Court No. - 66

Case :- APPLICATION U/S 482 No. - 10594 of 2022

Applicant :- Nahid Husain And 7 Others

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Imran Mabood Khan

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Misra,J.

Heard Mr. Imran Mabood Khan, the learned counsel for

applicant and the learned A.G.A. for State.

Counter affidavit filed by learned A.G.A. in Court today is

taken on record.

This application under section 482 Cr.P.C. has been filed

challenging the summoning order dated 27.8.2021, passed by

Chief Judicial Magistrate, Farrukhabad in Criminal Case No.

4027 of 2021 (State Vs. Kaushal Yadav and Others) under

Sections 447, 420, 406, 468 IPC, Police Station- Farrukhabad

Kotwali, District Fatehgarh arising out of Case Crime No. 740

of 2020, under Sections 447, 420, 406, 468 IPC, Police Station-

Farrukhabad Kotwali, District Fatehgarh, now pending in the

Court of Chief Judicial Magistrate, Farrukhabad.

Learned counsel for applicants submits that applicant-1 is

Mutawali of waqf registered as Waqf No. I 189. Applicants- 2

to 8 are tenants of the waqf property. The tenancy originated on

account of temporary lease deed executed by Mutawali of the

Waqf i.e. applicant-1, in favour of the applicants-2 to 8. On the

aforesaid premise, he submits that since applicant-1 is Mutawali

of the trust he has right to execute lease deed in favour of

applicants-2 to 8 in whose favour the waqf property is to be

given on rent. Thus, no illegality has been committed by

applicant-1. As such no offence under sections 441 and 406 is

made out against applicants as there was no entrustment in

favour of applicant. Investigating Officer while submitting the

charge sheet has completely ignored the aforesaid aspect of the

matter and therefore erroneously charge sheeted the applicants

under sections 441 and 406 IPC. It is further contended that

since no document has been forged by applicants, no offence

under section 468 IPC is made out against applicant. The power

to administer a waqf is vested in the waqf Board which appoints

the Muttawali. Admittedly, no proceedings have been initiated

by the waqf Board against the Muttawali i.e. applicant-1

regarding the lease deed executed by him in favour of

applicants-2 to 8. It was the Waqf Board which could have

suffered lose on account of alleged cheating committed by the

applicants. But no proceedings have been initiated by the Waqf

Board. There is nothing on record to show that there was an

intention on the part of applicants to cheat the Waqf Board right

from inception. As such no offence under section 420 IPC is

made out against applicants either. It is lastly submitted that the

order dated 20.8.2020, passed by District Magistrate is patently

illegal inasmuch as concerned District Magistrate has no power

to pas any order in respect of waqf property. As such, the

present criminal proceedings are wholly malicious and an abuse

of the process of the Court. Since no offence as complained of

is made out against applicants therefore same is liable to be

quashed by this Court.

Per contra, the learned A.G.A. has opposed the present

application. Learned A.G.A. submits that charge sheet

submitted by Investigating Officer has not been challenged in

present application. In the absence of any challenge to the

charge sheet, submissions urged by learned counsel for

applicant are misconceived. It is next contended by learned

A.G.A. that in view of the submissions urged by learned

counsel for applicant that no offence is made out as per material

on record, remedy lies to applicants to approach Court below

under section 239 Cr.P.C. and seek discharge, as Court below

will have the advantage of entire material before it. Learned

A.G.A. also submits that present proceedings have been

initiated on account of order dated 10.8.2020, passed by District

Magistrate, Farukhabad which has not been challenged till date.

Le