Telangana High Court
Ashok Rao Ekbote Ashok Ekbote vs The State Of Telangana on 19 October, 2022
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition No.7928 OF 2019
Between:
Ashok Rao Ekbote @ Ashok Ekbote ... Appellant
And
The State of Andhra Pradesh,
rep. by its Public Prosecutor,
High Court for the State of A.P,
Hyderabad & Another ...
Respondents
DATE OF JUDGMENT PRONOUNCED: 19.10.2022
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to Yes/No
see the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their
Ladyship/Lordship wish to see Yes/No
the fair copy of the Judgment?
_________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.P. No. 7928 of 2019
% Dated 19.10.2022
#Ashok Rao Ekbote @ Ashok Ekbote ... Appellant
And
$The State of Andhra Pradesh,
rep. by its Public Prosecutor,
High Court for the State of A.P,
Hyderabad & Another ... Respondents
! Counsel for the Appellant: M.A.K. Mukheeed
^ Counsel for the Respondent: Public Prosecutor
>HEAD NOTE:
? Cases referred
3
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION NO. 7928 OF 2019
ORDER:
1. The petitioner is sole accused questioning the correctness of
the charge sheet filed for the offences under Sections 297, 427 and
447 of IPC, which is pending before the II Additional Chief
Metropolitan Magistrate at Nampally, Hyderabad vide CC No.473 of
2019.
2. The 2nd respondent/defacto complainant filed written
complaint on 17.09.2018 stating that he is the Inspector at Waqf
Board. He along with Executive Officer and Surveyor inspected the
premises of the petitioner/accused and found that waqf property
which are two graves inside the compound wall of the bungalow
which was in occupation of the petitioner, situated at Kachiguda
Cross Roads had been dismantled to the level of the ground, for
which reason the present complaint was filed. The police,
Sultanbazar, on investigation found that there were two graves in
the compound wall of the petitioner in 15.6 sq.yards and the same
was published in the Gazette on 17.06.1982 at Sl.No.76 page No.89
under the Towliath of Waqf Board. According to the investigation,
the State Waqf Board filed representation addressing the officials
of Hyderabad Metro Rail, Metro Rail Bhavan to exempt the waqf
property from acquisition and the graves cannot be demolished as
per the Sharia Law. It was found that two graves in the compound
wall were dismantled, for which reason, offence under Sections
297, 427 and 447 of IPC were made out against the petitioner.
3. Learned counsel for the petitioner submits that the Gazette
dated 17.06.1982 whereby the notification was issued does not
reflect the house number as 3-3-12/2, Kachiguda X Roads. When
the house number is not given, the question of graves being
removed and leveled to the ground cannot be accepted. Further, in
the settlement Deed dated 16.07.1966, the property given to the
petitioner shows the house number as 3-3-11, 12, 12/1 to 12/6
and 13, situated at Quthbiguda, which is different from the house
number given by the prosecution. Further, there is no mention of
any graves in the said compound, as such, the question of keeping
two graves belonging to Muslim community by the petitioner, who
belongs to Hindu community does not arise. Learned counsel
finally submits that under Section 52(A) of the Waqf Act, 1995
which makes alienation of the Waqf property without sanction of
the Board a punishable offence. Further, there is a bar for taking
cognizance of any of the offence under Section 52-A unless
authorized by the State Government. In support of his contention,
he relied upon the decision of Kerala High Court in the case of
Puthukkodi Abboobacker v. the Sub Inspector of Police,
Valanchery Police Station in WP (C) No.19775 of 2015 (V), dated
14.10.2015.
4. On the other hand, learned Public Prosecutor submits that
the case cannot be quashed and all the grounds which are raised
by the petitioner can be considered by the trial Court during the
course of trial, as such, the petition is liable to be dismissed.
5. The case of the complainant is that the said Waqf property
which are two graves were within the compound wall of the
petitioner. Except producing the gazette dated 17.06.1982, there is
no other evidence such as photos or any plans of the property
which reflects that there were two graves, which were existing in
the premises that was in possession of this petitioner. The
petitioner, admittedly, came into possession of part of the property
of his father which was bearing No.3-3-11, 12, 12/1 to 12/6 and
15 at Kachiguda, Hyderabad. The notification stated that two
graves were inside the compound of Bungalow of Gopal Rao
Ekbote, who is the father of the petitioner in an area of 15.6 sq.yds.
It is not shown that if the two graves existed, the said two graves
fell into the portion which was given to the petitioner herein. As
already stated, the Gazette notification does not give the municipal
numbers where such graves were present.
6. According to the investigation, the Chief Executive Officer of
Telangana State Waqf Board filed a representation addressing to
Metro Rail Bhavan to exempt Waqf Property from acquisition.
When the said area was acquired by the Hyderabad Metro Rail, the
question of this petitioner either dismantling the graves or
trespassing into the waqf property does not arise. More so in the
back ground of there being no specific details of the graves existing
in the property of the father of the petitioner.
7. None of the witnesses examined by the police state anything
about the graves existing in the property of this petitioner nor that
the petitioner had at any point of time removed or leveled the
graves. It is assumed by the Complainant that the graves existed in
the portion of property given to this Petitioner.
8. Section 297 of IPC makes trespassing into burial places a
punishable offence. Likewise, Section 427 of IPC is causing
mischief or damage to the property and Section 447 of IPC is
punishment for criminal trespass.
9. The entire investigation and the complaint are on the
assumption that graves existed in the property, which was divided
and given to this petitioner. It is not stated by any of the witnesses
as to on which date the alleged act of removing the graves was
done. Even according to the investigation, certain land was
acquired and the Waqf Board has given a representation to the
HMR to exempt the Waqf Property from acquisition. The said
acquisition was for road widening. In the representation no specific
details are given to even prima facie conclude that the graves were
in the compound wall of the house in occupation of this petitioner.
There were nine municipal numbers to the property of Late Justice
Ekbote and only one portion of it was given to this petitioner who is
the son.
10. On the basis of assumptions, the criminal prosecution cannot
be allowed to proceed against the accused. Unless there is specific
evidence to indicate that graves existed in the property which was
given to the petitioner and that this petitioner was complicit in
removing those graves. None of the offences of either tress or
mischief are attracted. Further, when the land was acquired by the
HMR, the question of petitioner trespassing into the acquired land
does not arise. If the land in which the graves existed was acquired
by the HMR, it is for the Waqf Board to seek remedy against HMR
and this petitioner cannot be tried for the offences under Sections
297, 427 and 447 of IPC. The other grounds raised by the Counsel
are not relevant for adjudication.
11. For the aforementioned reasons, continuation of prosecution
against the petitioner is sheer abuse of process of Court and liable
to be quashed at the inception itself. Accordingly, the proceedings
against the petitioner in CC No.473 of 2019 on the file of II
Additional Chief Metropolitan Magistrate at Nampally are hereby
quashed.
12. In the result, the Criminal Petition is allowed.
_________________
K.SURENDER, J
Date: 19.10.2022
Note: LR copy to be marked.
B/o.kvs
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.7928 of 2019
Dt.19.10.2022
kvs
