# Abdul Mannan & Ors v. State of U.P. & Ors

- **Citation:** (2024) 10 ILRA 797
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-04
- **Case number:** Criminal Misc. Writ Petition No. 16673 of 2024
- **Bench:** Siddharth, Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abdul-mannan-ors-v-state-of-u-p-ors-51111
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 323, 504, 506, 467,
468, 471 &120B - Waqf Act, 1995 -
Sections 51, 52 & 83(2) - Quashing of FIR
- Petitioners and opposite party no.4
belongs to same family - Ancestors of
them created Waqf in 1959, in respect of
property
owned
by
him
and
was
registered by U.P. Sunni Central Waqf
Board - The Board vide order dated
19.03.2019 appointed petitioner No. 1 as
Mutawalli, to manage affairs of said Waqf
- F.I.R was lodged by opposite party no.4
against petitioners - Allegations against
them that they are damaging Waqf
property for their personal gain, petitioner
No.1 manipulated a 'Hiba-nama' dated
27.10.1969 in respect of part of said
property and mutated in his name, in
Revenue Records - They illegally alienated
Waqf property even without approval of
Board
-
Petitioners
submitted
that
properties mentioned in Waqf-deed dated
14.03.1959 are different than properties
mentioned in Hiba-nama. (Para 3, 4, 5, 6)

Held, informant tried to transform civil
dispute into a criminal one - Dispute was
adjudicable only by competent forum
constituted u/s 83(1) of Waqf Act, thus
impugned F.I.R without sanction of Board,
was unsustainable in law and contravened
the provisions of section 52A (3) of Waqf
Act, quashed. (Para 14, 16)
Writ Petition allowed. (E-13)

List of Cases cited:

## Text

10 All. Abdul Mannan & Ors. Vs. State of U.P. & Ors.
797

22. Issue notice to respondent No.5.

23. Learned A.G.A. is granted three
weeks' time to file counter affidavit. The
petitioner shall have two weeks thereafter
to file rejoinder affidavit.

24. List in the week commencing
11.11.2024.

25. Till the next date of listing, no
coercive action shall be taken against the
petitioner in F.I.R. No. 196 of 2024, under
Section 351(2) of the Bharatiya Nyaya
Sanhita, 2023, Police Station- Tharwai,
Commissionerate Prayagraj, provided the
petitioner cooperates in the investigation.
----------
(2024) 10 ILRA 797
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.10.2024

BEFORE

THE HON'BLE SIDDHARTH, J.
THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Criminal Misc. Writ Petition No. 16673 of 2024

Abdul Mannan & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
A.C. Srivastava, Ram Lakhan Deobanshi

Counsel for the Respondents:
C.S.C., Shahabuddin

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 323, 504, 506, 467,
468, 471 &120B - Waqf Act, 1995 -
Sections 51, 52 & 83(2) - Quashing of FIR
- Petitioners and opposite party no.4
belongs to same family - Ancestors of
them created Waqf in 1959, in respect of
property
owned
by
him
and
was
registered by U.P. Sunni Central Waqf
Board - The Board vide order dated
19.03.2019 appointed petitioner No. 1 as
Mutawalli, to manage affairs of said Waqf
- F.I.R was lodged by opposite party no.4
against petitioners - Allegations against
them that they are damaging Waqf
property for their personal gain, petitioner
No.1 manipulated a 'Hiba-nama' dated
27.10.1969 in respect of part of said
property and mutated in his name, in
Revenue Records - They illegally alienated
Waqf property even without approval of
Board
-
Petitioners
submitted
that
properties mentioned in Waqf-deed dated
14.03.1959 are different than properties
mentioned in Hiba-nama. (Para 3, 4, 5, 6)

Held, informant tried to transform civil
dispute into a criminal one - Dispute was
adjudicable only by competent forum
constituted u/s 83(1) of Waqf Act, thus
impugned F.I.R without sanction of Board,
was unsustainable in law and contravened
the provisions of section 52A (3) of Waqf
Act, quashed. (Para 14, 16)
Writ Petition allowed. (E-13)

List of Cases cited:

1. Indian Oil Corporation Vs NEPC India Ltd.
reported in 2006 (6) SCC 736

2. Professor R.K. Vijayasarathy & anr.Vs Sudha
Seetharam & anr.reported in 2019 (16) SCC 739
(Delivered by Hon'ble Mohd. Syed Qamar
Hasan Rizvi, J.)

