IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 25TH MARCH 2011 / 4TH CHAITHRA 1933 Crl.MC.No. 4519 of 2010() ------------------------------------- CR.NO.55/05 OF OCHIRA POLICE STATION CC.387/2005 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... PETITIONER(S): ------------------------ 1. SHAMSUDHEEN, AGED 53 YEARS OLD,S/O.HANEEFA, IKKARAZHIKATHIL,KADATHOOR MURI,KULASEKHARAM VILLAGE,VAWWAKKAVU.P.O,KOLLAM DISTRICT. 2. SIDHIQUE,AGED 50 YEARS OLD, S/O.MUHAMMED KUNJU,MANNANTAYYATHU VEEDU, KADATHOOR MURI,VAWWAKKAVU.P.O,KOLLAM DISTRICT. 3. MUHAMMEDKUNJU,AGED 58 YEARS OLD, S/O.JALALUDHEENKUNJU,NELLIPURAYIL VEEDU, KADATHOOR MURI,KULASEKHARAM VILLAGE,VAWWAKKAVU.PO, KOLLAM DISTRICT. BY ADV. SRI.V.JAYAPRADEEP RESPONDENT(S): -------------------------- 1. STATE OF KERALA,REPRESENTED BY THE SUB INSPECTOR OF POLICE OCHIRA,THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA. * ADDL.R2 IMPLEADED * ADDL.R2: ABDUL KHARIM, S/O.ABDUL RHIMAN KUNJU, AGED 53 YEARS, KOCHUMADATHIL, NEELUKULAM MURI, VAVVAKAVU.P.O., KULASHEKHARAPURAM, KARUNAGAPPALLY, KOLLAM DISTRICT. *ADDL.R2 IMPLEADED AS PER DATED 23/11/2010 IN CRL MA NO.7296/2010. R1 PUBLIC PROSECUTOR SRI.K.J.MOHAMMED ANZAR ADDL.R2 BY ADV.SRI.P.K.MUHAMMED THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.4519 of 2010 ==================================== Dated this the 25th day of March, 2011 O R D E R Petitioners are accused in C.C. No.387 of 2005 of the court of learned Judicial First Class Magistrate, Karunagappally arising from the final report in Crime No.55 of 2005 of Ochira police Station for offences punishable under Sections 166, 167 and 119 of the Indian Penal Code. Additional second respondent filed a private complaint before the learned Magistrate which was forwarded to the police for investigation under Section 156(3) of the Code of Criminal Procedure (for short, “the Code”). Allegation in short is that petitioners who are office bearers of a Jama Ath and as such public servants in view of Section 101(2) of Wakf Act (for short, “the Act”), without auctioning the rooms of the Jama Ath entered into secret deal with certain persons, executed lease deeds in their favour without specifying any period and thereby caused loss to the Jama Ath. Petitioners request this Court to quash proceeding against them on various grounds including that allegations do not constitute any offence as alleged, there is no material to show that any loss was caused to the Jama Ath and it is not disclosed by the final report or any other materials whether CRL.M.C. No.4519 of 2010 -: 2 :- there was any decision of the Jama Ath to rent out the rooms belonging to it which was only carried out by petitioners. It is also the contention of petitioners that there is no material to show that C.W.10 to whom rooms were rented out in the year 1995 had vacated and thereafter the rooms were rented out to any other person. Learned counsel has invited my attention to the statements of C.Ws.1 to 13 in that regard. 2. Learned counsel for the additional second respondent contended that petitioners are 'public servants' in view of Sec.101 (2) of the Act and they could have leased out property of the Wakf only in accordance with the provisions of Sec.56 of the said Act. According to learned counsel, copy of rent deeds executed in favour of various persons in the year 2002 after C.W.10 (allegedly) vacated the premises are produced in the court below and such lease is in violation of Sec.56(2) of the Act. The very fact that rooms were thus given to tenants without conducting auction itself is indicative of the fact that loss is caused to the Jama Ath. I have heard learned Public Prosecutor also. 3. According to the prosecution property in question was dedicated as Wakf and hence is governed by the provisions of the Act. Petitioners say, property belonged to the Jama Ath. I am CRL.M.C. No.4519 of 2010 -: 3 :- not entering into the controversial question whether the property has been dedicated or not. Now final report proceeds on the basis that property has been dedicated to the Wakf. Under Sec.101(2) of the Act apart from the Muthavally members of the Managing Committee whether constituted by the Board or under the deed of Wakf, Executive Officer and every person holding office in the Wakf shall also be deemed to be a public servant within the meaning of Sec.21 of the Indian Penal Code. Section 56 of the Act refers to restriction on the power to grant lease property of Wakf. Under sub-sec(1) a lease for a period exceeding three years is void and is of no effect. Sub-sec.(2) says that any lease exceeding one year and not exceeding three years shall be void unless it is made with the previous sanction of the Board. According to the prosecution rent deeds allegedly executed by the petitioners are without specifying any period and hence in violation of Sec.56 of the Act as the requisite consent is not obtained. 4. It is the case of prosecution that C.W10 was granted lease of rooms in the year 1995 and after he vacated the rooms various rent deeds (copy of which I am told are produced before the learned Magistrate) were executed by the petitioners without CRL.M.C. No.4519 of 2010 -: 4 :- conducting public auction. It would appear from the materials on record that when C.W.10 was granted lease it was by way of public auction. It is the case of prosecution that no such auction was conducted in the year 2002 while rooms were rented out as per the documents produced in court. That according to the prosecution resulted in loss to the Wakf (or Jama Ath as the learned counsel for petitioners say). 5. Though learned counsel for petitioners contended that the alleged tenants are C.Ws.11 to 13 but their statements would show that they are doing partnership business with C.W.10 who continues to be in possession of shop rooms even now that is a matter which the trial court has to decide. Under Section 166 of the IPC if a public servant disobeyed law with intend to cause injury to any person he is punishable. Section 167 deals with public servant framing an incorrect document with intend to cause injury. Section 119 deals with a public servant concealing design to commit offence which it is his duty to prevent. 6. As learned counsel would submit charges have already been framed by the learned Magistrate. Now the question is whether invoking power under Sec.482 of the Code it is necessary to quash the proceeding as if no offence is made out. CRL.M.C. No.4519 of 2010 -: 5 :- Section 166 as I have stated above refers to causing injury (which can include financial loss as well) to any person by the public servant disobeying law. If case of prosecution that petitioners being office bearers of Wakf (or Jama Ath as the case may be) are public servants by virtue of Sec.101(2) of the Act is accepted then the question will arise whether on account of petitioners not fixing any period for the lease granted and not obtaining permission to grant lease exceeding one year has caused loss to the Wakf or Jama Ath as the case may be. I think these are matters which the trail court has to decide after recording evidence. In view of that, I do not consider it necessary to interfere at this stage and quash the proceeding. Criminal Miscellaneous Case is dismissed without prejudice to the right of petitioners to take all appropriate defences before the learned Magistrate. I make it clear that learned Magistrate shall dispose of the case untrammelled by any observation contained in this order. THOMAS P. JOSEPH, JUDGE. vsv