IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 Crl.MC.No. 1246 of 2011() ------------------------- CC.1137/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY CRIME NO.559/2009 OF KARUNAGAPPALLY POLICE STATION .................... PETITIONER(S)/ACCUSED NO.1: --------------- DR.N.A.MANZOOR, AGED 65 YEARS, S/O.ABDUL HAMEED, ANAZ MANSIL, PUNNAKKULAM, K.S.PURAM P.O., KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. BY ADV. SRI.K.A.JALEEL SRI.C.Y.VINOD KUMAR RESPONDENT(S): STATE & COMPLAINANT ---------------------------------- 1. STATE OF KERALA, (REPRESENTED BY THE SUB INSPECTOR OF POLICE, KARUNAGAPPALLY POLICE STATION-CR.559/2009 OF KARUNAGAPPALLY POLICE STATION) REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.ABDUL KAREEM, AGED 65 YEARS, S/O.KUNJAMMALIKKUNJU, SASTHAMPOIKAYIL HOUSE, KADATHOOR, K.S.PURAM P.O., KARUNAGAPPALLY, KOLLAM DISTRICT-690523. PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.1246 of 2011 ==================================== Dated this the 12th day of April, 2011 O R D E R Petitioner is the first accused in Crime No.559 of 2009 of Karunagappally Police Station and C.C. No.1137 of 2009 of the court of learned Judicial First Class Magistrate-I, Karunagappally for offences punishable under Sections 166, 477A and 409 read with Section 34 of the Indian Penal Code. Case is that petitioner, as the Secretary of a Trust by name 'Salafi Trust' which is registered with the Kerala State Wakf Board along with other accused has indulged in falsification of accounts, misappropriation of money, breach of trust and has willfully not complied with the directions of law governing the Trust. It is contended by learned counsel that the allegations are untrue, do not make out any offence and at any rate in view of Section 101(2) of the Wakf Act, petitioner is a public servant as defined in Sec.21 of the IPC in which case cognizance taken by the learned Magistrate without obtaining sanction under Section 197(1) of the Code of Criminal Procedure (for short, “the Code”) is illegal. In the circumstances it is requested that proceeding against petitioner may be quashed. I have heard learned Public Prosecutor also. CRL.M.C. No.1246 of 2011 -: 2 :- 2. So far as the question of want of sanction under Sec.197(1) of the Code is concerned it depends on whether the alleged acts were done by petitioner in the discharge of his official duty. It is submitted by learned counsel that learned Magistrate has framed charge against petitioner. If according to the petitioner cognizance is taken without sanction under Sec.197(1) of the Code that question ought to have been raised at the time of framing charge. That has not been done. Hence it is not necessary to go into that question at this stage. However, it is open to the petitioner to raise that question after trial of the case is over if he is otherwise entitled to do so. 3. On the question whether the final report submitted by the police against petitioner should be quashed having regard to the averments in the compliant, there also I must bear in mind that learned Magistrate has already framed charge against petitioner. I have gone through Annexure-B, complaint where, there are specific allegations made against petitioner (and others) regarding the alleged acts and commissions which according to the prosecution made out offences attributed to the petitioner. It is seen from Annexure-G, final report that witnesses are cited to prove that they had taken rooms belonging to the Trust for indefinite period (allegedly against the provisions CRL.M.C. No.1246 of 2011 -: 3 :- of Sec.56 of the Wakf Act) for rent of Rs.4,000/- per month without any public auction. According to the prosecution the yearly rent in that way should be `48,000/- but what is being accounted is only `36,000/- whereby petitioner (and others) allegedly misappropriated `12,000/- per year. There are other allegations also against petitioner which I do not want to extract in the light of Annexure-B, compliant. 4. Yet another argument learned counsel advanced is that no document relevant to the point to prove the alleged acts of petitioner are seized by the Police. That is a matter which the learned Magistrate has to look into while deciding whether offences attributed to the petitioner have been successfully proved by the prosecution. There is no reason to interfere at this stage, on the said ground. Without prejudice to the right of petitioner to take up all appropriate defences as available to him before the learned Magistrate in the course of trial this Criminal Miscellaneous Case is closed. THOMAS P. JOSEPH, JUDGE. vsv