1. Heard Shri A.C. Srivastava, learned
counsel for the petitioners, Shri Anil
Kumar Srivastava, learned counsel for
opposite party no.4 and learned Additional
Government Advocate for the State.

2. Since pure legal issue is involved in
this case therefore, without calling counter
affidavit, with the consent of the learned
counsel for the parties, the present Writ
798 INDIAN LAW REPORTS ALLAHABAD SERIES
Petition is being decided finally at the stage
of first hearing in view of the second
proviso to Rule 2 of Chapter XXII of the
Allahabad High Court Rules (Rules of
Court, 1952).

3. By means of the present writ
petition
under
Article
226
of
the
Constitution of India, the petitioners have
prayed for quashing the First Information
Report dated 29.08.2024, registered as
Case Crime No. 0293 of 2024, under
Sections 419, 420, 323, 504, 506, 467, 468,
471 and 120B of the Indian Penal Code at
Police Station-Shahganj, District-Jaunpur
and also for a direction to the official
respondents not to arrest the petitioner in
pursuance of impugned First Information
Report.

4. The relevant facts of the case in
brief as culled out from the averments
made in the writ petition are that the
present petitioners and the opposite party
no.4 belongs to the same family. The
ancestors of the petitioners and opposite
party no.4, namely, Late Sheikh Asgar son
of Sheikh Ghooran resident of Erakiyana,
created a Waqf in the year 1959, in respect
of the property owned by him and remained
'Mutawalli' of the same till his death.
Thereafter, as per the deed of Waqf, his son
Mohd. Amin assumed the office of
Mutawalli-ship. The said Waqf was duly
registered by the U.P. Sunni Central Waqf
Board, Lucknow as Waqf No. 49A-
Jaunpur. After the death of the aforesaid
Mohd. Amin, his son Mohd. Firoz Alam
became the Mutawalli of the said Waqf on
01.01.2011. The U.P. Sunni Central Waqf
Board
vide
order
dated
19.03.2019
removed the said Mohd. Firoz Alam from
the office of Mutawalli-ship and in the
vacancy thus caused, appointed Shri Abdul
Mannan the petitioner No. 1 herein as the
Mutawalli, to manage the affairs of the said
Waqf.

5. The pleadings as available before
us, shows that the petitioner No.1 is
holding the Tauliyat since 19.03.2019 i.e.,
the date of his appointment as Mutawalli.
In the instant case, one Mohd. Rizwan, son
of Late Nizamuddin who is the opposite
party no. 4 herein, lodged a First
Information Report (herein after referred as
'F.I.R'.) dated 29.08.2024 against the
petitioners, namely, Abdul Mannan, Mohd.
Rehan, Mohd. Shakir and Abdul Hannan
alleging therein that the petitioners are
damaging the Waqf for their personal gain. It
is also alleged that despite full knowledge of
the fact that Late Sheikh Asgar devoted all of
his property as Waqf on 14.03.1959, the
petitioner No.1 manipulated a 'Hiba-nama'
dated 27.10.1969 in respect of a part of the
aforesaid property and further got the same
mutated in his name, in the Revenue Records.
In the said F.I.R., it has been categorically
alleged that on the strength of the aforesaid
unlawful entries made in the Revenue
Records on the basis of a fraudulent 'Hibanama', he illegally alienated the said Waqf
property in favour of about 40 persons even
without the approval of the U.P. Sunni
Central Waqf Board. Further allegation as
made in the said F.I.R. is that on 18.06.2024,
at about 10:00 AM, petitioners tried to erect a
boundary wall and a gate on the said Waqf
property and on being opposed by the
Informant / opposite party no.4 along with his
sons, the petitioners uttered filthy abuses
while beating the informant with kicks /
punches and stick and also threatened to kill,
resulting into the lodging of the impugned
F.I.R.

6.
Assertion
on
behalf
of
the
petitioners is that the allegation as levelled
by the opposite party no. 4 in the impugned
10 All. Abdul Mannan & Ors. Vs. State of U.P. & Ors.
799
F.I.R. is totally bald and have no substance.
The properties alleged to have been
alienated are not the Waqf property and the
same has been acquired by the above
named petitioner from his grandfather
through Hiba-nama dated 27.10.1969. The
properties mentioned in the Waqf-deed
dated 14.03.1959 are entirely different than
the properties mentioned in the said Hibanama. The contention of the learned
Counsel for the petitioner is that the present
F.I.R. is nothing but a tactics to exert under
pressure upon the petitioners to step back
from pursuing the pending proceeding
under Case Crime No. 376 of 2013. The
submission as advanced by learned counsel
for the petitioners is that dispute between
the parties is purely of civil nature and can
only be adjudicated before the competent
forum. It is the settled law that the parties
in the civil dispute could not be permitted
to use criminal proceedings as handtwisting device. Further, no mention of any
injury caused to anyone in the alleged
incident, itself exposes the falsehood of the
concocted story as alleged to have taken
place on 18.06.2024 as narrated in the
impugned F.I.R.

