# Abu Talib Husain & Anr v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-22
- **Case number:** Application U/S 482 No. 18824 of 2023
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abu-talib-husain-anr-v-state-of-u-p-anr-50949
- **Pages:** 9

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 197 & 482 - Indian Penal
Code, 1860 - Sections 21, 323, 354, 504 &
506 - Wakf Act, 1995 - Sections 64 & 101
- Application under Section 482 of Cr.P.C. -
seeking to quash criminal proceedings, including
charge-sheet as well as the summoning order -
FIR - Charge-sheet - investigation - cognizance
taken by the court - Applicants argue that since
the mutawalli is deemed a public servant under
Section 101 of the Wakf Act, prosecution
without
prior
government
sanction
under
Section 197 Cr.P.C. is invalid - the court held
that, although Section 101 of the Wakf Act,
1995
deems
mutawallis
and
managing
committee members of a wakf as public
servants under Section 21 IPC, they are not
entitled to protection under Section 197 Cr.P.C.
because they can be removed by the Wakf
Board without requiring sanction from the
Central or St. Government, thus failing to meet
the
second
essential
condition
for
the
application
of
Section
197
Cr.P.C.
-
consequently, the application seeking quashing
of proceedings is rejected.
(Para - 7, 8, 9, 10)

Application Allowed. (E-11)

List of referred Cases: -

## Text

380 INDIAN LAW REPORTS ALLAHABAD SERIES
other provisions of law. Section 10 reads as
under:-

"The provisions of this Act or any
Rule made thereunder shall have effect
notwithstanding
anything
inconsistent
therewith contained in any other enactment
or instrument having effect by virtue of
such enactment."

8. In view of the above provisions
the
prior
sanction
of
the
Central
Government is a sine qua non for
institution of prosecution of the petitioner
for the alleged offence under section 7 of
the Act. As the prosecution has been
initiated without compliance of the said
mandatory requirement, the cognizance
taken by the learned Magistrate and the
consequent proceedings therefore cannot be
sustained in the eye of law and as a result,
the petition deserves to be allowed."

49. The conclusion in this case, on the
facts noticed and the provisions of the law
applicable is, therefore, inescapable and,
that is, that the order of cognizance dated
17.09.2018 and the impugned proceedings
pending on the file of the Chief Judicial
Magistrate, Sant Kabir Nagar cannot be
permitted to continue and have to be
quashed.

50. It is, however, clarified that what
this Court proposes to quash are the order
of cognizance and the proceedings before
the learned Magistrate. We do not propose
to quash the charge-sheet. It will be open to
the State to proceed against the applicant in
accordance with law, should they so elect.

51. Before parting with the matter,
this Court wishes to place on record our
concern about the fact that neither the
learned
Chief
Judicial
Magistrate
concerned, who took cognizance, nor the
Superintendent
of
Police
or
other
Supervisory Officer, who approved the
charge-sheet, took note of the provisions
regarding sanction carried in the Act of
2005. What is all the more concerning is
that the State Government granted sanction
vide order dated 09.06.2017, blissfully
ignorant of the fact that the power to grant
sanction for an offence punishable under
the Act of 2005 is vested in the Central
Government; not the state government.
This is not expected to happen where there
is a department of law to assist the
Government.

52. In the circumstances, this
application succeeds and is allowed. The
impugned proceedings of Criminal Case
No. 3558 of 2018, State v. Raghvendra
Kumar Yadav (arising out of Case Crime
No. 2264 of 2016) under Section 3/7 of the
State Emblem of India (Prohibition of
Improper Use) Act, 2005, Police Station -
Khalilabad, District - Sant Kabir Nagar
pending
before
the
Chief
Judicial
Magistrate, Sant Kabir Nagar, including the
order of summoning dated 17.09.2018, are
hereby quashed.

