statute. In this connection it may not be irrelevant to note that in order to remove said confusion as to whether the term "Magistrate of the first class"
appeared in Section 68(2) of the Act was an Executive Magistrate or a Judicial Magistrate the Amendment Act of 2013 was brought under statute book to replace said term "Magistrate of the first class" by the words "District Magistrate, Additional District Magistrate, Sub-Divisional Magistrate or their equivalent." It is true that said amendment came into force with effect from 20th of September, 2013 and had no retrospective effect, but said subsequent amendment also supported the stand taken by this court at the time of interpreting the nature of "the Magistrate of the first class" as appeared in Section 68(2) of the Act of 1995.
Sub-section (4) of Section 3 of the Criminal Procedure Code, 1973 which is reproduced below also supports the above interpretation.
Section 3 (4):- "Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters -
(a) which involve the appreciation or shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or
(b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate."
As the function to be exercised by the "Magistrate first class" under Section 68(2) of the Act of 1995 is administrative and executive in nature, said Magistrate was meant to be an executive magistrate and not a metropolitan or judicial Magistrate.
Accordingly, I am of the opinion that the impugned order of the learned court below by way of rejecting the application under Section 68 (2) of the Act of 1995 being not maintainable does not call for any interference by this court.
As a result, the revisional application is hereby dismissed on contest. However, I make it clear that this will not prevent the petitioner to file appropriate application in appropriate forum according to law.
No costs.
Urgent photostat certified copy of this judgment be supplied to the learned counsels of the parties, if applied for.
(Tarun Kumar Gupta, J.)