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2010 DIGILAW 292 (MP)

Said-ur-rehman v. Mohammad Yusuf Khan

2010-03-11

N.K.MODY

body2010
ORDER 1. Case is listed in default. Learned counsel is directed to cure the default during course of the day. 2. Being aggrieved by the judgment dated 23.11.2009 passed by II ASJ, Fast Track Court, Shujalpur in Cr.A. No. 91/2006 whereby the judgment dated 10.2.2006 passed by JMFC, Shujalpur in Cr. Case No. 12/2003 whereby the petitioner was convicted for the offence alleged to have been committed u/s 68 (3) of Wakf Act and sentenced for a period of six months RI and fine of Rs. 1,000/- was modified by reducing the sentence till rising of the Court and by enhancing the fine amount of Rs. 8,000/-, the present petition has been filed. 3. Short facts of the case are that on 26.9.2003, respondent No.1 filed an application under sections 68 and 73 of the Wakf Act, 1995 before the Court of JMFC, Shujalpur alleging that petitioner has been removed from the post of President/Sadar of the Managing Committee of Jama Masjid situated at Shujalpur vide order dated 11.7.2003 passed byWakfBoard.1t was alleged that against the order of removal petitioner preferred an appeal before the Wakf Tribunal which was dismissed on 21.8.2003 and thereafter vide order dated 9.9.2003 the respondent No.1 has been appointed as President/Sadar. It was alleged that in the facts and circumstances of the case the petitioner be directed to hand over the charge to the new President of the Committee. The said application was contested by the petitioner. Vide order dated 11.11.2003 learned JMFC passed an order whereby the petitioner was directed to hand over the charge within 2 months, against this petitioner approached to this Court and vide order dated 8.1.2004 stayed the operation of the order passed by learned JMFC. Thereafter vide judgment dated 16.1.2004 the petitioner was convicted for a period of six months with fine of Rs. 1,000/- u/s 68 (3) of Wakf Act, against which an appeal was filed which was dismissed vide order dated 20.7.2004, against which a revision was filed before this Court which was numbered as Cr. Rev. No. 553/04 and was disposed of by this Court vide order dated 6.12.2005 with a direction that order dated 16.1.2004 passed by JMFC, Shujalpur in M. Cr. Rev. No. 553/04 and was disposed of by this Court vide order dated 6.12.2005 with a direction that order dated 16.1.2004 passed by JMFC, Shujalpur in M. Cr. Case No. 72/2003 is quashed and the case was remanded back to the learned JMFC for deciding it afresh in accordance with law after taking into account the effect of the stay order if any passed by this Court after giving opportunity to the parties. Thereafter again vide judgment dated 10.2.2006 the petitioner was convicted, against which an appeal was filed wherein the conviction was maintained however sentence was reduced and fine was enhanced, against which the present petition has been filed. 4. Learned counsel for petitioner submits that impugned judgment passed by the learned Courts below are illegal and deserves to be set aside. It is submitted that virtually no trial took place and petitioner was convicted without holding any enquiry/trial. Learned counsel further submits that learned Court below ignored the direction of this Court dated 6.12.2005 in Cr. Rev. No. 558/04 wherein it was specifically directed that learned Court below shall decide the matter afresh in accordance with law taking into consideration the fact of the stay order. Learned counsel further submits that learned Courts below committed error in not taking into consideration section 61 (3) of the Wakf Act before passing the impugned judgment. It is submitted that in the facts and circumstances of the case the petition filed by the petitioner be allowed and impugned judgment passed by the learned Courts below be set aside. 5. Learned counsel for respondent No.2 submits that no illegality has been committed by the learned Courts below in passing the impugned judgment which can be corrected by this Court while exercising the revisional jurisdiction. It is submitted that petition filed by the petitioner be dismissed. Section 68 of the Wakf Act deals with duties of Mutawalli or Committee to deliver possession of records. It is submitted that petition filed by the petitioner be dismissed. Section 68 of the Wakf Act deals with duties of Mutawalli or Committee to deliver possession of records. Sub-section (3) of Sec. 68 lays down :- "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. 6. From perusal of record it appears that operation of the order passed by the Wakf Tribunal dated 21.8.2003 was stayed by this Court vide order dated 8.1.2004 and since in first round of litigation this order was not taken into consideration and the petitioner was convicted, therefore the matter was remanded back by setting aside the judgment passed by the learned Courts below vide order dated 6.12.2005 in Cr. Rev. No. 558/004 with a specific direction that learned Courts below shall take into consideration the impact of the stay order passed by this Court. From perusal of the judgment passed by the appellate Court it is evident that learned Court below has taken into consideration the fact and has observed that since the stay granted by this Court on 8.1.2004 was set aside on 17.12.2004 and stay was in civil case, therefore, it was having no impact on the case. The approach of the learned Court below appears not to be correct since direction was to handover the record within a period of two months. Undisputedly this order dated 8.1.2004 remained in force till 17.12.2004. Apart from this cognizance of the offence could have been taken under sub-section (3) of section 61 of the Act by the Board or officer of the Board upon complaint made by the Board in this behalf. There is nothing on record to show that any complaint was made by the Board or an officer duly authorised by the Board, therefore learned trial Court committed error in taking cognizance of the offence. There is nothing on record to show that any complaint was made by the Board or an officer duly authorised by the Board, therefore learned trial Court committed error in taking cognizance of the offence. Apart from this before convicting the petitioner some sort of evidence was required to be collected but without holding any enquiry the impugned judgment has been passed which is illegal, incorrect and deserves to beset aside. 7. In view of this the petition is allowed and impugned judgment dated 23/11/2009 passed by II ASJ, Fast Track Court, Shujalpur and also the judgment dated 10.2.2006 passed by JMFC, Shujalpur is set aside. The fine amount if any deposited by the petitioner be returned.