53. It is made clear that the chargesheet has not been quashed and it will be
open to the respondents to proceed afresh,
in accordance with law, after complying
with the provisions of Section 8 of the Act
of 2005.
---------
(2024) 3 ILRA 380
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.08.2023

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482 No. 18824 of 2023
3 All. Abu Talib Husain & Anr. Vs. State of U.P. & Anr.
381
Abu Talib Husain & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ashfaq Ahmed Ansari

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 197 & 482 - Indian Penal
Code, 1860 - Sections 21, 323, 354, 504 &
506 - Wakf Act, 1995 - Sections 64 & 101
- Application under Section 482 of Cr.P.C. -
seeking to quash criminal proceedings, including
charge-sheet as well as the summoning order -
FIR - Charge-sheet - investigation - cognizance
taken by the court - Applicants argue that since
the mutawalli is deemed a public servant under
Section 101 of the Wakf Act, prosecution
without
prior
government
sanction
under
Section 197 Cr.P.C. is invalid - the court held
that, although Section 101 of the Wakf Act,
1995
deems
mutawallis
and
managing
committee members of a wakf as public
servants under Section 21 IPC, they are not
entitled to protection under Section 197 Cr.P.C.
because they can be removed by the Wakf
Board without requiring sanction from the
Central or St. Government, thus failing to meet
the
second
essential
condition
for
the
application
of
Section
197
Cr.P.C.
-
consequently, the application seeking quashing
of proceedings is rejected.
(Para - 7, 8, 9, 10)

Application Allowed. (E-11)

List of referred Cases: -

1. Tara Singh Retd. Sub-Registrar Vs The Saggal
Cooperative Agricultural Service Society Ltd. -
1994 CRI.L.J. 1465,

2. Manish Trivedi Vs St. of Rajasthan reported in
(2014) 14 SCC 420,

(Delivered by Hon'ble 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 the entire
proceedings of Case No.1618 of 2022,
State Vs. Abu Talib Husain including
chargesheet 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 judgement
dated 07.09.1993 of Punjab and Haryana
High Court reported in 1994 CRI.L.J.
382 INDIAN LAW REPORTS ALLAHABAD SERIES
1465 (Tara Singh Retd. Sub-Registrar
Vs.
The
Saggal
Co-operative
Agricultural Service Society Ltd.) 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 Section197 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 Section101 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 Section64 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 may remove a mutawalli from his
office if such mutawalli?

(a) has been convicted more than
once of an offence punishable under
section 61; or

(b) has been convicted of any
offence of criminal breach of trust or any
other offence involving moral turpitude,
and such conviction has not been reversed
and he has not been granted full pardon
with respect to such offence; or

(c) is of unsound mind or is
suffering from other mental or physical
defect or infirmity which would render him
unfit
to
perform
the
functions
and
discharge the duties of a mutawalli; or

(d) is an undischarged insolvent;
or

(e) is proved to be addicted to
drinking
liquor
or
other
spirituous
preparations, or is addicted to the taking of
any narcotic drugs; or

(f) is employed as a paid legal
practitioner on behalf of, or against, the
wakf; or
3 All. Abu Talib Husain & Anr. Vs. State of U.P. & Anr.
383

(g) has failed, without reasonable
excuse, to maintain regular accounts for
two consecutive years or has failed to
submit, in two consecutive years, the yearly
statement of accounts, as required by subsection (2) of section 46; or

(h) is interested, directly or
indirectly, in a subsisting lease in respect of
any wakf property, or in any contract made
with, or any work being done for, the wakf
or is in arrears in respect of any sum due
by him to such wakf; or
(i) continuously neglects his duties or
commits any misfeasance, malfeasance,
misapplication of funds or b1. 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 the
entire proceedings of Case No.1618 of
2022, State Vs. Abu Talib Husain including
chargesheet 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 judgement
dated 07.09.1993 of Punjab and Haryana
High Court reported in 1994 CRI.L.J. 1465
(Tara Singh Retd. Sub-Registrar Vs. The
Saggal Co-operative Agricultural Service
Society Ltd.) 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 Section197 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,
384 INDIAN LAW REPORTS ALLAHABAD SERIES
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 Section64 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
may remove a mutawalli from his office if
such mutawalli?

(a) has been convicted more than
once of an offence punishable under
section 61; or

(b) has been convicted of any
offence of criminal breach of trust or any
other offence involving moral turpitude,
and such conviction has not been reversed
and he has not been granted full pardon
with respect to such offence; or

(c) is of unsound mind or is
suffering from other mental or physical
defect or infirmity which would render him
unfit
to
perform
the
functions
and
discharge the duties of a mutawalli; or

(d) is an undischarged insolvent;
or

(e) is proved to be addicted to
drinking
liquor
or
other
spirituous
preparations, or is addicted to the taking of
any narcotic drugs; or

(f) is employed as a paid legal
practitioner on behalf of, or against, the
wakf; or