7. The contention of the learned
counsel for the petitioner is that the
informant / opposite party no.4 has no
locus-standi to lodge the F.I.R. in view of
the specific bar as provided under Section
52A (3) of the Waqf Act, 1995 that
specifically provides that in case of any
alienation of the Waqf property without
sanction of the Board, no court shall take
cognizance of any offence under the said
section except on a complaint made by the
Board or any officer duly authorised by the
State Government in this behalf and,
therefore, the lodging of F.I.R. by the
opposite party no.4 alleging alienation of
the Waqf property without the sanction of
the Board, is de-hors of the Waqf Act,
1995.

8. Before delving into the question as
to whether the opposite party no. 4 is
competent under law to lodge an F.I.R.
seeking prosecution against the petitioners
regarding the alleged alienation of the
Waqf property; it would be apposite to go
through the provisions as stipulated under
the Waqf Act, 1995 dealing with the
alienation of the Waqf property.

For
ready
reference,
the
provisions of Sections 51, 52 and 52A are
reproduced hereinafter: -

51. Alienation of waqf property
without sanction of Board to be void.-(1)
Notwithstanding anything contained in the
waqf deed, any lease of any immovable
property which is waqf property, shall be
void unless such lease is effected with the
prior sanction of the Board:

Provided that no mosque, dargah,
khanqah, graveyard, or imambara shall be
leased except any unused graveyards in the
States of Punjab, Haryana and Himachal
Pradesh where such graveyard has been
leased
out
before
the
date
of
commencement of the Wakf (Amendment)
Act, 2013 (27 of 2013).

(1A) Any sale, gift, exchange,
mortgage or transfer of waqf property shall
be void ab initio:

Provided that in case the Board is
satisfied that any waqf property may be
developed for the purposes of the Act, it
may, after recording reasons in writing,
take up the development of such property
through such agency and in such manner
as the Board may determine and move a
resolution containing recommendation of
development of such waqf property, which
shall be passed by a majority of two-thirds
of the total membership of the Board:
800 INDIAN LAW REPORTS ALLAHABAD SERIES

Provided further that nothing
contained in this sub-section shall affect
any acquisition of waqf properties for a
public purpose under the Land Acquisition
Act, 1894 (1 of 1894) or any other law
relating to acquisition of land if such
acquisition is made in consultation with the
Board:

Provided also that-

(a) the acquisition shall not be in
contravention of the Places of Public
Worship (Special Provisions) Act, 1991 (42
of 1991);

(b) the purpose for which the land
is being acquired shall be undisputedly for
a public purpose;

(c)
no
alternative
land
is
available which shall be considered as
more or less suitable for that purpose; and

(d) to safeguard adequately the
interest and objective of the waqf, the
compensation shall be at the prevailing
market value or a suitable land with
reasonable solatium in lieu of the acquired
property.

52. Recovery of waqf property
transferred in contravention of section
51.-(1) If the Board is satisfied, after
making any inquiry in such manner as may
be prescribed, that any immovable property
of a waqf entered as such in the register of
waqf maintained under section 36, has
been transferred without the previous
sanction of the Board in contravention of
the provisions of section 51 or section 56, it
may send a requisition to the Collector
within whose jurisdiction the property is
situate to obtain and deliver possession of
the property to it.

(2) On receipt of a requisition
under sub-section (1), the Collector shall
pass an order directing the person in
possession of the property to deliver the
property to the Board within a period of
thirty days from the date of the service of
the order.

(3) Every order passed under
sub-section (2) shall be served-

(a) by giving or tendering the
order, or by sending it by post to the person
for whom it is intended; or

(b) if such person cannot be
found, by affixing the order on some
conspicuous part of his last known place of
abode or business, or by giving or
tendering the order to some adult male
member or servant of his family or by
causing
it
to
be
affixed
on
some
conspicuous part of the property to which it
relates:

Provided that where the person
on whom the order is to be served, is a
minor, service upon his guardian or upon
any adult male member or servant of his
family shall be deemed to be the service
upon the minor.

