Mubashir Masood Khan vs The State Of Madhya Pradesh

The petitioner has preferred this petition under Section 482 of the Cr.P.C. for invoking the extraordinary jurisdiction of this Court and to quash the FIR

at Crime No.2062015, registered at Police StationKotwali, Bhopal in the interest of justice.

It is not disputed that the then Mutawali late Ahmad Ali Khanvide registered deed dated 30.03.2011 appointed the petitioner Mubashir Masood

Khan as Nayab Mutawali for the waqf properties.

Waqif late Jafar Ali Khan vide registered deed on 06.10.1945Â created Waqf Alal Aulad. The same was registered at No.1 in serial number 279 to

286 of Volume No.516. Mutawali Ahmad Ali Khan died on 05.06.2012. By registered deed dated 30.03.2011, the petitioner got right and

possession of the waqf property for managing the affairs. It is alleged that the MP Waqf Board  wrongly appointed Jafar Ali Khan

(minor) as Mutawali through his mother and natural guardian

Smt. Mehanaz Khan. This order was challenged before the Waqf Tribunal in Appeal No.03/2013. The Waqf Tribunal allowed the appeal on

07.03.2013 and the matter was remaded back for providing an opportunity of hearing to the parties. The Waqf Board took the waqf property in its

administrative control and the petitioner was appointed as care taker vide order dated 10.05.2013. As per the Waqf Act, 1995 enacted by the

Parliament, the appointment of Mutawali has been provided and in Section 3(i) mutawali has been defined.

Minor Jafar Ali Khan assailed the order dated 10.05.2013 before the Waqf Tribunal in Appeal No.07/2013. The same was dismissed on

15.07.2013. Jafar Ali Khan assailed the order dated 15.07.2013 in Civil Revision before this Court (in C.R.NO. 254/2013) which was dismissed vide

order dated 10.09.2015. The Waqf Board while issuing order dated 10.05.2013 imposed the condition that the petitioner shall consult with the Board

for management of waqf and construction of its properties.

The petitioner vide letter dated 11.03.2013 requested the WaqfBoard to appoint him as a mutawali as Member as per the registered deed

dated 30.03.2011. However, because the process was initiated for constitution of new Board, no order on the application could have been passed.Â

The petitioner again represented on 18.07.2014 for appointing him as Mutawali of the waqf and the same is still pending before the Board. The

petitiner being a care taker of the waqf was trying for betterment of the waqf property over which the previous Mutawali late Ahmad Ali Khan

obtained permission and no objection certificates for construction of waqf property. Thus, the petitioner consulted and informed the Chairman of the

Waqf Board and CEOÂ for such construction over the waqf property and the permission of the Municipal Corporation Bhopal was also sought.

However, the CEO issued show-cause notice dated 17.11.2014 on different issues. The petitioner replied to the same on 23.12.2014.

The petitioner also informed the CEO and the Board about the permissions issued by Nazul and Municipal Corporation and with regard to

construction work over the waqf property on 12.12.2014. The construction work started from 19.12.2014 for which permission was already

obtained by earlier mutawali Ahmad Ali Khan from the waqf board.

It is contended that even after consultation and consent of theBoard and intimation to the CEO Nisar Ahmed, no objection was ever raised. But

after seven months, the CEO started harassing the petitioner at the behest of Smt. Mehanaz Khan natural guardian of Jafar Ali Khan. The

CEO issued show-cause notice dated 02.07.2015 to the petitioner. The petitioner filed his reply on 30.07.2015Â denying all the allegations mentioned

in the show-cause notice. The petitioner intimated the Board about the progress of construction and stated that construction work is going on as per

directions and conditions of the NOC issued by the Municipal Corporation and the Board. The CEO again issued show-cause notice dated

04.09.2015 and issued directions to the Collector and Municipal Corporation, Bhopal for cancelling the permission for construction and further

directed to stop the construction work.

It is claimed that the action of the CEO is arbitrary,discriminatory and without jurisdiction. The petitioner further claims that the Chairman of the

MP Waqf Board was intimated about the illegal act of the CEO. The Chairman of the Board after enquiring the matter directed the CEO to

immediately suspend the operation of the notice dated 04.09.2015. The CEO granted only three days' time to file reply but this letter was received by

the petitioner on 07.09.2015. The petitioner filed reply on 10.09.2015 i.e. within three days as stipulated.