(g) has failed, without reasonable
excuse, to maintain regular accounts for
two consecutive years or has failed to
submit, in two consecutive years, the yearly
statement of accounts, as required by subsection (2) of section 46; or

(h) is interested, directly or
indirectly, in a subsisting lease in respect of
any wakf property, or in any contract made
with, or any work being done for, the wakf
or is in arrears in respect of any sum due
by him to such wakf; or

(i) continuously
neglects
his
duties
or
commits
any
misfeasance,
malfeasance, misapplication of funds or
breach of trust in relation to the wakf or in
respect of any money or other wakf
property; or

(j)
wilfully
and
persistently
disobeys the lawful orders made by the
Central Government, State Government,
Board under any provision of this Act or
rule or order made thereunder;

(k)
misappropriates
or
fraudulently deals with the property of the
wakf.(2) The removal of a person from the
office of the mutawalli shall not affect his
personal rights, if any, in respect of the
wakf property either as a beneficiary or in
any other capacity or his right, if any, as a
sajjadanashin.

(3) No action shall be taken by
the Board under sub-section (1), unless it
has held an inquiry into the matter in a
3 All. Abu Talib Husain & Anr. Vs. State of U.P. & Anr.
385
prescribed manner and the decision has
been taken by a majority of not less than
two-thirds of the members of the Board.

(4) A mutawalli who is aggrieved
by an order passed under any of the clauses
(c) to (i) of sub-section (1), may, within one
month from the date of the receipt by him of
the order, appeal against the order to the
Tribunal and the decision of the Tribunal
on such appeal shall be final.

(5) Where any inquiry under subsection (3) is proposed, or commenced,
against any mutawalli, the Board may, if it
is of opinion that it is necessary so to do in
the interest of the wakf, by an order
suspend
such
mutawalli
until
the
conclusion of the inquiry:

Provided that no suspension for a
period exceeding ten days shall be made
except after giving the mutawalli a
reasonable opportunity of being heard
against the proposed action.

(6) Where any appeal is filed by
the mutawalli to the Tribunal under subsection (4), the Board may make an
application to the Tribunal for the
appointment of a receiver to manage the
wakf pending the decision of the appeal,
and where such an application is made, the
Tribunal shall, notwithstanding anything
contained in the Code of Civil Procedure,
1908 (5 of 1908), appoint a suitable person
as receiver to manage the wakf and direct
the receiver so appointed to ensure that the
customary or religious rights of the
mutawalli and of the wakf are safeguarded.

(7) Where a mutawalli has been
removed from his office under sub-section
(1), the Board may, by order, direct the
mutawalli to deliver possession of the wakf
property to the Board or any officer duly
authorised in this behalf or to any person
or committee appointed to act as the
mutawalli of the wakf property.

(8) A mutawalli of a wakf
removed from his office under this section
shall not be eligible for re-appointment as
a mutawalli of that wakf for a period of five
years from the date of such removal."

7. For applicability of Section-197
Cr.P.C., following three conditions must be
satisfied:

(a) accused is a public servant;

(b) that the public servant can be
removed from the post by or with the
sanction either of Central or the State
Government as the case may be;

(c) the act giving rise to the
alleged offence had been committed by the
public servant in the actual or purported
discharge of his duty.

8. Section-197 Cr.P.C. is being quoted
as below:

"197. Prosecution of Judges and
public servants.--(1) When any person who
is or was a Judge or Magistrate or a public
servant not removable from his office save
by or with the sanction of the Government
is accused of any offence alleged to have
been committed by him while acting or
purporting to act in the discharge of his
official
duty,
no
Court
shall
take
cognizance of such offence except with the
previous
sanction
save
as
otherwise
provided in the Lokpal and Lokayuktas Act,
2013.

(a) in the case of a person who is
employed or, as the case may be, was at the
time of commission of the alleged offence
employed, in connection with the affairs of
the Union, of the Central Government; (b)
in the case of a person who is employed or,
as the case may be, was at the time of
commission
of
the
alleged
offence
386 INDIAN LAW REPORTS ALLAHABAD SERIES
employed, in connection with the affairs of
a State, of the State Government:

Provided that where the alleged
offence was committed by a person referred
to in clause (b) during the period while a
Proclamation issued under clause (1) of
article 356 of the Constitution was in force
in a State, clause (b) will apply as if for the
expression "State Government" occurring
therein,
the
expression
"Central
Government" were substituted.

