IMPORTANT POINT
The main legal point established in the judgment is that the provisions of Section 52-A and Section 68 of the Waqf Act, 1995, do not cover criminal misappropriation, cheating, or fabrication of records, and do not prohibit the application of the procedure prescribed under Cr.P.C or the penal provisions of IPC, except in the specified circumstances in Section 52-A and the procedure prescribed under Section 68.

ORDER :

1. The petitioner is questioning the charge sheet filed by the Chandrayangutta Police in C.C.No.379 of 2017 on the file of Chief Metropolitan Magistrate, Nampally, Hyderabad for the offence under Sections 406 and 420 of IPC.

2. The case of the defacto complainant is that the petitioner/A1 and another, who are mutawallis of Towliath committee received income/revenue from the properties pertaining to Noria Noor Industries, Nooria Arabic College, Khankhan-e-nooria and its attached properties. The funds which were collected from the donors were misused for personal gains. The budget was not submitted and also the income and expenditure statement to the Waqf Board. Without taking permission from the Waqf Board, function hall was constructed in the property attached by Waqf. The said property generated heavy revenues, but the accused without showing the generated revenue, misused the funds. The funds received by way of donations were also misappropriated. The said complaint was filed by the Chief Executive Officer of the Telangana State Waqf Board. On the basis of the said complaint, the police filed charge sheet for the offences under Sections 406 and 420 of IPC.

3. Learned counsel appearing for the petitioner would submit that Section 52-A of the Waqf Act, 1995 (for short ‘the Act’) penalizes any person who 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. Further, under clause (3) of the Section 52-A of the Act, Court is restrained from taking cognizance except on a complaint made by the Board or any officer duly authorized by the State Government. Since charge sheet is filed by police, the cognizance taken in bad in law.

4. Learned counsel argued that in the said circumstances, since the petitioner was allegedly dealing with the Waqf Property, any misappropriation, cheating or any other allegation in relation to movable or immovable property can only be made liable under Section 52-A of the Act and the police cannot file charge sheet for the offence under Sections 420 and 406 of IPC.

5. Further Counsel relied on the provision under Section 68 of the Act wherein the procedure has been prescribed when any mutawalli or committee has been removed by the Board in accordance with the provisions of the Act, they shall handover the charge and deliver possession of the records, accounts of properties of the Waqf including cash to the successor mutawalli. In the situation of handing over of the records etc., to the successor mutawalli, the procedure adopted can only be under Section 68 of the Act. Since the allegation is that the records were not handed over giving all details, any misappropriation or any action that has to be taken in respect of Waqf properties can only be under Sections 52A and/or the procedure and punishment under Section 68 of the Act.

6. According to the Counsel, in view of Section 52-A and Section 68 of the Act, the Court is barred from taking cognizance in the charge sheet filed by the police and it is for the Board or any officer duly authorized by the State Government to lodge complaint in accordance with Section 2(d) of the Criminal Procedure Code. The provisions of IPC and Cr.P.C will not apply. For the said reasons, the charge sheet being in violation of Sections 52-A and 68 of the Act, the proceedings have to be quashed against the petitioner.

7. Section 52-A and section 68 of the Act are extracted:

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 th