Telangana High Court

Sm Naseeruddin Jeelani vs The State Of Telangana on 4 January, 2023

Bench: K.Surender

         HIGH COURT FOR THE STATE OF TELANGANA
                       AT HYDERABAD
                             *****
             Criminal Petition No.11919 OF 2022

Between:

Naseeruddin Jeelani and another              ... Petitioners
                           And
The State of Telangana,
rep. by its Public Prosecutor,
High Court for the State of Telangana,
Hyderabad & another
                                         ... Respondents
DATE OF JUDGMENT PRONOUNCED: 04.01.2023
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER


 1    Whether Reporters of Local
      newspapers may be allowed to see       Yes/No
      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 the fair copy of the       Yes/No
      Judgment?



                                         __________________
                                          K.SURENDER, J
                                       2


          * THE HON'BLE SRI JUSTICE K. SURENDER
                     + CRL.P. No. 11919 of 2022



% Dated 04.01.2023


# Naseeruddin Jeelani and another                          ... Petitioners


                                And
$ The State of Telangana,
rep. by its Public Prosecutor,
High Court for the State of Telangana,
Hyderabad & another
                                                      ... Respondents


! Counsel for the Petitioners: Sri. M.A.K.Mukheed


^ Counsel for the Respondents: Sri S.Sudershan

                                   Additional Public Prosecutor for R1


>HEAD NOTE:

? Cases referred
                        1
                            2015 LawSuit (Ker) 1226
                                      3


               HON'BLE SRI JUSTICE K.SURENDER

           CRIMINAL PETITION No.11919 OF 2022
ORDER:

1. The petitioner/A1 has filed this application for

quashing the proceedings against him pending in

C.C.No.3742 of 2022 on the file of the Chief Metropolitan

Magistrate at Nampally, Hyderabad.

2. The case of the prosecution is that this petitioner and

another were Muthawallis and subsequent to their

termination, this petitioner and another had no powers to

operate the accounts of the institution, which is Jamia

Ilahiia Nooria. However, this petitioner and another

withdrew an amount of Rs.6,15,101/- from the institution's

bank account though they were terminated in accordance

with procedure by Towliath Committee vide proceedings

dated 30.01.2017.

3. On the basis of the said withdrawal of amount illegally

by this petitioner and another, complaint was filed, which

was registered for the offences under Sections 420 and 406

r/w 34 of IPC. After investigation, the Police

Chandrayanagutta filed charge sheet for the said offences.

4. Learned counsel for the petitioner would submit that

the 1st respondent police has no jurisdiction to file charge

sheet in the affairs of the Waqf Institutions. The present

Waqf institution namely Jamia Ilahiia Nooria was formed in

accordance with the Waqf Act and any illegalities committed

in running the said institution, it is an offence under

Section 52A of the Waqf Act, 1995 and under Section 52A(3)

of the Act, there is a prohibition from the police filing a

charge sheet after investigation. The Court cannot take

cognizance of an offence in the said facts as it is barred

under Section 52A of the Act, 1995.

5. For the sake of convenience, Section 52A of the Waqf

Act is extracted hereunder:

"[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.]"

6. The present case was registered for the offences under

Sections 420 and 406 r/w 34 IPC. The Chandrayanagutta

police has jurisdiction to investigate into the offence of

criminal misappropriation and cheating punishable under

IPC.

7. According to section 52A of the Waqf Act, 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 can be punished.

However, for a Court to try the offence under section 52A of

the Waqf Act, a complaint has to be filed by any member of

the Board who is duly authorized by the State Government.

An offence under Section 52A of the Act cannot be

investigated by the police.

8. In the present case, charge sheet is not filed under

Section 52A of the Waqf Act and the prohibition under

Section 52A(3) of the Waqf Act is not applicable. If the acts

of a person attract penal consequences under IPC and also

the Waqf Act, it cannot be said that the police are prohibited

from investigating into the offences under IPC. None of the

provisions of the Waqf Act prohibit launching of prosecution

against any person under any other Enactment, when the

criminal acts are done against the interests of a Waqf

institution. This petitioner and another ceased to be the

members of the institution namely Jamia Ilahiia Nooria and

after their termination, they have withdrew the amount from

the institution's account illegally.

9. Learned counsel for the petitioner relied upon the

judgment of Kerala High Court in the case of Puthukkodi

Aboobacker and others v. Sub Inspector of Police and

others1, wherein it is held as follows:

"4. What is contemplated under the aforesaid provision is not a police report alleging an offence under Section 52A of the Wakf 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 Wakf Board or any officer duly authorized by the State Government in that behalf only. Therefore, Ext.P6 is of no use at all and the same is nothing but an idle exercise."

10. There is no dispute with regard to the finding. The said

judgment of the Kerala High Court has no application in the

2015 LawSuit (Ker) 1226

present facts of the case when the petitioner herein and

another have misappropriated the institution's money to an

extent of Rs.6,15,101/- and they are being prosecuted

under provisions of IPC and not under Waqf Act.

11. This case is decided regarding the applicability of the

prohibition under section 52A(3) of Waqf Act considering the

present allegations. The learned counsel submitted that

alternatively, the facts do not reveal commission of either

cheating or misappropriation. Since the police has filed