Kamalapuram Jaleel Sahab Jaleel ... vs The State Of A.P., Rep. By P.P. ...
2023 Latest Caselaw 982 AP

      IN THE HIGH COURT OF ANDHRA PRADESH,
                    AMARAVATI
                               *****

            HON'BLE SRI JUSTICE V.SRINIVAS

        CRIMINAL PETITION NO.1025 OF 2017
Between:
Kamalapuram Jaleel Saheb @ Jaleel @ Abdul Jaleel Sahib,
S/o.Khadar Saheb, S/o.Late Khadar Sahib, Aged 70 years,
R/o.d.No.20/262, Modampalli Street, Proddutur
and 10 others.                                ... Petitioners

          AND
1.The State of A.P., rep. by its Public Prosecutor,
  High Court of A.P., Hyderabad.
2.Syed Rahamathulla, S/o.Masthan, Aged about 45 years,
  Occ: Inspector Auditor, D.No.4-888, Near Mosque,
  K.L.D. Road, Ananthapuram Town, Ananthapur.
                                              .. Respondents
DATE OF ORDER PRONOUNCED: 21.02.2023


SUBMITTED FOR APPROVAL:

          THE HON'BLE SRI JUSTICE V.SRINIVAS

1. Whether Reporters of Local newspapers                Yes/No
   may be allowed to see the Judgments?

2. Whether the copies of judgment may be                Yes/No
   Marked to Law Reporters/Journals.

3. Whether Their ladyship/Lordship wishes               Yes/No
   to see the fair copy of the Judgment?


                                                      ____________
                                                      V.SRINIVAS, J
                                2



          * THE HON'BLE SRI JUSTICE V.SRINIVAS


           + CRIMINAL PETITION NO.1025 OF 2017

% 21.02.2023
# Kamalapuram Jaleel Saheb @ Jaleel @ Abdul Jaleel Sahib,
  S/o.Khadar Saheb, S/o.Late Khadar Sahib, Aged 70 years,
  R/o.d.No.20/262, Modampalli Street, Proddutur
  and 10 others.                           .. Petitioners

Vs.
$ 1.The State of A.P., rep. by its Public Prosecutor,
     High Court of A.P., Hyderabad.

  2.Syed Rahamathulla, S/o.Masthan, Aged about 45 years,
    Occ: Inspector Auditor, D.No.4-888, Near Mosque,
    K.L.D. Road, Ananthapuram Town, Ananthapur.
                                           .. Respondents


! Counsel for the Appellant/insurer: Sri S.M.Subhani
Counsel for Appellants/claimants: Sri Sravan Kumar.N,
                                Special Assistant Public
                                     Prosecutor -R.1


<Gist :

>Head Note:

? Cases referred:
   (1992) Supp (1) SCC 335

This Court made the following:
                                   3



                THE HON'BLE SRI JUSTICE V.SRINIVAS

                CRIMINAL PETITION NO.1025 of 2017


ORDER:

This Criminal Petition under Section 482 of the Code of the

Criminal Procedure (hereinafter referred as Cr.PC) is filed by the

petitioners to quash C.C.No.108 of 2016 pending on the file of II

Additional Judicial Magistrate of First Class, Proddatur, Kadapa

District, as the learned Magistrate has committed error in taking

the cognizance and issuance of summons to the

petitioners/accused.

2. Aggrieved by taking the cognizance of the complaint in

C.C.No.108 of 2016, said to be filed by the Syed Rahamathulla/2 nd

respondent herein, said to be Inspector Auditor, Waqf Board, the

present Criminal Petition is filed.

3. The facts in nutshell are as follows:

i) The petitioners are A.1 to A.7, A.9 and A.11 to A.13 in

C.C.No.108 of 2016 pending on the file of II Additional

Judicial Magistrate of First Class, Proddutur, Kadapa District

and cognizance was taken under Section 406 IPC and

Section 52(A) of Waqf Act, 1995.

ii) The further contention of the petitioners is that though the

property in Survey No.565 to an extent of Ac.0.73 cents

and an extent of Ac.0.10 cents in Survey No.291, are

notified in the Gazette belonging to Modampalli Mosque

situated at Modampalli Village, Kadapa District, as per Task

Force Report dated 04.12.2015 and 05.12.2015, the same

was sold out by self styled Committee in the year 1995,

and in turn it was sold away to different persons.

iii) On the complaint of the 2nd respondent herein i.e., Syed

Rahamathulla, S/o.Musthan, Inspector Auditor, Waqf, to the

Station House Officer, Proddutur P.S., the self styled

Committee alleged to have not shown any records and

accounts which is headed by the petitioners and as such it

has been alleged that they are indulged financial

irregularities, breach of trust and misappropriation of

money by wrongful gain.

iv) On the basis of the complaint filed by the 2nd

respondent/Syed Rahamathulla, a crime has been

registered under Section 13(1)(c) of Prevention of

Corruption Act, 1988 and Section 52(A) of Waqf Act, 1995

vide Cr.No.286 of 2015 on the file of Proddutur Rural Police

Station and after investigation the investigating officer

deleted the Section 13(1)(c) of Prevention of Corruption

Act, 1988 and filed charge sheet under Section 406 of IPC

and Section 52(A) of Waqf Act, 1995.

v) On which the learned Magistrate has taken cognizance

and registered as C.C.No.108 of 2016 on the file of II

Additional Judicial Magistrate of First Class Court,

Proddutur, Kadapa District.

