Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 532 (ALL)

Arshad Rashid Khan v. State of U. P.

2020-02-18

DINESH KUMAR SINGH I

body2020
JUDGMENT : Dinesh Kumar Singh-I, J. 1. Heard the arguments advanced by Shri W.H. Khan, learned Senior Counsel assisted by Shri Javed Hussain Khan, learned counsel for the applicant and Shri Attrey Dutt Mishra, learned A.G.A. for the State of Uttar Pradesh and perused the material available on record. 2. This application under Section 482 of the Code of Criminal Procedure, 19731 has been moved on behalf of the applicant with a prayer to quash the entire criminal proceedings initiated against the applicant in Case No. 22 of 2016, arising out of Case Crime No. 465 of 2009 (State v. Arshad Rashid Khan), under Section 7/13(d)(ii) of Prevention of Corruption Act, 19882, as well as to quash the F.I.R. dated 19.05.2009, charge-sheet dated 20.08.2016 and summoning order dated 04.11.2016. 3. Submission made by learned counsel for the applicant is that the order dated 31.01.2000, which has been passed by the accused-applicant in respect of Waqf No. 102-A, Moradabad is a judicial order, therefore, the applicant would have protection of the umbrella of [The] Judges (Protection) Act, 1985 (Act No. 59 of 1985)3. Therefore, in case the said order was erroneous, that would not be a ground to prosecute the applicant. In this regard, he has placed reliance upon the judgment of this Court in Vijendra Pal Singh v. High Court of Judicature at Allahabad and others, 2009 (2) AWC 1243 , the judgment of Bombay High Court in Pravin Niwritti Sawant v. Hon'ble Shri J.B. Anandgaonkar Saheb, Ex. JMFC, Ichalkaranji & Ors.: 2008 CRI.L.J. 984 and the judgment of Hon'ble Apex Court in Ramesh Chander Singh v. High Court of Allahabad and Another (2007) 4 SCC 247 . 4. On the other hand, learned A.G.A. has vehemently opposed the quashing of the charge-sheet as well as the cognisance order, stating that the order dated 31.01.2000 has been passed by the accused-applicant with mala fide intention in order to provide illegal benefit to the persons who had purchased the waqf property illegally, which was sold to several persons in violation of the provisions of law. Consequent upon coming into light that the mutawalli (manager) of the said Waqf property has alienated it in contravention to the provisions of law on the basis of forged permission purported to have been granted by the Waqf Board, the said property was ordered to be recovered under Section 49B of the U.P. Muslim Waqfs Act, 19604 and the mutawalli Mohd. Ayyub, who had executed the said sale deeds, was removed and another person, namely, Chaman Begum, was appointed as administrator by one Farhat Ali, earlier Controller of the Waqf Board vide order dated 12.06.1990. The said order was later on reviewed by the accused-applicant, by his order dated 31.01.2000 and the sale deeds which were earlier declared to be invalid, were declared by him to be valid and mutawalli-ship of Mohd. Ayyub was restored. 5. Before appreciating the arguments advanced by learned counsel for the parties, it would be appropriate to mention, in succinct, facts of the present case, which are as follows:- Shri Prahlad Singh Tyagi, Inspector, Uttar Pradesh Vigilance Establishment, Bareilly Sector, lodged an F.I.R. against the applicant along with two other co-accused, namely, Mohd. Ayyub and Mohd. Anas, under Sections 420, 467, 468, 471 and 120 of the Indian Penal Code, 18605 and Section 7/13(d)(ii) of the Act of 1988, registered as Case Crime No. 465 of 2009 at Police Station-Civil Lines, District-Moradabad on 19.05.2009 at 10.00 a.m., wherein it has been mentioned by him that one complaint was received, dated 25.05.2000, by the Uttar Pradesh Vigilance Establishment through confidential letter dated 14.06.2001 in respect of holding of an open enquiry. The said complaint pertained to the allegations made against the Waqf Boards of Districts-Bareilly, Badaun, Pilibhit and Moradabad. Pursuant to the holding of enquiry, which was assigned to Bareilly sector, a report was made available to the Government of U.P. on 20.12.2006. After consideration thereon, the Government vide order dated 20.03.2009, directed for registration of the case in respect of Waqf Property No. 102-A of Moradabad and for investigation to be held. The said waqf property located in Mohalla Bhatti, Moradabad, in the jurisdiction of Police Station-Civil Lines, was being looked after as mutawalli by one Mohd. Ayyub. After consideration thereon, the Government vide order dated 20.03.2009, directed for registration of the case in respect of Waqf Property No. 102-A of Moradabad and for investigation to be held. The said waqf property located in Mohalla Bhatti, Moradabad, in the jurisdiction of Police Station-Civil