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Andhra High Court · body

2007 DIGILAW 72 (AP)

Syed Azher Hussain v. Iqbal Ahmed Khan

2007-01-23

G.YETHIRAJULU

body2007
Judgment :- (Petitioner under Section 482 of Crl.P.C praying that in the circumstances stated in the memo of grounds filed therewith, the High Court will be pleased to quash the FIR No.130/04, dt.29.07.04 on the file of the Police Station, Nirmal Town, Adilabad District in the interest of justice and equality.) This petition has been filed U/s 482 of the Code of Criminal Procedure to quash the proceedings in Cr.No.130/2004 on the file of the Nirmal Town Police Station, Adilabad District for the offence U/s 406, 417 and 477-A, IPC. The complaint has been filed by respondents 1 and 2 to prosecute the accused for failing to furnish the accounts to the new office bearers even after the expiry of the term. The learned counsel for the petitioner submitted that a separate procedure has been provided in Section 68 of the Wakf Act, 1995 (for short the “Act”) and it delineates the procedure on account of failure of Mutawalli or committee to deliver possession of the records to the successors. Section 68 of the Act reads as follows: “68. Duty of mutawalli or committee to deliver possession of records, etc:- (1) where any mutawalli or committee of management has been removed by the board in accordance with the provisions of this Act, or of any scheme made by the Board, the mutawalli or the committee so removed from the office (hereinafter in this section referred to as the removed mutawalli or committee) shall hand over charge and deliver possession of the records, accounts and properties of the wakf (including cash) to the successor mutawalli or the successor committee, within one month from the date specified in the order. (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 the 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 situate 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. (4) whenever any removed mutawalli or any member of the removed committee omits or fails to comply with the orders made by the Magistrate under sub-section (2), the Magistrate may authorized the successor mutawalli or committee to take charge and possession of the such records, accounts properties (including case) and may authorized such person to take such police assistance as may be necessary for the purpose. (5) No order of appointment of the successor mutawalli or committee shall be called in question in the proceedings before the Magistrate under this section. (5) No order of appointment of the successor mutawalli or committee shall be called in question in the proceedings before the Magistrate under this section. (6) Nothing contained in this section shall bar the institution of any suit in a competent civil court by any person aggrieved by any order made under this section, to establish that he has right, tile and interest in the properties specified in the order made by the Magistrate under sub-section (2)” Sub-section (2) and (3) of Section 68 of the Act is very clear that if the removed mutawalli or committee fails to deliver possession of the records etc., to the successor mutawalli or committee, the successor committee has to make an application to the First Class Magistrate, who has jurisdiction, and the Magistrate after giving notice to the removed mutawalli or the committee has to make an order directing delivery of the charge and possession of such records, accounts and properties of the wakf to the successor mutawalli or the committee and if they fail to do so, the Magistrate is empowered to convict each of such person and sentence each of them to undergo imprisonment for a term which may extend to six months or with fine which may extend to eight thousand rupees or with both. In the light of the above procedure prescribed under the Act, the general provisions of the Indian Penal Code are not applicable for non delivery of records, accounts etc by the removed mutawalli or committee. Therefore the present FIR registered for the offence under the provisions of Indian Penal Code cannot be sustained. The petition is accordingly ordered and the proceedings in FIR No.130/2004, dated 29-7-2004 on the file of the Nirmal Town police station, Adilabad District initiated against the petitioners are hereby quashed. However it is clarified that the complainant is at liberty to make an application to the Magistrate having jurisdiction U/s 68 of the Act and obtain appropriate orders.