However, to the utter surprise of the petitioner, CEO vide orderdated 09.09.2015 removed the petitioner from the post of “Care Taker†of

the Waqf, the petitioner alleged that the action of the CEO is because of ulterior motive and at the behest of interested persons. The CEO has no

authority to cancel the appointment of the petitioner as care taker. Hence, the petitioner took recourse of supplementary proceeding before the

Waqf Board. Notices under Section 89 of the Waqf Act 1995 were issued but during mandatory period of two months, the petitioner prayed for

grant of interim relief from the Waqf Tribunal and therefore, application under Section 94 read with Section 151 of the CPC was filed. It is claimed

that the construction work undertaken by the petitioner on the permission of Municipal Corporation already accorded in favour of previous Mutawali

vide communication dated 22.05.2007. The petitioner has also taken further permission from Municipal Corporation and NOC from Nazul

Department.  An amount of about Rs.25 Lacs were spent in this construction work. The Tribunal was requested to stay the operation of orders

dated 04.09.2015 and 09.09.2015. However, the Waqf Tribunal vide order dated 22.09.2015 rejected the aforesaid prayer.

It is claimed that the Tribunal failed to see that the Chairman inits reply categorically stated that issuance of show-cause notice has not been

approved by the Board. The Board meeting held on 29.12.2014 agenda No.22 was discussed in relation to the present petitioner. The Tribunal

also failed to notice that the permission was given by the Municipal Corporation in accordance with law.

It is claimed that the order passed by the Tribunal is contrary tolaw and facts and from perusal of the note-sheet it is amply clear that the CEO kept

the matter pending for many months and not inclined to get the meeting held in the Board and in shrewd manner got the same prolonged, to any

how not to comply with the directions of the Waqf Board. Smt. Mehanaz Khan (aunt of the petitioner) was very interested in the waqf property.

She was assailing the orders issued in favour of the petitioner. She preferred litigation before the waqf tribunal and before the Court. The lawyer

engaged by Smt. Mehanaz Khan Advocate Shahnawaz Khan, Jafar Ali Khan (minor) against the petitioner and the Board in Appeal No. 03/2013 and

in Appeal No.07/2013. The very same advocate was appearing in the proceedings on behalf of the CEO which transpires that entire exercise

of CEO is vitiated and illegal and is in connivance with Smt. Mehanaz Khan. The CEO mala fidely misrepresented the meeting about the Board

whereas the last Board meeting was held on 29.12.2014 and the note-sheet was kept with CEO for about six months till 06.06.2015. TheÂ

Chairman noted on 12.06.2015, then CEOÂ noted on 22.06.2015Â and the Chairman marked noting and issued direction on the same on 22.06.2015.

Thereafter the CEO on 25.06.2015 asked all the branches to prepare the agenda. Again the CEO kept the file pending with him for more than

seventy days and noted on 01.09.2015 and forwarded the same to the Chairman where Chairman again on 02.09.2015Â pointed out the CEO for

forwarding the incorrect facts. CEO again on 04.09.2015 mentioned the case of the petitioner which shows that the CEO was not at all serious with

the issue and was trying to linger on the meeting. The impugned showcause notice is contrary to law because issuance of the same has been

recalled by the order of the Waqf Board by which the petitioner has been appointed as care taker. The CEO has exercised his power beyond

jurisdiction.

According to the petitioner, he preferred Civil RevisionNo.397/2015 wherein this Court vide order dated 28.10.2015 issued interim order

staying the operation of show-cause notice dated 04.09.2015 and 09.09.2015. CEO Nisar Ahmed being interested in causing loss to the petitiner

directed the police authorities to register offences against the petitioner vide letter dated 03.10.2015. Thereupon, police station Kotwali, Bhopal

registered the offences vide Crime No.206/2015 for offences punishable under Sections 181, 198 and 406 of the IPC against the petitioner on

08.10.2015. In this backdrop, the petitioner has prayed that the order issued by the CEO is mala fide and matter is purely of civil nature and CEO in

connivance with Smt. Mehanaz Khan has arbitrarily and discriminatory issued direction for initiation of proceeding. Hence, the FIR is liable to be

quashed.