Explanation.?For the removal of
doubts it is hereby declared that no
sanction shall be required in case of a
public servant accused of any offence
alleged to have been committed under
section 166A, section 166B, section 354,
section 354A, section 354B, section 354C,
section 354D, section 370, section 375,
section 376, section 376A, section 376AB,
section
376C,
section
376D, section
376DA, section 376DB or section 509 of
the Indian Penal Code (45 of 1860)

(2)
No
Court
shall
take
cognizance of any offence alleged to have
been committed by any member of the
Armed Forces of the Union while acting or
purporting to act in the discharge of his
official duty, except with the previous
sanction of the Central Government.

(3) The State Government may, by
notification, direct that the provisions of
sub-section (2) shall apply to such class or
category of the members of the Forces
charged with the maintenance of public
order as may be specified therein, wherever
they may be serving, and thereupon the
provisions of that sub-section will apply as
if for the expression "Central Government"
occurring therein, the expression "State
Government" were substituted.

(3A) Notwithstanding anything
contained in sub-section (3), no court shall
take cognizance of any offence, alleged to
have been committed by any member of the
Forces charged with the maintenance of
public order in a State while acting or
purporting to act in the discharge of his
official duty during the period while a
Proclamation issued under clause (1) of
article 356 of the Constitution was in force
therein, except with the previous sanction
of the Central Government.

(3B) Notwithstanding anything to
the contrary contained in this Code or any
other law, it is hereby declared that any
sanction accorded by the State Government
or any cognizance taken by a court upon
such
sanction,
during
the
period
commencing on the 20th day of August,
1991 and ending with the date immediately
preceding the date on which the Code of
Criminal Procedure (Amendment) Act,
1991 (43 of 1991), receives the assent of
the President, with respect to an offence
alleged to have been committed during the
period while a Proclamation issued under
clause (1) of article 356 of the Constitution
was in force in the State, shall be invalid
and it shall be competent for the Central
Government in such matter to accord
sanction and for the court to take
cognizance thereon.

(4) The Central Government or
the State Government, as the case may be,
may determine the person by whom, the
manner in which, and the offence or
offences for which, the prosecution of such
Judge, Magistrate or public servant is to be
conducted, and may specify the Court
before which the trial is to be held."

9. Therefore, for applicability of
Section-197 Cr.P.C. even for the person
who are deemed to be servant under any
statute other than IPC, he must be
removable by or with the sanction of
Central or the State Government. Hon'ble
Apex Court in the case of Manish Trivedi
Vs. State of Rajasthan reported in (2014)
3 All. Abu Talib Husain & Anr. Vs. State of U.P. & Anr.
387
14 SCC 420 observed that if any act
creates a legal fiction to a particular
category of employee by adopting the
condition of Section-197 Cr.P.C. then those
employees are entitled to get the protection
of Section-197 Cr.P.C. In the above
mentioned
judgement,
Section-87
of
Rajasthan Municipalities Act, 1959 created
legal fiction that members of municipal
board will be deemed to be public servant
as per Section-21 IPC but the word
'Government' mentioned in Section-197
Cr.P.C. was deemed to be substituted by
municipal board and for that reason
member of municipal board Rajasthan was
declared as public servant for the purpose
of Section-197 Cr.P.C. Paragraph no.14 of
the
Manish
Trivedi
Vs.
State
of
Rajasthan (supra) is being reproduced as
under:

"14. Section 87 of the Rajasthan
Municipalities Act, 1959 makes every
Member to be public servant within the
meaning of Section 21 of the Indian Penal
Code, 1860 and the same reads as follows:

"87. Members etc., to be deemed
public servants.-(1) Every member, officer
or servant, and every lessee of the levy of
any municipal tax, and every servant or
other employee of any such lessee shall be
deemed to be a public servant within the
meaning of Section 21 of the Indian Penal
Code, 1860 (Central Act 45 of 1860).

(2) The word "Government" in
the definition of "legal remuneration" in
Section 161 of that Code shall, for the
purposes of sub-section (1) of this section,
be deemed to include a municipal board."

