JUDGMENT 1. This is a revision petition under which the order dated 19th November, 1983 of the learned Munsiff and Judicial Magistrate, First Class, Tonk taking cognizance of the offence against the accused- petitioner Azizul Haq for an offence under sections 406 and 420 Indian Penal Code has been challenged. 2. The petition arises under the following circumstances. 3. One Shri Habibur Rahman Advocate of Tonk addressed an FIR to the Superintendent of Police., Tonk on 5th February, 1983. In the said FIR it was stated by him that he had received a copy of Tehrir dated 31st December 1982 which had been given to Sadar Zila Wakf Committee. It was further stated in the said FIR that the Secretary of the Committee Shri Shakur Ahmed Khan had informed him that in the absence of keys of iron safe, the said safe had been taken away by somebody and valuable gold plated silver had been stolen. It was also said by him that it was given out by Shri Azizul Haq, petitioner herein, who was appointed as Mutwali of the Wakf that he will prepare an FIR and shall submit it about the theft of the gold plated silver valuables, but no FIR had yet been filed. It also appeared to him that the said statement of the petitioner was made only to delay the matter and in fact he was not interested in lodging the FIR. He further stated in his report that every year in the month of Baravafat on the date of birth of Hazarat Pagember, a function was held in which all the valuables of the Wakf were taken out and the Mutwali, the petitioner herein, himself used to come. The gold plated silver valuables etc. worth lacs always used to be taken out on the occasions and thereafter kept back in iron safe. These valuables were also checked every year. According to the FIR it was given out that sometime in December 1982 on the occasion as aforesaid which was celebrated on the birth of Hazarat Pagembar, the valuable Gold plated silver ornaments had to be taken out, but they were not found. The said Advocate gave out that he is also a member of the Wakf Committee. 4. On the aforesaid report dated 5th February 1983 FIR No. 23 was registered on. 5th February 1983 and investigation was set in motion. The said Advocate gave out that he is also a member of the Wakf Committee. 4. On the aforesaid report dated 5th February 1983 FIR No. 23 was registered on. 5th February 1983 and investigation was set in motion. After investigation a final report No. 67 was submitted to the Magistrate on 4th August 1983 under which it was stated that as a result of the investigation, it appears that no occurrence had taken place. 5. It appears that by the time the final report was submitted Habiur Rahman Khan, Advocate had died and his son filed a protest petition and the learned Magistrate after hearing the parties under the impugned order did not accept the final report, but instead took cognizance of the offence under section 406 and 420 Indian Penal Code as aforesaid. 6. It was contended by the learned counsel for the petitioner that the learned Magistrate has wrongly taken cognizance of the offence. According to the learned counsel the learned Magistrate could have only taken cognizance of the offence in case from the challan papers prima facie the ingredients of the two offences under section 406 and or 420 Indian Penal Code is made out. The learned counsel contends that under the Wakf Act, 1954 (for short the Act ) and more so its Section 25, registration of a Wakf, if any, was a condition precedent and the Act provides a complete machinary for recovery of the Wakf property. According to the learned counsel the property in dispute which are said to have been misappropriated were still in possession of the petitioner and the deceased Navab Mohammad Ismail Ali Khan who was the maternal uncle of the petitioner and who had executed gift of the property and under Mohammedan Law so far as immovable property is concerned, to gift delivery of the property alone is sufficient. Learned counsel, therefore, contends that it was not a case.where on the material on record, the learned Magistrate should have accepted the protest petition and could have taken cognizance of the offence. 7. The Investigating Officer had examined Raj Kumar Sarraf from whom said Advocate is said to have come to know that an attempt was being made to sell melted ingots of silver in the market and said Sarraf in his statement under Section 161 Cr. P. C. did not support the content of FIR. 7. The Investigating Officer had examined Raj Kumar Sarraf from whom said Advocate is said to have come to know that an attempt was being made to sell melted ingots of silver in the market and said Sarraf in his statement under Section 161 Cr. P. C. did not support the content of FIR. The Investigating Officer also said that there is no direct evidence of the alleged theft. Thus, in the final report it was said that there was no direct evidence of the alleged theft. It will be seen from the order taking cognizance of the offence that the learned Magistrate had not taken into consideration these conclusions, of the Investigating Officer. The learned Magistrate has not said that there is any direct evidence of record about the alleged theft. In the absence of any such evidence as aforesaid can it be said that an offence of criminal breach of trust was made out ? Mere entrustment or domain of property alone is not sufficient to make out an offence under section 406 IPC. But apart from it necessary ingredients of Section 406 Indian Penal Code is that a person to whom the property is entrusted, dishonestly misappropriates or converts it to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law. 8. Apart from what has been stated above, even in case of a wakf even ignoring for the present that registration under section 25 of the Act was necessary or is necessary, it will be seen from the perusal of the Act that ample powers are vested in the Wakf Board to take proceedings for recovery of the property belonging to the Wakf, if any. Powers are vested to take action against Mutwali, if any,of the Wakf. Section 36A of that Act makes a clear provision that alienation of wakf property without sanction of Board shall be void. 9. Powers are vested to take action against Mutwali, if any,of the Wakf. Section 36A of that Act makes a clear provision that alienation of wakf property without sanction of Board shall be void. 9. I am, therefore, of the opinion that from the facts as brought out on the investigation prima facie no case under section 406 Indian Penal Code and 380 Indian Penal Code was made out and the learned Magistrate was not correct and the learned Magistrate did not act in accordance with the provisions of law when on protest petition he took cognizance of the offence and did not accept the final report which was submitted by the Investigating Officer after investigation. 10. Consequently, I hereby allow this revision petition, set aside the order dated 19th November 1983 of the learned Magistrate under which he had taken cognizance of the offence against the accused-petitioner. The learned Magistrate is directed to now accept the final report.Revision accepted. *******