Telangana High Court
Syed Shaha Hamed Hussain ... vs The Ceo, Ts Wakf Board, Hyd And 2 ... on 20 September, 2023
Bench: K.Surender
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION NOS.3599, 4819 AND 5337 OF 2017
COMMON ORDER:
1. Criminal Petition No.3599 of 2017 is filed to quash the
proceedings in CC No.753 of 2016, Criminal Petition No.4819 of
2017 is filed by the petitioner to quash the proceedings in
C.C.No.181 of 2017 and Criminal Petition No.5337 of 2017 is filed
to quash the proceedings in C.C.No.122 of 2017 on the file of VIII
Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.
Since the question of law involved in all the three cases is the
same, they are being heard together and disposed by way of this
Common Order.
2. The Police filed charge sheet in all three cases and the Court
has taken cognizance of the offence under Section 52-A of the Waqf
Act, 1995.
3. Learned counsel appearing for the petitioner would submit
that prohibition is prescribed under clause (3) Section 52-A of the
Waqf Act from taking cognizance under Section 52-A except on
complaint made by the Board. Section 52-A (3) of the Act reads as
follows:
"52-A: Penalty for alienation of waqf property without
sanction of Board.-(1)....
2
(2)...
(3). No court shall take cognizance of any offence under
this section except on a complaint made by the Board or
any officer duly authorized by the State Government in
this behalf."
4. Learned counsel for the petitioner relied on the judgment in
the case of Puthkkodi Aboobacker S/o Muhammed v. The Sub-
Inspector of Police, Valanchery Police Station (2016) 0 AIR (Ker)
96). The High Court of Kerala under similar circumstances
quashed the proceedings when the police filed charge sheet for the
offence under Section 52-A of the Waqf Act.
5. On the other hand, learned counsel appearing for the
respondents would submit that under Section 52-A of the Waqf Act,
the offence is cognizable and non-bailable. It means that the police
can take cognizance of the offence and investigate in the event of
violation of Section 52-A of the Waqf Act. Arrest can also be done.
In the said circumstances, the complaint lodged with the police is
maintainable. He further argued that powers are given to the Board
under Section 27 of the Waqf Act. A complete reading of the Act
would reflect that the entire procedure is prescribed under the Act.
Section 108-A of the Act has overriding effect. For the said reason,
charge sheet filed by the police is maintainable and the prohibition
under Section 52-A (3) of the Act will not apply.
6. The Act specifically prohibits a Court from taking cognizance
of any offence under Section 52-A of the Act except when a
complaint is made by the Board or any officer authorized by the
State Government in that behalf. "Complaint" is not defined under
Waqf Act. Under Section 2(d) of Code of Criminal Procedure,
'complaint' is defined as any allegation made orally or in writing
to a Magistrate, with a view to his taking action under this
Code, that some person, whether known or unknown, has
committed an offence, but does not include a police report.
7. As seen from the definition of 'complaint' under Code of
Criminal Procedure, police report is ruled out.
8. For the reason of explicit prohibition under Section 52-
A(3) of Waqf Act, 1995, the proceedings filed by the police are
liable to be quashed.
9. In the result, the proceedings against petitioner in CC
No.753 of 2016, C.C.No.181 of 2017 and in C.C.No.122 of 2017 on
the file of on the file of VIII Additional Chief Metropolitan
Magistrate, Nampally, Hyderabad are hereby quashed.
10. Accordingly, all the Criminal Petitions are allowed.
Miscellaneous applications, pending if any, shall stand closed.
_________________
K.SURENDER, J
Date: 20.09.2023
kvs
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION NOS.3599, 4819 AND 5337 OF 2017
Dt. 20.09.2023
kvs