From a plain reading of the
aforesaid provision it is evident that by the
aforesaid section the legislature has
created a fiction that every Member shall
be deemed to be a public servant within the
meaning of Section 21 of the Indian Penal
Code. It is well settled that the legislature
is competent to create a legal fiction. A
deeming provision is enacted for the
purpose of assuming the existence of a fact
which does not really exist. When the
legislature creates a legal fiction, the court
has to ascertain for what purpose the
fiction is created and after ascertaining
this, to assume all those facts and
consequences which are incidental or
inevitable corollaries for giving effect to
the fiction. In our opinion, the legislature,
while enacting Section 87 has, thus, created
a legal fiction for the purpose of assuming
that the Members, otherwise, may not be
public servants within the meaning of
Section 21 of the Indian Penal Code but
shall be assumed to be so in view of the
legal fiction so created. In view of the
aforesaid, there is no escape from the
conclusion that the appellant is a public
servant within the meaning of Section 21 of
the Indian Penal Code."

10. In the present case, though by a
deeming provision of Section-101 of the
Act, 1995 mutawalli was declared as public
servant but to satisfy the second condition
of
Section-197
Cr.P.C.,
the
word
'Government' was not replaced by wakf
board, therefore, despite the fact that
mutawalli was declared to be public servant
by Section-101 of the Act, 1995. All
condition for applicability of Section-197
Cr.P.C.
are
not
fulfilled,
therefore
mutawalli of wakf board despite being
deemed to be a public servant are not
entitled to protection under Section-197
Cr.P.C.

11. With the aforesaid observations,
the present application is rejected.
388 INDIAN LAW REPORTS ALLAHABAD SERIES
---------
(2024) 3 ILRA 388
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.12.2023

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482 No. 19231 of 2016

Saurav Gupta & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Akhilesh Chandra Shukla, Sri Ajay
Kumar

Counsel for the Opposite Parties:
G.A., Sri Amit Saxena, Sri Madan Mohan
Chaurasia, Sri Vidya Prakash Singh

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 202, 202(1), 202(2),
204 & 482 - Indian Penal Code, 1860 -
Sections 406 - Application U/s 482 Cr.P.C. -
for quashing the summoning order in a
complaint case - offence of criminal breach of
trust - applicants argued that the complaint is
retaliatory, filed after a matrimonial dispute, and
based on false claims, including allegations of
dowry which they deny - and since they reside
outside the Magistrate's jurisdiction, an enquiry
under Section 202 Cr.P.C. was mandatory but
not
properly
conducted
-
hence
instant
application - court finds that, upon careful
scrutiny
of
the
complaint,
supporting
documents,
and
witness
testimonies,
the
Magistrate applied his mind and recorded
satisfaction that a prima facie case was made
out
-
The
court
emphasized
that
such
satisfaction must not be mechanical and must
reflect judicial application of mind, which was
evident in this case - The applicants' claims
regarding dowry and the nature of the marriage
were deemed matters of defence to be tested
during trial - Court held that the Magistrate had
duly complied with the mandatory requirements
under Sections 200, 202, and 204 Cr.P.C. before
issuing the summoning order - against the
applicants in a complaint under Section 406
I.P.C. - Consequently, the application seeking
quashing of the summoning order was found to
be meritless and was dismissed.
(Para - 19, 20, 21, 22)

Application Dismissed. (E-11)

List of referred Cases: -

1.
Birla
Corporation
Limited
Vs
Adventz
Investments & Holdings Ltd. & ors.- AIR 2019
SC (Criminal) 1025,

2. Mahmood Ul Rehman Vs Khazir Mohammad
Tunda & ors.- AIR (2015) SC 2195,

3. U.O.I.Vs Ashok Kumar Sharma (2021) 12 SCC
674,

4. Jagdish Ram Vs St. of Rajasthan & anr.(2004)
4 SCC 432,

5. Deepak Gaba Vs St. of U.P. (2023) (3) SCC
423.

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Ajay Kumar, Advocate
holding brief of Sri Akhilesh Chandra
Shukla, learned counsel for the applicants,
Sri Vidya Prakash Singh, learned counsel
for opposite party no.2 and Sri Pankaj
Srivastava, learned A.G.A. for the State.

2. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing of summoning order dated
02.05.2015 passed by learned Additional
Chief Judicial Magistrate, Court No.3,
Ghaziabad in Complaint Case No.2953 of
2014, under Section 406 I.P.C., Police
Station - Sihani Gate, District Ghaziabad.

3. Learned counsel for the applicants
submits that the instant criminal complaint