Lines, was being looked after as mutawalli by one Mohd. Ayyub. On the basis of sale permission dated 12.08.1978, the said mutawalli sold the said waqf property to other persons, who have been named in the F.I.R., but the then Controller of Sunni Waqf Board, namely, Farhat Ali, sent a letter to District Magistrate, Moradabad, requesting therein that the said properties were sold on the basis of forged sale permission and hence, they should be restored to the waqf and he had also dismissed Mohd. Ayyub and the clerk, Mohd. Anas, appointed in Sunni Waqf Board, because the sale permission dated 12.05.1978 was found to be forged, in which both of them were found involved. The said mutawalli, Mohd. Ayyub, gave an application dated 26.11.1999 supported with an affidavit, in which 29.01.2000 was fixed for hearing and both the parties were summoned by Arshad Rashid Khan (accused-applicant), but none appeared and hence, he fixed 31.01.2000 as the date of judgment, on which date, he passed the judgment, whereby the termination order of Mohd. Ayyub (co-accused) and the order for restoration of the sale deeds were set aside. The Chief Executive Officer, Shaukat Ali Tyagi, who was then working in the Board, raised an objection under Section 26 of The Waqf Act, 19956, but the applicant told him that the judgment dated 31.01.2000 had become final. Thereafter, the Government vide its letter dated 22.09.1989, apprised about its judgment. Thereafter, the Sunni Waqf Board, on coming to know about the said judgment, held that the appropriate punishment was required to be meted out to the persons who had alienated the property of the Waqf Board on the basis of forged sale permission as the termination of them was not sufficient punishment. Pursuant to that, the present F.I.R. was lodged against the accused-applicant, mentioning that he had gone beyond his jurisdiction for his personal interest and had passed the judgment dated 31.01.2000, which is cited above. 6. After investigating into the matter, the Investigating Officer has submitted charge-sheet, after having recorded the statement of as many as 14 witnesses against the accused-applicant, under Sections 7/13(G)(2) of Act, 1988. 6. After investigating into the matter, the Investigating Officer has submitted charge-sheet, after having recorded the statement of as many as 14 witnesses against the accused-applicant, under Sections 7/13(G)(2) of Act, 1988. In the affidavit filed from the side of the applicant, it is mentioned that Chaudhari Mohd. Yaqub, a resident of Mohalla Bhatti, District-Moradabad, had created a Waqf-alal-Aulad by means of Waqf deed dated 19.11.1928, which was purely of private nature, for the benefit and enjoyment of his children and descendants. The family tree is also mentioned in the Para 5 of the said affidavit and that Chaudhari Mohd. Yaqub himself became the first mutawalli of the said Waqf property. Thereafter, his son Mohammad Mashooq became mutawalli and thereafter, his son Mohd. Ayyub became mutawalli (present mutawalli). The said private Waqf was beyond the purview of the U.P. Muslim Waqf Act 16 of 1960, which was got registered as Waqf No. 102-A, Moradabad. Mutawalli Mohd. Ayyub gave an application dated 12.12.1977, seeking permission to sell the house in dispute for the purposes of upkeep, renovation and construction of other Waqf properties. The Waqf Board, after holding enquiry, granted him permission to sell the house in dispute, vide order dated 12.05.1978. On the basis of the said permission, co-accused Mohd. Ayyub executed the sale deeds in favour of six persons, who are named in Para 10 of the said affidavit. Out of the total consideration received by Mohd. Ayyub, mutawalli, his sister Chaman Begum also received her share executed a receipt thereafter. Chaman Begum made further demand of money from the purchasers and tried to blackmail them, but when she did not succeed in doing so, she made complaint through one Muniruddin, who was stranger to the Waqf property, against Mohd. Ayyub and the purchasers. When the purchasers came to know about it, they filed objections and Mohd. Ayyub also filed objections. Smt. Chaman Begum, in collusion with complainant Muniruddin, got the file concerning the sale permission misplaced and the same is not traceable. Thereafter, Mohd. Ayyub gave applications to trace out the files and also moved an application dated 17.08.1988 for summoning Zaheer Ullah, the Secretary, who had passed order, granting permission to sell, but he was not called for cross-examination. Smt. Chaman Begum, in collusion with complainant Muniruddin, got the file concerning the sale permission misplaced and the same is not traceable. Thereafter, Mohd. Ayyub gave applications to trace out the files and also moved an application dated 