4. Heard Sri S.M.Subhani, learned counsel for the petitioners

and Sri Sravan Kumar Naidana, learned Special Assistant Public

Prosecutor.

5. Sri S.M.Subhani, learned counsel for the petitioners submits

that the charge sheet is not maintainable either in law or on the

facts and at the outset, the Inspector Auditor/2nd respondent/Syed

Rahamathulla, is not a competent person to give the complaint

and the self observation in the complaint is not tenable as the

properties mentioned by him was sold in the year, 1995 itself and

there is a delay of 20 years and without explaining the delay and

name of the person who alleged to have sold the properties to the

third parties also not disclosed in the complaint filed by the 2 nd

respondent.

6. The learned counsel for the petitioners further submits that

the complaint itself is frivolous, illegal and not sustainable as per

Section 52(A) of Waqf Act, 1995. He further submits that even if

the property is notified as Waqf property, it is only the Waqf

Board, who is entitled to file a complaint under Section 52(A)(3) of

the Waqf Act 1995 after passing resolution, but not the 2nd

respondent herein.

7. He further submits that on perusal of the complaint, none of

the ingredients under Section 406 of IPC and Section 52(A) of Waqf

Act 1995, are made out for maintaining the charges against them

and complaint said to be filed by the 2nd respondent through the

1st respondent is nothing but short of colourable exercise of power

by the prosecution.

8. On the other hand, Sri Sravan Kumar Naidana, learned

Special Assistant Public Prosecutor, submits that the complaint is

maintainable and the learned Magistrate perused the material and

found that there is a primafacie case and took cognizance and

issued summons to the accused and there is no error in filing the

charge sheet by the police on the complaint of 2 nd respondent

herein and there is no material to quash the C.C. as claimed by the

petitioners.

9. The 2nd respondent, who is complainant in the Callendar

Case No.108 of 2016 was also served with notice pursuant to the

directions of this Court and proof of service also filed before this

Court, vide USSR No.51784 of 2018. But none represented for the

2nd respondent.

10. Now the point that arises for consideration is:

Whether taking of cognizance under Section 406 of IPC and Section 52(A) of Waqf Act 1995, by the learned II Additional Judicial Magistrate of First Class, Poddutur, Kadapa District, is liable to be quashed inorder to proceed further?

11. For reference and better appreciation of facts, Section 405

and 406 of IPC are extracted as follows:

405. Criminal breach of trust:--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".

1[Explanation 2[1].--A person, being an employer 3[of an estab- lishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the

amount of the said contribution in violation of a direction of law as aforesaid.] 4[Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.] Sec.406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

12. As well Section 52A of Waqf Act, 1995 is as follows:

[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 (2 of 1974) 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.]

13. Section 482 Cr.PC stated three conditions under which the

inherent powers may be exercised by the High Court, namely:-

(i) in order to give effect to an order under the Code,

(ii) to prevent abuse of the process of the court; and

(iii) to otherwise secure the ends of justice.

14. Admittedly, inherent jurisdiction of High Court is not part of

the ordinary litigation process and this Court is of conscious while

exercising powers under section 482 Cr.PC. It is not the function as

a court of appeal or revision. This Court while exercising its

inherent powers inorder to appreciation or re-appreciation of

evidence as it done if a case would reach the court by way of a

statutory appeal.

15. In this connection, it is better to refer the judgement of

Hon'ble Supreme Court reported between State of Haryana v.

Bhajan Lal1. The Apex Court has gathered broad guidelines for the

exercise of inherent powers with a view to quash criminal

proceedings under section 482 of Cr.PC and Article 226/227 of the

1 (1992) Supp (1) SCC 335

Constitution from the different legal provisions and the

pronouncements made by the courts in India. Identifying those

guidelines by way of illustration while saying that an exhaustive

list is not possible or desirable, the Hon'ble Supreme Court stated

as follows:-

(i) Where the allegations made in the First Information

Report or the complaint, even if they are taken at their

face value and accepted in their entirety do not

primafacie constitute any offence or make out a case

against the accused.

