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Madhya Pradesh High Court · body

2018 DIGILAW 211 (MP)

MUHIUDDIN v. ABDUL RAZZAK

2018-02-22

ATUL SREEDHARAN

body2018
ORDER : – The petitioners have filed the present petition being aggrieved by the order dated 3-10-2012 whereby charges have been framed by the learned Court below under section 68(2) of the Wakf Act, 1995 (hereinafter referred to as ‘the Act’) against the petitioners. 2. The petitioners were the erstwhile members of the Wakf Committee, who were removed by the order of the Wakf Board and were asked to handover charge to the respondents, who were members of the new Wakf Committee. As the petitioners herein had failed to do so, a complaint was preferred against them by the respondents herein, which is at page 15 of this petition as Annexure A/6. After having taken evidence under section 200, Criminal Procedure Code, the petitioners were summoned before the trial Court and thereafter the impugned order dated 3-10-2012 was passed which is Annexure A/2 and the charges framed pursuant thereto are Annexure A/2 and A/3 at page 11 and 12 with the petition. The operative portion of Annexure A/2 and A/3 which frames charge against the petitioners under section 68(2) of the Act records that after the order of the Board dated 14-11-2011 was passed asking the petitioners herein to handover the charge and the documents and records in their possession to the new Wakf Committee, and upon their refusal to do so, the offence under section 68(2) appears to have been committed and therefore charge against the petitioners was framed under section 68(2) of the Act. 3. Heard the learned counsel for the parties. Learned counsel for the petitioners has submitted that the order framing charge is erroneous and is liable to be set aside, as section 68(2) of the Wakf Act is not a punitive section but a procedural one wherein it is laid down that the outgoing committee shall handover the charge of the Wakf Committee to the newly appointed committee by the Board and in the event they fail to do so, an application was to be filed before the learned Judicial Magistrate First Class and it would be the Judicial Magistrate First Class who would then pass an order to the outgoing committee to act in the terms of sub-section (2) of section 68, whereby it would be necessary to handover the documents and the records in the custody of the outgoing committee, to the new committee. If even after the passing of such an order by the learned J.M.F.C, the outgoing committee failed to comply with the order, then an offence under sub-section (3) of section 68 of the Act would be committed which would expose the offenders to a maximum jail term of six months or fine which may extend to eight thousand rupees or with both. Sub-section (4) of section 68 makes it amply clear that in the proceedings before the J.M.F.C., under sub-section (2) of section 68, the order of the Wakf Board shall not be called into question either for its competence or legality. 4. Learned counsel for the respondents on the other hand has supported the order framed by the learned Court below and has stated that the offence under sub-section (2) of section 68 was committed because the outgoing committee has not handed over the records and the charge to the new committee. 5. The undisputed facts in this case are that the petitioners herein were the members of the earlier Wakf Committee who were removed by the Wakf Board and that the respondents were the members of the new committee. The second undisputed fact in this case is that the procedure under section 68(2) of the Act whereby the new committee ought to have made an application before the learned J.M.F.C. for a direction from the learned Court below to the outgoing committee to handover the records and charge of the office to the new committee, was never done. It is also undisputed that straight away the new committee approached the Court of the learned Judicial Magistrate First Class in a complaint case seeking the prosecution of the petitioners for an offence under section 68(2) of the Wakf Act. 6. Having heard learned counsel for the parties and having gone through the record of the case, this Court is of the opinion that the revision must be allowed for the following reasons. Firstly, the charge has been framed under section 68(2) of the Wakf Act, 1995. That is an error as section 68(2) is a substantive provision which lays down the constituents or ingredients of the offence which is punishable under sub-section (3) of section 68. Under the circumstances, the punitive section being sub-section (3) of section 68 of the Act, the charge could not have been framed under section 68(2). That is an error as section 68(2) is a substantive provision which lays down the constituents or ingredients of the offence which is punishable under sub-section (3) of section 68. Under the circumstances, the punitive section being sub-section (3) of section 68 of the Act, the charge could not have been framed under section 68(2). That is the first error which is noted in the order framing charges. The second error is that the procedure mandated under sub-section (2) of section 68 was never carried out before the learned J.M.F.C. No such application under section 68(2) was preferred before the learned J.M.F.C. to pass an order to the outgoing committee to abide by the provisions of sub-section (1) and (2) of section 68. Therefore, without compliance of sub-section (2) of section 68, the offence under sub-section (3) of section 68 of the Wakf Act, could not have been committed.