17.08.1988 for summoning Zaheer Ullah, the Secretary, who had passed order, granting permission to sell, but he was not called for cross-examination. The matter was placed before Waqf Board in its meeting held on 14.12.1988 and under Resolution No. 4, it was decided that the said case be referred to the State Government for granting permission to sell the disputed house as neither the mutawalli nor the purchasers were at fault. A letter dated 17.07.1989 was written by Secretary of the Board to the Officer on Special Duty, Waqf Section, Government of U.P. The Controller Sri Farhat Ali, without getting the said file traced and without summoning Zaheer Ullah, ignored the letter dated 17.07.1989 of the Secretary and passed ex-parte order dated 12.06.1990, holding that permission to sell granted by Zaheer Ullah, was invalid and was also removed from the records. Pursuant to the order of the Controller dated 12.06.1990, a requisition under Section 49B(1) of the Act of 1960 for recovery of possession was sent and on that basis, the Collector issued notice under Section 49B(2) of the Act of 1960 to the purchasers. The purchasers Haji Abdul Rashid and others filed an appeal before the District Judge against notices issued to them under Section 49B(2) of Act of 1960. In the meantime, mutawalli Mohd. Ayyub gave an application dated 26.11.1999 with an affidavit to recall the order dated 12.06.1990. The applicant, at that time, was a member of the Waqf Board. The file of the case instituted on the basis of application and affidavit of Mohd. Ayyub was transferred and placed before the applicant for decision. The applicant found that the file which was not traceable, had been traced out. The applicant bonafidely passed the order dated 31.01.2000 on the basis of material on record, recalling the order dated 12.06.1990 and the orders and proceedings based on that order under Section 49B of Act of 1960. The Xth Additional District Judge allowed the appeals vide order dated 30.09.1999, but wrongly entered into the merits of the case, holding against the purchasers. The Xth Additional District Judge allowed the appeals vide order dated 30.09.1999, but wrongly entered into the merits of the case, holding against the purchasers. The order dated 12.06.1990 and the proceedings consequent upon it under Section 49B of Act of 1960 were recalled by the applicant. It appears that some writ petition (Writ Petition No. 48286 of 1999) was also pending before this Court, regarding which, in Para 23 of the affidavit, it is mentioned that the Waqf Board had filed an application dated 03.07.2000 with an affidavit that the writ petition may be disposed of in view of the order dated 31.01.2000 and subsequent to that, the said petition was dismissed as infructuous vide order dated 16.02.2005. During the applicant's tenure as member of U.P. Sunni Central Board of Waqfs, Lucknow, he incurred displeasure of one Shaukat Ali Tyagi, C.E.O. and some other officials of the Board, as they did not discharge their duties properly. The applicant dealt with them strictly, because of which they hatched a conspiracy against the applicant and Sri Shaukat Ali Tyagi got the present F.I.R. lodged by opposite party no. 2 in this case, in which charge-sheet has been submitted without any material being there on record. The Special Judge, Court No. 2, Bareilly, has passed the impugned order dated 04.11.2016, without application of mind. The applicant, being a member of the Board, to whom powers were delegated under Section 27 of the Act of 1995, passed a judicial order in good faith and on the basis of material on record. Therefore, by no stretch of imagination, it could be said that the applicant committed any offence. He also stands protected under Act of 1985 as he would be covered under the definition of "Judge" under Section 2 of Act of 1985 and Section 3 of the said Act grants him full protection as the order dated 31.01.2000 was passed by him in judicial capacity. Section 85 of the Act of 1995 also bars a Civil Court or any other authority to determine the matter regarding the Waqf/order of the Board, as in such matters, only the Waqf Tribunal can consider the matter. Further, it is mentioned that Section 100 of the Act of 1995 also protects the applicant as the said order has been passed in good faith. Further, it is mentioned that Section 100 of the Act of 1995 also protects the applicant as the said order has been passed in good faith. It is further mentioned that no sanction has been taken under Section 19 of the Act of 1988. The Vigilance Officers had lodged two similar cases against the applicant on 16.05.2009, being Case Crime No. 497 of 2009 and 498 of 2009 and the charge-sheet has been submitted. The applicant filed two applications under Section 482 of the Code (Application under Section 482 Nos. - 957 of 2017 and 959 of 2017), in which the Lucknow Bench of this Court passed interim order, staying the coercive action in above cases. Therefore, the further proceedings in the present case need to be stayed. 