ORDER : P.V.Kunhikrishnan, J. These two Criminal Miscellaneous Cases are connected, and therefore I am disposing of these cases by a common order because a common legal issue is raised in these two cases. In these two cases, prosecution initiated against the petitioners under Section 52A of the Waqf Act, 1995 (for short, 'the Act') is challenged. 2. First I will narrate the facts in Crl.M.C. No.3009/2019: The 2nd respondent herein filed a complaint before the Judicial First Class Magistrate Court, Kozhikode alleging an offence punishable under Section 52A of the Act against the petitioner. The allegation in the complaint is that the 2nd respondent is a statutory body constituted under the Act as per the board decision No.A1-1833/84 dated 23.08.2016. It is submitted that the Cheriya Chakalathoppa Tharawad Waqf and its properties are Waqf properties registered with the Kerala State Waqf Board as 1008/RA. According to the 2nd respondent, the petitioner/accused is in unauthorised occupation of the said Waqf property. As per Section 32 of the Act, it is the duty of the Waqf board to ensure that all the properties of the board are properly maintained, controlled, and administered and the income thereof is duly used for the objects and the purposes for which such Waqf were created. A petition was filed by the Mutawalli of the above Waqf before the Chief Executive Officer stating that the accused is unauthorizedly and illegally and without any valid documents occupying the Waqf building bearing door Nos.20/294 and 20/298 of Kozhikode corporation owned by Cheriya Chakalathoppa Tharawad Waqf. It is also alleged that, there is no valid lease agreement with the accused. In the complaint it is further stated that the rent paid by the accused is meager and there is default in payment also. Upon receipt of the petition from the Mutawalli of the Waqf, notice under Section 54 (1) of the Act was issued to the accused treating him as an encroacher as defined under Section 3 (ee) of the Act. To the notice, the accused entered appearance before the Chief Executive Officer and a counter was filed. The Chief Executive Officer after considering the contentions found that the accused is an encroacher in the said property and proceedings No.E4-34/60/2015-1 dated 28.2.2015 was issued for eviction of the accused. To the notice, the accused entered appearance before the Chief Executive Officer and a counter was filed. The Chief Executive Officer after considering the contentions found that the accused is an encroacher in the said property and proceedings No.E4-34/60/2015-1 dated 28.2.2015 was issued for eviction of the accused. Even after the expiry of the period mentioned in the proceedings the accused is occupying the Waqf property as an encroacher and hence there is a huge loss of income to the Waqf during the past years is the submission. The accused is conducting a business in the Waqf building for so many years without any right and continuing the business in it is the submission. As per Section 56 of the Act, the Mutawalli has no authority to lease out Waqf building without obtaining prior sanction of the board and no such sanction was obtained in this respect is the further submission. According to the 2nd respondent, the accused is unauthorizedly and illegally occupying Waqf property without prior sanction of the Board and so the accused is liable to be prosecuted under Section 52A of the Act. Annexure-A is the complaint. According to the petitioner, even if the entire allegations are accepted, no offence is made out. It is the case of the petitioner that he disputes the nature of Waqf and assuming that the property is Waqf property, the 2nd respondent preferred a civil suit before the Waqf Tribunal, Kozhikode as OS No.38/2015 for the eviction of the lessee alias the accused from the plaint scheduled shop rooms. The petitioner appeared before the Waqf Tribunal. It is submitted that the Waqf judge without appreciating the evidence on record decreed the suit. Aggrieved by the same, the petitioner filed CRP No. 221/2018 (Waqf) before the Division Bench of this Court and the revision was admitted and stayed. Annexure-B is the memorandum of revision and Annexure-C is the interim order. Annexure-D is the order by which the interim order is extended until further orders. It is also submitted that, Annexure-A complaint is not maintainable because the petitioner was in possession even before the insertion of Section 52A in the Act. Hence this Crl.M.C. is filed. 3. Crl.M.C. No.3014/2019 is filed to quash the proceedings in C.C. No.559/2017 on the file of the Judicial First Class Magistrate Court – I, Kozhikode. It is also a prosecution under Section 52A of the Act. Hence this Crl.M.C. is filed. 3. Crl.M.C. No.3014/2019 is filed to quash the proceedings in C.C. No.559/2017 on the file of the Judicial First Class Magistrate Court – I, Kozhikode. It is also a prosecution under Section 52A of the Act. Almost the same allegations are raised in this case also. Annexure-A is the complaint. According to the petitioner, even if the entire allegations are accepted, no offence is made out. It is the case of the petitioner that he disputes the nature of Waqf and assuming that the property is Waqf property, the 2nd respondent preferred a civil suit before the Waqf Tribunal, Kozhikode as OS No.39/2015 for the eviction of the lessee alias the accused from the plaint scheduled shop rooms. The petitioner appeared before the Waqf Tribunal. It is submitted that the Waqf judge without appreciating the evidence on record decreed the suit. Aggrieved by the same, the petitioner filed CRP No. 220/2018 (Waqf) before the Division Bench of this Court and the revision was admitted and stayed. Annexure-B is the memorandum of revision and Annexure-C is the interim order. Annexure-D is the order by which the interim order is extended until further orders. It is also submitted that, Annexure-A complaint is not maintainable because the petitioner was in possession even before the insertion of Section 52A in the Act. Hence this Crl.M.C. is filed. 4. Heard the learned counsel appearing for the petitioners and the learned Standing Counsel appearing for the 2nd respondent in these cases. I also heard the Public Prosecutor. 