The State of M.P. has disassociated itself from the disputebetween the parties.

Arguments heard and perused the record. On behalf of therespondents 2 to 4, it is claimed that the CEO has issued orders without having approval

of the Waqf Board. Permission of the Municipal Corporation, Bhopal for construction was issued on 16.09.2015. Appointment of Jafar Ali Khan

as Mutawali through her natural guardian was set aside on 07.03.2013 by the Waqf Tribunal. Vide order dated 15.07.2013, the appeal filed by Jafar

Ali Khan against the above order was also dismissed by Waqf Tribunal. In the allegations made in the FIR, it is only said that the petitioner has

acceded the jurisdiction of construction in the waqf properties. The petitioner though has denied the same. Even if it is taken to be true in its

entirety, there seems to be purely civil dispute between the parties and there is no allegation of any mala fide so far as action of the petitioner as care

taker is concerned.The order dated 15.09.2015 passed by the CEO Nisar Ahmed shows that without his written permission, no document be placed

before the Waqf Board. If any file is produced before the Chairman, Waqf Board, the same be not left with the personal secretary of the Board for

a long time. The complaint dated 14.09.2015 addressed to the police station Kotwali, Bhopal indicates that there has been civil dispute between the

parties. The appointment of the petitioner as Mutawali was cancelled on 09.09.2015 whereas the permission was granted on 22.07.2014, i.e. before

the order of cancellation of appointment. If the acts of the petitioner, if at all, is not in agreement with the instructions of the CEO, it was open to the

CEO to give proper direction through Waqf Board for the Board has appointed the petitioner as Mutawali.Otherwise also, the parties have constantly

approaching the Waqf Board, Wakf Tribunal and the Civil Court for different reasons. Hence, it seems to be purely civil dispute.

Provision of Section 195 of the Cr.P.C. provides that no Courtshall take cognizance of any offence punishable under Sections 172 to 188 of the

IPC except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf or of some

other Court to which that Court is subordinate. Hence, cognizance cannot be taken under Section 181 of the IPC against the petitioner.

Permission was obtained by earlier Mutawali Ahmed AliKhan for construction for betterment of waqf property. Therefore, offence under

Section 198 of the IPC is prima facie not made out.

Elements of Section 406 of the IPC are also not made out. Forthere is no entrusting of any person with property or with any dominion over

the property; there is no dishonest misappropriating or converting the properties to his own use or dishonestly using or disposing of that

property or wilfully suffering any other person so to do in violation of any law. As the elements of dishonestly misappropriation or use of propertyÂ

are absent, prima facie offence under Section 406 of the IPC is prima facie also not made out. For constituting this offence, there should be

misappropriation of property by a person on whom the property has been entrusted.

In the case of Harayan v. Bhajan Lal, reported as (1992) Suppl. 1 SCC 335, Hon'ble the Apex Court has made it clear that it may not be

possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae however, to give an

exhaustive list to myriad kinds of cases wherein such power should be exercised:

(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their

entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the First Information Report and othermaterials, if any, accompanying the FIR do not disclose a cognizable offence,

justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section

155 (2) of the Code.

(3) Where the uncontroverted allegations made in the FIR orcomplaint and the evidence collected in support of the same do not disclose the

commission of any offence and and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizableoffence but constitute only a non-cognizable offence, on investigation is permitted

by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.

(5) Where the allegations made in the FIR or complaint are soabsurd and inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient grounds for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of theprovisions of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act,

providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spit him due to private and personal grudge.

In view of the preceding analysis and in view of the law laid down by Hon'ble the Supreme Court, in the present case as the allegations made in

the FIR or the complaint do not disclose commission of offence, prima facie does not make out a case against

the petitioner; the allegations, if taken on their face value and accepted in entirety, do not prima facie constitute any offence; and there seems to be

civil disputes between the parties and proceeding seems to be maliciously instituted with an ulterior motive for wreaking vengeance on the petitioner

and with a view to spit him due to private and personal grudge, this petition is allowed. FIR at Crime No.206/2015 registered at police station Kotwali,

Bhopal for offences punishable under Sections 181, 198 and 406 of the IPC is hereby quashed.