(ii) Where the allegations in the First Information Report

and other materials, if any, accompanying the F.I.R. do

not disclose a cognizable offence, justifying an

investigation by police officers Under Section 156(1) of

the Code except under an order of a Magistrate within

the purview of Section 155(2) of the Code.

(iii) Where the uncontroverted allegations made in the FIR

or complaint and the evidence collected in support of

the same do not disclose the commission of any offence

and make out a case against the accused.

(iv) Where the allegations in the F.I.R. do not constitute a

cognizable offence but constitute only a non-cognizable

offence, no investigation is permitted by a police officer

without an order of a Magistrate as contemplated Under

Section 155(2) of the Code.

(v) Where the allegations made in the FIR or complaint are

so absurd and inherently improbable on the basis of

which no prudent person can ever reach a just

conclusion that there is sufficient ground for proceeding

against the accused.

(vi) Where there is an express legal bar engrafted in any of

the provisions of the Code or the concerned Act (under

which a criminal proceeding is instituted) to the

institution and continuance of the proceedings and/or

where there is a specific provision in the Code or the

concerned Act, providing efficacious redress for the

grievance of the aggrieved party.

(vii) Where a criminal proceeding is manifestly attended

with mala fide and/or where the proceeding is

maliciously 17 instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to

spite him due to private and personal grudge.

16. On appreciation of ingredients under Section 406 of IPC, it

should be established that there must be an entrustment and

thereafter misappropriation or conversion. Then it will be amounts

to criminal breach of trust. Moreover, when entrustment is

mandatorily proved, prosecution need not prove misappropriation.

17. In the case on hand, a perusal of the record shows that

entrustment of properties to the petitioners was not placed before

the trial court. As could be seen from the complaint the accused

are said to be self styled Committee and prosecution says there

was malafide intention and ulterior motive without obtaining

permission from Waqf Board or Authorities formed as self styled

Committees and made transactions by selling out Waqf Board lands

and also given lands to the third parties on lease.

18. On a close reading of the charge sheet as well as the

documents placed on record does not show when and where Waqf

Board has entrusted the properties to the petitioners herein and

when, with an ulterior motive and fraudulent intention committed

the act of breach of trust by the petitioners. When there is no

primafacie evidence at all to find the petitioners committed the

act of breach of trust, inorder to entrust, it is settled law need not

prove misappropriation, but entrustment is mandatorily proved by

the prosecution. But on perusal of the documents placed on record

shows there is no entrustment of properties by the Waqf Board to

the petitioners herein. Therefore, no case is made out under

Section 406 of IPC.

19. Coming to Section 52(A) of Waqf Act 1995 is concerned,

much discussion is not required to conclude that the course

adopted by the 2nd respondent or the Magistrate is per se illegal.

When an offence under Section 52A of the Waqf Act, 1995 is

alleged, as per Section 52A(3) of the Waqf Act, no Court shall take

cognizance of any offence under the Section except on a complaint

made by the Board or any officer duly authorized by the State

government in this behalf.

20. What is contemplated under the aforesaid provision is not a

police report alleging an offence under Section 52A of the Waqf

Act, 1995. A Court cannot take cognizance on a police report in the

matter. The Court can take cognizance of such an offence on a

complaint filed by the Waqf Board or any officer duly authorized

by the State Government in that behalf only.

21. In the present case, neither the 2nd respondent nor any

other person duly authorized by the State Government nor on

behalf of the Waqf Board to give a complaint to the police and

thereafter police filed charge sheet. Thereby, there is patent

illegality or irregularity committed by the Magistrate while taking

cognizance of the offence both under Section 406 of IPC and

Section 52(A) of Waqf Act, 1995.

22. In view of the foregoing discussion by taking the guidelines

in the judgment of the Hon'ble Supreme Court referred supra and

on verifying the material placed on record, this Court find that it is

a fit case to exercise inherent jurisdiction under Section 482 of

Cr.PC to quash the proceedings initiated against the petitioners in

C.C.No.108 of 2016 pending on the file of II Additional Judicial

Magistrate of First Class, Proddutur, Kadapa District for the offence

under Section 406 of IPC and Section 52(A) of Waqf Act, 1995.

23. In the result, the Criminal Petition is allowed and the

proceedings initiated against the petitioners 1 to 11 in C.C.No.108

of 2016 pending on the file of II Additional Judicial Magistrate of

First, Proddutur, Kadapa District, for the offence under Section 406

IPC and Section 52(A) of Waqf Act, 1995, are hereby quashed.

24. Interim orders granted earlier if any, stand vacated.

25. Miscellaneous petitions pending if any, stand closed.

____________ V.SRINIVAS, J Date: 21.02.2023 Krs LR copy to be marked

THE HON'BLE SRI JUSTICE V.SRINIVAS

CRIMINAL PETITION NO.1025 of 2017

DATE: 21.02.2023

krs