IMPORTANT POINT
Prosecution under Section 52A of the Waqf Act for acts before its enactment violates Article 20(1) of the Constitution, as laws cannot be applied retrospectively.

JUDGMENT :

This original petition has been filed to quash Ext.P1 complaint and all further proceedings in C.C.No. 488 of 2017 on the file of the Judicial First-Class Magistrate Court-IV, Kozhikode (for short, 'the trial court').

2. The Respondent No.1 Kerala State Waqf Board preferred Ext.P1 complaint against the petitioners alleging that they have committed an offence punishable under Section 52A of the Waqf Act, 1995 (for short, Waqf Act). The trial court took the complaint on file and issued process to the petitioners. The petitioners approached this Court to quash the complaint mainly on the ground that the initiation of prosecution under Section 52A of the Waqf Act against the petitioners is hit by Article 20(1) of the Constitution of India.

3. I have heard Sri.Babu Karukapadath, the learned counsel for the petitioners, Sri.Jamsheed Hafiz, the learned Standing Counsel for the Waqf Board and Sri.M.P.Prashanth, the learned Public Prosecutor.

4. The petitioners are the office bearers of the Muslim Educational Society (for short, 'MES'). The allegation in Ext.P1 complaint is that MES took on lease a property and a building belonging to Puthiya Ponmanichintakam Waqf, Kozhikode in the year 1975 as per lease deed No.340/1975 without obtaining prior sanction of the Waqf Board and hence the petitioners have committed the offence punishable under Section 52A of the Waqf Act.

5. The learned counsel for the petitioners Sri. Babu Karukapadath submitted that Section 52A of the Waqf Act was introduced into the statute as per Act 27 of 2013 with effect from 1.11.2013 and the prosecution initiated against the petitioners on the basis of Ext.P1 complaint is violative of Article 20(1) of the Constitution of India. Reliance was placed on the decision of the Apex Court in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh [(1953) 2 SCC 111].

6. Article 20(1) of the Constitution of India, in its broad import, has been enacted to prohibit convictions and sentences under ex post facto laws. The Article reads thus:

“(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”

7. A reading of the above Article makes it clear that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence. What is guaranteed under the Article is the fundamental principle of criminal jurisprudence that no one shall be convicted or punished for an act which is not punishable under the law as on the date of commission of the said act. The provision is designed to prevent a person from being punished for an act which was considered innocent when done. The right under Article 20 (1) of the Constitution is a very valuable right, which must be safeguarded and protected by the courts as it is a constitutional mandate. The Constitution Bench of the Supreme Court in Rao Shiv Bahadur Singh(supra) highlighted the principle underlying the prohibition by relying upon the judgment of Willes, J. in Phillips v. Eyre, (1870) LR 6 QB 1 at pp. 23 and 25 and of the United States Supreme Court in Calder v. Bull, 1 L Ed 648 at p. 649 : 3 US (3 Dall) 386 (1798), to hold that it would be highly unjust, unfair and in violation of human rights to punish a person under the ex post facto law for acts or omissions that were not an offence when committed. Whether an act is an offence has to be determined on the basis of the law as it existed on the date of the commission of the offence.

8. S.52A of the Waqf Act deals with the penalty for alienation of waqf property without the sanction of the Waqf Board. It says that whoever alienates or purchases or takes possession of, in any manner whatsoever, either permanently or temporarily, any movable or immovable property being a waqf proper