5. The offence alleged in these cases is under Section 52A of the Act. It will be better to extract Section 52A of the Act: “Waqf Act, 1995 – Section 52A :- Penalty for alienation of waqf property without sanction of Board (1) Whoever alienates or purchases or takes possession of, in any manner whatsoever, either permanently or temporarily, any movable or immovable property being a waqf property, without prior sanction of the Board, shall be punishable with rigorous imprisonment for a term which may extend to two years: Provided that the waqf property so alienated shall without prejudice to the provisions of any law for the time being in force, be vested in the Board without any compensation therefor. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 any offence punishable under this section shall be cognizable and non-bailable. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 any offence punishable under this section shall be cognizable and non-bailable. (3) No court shall take cognizance of any offence under this section except on a complaint made by the Board or any officer duly authorised by the State Government in this behalf. (4) No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this section.” 6. Admittedly, Section 52A was inserted in the Act only with effect from 01.11.2013. To prosecute a person under Section 52A, there should be evidence to the effect that the accused alienates or purchases or takes possession of, in any manner whatsoever, either permanently or temporarily, any movable or immovable property being a waqf property, without prior sanction of the Board. Admittedly, there is no alienation by the accused. Moreover, there is no purchase of the waqf property by the petitioners. It is also to be noted that there is no taking possession of the waqf property by the petitioners after coming into force of Section 52A of the Act. There is no dispute regarding the fact that the petitioners were in possession of the disputed property even prior to the insertion of Section 52A of the Act. In such circumstances, I am of the considered opinion that the prosecution is not maintainable against the petitioners because Section 52A of the Act has no retrospective application. Admittedly, the petitioners were in possession of the property before the insertion of Section 52A of the Act. The same point is considered by the Apex Court in Nidhish P. V. and Others v. Kerala State Wakf Board and Another, [2023 KHC 6476]. The relevant portion is extracted hereunder: “22. In the considered view of this court, the expiry of leases, or other arrangements, by efflux of time or their valid terminations, in the past, cannot be construed (as broadly as suggested by the respondents) to mean that such lessees become "encroachers". Nor would past tenants whose possession is disputed, and eviction proceedings pending against them before a court, fit that description under S.3 (ee). The consequences of such an interpretation would be too startling; even before an adjudication of the validity of termination (of leases, for instance), tenants holding over would be exposed to prosecution. Nor would past tenants whose possession is disputed, and eviction proceedings pending against them before a court, fit that description under S.3 (ee). The consequences of such an interpretation would be too startling; even before an adjudication of the validity of termination (of leases, for instance), tenants holding over would be exposed to prosecution. There is no allusion to "continuing offence" or any expression suggesting that such a term (mentioned in S.472 Cr. PC) would be attracted to actions which commenced in the past, i.e., before the amendment of 2013 came into force. To hold otherwise, this court would be resorting to an interpretation that directly deprives the appellants of their rights under Art.20(1) - a consequence that cannot be countenanced. The plain text of that provision forbids such an interpretation, and the authorities on that aspect clearly indicate that giving effect to a penal statute so as to cover past acts is a proscribed action in law. Therefore, the expression "Whoever alienates or purchases or takes possession of", which is the opening phrase of S.52A, cannot be read or construed to include possession taken in the past, which resulted in continued possession, when the provision was enacted. That is to say that S.52A cannot cover cases where leases of wakf properties had expired in the past and where the tenant or lessee was, at the time the amendment of 2013 came into force, in physical possession and facing civil proceedings for eviction.” (underline supplied) 7. This Court in Karikunni Puthiya Purayil Hajira v. Kerala State Wakf Board & Anr. [ 2022 (2) KLD 482 ] also considered the same issue. The relevant portion is extracted hereunder: “3. After hearing the learned counsel for the petitioner and the fair submissions of the learned Standing Counsel for the 1st respondent, I have no doubt that such a proceedings cannot sustain against the petitioner. Firstly, by virtue of Annexures-A6 and A7 proceedings the matter has become infructuous. She has already surrendered vacant possession of the shop room and now the Board has taken over possession of the same. Secondly and more importantly, Section 52A of the Wakf Act had come into force only on 01.11.2013 by an amendment. This penal provision does not have retrospective operation. Therefore, the alleged act committed by her prior to the amendment to the statute cannot sustain.” (underline supplied) 8. Secondly and more importantly, Section 52A of the Wakf Act had come into force only on 01.11.2013 by an amendment. This penal provision does not have retrospective operation. Therefore, the alleged act committed by her prior to the amendment to the statute cannot sustain.” (underline supplied) 8. In the light of the above principle, I am of the considered opinion that the prosecution against the petitioners need not be continued. Therefore, these Criminal Miscellaneous Cases are allowed in the following manner: i. In Crl.M.C. No.3009/2019, all further proceedings against the petitioner in C.C. No.560/2017 on the file of the Judicial First Class Magistrate Court – I, Kozhikode are quashed. ii. In Crl.M.C. No.3014/2019, all further proceedings against the petitioner in C.C. No.559/2017 on the file of the Judicial First Class Magistrate Court – I, Kozhikode are quashed.