(4) Any person aggrieved by the
order of the Collector under sub-section (2)
may, within a period of thirty days from the
date of the service of the order, prefer an
appeal to the Tribunal within whose
jurisdiction the property is situate and the
decision of the Tribunal on such appeal
shall be final.

(5) Where an order passed under
sub-section (2) has not been complied with
and the time for appealing against such
order has expired without an appeal having
been preferred or the appeal, if any,
preferred within that time has been
dismissed, the Collector shall obtain
possession of the property in respect of
which the order has been made, using such
force, if any, as may be necessary for the
purpose and deliver it to the Board.

(6) In exercising his functions
under this section the Collector shall be
guided by such rules as may be provided by
regulations.
10 All. Abdul Mannan & Ors. Vs. State of U.P. & Ors.
801

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 the
provisions of any law for the time being in
force, be vested in the Board without any
compensation therefor.

(2)
Notwithstanding
anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974) any offence
punishable under this section shall be
cognizable and non-bailable.

(3)
No
court
shall
take
cognizance of any offence under this
section except on a complaint made by the
Board or any officer duly authorised by
the State Government in this behalf.

(4) No court inferior to that of a
Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any
offence punishable under this section."

(emphasis supplied by this Court)

9. From a bare perusal of sub-Section
(3) of Section 52A of Waqf Act, 1995 it is
crystal clear that the same categorically
bars the Court to take cognizance of any
offence under the said Section except on a
Complaint made by Board or any officer
duly authorized by the State Government in
this behalf.

10. Further, in the instant case, by
means of the impugned F.I.R. the informant
/ opposite party no. 4 has alleged alienation
of the Waqf property by the mutawalli of
the Waqf. At this stage it would not be out
of place to note that legislature has
described the mutawalli of waqf as 'public
servant' under sub-section (2) of section
101 of the Waqf Act, 1995, which reads as
under: -

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

11. It would not be out of place to
mention that the Waqf Board under Section
64(1)(k) of the Waqf Act, 1995 itself has
been bestowed with the power to take
action against the mutawalli, on being
found
that
he
misappropriates
or
fraudulently deals with the property of the
Waqf.

12. From the impugned F.I.R. it is
apparent that substratum of the dispute is
the very character of the property alleged to
have been alienated by the petitioners in as
much as, whether the same belongs to the
Waqf or not ? In case of being Waqf
property, whether the previous sanction as
stipulated under Section 51 of the Waqf
Act,1995 was obtained or not? Whether the
Hiba-nama dated 27.10.1969 is a genuine
and valid document? Further, whether the
petitioner no.1 was rightly appointed as the
mutawalli of the Waqf in question by the
U.P. Sunni Central Waqf Board vide order
dated 19.03.2019 by removing the earlier
mutawalli?

13. Undoubtedly, the disputes as
referred in the preceding paragraph are
amenable to Section 83 of the Waqf Act,
1995. Sub-Section (2) of Section 83 of the
802 INDIAN LAW REPORTS ALLAHABAD SERIES
Waqf Act, 1995 categorically provides that
any dispute, question or other matter
relating to the Waqf shall be determined by
the Waqf Tribunal duly constituted under
the Waqf Act, 1995. Section 83 (2) of The
Wakf Act, 1995 reads as under:-

"(2)
Any
mutawalli
person
interested in a waqf or any other person
aggrieved by an order made under this Act,
or rules made thereunder, may make an
application within the time specified in this
Act or where no such time has been
specified, within such time as may be
prescribed, to the Tribunal for the
determination of any dispute, question or
other matter relating to the waqf."

14. In view of what has been narrated
and discussed hereinabove, we hold the
opinion that by means of the impugned
F.I.R. the opposite party no. 4 has tried to
transform the civil dispute into a criminal
one. The Hon'ble Supreme Court has very
critically addressed the said issue in the
case of Indian Oil Corporation versus
NEPC India Limited reported in 2006
(6) SCC 736, wherein Hon'ble the Apex
Court has taken serious notice of the
growing trend of mischaracterising civil
dispute into criminal. Further, putting a
note of caution in case of Professor R.K.
Vijayasarathy and another versus Sudha
Seetharam and another reported in 2019
(16) SCC 739, the Hon'ble Supreme Court
of India has been pleased to observe that
cloaking a civil dispute as criminal matter
in the absence of requisite ingredients
necessary to constitute a criminal offence is
abuse of Court's process. In the present
case the foundation of the impugned F.I.R.
is the allegation of alienation of the
property in question by the petitioner No. 1.
The crux of dispute involved in the matter
lies in determination of the fact that as to
whether the property in question allegedly
alienated is indeed a Waqf. The said
dispute is effectively adjudicable only by
the competent forum duly constituted under
section 83(1) of the Waqf Act, 1995.