7. Record reveals that no counter affidavit has been filed from the side of the respondents. It is apparent from the record that one order dated 12.06.1990 was passed by Farhat Ali, the earlier Controller of the Waqf Board, in which it has been mentioned by him that he was drawing the proceedings under Section 55 of the Act of 1960, which pertains to removal of mutawallis. It would be pertinent to reproduce herein below the said provision, which provides as under:- 55. It would be pertinent to reproduce herein below the said provision, which provides as under:- 55. Removal of Mutawallis.-(1) The Board may, after affording him an opportunity of being heard, remove a mutawalli other than a Managing Committee from his office if he- (i) is fined on more than one occasion under Section 54; or 7[(1-i-a) has failed to pay, without reasonable excuse, for two consecutive years, the contribution payable by him under Section 34; or] (ii) is convicted of an offence relating to the waqf property or money which, in the opinion of the Board, renders him unfit to continue as mutawalli; or (iii) is convicted of an offence involving moral turpitude or is required to furnish security under Section 109 or Section 110 of the Code of Criminal Procedure, 1898 (Act V of 1898); or (iv) wrongly destroys or alienates any waqf property; or (v) is adjudged insolvent; or (vi) is, in the opinion of the Board, unfit to discharge the duties of a mutawalli owing to any physical or mental disability, or moral delinquency; or (vii) is guilty of misappropriation or gross mismanagement of waqf property, or has persistently neglected to comply with the directions given by the Board for the proper management of the waqf. (2) Any person aggrieved by an order of removal under subsection (1) may, by an application, refer the matter to the Tribunal within 90 days of the date of communication of the order of removal. 8. The said provision under Section 55(1)(iv) of the Act of 1960 provides that a mutawalli can be removed if he wrongly destroys or alienates any Waqf property. Under Section 55(2) of the Act of 1960, it is provided any person aggrieved by an order of removal under sub-section (1), may, by an application, refer the matter to the Tribunal within 90 days of the date of communication of the order of removal. 9. In the case in hand, the order dated 12.06.1990 has been passed by Farhat Ali, the earlier Controller, mentioning therein that on complaint being received, the charge-sheet containing five charges, were framed against mutawalli Mohd. Ayyub and he was required to show cause as to why he may not be removed from the Tauliat. The said charge-sheet was issued on 21.07.1982, to which he gave reply in February, 1983 in the form of written arguments. Ayyub and he was required to show cause as to why he may not be removed from the Tauliat. The said charge-sheet was issued on 21.07.1982, to which he gave reply in February, 1983 in the form of written arguments. Since then, for one reason or the other, the matter has remained pending. Thereafter, a notice was issued to mutawalli on 05.03.1990, under registered cover, requiring him to appear before the Board for personal hearing on 02.05.1990. The said notice was presumed to be duly served, but he failed to appear and therefore, the matter had to be decided ex-parte. It is further recorded in this order that first three charges related to the sale of properties made by mutawalli without obtaining permission of the Board, to which reply was given by him, saying that he had moved applications on 12.12.1977 and 24.01... (unclear), seeking the permission of Board for transfer of Waqf property. According to him, he was informed by a letter dated 12.05.1978 ... (unclear) that permission for sale was being granted to him. He has claimed that it was in pursuance of the said allotment that he had executed the sale deeds in favour of the purchasers and has denied to have sold any Waqf property without prior permission. It is further recorded in this order that it was difficult to accept the explanation, because no application is said to have been given by him for sale permission, had been received in the office of the Board. There was no order in the file that permission to sell the Waqf property be given to him. The sale permission dated 12.05.1988 also appeared to be a forged document. Even from a naked eye, signature of Sri Ashraf Ali, given therein, appears to be a forged one. It was reported that it was a handy work of an employee of the