JUDGMENT :

ARUN KUMAR SINGH DESHWAL, J.

1. Heard Sri Ashfaq Ahmad Ansari, learned counsel for the applicants and learned AGA for the State.

2. The present 482 Cr.P.C. application has been filed to quash the entire proceedings of Case No. 1618 of 2022, State vs. Abu Talib Husain including charge-sheet no. 190/22 dated 09.08.2022 arising out of Case Crime No. 163 of 2022, under Sections-323, 504, 506, 354 I.P.C., Police Station-Kotwali Nagar, District-Saharanpur as well as summoning order dated 3.9.2022 passed by learned Additional Chief Judicial Magistrate, Saharanpur and (Case No. 1740 of 2022) is pending before the learned Ist Additional Civil Judge (Jr. Div)/Judicial Magistrate, Saharanpur.

3. Contention of learned counsel for the applicants is that the impugned FIR was lodged and charge-sheet was filed after conducting investigation on which cognizance was also taken by the Court but as per Section-101 of Wakf Act, 1995 (hereinafter referred to as the ‘Act 1995’), mutawalli of wakf would be deemed to be a public servant within the meaning of Section-21 of Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’). Applicant no. 1 is mutawalli of wakf Karbala, Nai Basti, Behat Road, Saharanpur, therefore, as per Section-197 Cr.P.C. cognizance is bad by the Court because no sanction from appropriate Government was taken before taking such cognizance. It is further submitted that applicant no. 2 is father of applicant no. 1 and also assisted the applicant no. 1 in discharge of public duty. In support of his contention, learned counsel for the applicants also relied upon the judgment dated 07.09.1993 of Punjab and Haryana High Court reported in Tara Singh Retd. Sub-Registrar vs. The Saggal Cooperative Agricultural Service Society Ltd. 1994 Cri. L.J. 1465 in which it was observed that prosecution of Sub-Registrar is illegal without sanction from Government as he is public servant.

4. On the other hand, learned AGA has opposed the above submission and submitted that Section-101 of the Act, 1995 is a deeming provision for the discharge of duty and Section-197 Cr.P.C. is applicable only on public servant who cannot be removed without sanction of the State Government whereas for the removal of applicant no. 1, sanction of State Government is not required and Section-197 Cr.P.C. is not applicable in the present case.

5. Considering the submission of learned counsel for the applicant as well as learned AGA for the State, the sole question arises if the mutawalli was deemed to be public servant under Section-101 of the Act, 1995, then merely because he is deemed to be public servant is also entitled to protection under Section-197 Cr.P.C. For detailed analysis of this issue, Section-101 of the Act, 1995 is being quoted as below:

“101. Survey Commissioner, members and officers of the Board deemed to be public servants:

(1) The Survey Commissioner, members of the Board, every officer, every auditor of the Board and every other person duly appointed to discharge any duties imposed on him by this Act or any rule or order made thereunder, shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).

(2) Every mutawalli of a wakf, every member of managing committee, whether constituted by the Board or under any deed of wakf, every Executive Officer and every person holding any office in a wakf shall also be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).”

6. From perusal of the above section of the Act, 1995, it appears that not only mutawalli of wakf but every member of Managing Committee of wakf are also deemed to be a public servant within the meaning of Section-21 IPC. But despite the above deeming provision mutawalli can be removed by the wakf board as per Section-64 of the Act, 1995. Section 64 of the Act, 1995 is quoted as below:

“64. Removal of mutawalli:

(1) Notwithstanding anything contained in any other law or the deed of wakf, the Board