Bombay High Court

Mohammad Amin Sayyad And Others vs The State Of Maharashtra And Another on 8 September, 2025

2025:BHC-AUG:23795




                                                (1)                            crwp475.25


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                       CRIMINAL WRIT PETITION NO. 475 OF 2025

           Mohammad Amin Sayyad and Ors.                           ..          Petitioners

                                               VERSUS

           The State of Maharashtra and Anr.                       ..          Respondents

           Mr. R.R. Deshpande h/f. Ms. Priyanka R. Deshpande, Advocate for the
           petitioners.
           Ms. Chaitali Choudhari Kutti, APP for respondent No.1-State.
           Mr. Saeed S.Shaikh, Advocate for respondent No.2.

                                     CORAM                   : KISHORE C. SANT, J.
                                     RESERVED ON             : 13.08.2025
                                     PRONOUNCED ON           : 08.09.2025


           ORDER :

01. Present petitioners have approached this Court taking

exception to an order passed by the learned Additional Sessions Judge,

Aurangabad dated 10.02.2025 passed in Cri. Revision Application No. 63

of 2022. The learned Sessions Judge by way of the impugned order has

set aside the order passed by the learned Additional Chief Judicial

Magistrate, Aurangabad in Cri. M.A. No. 1736 of 2021 and remanded

back the matter to decide the same on merit. The learned Magistrate by

his order rejected the application filed by the respondent seeking

directions under section 156 (3) of the Cr.P.C.

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02. The facts in short for the purpose of deciding this petition are

that, the respondent No.2 claims to be a person having interest in Wakf

having registration No. B-34 at Pune. It is alleged that the present

respondents, though not having any concern with the said Wakf property,

have dealt with the property of the Wakf, by disposing off the property by

way of partition/development agreement etc. and used amount for their

own use. There are proceedings pending about the Wakf proeprty. The

allegation is that in 1997 the respondents got one Wakf property

registered in their name bearing No. B-32 and accepted the amount of

compensation towards property of the Wakf. Thereafter, the respondents

have also given land of the Wakf on rent and are using the said rent

amount for their own use, have not given any audit etc. to Wakf board

and caused wrongful loss to the Wakf and to the Government. The

respondents, thereafter, gave complaints to the police and police

commissioner. However, no cognizance is taken.

03. The learned Magistrate considered the application. It is

observed that the Wakf property is situated at Pune. In view of section

181 of the Cr.P.C. it is the Court at Pune, which has jurisdiction. He

further considered provisions of Section 52-A of the Wakf Act, which (3) crwp475.25

prohibits the Court from taking cognizance under section 52-A(3) of the

Wakf Act of any offence except on a complaint made by the Board or any

officer duly authorized by the State in that behalf, and rejected the

application.

04. The respondent thereafter preferred Criminal Revision

Application No. 63 of 2022. The learned Sessions Judge observed that

though property is situated at Pune, office of the Wakf Board is at

Aurangabad. The forged and fabricated documents are submitted in the

office of Wakf Board at Aurangabad and it is therefore the Court at

Aurangabad that has the jurisdiction. As regards section 52-A of the

Wakf Act is concerned, it is observed that the said section came in the

statue book on 01.11.2013. The allegations of the wrongful gain,

wrongful loss and dealing with the property without authority are of

period prior to 2013 and therefore the bar under section 52-A(3) shall

not come into effect and the complaint can be filed even by a person

other than a person authorized by the Board and allowed the revision.

05. Learned Advocate Dr. Deshpande for the petitioners

vehemently argued that the learned Magistrate had rightly passed the

order. There was no reason for the learned Sessions Court to quash and (4) crwp475.25

set aside the well reasoned order. The learned Sessions Judge has

committed an error of law while passing the order. The law prohibits

taking cognizance of complaint, if not filed by the Wakf Board or a person

duly authorized by the Government.

06. The learned Advocate for respondent No.2 Mr. Saeed

vehemently argued that the office of the Wakf Board is situated at

Aurangabad. The documents are submitted in the office of the Board.

The control over the Wakf properties is with the Board and thus it is the

Court at Aurangabad, which has jurisdiction. So far as taking

cognizance, he submits that the learned Sessions Judge has rightly held

that section 52-A has come on the statute book in the year 2013 and

therefore it has no application where the allegation is for a period prior to

2013.

07. The learned APP supports the impugned order and prays for

passing appropriate order.

08. After hearing all the parties, following questions arose for

consideration of this Court:-

                                           (5)                      crwp475.25


               i)        Whether the learned Sessions Judge is right in holding

that the Court at Aurangabad has jurisdiction?

ii) Whether the bar under Section 52-A(3) shall come into play as the offences alleged are prior to 2013?

iii) Whether the provision of Section 52-A has application in the present case?

09. In the present case the property is situated at Pune. There is

no part of the property situated within the jurisdiction of the Court at

Aurangabad. Application under section 156(3) of the Cr.P.C. is filed in

the Court at Aurangabad on 05.08.2021. The offences alleged are right

from 1997. There are no specific instances given except making vague

allegations.

10. So far as first question about jurisdiction is concerned, this

Court finds that in view of section 181(4) of the Cr.P.C., it is the Court

where the property is situated or the offence has taken place has

jurisdiction. Section 181(4) reads as under :-

"181. Place of trial in case of certain offences,

xxx

(4) Any offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within whose local jurisdiction the offence was committed or any part of the property which is the subject of the offence was (6) crwp475.25

received or retained, or was required to be returned or accounted for, by the accused person."

. In the complaint, it is alleged that all the acts are done in

Pune. It is only stated that office of the Wakf Board is at Aurangabad.

The respondents had made complaint to the Wakf Board. This Court

finds that, that itself will not give jurisdiction to the Court at Aurangabad.

So far as section 52-A of the Wakf Act is concerned, it reads as under :-

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.

11. The allegation is that the property of the Wakf is alienated.

(7) crwp475.25

No specific instances are given. Only one date is given of 31.05.1997,

wherein another Wakf trust was registered by preparing forged

documents and the seals of the said trust. The Wakf Board is registered

on 30.12.2019. In view of section 52-A(3) of the Cr.P.C. the Court can

take cognizance only on complaint made by the Board or any officer duly

authorized by the State Government in this behalf. In the present case

complaint is made in 2021. Section 52-A is brought on statute book on

01.11.2013. So, it is thereafter if complaint is to be filed, same to be

filed in accordance with section 52-A of the Act. The learned Magistrate

has rightly considered this aspect by considering the judgments stated