Board, namely, Mohd. Anas, who was in service. Obviously, the mutawalli and Mohd. Anas colluded with each other and transferred the Waqf property on the basis of permission, which he fully knew, was a forged one and consequently, he was removed from the Tauliat of Waqf No. 102A, Moradabad. It is this order which the accused-applicant has set aside vide order dated 31.01.2000, which he is claiming to be a judicial order under law and he is claiming protection under the Act of 1985. It is this order which the accused-applicant has set aside vide order dated 31.01.2000, which he is claiming to be a judicial order under law and he is claiming protection under the Act of 1985. It is recorded in this order that on 31.01.1987 and 17.08.1988, Mohd. Ayyub had moved an application that the then Secretary, who had signed the letter for granting sale permission, be summoned for being cross-examined and had also requested that file of the sale permission be traced out, but both the requests were not headed to by the Controller Mohd. Farhat Ali. He had, by bare eyes, presumed that the forged signatures were there on the sale permission granted, without obtaining any expert opinion and due to these infirmities in the said order, he deemed it proper to recall the said order and had restored the mutawalli-ship of Mohd. Ayyub and also the sale deeds, which were executed earlier, were held to be valid sale deeds. It appears that it is not made clear in the said order as to under which provision, the same has been passed. It appears that he has reviewed the earlier order, which is stated to have been passed under Section 55 of Act of 1960, which has been quoted above, in which there is no provision given for any review of the order, rather only provision made therein is that if a person is aggrieved by removal of mutawalli-ship, he can approach the Tribunal within 90 days. Therefore, this order does not appear to have been passed within jurisdiction. If the applicant was not convinced that while passing earlier order, several matters were not taken into consideration, such as, expert opinion with respect to forged signature and Secretary not having been summoned for cross-examination, he could have very easily resorted to filling up all these lacunae by calling for an expert opinion and also summoning the Secretary and rather doing so, he has proceeded to set aside the order, which amounts to nothing but reviewing the earlier order, which does not appear to be within the powers conferred upon the applicant. 10. 10. In such facts and circumstances of the case, I am of the view that the said order appears to be more of an administrative nature than that of judicial nature and protection of the umbrella of Act of 1985, which is being claimed, cannot be given to the applicant. 11. It may also be mentioned that in this case, charge-sheet has been submitted by the Investigating Officer, after having recorded the statement of as many as 14 witnesses. The testimonies of the witnesses cannot be disbelieved in proceedings under Section 482 of Cr.P.C., as the same requires full trial and it cannot be denied, at this stage, that cognisable offence is made out against the accused-applicant on the basis of evidence gathered by the Investigating Officer. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Apex Court in cases of R.P. Kapur v. The State of Punjab,: AIR 1960 SC 866 , State of Haryana and others v. Ch. Bhajan Lal and others,: AIR 1992 SC 604 , State of Bihar and Anr. v. P.P. Sharma,: AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. v. Md. Sharaful Haque and Ors., AIR 2005 SC 9 . The disputed defense of the accused cannot be considered at this stage. 12. In view of above, the prayer to quash entire criminal proceedings in Case No. 22 of 2016, arising out of Case Crime No. 465 of 2009 (State v. Arshad Rashid Khan), under Section 7/13(d)(ii) of Act of 1988, as well as the F.I.R. dated 19.05.2009, charge-sheet dated 20.08.2016 and summoning order dated 04.11.2016, is hereby refused. 13. However, it is provided that in case the accused-applicant appears and surrenders before the Court within 30 days from today and moves an application for bail, the same shall be decided in terms of the settled law laid down by this Court in the case of Amrawati and another v. State of U.P. reported in, 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court in Lal Kamlendra Pratap Singh v. State of U.P. reported in, 2009 (3) ADJ 322 (SC). 14. 14. Furthermore, it is provided that the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such an application is moved, the same shall be disposed of without being influenced by the observation(s) made by this Court. 15. With the aforesaid observations/directions, the instant application stands disposed of.