15. It is well settled that while
exercising its jurisdiction under Article 226
of the Constitution of India, the Court is not
confined to the procedural stage of a case
but is empowered to take into account the
surrounding circumstances leading to the
initiation of the proceeding. Undoubtedly,
quashing of F.I.R or proceeding is
warranted where it manifests that there is a
legal
bar
against
the
institution
or
continuance of the proceeding. In the
instant case, the allegation of alienation of
the property in question by the petitioner in
contravention of the provisions under
Section 51 of the Waqf Act, 1995, is the
genesis of the dispute which cannot be
prosecuted as a State Case based upon
F.I.R. in the teeth of Section 52A(3) of the
Waqf Act, 1995, which categorically
provides
that
no
Court
shall
take
cognizance of any offence under this
Section except on a Complaint made by the
Board or any officer duly authorised by the
State Government in this behalf.

16. In the light of the deliberations
made herein above the impugned F.I.R.
dated 29.08.2024 lodged by the opposite
party no. 4 in respect of the alleged
alienation of the Waqf property without the
sanction
of
the
Waqf
Board,
is
unsustainable
in
law,
being
in
contravention to the legal bar as stipulated
under sub-section (3) of section 52A of the
Waqf Act, 1995.

17.
Accordingly,
considering
the
statutory restriction being imposed under
sub-Section (3) of Section 52A of the Waqf
10 All. Hakim Vs. State of U.P.
803
Act, 1995, the impugned F.I.R. dated
29.08.2024 registered at Case Crime No.
0293 of 2024; Police Station-Shahganj,
District-Jaunpur; to the extent it relates to
Section 419, 420, 467, 468, 471 of the
Indian Penal Code is liable to be quashed
and is hereby quashed to that extent. So far
as the rest of the alleged offence under
Sections 323, 504, 506 and 120B of the
Indian Penal Code as mentioned in the
F.I.R. dated 29.08.2024 are concerned, it is
pertinent to note that since these offences
are non-cognizable, therefore, prosecution
is
at
liberty
to
proceed
with
the
investigation only after seeking required
permission in terms of the provisions of
Section 155(2) of Code of Criminal
Procedure.

18. However it is made clear that this
order shall not prevent the concerned Waqf
Board or any officer duly authorized by the
State Government to institute Complaint in
terms of Section 52A of The Waqf Act,
1995.

19. As a fall out and consequence of
the above deliberation, this Writ Petition is
allowed
with
the
observations
and
directions set forth herein above.

20. Parties to this writ petition shall
bear their respective costs.
----------
(2024) 10 ILRA 803
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.10.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal Nos. 6632 of 2019, 6501 of
2019, 3104 of 2021 & 151 of 2019
Hakim ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Araf Khan, Lihizur Rahman Khan, Pankaj Kumar
Shukla, Sanjay Kumar Dwivedi

Counsel for the Respondent:
Anil Kumar Pandey, G.A.

Criminal Law -Indian Penal Code,1860 -
Sections 147, 148 & 302 read with Section
149 IPC awarding imprisonment for life
with a fine of Rs. 25,000/- and a default
sentence of one year three months-
whether the first information report is
anti-timed or not- possibility of F.I.R.
having been lodged after deliberation and
consultation
cannot
be
ruled
outdeposition of star witnesses doubtful- it is
nothing
but
a
classic
case
of
improvement- various shortcomings not
only in the investigation- prosecution
theory itself appears doubtful for holding
appellant's guilty of commission of the
charged offence- material contradictions
not only in the oral testimony of the
prosecution witnesses- entire prosecution
theory is botched up sans any credibility-
prosecution has failed to establish the
commission of the crime by the accused
beyond reasonable doubt-conviction set
aside-appeal allowed. (Paras 36, 38, 42,
43 and 45)

HELD:
Certainly, a defective investigation may not
demolish the prosecution theory but overall
circumstances
needs
to
be
considered
depending upon the facts and circumstances in
order to weigh the import and the impact of the
defective investigation. We find that there are
various
shortcomings
not
only
in
the
investigation conducted by the investigating
officer but also the fact that the prosecution
theory itself appears doubtful for holding
appellant's guilty of commission of the charged
offence. What is required is a threadbare
analysis of the prosecution theory in light of the
oral and documentary evidence on record. (Para
38)